This Software License Agreement (“协议”) is made by and between;
_____________, 一个 [ ] corporation, with its principal place of business at ________________ (“LICENSEE”) and NexStreaming Corp., a Korean corporation, with its principal place of business at 5th Fl. Kunyoung Bldg., 56 Baumoe-ro 37-gil, 瑞草区, 汉城, Korea (“NexStreaming”).
WHEREAS, NexStreaming has developed and owns or has right to license certain software which it is willing to license to its customers; and
WHEREAS, LICENSEE is ______________________________________; and
WHEREAS, NexStreaming is willing to grant to LICENSEE a license to use the Software (as defined below) in object code form for LICENSEE Products and a right to furnish copies of such Software in object code form to its customers solely for use with LICENSEE Products, NOW, THEREFORE, in consideration of the mutual covenants set forth hereinbelow, the parties agree to the following terms and conditions:
"Software" shall mean the software identified in Exhibit A of this Agreement. Software shall not include the Upgrade.
"Effective Date" shall mean the date set forth on the signature page of this Agreement.
“Upgrade” shall mean major enhancements or new functionalities which are added into the Software and which are incorporated in a new release of the Software. Upgrades can be delivered to LICENSEE upon separate commercial terms and conditions to be agreed upon. “Upgrade” is differentiated from the term “Standard Upgrade” as described in Exhibit B.
“License Period” for each Software shall mean the period of LICENSEE’s use of that Software, which shall be for a period of one(1) year commencing from the delivery of that Software to LICENSEE.
Grant of Rights
NexStreaming grants a non-transferable and non-exclusive license to LICENSEE to use the Software to 1) make any appropriate operations on the Software to have it integrated into LICENSEE Products, 2) demonstrate the resulting LICENSEE Products to possible authorized sub-licensees, 3) distribute to Authorized Sub-Licensee, on a sublicense basis, LICENSEE Products embedding the Software for the use by the Authorized Sub-Licensee always under the commercial conditions of this agreement and with a prior written authorization from NexStreaming (i.e. via eMail).
LICENSEE agrees to use the Software in compliance with all applicable laws, ordinance, rules and regulations.
Except as expressly provided in Sections 2.1, NexStreaming does not grant to LICENSEE a right to use the Software in source code or object code form, or its algorithms for any products other than for LICENSEE Products.
LICENSEE shall not reverse translate, 反编译, or disassemble the Software or attempt to derive the source code from the Software, in whole or in part.
In consideration for the rights granted under Section 2, LICENSEE shall pay license fee to NexStreaming pursuant to Exhibit B.
Failing payment on time as mentioned here above, LICENSEE shall be deemed to be in default. In such case, LICENSEE shall be liable for interest at the rate of fifteen percent (15%) per annum of the total amount due.
All payments to NexStreaming shall be made without deduction based on foreign exchange control restrictions, import duties, bank fees, value-added taxes, withholding taxes or other taxes.
NexStreaming will deliver the Software generated with an application ID that LICENSEE has informed, in which case the Software will work with such application only.
Trademarks, Title and Copyright
Any Software provided hereunder is protected by copyright law and international treaty provisions. Nothing herein entitles LICENSEE to use NexStreaming trademarks or trade names with respect to the Software. NexStreaming shall retain all rights and ownership in the Software and all related patents, trademarks, 版权, trade secrets, confidential information, and any other proprietary rights which NexStreaming is entitled or possesses whether now or hereafter acquired.
"Confidential Information" shall mean any and all technical and non-technical documents and information provided by NexStreaming to LICENSEE under this Agreement including those related to the product such as patent, copyright, trade secret and proprietary information, techniques, algorithms, software programs, documentation and other information and those related to the business such as financial information, procurement requirements, customer lists, business forecasts, and marketing plans.
LICENSEE shall at all time, both during the term of this Agreement and for ten (10) years thereafter, keep in confidence all Confidential Information, and shall not use such Confidential Information except as provided herein. LICENSEE shall not disclose Confidential Information to any party except its employees and independent contractors who have a need to know such Confidential Information for purposes permitted under this Agreement and who are obligated to maintain the Confidential Information in confidence under terms and conditions at least as restrictive as those contained herein. LICENSEE shall take reasonable measures to maintain the confidentiality of the Confidential Information, but not less than the measures it uses for its own confidential information of similar type.
LICENSEE will immediately notify NexStreaming of any unauthorized use or disclosure of the Confidential Information. LICENSEE agrees to assist NexStreaming in remedying such unauthorized use or disclosure of the Confidential Information.
Both parties agree that the mere existence this Agreement itself shall not be considered as Confidential Information, except as expressly otherwise stated in this Agreement.
Warranty and Liability
NexStreaming warrants that it has the right to grant the licenses contained in this Agreement.
LICENSEE acknowledges that the Software is of such complexity that it may have inherent defects, and agrees that if any defects in the Software exist, as LICENSEE’s exclusive remedy and NexStreaming’s sole responsibility, NexStreaming shall use its best effort to eliminate any significant defects reported to it by LICENSEE in writing. This warranty shall expire one (1) year after the Effective Date of this Agreement.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEXSTREAMING MAKES, AND LICENSEE RECEIVES, NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEXSTREAMING DOES NOT WARRANT THAT ANY OR ALL FAILURES, DEFECTS OR ERRORS WILL BE CORRECTED, OR WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS. LICENSEE ACKNOWLEDGES THAT NEXSTREAMING HAS MADE NO REPRESENTATIONS REGARDING WARRANTY OR LIABILITY OTHER THAN AS STATED IN THIS AGREEMENT.
NEXSTREAMING SHALL NOT BE LIABLE TO LICENSEE OR TO ANY OF LICENSEE'S SUBLICENSEES, CUSTOMERS, OR END-USERS FOR ANY LOSS OF PROFIT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THE LICENSING OR USE OF THE SOFTWARE OR FOR ANY ERROR OR DEFECT IN THE SOFTWARE. The maximum liability of NexStreaming arising out of or in connection with any license, use or other employment of any Software delivered to LICENSEE under this Agreement, whether such liability arises from any claim based on breach or repudiation of contract, warranty, tort or otherwise, shall in no case exceed the actual amounts paid to NexStreaming by LICENSEE during the twelve (12) months prior to the date such claim arose for the Software.
Support and Maintenance
Upon election by LICENSEE and provided LICENSEE has paid the support and maintenance fees listed in Exhibit B, following services are available to LICENSEE. Said services shall be provided during normal business hours (Korean Time), Mondays through Fridays (excluding Korean legal holidays).
Remote support (non-defect or application support): NexStreaming shall provide telephone consulting services and/or written support services through fax, email or other manner to LICENSEE’s designated personnel to provide such personnel with application support relative to the Software, being the assistance, beyond defect support, regarding the incorporation of the Software in the LICENSEE Products. NexStreaming will analyse the claim of LICENSEE and inform LICENSEE of the result of its analysis. If further investigation is needed, NexStreaming will inform LICENSEE as soon as possible of the results thereof. NexStreaming shall also give advice and appropriate suggestions to improve the quality of the LICENSEE Products.
Maintenance (defect support): NexStreaming shall provide telephone consulting services and/or written support services through fax, email or other manner to LICENSEE’s designated personnel to provide such personnel with defect support relative to the Software, being the provision of assistance regarding suspected defects or errors in the Software. NexStreaming will analyse the claim of LICENSEE and inform LICENSEE of the result of its analysis. NexStreaming shall also provide, when it is available within NexStreaming, any change to the Software that makes minor enhancements and/or corrections for any bug, problem, issue and/or dysfunction. All of such change, when delivered and/or installed, shall be considered “Software” for purposes of this Agreement.
NexStreaming will, during the term of technical support, upon written request from LICENSEE (and subject to NexStreaming's consent to such request) or upon consultation with LICENSEE in case NexStreaming deems it necessary for the purpose of this Agreement, dispatch its engineers to LICENSEE to give technical assistance in the use of Software. All costs and expenses of NexStreaming's personnel dispatched to LICENSEE shall be borne or reimbursed to NexStreaming by LICENSEE, 包含, but not limited to, man-day charge (USD 500 per day), round trip airfare and suitable accommodations, all living, meal, traveling and transportation expenses and other charges in connection with the performance of their duties hereunder.
NexStreaming shall indemnify and defend LICENSEE against any claim that the Software infringes any third party patent, copyright, trade secret or other intellectual property right when used in accordance with the terms of this Agreement, provided however that LICENSEE shall give NexStreaming prompt notice of such claim and shall give information, reasonable assistance and authority so that NexStreaming may defend or settle the claim. NexStreaming shall have the right, at its option, either to obtain for LICENSEE the right to continue using the Software, to substitute other software with equivalent functional capabilities, to modify the Software so that the Software is no longer infringing while retaining equivalent functions, or to terminate this Agreement and refund all royalties paid by LICENSEE under this Agreement.
Notwithstanding the above, LICENSEE acknowledges and agrees that the Software has been developed based on industry recognized standards, 包含, but not limited to, the JPEG standard, MPEG standards, and software programs published by industry recognized standards bodies and that this Agreement does not convey or grant a license to any intellectual property rights owned by third parties in relation to the standards for which LICENSEE is solely responsible for receiving a license from the holders of such intellectual property rights.
Notwithstanding the above, LICENSEE acknowledges that the software listed in Exhibit A (“Third Party Software”) is licensed from third parties, and hereby agrees to receive the license from the relevant third parties to use such software.
Notwithstanding the above, LICENSEE acknowledges that the software listed in Exhibit A (“Public Software”) has been developed using the open source that are freely distributed under the relevant license, and agrees to comply with the requirements specified in the license.
LICENSEE agrees that NexStreaming may issue a press release upon shipment of its first product using the Software, or sooner, as mutually agreed upon by both parties.
Term and Termination
This Agreement shall be effective on the Effective Date and shall continue in effect for one (1) year thereafter and shall be automatically renewed for consecutive one (1) year unless either party provides the other party with the notice of non-renewal at least thirty (30) days prior to the end of the then current term.
Either party may terminate this Agreement for material breach by providing thirty (30) days written notice to the breaching party, unless the breach is corrected during such thirty (30) day period.
Upon termination or cancellation of this Agreement, all rights granted by this Agreement shall revert to NexStreaming and LICENSEE shall cease all use of the Software. LICENSEE shall destroy or deliver to NexStreaming within fifteen (15) days of termination all full or partial copies of the Software in LICENSEE's possession or under its control and will warrant to NexStreaming such destruction or delivery.
No termination or cancellation of this Agreement shall affect the obligation of LICENSEE to pay to NexStreaming all royalties that have become due hereunder.
All notices, requests, and other communications in connection with this Agreement shall be deemed given (一世) five days after being deposited in the mail, postage pre-paid, certified, or registered, return receipt requested, 要么 (二) one day after being sent by overnight courier, charges pre-paid, with a confirming fax; and addressed as set forth below or to such other address as the party to receive the notice or request so designates by written notice to the other.
If to NexStreaming: NexStreaming公司. 5th Fl, Gwanseong Bldg., 831-47, Yeoksam-dong, Kangnam-gu, 汉城, Korea Attn : Jim Jin Facsimile : +82-2-21945333 邮件 : [email protected] If to LICENSEE:
The parties to this Agreement will work together in good faith to remedy any technical, business, legal or other difficulties which may arise in connection therewith. In the event disputes do arise between the parties, out of or in relation to or in connection with this Agreement or for the breach thereof, they shall be finally settled by arbitration in Seoul, Korea, in accordance with the Commercial Arbitration Rules of the Korean Commercial Arbitration Board by one or three arbitrators appointed in accordance with the said Rules. The award rendered by the arbitrator(s) shall be final and binding upon both parties concerned.
This Agreement shall be governed by the laws of Republic of Korea.
The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions, and this Agreement shall be construed in all respects as if such invalid or unenforceable provisions were omitted.
The failure of either party to insist, in any one or more instances, upon the performance of any of the terms of this Agreement or to exercise any right hereunder, shall not be construed as a waiver of the future performance of any such term or the future exercise of such right.
Whenever any occurrence (e.g. an event of force majeure) is delaying or threatens to delay either party’s timely performance under this Agreement, such party will promptly give notice thereof, including all relevant information with respect thereto, to the other party.
This Agreement sets forth and shall constitute the entire agreement between LICENSEE and NexStreaming with respect to the subject matter thereof, and shall supersede any and all prior agreements, understandings, promises and representations made by one party to the other concerning the subject matter herein and the terms and conditions applicable thereto. This Agreement may not be released, discharged, supplemented, interpreted, amended or modified in any manner except by an instrument in writing signed by a duly authorized officer or representative of each of the parties hereto as is specially provided elsewhere in this Agreement.
In making and performing this Agreement, the parties act and shall act at all times as independent contractors and nothing contained in this Agreement shall be construed or implied to create the relationship of partner or of employer and employees between the parties. At no time shall either party make commitments for or in the name of the other party.
Either party is not allowed to assign the license rights granted hereunder without the other party’s prior written consent, which shall not be unreasonably withheld.
All notices under this Agreement shall be sent to the address here above mentioned. All such notices shall be deemed to be received by the other party three (3) days after the postal date or on the date of signature of the receipt of delivery by a courier mail company.
The Addenda referenced in this Agreement, and the specifications referenced therein, as well as other documentation referenced in this Agreement which define the obligations of the parties, are a part of this Agreement with the same force and effect as if fully set forth herein.
The Effective Date of this Agreement is from 11th of March,2019_.
IN WITNESS WHEREOF, the parties have caused their duly authorized representatives to execute and deliver this Agreement as of the Effective Date.
The Software to be provided by NexStreaming is as below:
NexPlayer SDK on android and iOS Basic Functionalities Start (from beginning or anywhere) Pause/Resume Seek Select Media Stream (multi-audio/video/subtitle) Turn on/off Media Stream Advanced Functionalities H.264 aspect-ratio H.264 SEI Header Parsing Eye-pleaser (seamless frame skipping method) ID3 Tags (including Private Frame Data) Set video output position Adjust audio output volume Set subtitle display property Fast Play Generate playback statistics information Protocols HTTP Live Streaming (HLS) HLS v06 VOD Live Rate Adaptation CEA-608 Subtitle CES-708 Subtitle WebVTT Subtitle AES-128 Decryption Multi-Video/Audio Track (HLSv04) I-Frame only Track (HLSv04) Offline Playback TimedMeta Server-Side TimeShift Client-Side TimeShift Specify Start Track Restrict maximum bandwidth Restrict minimum bandwidth HEVC codec AC3 codec HTTP Redirection HTTP digest authentication Cookie Manipulation GZip Generate streaming statistics information
DASH VOD Live CMAP Rate Adaptation TTML Subtitle Server-side TimeShift Client-side TimeShift Offline Playback Offline store without playback Specify Start Track Restrict maximum bandwidth Restrict minimum bandwidth HTTP Redirection HTTP digest authentication Cookie Manipulation Gzip Proxy
Progressive Download Streaming mode 下载(Store) and Play mode Chunked Transfer Encoding (CTE) HTTP Redirection Cookie Manipulation GZip
Local Playback MP4/PIFF MP3 ASF/WMV AVI AAC MPEG-TS OGG FLAC FLV QCELP CFF
Video Codecs H.264 HEVC (H.265) H.263 MPEG-4
Audio Codecs AAC-LC HE AAC (AAC LC+SBR) HE AAC v2 (AAC-LC + SBR + PS)
Subtitles External Subtitle (smi, srt, sub) 3gpp timed text TTML Image based closed caption at TTML DXFP CEA-608 CEA-708 WebVTT插入
Supporting OS: Latest version of Android and iOS at contract signature. The Software supporting higher versions of Android may be provided to LICENSEE when it is available within NexStreaming.
NexPlayer HTML5 player Support major PC Browsers like Chrome, IE/EDGE, Firefox, Safari.
Third Party Software
LICENSEE acknowledges that AAC/AAC+/eAAC and AMR-NB decoders are developed using the open source which are licensed under APACHE license as attached below and agrees to comply with the requirements specified in APACHE license.
Apache License Version 2.0, January 2004 HTTP://www.apache.org/licenses/
TERMS AND CONDITIONS FOR USE, REPRODUCTION, AND DISTRIBUTION
1. Definitions. "执照" shall mean the terms and conditions for use, reproduction, and distribution as defined by Sections 1 through 9 of this document.
"Licensor" shall mean the copyright owner or entity authorized by the copyright owner that is granting the License. "Legal Entity" shall mean the union of the acting entity and all other entities that control, are controlled by, or are under common control with that entity. For the purposes of this definition, "control" means (一世) the power, direct or indirect, to cause the direction or management of such entity, whether by contract or otherwise, 要么 (二) ownership of fifty percent (50%) or more of the outstanding shares, 要么 (三) beneficial ownership of such entity. "You" (要么 "Your") shall mean an individual or Legal Entity exercising permissions granted by this License.
"Source" form shall mean the preferred form for making modifications, including but not limited to software source code, documentation source, and configuration files. "Object" form shall mean any form resulting from mechanical transformation or translation of a Source form, including but not limited to compiled object code, generated documentation, and conversions to other media types. "Work" shall mean the work of authorship, whether in Source or Object form, made available under the License, as indicated by a copyright notice that is included in or attached to the work (an example is provided in the Appendix below). "Derivative Works" shall mean any work, whether in Source or Object form, that is based on (or derived from) the Work and for which the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work of authorship. For the purposes of this License, Derivative Works shall not include works that remain separable from, or merely link (or bind by name) to the interfaces of, the Work and Derivative Works thereof. "Contribution" shall mean any work of authorship, including the original version of the Work and any modifications or additions to that Work or Derivative Works thereof, that is intentionally submitted to Licensor for inclusion in the Work by the copyright owner or by an individual or Legal Entity authorized to submit on behalf of the copyright owner. For the purposes of this definition, "submitted" means any form of electronic, verbal, or written communication sent to the Licensor or its representatives, including but not limited to communication on electronic mailing lists, source code control systems, and issue tracking systems that are managed by, or on behalf of, the Licensor for the purpose of discussing and improving the Work, but excluding communication that is conspicuously marked or otherwise designated in writing by the copyright owner as "Not a Contribution." "Contributor" shall mean Licensor and any individual or Legal Entity on behalf of whom a Contribution has been received by Licensor and subsequently incorporated within the Work.
2. Grant of Copyright License. Subject to the terms and conditions of this License, each Contributor hereby grants to You a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable copyright license to reproduce, prepare Derivative Works of, publicly display, publicly perform, sublicense, and distribute the Work and such Derivative Works in Source or Object form.
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4. Redistribution. You may reproduce and distribute copies of the Work or Derivative Works thereof in any medium, with or without modifications, and in Source or Object form, provided that You meet the following conditions: 1. You must give any other recipients of the Work or Derivative Works a copy of this License; and 2. You must cause any modified files to carry prominent notices stating that You changed the files; and 3. You must retain, in the Source form of any Derivative Works that You distribute, all copyright, patent, trademark, and attribution notices from the Source form of the Work, excluding those notices that do not pertain to any part of the Derivative Works; and 4. If the Work includes a "NOTICE" text file as part of its distribution, then any Derivative Works that You distribute must include a readable copy of the attribution notices contained within such NOTICE file, excluding those notices that do not pertain to any part of the Derivative Works, in at least one of the following places: within a NOTICE text file distributed as part of the Derivative Works; within the Source form or documentation, if provided along with the Derivative Works; 要么, within a display generated by the Derivative Works, if and wherever such third-party notices normally appear. The contents of the NOTICE file are for informational purposes only and do not modify the License. You may add Your own attribution notices within Derivative Works that You distribute, alongside or as an addendum to the NOTICE text from the Work, provided that such additional attribution notices cannot be construed as modifying the License.
You may add Your own copyright statement to Your modifications and may provide additional or different license terms and conditions for use, reproduction, or distribution of Your modifications, or for any such Derivative Works as a whole, provided Your use, reproduction, and distribution of the Work otherwise complies with the conditions stated in this License. 5. Submission of Contributions. Unless You explicitly state otherwise, any Contribution intentionally submitted for inclusion in the Work by You to the Licensor shall be under the terms and conditions of this License, without any additional terms or conditions. Notwithstanding the above, nothing herein shall supersede or modify the terms of any separate license agreement you may have executed with Licensor regarding such Contributions. 6. Trademarks. This License does not grant permission to use the trade names, trademarks, service marks, or product names of the Licensor, except as required for reasonable and customary use in describing the origin of the Work and reproducing the content of the NOTICE file. 7. Disclaimer of Warranty. Unless required by applicable law or agreed to in writing, Licensor provides the Work (and each Contributor provides its Contributions) on an "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied, 包含, without limitation, any warranties or conditions of TITLE, NON-INFRINGEMENT, MERCHANTABILITY, or FITNESS FOR A PARTICULAR PURPOSE. You are solely responsible for determining the appropriateness of using or redistributing the Work and assume any risks associated with Your exercise of permissions under this License. 8. Limitation of Liability. In no event and under no legal theory, whether in tort (including negligence), contract, or otherwise, unless required by applicable law (such as deliberate and grossly negligent acts) or agreed to in writing, shall any Contributor be liable to You for damages, including any direct, indirect, special, incidental, or consequential damages of any character arising as a result of this License or out of the use or inability to use the Work (including but not limited to damages for loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses), even if such Contributor has been advised of the possibility of such damages. 9. Accepting Warranty or Additional Liability. While redistributing the Work or Derivative Works thereof, You may choose to offer, and charge a fee for, acceptance of support, warranty, indemnity, or other liability obligations and/or rights consistent with this License. However, in accepting such obligations, You may act only on Your own behalf and on Your sole responsibility, not on behalf of any other Contributor, and only if You agree to indemnify, defend, and hold each Contributor harmless for any liability incurred by, or claims asserted against, such Contributor by reason of your accepting any such warranty or additional liability.
END OF TERMS AND CONDITIONS
APPENDIX: How to apply the Apache License to your work To apply the Apache License to your work, attach the following boilerplate notice, with the fields enclosed by brackets "" replaced with your own identifying information. (Don't include the brackets!) The text should be enclosed in the appropriate comment syntax for the file format. We also recommend that a file or class name and description of purpose be included on the same "printed page" as the copyright notice for easier identification within third-party archives.
Licensed under the Apache License, Version 2.0 (the "执照"); you may not use this file except in compliance with the License. You may obtain a copy of the License at
Unless required by applicable law or agreed to in writing, software distributed under the License is distributed on an "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied. See the License for the specific language governing permissions and limitations under the License.
EXHIBIT B LICENSE PRICE
License Fee for NexPlayer SDK on android and iOS
Upon the Effective Date, LICENSEE shall pay to NexStreaming a non-refundable annual license fee of USD 42,000 for the first application enabled to use the Software inside (application identified with a unique application package ID). The License fee shall be paid in thirty(30) days upon the issue of invoice for the payment.
License fee for NexPlayer HTML5 Player SDK
Upon the Effective Date, LICENSEE shall pay to NexStreaming a non-refundable annual
license fee of USD 8,000 for the first web domain enabled to use the Software inside. The License fee shall be paid in thirty(30) days upon the issue of invoice for the payment.
Support and Maintenance Fee The License Fee includes all fees for the Support and Maintenance as mentioned in Section 8.1 of this Agreement and Standard Upgrades Fees. “Standard Upgrade” hereunder shall mean standard enhancement and bug fixing.