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nw/1.txt
END-USER LICENSE AGREEMENT - TASKING IMPORTANT - READ CAREFULLY THIS END-USER LICENSE AGREEMENT (“EULA”) IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL PERSON OR A SINGLE LEGAL ENTITY, REFERRED TO HEREIN AS “YOU”) AND ALTIUM LLC (“ALTIUM” HEREIN) FOR THE USE OF CERTAIN COMPUTER TECHNOLOGY DEVELOPED AND DISTRIBUTED BY ALTIUM, WHETHER IN THE FORM OF COMPUTER SOFTWARE, HARDWARE, FIRMWARE OR ANY OTHER FORM, TOGETHER WITH ANY APPLICABLE DOCUMENTATION (COLLECTIVELY, THE “LICENSED MATERIALS”). PLEASE READ THIS DOCUMENT CAREFULLY BEFORE INSTALLING, USING OR REGISTERING TO USE THE LICENSED MATERIALS. BY INSTALLING, USING OR REGISTERING TO USE THE LICENSED MATERIALS, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS EULA, INCLUDING, BUT NOT LIMITED TO, OWNERSHIP AND GRANT OF LICENSE TERMS IN SECTIONS 2 AND 4, THE LICENSE RESTRICTIONS IN SECTION 3, THE CONFIDENTIALITY PROVISIONS IN SECTION 5, AND THE LIMITATIONS OF LIABILITY AND DISCLAIMERS IN SECTIONS 8, 9 AND 10. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU ARE NOT PERMITTED TO INSTALL, OR USE OR REGISTER THE LICENSED MATERIALS; IF YOU HAVE ALREADY OBTAINED OR PURCHASED THE LICENSED MATERIALS, BUT HAVE NOT INSTALLED OR USED THEM, PROMPTLY RETURN THE LICENSED MATERIALS TO THE PLACE WHERE YOU OBTAINED THEM AND YOUR MONEY (IF ANY PAID) WILL BE REFUNDED. ALTIUM AND ITS SUPPLIERS OWN ALL INTELLECTUAL PROPERTY RIGHTS IN THE SOFTWARE AND HARDWARE SUPPLIED HEREUNDER; SAID SOFTWARE IS LICENSED, NOT SOLD, AND ALTIUM PERMITS YOU TO DOWNLOAD, INSTALL, USE OR OTHERWISE BENEFIT FROM THE SOFTWARE, OR THE INTELLECTUAL PROPERTY RIGHTS THEREIN, ONLY IN STRICT ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS EULA. USE OF OTHER, THIRD-PARTY, MATERIALS AND SERVICES INCLUDED IN OR ACCESSED IN CONNECTION WITH THE SOFTWARE MAY BE SUBJECT TO OTHER TERMS AND CONDITIONS OF SAID THIRD PARTIES. THE SOFTWARE MAY INCLUDE PRODUCT ACTIVATION AND OTHER TECHNOLOGY DESIGNED TO PREVENT UNAUTHORIZED COPYING. YOU MAY NOT DISABLE OR ATTEMPT TO CIRCUMVENT SUCH TECHNOLOGY. FAILURE TO COMPLY WITH THE PROCESS FOR SUCH ACTIVATION OR ATTEMPTING TO CIRCUMVENT SUCH PROCESS MAY RESULT IN THE SOFTWARE BEING INACCESSIBLE TO YOU. ENGAGING IN ANY SUCH ACTIVITY MEANT TO MODIFY OR CIRCUMVENT SUCH RESTRICTIONS ON UNAUTHORIZED COPYING SHALL RESULT IN IMMEDIATE TERMINATION OF THIS EULA, WHETHER OR NOT ALTIUM IS AWARE OF YOUR ACTIVITIES AT THE TIME OR DISCOVERS THEM LATER. ANY FURTHER USE OF THE SOFTWARE OR OTHER LICENSED MATERIALS BY YOU SUBSEQUENT TO SUCH TERMINATION WILL EXPOSE YOU TO LIABILITY FOR COPYRIGHT INFRINGEMENT AND OTHER CLAIMS. 1. Definitions In this EULA, unless the context otherwise requires, the following expressions will have the following meanings: 1.1. ALTIUM means Altium LLC. 1.2. Bundle(d) refers to when two or more ALTIUM Products are supplied together as a single package. When Products are supplied as a Bundle they are deemed a single Product in terms of their usage and transfer. In no event shall You be permitted to install a Bundled Product, in whole or in part, on a computer or LAN for which any of the Bundled Products are not licensed. 1.3. Effective Date means the commencement date of this EULA with respect to the applicable Licensed Materials, which shall be the date You obtain the Licensed Materials. 1.4. You means the entity, either individual or company, that is obtaining the Licensed Materials. 1.5. Products means any TASKING computer software applications (“TASKING Software Products”) or computer hardware or firmware products (“TASKING Firmware Products”) that accompany or are hereafter provided pursuant to this EULA, including any associated media, printed materials and electronic documentation. The TASKING Software Products also include any other Bonus Technology provided by ALTIUM to You for use by You in creating add-on products to the TASKING Software Products provided hereunder. If You have purchased Maintenance in connection with any licensed TASKING Software Products then the latter shall also include any software updates, software version upgrades, software configuration upgrades, add-on components, web services and/or supplements that ALTIUM may provide to You after the date You obtain your initial copy of the TASKING Software Products, to the extent that such items are not accompanied by a separate license agreement or terms of use. 1.6. Bonus Technology means an additional TASKING Software Product provided to You as an update, revision or addition to the existing TASKING Software Products You already have licensed or are licensing by this EULA. Bonus Technology also includes software applications or features that ALTIUM offers free of charge to anyone who downloads such software from www.tasking.com or Altium’s authorized website, for inclusion in end user applications or otherwise, and whether or not such person has licensed any other TASKING Software Product, so long as such software is designated on said website as software that may be used in such manner by end users (“Designated Bonus Technology”). All Bonus Technologies shall be treated as TASKING Software Products under this EULA, and all terms and conditions of this EULA apply to them, except as otherwise provided herein. All limitations, including installation and usage, and transfer, apply to Bonus Technologies; provided, however, as described above, certain Designated Bonus Technologies offered by ALTIUM may be offered on a basis where they can be copied, included in end user applications, and otherwise treated differently from other Bonus Technologies. Except as to Designated Bonus Technologies, in no event shall You be permitted to install any Bonus Technology on a computer or LAN for which you have not licensed the TASKING Software Products. 1.7. Developer Edition means a TASKING Software Product that is accompanied by the Developer Kit or other Bonus Technologies to permit You to create add-on products for TASKING Software Products. 1.8. Developer Kit means additional technology or Bonus Technologies supplied when a Developer Edition of a TASKING Software Product is licensed. The Developer Kit includes programmer-relevant software interface documentation, source code examples, and Runtime Libraries. 1.9. Runtime Libraries means compiled software development library files supplied as part of the Developer Kit. 1.10. Firmware means computer hardware that also contains software elements. 1.11. Intellectual Property Rights means patent, copyright, design right (whether registered or unregistered), trademarks (whether registered or common law), trade secrets, confidential information and any other form of intellectual property rights. 1.12. Core means a block of logic or data used to implement specific component functionality in an FPGA (Field Programmable Gate Array) or an ASIC (Application Specific Integrated Circuit). TASKING Cores are supplied in pre-synthesized EDIF form. 1.13. Libraries means compiled computer software development library files supplied as part of the Licensed Materials. 1.14. Licensed Materials means the computer hardware, Firmware and Software Products (including but not limited to all Bonus Technologies, Bundled Products, Cores and Libraries) provided to You hereunder, together with any applicable documentation. 1.15. Licensed User Products means any integrated circuits designed, manufactured or marketed by You or on Your behalf that incorporate all or any of the Libraries or Designated Bonus Technologies, or were designed using any of the Licensed Materials. 1.16. LAN or Local Area Network means an interconnected set of computers, all of which are contained within the same geographic site (and not including computers located at other geographic sites, even if part of the interconnected set of computers), upon which any computer software provided as part of the Licensed Materials may run. 1.17. Permitted Use means use of the Licensed Materials by You in accordance with Section 2 below. 1.18. Security System means the methods of enabling any Altium Software Products provided with the Licensed Materials to operate in accordance with the way they have been licensed by You, and of preventing any circumvention by You of such methods. 1.19. Specifications means ALTIUM’s published specifications for the Licensed Materials. 1.20. Internet Based License Management System means a website at www.ALTIUM.com or such other address designated by ALTIUM through which the Licensed Materials may be made available to You on an on-demand basis. 1.21. Continental License means a multi-user license for use of the Licensed Materials at multiple sites within one geographic continent by a specified number of users. 1.22. Global License means a multi-user license for use of the Licensed Materials at multiple sites anywhere in the world by a specified number of users. 1.23. Single Site License means a multi-user license for use of the Licensed Materials at a single geographic site by a specified number of users. For purposes of a Single Site License, the phrase “geographic site” means a site no greater than one-half mile (800 meter) radius. You may have Software temporarily used by an employee for telecommuting purposes from locations other than such geographic site, such as the employee’s residence, an airport or hotel, provided that such employee’s primary place of employment is the site where the Software is authorized for use. 1.24. Temporary Use means use of the Licensed Materials at a site, location or in a geographic area not otherwise licensed hereunder by You, but wherein the use of the Licensed Materials must: a) be temporary and timelimited; b) in no event result in an additional copy of the Licensed Materials being made or installed on any other party’s computers or computer networks; c) in no event allow ongoing use of the Licensed Materials by any third party, except as may otherwise be allowed herein; and d) in no event compromise or disclose ALTIUM’s confidential and trade secret information. By way of example only, the kind of Temporary Use that may be permitted hereunder would be if You had the Licensed Materials on a portable computer for purposes of taking them to a contractor site that is working with you on company business, and who is fully obligated to abide by confidentiality and other restrictions regarding any such materials that you disclose to them. In such case, You might show the Licensed Materials to said contractor, but in no event would leave behind a copy or install the same on said Contractor’s computers or computer networks. 1.25. An Academic Use License is one that: (i) in the case of employees (faculty and academic staff), performing software administration, teaching,and non-commercial, academic research for Licensee’s use only in their ordinary course as Licensee’s employees; and (ii) in the case of enrolled students, meeting classroom requirements of courses and study offered by the Licensee. Any other use is expressly prohibited, including but not limited to: (a) any use by any person for purposes of supporting research and development for any commercial (for profit) entity; and (b) any use by any person for purposes of supporting any governmental agencies or not-for-profit entities. 2. Ownership and Grant of License 2.1. Ownership. The Licensed Materials are licensed to You, not sold. The Licensed Materials are the sole property of ALTIUM and/or its licensors and are protected by all applicable Intellectual Property Rights and contract laws. In accepting this license, You acknowledge that all Intellectual Property Rights in the Licensed Materials are and will remain the sole property of ALTIUM and/or it licensors. Nothing contained in this EULA will be construed as granting You by implication, estoppel or otherwise any ownership, license or other right except the licenses and rights expressly granted hereunder to You. 2.2. Terms of License Granted. Upon payment of the applicable license fees, ALTIUM hereby grants You a nonexclusive, non-transferable license to: 2.2.1. Use the Licensed Materials, solely for the design, simulation, implementation and manufacture of Licensed User Products; and 2.2.2. Make, have made, use, sell or otherwise distribute Licensed User Products developed from the Licensed Materials or, in Your discretion, incorporating all or any portion of the Libraries or Designated Bonus Technologies, on a worldwide basis to Your customers. 2.3. Restrictions on Use. This EULA grants You the right to install and use the Licensed Materials only upon or in connection with a single computer or a single Local Area Network, at a single geographic site, or otherwise in accordance with the terms under which You have licensed the Licensed Materials from ALTIUM. Notwithstanding the foregoing, ALTIUM permits You to make a Temporary Use of the Licensed Materials so long as such use does not result in the use of more copies of the Licensed Materials that You are permitted to use at any given time, if Your license is so restricted hereunder. 2.3.1. In no event shall You: a) allow any of Your affiliates, subsidiaries or divisions, any portion of Your business located at a different geographic site, or third parties to copy, have access to or use any portion whatsoever of the Licensed Materials unless You have licensed the Licensed Materials on a Continental License or Global License basis; notwithstanding the foregoing, You may make a Temporary Use of the Licensed Materials as stated in Section 2.3 above; b) allow any third party to have access to or use any portion whatsoever of the Licensed Materials, unless such access or use is in connection with a Temporary Use by You in connection with a legitimate business purpose that does not otherwise violate the terms of this Agreement, including but not limited to the restrictions on number of users, if such restrictions apply to Your license hereunder; c) make copies of the Licensed Materials for use by any of Your other affiliates, subsidiaries or divisions, or by any third party; d) allow more than the number of permitted persons to access and use the Licensed Materials at any one time, (whether involving a single license or a license that allows multiple users), including any Temporary Uses, unless you have negotiated with ALTIUM for a license that permits an unlimited number of users to access and use the Licensed Materials; e) allow the Licensed Materials to be available virtually or as part of any remote build process by persons not authorized under the terms of the type of license obtained by You. 2.3.2. In the event that You have licensed the Licensed Materials for use in connection with a single computer, You may install and use only a single copy thereof at any given time, and said copy may be used only by You; 2.3.3. In the event that You have licensed the Licensed Materials on a Single Site License, Continental License or Global License basis, this EULA allows as many persons employed or hired as contractors (so long as such contractors have entered into an appropriate form of confidentiality agreement) by You to simultaneously use the Licensed Materials as are permitted under the license obtained from ALTIUM. At no time shall You permit the number of persons that may access and/or use the Licensed Materials to exceed the number of persons for whom You have licensed the same, including in connection with any Temporary Use. You understand and agree that such use beyond that licensed hereunder, whether by allowing excess persons to use the Licensed Materials or otherwise, shall constitute not only breach of this EULA, but violation of national and international copyright and patent laws. 2.3.4. You may increase the number of persons or sites permitted to use the Licensed Materials at any one time by paying ALTIUM additional license fees in accordance with then applicable pricing, provided that such additional persons in no way access or use the Licensed Materials prior to any such additional license fees being paid by You. The use of the Licensed Materials by any such additional persons shall be governed by the terms of this EULA as if such persons had been licensed to use the same from the date of the initial agreement between the parties. In the event that any provision of this EULA is breached by You, the license granted herein shall automatically terminate, without further action by ALTIUM and whether or not You abide by such termination. Failure of ALTIUM to learn about any such breach shall not constitute a basis for You to assert that You are not in breach hereof, or that ALTIUM has acquiesced in such breach. �3.1. License, Not Sale. The Licensed Materials are licensed only to You, not sold. In no event shall You be permitted to sell, license or otherwise commercialize the Licensed Materials as standalone products. Among the Licensed Materials, You may include only Libraries and Designated Bonus Technologies within Licensed User Products. 3.2. No Assignment or Sharing. In no event shall You disclose, transfer, assign, publish, distribute, provide in a service bureau, rent, lease or in any other way make available to any other person the Licensed Materials or any part thereof without the prior written consent of ALTIUM; provided, however, that You shall be permitted to make permitted Temporary Uses of the same, and/or include within any Licensed User Products the Libraries provided by ALTIUM as part thereof. Such permission to use such Libraries or Designated Bonus Technologies in Licensed User Products shall not apply to products that compete with the Licensed Materials. 3.3. No Reverse Engineering. You understand and agree that in no event shall You make unauthorized copies of, decompile, reverse engineer, disassemble, modify, or otherwise reduce the Licensed Materials or any portion thereof to human-perceivable form, or disclose to any third person any portion of the Licensed Materials in human-perceivable form. You may not modify the TASKING Software Products provided with the Licensed Materials so as to circumvent any restrictions on use afforded by the TASKING Security System supplied with such Software Products. 3.4. Restrictions on Disclosure. You may not provide, disclose or in any other way make available to others, including but not limited to your affiliates, subsidiaries or divisions (unless You have licensed the Licensed Materials in such a way as to permit such use or in connection with a permitted Temporary Use), or any third parties, any of the Licensed Materials without the prior written permission of ALTIUM; provided, however, that You may provide device programming files, namely bit-stream files or PROM files, to third persons without such prior approval solely for use in the manufacturing of Licensed User Products. In the event that You hire or engage any contractor to assist You in connection with the installation, implementation or other use of the Licensed Materials, You shall first determine that said contractor is not employed or engaged by any direct competitor of ALTIUM, and in the event such contractor is so employed or engaged, You shall in no event give such person access to the Licensed Materials; in the event such contractor is not employed by or engaged by a direct competitor of ALTIUM, You shall ensure that such contractor has entered into an appropriate confidentiality agreement that protects the Licensed Materials in a manner consistent with the confidentiality and other provisions in this EULA. 3.5. Third-Party Licenses. THE LICENSE RIGHTS GRANTED IN THIS EULA ARE TO THE LICENSED MATERIALS DEVELOPED SOLELY BY OR FOR ALTIUM. YOU UNDERSTAND AND AGREE THAT THE LICENSED MATERIALS MAY CONTAIN COMPUTER SOFTWARE AND INTELLECTUAL PROPERTY BELONGING TO THIRD PARTIES, AND THAT THE LICENSE TO SUCH THIRD-PARTY COMPUTER SOFTWARE AND INTELLECTUAL PROPERTY EXTENDS ONLY TO THEIR USE FOR DEVELOPMENT PURPOSES. YOU UNDERSTAND AND AGREE THAT IT IS YOUR SOLE OBLIGATION AND RESPONSIBILITY, AND IN NO EVENT ALTIUM’S OBLIGATION OR RESPONSIBILITY, TO DETERMINE WHAT, IF ANY, THIRD-PARTY LICENSES YOU MUST OBTAIN IN CONNECTION WITH SUCH THIRD-PARTY COMPUTER SOFTWARE OR INTELLECTUAL PROPERTY IN THE EVENT YOU DESIRE TO DISTRIBUTE COMMERCIAL PRODUCTS THAT INCORPORATE OR ARE BASED UPON SUCH THIRD-PARTY COMPUTER SOFTWARE AND/OR INTELLECTUAL PROPERTY. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD ALTIUM, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SUBSIDIARIES, AFFILIATES AND DISTRIBUTORS COMPLETELY HARMLESS FROM ANY AND ALL LIABILITY, INCLUDING BUT NOT LIMITED TO ATTORNEYS’ FEES AND EXPERTS’ FEES, ASSOCIATED IN ANY MANNER WITH YOUR FAILURE TO OBTAIN OR PROPERLY MAINTAIN ANY SUCH REQUIRED THIRD-PARTY LICENSES. 3.6. Indemnification for Specified Applications. In the event that You use the Licensed Materials in connection with one or more of the following applications: the operation of weapons, weapon systems, nuclear installations, means of mass transportation, aviation, life-support computers or equipment (including resuscitation equipment and surgical implants), pollution control, hazardous substances management, or for any other application in which the failure of the Licensed User Products could create a situation where personal injury or death may occur, You shall indemnify, defend and hold ALTIUM and their officers, employees, subsidiaries, affiliates, and distributors harmless against all claims, costs, damages, expenses, and reasonable attorney fees arising out of, directly or indirectly, any claim of personal injury, death, or other damages associated with such unintended or unauthorized use, even if such claim alleges that ALTIUM was negligent regarding the design of the Licensed Materials. 3.7. Compliance Certification. During the term of this Agreement, ALTIUM shall have the right to request that You provide, within thirty (30) days of receipt of ALTIUM’s written request, documentation to support, and certification of, use of the Licensed Materials in complete compliance with this EULA’s terms and conditions. 4. Intellectual Property Rights You acknowledge that all Intellectual Property Rights in the Licensed Materials are and will remain the sole property of ALTIUM or their licensors, if any. Nothing contained in this EULA will be construed as conferring by implication, estoppel or otherwise upon You any ownership, license or other right except the licenses and rights expressly granted hereunder to You. 5. Confidentiality You acknowledge and agree that the Licensed Materials and all other information provided to you by ALTIUM under this EULA are to be held by You in confidence, and are not to be disclosed except as permitted by this EULA. You acknowledge and agree that the Licensed Materials constitute the trade secrets and proprietary information of ALTIUM and/or third parties. You agree that You shall make the Licensed Materials available only to Your employees or to consultants/independent contractors who have entered into a confidentiality agreement with You sufficient to protect ALTIUM’s Intellectual Property Rights in the Licensed Materials. You agree to use sufficient safeguards to ensure the confidentiality of ALTIUM’s Licensed Materials, and in no event less than the standard of protection used generally in the semiconductor or EDA industry for similar materials. 6. Online Services 6.1. Online Services Availability and Use. The Licensed Materials may rely upon or facilitate Your access to websites that are maintained by ALTIUM or others offering goods or services (“Online Services” herein). Your access to and use of any such website, or of any such Online Services, is completely governed by the terms, conditions and disclaimers that exist on such website, or in connection with such Online Services. ALTIUM may at any time, in its sole discretion, eliminate, alter or modify the availability of any such website or any such Online Services. 6.2. No Connection with Third Party Online Services Providers. ALTIUM does not control, endorse or accept any responsibility or liability in connection with websites or Online Services provided by any third party, even if ALTIUM includes references or links to such websites on its own website. Any communications or other dealings between You and any third party in connection with access to or use of any such website or Online Services, including but not limited to delivery and payment terms, are solely between You and such third party. In no event shall ALTIUM be liable to You for any failures, deficiencies or errors in complying with applicable laws by such third party website or Online Service providers. 6.3. Your Risk. EXCEPT AS EXPRESSLY AGREED TO BY TASKING IN A SEPARATE, SIGNED WRITTEN AGREEMENT, YOU UNDERSTAND AND AGREE THAT ANY ACCESS TO OR USE OF WEBSITES OR ONLINE SERVICES IS AT YOUR COMPLETE RISK AND SUBJECT TO THOSE LIMITATIONS SET FORTH IN SECTIONS 9 AND 10, BELOW. 6.4. Internet Based License Management System. In the event that you have licensed the Licensed Materials from ALTIUM on an on-demand basis, such that Your access to the same is through the Internet Based License Management System, You understand and agree that nothing herein shall constitute a guarantee or warranty that such Internet Based License Management System shall be available to You at any and all times, and You understand and agree that such Internet Based License Management System may be inaccessible at times due to maintenance, error fixing or other reasons. 7. Term; Termination This EULA will commence upon the Effective Date and will remain effective either: (a) for the period of time for which you have licensed the Licensed Materials, if You have done so on a time-limited basis or (b) until terminated, if You Amended 17 September 2015 have licensed the Licensed Materials on a perpetual basis. You may terminate this EULA at any time by destroying the Licensed Materials and all copies thereof. This EULA will terminate immediately without notice from ALTIUM if You breach any material provision of this EULA, whether You have licensed the Licensed Materials on a time-limited or perpetual basis, provided that any payment obligations accruing prior to such termination will remain due and owing. Upon termination of this EULA, the licenses, rights and covenants granted hereunder and the obligations imposed hereunder will cease, except as otherwise expressly provided for herein, and You will destroy the Licensed Materials, including all copies and all relevant documentation. The provisions of all sections which by their nature would survive the termination of this EULA shall so survive and You shall be obligated to perform in accordance therewith. 8. Governmental Use The Licensed Materials contain commercial computer software developed exclusively at Altium’s expense. Accordingly, pursuant to the United States Federal Acquisition Regulations (FAR) Section 12.212 and Defense FAR Supplement Section 227.7202, use, duplication and disclosure of the Licensed Materials by or for the United States Government is subject to the restrictions set forth in this EULA. The manufacturer is Altium BV, Saturnus 2, Amersfoort, The Netherlands. 9. Limited Remedy and Disclaimer Licensed Materials. THE LICENSED MATERIALS PROVIDED HEREUNDER ARE PROVIDED “AS IS” WITHOUT ANY ACTUAL OR IMPLIED WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY WARRANTY WITH RESPECT TO NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALTIUM’s sole liability and Your exclusive remedy with respect to any failure of the Licensed Materials to perform in accordance with their specifications or defects in media during the first (90) days after receipt by You will be limited to error correction or replacement with the same or any new versions thereof, or if neither is in ALTIUM’s opinion commercially feasible, termination of this EULA and refund of any license fee received by ALTIUM from You in respect of the relevant Licensed Materials. In the event of failure of any of the Licensed Materials to perform in accordance with their specifications after said ninety (90) day period, ALTIUM shall have no obligation to replace or refund Your monies in connection therewith unless You have purchased annual Software Support from ALTIUM or an ALTIUM reseller or distributor pursuant to a separate written agreement at the time of entering into this Agreement or thereafter. ALTIUM does not warrant that the functions contained in any of the Licensed Materials will meet Your requirements, or that the operation of the Licensed Materials will be uninterrupted or error free, or that defects in the Licensed Materials will be corrected. Furthermore, ALTIUM does not warrant or make any representations regarding Your use or the results of Your use of the Licensed Materials in terms of correctness, accuracy, reliability or otherwise. In the event that any portion of the Licensed Materials are delivered to You by Altium instead of obtained by You over the Internet, You shall bear all risk of loss associated therewith upon delivery to You by a common carrier. 10. Limitation of Liability THE ENTIRE LIABILITY OF ALTIUM IN RESPECT OF ANY BREACH OF ITS CONTRACTUAL OBLIGATIONS ARISING UNDER THIS EULA AND ANY REPRESENTATION, STATEMENT OR TORTIOUS ACT OR OMISSION, INCLUDING NEGLIGENCE OR INTENTIONAL CONDUCT ARISING UNDER OR IN CONNECTION WITH THIS EULA (TOGETHER AN “EVENT OF DEFAULT”) SHALL BE LIMITED TO DAMAGES IN AN AMOUNT EQUAL TO ALL FEES PAID BY YOU TO TASKING IN THE PRECEDING TWELVE (12) MONTHS FOR THE APPLICABLE LICENSED MATERIALS. NOTWITHSTANDING THE FOREGOING, ALTIUM WILL NOT BE LIABLE TO YOU WITH RESPECT TO ANY EVENT OF DEFAULT FOR LOSS OF DATA, PROFITS, GOODWILL OR ANY TYPE OF SPECIAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OR DAMAGE SUFFERED BY YOU AS A RESULT OF ANY ACTION BROUGHT BY A THIRD PARTY) EVEN IF SUCH DAMAGE WAS REASONABLY FORESEEABLE OR ALTIUM HAD BEEN ADVISED OF THE POSSIBILITY OF YOUR INCURRING THE SAME, AND REGARDLESS OF WHETHER SUCH EVENT OF DEFAULT IS STYLED AS BEING BASED UPON CONTRACT, TORT, STATUTORY OR OTHER LAW. THIS LIMITATION SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES HEREIN, TO THE EXTENT PERMITTED BY LAW. NOTHING IN THIS SECTION WILL CONFER ANY RIGHT OR REMEDY UPON YOU TO WHICH YOU WOULD NOT OTHERWISE BE LEGALLY ENTITLED. YOU ACKNOWLEDGE THAT EXCEPT AS SET FORTH HEREIN, NO PROMISE, REPRESENTATION, WARRANTY OR UNDERTAKING HAS BEEN MADE BY TASKING TO YOU OR TO ANY PERSON ON YOUR BEHALF AS TO THE PROFITABILITY OR ANY OTHER CONSEQUENCES OR BENEFITS TO BE OBTAINED FROM USE OF THE LICENSED MATERIALS. YOU HAVE RELIED SOLELY UPON YOUR OWN SKILL AND JUDGMENT IN ACQUIRING THE LICENSED MATERIALS. Nothing in this EULA is meant to exclude, restrict or modify any liability of ALTIUM under any law under any jurisdiction in which the Licensed Materials are licensed, which law prohibits, restricts or modifies any portion of the limitation of liability set forth herein. 11. Export Restriction Depending upon the jurisdiction in which the Licensed Materials are licensed, this EULA may be subject to certain government export and other restrictions, and You shall comply with all applicable laws in connection therewith. You agree that You will not export or re-export the Licensed Materials, reference images or accompanying documentation in any form without the appropriate governmental licenses. Failure to comply with this provision is a material breach of this EULA and shall result in the automatic termination of this EULA, whether or not ALTIUM is aware of the same at the time. 12. Third Party Beneficiary You understand that portions of the Licensed Materials and related documentation may have been licensed to ALTIUM from third parties and that such third parties are intended third party beneficiaries of the provisions of this EULA. 13. Assignment Except as otherwise set forth herein, neither this EULA, nor any interest herein or part hereof, will be transferable or assignable by You or, by operation of law or otherwise, without ALTIUM’s prior written consent, and including whether such transfer or assignment is by operation of law, agreement of merger, sale of assets or otherwise. ALTIUM may assign, transfer or delegate any of its rights or obligations hereunder to any affiliated or subsidiary company of ALTIUM or any company acquiring all or substantially all of the assets of Altium LLC, or its ultimate parent entity. 14. Governing Law This EULA shall be governed by the laws of the State of California, United States of America, without reference to conflict of law or choice of law principles or decisions, provided that if the Licensed Materials are acquired in the European Union (the “EU”), this EULA shall be governed by the laws of England, without reference to conflict or choice of law principles or decisions. Nothing in this EULA will be interpreted or construed so as to limit or exclude the rights or obligations of either party (if any) as to which it is unlawful to limit or exclude under the relevant national laws and, where applicable, the laws of any Member State of the European Union which implement relevant European Communities Council Directives. The parties specifically disclaim the application of the United Nations Conventions on Contracts for the International Sale of Goods in connection with this EULA. 15. General 15.1. Unenforceability. If for any reason a court of competent jurisdiction finds any provision of this EULA, or portion thereof, to be illegal, prohibited, void or unenforceable for any reason, that provision of the EULA shall be replaced to the maximum extent permissible so as to effectuate the intent of the parties, and the remainder of this EULA shall continue in full force and effect. 15.2. Headings. Save as otherwise provided herein, references to sections are to those contained in this EULA. Headings are inserted for convenience only and do not affect the construction of this EULA. 15.3. Construction. Unless the context otherwise requires, words importing the singular include the plural and vice versa, words importing the masculine include the feminine and words importing persons include corporations. 15.4. Waiver. No failure or delay on the part of either party in the exercise of any power, right or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise of any such power, right or privilege preclude any other or further exercise thereof, or of any other right, power or privilege. 15.5. Entire Agreement. This EULA contains the entire agreement and understanding between the parties with respect of the subject matter hereof and supersedes all prior agreements, understandings and representations, whether oral or in writing. No addition or modification to this EULA is valid unless made in writing and signed by authorized personnel of Altium and You. EULA 2015 - 14-HAV-2 3. Further Restrictions on Use, Disclosure; Third-Party License Rights �
nw/10.txt
AHM & IGOM - IATA Software End User License Agreement IATA Software End User License Agreement Airport Handling Manual and IGOM ATTENTION: YOU MAY NEED TO SCROLL DOWN TO THE END OF THIS EULA BEFORE YOU CAN AGREE TO THE EULA AND CONTINUE WITH THE SOFTWARE INSTALLATION. IMPORTANT: THIS AGREEMENT (or "EULA") IS A LEGAL AGREEMENT BETWEEN THE PERSON, COMPANY, OR ORGANIZATION THAT HAS LICENSED THIS SOFTWARE ("YOU" OR "CUSTOMER") AND THE INTERNATIONAL AIR TRANSPORT ASSOCIATION (“IATA”). BY INSTALLING AND USING THE SOFTWARE, CUSTOMER ACCEPTS THE SOFTWARE AND AGREES TO THE TERMS OF THIS AGREEMENT. READ IT CAREFULLY BEFORE COMPLETING THE INSTALLATION PROCESS AND USING THE SOFTWARE. BY INSTALLING AND/OR USING THE SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE SOFTWARE AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, OR DO NOT HAVE AUTHORITY TO BIND THE CUSTOMER TO THESE TERMS, THEN DO NOT INSTALL AND/OR USE THE SOFTWARE AND RETURN THE SOFTWARE TO YOUR PLACE OF PURCHASE FOR A FULL REFUND IN ACCORDANCE WITH ITS REFUND POLICIES. THIS EULA SHALL APPLY ONLY TO THE SOFTWARE SUPPLIED BY IATA. Definitions "Software" means the IATA software program(s), web based applications, electronic publications, any and all data, text, standards, information, picture or video, developed, owned, or with rights held by IATA, presented on any and all media (collectively the “Content”), and third party software programs, in each case, supplied by IATA herewith, and corresponding documentation, associated media, printed materials, and online or electronic documentation. Any updates to such Software which you are entitled to receive and that has been provided to you by IATA shall also mean Software for purposes of this Agreement. 1. Grant of License 1.1 IATA grants to you a personal, limited, non-exclusive, non-transferable, single-user and per device license to use the Software, subject to the terms and conditions set forth in this EULA. 1.2 Subject to Section 1.3 below and this license remaining a single-user and per device license, You may install and use the Software on one device. You may not install and store the Software on a storage device, such as a network server. For greater certainty, a license for the Software may not be shared, installed or used concurrently on different computers as it is licensed on a per user and per device basis. Except solely for purposes of installing the Software on a computer, a license for the Software may not be accessed and used via a server or network storage device, including without limitation through Citrix and other application virtualization/application streaming environments. Subject to the terms and conditions set forth in this EULA, you shall not have more than one installation and activation of the Software on any single device. As a condition of activation of the Software, each user is required to unambiguously identify themselves with, without limitation, a valid e-mail address in order to register. Periodic validation of the activation code is performed automatically. Any registered user who is found to breach the terms of this Agreement will have their software deactivated. 1.3 License transfer to another device is permitted if that device is to be used by You; it is performed by deactivating the application on the current device and reactivation onto another device. However, license device transfer requests performed manually by IATA shall be limited to two transfers for each activation code. This limit is a security measure designed to prevent software piracy. 1.4 Subject to the terms and conditions of this Agreement, in the event the Software is distributed along with other IATA software products as part of a suite of products (collectively, the "Solution"), the license of the Solution is licensed as a single product and none of the products in the Solution, including the Software, may be separated for use. 1.5 You may make one copy of the Software in machine-readable form solely for backup purposes. You must reproduce on any such copy all copyright notices and any other proprietary legends on the original copy of the Software. You may not sell or transfer any copy of the Software made for backup purposes. ahm-eula-201410 Page 1 of 5 IATA © All rights reserved 2014 �AHM & IGOM - IATA Software End User License Agreement 1.6 You agree that IATA may audit your use of the Software for compliance with these terms at any time, upon reasonable notice. In the event that such audit reveals any use of the Software by you other than in full compliance with the terms of this Agreement, you shall reimburse IATA for all reasonable expenses related to such audit in addition to any other liabilities you may incur as a result of such non-compliance. 2. License Restrictions 2.1 Other than as set forth in Section 1, you may not make or distribute copies of the Software, or electronically transfer the Software from one computer to another or over a network. 2.2 You may not alter, merge, modify, adapt or translate the Software, or decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form. 2.3 You may not rent, lease, sublicense, distribute or disclose the Software. 2.4 You may not sell or transfer your rights under this EULA as this is a personal single-user and per device license. 2.5 You may not modify the Software or create derivative works based upon the Software. 2.6 You may not export the Software into any country to which export or transmission is restricted by any applicable regulation or statute without prior written consent of the competent governmental authority and having formally notified IATA. 2.7 You may receive the Software in more than one medium but you shall only install or use one medium. Regardless of the number of media you receive, you may use only the medium that is appropriate for the server or computer on which the Software is to be installed. 2.8 You may receive the Software in more than one platform but you shall only install or use one platform. 2.9 You shall not use the Software to develop any product having the same primary function as the Software. 2.10 In the event that you fail to comply with this EULA, IATA may terminate the license and you must destroy all copies of the Software (with all other rights of both parties and all other provisions of this EULA surviving any such termination). 2.11 Notwithstanding anything herein to the contrary, you may not install the Software on a server for multiple user access or use. 2.12 You may receive the Software in more than one language but you shall only install or use one language version. 2.13 IATA technical support is limited and conditional to submitting proof of purchase of a valid Software license and activation code. IATA technical support is intended for general purposes and guidance only during installation, activation and usage. It is duly stated that IATA technical support has no obligation to attempt to resolve configuration or environment issues which do not constitute a Software defect. IATA reserves the right to change the terms and conditions of its support offering any time, from time to time and without notice. 3. Upgrades If this copy of the Software is an upgrade from an earlier version of the Software, you must possess a valid full license to a copy of an earlier version of the Software used to upgrade to this upgrade copy in order to install and/or use this upgrade copy. You may continue to use each earlier version copy of the Software to which this upgrade copy relates on your computer after you receive this upgrade copy, provided that, (i) the upgrade copy and the earlier version copy are installed and/or used on the same computer only and the earlier version copy is not installed and/or used on any other computer; (ii) you comply with the terms and conditions of the earlier version's end user license agreement with respect to the installation and/or use of such earlier version copy; (iii) the earlier version copy or any copies thereof on any computer are not transferred to another computer unless all copies of this upgrade copy on such computer are also transferred to such other computer; (iv) the earlier version copy or any copies thereof are not transferred to any other party unless you also transfer this upgrade copy and any copies thereof to such other party in accordance with Section 2; and (v) you acknowledge and agree that any obligation IATA may have to support and/or offer support for the earlier version of the Software may be ended upon availability of the upgrade. ahm-eula-201410 Page 2 of 5 IATA © All rights reserved 2014 �AHM & IGOM - IATA Software End User License Agreement 4. Prior Same Version License and Exchanges If this copy of the Software is licensed as part of a Solution (as defined above), and you have a prior license to the same version of the Software, and the Solution was licensed to you with a discount based, in whole or in part, on your prior license to the same version, the Software is provided to you on a license exchange basis. You agree by your installation and use of this copy of the Software to voluntarily terminate your EULA with respect to such prior license and that you will not continue to install or use such prior license of the Software or transfer it to another person or entity. If this copy of the Software ("New License") has been acquired via a permitted exchange (other than in connection with an upgrade) with a different type of Software license previously acquired by you ("Old License"), you must possess a valid full license to a copy of such Old License in order to install and/or use this New License, and the New License is provided to you on a license exchange basis. You agree by your installation and/or use of such copy of the New License to voluntarily terminate your earlier EULA to the Old License and uninstall, destroy and cease using the Old License. You agree to not transfer the Old License to another person or entity. 5. Ownership The foregoing license gives you limited license to use the Software. IATA and its suppliers retain all right, title and interest, including all copyright and intellectual property rights, in and to, the Software and its Content, which may be presented on any and all type of media, including without limitation, print material or electronic format (as an independent work and as an underlying work serving as a basis for any application you may develop), and all copies thereof. The Content may, as the case may be, constitute a work formed by the collection and compilation of preexisting materials or of data, or derivatives thereof, which are selected, coordinated, or arranged, by IATA personnel in collaboration with personnel of IATA member airlines, in such a way that the resulting work as a whole constitutes an original work of authorship. All rights not specifically granted in this EULA, including Federal and International Copyrights, are reserved by IATA and its suppliers. 6. LIMITED WARRANTY AND DISCLAIMER 6.1 IATA warrants that, for a period of ninety (90) days from the date of delivery (as evidenced by a copy of your receipt): (i) when used with a recommended hardware configuration, the Software will perform in substantial conformance with the documentation supplied with the Software; and (ii) the physical media on which the Software is furnished will be free from defects in materials and workmanship under normal use. 6.2 WHILE IATA WILL USE ALL REASONABLE SKILL AND CARE IN THE CREATION AND SUPPLY OF THE SOFTWARE, IATA MAKES NO WARRANTY, EXPRESS OR IMPLIED, CONCERNING THE SOFTWARE AND ITS CONTENTS AND DISCLAIMS ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, CONDITION, QUALITY AND PERFORMANCE, WARRANTY AGAINST INFRINGEMENT AND WARRANTIES OF MERCHANTABILITY. ALSO, THERE IS NO WARRANTY OF NON-INFRINGEMENT AND TITLE OR QUIET ENJOYMENT. FOR GREATER CERTAINTY, THIS LICENSE IS GRANTED ON AN “AS IS” BASIS AND AS SUCH, IATA DOES NOT GUARANTEE THAT THE SOFTWARE IS CORRECT, COMPLETE OR ERRORFREE OR WILL OPERATE WITHOUT INTERRUPTION. 6.3 IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SOFTWARE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY. ALL WARRANTIES, CONDITIONS OR OTHER TERMS IMPLIED BY LAW, STATUTE, COMMON LAW OR OTHERWISE ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. NO OTHER RIGHTS OR REMEDIES WILL BE CONFERRED ON YOU UNLESS EXPRESSLY GRANTED HEREIN. 6.4 NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY IATA, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN. 6.5 (USA ONLY) SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE. ahm-eula-201410 Page 3 of 5 IATA © All rights reserved 2014 �AHM & IGOM - IATA Software End User License Agreement 7. Exclusive Remedy Your exclusive remedy under the preceding is to return the Software to the place you acquired it, with a copy of your receipt and a description of the problem. Provided that any non-compliance with the above warranty is reported in writing to IATA no more than ninety (90) days following delivery to you, IATA will use reasonable commercial efforts to supply you with a replacement copy of the Software that substantially conforms to the documentation, provide a replacement for defective media, or refund to you your purchase price for the Software, at its option. IATA shall have no responsibility if the Software has been altered in any way, if the media has been damaged by misuse, accident, abuse, modification or misapplication, or if the failure arises out of use of the Software with other than a recommended hardware configuration. Any such misuse, accident, abuse, modification or misapplication of the Software will void the warranty above. THIS REMEDY IS THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO YOU FOR BREACH OF EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SOFTWARE AND RELATED DOCUMENTATION. 8. LIMITATION OF LIABILITY 8.1 NEITHER IATA NOR ITS SUPPLIERS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, LOSS OF BUSINESS, PROFITS, REVENUE, GOODWILL, USE, DATA, ELECTRONICALLY TRANSMITTED ORDERS OR OTHER ECONOMIC ADVANTAGE, CORRUPTION OR DESTRUCTION OF DATA, BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SOFTWARE AND BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF IATA OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. 8.2 IATA’S TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE GREATER OF $500 OR THE LICENSE FEE PAID BY YOU FOR THE SOFTWARE IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. 8.3 (USA only) SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE. 8.4 THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO THE WARRANTIES AND DISCLAIMERS ABOVE AND ALL OTHER ASPECTS OF THIS EULA. 9. Basis of Bargain The Limited Warranty and Disclaimer, Exclusive Remedies and Limited Liability set forth above are fundamental elements of the basis of the agreement between IATA and you. IATA would not be able to provide the Software on an economic basis without such limitations. Such Limited Warranty and Disclaimer, Exclusive Remedies and Limited Liability inure to the benefit of IATA’s licensors. 10. Consumer End Users Only The limitations or exclusions of warranties and liability contained in this EULA do not affect or prejudice the statutory rights of a consumer, i.e., a person acquiring goods otherwise than in the course of a business. The limitations or exclusions of warranties, remedies or liability contained in this EULA shall apply to you only to the extent such limitations or exclusions are permitted under the laws of the jurisdiction where you are located. 11. Third Party Software The Software may contain third party software which requires notices and/or additional terms and conditions. Such required third party software notices and/or additional terms and conditions are may be obtained by writing to [email protected] and are made a part of and incorporated by reference into this EULA. By accepting this EULA, you are also accepting the additional terms and conditions, if any, set forth therein. ahm-eula-201410 Page 4 of 5 IATA © All rights reserved 2014 �AHM & IGOM - IATA Software End User License Agreement 12. General 12.1 This EULA shall be governed by the internal laws of the Province of Quebec and Canada applicable therein, without giving effect to principles of conflict of laws. You hereby consent to the exclusive jurisdiction and venue of the Provincial courts sitting in the city of Montreal, Quebec or the federal courts in the Province of Quebec to resolve any disputes arising under this EULA. In each case this EULA shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods. 12.2 This EULA contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written. You agree that any varying or additional terms contained in any purchase order or other written notification or document issued by you in relation to the Software licensed hereunder shall be of no effect. The failure or delay of IATA to exercise any of its rights under this EULA or upon any breach of this EULA shall not be deemed a waiver of those rights or of the breach. 12.3 No IATA dealer, agent or employee is authorized to make any amendment to this EULA unless such amendment is in writing and signed by a duly authorized representative of IATA. 12.4 If any provision of this EULA shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this EULA will remain in full force and effect. 12.5 All questions concerning this EULA shall be directed to: IATA, 800 Place Victoria, Box 113, Montreal Quebec, H4Z 1M1, Attention: Senior Vice President, Commercial Services. 12.6 IATA and other trademarks contained in the Software are trademarks or registered trademarks of IATA in Canada and/or other countries. Third party trademarks, trade names, product names and logos may be the trademarks or registered trademarks of their respective owners. You may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Software. This EULA does not authorize you to use IATA’s or its licensors' names or any of their respective trademarks. ----------------------------------------------------- END OF TEXT --------------------------------------------------------------------- ahm-eula-201410 Page 5 of 5 IATA © All rights reserved 2014 �
nw/100.txt
End User License Agreement This End User License Agreement (“EULA”) is a legal agreement between the end-user Customer of Gigamon hardware and software products (“Customer”) and Gigamon Inc. (“Gigamon”) regarding Customer’s use of the Software (as defined below). Gigamon is willing to license the Software to Customer upon the condition that it accepts and complies with the terms contained in this EULA plus any additional terms in any supplemental license accompanying Gigamon Software where Customer accepts such supplemental license at the time of download (the “Supplemental Terms”, together with the EULA, the “Agreement”). To the extent of any conflict between the terms of this EULA and any Supplemental Terms, the Supplemental Terms will apply to the applicable Software. BY ACCEPTING THIS AGREEMENT OR USING, INSTALLING OR ACCESSING THE PRODUCTS, CUSTOMER ACKNOWLEDGES THAT IT HAS READ, UNDERSTANDS AND AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THE AGREEMENT. IF CUSTOMER DOES NOT AGREE, IT SHOULD NOT ACCEPT THIS AGREEMENT OR ACCESS AND/OR INSTALL THE PRODUCTS AND SHOULD CONTACT THE VENDOR WHO SOLD IT THE PRODUCTS. ANY INDIVIDUAL ACCEPTING THE AGREEMENT ON BEHALF OF CUSTOMER REPRESENTS AND WARRANTS THAT HE OR SHE HAS AUTHORITY TO ACCEPT THE TERMS AND CONDITIONS OF THE AGREEMENT ON BEHALF OF CUSTOMER AND TO BIND CUSTOMER TO THE TERMS AND CONDITIONS SET FORTH IN THE AGREEMENT. 1. Definitions. a. “Certified White Box Hardware” means the third party, non-Gigamon hardware products that Gigamon has certified to run Software under Gigamon’s white box solution program. b. “Documentation” means the documentation published by Gigamon and relating to the Products. c. “Gigamon Hardware” means the Gigamon-branded hardware products, purchased from Gigamon directly or through an authorized Gigamon channel partner (“Approved Source”) that may include Software and expressly excludes third party non-Gigamon branded hardware products that may run Software. d. “Perpetual License” means a license granted by Gigamon for commercial release Software that is not a Term License, where Gigamon has accepted the order for such license. e. “Pre-Release Software means Software that is designated by Gigamon as pre-commercial release Software (indicated by terms such as “alpha,” “beta,” “trial,” or “draft”). f. “Products” means, the Software, the Gigamon Hardware, and/or any combination thereof. g. “Software” means the object or binary code or firmware, any accompanying Documentation, and any upgrades or updates therefor, that are provided by Gigamon or an Approved Source on Gigamon’s behalf, and either are (i) included with or embedded in the Gigamon Hardware, or (ii) provided as a stand-alone software product. For the avoidance of doubt, Software expressly excludes Open Source Code and third-party virtual machines licensed under separate terms. h. “Supported Virtualization Environment” means a virtual computing environment supported by the Software, as specifically set forth in the applicable Documentation for the Software. i. “Term License” means a license for commercial release Software that has a Gigamon SKU indicating the license is limited in duration. The duration of the Term License will be the time period set forth in the order applicable to license, where Gigamon has accepted such order. If the Software provided under this Agreement is licensed under a Term License, then the limited license granted in Section 2(a) will commence on the date the license key associated with the Software is issued and will expire on the last day of the Term License. When a license key associated with a Term License expires, the corresponding Software will no longer function unless a new Term License is purchased and a new license key is installed. 2. License Grant. Software is made available by Gigamon under a Pre-Release Software license or a commercial Software license (either a Term License or a Perpetual License). Subject to and conditioned upon Customer’s compliance with the restrictions and terms set forth in the Agreement and full payment of any applicable fees, unless Gigamon End User License Agreement (EULA) 12-2016 Page 1 of 5 �otherwise set forth in the applicable Supplemental Terms, the following license terms apply. Except as set forth in this Section 2, no other licenses are granted by implication, estoppel or otherwise. a. Commercial Software License. Gigamon hereby grants Customer a limited, non-exclusive, worldwide, nonsublicensable (except as expressly set forth in Section 2(b) below), non-transferable (except as specified in Section 3(d) below) worldwide Perpetual License or Term License, as applicable, to use the Software in object code format for Customer’s internal business purposes only, solely with Gigamon Hardware, Certified White Box Hardware, or a Supported Virtualization Environment. b. Sublicense Rights. Gigamon further grants Customer the right to sublicense Customer’s rights under Section 2(a) to Customer’s contractors and subcontractors without further sublicense rights; provided that (i) such sublicensed rights are for the sole purpose of providing services to Customer and are subject to all of the limitations set forth in the Agreement; and (ii) Customer will be liable for any actions of, or failure to act by, the contractors and subcontractors as if such actions or inactions were Customer’s. c. Pre-Release Software. If the Software provided under this Agreement is Pre-Release Software, Gigamon hereby grants Customer a limited, non-exclusive, worldwide, non-sublicensable, non-transferable, worldwide license to download and install such Pre-Release Software for its internal, non-production use and evaluation. Customer acknowledges that the Pre-Release Software is Gigamon confidential information and may not operate correctly, may be substantially modified prior to first commercial shipment, or may be withdrawn completely. Customer’s use of the Pre-Release Software is at Customer’s sole risk and expense, and Gigamon will have no liability in connection with the Pre-Release Software. The limited license granted in this Section 2(c) expires 30 days after download unless mutually agreed upon in writing by the parties. 3. Restrictions. Customer will not, nor will it allow or authorize or permit any third party to: a. license, copy, duplicate, disclose, distribute, modify, exploit or create derivative works of the Products; b. sublicense the Software (except as expressly set forth in sub-section 2(b) above), and any attempted noncompliant sublicense will be void; c. use, transfer, or distribute the Software in competition with Gigamon; d. otherwise transfer the Software, unless such Software is licensed under Section 2(a) and is being transferred in connection with the sale of Gigamon Hardware or Certified White Box Hardware, as applicable, but only where the Software is incorporated in the Gigamon Hardware or Certified White Box Hardware being transferred or sold, and such transfer and sale is in compliance with Gigamon’s then-applicable Hardware transfer policy. e. decompile, reverse translate, disassemble, or reverse engineer the Software or cause the Software to be subject to any open source obligations or release; f. remove any proprietary markings or copyright notices from any Gigamon Hardware or Software, or translate the Software into any other format or language without Gigamon’s prior written consent; g. publicly display, transmit or use supporting Documentation for any other purpose other than to support Customer’s authorized use of the Products within its internal organization; or h. create, disclose, distribute, sublicense, license or otherwise transfer any implementation of Gigamon’s application programming interfaces (APIs) except to support Customer’s authorized use of the Products within its internal organization. 4. Ownership. The license granted in this Agreement is not a transfer or sale of Gigamon’s or its licensors’ ownership rights in the Software (including any copies) or its intellectual property. Except for the license specifically granted in this Agreement, Gigamon and its licensors retain all right, title, and interest in and to the Software, the related source code and intellectual property, and any and all modifications or derivatives. The Software is confidential to Gigamon and protected by applicable trade secret and intellectual property laws. 5. Open Source Software. The Software may include or be distributed with third party software covered by an open source software license that supersedes the licensing terms of this Agreement to the extent required by that open source license (“Open Source Code”). All open source software is provided WITHOUT ANY WARRANTY INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. If, and to the extent required by the applicable open source license, Gigamon will make available the required source code for the open source software in response to Customer’s request emailed to [email protected]. 6. Technical Support, Limited Warranty. For ninety (90) days from the date the Software is downloaded by the Customer or shipped to the Customer by Gigamon or an Approved Source, Customer is entitled to all Gigamon- Gigamon End User License Agreement (EULA) 12-2016 Page 2 of 5 �provided software updates (bug fixes, maintenance releases, and feature upgrades) for the purchased the Software. In addition, Gigamon offers a Limited Hardware and Software Warranty for its Products. Details and current documentation for both are found at http://www.gigamon.com/support-and-services/overview-and-benefits. All other Software maintenance and support is provided to Customer separately and for a fee. 7. Customer Use of Products. Customer has the sole obligation to manage, secure, and oversee its network and tools, and to provide notices, as necessary, to its users that their use of Customer’s computers, electronic appliances, and devices (and those of users on Customer’s network) may be monitored, inspected, or decrypted. 8. Warranty Disclaimers and Exclusions 8.1 EXCEPT AS SET FORTH HEREIN, THE PRODUCTS ARE PROVIDED ON AN “AS IS”AND “AS AVAILABLE” BASIS. CUSTOMER ASSUMES ALL RESPONSIBILITIES FOR SELECTION OF THE PRODUCTS TO ACHIEVE ITS INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED. IN ADDITION, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GIGAMON AND ITS LICENSORS DISCLAIM ALL WARRANTIES RELATING TO THE PRODUCTS AND/OR ANY ACCOMPANYING DOCUMENTATION, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, ACCURACY, TITLE, NONINFRINGEMENT, NONINTERFERENCE WITH THE ENJOYMENT OF THE HARDWARE, AND FITNESS FOR A PARTICULAR PURPOSE. 8.2 NOTWITHSTANDING ANY OTHER TERM HEREIN, GIGAMON MAKES NO REPRESENTATIONS REGARDING, ARISING FROM, OR RELATED TO THE LEGALITY OF ENCRYPTION OR DECRYPTION OF DATA OR MONITORING OF NETWORKS OR INFORMATION IN A PARTICULAR JURISDICTION, AND CUSTOMER IS SOLELY RESPONSIBLE FOR DETERMINING THAT CUSTOMER’S PROPOSED OR ACTUAL USE OF THE PRODUCTS COMPLIES WITH APPLICABLE LAWS. CUSTOMER ACKNOWLEDGES AND AGREES THAT GIGAMON AND ITS LICENSORS WILL HAVE NO LIABILITY WHATSOEVER FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS RESULTING FROM: (A) THE USE OF THE PRODUCTS BY CUSTOMER OR THIRD PARTIES; (B) SECURITY BREACHES; (C) EAVESDROPPING, INTERCEPTION, FAILURE OF DELIVERY OR LOSS OF DATA SENT, STORED, OR RECEIVED USING THE PRODUCTS; OR (D) ANY WHITE BOX SOLUTION HARDWARE. THESE LIMITATIONS APPLY EVEN IF GIGAMON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 9. Certified White Box Hardware. Customer acknowledges and agrees that, if Customer obtains Certified White Box Hardware, Gigamon makes no endorsements of and provides no warranties or support with respect thereto. Customer assumes all risk related to as well as all responsibility for the selection and use of the Certified White Box Hardware and should contact the applicable third party hardware provider or such third party’s agent for support and warranty related information. 10. Term and Termination. This Agreement is effective as of the date of Customer’s first use of, access to or installation of the Software and remains in effect until Customer’s failure to comply with any term of this Agreement, including any failure to pay license fees, if applicable. Customer may terminate the License Grant section of this EULA at any time upon written notice to Gigamon that it has transferred or sold to a third party the Gigamon Hardware or the Certified White Box Hardware containing the Software. Any such transfers or sales must be in compliance with Gigamon’s then-current applicable relicensing/transfer policy. Any such termination will not entitle Customer to a refund. Gigamon’s rights and Customer’s obligations survive the termination of this Agreement. Upon termination of this Agreement and upon Gigamon’s request, Customer will certify in writing to Gigamon that all instances and copies of the Software, or any portion thereof (other than firmware), have either been returned to Gigamon or otherwise destroyed or deleted from any of its devices or storage devices. 11. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL GIGAMON OR ITS LICENSORS BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, DATA OR INFORMATION, SECURITY BREACH OR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATED TO THE USE OR INABILITY TO USE THE PRODUCTS, EVEN IF GIGAMON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE Gigamon End User License Agreement (EULA) 12-2016 Page 3 of 5 �FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF AN EXCLUSIVE REMEDY. IN NO EVENT WILL GIGAMON’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE FEES PAID BY CUSTOMER FOR THE SPECIFIC PRODUCTS AT ISSUE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL BECAUSE SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE LIMITATION SET FORTH IN THIS PARAGRAPH MAY NOT APPLY. 12. Audit. Customer will keep current, complete, and accurate records regarding the installation and use of the Software. Customer will provide such information to Gigamon and certify that it has paid all related fees, if applicable, within five business days of any written request, so long as Gigamon does not make more than one request during any 12month period. Except to the extent prohibited by applicable law, Customer will, after reasonable prior notice from Gigamon, provide Gigamon with reasonable access to its premises, records, and personnel so that Gigamon or its designee may audit and confirm compliance with this Agreement. If an audit reveals any non-permitted reproduction, installation, or use of the Software, Customer will (i) promptly comply with this Agreement, (ii) pay the additional fees (at Gigamon’s then-current rates) due plus interest at the rate of 1.5% per month, and (iii) promptly reimburse Gigamon for its reasonable costs of conducting the audit if the audit reveals noncompliance. 13. Indemnification. Customer will defend, indemnify, and hold harmless Gigamon (including its officers, employees, directors, subsidiaries, representatives, affiliates, agents, and licensors) from and against any damages (including reasonable attorney’s fees and expenses), claims, and lawsuits that arise or result from Customer’s breach of any provision of this Agreement. 14. Intellectual Property. Gigamon, its logo, and all other names, logos, or icons identifying Gigamon and its programs, products, and services are proprietary, and any use of identical or confusingly similar marks, including as domain names, without Gigamon’s express written permission is strictly prohibited. If Customer provides any feedback to Gigamon concerning the functionality and performance of the Products (including identifying potential errors, enhancements and improvements) (“Feedback”), Customer hereby assigns to Gigamon all right, title, and interest in and to the Feedback. Gigamon may use Feedback without any payment or restriction. 15. Compliance with Laws and Export Restrictions. The Products are subject to U.S. export control laws and regulations, including the Export Administration Regulations maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations maintained by the Department of State. Customer will comply with all applicable laws and regulations regarding use of the Products, including all U.S. export control laws and regulations as well as those of any country of import and/or export. Customer covenants that it will not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any Products or technology received from Gigamon to any destination, entity, or person prohibited by the laws or regulations of the United States. In addition, Customer may not use the Products for any end-use prohibited by the laws or regulations of the United States without obtaining prior authorization from the competent government authorities as legally required. Customer will indemnify, to the fullest extent permitted by law, Gigamon from and against any fines or penalties that may arise as a result of its breach of this Section. This Section will survive indefinitely. 16. US Government Rights. The Software is a “commercial item” as that term is defined at FAR 2.101. If Customer is the US Federal Government (Government) Executive Agency (as defined in FAR 2.101), Gigamon provides the Software, including any related documentation, technical data, and/or professional services in accordance with the following: If acquired by or on behalf of any Executive Agency (other than an agency within the Department of Defense (DoD), the Government acquires, in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software), only those rights in technical data and software customarily provided to the public as defined in this Agreement. If acquired by or on behalf of any Executive Agency within the DoD, the Government acquires, in accordance with DFARS 227.7202-3 (Rights in commercial computer software or commercial computer software documentation), only those rights in technical data and software customarily provided in this Agreement. In addition, DFARS 252.227-7015 (Technical Data – Commercial Items) applies to technical data acquired by DoD agencies. Any Federal Legislative or Judicial Agency shall obtain only those rights in technical data and software customarily provided to the public as defined in this Agreement. If any Federal Executive, Legislative, or Judicial Agency has a need for rights not conveyed under the terms described in this Section, it must negotiate with Gigamon to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically Gigamon End User License Agreement (EULA) 12-2016 Page 4 of 5 �conveying such rights must be included in any applicable contract or agreement to be effective. If this Agreement fails to meet the Government’s needs or is inconsistent in any way with Federal law, and the parties cannot reach a mutual agreement on terms for this Agreement, the Government agrees to terminate its use of the Software and return the Software and any other software or technical data delivered as part of the Software, unused, to Gigamon. This U.S. Government Rights clause in this Section is in lieu of, and supersedes, any other FAR, DFARS, or other clause, provision, or supplemental regulation that addresses Government rights in computer software or technical data under this Agreement. 17. Equitable Relief. Customer acknowledges that (a) the Software is confidential and proprietary to Gigamon and its licensors and contains valuable trade secrets; (b) any breach, threatened or actual, of this Agreement will cause irreparable injury to Gigamon; (c) such injury would not be quantifiable in monetary damages; and (d) Gigamon would not have an adequate remedy at law in the event of such a breach or threatened breach. Customer therefore agrees that Gigamon will be entitled, in addition to other available remedies, to seek and be awarded an injunction or other appropriate equitable relief from a court of competent jurisdiction restraining any breach, threatened or actual, of Customer’s obligations under any provision of this Agreement. Accordingly, Customer hereby waives any requirement that Gigamon post any bond or other security in the event any injunctive or equitable relief is sought by or awarded to Gigamon to enforce any provision of this Agreement. 18. Arbitration. Except for the right of Gigamon to apply to a court of competent jurisdiction for equitable relief to preserve the status quo or prevent irreparable harm, any dispute as to the interpretation, enforcement, breach, or termination of this Agreement will be settled by binding arbitration in Santa Clara County, California, U.S.A. under the Rules of the American Arbitration Association by one arbitrator appointed in accordance with the Rules. Judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction. The prevailing party will be entitled to receive from the other party its attorneys’ fees and costs incurred in connection with any arbitration. 19. General. This Agreement is governed by the laws of the State of California, without reference to its conflict of laws principles. Except as set forth above, any dispute regarding this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California, U.S.A. This Agreement is the entire agreement between Customer and Gigamon and supersedes any other communications with respect to the Software. Additional or conflicting terms on any purchase order or other document issued by Customer or any Approved Source will have no force or effect. If any provision of this Agreement is held invalid or unenforceable, such provision will be deemed replaced by the provision permitted by law that most closely effectuates the parties’ original intent as documented hereunder, and the remainder of this Agreement will continue in full. No waiver by either party of any rights under the Agreement will be effective unless such waiver is in a writing signed by the party against whom enforcement is sought. Any notices relating to this Agreement should be sent via receipted delivery to Gigamon Inc., Attention: Legal Department, 3300 Olcott Street, Santa Clara, CA 95054 or by email to [email protected]. Gigamon End User License Agreement (EULA) 12-2016 7040-10 12/16 �
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NUANCE END USER LICENSE AGREEMENT This End User License Agreement (“EULA”) is a legal agreement between you (either an individual or a single entity) and Nuance Document Imaging, Inc. (“Nuance”) for the Nuance software (“Software”) that accompanies this EULA. The term of this EULA is from the date of installation through and until discontinuation of use of the Software. An amendment or addendum to this EULA may accompany the Software. YOU AGREE TO BE BOUND BY ALL THE TERMS OF THIS EULA BY INSTALLING (BY SELECTING “I accept the terms of the license agreement”), COPYING OR USING THE SOFTWARE. IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE TERMS OF THIS EULA, DO NOT INSTALL (BY SELECTING “I do not accept the terms of the license agreement”), COPY OR USE THE SOFTWARE; YOU MAY RETURN IT TO YOUR PLACE OF PURCHASE FOR A FULL REFUND, IF APPLICABLE. 1. Grant of License. Subject to the terms and conditions contained herein, Nuance grants to you, the end user, a personal, non-exclusive, non-sublicensable, non-transferable limited license solely to use a single copy of the Software, including any updates, additional modules, or additional software that may be provided by Nuance in connection therewith, in executable code format on a single computer, solely for your own use, and solely in accordance with the terms and conditions of this EULA. You may copy the Software into the memory of a computer, solely as necessary to use the Software in accordance with this EULA. You may physically transfer the Software from one computer to another provided that only one copy of the Software exists on only one computer at any given time. 2. Additional Software. This EULA applies to updates of the Software that Nuance may provide to you or make available to you after the date you obtain your initial copy of the Software, unless they are accompanied by separate terms. 3. Upgrades. If the Software is identified as an upgrade, you must first be properly licensed to use software identified by Nuance as being eligible for the upgrade in order to use the Software. Any Software identified as an upgrade replaces and/or supplements the software that formed the basis for your eligibility for the upgrade. After installing the upgrade, you may no longer use the original software that formed the basis for your upgrade eligibility, except as an integral part of the newly formed upgraded software. If the Software is an upgrade of a component of a package of software programs that you licensed as a single product, the Software shall be used only as part of that single product package and shall not be separated for use on more than one single computer at any given time. 4. Not For Resale Software. The Software (including any other information or material obtained under this EULA) identified as “Not For Resale” or “NFR” shall not be rented, leased, sold or otherwise transferred for value, or used for any purpose other than demonstration, test or evaluation. All other Software (including any other information or material obtained under this EULA) not identified as “Not For Resale” or “NFR” shall not be rented, leased, sold or otherwise transferred for value. 5. Separation of Components. The Software is licensed as a single product. Its component parts shall not be separated for use and shall only be used together on a single computer. 6. Restrictions. Except as may otherwise be expressly provided for herein, you may not (a) copy, modify, reproduce, adapt, translate, enhance, create derivative works or compilations based on, or remove portions of, the Software or any other information or material obtained hereunder, or any portions thereof, for any purpose, or otherwise modify the source code, internal structure, organization or any other aspect of the Software, or any part thereof, or aid, abet or permit others to do so, or (b) sell, assign, transfer, sublicense, or otherwise distribute the Software or any portion thereof to anyone else or assign your rights hereunder. Any �unauthorized modifications, derivative works, or any other intellectual property, created directly or indirectly using or referring to the Software, or components thereof, or enhancements of the Software, shall all upon creation immediately vest exclusively in and be owned exclusively by Nuance and you hereby assign any and all rights, title and interest in such (including without limitation waiver of moral rights) to Nuance. You hereby agree to promptly execute any further documentation required by Nuance in its sole discretion to legally or commercially effect such assignment, including, without limitation, ensuring that your employees and/or contractors, if any, do the same. You acknowledge that the Software contains confidential information, proprietary information, and trade secrets, and agree not to decompile, disassemble, decrypt, extract, or otherwise reverse engineer the Software. You further agree: (i) not to remove any Software identification or notices of any proprietary or copyright restrictions from the Software or any other materials provided hereunder; (ii) include any portion of the Software in any other Software program; (iii) not to provide use of the Software in a computer service business, rental or commercial timesharing arrangement; and (iv) not to develop methods to enable unauthorized parties to use the Software. You hereby expressly waive any rights you may obtain through application of the law of any other country or otherwise that are inconsistent with the foregoing. You hereby acknowledge that you have no rights whatsoever and shall not have any right whatsoever, whether by the express terms of this EULA or by any course of conduct, implication, estoppel or otherwise, to use, view or access the source code for the Software. 7. Rights and Interests Retained by Nuance. The Software (including any copy thereof) is protected by United States, local and international copyright and/or other intellectual property laws and international treaty provisions. Subject to any rights that Nuance may have licensed from third parties in any software forming part of the Software provided hereunder, Nuance owns all title, copyright, and other intellectual property rights in and to the Software (including but not limited to any images, photographs, animations, video, audio, music, text, and “applets” incorporated into the Software), the accompanying written materials, and any copies thereof, in whole or in part. The Software copy is licensed, not sold to you, and you are not an owner of any copy thereof. You may either, provided that Nuance’s copyright notices are reproduced and included on any and all of such, (a) make one copy of the Software solely for backup or archival purposes, or (b) transfer the Software to a single hard disk provided you keep the original solely for backup or archival purposes. Any otherwise copying of the Software or copying of any written materials accompanying it is unauthorized and expressly forbidden. All rights not expressly granted in this EULA in the Software are reserved by and shall remain the property of Nuance and/or any third parties from whom Nuance may have acquired licensing rights. This EULA does not grant you any rights to the trademarks or service marks of Nuance. You further understand and agree that in no event shall any term or condition set forth in this EULA be construed to require the transfer of title of any Software or property whatsoever to you. 8. Limited Warranty and Limitation on Remedies for Software. Excluding transactions in Australia where Section 9.3 (the Australian Consumer Law) of this EULA applies and subject to the conditions and limitations in this EULA, for a period of ninety (90) days from the date the Software is shipped by Nuance (“Warranty Period”), Nuance warrants that the Software licensed pursuant to this EULA is free of material Defect(s). As used in this EULA, “Defect(s)” shall mean any failure of the media on which the Software is provided while under normal use or of the Software to function in substantial conformance with the published specifications for such Software. This warranty herein extends to you, the original end user, only and is not assignable or transferrable. No oral or written information or advice given by any Nuance employees or authorized representatives (including but not limited to agents, suppliers or authorized resellers) regarding the Software shall be deemed to increase the scope of the warranties made herein, and the warranties made herein are void to the extent that the failure of, or any deficiency in, the Software is due to any (a) modification, repackaging, customization or alteration of the Software, or updates thereto, in any way by any party other than Nuance, (b) misapplication or misuse, (c) failure by you to maintain proper environmental conditions for operating the Software, (d) hardware equipment defects, (e) operating system software error, (f) failure by you to implement all updates issued by Nuance during the Warranty Period, (g) adverse effects to the Software �caused by your operating system or environment, or (h) interaction with software not provided by Nuance. In order to have benefit of the aforementioned limited warranty, you must notify Nuance, in writing and prior to the expiration the Warranty Period, of a material and reproducible failure of the media on which the Software was provided or of the Software to function in accordance with the aforementioned warranty. If an implied warranty or condition is created by your state/jurisdiction and federal or state/provincial law prohibits disclaimer of it, you also have an implied warranty or condition, BUT ONLY AS TO DEFECT(S) DISCOVERED DURING THE PERIOD OF THIS LIMITED WARRANTY (NINETY (90) DAYS). AS TO ANY DEFECT(S) DISCOVERED AFTER THE NINETY (90) DAY PERIOD, THERE IS NO WARRANTY OR CONDITION OF ANY KIND. Some states/jurisdictions do not allow limitations on how long an implied warranty or condition lasts (such as Australia in certain circumstances pursuant to the Australian Consumer Law), so the above limitation may not apply to you. Should the Software prove defective, as your exclusive remedy hereunder, you may receive, at Nuance’s sole discretion, (a) replacement of the defective media, (b) a repair or replacement of the Software, or (c) a refund of the fees paid to Nuance for the Software. Any replacement Software will be warranted for the remainder of the original Warranty Period or thirty (30) days, whichever is longer. EXCEPT FOR ANY REFUND ELECTED BY NUANCE, AS SET FORTH ABOVE, YOU ARE NOT ENTITLED TO ANY DAMAGES, INCLUDING BUT NOT LIMITED TO ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, IF THE SOFTWARE DOES NOT MEET NUANCE’S LIMITED WARRANTY, AND, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. The terms of Section 10 (“Exclusion of Incidental, Consequential and Certain Other Damages”) are also incorporated into this Limited Warranty. Outside of the US or Canada, none of these remedies are available without proof of purchase from an authorized international source. To exercise your remedy, contact Nuance Document Imaging, Inc., 1000 South Pine Island Road, Suite 900, Plantation, Florida 33324, Attention: Customer Support. The foregoing is your sole and exclusive remedy and Nuance’s entire liability and sole obligation with respect to any breach of the foregoing warranty. 9. DISCLAIMER OF WARRANTIES AND REMEDIES. 9.1 TO the MAXUMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LIMITED WARRANTY THAT APPEARS ABOVE IS THE ONLY EXPRESS WARRANTY MADE TO YOU IN CONNECTION WITH THE SOFTWARE OR THIS EULA AND IS PROVIDED IN LIEU OF ANY OTHER EXPRESS WARRANTIES OR SIMILAR OBLIGATIONS (IF ANY) CREATED BY ANY ADVERTISING, DOCUMENTATION, PACKAGING, OR OTHER COMMUNICATIONS. 9.2 SUBJECT TO THE AUSTRALIAN CONSUMER LAW IF APPLICABLE AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER NUANCE NOR ANY OF ITS SUPPLIERS, AUTHORIZED RESELLERS OR LICENSORS MAKES ANY OTHER REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE (EITHER IN FACT OR BY OPERATION OF LAW) WITH RESPECT TO THE SOFTWARE, ANY TECHNICAL INFORMATION, ANY TECHNICAL ASSISTANCE OR ANY OTHER MATERIALS PROVIDED BY NUANCE PURSUANT TO THIS EULA, AND NUANCE HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, THE WARRANTIES ARISING OUT OF THE COURSE OF DEALING OR USAGE OF TRADE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE SOFTWARE. NUANCE DOES NOT WARRANT THAT THE SOFTWARE WILL RUN PROPERLY ON ALL HARDWARE, THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR OPERATE IN THE COMBINATIONS WHICH MAY BE SELECTED BY YOU FOR USE, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE, OR THAT ALL SOFTWARE ERRORS WILL BE CORRECTED. �YOU ASSUME FULL RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION, USE AND RESULTS OBTAINED FROM THE SOFTWARE. YOU ALSO ASSUME THE ENTIRE RISK AS IT APPLIES TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE. THE STATED WARRANTIES ARE IN LIEU OF ALL OTHER OBLIGATIONS OR PERFORMANCE LIABILITIES ARISING OUT OF OR IN CONJUNCTION WITH THE PROVIDING OF THE SOFTWARE, ANY TECHNICAL INFORMATION, ANY TECHNICAL ASSISTANCE AND ANY OTHER MATERIALS PROVIDED BY NUANCE PURSUANT TO THIS EULA. 9.3 In Australia, if the Australian Consumer Law applies to this transaction: (a) Nuance goods and services come the guarantees that can not be excluded under the Australian Consumer Law. Nothing in this Agreement purports to modify or exclude the conditions, warranties and undertaking and any other legal rights under the Competition and Consumer Act 2010 (Cth) and any other applicable law, except as permitted by that law; (b) If goods and services purchased are not of a kind ordinarily acquired for household use or consumption then, subject to law, Nuance limits is liability to: (i) for goods: (A) a replacement of the goods or the supply of equivalent goods; or (B) the cost of replacing the goods or acquiring equivalent goods; or (C) repair of the goods; or (D) the cost of having the goods repaired; and (ii) for services: (A) supplying the services again; or (B) payment of the cost of having this service supplied again, unless it is unreasonable to do so; (c) Goods presented for repair (other than software) maybe replaced by refurbished goods of the same type rather than being repaired. Refurnished parts may be used to repair the goods; (d) Where Nuance elects to repair goods, this repair may result in loss of user-generated data; and. (e) Nuance’s Australian Consumer Law Policy applies visit the website, australia.nuance.com for this policy. 10. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES; LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BUT SUBJECT TO THE AUSTRALIAN CONSUMER LAW IF APPLICABLE, IN NO EVENT WILL NUANCE OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, ECONOMIC OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR DOCUMENTATION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOSS OF DATA/INFORMATION, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, NUANCE’S AND ITS SUPPLIERS’ AND LICENSORS’ ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES LICENSEE PAID FOR THE SOFTWARE (IF ANY), SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES (SUCH AS �AUSTRALIA IN CERTAIN CIRCUMSTANCES PURSUANT TO THE AUSTRALIAN CONSUMER LAW), SO IN THOSE STATES OR JURISDICTIONS, THE ABOVE LIMITATION OR EXCLUSION MAY NOT BE APPLICABLE. AS A CONDITION OF YOUR USE OF THE SOFTWARE, YOU AGREE TO INDEMNIFY NUANCE FOR ALL CLAIMS RELATING TO YOUR USE, REPRODUCTION AND/OR RECEIPT OF CONTENT THROUGH USE OF THE SOFTWARE PACKAGE. 11. Maintenance and Support. If you have paid for maintenance and support, the terms and conditions of such services can be found in the support area of Equitrac.com (“M&S Terms”). By accepting the terms of this EULA you are also agreeing to the M&S Terms. 12. Termination. Without prejudice to any other rights, Nuance may terminate this EULA and the license granted you herein if you fail to comply with the terms and conditions of this EULA. 13. Export Regulations. Licensee agrees to comply with all applicable export laws and restrictions and regulations of the United States of America or foreign agencies or authorities, and not to export or re-export the Software in violation of any such restrictions, laws or regulations, or without all necessary approvals. 14. U.S. Government Contracts. This Section applies to all acquisitions of the Software by or for the government of the United States of America (“government”) or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement, or other activity with the government. By accepting delivery of the Software, the government hereby agrees that this software qualifies as “commercial” computer software within the meaning of the acquisition regulation(s) applicable to the procurement. The terms and conditions of this Agreement shall pertain to the government’s use and disclosure of the Software and shall supersede any conflicting contractual terms or conditions. If this Agreement fails to meet the government’s needs or is inconsistent in any respect with the federal law of the United States of America, the government agrees to return the Software, unused, to Nuance. The following additional statement applies only to acquisitions governed by DFARS Subpart 227.4 (October 1988): “Restricted Rights-Use, duplication, and disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (Oct. 1988).” In the event any of the above referenced agency regulations is amended or replaced, the equivalent successor regulation shall apply instead. 15. Injunctive Relief. You understand and agree that in the event of a breach or threatened breach by you of any term or provision of this EULA will cause irreparable harm to Nuance and that damages or an action at law may not be an adequate remedy for any such breach. Accordingly, in the event of any such breach or threat of same, and notwithstanding any other provisions of this EULA, Nuance shall, in addition to all other remedies that may be available to it and without any requirement to post a bond, be entitled to relief in equity (including a temporary restraining order, a temporary or prohibitory injunction and a permanent mandatory or prohibitory injunction) to restrain and prohibit the continuation of any such breach, to compel compliance with the provisions of this EULA, and to restrain and prohibit any threatened breach in order to protect the proprietary rights of Nuance. 16. Governing Law. If you acquired this Software in the United States, this EULA is governed by the laws of the Commonwealth of Massachusetts, USA, without regard to choice of law rules, and Company hereby submits to the jurisdiction of the federal and state courts located in said Commonwealth and the applicable service of process. The official text of the Agreement and any Addendum or any notices given on accounts or statements required hereby shall be in English. In Canada, Province of Quebec for all contracts drafted in English, both Parties agree to write this document in English. Les Party ont convenu de rédiger le présent document en langue anglaise. Notwithstanding the foregoing, if Company is not located within North America or Japan, this Agreement, is be governed by the laws of the country where Company is located and its indicated jurisdiction as detailed for that country below, without regard to choice of law rules nor the United �Nations Convention on Contracts for the International Sale of Goods, and the parties irrevocably and unconditionally submit to such governing law and jurisdiction. The official text of the Agreement and any notices required shall be in English. This EULA shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods or by the Uniform Computer Information Transaction Act or any version thereof adopted by any state in any form (“UCITA”) and such are expressly disclaimed. To the extent that UCITA is otherwise applicable, the parties agree to opt-out of the applicability of UCITA pursuant to the opt-out provisions contained therein. Country Governing Law Jurisdiction Mexico, Taiwan or Korea Commonwealth of Massachusetts, U.S. Federal or state courts of Massachusetts China or Hong Kong Hong Kong Special Administrative Region Courts of Hong Kong Special Administrative Region Australia or New Zealand the State of New South Wales, Australia Courts of New South Wales Australia India or Singapore Singapore Courts of Singapore Rest of world Irish law Dublin, Ireland 17. General. This EULA is the entire agreement between you and Nuance relating to the Software and (a) supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to its subject matter; and (b) prevails over any conflicting or additional terms of any quote, order, acknowledgment, or similar communication between the parties during the term of this EULA. No modification to this EULA will be binding, unless in writing and signed by a duly authorized representative of each party. The terms and conditions of this EULA shall prevail, notwithstanding any variance with any purchase order or other written instrument submitted by you, unless Nuance expressly agrees in writing to otherwise be obligated thereto, and Nuance hereby gives notice of objection to terms and conditions on said purchase order or written instrument additional to or at variance with the terms and conditions hereof. If any provision of this EULA is deemed invalid or unenforceable by any court or agency of competent jurisdiction, that particular provision will be deemed modified to the extent necessary to make the provision valid and enforceable, and the remaining provisions will remain in full force and effect. This Agreement may not be assigned by you without Nuance’s express written consent. This Agreement is freely assignable by Nuance. 18. Third Party Software. You acknowledge that the Software may include or incorporate software which originated with third party vendors and, without limiting the general applicability of the other provisions of this EULA, you further agree to the following: (a) title to any third party software incorporated in the Software shall remain with the third party which supplied same; (b) as to that portion of the Software which originates with third party vendors, you acknowledge that such vendors have made no representations, warranties, guarantees or indemnities to you by virtue of incorporation of the vendor’s products into the Software; (c) as to that portion of the Software obtained from third party vendors, you acknowledge that you shall be responsible to such vendors for any uncured material breach by you of any of your obligations as set forth herein which are applicable to that portion of the Software originating with such vendors. With that said, the Software may include or may require the use of third party software as identified in the ReadMe file provided with the Software and third parties may have enforceable rights with respect to such third party software. In such cases, the terms of the third party licenses identified in the ReadMe file shall govern the use of such third party software. You shall be responsible to review the terms of such third party licenses prior to using the Software and to comply with such terms. Certain third party software required for use of the Software may not be provided by Nuance and you shall be responsible to obtain necessary rights under such software as may further be identified in the ReadMe file. �19. LICENSEE OUTSIDE THE U.S. If You are located outside the U.S., then the provisions of this Section shall apply. (a) Les parties aux présentés confirment leur volonté que cette convention de même que tous les documents y compris tout avis qui s’y rattaché, soient redigés en langue anglaise. (Translation: “The parties confirm that this Agreement and all related documentation is and will be in the English language.”) (b) Licensee is responsible for complying with any local laws in its jurisdiction which might affect its right to import, export or use the Software, and Licensee represents that it has complied with any regulations or registration procedures required by applicable law to make this license enforceable. Should you have any questions concerning this EULA, or if you desire to contact Nuance for any reason, please write: Nuance Document Imaging, Inc., 1000 South Pine Island Road, Suite 900, Plantation, Florida 33324, Attention: Customer Support. IF YOU ACCEPT AND AGREE TO BE BOUND BY ALL OF THE TERMS OF THIS EULA, SELECT “I accept the terms of the license agreement”. IF YOU DO NOT ACCEPT AND AGREE TO BE BOUND BY ALL OF THE TERMS OF THIS EULA, SELECT “I do not accept the terms of the license agreement” AND THE INSTALLATION OF THIS SOFTWARE WILL BE ABORTED. IF YOU SELECT “I do not accept the terms of the license agreement”, YOU MUST DESTROY OR RETURN ALL COPIES OF THE SOFTWARE TO NUANCE AT THE ADDRESS GIVEN ABOVE. YOU RECOGNIZE THAT ANY USE OF THE SOFTWARE AFTER SELECTING “I do not accept the terms of the license agreement” WILL BE CONSIDERED A BREACH OF CONTRACT, SUBJECT TO LIQUIDATED DAMAGES AND IS OTHERWISE UNLAWFUL AND AN UNAUTHORIZED USE OF NUANCE’S TRADE SECRETS AND PROPRIETARY PRODUCTS. �
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End User License Agreement (“EULA”) for the NetSuite WMS Printer Driver Software (“Software”) Please read this EULA carefully before installing or using the Software. By installing or using the Software you represent that you are employed by or affiliated with a NetSuite Customer (“Customer”) and an authorized user of the NetSuite WMS Module (“Module”), subject to the NetSuite Third Party Terms (“Third Party Terms”). This is a legal agreement between NetSuite Inc. (“NetSuite”) and the Customer. You represent that you are authorized to agree to the following terms on behalf of the NetSuite Customer, and references “you” and “your” shall mean the Customer. This EULA supplements and modifies certain terms of the Third Party Terms, solely with respect to use of the Software. Use of the Module through the Software is governed by the Third Party Terms, and capitalized terms used but not defined in this EULA have the meanings given to them in the Third Party Terms. 1. SOFTWARE LICENSE. You may install and use one copy of the Software on a device that you own that is used to access and use the Module. You may access and use the Software solely for your own internal personal or business purposes. By downloading, installing or otherwise using the Software, you accept the terms of the EULA. If you do not accept the terms of this EULA, do not use the Software. You represent and warrant to NetSuite that you are authorized to install the Software on the computer upon which it is installed. 2. SCOPE OF LICENSE. The Software is licensed, not sold, to you for use under the terms of this EULA. The EULA also applies to any updates to the Software, unless such update is accompanied by separate terms, in which case such separate terms will govern. This EULA only gives you some rights to use the Software. NetSuite and its licensors reserve all other rights. Unless applicable law gives you more rights despite this limitation, you may use the Software only as expressly permitted in this EULA. In doing so, you must comply with any technical limitations in the Software that only allow you to use it in certain ways. �3. USE OF DATA. Data may be gathered periodically to facilitate the provision of Software updates, product support and other services to you (if any) related to the Software or the Module. NetSuite will not use or disclose your data except to the extent necessary to perform its obligations or exercise its rights under this EULA and the Third Party Terms, or as directed or otherwise permitted by Customer. By using the Software, you consent to such use by NetSuite, and for other uses as follows: NetSuite may (i) use the data processed by the Software to the extent necessary to provide the functionality for which the Software is provided; (ii) collect and use technical information and related data, including but not limited to information and data processed by your device, system, Software, and peripherals; and (iii) use the data to improve its products in a manner that does not personally identify you, or to provide services or technologies to you. By installing or enabling the Software for use with third party devices (e.g., printers or other peripherals), you may direct the transmission of data from the Module to networks, systems and applications not owned or operated by NetSuite. Accordingly, you understand that the security, confidentiality and integrity of such data and access will be subject to the policies, practices and terms of the party or service to which the data is transmitted and not NetSuite. 3. RESTRICTIONS. This EULA is non-transferable and limits you to use the Software only on computers that you own or control. You may not distribute or make the Software available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the Software. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Software, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Software). Any attempt to do so is a violation of the rights of the NetSuite and its licensors. You may not make more copies of the Software than specified in this EULA or publish the Software for others to copy. If you breach these restrictions, you may be subject to prosecution and damages. �4. INTERNET ACCESS. Use of the Software to access the Module requires Internet access and you understand and accept the risk of accessing and transmitting information over the Internet. You are responsible for preventing unauthorized access or use of the Module as a result of your use of the Software. 5. TERM AND TERMINATION. In addition to any right or remedy that may be available to NetSuite under this EULA or applicable law, NetSuite may terminate this EULA upon written notice to you at any time. Your rights under this EULA will terminate automatically without notice from NetSuite upon any termination of the Customer’s subscription to the Module, or if you fail to comply with the terms of this EULA. You can terminate this EULA at any time by removing the Software from your computer entirely. Upon any termination of this EULA, you must cease all use of the Software and delete all copies of the Software. Termination of this EULA shall not entitle the Customer or you to any refund, credit, or other compensation from NetSuite. 6. SERVICE LEVEL COMMITMENT. Any service level commitment or warranty in effect between the Customer and NetSuite, as set forth in the Third Party Terms or otherwise, shall not apply to the Software. NetSuite shall determine, in its sole discretion, the level of support it will provide for the Software, and any such support shall be subject to change without notice. 7. NO WARRANTY. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND ANY SERVICES PERFORMED OR PROVIDED BY THE SOFTWARE ARE PROVIDED "AS IS" AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND NETSUITE HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON- �INFRINGEMENT OF THIRD PARTY RIGHTS. NETSUITE DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERRORFREE, OR THAT DEFECTS IN THE SFOTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY NETSUITE OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU. 8. LIMITATION OF LIABILITY. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL NETSUITE BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF NETSUITE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall NetSuite’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose. NetSuite reserves the right to change, suspend, remove, or disable access to the Software at any time without notice. In no event will NetSuite be liable for the removal of or disabling of access to the Software. NetSuite may also impose limits on the use of or access to the Software, in any case and without notice or liability. �9. EXPORT COMPLIANCE. You may not use or otherwise export or reexport the Software except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear missiles, or chemical or biological weapons. MISCELLANEOUS. The Software and related documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights are reserved under the copyright laws of the United States. The laws of the State of California, excluding its conflicts of law rules, govern this EULA and your use of the Software. Your use of the Software may also be subject to other local, state, national, or international laws. 10. OWNERSHIP. Title to and ownership of the Software remains with NetSuite and its licensors, including but not limited to all copyrights, trademarks, and the “look and feel” of the Software. Except for the limited rights set forth herein, you do not acquire any interest in the Software by virtue of entering into this EULA. 11. ENTIRE AGREEMENT. This EULA and any terms relating to updates and support services that you use, are the entire agreement for the Software and support services. �12. THIRD PARTY SOFTWARE. The Software may be distributed with software governed by licenses from third parties (“Third Party Software” and “Third Party License”). Any Third Party Software is licensed to you subject to the terms and conditions of the corresponding Third Party License, notwithstanding anything to the contrary in this EULA. NetSuite makes no representation or warranty concerning Third Party Software and shall have no obligation or liability with respect to Third Party Software. NetSuite Inc. © 2014. �
nw/103.txt
NICE SYSTEMS INC. END-USER LICENSE AGREEMENT 1. GRANT OF LICENSE FOR REGISTERED USERS. NICE grants you a non-exclusive, perpetual license to use the program with which this license is distributed (the “Software”), including any documentation files accompanying the Software (“Documentation”) on a single server (if the Software is server based) or a single personal computer (if the Software is PC based) to support up to the number of simultaneous users for which you have paid the license fee, and to make one backup copy of the Software, provided that (i) the Software is installed on only one server or personal computer; (ii) the Software may NOT be modified; (iii) all copyright notices are maintained on the Software; and (v) you agree to be bound by the terms of this License Agreement. The Software is licensed to you and not sold to you. If you receive the Software in more than one medium, you may only use the one medium which is appropriate for your single server or personal computer. You may not use, install on another computer, or loan, lease or otherwise transfer to another user the other medium. Use of the program is limited to use by your employees, contractors, agents or representatives, provided, however, that all such persons or entities are bound by the provisions of this End-User License Agreement and you shall use reasonable efforts to ensure compliance of all such persons or entities under the terms of this End User License Agreement. 2. OWNERSHIP. You have no ownership rights in the Software. Rather, you have a license to use the Software pursuant to the terms of this License Agreement as long as this License Agreement remains in full force and effect. Ownership of the Software, Documentation and all intellectual property rights therein shall remain at all times with NICE. Any other use of the Software by any person, business, corporation, government organization or any other entity, except by your employees, contractors, agents or representatives, for Customer’s benefit, is strictly forbidden and is a violation of this License Agreement. 3. COPYRIGHT. The Software and Documentation contain material that is protected by United States and international Copyright Law and trade secret law, and by international treaty provisions. All rights not granted to you herein are reserved to NICE. You may not remove any proprietary notice of NICE from any copy of the Software or Documentation. You may not copy the printed materials and Documentation that accompany the Software except to provide training for your employees, contractors, agents or representatives for Customer’s benefit and use of the Software. 4. RESTRICTIONS. This License Agreement is your proof of license to exercise the rights granted herein and must be retained by you. You must protect the Software and Documentation consistent with NICE’s rights therein, including informing persons who are permitted access thereto in order to satisfy your obligations hereunder and maintain the confidentiality of the Software and Documentation. You may not publish, display, disclose, rent, lease, modify, loan, distribute, alter or create derivative works based on the Software or any part thereof. You may not reverse engineer, decompile, translate, adapt, or disassemble the Software, nor shall you attempt to create the source code from the object code for the Software. You may not transmit the Software over any network or between any devices, although you may use the Software to make such transmissions of other materials. You may transfer the Software to another computer you own as long as you only use the Software on one computer at a time. 5. LIMITED WARRANTY. NICE WARRANTS FOR A MAXIMUM PERIOD OF SIX (6) MONTHS, AFTER DELIVERY, THAT THE SOFTWARE WILL PERFORM SUBSTANTIALLY IN ACCORDANCE WITH THE DOCUMENTATION. SHOULD THE SOFTWARE NOT SO PERFORM, YOUR EXCLUSIVE REMEDY, AND NICE’S SOLE OBLIGATION UNDER THIS WARRANTY SHALL BE CORRECTION OF THE DEFECT ANY USE BY YOU OF THE SOFTWARE IS AT YOUR OWN RISK. THIS LIMITED WARRANTY IS VOID IF NONPERFORMANCE OF THE SOFTWARE IS DUE TO ABUSE OR MISAPPLICATION. THIS LIMITED WARRANTY IS THE ONLY WARRANTY PROVIDED BY NICE REGARDING THE SOFTWARE. YOU AGREE THAT THE FOREGOING CONSTITUTES YOUR SOLE AND EXCLUSIVE REMEDY OF BREACH BY NICE OR ANY WARRANTIES MADE UNDER THIS AGREEMENT. EXCEPT FOR THE LIMITED WARRANTY ABOVE, THE SOFTWARE IS PROVIDED “AS IS”. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NICE DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF Page 1 of 4 NICE SYSTEMS INC END-USER LICENSE As of 10/29/2002 �MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE. NICE DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET ANY REQUIREMENTS OR NEEDS YOU MAY HAVE, OR THAT THE SOFTWARE WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED FASHION, OR THAT ANY DEFECTS OR ERRORS IN THE SOFTWARE WILL BE CORRECTED, OR THAT THE SOFTWARE IS COMPATIBLE WITH ANY PARTICULAR PLATFORM. NICE IS NOT OBLIGATED TO PROVIDE ANY UPDATES TO THE SOFTWARE. SOME JURISDICTIONS DO NOT ALLOW THE WAIVER OR EXCLUSION OF IMPLIED WARRANTIES. 6. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, OR FOR ANY CLAIM BY ANY OTHER PARTY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NETHER PARTY’S LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION OR OTHERWISE SHALL NOT EXCEED THE AMOUNT OF THE LICENSE FEE PAID BY YOU FOR THE SOFTWARE AND DOCUMENTATION GIVING RISE TO THE LIABILITY BECAUSE SOME STATES/COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. 7. INFRINGEMENT INDEMNITY. (a) Infringement Indemnity. NICE will defend, indemnify, and hold harmless Customer and Customer’s owners, officers, directors, and employees (individually and collectively, an “Indemnified Party”) from any third party claim, action, suit, or proceeding against an Indemnified Party (a “Claim”) to the extent that such Claim is based upon an allegation that NICE Software infringes any right protected by any patent, copyright, trademark or trade secret of any third party that is enforceable in the United States. NICE will indemnify an Indemnified Party for any judgments, settlements, reasonable costs, and reasonable attorneys’ fees resulting from a Claim finally awarded by a court of competent jurisdiction in any such Claim after exhaustion of all permissible appeals. NICE’s obligations under this Section are conditioned upon the following: (i) within a reasonable time of becoming aware of the Claim, an Indemnified Party provides to NICE prompt written notice of the Claim; provided, however, that failure to give such notice shall not affect the indemnification hereunder except to the extent that NICE has been actually prejudiced thereby; (ii) an Indemnified Party gives to NICE sole authority and control of the defense and/or settlement of the Claim; and (iii) an Indemnified Party provides all relevant information and reasonable assistance requested by NICE to handle the defense and/or settlement of the Claim. An Indemnified Party, at its expense, may hire legal counsel of its choice to participate in an advisory capacity related to discussions, negotiations, or proceedings of the Claim, but such legal counsel shall not, without the prior written consent of NICE, participate in any other capacity with respect to the Claim. (b) Remedial Measures. If the NICE Software becomes the subject of a Claim, or if NICE reasonably believes that use of such Software may become the subject of a Claim, NICE may, at its own expense and option: (i) procure for CUSTOMER the right to continue use of the Software or (ii) replace the Software with a non-infringing Software; (iii) modify the Software so that it becomes non-infringing; or (iv) CUSTOMER may choose to retain and continue use of such Software if CUSTOMER waives its entitlement to indemnity under this Section 11 with respect to the applicable Claim. (c) Exceptions. NICE will have no defense or indemnity obligation for any Claim based on (i) a Software that has been modified by someone other than NICE; (ii) a Software that has been Page 2 of 4 NICE SYSTEMS INC END-USER LICENSE As of 10/29/2002 �modified by NICE in accordance with either CUSTOMER-provided specifications or instructions; (iii) a Software that has been used with or combined with hardware or software not furnished by NICE; (iv) combination of Software with Products, if the infringement would not occur but for the combination; or (v) CUSTOMER or End User products or “Third Party Products.” The term “Third Party Products” means any products or software supplied to CUSTOMER by a party other than NICE, and may include, without limitation, products or software ordered by CUSTOMER from third parties. However, Third Party Products do not include components of Software that both (i) are not recognizable as standalone items; and (ii) are not identified as separate items on NICE’s price list, quotes, orders or documentation. CUSTOMER will indemnify NICE for any judgments, settlements and reasonable attorneys’ fees resulting from a Claim to the extent that such Claim is based on subsections (i) or (ii) above, if applicable. (d) No Other Remedies Regarding Infringements. THE FOREGOING STATES NICE’S ENTIRE LIABILITY AND AN INDEMNIFIED PARTY’S SOLE AND EXCLUSIVE REMEDIES WITH RESPECT TO ANY INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. 8. EXPORT RESTRICTIONS. THIS LICENSE AGREEMENT IS EXPRESSLY MADE SUBJECT TO ANY LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS ON THE EXPORT FROM THE UNITED STATES OF AMERICA OF THE SOFTWARE OR INFORMATION ABOUT SUCH SOFTWARE WHICH MAY BE IMPOSED FROM TIME TO TIME BY THE GOVERNMENT OF THE UNITED STATES OF AMERICA. YOU SHALL NOT EXPORT THE SOFTWARE, DOCUMENTATION, OR INFORMATION ABOUT THE SOFTWARE AND DOCUMENTATION WITHOUT CONSENT OF NICE AND COMPLIANCE WITH SUCH LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS. 9. TERMINATION. This License Agreement is effective until terminated. You may terminate this License Agreement at any time by destroying or returning to NICE all copies of the Software and Documentation in your possession or under your control. NICE may terminate this License Agreement if NICE finds that you have violated the terms of Section 4 and for both parties, Section 12 of this License Agreement; provided, however, that in the event of a material breach of any terms of this License Agreement other than Sections 4 and 12, a cure period of ten (10) days (the “Cure Period”) shall be in effect. In the event that the breaching party is unable to cure such breach during the Cure Period, the nonbreaching party may terminate this License Agreement. Upon notification of termination, you agree to destroy or return to NICE all copies of the Software and Documentation and to certify in writing that all known copies, including backup copies, have been destroyed. All provisions relating to confidentiality, proprietary rights, non-disclosure, disclaimer of warranty and limitation of liability shall survive the termination of this License Agreement. 10. GENERAL. This License Agreement shall be interpreted construed and governed by and in accordance with the laws of the State of Delaware. Jurisdiction and venue for any suit or proceeding arising under this Agreement or the relationship of the parties shall lie in the courts in Delaware. This License Agreement shall constitute the entire Agreement between the parties hereto. Any waiver or modification of this License Agreement shall only be effective if it is in writing and signed by both parties hereto. The waiver or failure of either party to exercise any right in any respect provided for herein shall not be deemed a waiver of any future right hereunder. If any part of this License Agreement is found invalid or unenforceable by a court of competent jurisdiction, the remainder of this License Agreement shall be interpreted so as to reasonably affect the intention of the parties. No action, regardless of form, arising out of this Agreement may be brought by you more than two (2) years after such cause of action shall have accrued. Either party may assign, sublicense, transfer, pledge, lease, rent or share its rights under this License Agreement upon the prior written consent of the other party, which consent shall not be unreasonably withheld. 11. U.S. GOVERNMENT RESTRICTED RIGHTS. The Software (including the Documentation) is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(l)(ii) of the Rights in Technical Data and Computer Software Page 3 of 4 NICE SYSTEMS INC END-USER LICENSE As of 10/29/2002 �clause of DFARS 252.227-7013 or subparagraph (c)(l) and (2) of the Commercial Computer SoftwareRestricted Rights clause at 48 CFR 52.227-19 as amended, or any successor regulations thereto. 12. CONFIDENTIAL INFORMATION AND NON-DISCLOSURE. The term “Confidential Information” shall include all information provided by each party to the other party, or their affiliates, employees, officers, directors, agents or representatives, including without limitation the terms and conditions of this Agreement, the NICE Software, the Third Party Software, and any and all of a party’s design specifications, drawings, written manuals, software programs, business plans, financial information, technical and marketing information and evaluations, service plans and customer information designated orally or in writing as confidential or otherwise which by its nature should be considered confidential. For purposes herein, a party disclosing information shall be deemed the “Disclosing Party” and a party receiving information shall be deemed the “Receiving Party.” Confidential Information shall not include information which can be demonstrated: (a) to have been rightfully in the possession of the Receiving Party from a source other than the Disclosing Party prior to the time of disclosure of said information to the Receiving Party (“Time of Disclosure”); (b) to have been in the public domain prior to the Time of Disclosure; (c) to have become part of the public domain after the Time of Disclosure by a publication or by any other means, except an unauthorized act or omission or breach of this Agreement on the part of the Receiving Party, or its employees; (d) to have been supplied to the Receiving Party after the Time of Disclosure without restriction by a third party who is under no obligation to the Disclosing Party to maintain such information in confidence; (e) to be required to be disclosed by law or court order, provided that the Receiving Party shall use best efforts to provide the Disclosing Party with prompt notice sufficient for the Disclosing Party to have a reasonable opportunity to prevent such disclosure and shall use best efforts to limit the information to be disclosed; or (f) to have been independently developed by the Receiving Party, provided that any persons developing same have not had access to Confidential Information and have written evidence demonstrating such independent development. In consideration of the willingness of the Disclosing Party to disclose Confidential Information to the Receiving Party, the Receiving Party hereby agrees: (a) to use or disclose Confidential Information only for the purpose authorized in writing by the Disclosing Party; (b) to use all reasonable precautions, including without limitation requiring any affiliates, employees, officers, directors, agents or representatives of the Receiving Party with access to Confidential Information of the Receiving Party’s obligations under this Section to keep Confidential Information secret and to prevent its disclosure to third parties without the prior written consent of the Disclosing Party; (c) to refrain from copying or distributing such Confidential Information within the Receiving Party’s own organization except on a limited “need to know” basis; and (d) to return all documents containing Confidential Information promptly upon the request of the Disclosing Party. In any event, Confidential Information shall be protected by the Receiving Party with the same degree of care as the Receiving Party uses for its own Confidential Information, but no less than a reasonable degree of care. If the Receiving Party or any of its affiliates, employees, officers, directors, agents or representatives shall attempt to improperly use or knowingly disclose any of the Confidential Information, the Disclosing Party shall have the right, in addition to such other remedies which may be available to it, to injunctive relief enjoining such acts or attempts; it being acknowledged that legal remedies are inadequate. 13. COUNTERPARTS. For the convenience of the parties, copies of this Agreement may be executed in two or more counterparts and signature pages exchanged by facsimile. The parties intend that counterpart copies signed and exchanged as provided in the preceding sentence shall be fully binding as an original handwritten executed copy hereof and all of such copies together shall constitute one instrument. Page 4 of 4 NICE SYSTEMS INC END-USER LICENSE As of 10/29/2002 �
nw/104.txt
NANOSOFT SOFTWARE END USER LICENSE AGREEMENT This End User License Agreement ("Agreement") is made by and between ZAO Nanosoft, Marshala Timoshenko Street 17 building 1, 121359, Moscow, Russian Federation ("Nanosoft") and you ("Licensee"). IMPORTANT - READ CAREFULLY: The terms and conditions below set forth a legal agreement between Nanosoft and Licensee relating to the computer software and documentation distributed with, or otherwise subject to, this Agreement (the "Software"). Licensee should carefully read these terms and conditions BEFORE installing the Software. This Agreement may be amended from time to time by Nanosoft, and continued use of the Software may be made contingent upon the acceptance of such amended terms. 1. LICENSE Nanosoft hereby grants to Licensee a non-transferable and non-exclusive license to use the Software solely in accordance with this Agreement. The Software may be installed, executed and accessed by Licensee as well as its employees, students, consultants and subcontractors (collectively, together with the Licensee, the "Authorized Users") on devices belonging to Licensee ("Machines"), and may not be executed or accessed by any other means, including without limitation via the Internet. Subject to the conditions set forth in this Agreement, that are subject to amendment, Licensee may copy and distribute the Software. Software incorporates software license activation and management technology to control the execution of the Software, and to specify the purposes for which Licensee may use the Software pursuant to this Agreement (the "Permitted usage"). Licensee may display the Permitted usage by entering the command "About" in the Software, either through the menu or through the command line. Permitted usage may include “DEMONSTRATION,” defined as for educational and training purposes; “COMMERCIAL”, defined as for personal, commercial, professional, for-profit, or non-profit purposes; or “TRIAL,” defined as for personal, commercial, professional, for-profit, or non-profit purposes. Other Permitted usage, not defined herein, is not licensed pursuant to this agreement. Licensee may use the Software's Application Programming Interfaces (“APIs”) only to create software in support of Licensee's internal business needs, for use only by Authorized Users. Licensee acknowledges that use of the APIs for any other purpose, including without limitation the creation of software for distribution outside Licensee's business, is not permitted under this Agreement, and requires a separate agreement between Licensee and Nanosoft . Licensee may use Software's LISP programming language to create software for use by Authorized Users, or for free distribution outside Licensee's business. Except to the extent permitted by applicable law, Licensee shall not analyze for purposes competitive to Nanosoft, reverse engineer, decompile, disassemble, or otherwise translate all or part of the Software, or permit Authorized Users to do so. 2. TERM & TERMINATION This Agreement shall come into full force and effect upon Licensee's acceptance of these terms and conditions, which acceptance is indicated by selecting the "Accept" button in the dialog presenting this Agreement, by downloading and/or installing and/or using the Software, and/or by Licensee's acceptance of another agreement that references and �incorporates this Agreement, whichever occurs first. This Agreement may be terminated at any time by Nanosoft for any breach hereof upon notice to Licensee. Periodic activation may be required by Licensee in order to continue use of the Software. Use of the Software may be interrupted until necessary activation steps are taken by Licensee. Upon termination hereof, Licensee shall immediately uninstall and delete all copies of the Software and discontinue use of the Software. The sections entitled "PROTECTION AND NON-DISCLOSURE", "WARRANTY AND DISCLAIMER OF WARRANTY, RISK OF USE, LIMITATION OF LIABILITY AND INDEMNITY" and "GOVERNING LAW AND JURISDICTION" shall survive termination of this Agreement. 3. PROTECTION AND NON-DISCLOSURE The Software, including any copies made by or for Licensee, in whole or in part, are the sole property of Nanosoft or its licensor(s). All intellectual property rights in the Software belong exclusively to Nanosoft or its licensor(s). Nanosoft and/or its licensors shall retain all title, copyright and other intellectual property rights in the Software and all modifications, enhancements or other works derivative of the Software. Licensee shall preserve and reproduce any copyright, patent and trademark notices which may appear in the Software on all copies thereof, in whole or part. Licensee acknowledges that the methodologies, techniques, expressions, ideas and concepts contained in or expressed within the Software are proprietary information and trade secrets of Nanosoft or its licensor(s). Licensee shall treat them as confidential information and never disclose them. 4. LICENSEE'S RESPONSIBILITIES Licensee is solely responsible for supervising, managing and controlling the use of the Software in compliance with this Agreement, and shall take all appropriate measures, including with Authorized Users, to ensure such compliance, including without limitation compliance with its authorized use, and confidentiality obligations. Export to Licensee of Software is subject to all applicable countries' export and re-export laws and regulations. Nanosoft shall have no liability whatsoever towards Licensee if such authorizations, licenses or approvals are not obtained. Licensee shall not export or re-export, either directly or indirectly, Software when such export or re-export requires an export license or other governmental approval without first obtaining such license or approval. Licensee hereby certifies to Nanosoft that the Software will not be used in any activity related to chemical, biological, radiological, or nuclear weapons or their delivery systems, and will not be diverted to any country, company or individual that is prohibited by the applicable export laws of any country. 5. WARRANTY AND DISCLAIMER OF WARRANTY, RISK OF USE, LIMITATION OF LIABILITY AND INDEMNITY THE Software IS MADE AVAILABLE ON AN "AS IS" BASIS, AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS FOR ANY PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES, CONDITIONS, UNDERTAKINGS, AND TERMS ARE HEREBY EXCLUDED TO THE EXTENT PERMITTED BY LAW. IN NO EVENT SHALL Nanosoft OR ITS LICENSOR(S) BE LIABLE FOR DIRECT OR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF USE, PROFIT, REVENUE, OR GOODWILL, WHETHER BASED IN CONTRACT, NEGLIGENCE, OR OTHERWISE, ARISING OUT OF, RESULTING FROM OR IN ANY WAY RELATING TO Licensee's USE OF THE Software, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF DATA, OR LOSS OF USE DAMAGES ARISING OUT OF THIS Agreement OR THE SUPPLYING OF THE Software, EVEN IF Nanosoft OR ITS LICENSOR(S) ARE AWARE OF OR ARE NOTIFIED OF THE POSSIBILITY THEREOF. THIS SECTION SHALL SURVIVE ANY EXPIRATION OR TERMINATION OF THIS Agreement. Licensee's USE OF Software SHALL BE AT Licensee's SOLE RISK. Licensee SHALL INDEMNIFY AND HOLD Nanosoft HARMLESS FROM ANY AND ALL LIABILITY OR EXPENSE, INCLUDING REASONABLE ATTORNEYS' FEES, ARISING OUT OF THIS Agreement �OR Licensee's USE OF THE Software UNDER THIS Agreement. 6. INTERNET CONNECTIVITY AND PRIVACY The Software may cause Machines, without notice, to connect to the Internet and to communicate with a Nanosoft website or nanocad.com domain for purposes including, but not limited to, providing Licensee with additional information about the Software and other Nanosoft products and Services. Whenever the Software make an Internet connection and communicate with a Nanosoft website, whether automatically or due to explicit User request, the Nanosoft Privacy policy (hyperlinked to http://nanocad.com) shall apply, and is incorporated herein by reference. Additionally, unless Licensee is provided with Additional Terms of Use, the nanocad.com Terms of Use (hyperlinked to http://nanocad.com) shall apply, and are incorporated herein by reference. 7. GOVERNING LAW AND JURISDICTION Except as expressly permitted herein, this Agreement may be modified only by written amendment signed by the parties and no other act, document, usage or custom shall be deemed to amend or modify this Agreement, including but not limited to Licensee's terms and conditions. The Agreement shall be governed and construed in accordance with the laws of Russian Federation. The Moscow Court of Arbitration shall have exclusive jurisdiction to hear any dispute arising out of or in connection with the interpretation and/or performance of this Agreement, however, the parties acknowledge and agree that in the event that the subject matter of any such dispute is intellectual property, Nanosoft shall have the right to bring any such dispute before the Moscow City Court. Licensee acknowledges and agrees that the last two sentences above shall not prevent, restrict or otherwise limit in any manner, Nanosoft's rights to seek equitable remedies, including injunctive relief before any competent court in any jurisdiction. 8. U.S. GOVERNMENT RESTRICTED RIGHTS If Licensee is an agency or unit of the U.S. Government, or obtains the Software for the benefit of the U.S. Government, the Software and the related Documentation are "commercial items," specifically "commercial computer software" and "commercial computer software documentation," and, consistent with FAR 12.212 and DFARS 227.7202, as applicable, are licensed to Licensee only with those rights as are granted pursuant to this Agreement. This provision shall survive any termination or expiration of the Agreement. Rev: NS Intl EULA, Eng, V0.67, 1-Oct-2013 �
nw/105.txt
END USER LICENSE AGREEMENTS (EULA) DR-06739-001_v01_v7.5 | September 2015 �PREFACE The following contains specific license terms and conditions for four separate NVIDIA products. By accepting this agreement, you agree to comply with all the terms and conditions applicable to the specific product(s) included herein. NVIDIA CUDA Toolkit Description The NVIDIA CUDA Toolkit provides command-line and graphical tools for building, debugging and optimizing the performance of applications accelerated by NVIDIA GPUs, runtime and math libraries, and documentation including programming guides, user manuals, and API references. The NVIDIA CUDA Toolkit License Agreement is available in Chapter 1. Default Install Location of CUDA Toolkit Windows platform: %ProgramFiles%\NVIDIA GPU Computing Toolkit\CUDA\v#.# Linux platform: /usr/local/cuda-#.# Mac platform: /Developer/NVIDIA/CUDA-#.# NVIDIA CUDA Samples Description This package includes over 100+ CUDA examples that demonstrate various CUDA programming principles, and efficient CUDA implementation of algorithms in specific application domains. The NVIDIA CUDA Samples License Agreement is available in Chapter 2. www.nvidia.com End User License Agreements (EULA) DR-06739-001_v01_v7.5 | ii �Preface Default Install Location of CUDA Samples Windows platform: %ProgramData%\NVIDIA Corporation\CUDA Samples\v#.# Linux platform: /usr/local/cuda-#.#/samples and $HOME/NVIDIA_CUDA-#.#_Samples Mac platform: /Developer/NVIDIA/CUDA-#.#/samples NVIDIA Driver Description This package contains the operating system driver and fundamental system software components for NVIDIA GPUs. The NVIDIA Driver License for the Windows platform is available in Chapter 3, and the NVIDIA Driver License for the Linux and Mac OSX platforms is available in Chapter 4. NVIDIA Nsight Visual Studio Edition (Windows only) Description NVIDIA Nsight Development Platform, Visual Studio Edition is a development environment integrated into Microsoft Visual Studio that provides tools for debugging, profiling, analyzing and optimizing your GPU computing and graphics applications. The NVIDIA Nsight Visual Studio Edition License Agreement is available in Chapter 5. Default Install Location of Nsight Visual Studio Edition Windows platform: %ProgramFiles(x86)%\NVIDIA Corporation\Nsight Visual Studio Edition #.# NVIDIA CUDA General Terms Description General terms that apply to all of the software components are available in Chapter 6. www.nvidia.com End User License Agreements (EULA) DR-06739-001_v01_v7.5 | iii �Preface www.nvidia.com End User License Agreements (EULA) DR-06739-001_v01_v7.5 | iv �Chapter 1. NVIDIA CUDA TOOLKIT LICENSE AGREEMENT Important Notice READ CAREFULLY: This Software License Agreement ("Agreement") for NVIDIA CUDA Toolkit, including computer software and associated documentation ("Software"), is the Agreement which governs use of the SOFTWARE of NVIDIA Corporation and its subsidiaries ("NVIDIA") downloadable herefrom. By downloading, installing, copying, or otherwise using the SOFTWARE, You (as defined below) agree to be bound by the terms of this Agreement. If You do not agree to the terms of this Agreement, do not download the SOFTWARE. Recitals Use of NVIDIA's SOFTWARE requires three elements: the SOFTWARE, an NVIDIA GPU or application processor ("NVIDIA Hardware"), and a computer system. The SOFTWARE is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The SOFTWARE is not sold, and instead is only licensed for Your use, strictly in accordance with this Agreement. The NVIDIA Hardware is protected by various patents, and is sold, but this Agreement does not cover the sale or use of such hardware, since it may not necessarily be sold as a package with the SOFTWARE. This Agreement sets forth the terms and conditions of the SOFTWARE only. 1.1. Definitions 1.1.1. Licensee "You", or "Your" shall mean the entity or individual that downloads and uses the SOFTWARE. www.nvidia.com End User License Agreements (EULA) DR-06739-001_v01_v7.5 | 1 �NVIDIA CUDA Toolkit License Agreement 1.1.2. Redistributable Software "Redistributable Software" shall mean the redistributable libraries referenced in Attachment A of this Agreement. 1.1.3. Software "SOFTWARE" shall mean the deliverables provided pursuant to this Agreement. SOFTWARE may be provided in either source or binary form, at NVIDIA's discretion. 1.2. Grant of License 1.2.1. Rights and Limitations of Grant Provided that Licensee complies with the terms of this Agreement, NVIDIA hereby grants Licensee the following limited, non-exclusive, non-transferable, non-sublicensable (except as expressly permitted otherwise for Redistributable Software in Section 1.2.1.1 and Section 1.2.1.3 of this Agreement) right to use the SOFTWARE -- and, if the SOFTWARE is provided in source form, to compile the SOFTWARE -- with the following limitations: 1.2.1.1. Redistribution Rights Licensee may transfer, redistribute, and sublicense certain files of the Redistributable SOFTWARE, as defined in Attachment A of this Agreement, provided, however, that (a) the Redistributable SOFTWARE shall be distributed solely in binary form to Licensee's licensees ("Customers") only as a component of Licensee's own software products (each, a "Licensee Application"); (b) Licensee shall design the Licensee Application such that the Redistributable SOFTWARE files are installed only in a private (non-shared) directory location that is used only by the Licensee Application; (c) Licensee shall obtain each Customer's written or clickwrap agreement to the license terms under a written, legally enforceable agreement that has the effect of protecting the SOFTWARE and the rights of NVIDIA under terms no less restrictive than this Agreement. 1.2.1.2. Usage Rights Licensee may install and use multiple copies of the SOFTWARE on a shared computer or concurrently on different computers, and make multiple back-up copies of the SOFTWARE, solely for Licensee's use within Licensee's Enterprise. "Enterprise" shall mean individual use by Licensee or any legal entity (such as a corporation or university) and the subsidiaries it owns by more than 50 percent. www.nvidia.com End User License Agreements (EULA) DR-06739-001_v01_v7.5 | 2 �NVIDIA CUDA Toolkit License Agreement 1.2.1.3. Further Redistribution Rights Subject to the terms and conditions of the Agreement, Licensee may authorize Customers to further redistribute the Redistributable SOFTWARE that such Customers receive as part of the Licensee Application, solely in binary form, provided, however, that Licensee shall require in their standard software license agreements with Customers that all such redistributions must be made pursuant to a license agreement that has the effect of protecting the SOFTWARE and the rights of NVIDIA whose terms and conditions are at least as restrictive as those in the applicable Licensee software license agreement covering the Licensee Application. For avoidance of doubt, termination of this Agreement shall not affect rights previously granted by Licensee to its Customers under this Agreement to the extent validly granted to Customers under Section 1.2.1.1. 1.2.1.4. Linux/FreeBSD Exception Notwithstanding the foregoing terms of Section 1.2.1.2, Section 1.2.1.1 and Section 1.2.1.3, SOFTWARE designed exclusively for use on the Linux or FreeBSD operating systems, or other operating systems derived from the source code to these operating systems, may be copied and redistributed, provided that the binary files thereof are not modified in any way (except for unzipping of compressed files). 1.2.1.5. Additional Licensing Obligations Licensee acknowledges and agrees that its use of certain third party components included with the SOFTWARE may be subject to additional licensing terms and conditions as set forth or referenced in Attachment B of this Agreement. 1.2.1.6. Limitations No Reverse Engineering If the SOFTWARE is provided in binary form, Licensee may not reverse engineer, decompile, or disassemble the SOFTWARE, nor attempt in any other manner to obtain the source code. No Separation of Components The SOFTWARE is licensed as a single product. Except as authorized in this Agreement, Software component parts of the Software may not be separated for use on more than one computer, nor otherwise used separately from the other parts. No Rental Licensee may not rent or lease the SOFTWARE to someone else. www.nvidia.com End User License Agreements (EULA) DR-06739-001_v01_v7.5 | 3 �NVIDIA CUDA Toolkit License Agreement No Modifications If the SOFTWARE is provided in source form, Licensee may not modify or create derivative works of the SOFTWARE. 1.3. Term and Termination This Agreement will continue in effect for two (2) years ("Initial Term") after Your initial download and use of the SOFTWARE, subject to the exclusive right of NVIDIA to terminate as provided herein. The term of this Agreement will automatically renew for successive one (1) year renewal terms after the Initial Term, unless either party provides to the other party at least three (3) months prior written notice of termination before the end of the applicable renewal term. This Agreement will automatically terminate if Licensee fails to comply with any of the terms and conditions hereof. In such event, Licensee must destroy all copies of the SOFTWARE and all of its component parts. Defensive Suspension If Licensee commences or participates in any legal proceeding against NVIDIA, then NVIDIA may, in its sole discretion, suspend or terminate all license grants and any other rights provided under this Agreement during the pendency of such legal proceedings. 1.4. Copyright All rights, title, interest and copyrights in and to the SOFTWARE (including but not limited to all images, photographs, animations, video, audio, music, text, and other information incorporated into the SOFTWARE), the accompanying printed materials, and any copies of the SOFTWARE, are owned by NVIDIA, or its suppliers. The SOFTWARE is protected by copyright laws and international treaty provisions. Accordingly, Licensee is required to treat the SOFTWARE like any other copyrighted material, except as otherwise allowed pursuant to this Agreement and that it may make one copy of the SOFTWARE solely for backup or archive purposes. RESTRICTED RIGHTS NOTICE. Software has been developed entirely at private expense and is commercial computer software provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the U.S. Government or a U.S. Government subcontractor is subject to the restrictions set forth in the Agreement under which Software was obtained pursuant to DFARS 227.7202-3(a) or as set forth in subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights clause at FAR 52.227-19, as applicable. Contractor/manufacturer is NVIDIA, 2701 San Tomas Expressway, Santa Clara, CA 95050. www.nvidia.com End User License Agreements (EULA) DR-06739-001_v01_v7.5 | 4 �NVIDIA CUDA Toolkit License Agreement 1.5. Applicable Law This Agreement shall be deemed to have been made in, and shall be construed pursuant to, the laws of the State of Delaware. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed. The courts of Santa Clara County, California shall have exclusive jurisdiction and venue over any dispute arising out of or relating to this Agreement. 1.6. Disclaimer of Warranties and Limitations on Liability 1.6.1. No Warranties TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED "AS IS" AND NVIDIA AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. 1.6.2. No Liability for Consequential Damages TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL NVIDIA OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF NVIDIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 1.6.3. No Support NVIDIA has no obligation to support or to provide any updates of the Software. 1.7. Miscellaneous 1.7.1. Feedback Notwithstanding any Non-Disclosure Agreement executed by and between the parties, the parties agree that in the event Licensee or NVIDIA provides Feedback (as defined below) to the other party on how to design, implement, or improve the SOFTWARE or www.nvidia.com End User License Agreements (EULA) DR-06739-001_v01_v7.5 | 5 �NVIDIA CUDA Toolkit License Agreement Licensee's product(s) for use with the SOFTWARE, the following terms and conditions apply the Feedback: 1.7.1.1. Exchange of Feedback Both parties agree that neither party has an obligation to give the other party any suggestions, comments or other feedback, whether verbally or in written or source code form, relating to (i) the SOFTWARE; (ii) Licensee's products; (iii) Licensee's use of the SOFTWARE; or (iv) optimization/interoperability of Licensee's product with the SOFTWARE (collectively defined as "Feedback"). In the event either party provides Feedback to the other party, the party receiving the Feedback may use any Feedback that the other party voluntarily provides to improve the (i) SOFTWARE or other related NVIDIA technologies, respectively for the benefit of NVIDIA; or (ii) Licensee's product or other related Licensee technologies, respectively for the benefit of Licensee. Accordingly, if either party provides Feedback to the other party, both parties agree that the other party and its respective licensees may freely use, reproduce, license, distribute, and otherwise commercialize the Feedback in the (i) SOFTWARE or other related technologies; or (ii) Licensee's products or other related technologies, respectively, without the payment of any royalties or fees. 1.7.1.2. Residual Rights Licensee agrees that NVIDIA shall be free to use any general knowledge, skills and experience, (including, but not limited to, ideas, concepts, know-how, or techniques) ("Residuals"), contained in the (i) Feedback provided by Licensee to NVIDIA; (ii) Licensee's products shared or disclosed to NVIDIA in connection with the Feedback; or (c) Licensee's confidential information voluntarily provided to NVIDIA in connection with the Feedback, which are retained in the memories of NVIDIA's employees, agents, or contractors who have had access to such Residuals. Subject to the terms and conditions of this Agreement, NVIDIA's employees, agents, or contractors shall not be prevented from using Residuals as part of such employee's, agent's or contractor's general knowledge, skills, experience, talent, and/or expertise. NVIDIA shall not have any obligation to limit or restrict the assignment of such employees, agents or contractors or to pay royalties for any work resulting from the use of Residuals. 1.7.1.3. Disclaimer of Warranty FEEDBACK FROM EITHER PARTY IS PROVIDED FOR THE OTHER PARTY'S USE "AS IS" AND BOTH PARTIES DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. BOTH PARTIES DO NOT REPRESENT OR WARRANT THAT THE FEEDBACK WILL MEET THE OTHER PARTY'S REQUIREMENTS OR THAT THE OPERATION OR IMPLEMENTATION OF THE FEEDBACK WILL BE UNINTERRUPTED OR ERROR-FREE. www.nvidia.com End User License Agreements (EULA) DR-06739-001_v01_v7.5 | 6 �NVIDIA CUDA Toolkit License Agreement 1.7.1.4. No Liability for Consequential Damages TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE FEEDBACK, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 1.7.2. Freedom of Action Licensee agrees that this Agreement is nonexclusive and NVIDIA may currently or in the future be developing software, other technology or confidential information internally, or receiving confidential information from other parties that maybe similar to the Feedback and Licensee's confidential information (as provided in Section 1.7.1.2 above), which may be provided to NVIDIA in connection with Feedback by Licensee. Accordingly, Licensee agrees that nothing in this Agreement will be construed as a representation or inference that NVIDIA will not develop, design, manufacture, acquire, market products, or have products developed, designed, manufactured, acquired, or marketed for NVIDIA, that compete with the Licensee's products or confidential information. 1.7.3. No Implied Licenses Under no circumstances should anything in this Agreement be construed as NVIDIA granting by implication, estoppel or otherwise, (i) a license to any NVIDIA product or technology other than the SOFTWARE; or (ii) any additional license rights for the SOFTWARE other than the licenses expressly granted in this Agreement. If any provision of this Agreement is inconsistent with, or cannot be fully enforced under, the law, such provision will be construed as limited to the extent necessary to be consistent with and fully enforceable under the law. This Agreement is the final, complete and exclusive agreement between the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous understandings and agreements relating to such subject matter, whether oral or written. This Agreement may only be modified in writing signed by an authorized officer of NVIDIA. Licensee agrees that it will not ship, transfer or export the SOFTWARE into any country, or use the SOFTWARE in any manner, prohibited by the United States Bureau of Industry and Security or any export laws, restrictions or regulations. www.nvidia.com End User License Agreements (EULA) DR-06739-001_v01_v7.5 | 7 �NVIDIA CUDA Toolkit License Agreement The parties agree that the following sections of the Agreement will survive the termination of the License: Section 1.2.1.4, Section 1.4, Section 1.5, Section 1.6, and Section 1.7. 1.8. Attachment A Redistributable Software In connection with Section 1.2.1.1 of this Agreement, the following files may be redistributed with software applications developed by Licensee, including certain variations of these files that have version number or architecture specific information www.nvidia.com End User License Agreements (EULA) DR-06739-001_v01_v7.5 | 8 �NVIDIA CUDA Toolkit License Agreement embedded in the file name - as an example only, for release version 6.0 of the 64-bit Windows software, the file cudart64_60.dll is redistributable. Component Windows Mac OSX Linux Android : : : : : CUDA Runtime cudart.dll, cudart_static.lib, cudadevrt.lib libcudart.dylib, libcudart_static.a, libcudadevrt.a libcudart.so, libcudart_static.a, libcudadevrt.a libcudart.so, libcudart_static.a, libcudadevrt.a Component : CUDA FFT Library Windows : cufft.dll, cufftw.dll Mac OSX : libcufft.dylib, libcufft_static.a, libcufftw.dylib, libcufftw_static.a Linux : libcufft.so, libcufft_static.a, libcufftw.so, libcufftw_static.a Android : libcufft.so, libcufft_static.a, libcufftw.so, libcufftw_static.a Component Windows Mac OSX Linux Android : : : : : CUDA BLAS Library cublas.dll, cublas_device.lib libcublas.dylib, libcublas_static.a, libcublas_device.a libcublas.so, libcublas_static.a, libcublas_device.a libcublas.so, libcublas_static.a, libcublas_device.a Component Windows Mac OSX Linux : : : : NVIDIA "Drop-in" BLAS Library nvblas.dll libnvblas.dylib libnvblas.so Component Windows Mac OSX Linux Android : : : : : CUDA Sparse Matrix Library cusparse.dll libcusparse.dylib, libcusparse_static.a libcusparse.so, libcusparse_static.a libcusparse.so, libcusparse_static.a Component Windows Mac OSX Linux Android : : : : : CUDA Linear Solver Library cusolver.dll libcusolver.dylib, libcusolver_static.a libcusolver.so, libcusolver_static.a libcusolver.so, libcusolver_static.a Component Windows Mac OSX Linux Android : : : : : CUDA Random Number Generation Library curand.dll libcurand.dylib, libcurand_static.a libcurand.so, libcurand_static.a libcurand.so, libcurand_static.a Component : NVIDIA Performance Primitives Library Windows : nppc.dll, nppi.dll, npps.dll Mac OSX : libnppc.dylib, libnppi.dylib, libnpps.dylib, libnppc_static.a, libnpps_static.a, libnppi_static.a Linux : libnppc.so, libnppi.so, libnpps.so, libnppc_static.a, libnpps_static.a, libnppi_static.a Android : libnppc.so, libnppi.so, libnpps.so, libnppc_static.a, libnpps_static.a, libnppi_static.a Component : Internal common library required for statically linking to cuBLAS, cuSPARSE, cuFFT, cuRAND and NPP Mac OSX : libculibos.a Linux : libculibos.a Component Windows Mac OSX Linux : : : : NVIDIA Runtime Compilation Library nvrtc.dll, nvrtc-builtins.dll libnvrtc.dylib, libnvrtc-builtins.dylib libnvrtc.so, libnvrtc-builtins.so Component Windows Mac OSX Linux : : : : NVIDIA Optimizing Compiler Library nvvm.dll libnvvm.dylib libnvvm.so Component : NVIDIA Common Device Math Functions Library www.nvidia.com Windows : libdevice.compute_20.bc, libdevice.compute_30.bc, End User License Agreements (EULA) DR-06739-001_v01_v7.5 | 9 libdevice.compute_35.bc Mac OSX : libdevice.compute_20.bc, libdevice.compute_30.bc, libdevice.compute_35.bc �NVIDIA CUDA Toolkit License Agreement 1.9. Attachment B Additional Licensing Obligations The following third party components included in the SOFTWARE are licensed to Licensee pursuant to the following terms and conditions: 1. Licensee's use of the GDB third party component is subject to the terms and conditions of GNU GPL v3: This product includes copyrighted third-party software licensed under the terms of the GNU General Public License v3 ("GPL v3"). All third-party software packages are copyright by their respective authors. GPL v3 terms and conditions are hereby incorporated into the Agreement by this reference: http://www.gnu.org/licenses/gpl.txt Consistent with these licensing requirements, the software listed below is provided under the terms of the specified open source software licenses. To obtain source code for software provided under licenses that require redistribution of source code, including the GNU General Public License (GPL) and GNU Lesser General Public License (LGPL), contact [email protected]. This offer is valid for a period of three (3) years from the date of the distribution of this product by NVIDIA CORPORATION. Component CUDA-GDB License GPL v3 2. Licensee represents and warrants that any and all third party licensing and/or royalty payment obligations in connection with Licensee's use of the H.264 video codecs are solely the responsibility of Licensee. 3. Licensee's use of the Thrust library is subject to the terms and conditions of the Apache License Version 2.0. All third-party software packages are copyright by their respective authors. Apache License Version 2.0 terms and conditions are hereby incorporated into the Agreement by this reference. http://www.apache.org/licenses/ LICENSE-2.0.html www.nvidia.com End User License Agreements (EULA) DR-06739-001_v01_v7.5 | 10 �NVIDIA CUDA Toolkit License Agreement In addition, Licensee acknowledges the following notice: Thrust includes source code from the Boost Iterator, Tuple, System, and Random Number libraries. Boost Software License - Version 1.0 - August 17th, 2003 . . . . Permission is hereby granted, free of charge, to any person or organization obtaining a copy of the software and accompanying documentation covered by this license (the "Software") to use, reproduce, display, distribute, execute, and transmit the Software, and to prepare derivative works of the Software, and to permit third-parties to whom the Software is furnished to do so, all subject to the following: The copyright notices in the Software and this entire statement, including the above license grant, this restriction and the following disclaimer, must be included in all copies of the Software, in whole or in part, and all derivative works of the Software, unless such copies or derivative works are solely in the form of machine-executable object code generated by a source language processor. THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. IN NO EVENT SHALL THE COPYRIGHT HOLDERS OR ANYONE DISTRIBUTING THE SOFTWARE BE LIABLE FOR ANY DAMAGES OR OTHER LIABILITY, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE. www.nvidia.com End User License Agreements (EULA) DR-06739-001_v01_v7.5 | 11 �NVIDIA CUDA Toolkit License Agreement 4. Licensee's use of the LLVM third party component is subject to the following terms and conditions: ====================================================== LLVM Release License ====================================================== University of Illinois/NCSA Open Source License Copyright (c) 2003-2010 University of Illinois at Urbana-Champaign. All rights reserved. Developed by: LLVM Team University of Illinois at Urbana-Champaign http://llvm.org Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the "Software"), to deal with the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions: * Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimers. * Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimers in the documentation and/or other materials provided with the distribution. * Neither the names of the LLVM Team, University of Illinois at UrbanaChampaign, nor the names of its contributors may be used to endorse or promote products derived from this Software without specific prior written permission. THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE CONTRIBUTORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS WITH THE SOFTWARE. www.nvidia.com End User License Agreements (EULA) DR-06739-001_v01_v7.5 | 12 �NVIDIA CUDA Toolkit License Agreement 5. Licensee's use of the PCRE third party component is subject to the following terms and conditions: -----------PCRE LICENCE -----------PCRE is a library of functions to support regular expressions whose syntax and semantics are as close as possible to those of the Perl 5 language. Release 8 of PCRE is distributed under the terms of the "BSD" licence, as specified below. The documentation for PCRE, supplied in the "doc" directory, is distributed under the same terms as the software itself. The basic library functions are written in C and are freestanding. Also included in the distribution is a set of C++ wrapper functions, and a justin-time compiler that can be used to optimize pattern matching. These are both optional features that can be omitted when the library is built. THE BASIC LIBRARY FUNCTIONS --------------------------Written by: Philip Hazel Email local part: ph10 Email domain: cam.ac.uk University of Cambridge Computing Service, Cambridge, England. Copyright (c) 1997-2012 University of Cambridge All rights reserved. PCRE JUST-IN-TIME COMPILATION SUPPORT ------------------------------------Written by: Zoltan Herczeg Email local part: hzmester Emain domain: freemail.hu Copyright(c) 2010-2012 Zoltan Herczeg All rights reserved. STACK-LESS JUST-IN-TIME COMPILER -------------------------------Written by: Zoltan Herczeg Email local part: hzmester Emain domain: freemail.hu Copyright(c) 2009-2012 Zoltan Herczeg All rights reserved. THE C++ WRAPPER FUNCTIONS ------------------------Contributed by: Google Inc. Copyright (c) 2007-2012, Google Inc. All rights reserved. THE "BSD" LICENCE ----------------Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met: * Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer. * Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution. * Neither the name of the University of Cambridge nor the name of Google Inc. nor the names of their contributors may be used to endorse or promote products derived from this software without specific prior written permission. THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT OWNER OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF www.nvidia.com SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS End User License Agreements (EULA) CAUSED AND ON ANY THEORY OF LIABILITY, DR-06739-001_v01_v7.5 | 13 INTERRUPTION) HOWEVER WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE �NVIDIA CUDA Toolkit License Agreement 6. Some of the cuBLAS library routines were written by or derived from code written by Vasily Volkov and are subject to the Modified Berkeley Software Distribution License as follows: Copyright (c) 2007-2009, Regents of the University of California All rights reserved. Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met: * Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer. * Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution. * Neither the name of the University of California, Berkeley nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission. THIS SOFTWARE IS PROVIDED BY THE AUTHOR "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. 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Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met: * Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer. * Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer listed in this license in the documentation and/or other materials provided with the distribution. * Neither the name of the copyright holders nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission. THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. 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Abdelfattah, David Keyes, and Hatem Ltaief, and are subject to the Apache License, Version 2.0, as follows: -- (C) Copyright 2013 King Abdullah University of Science and Technology Authors: Ahmad Abdelfattah ([email protected]) David Keyes ([email protected]) Hatem Ltaief ([email protected]) Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met: * Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer. * Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution. * Neither the name of the King Abdullah University of Science and Technology nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission. 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Some of the cuSPARSE library routines were written by or derived from code written by Li-Wen Chang and are subject to the NCSA Open Source License as follows: Copyright (c) 2012, University of Illinois. All rights reserved. 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Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met: * Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer. * Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution. * Neither the name of the Hiroshima University nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission. THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. 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Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met: * Redistributions of source code must retain the above copyright notice, this list of conditions, and the following disclaimer. * Redistributions in binary form must reproduce the above copyright notice, this list of conditions, and the following disclaimer in the documentation and/or other materials provided with the distribution. * Neither the name of D. E. Shaw Research nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission. THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. 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BSD 2-Clause License (http://www.opensource.org/licenses/bsd-license.php) Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met: * Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer. * Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution. THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. 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See the License for the specific language governing rights and limitations under the License. www.nvidia.com End User License Agreements (EULA) DR-06739-001_v01_v7.5 | 27 �Chapter 3. NVIDIA DRIVER LICENSE FOR CUSTOMER USE OF NVIDIA SOFTWARE ON WINDOWS IMPORTANT NOTICE -- READ CAREFULLY: This License For Customer Use of NVIDIA Software ("LICENSE") is the agreement which governs use of the software of NVIDIA Corporation and its subsidiaries ("NVIDIA") downloadable herefrom, including GeForce Experience, computer software (including drivers downloaded in connection with GeForce Experience) and associated printed materials ("SOFTWARE"). By downloading, installing, copying, or otherwise using the SOFTWARE, you agree to be bound by the terms of this LICENSE. If you do not agree to the terms of this LICENSE, do not download the SOFTWARE. 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"Enterprise" shall mean individual use by Customer or any legal entity (such as a corporation or university) and the subsidiaries it owns by more than fifty percent (50%). 3.2.1.2. Limitations No Reverse Engineering Customer may not reverse engineer, decompile, or disassemble the SOFTWARE, nor attempt in any other manner to obtain the source code. You may not remove any copyright notices from the SOFTWARE. The SOFTWARE is licensed as a single product. Its component parts may not be separated for use on more than one computer, nor otherwise used separately from the other parts. No Rental Customer may not rent or lease the SOFTWARE to someone else. 3.2.2. Additional Information 7-Zip. The SOFTWARE includes the 7-Zip software program ("7-Zip"). Use of the source code for 7-Zip is subject to the terms and conditions at www.7-zip.org. 3.3. Consent to Collection and Use of Information Customer hereby acknowledges that the SOFTWARE accesses and collects nonpersonally identifiable information about Customer and CUSTOMER SYSTEM as well as configures CUSTOMER SYSTEM in order to (a) properly optimize such system for use with the SOFTWARE, (b) deliver content through the SOFTWARE, and (c) improve NVIDIA products and services. Information collected by the SOFTWARE includes, www.nvidia.com End User License Agreements (EULA) DR-06739-001_v01_v7.5 | 29 �NVIDIA Driver License for Customer Use of NVIDIA Software on Windows but is not limited to, CUSTOMER SYSTEM'S (a) hardware configuration and ID, (b) operating system and driver configuration, (c) installed games and applications, (d) games and applications settings, performance, and usage data, and (e) usage metrics of the SOFTWARE. To the extent that Customer uses the SOFTWARE, Customer hereby consents to all of the foregoing, and represents and warrants that Customer has the right to grant such consent. In addition, Customer agrees that Customer is solely responsible for maintaining appropriate data backups and system restore points for CUSTOMER SYSTEM, and that NVIDIA will have no responsibility for any damage or loss to CUSTOMER SYSTEM (including loss of data or access) arising from or relating to (a) any changes to the configuration, application settings, environment variables, registry, drivers, BIOS, or other attributes of CUSTOMER SYSTEM (or any part of CUSTOMER SYSTEM) initiated through the SOFTWARE; or (b) installation of any SOFTWARE or third party software patches initiated through the SOFTWARE. The SOFTWARE may contain links to websites and services. We encourage you to review the privacy statements on those sites and services that you choose to visit so that you can understand how they may collect, use and share your personal information. NVIDIA is not responsible for the privacy statements or practices of sites and services controlled by other companies or organizations. Customer and CUSTOMER SYSTEM information collection rules can be configured on the "Preferences" tab of GeForce Experience. For more information on NVIDIA's collection and use of information policies for this SOFTWARE, visit http:// www.geforce.com/drivers/geforce-experience/faq. Customer represents and warrants that the non-personally identifiable information that Customer has furnished in connection with its registration for the SOFTWARE is complete and accurate. Customer also acknowledges that from time to time, NVIDIA may collect, use, and disclose such information about Customer and/or Customer's system in connection with the SOFTWARE in accordance with NVIDIA's privacy policy, available at URL http://www.nvidia.com/object/privacy_policy.html. 3.4. Termination This LICENSE will automatically terminate if Customer fails to comply with any of the terms and conditions hereof. In such event, Customer must destroy all copies of the SOFTWARE and all of its component parts. Defensive Suspension. If Customer commences or participates in any legal proceeding against NVIDIA, then NVIDIA may, in its sole discretion, suspend or terminate all license grants and any other rights provided under this LICENSE during the pendency of such legal proceedings. www.nvidia.com End User License Agreements (EULA) DR-06739-001_v01_v7.5 | 30 �NVIDIA Driver License for Customer Use of NVIDIA Software on Windows 3.5. Copyright All title and copyrights in and to the SOFTWARE (including but not limited to all images, photographs, animations, video, audio, music, text, and other information incorporated into the SOFTWARE), the accompanying printed materials, and any copies of the SOFTWARE, are owned by NVIDIA, or its licensors or suppliers. The SOFTWARE is protected by copyright laws and international treaty provisions. Accordingly, Customer is required to treat the SOFTWARE like any other copyrighted material, except as otherwise allowed pursuant to this LICENSE and that it may make one copy of the SOFTWARE solely for backup or archive purposes. The algorithms, structure, organization and source code of the Software are the valuable trade secrets and confidential information of NVIDIA. Except as otherwise expressly provided herein, neither this LICENSE nor NVIDIA grants Customer any express or implied right under any NVIDIA patents, copyrights, trademarks, or other intellectual property rights in the SOFTWARE, and all rights, title and interest in and to the SOFTWARE not expressly granted are reserved by NVIDIA or its licensors or suppliers. 3.6. Applicable Law This LICENSE shall be deemed to have been made in, and shall be construed pursuant to, the laws of the State of Delaware. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed. The state and/or federal courts residing in Santa Clara County, California shall have exclusive jurisdiction over any dispute or claim arising out of this Agreement. Customer may not export the SOFTWARE in violation of applicable export laws and regulations. 3.7. Disclaimer of Warranties and Limitations on Liability 3.7.1. No Warranties THE SOFTWARE IS PROVIDED "AS IS" AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NVIDIA AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. Without limiting the foregoing, you are solely responsible for determining and verifying that the SOFTWARE that you obtain and install is the appropriate version for your model of graphics controller board, operating system, and computer hardware. www.nvidia.com End User License Agreements (EULA) DR-06739-001_v01_v7.5 | 31 �NVIDIA Driver License for Customer Use of NVIDIA Software on Windows 3.7.2. No Liability for Consequential Damages TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL NVIDIA OR ITS SUPPLIERS BE LIABLE FOR ANY DIRECT, SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF NVIDIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS PROHIBIT EXCLUSION OR LIMITATION OF LIABILITY FOR IMPLIED WARRANTIES OR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. NOTWITHSTANDING THE FOREGOING, NVIDIA'S AGGREGATE LIABILITY ARISING OUT OF THIS LICENSE AGREEMENT SHALL NOT EXCEED ONE THOUSAND UNITED STATES DOLLARS (USD$1000). 3.8. Miscellaneous If any provision of this LICENSE is inconsistent with, or cannot be fully enforced under, the law, such provision will be construed as limited to the extent necessary to be consistent with and fully enforceable under the law. This LICENSE is the final, complete and exclusive agreement between the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous understandings and agreements relating to such subject matter, whether oral or written. This LICENSE may only be modified in writing signed by an authorized officer of NVIDIA. Customer agrees that it will not ship, transfer or export the SOFTWARE into any country, or use the SOFTWARE in any manner, prohibited by the United States Bureau of Industry and Security or any export laws, restrictions or regulations. www.nvidia.com End User License Agreements (EULA) DR-06739-001_v01_v7.5 | 32 �Chapter 4. NVIDIA DRIVER LICENSE FOR CUSTOMER USE OF NVIDIA SOFTWARE ON LINUX AND MAC OSX IMPORTANT NOTICE -- READ CAREFULLY: This License For Customer Use of NVIDIA Software ("LICENSE") is the agreement which governs use of the software of NVIDIA Corporation and its subsidiaries ("NVIDIA") downloadable herefrom, including computer software and associated printed materials ("SOFTWARE"). By downloading, installing, copying, or otherwise using the SOFTWARE, you agree to be bound by the terms of this LICENSE. If you do not agree to the terms of this LICENSE, do not download the SOFTWARE. RECITALS: Use of NVIDIA's products requires three elements: the SOFTWARE, the hardware on a graphics controller board, and a personal computer. The SOFTWARE is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The SOFTWARE is not sold, and instead is only licensed for use, strictly in accordance with this document. The hardware is protected by various patents, and is sold, but this agreement does not cover that sale, since it may not necessarily be sold as a package with the SOFTWARE. This agreement sets forth the terms and conditions of the SOFTWARE LICENSE only. 4.1. DEFINITIONS 4.1.1. Customer Customer means the entity or individual that downloads the SOFTWARE. www.nvidia.com End User License Agreements (EULA) DR-06739-001_v01_v7.5 | 33 �NVIDIA Driver License for Customer Use of NVIDIA Software on Linux and Mac OSX 4.2. GRANT OF LICENSE 4.2.1. Rights and Limitations of Grant NVIDIA hereby grants Customer the following non-exclusive, non-transferable right to use the SOFTWARE, with the following limitations: 4.2.1.1. Rights Customer may install and use multiple copies of the SOFTWARE on a shared computer or concurrently on different computers, and make multiple back-up copies of the SOFTWARE, solely for Customer's use within Customer's Enterprise. "Enterprise" shall mean individual use by Customer or any legal entity (such as a corporation or university) and the subsidiaries it owns by more than fifty percent (50%). 4.2.1.2. Linux/FreeBSD Exception Notwithstanding the foregoing terms of Section 4.2.1.1, SOFTWARE designed exclusively for use on the Linux or FreeBSD operating systems, or other operating systems derived from the source code to these operating systems, may be copied and redistributed, provided that the binary files thereof are not modified in any way (except for unzipping of compressed files). 4.2.1.3. Limitations No Reverse Engineering Customer may not reverse engineer, decompile, or disassemble the SOFTWARE, nor attempt in any other manner to obtain the source code. No Separation of Components The SOFTWARE is licensed as a single product. Its component parts may not be separated for use on more than one computer, nor otherwise used separately from the other parts. No Rental Customer may not rent or lease the SOFTWARE to someone else. www.nvidia.com End User License Agreements (EULA) DR-06739-001_v01_v7.5 | 34 �NVIDIA Driver License for Customer Use of NVIDIA Software on Linux and Mac OSX 4.3. TERMINATION This LICENSE will automatically terminate if Customer fails to comply with any of the terms and conditions hereof. In such event, Customer must destroy all copies of the SOFTWARE and all of its component parts. Defensive Suspension. If Customer commences or participates in any legal proceeding against NVIDIA, then NVIDIA may, in its sole discretion, suspend or terminate all license grants and any other rights provided under this LICENSE during the pendency of such legal proceedings. 4.4. COPYRIGHT All title and copyrights in and to the SOFTWARE (including but not limited to all images, photographs, animations, video, audio, music, text, and other information incorporated into the SOFTWARE), the accompanying printed materials, and any copies of the SOFTWARE, are owned by NVIDIA, or its suppliers. The SOFTWARE is protected by copyright laws and international treaty provisions. Accordingly, Customer is required to treat the SOFTWARE like any other copyrighted material, except as otherwise allowed pursuant to this LICENSE and that it may make one copy of the SOFTWARE solely for backup or archive purposes. 4.5. APPLICABLE LAW This agreement shall be deemed to have been made in, and shall be construed pursuant to, the laws of the State of California. 4.6. DISCLAIMER OF WARRANTIES AND LIMITATION ON LIABILITY 4.6.1. No Warranties TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED "AS IS" AND NVIDIA AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. www.nvidia.com End User License Agreements (EULA) DR-06739-001_v01_v7.5 | 35 �NVIDIA Driver License for Customer Use of NVIDIA Software on Linux and Mac OSX 4.6.2. No Liability for Consequential Damages TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL NVIDIA OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF NVIDIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 4.7. MISCELLANEOUS The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed. If any provision of this LICENSE is inconsistent with, or cannot be fully enforced under, the law, such provision will be construed as limited to the extent necessary to be consistent with and fully enforceable under the law. This agreement is the final, complete and exclusive agreement between the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous understandings and agreements relating to such subject matter, whether oral or written. Customer agrees that it will not ship, transfer or export the SOFTWARE into any country, or use the SOFTWARE in any manner, prohibited by the United States Bureau of Export Administration or any export laws, restrictions or regulations. This LICENSE may only be modified in writing signed by an authorized officer of NVIDIA. www.nvidia.com End User License Agreements (EULA) DR-06739-001_v01_v7.5 | 36 �Chapter 5. NVIDIA NSIGHT DEVELOPMENT PLATFORM, VISUAL STUDIO EDITION SOFTWARE LICENSE AGREEMENT (WINDOWS ONLY) IMPORTANT - READ BEFORE COPYING, INSTALLING OR USING Do not use or load this software and any associated materials provided by NVIDIA on its extranet (collectively the "Software") until You have carefully read the following terms and conditions. By loading or using the Software, You agree to fully comply with the terms and conditions of this Software License Agreement ("Agreement") by and between NVIDIA Corporation, a Delaware corporation with its principal place of business at 2701 San Tomas Expressway, Santa Clara, California 95050 U.S.A. ("NVIDIA"), and You. If You do not wish to so agree, do not install or use the Software. For the purposes of this Agreement: "Licensee," "You" and/or "Your" shall mean, collectively and individually, Original Equipment Manufacturers, Independent Hardware Vendors, Independent Software Vendors, and End-Users of the Software pursuant to the terms and conditions of this Agreement. "Intellectual Property Rights" shall mean all proprietary rights, including all patents, trademarks, copyrights, know-how, trade secrets, mask works, including all applications and registrations thereto, and any other similar protected rights in any country. 5.1. Grant of License NVIDIA agrees to provide the Software and any associated materials pursuant to this Agreement. Subject to the terms of this Agreement, NVIDIA grants to You a nonexclusive, transferable, worldwide, revocable, limited, royalty-free, fully paid-up license under NVIDIA's copyrights to install, deploy, use, have used execute, reproduce, www.nvidia.com End User License Agreements (EULA) DR-06739-001_v01_v7.5 | 37 �NVIDIA Nsight Development Platform, Visual Studio Edition Software License Agreement (Windows only) display, perform, run, the object code of the Software, to create Your products to interoperate with NVIDIA hardware and software. Unless otherwise authorized in the Agreement, You shall not otherwise assign, sublicense, lease, or in any other way transfer or disclose Software to any third party. Unless otherwise authorized in the Agreement, You shall not reverse- compile, disassemble, reverse-engineer, or in any manner attempt to derive the source code of the Software from the object code portions of the Software. Except as expressly stated in this Agreement, no license or right is granted to You directly or by implication, inducement, estoppels or otherwise. NVIDIA shall have the right to inspect or have an independent auditor inspect Your relevant records to verify Your compliance with the terms and conditions of this Agreement. 5.2. Confidentiality If applicable, any exchange of Confidential Information (as defined in the NDA) shall be made pursuant to the terms and conditions of a separately signed Non-Disclosure Agreement ("NDA") by and between NVIDIA and You. For the sake of clarity, You agree that (a) the Software; and (b) Your use of the Software/participation in the Software's pre-production release is considered Confidential Information of NVIDIA. If You wish to have a third party consultant or subcontractor ("Contractor") perform work on Your behalf which involves access to or use of Software, You shall obtain a written confidentiality agreement from the Contractor which contains terms and obligations with respect to access to or use of Software no less restrictive than those set forth in this Agreement and excluding any distribution or sublicense rights, and use for any other purpose than permitted in this Agreement. Otherwise, You shall not disclose the terms or existence of this Agreement or use NVIDIA's name in any publications, advertisements, or other announcements without NVIDIA's prior written consent. Unless otherwise provided in this Agreement, You do not have any rights to use any NVIDIA trademarks or logos. 5.3. Ownership of Software and Intellectual Property Rights All rights, title and interest to all copies of the Software remain with NVIDIA, subsidiaries, licensors, or its suppliers. The Software is copyrighted and protected by the laws of the United States and other countries, and international treaty provisions. You may not remove any copyright notices from the Software. NVIDIA may make changes to the Software, or to items referenced therein, at any time and without notice, but is not obligated to support or update the Software. Except as otherwise expressly provided, www.nvidia.com End User License Agreements (EULA) DR-06739-001_v01_v7.5 | 38 �NVIDIA Nsight Development Platform, Visual Studio Edition Software License Agreement (Windows only) NVIDIA grants no express or implied right under any NVIDIA patents, copyrights, trademarks, or other intellectual property rights. You have no obligation to give NVIDIA any suggestions, comments or other feedback ("Feedback") relating to the Software. However, NVIDIA may use and include any Feedback that You voluntarily provide to improve the Software or other related NVIDIA technologies. Accordingly, if You provide Feedback, You agree NVIDIA and its licensees may freely use, reproduce, license, distribute, and otherwise commercialize the Feedback in the Software or other related technologies without the payment of any royalties or fees. You also agree that the Software may collect application specific session data and target device information that shall be sent to NVIDIA, solely for use by NVIDIA in improving the Software. 5.4. No Warranties THE SOFTWARE IS PROVIDED "AS IS" WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND, INCLUDING WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. NVIDIA does not warrant or assume responsibility for the accuracy or completeness of any information, text, graphics, links or other items contained within the Software. NVIDIA does not represent that errors or other defects will be identified or corrected. 5.5. Limitation of Liability EXCEPT WITH RESPECT TO THE MISUSE OF THE OTHER PARTY'S INTELLECTUAL PROPERTY OR DISCLOSURE OF THE OTHER PARTY'S CONFIDENTIAL INFORMATION IN BREACH OF THIS AGREEMENT, IN NO EVENT SHALL NVIDIA, SUBSIDIARIES, LICENSORS, OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INDIRECT, LOST PROFITS, CONSEQUENTIAL, BUSINESS INTERRUPTION OR LOST INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF NVIDIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS PROHIBIT EXCLUSION OR LIMITATION OF LIABILITY FOR IMPLIED WARRANTIES OR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. NOTWITHSTANDING THE FOREGOING, NVIDIA'S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED ONE HUNDRED UNITED STATES DOLLARS (USD$100). www.nvidia.com End User License Agreements (EULA) DR-06739-001_v01_v7.5 | 39 �NVIDIA Nsight Development Platform, Visual Studio Edition Software License Agreement (Windows only) 5.6. Term This Agreement and the licenses granted hereunder shall be effective as of the date You install/download the Software ("Effective Date") and continue perpetually, unless terminated earlier in accordance with the "Termination" provision of this Agreement. 5.7. Termination NVIDIA may terminate this Agreement at any time if You violate its terms. Upon termination, You will immediately destroy the Software or return all copies of the Software to NVIDIA, and certify to NVIDIA in writing that such actions have been completed. 5.8. Miscellaneous 5.8.1. Survival Those provisions in this Agreement, which by their nature need to survive the termination or expiration of this Agreement, shall survive termination or expiration of the Agreement, including but not limited to Section 5.2, Section 5.3, Section 5.4, Section 5.5, Section 5.7, and Section 5.8. 5.8.2. Applicable Laws Claims arising under this Agreement shall be governed by the laws of Delaware, excluding its principles of conflict of laws and the United Nations Convention on Contracts for the Sale of Goods. The state and/or federal courts residing in Santa Clara County, California shall have exclusive jurisdiction over any dispute or claim arising out of this Agreement. You may not export the Software in violation of applicable export laws and regulations. 5.8.3. Amendment The Agreement shall not be modified except by a written agreement that names this Agreement and any provision to be modified, is dated subsequent to the Effective Date, and is signed by duly authorized representatives of both parties. 5.8.4. No Waiver No failure or delay on the part of either party in the exercise of any right, power or remedy under this Agreement or under law, or to insist upon or enforce performance by www.nvidia.com End User License Agreements (EULA) DR-06739-001_v01_v7.5 | 40 �NVIDIA Nsight Development Platform, Visual Studio Edition Software License Agreement (Windows only) the other party of any of the provisions of this Agreement or under law, shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or remedy preclude other or further exercise thereof, or the exercise of any other right, power or remedy; rather the provision, right, or remedy shall be and remain in full force and effect. 5.8.5. No Assignment This Agreement and Licensee's rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by Licensee without NVIDIA's prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon Licensee's assignees. 5.8.6. Government Restricted Rights The parties acknowledge that the Software is subject to U.S. export control laws and regulations. The parties agree to comply with all applicable international and national laws that apply to the Software, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. The Software has been developed entirely at private expense and is commercial computer software provided with RESTRICTED RIGHTS. Use, duplication or disclosure of the Software by the U.S. Government or a U.S. Government subcontractor is subject to the restrictions set forth in the Agreement under which the Software was obtained pursuant to DFARS 227.7202-3(a) or as set forth in subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights clause at FAR 52.227-19, as applicable. Contractor/manufacturer is NVIDIA, 2701 San Tomas Expressway, Santa Clara, CA 95050. Use of the Software by the Government constitutes acknowledgment of NVIDIA's proprietary rights therein. 5.8.7. Independent Contractors Licensee's relationship to NVIDIA is that of an independent contractor, and neither party is an agent or partner of the other. Licensee will not have, and will not represent to any third party that it has, any authority to act on behalf of NVIDIA. 5.8.8. Severability If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. This Agreement has been negotiated by the parties and their respective counsel and will be interpreted fairly www.nvidia.com End User License Agreements (EULA) DR-06739-001_v01_v7.5 | 41 �NVIDIA Nsight Development Platform, Visual Studio Edition Software License Agreement (Windows only) in accordance with its terms and without any strict construction in favor of or against either party. www.nvidia.com End User License Agreements (EULA) DR-06739-001_v01_v7.5 | 42 �NVIDIA Nsight Development Platform, Visual Studio Edition Software License Agreement (Windows only) 5.8.9. Entire Agreement This Agreement and NDA constitute the entire agreement between the parties with respect to the subject matter contemplated herein, and merges all prior and contemporaneous communications. MICROSOFT SOFTWARE LICENSE TERMS MICROSOFT DIRECTX END USER RUNTIME These license terms are an agreement between Microsoft Corporation (or based on where you live, one of its affiliates) and you. Please read them. They apply to the software named above, which includes the media on which you received it, if any. The terms also apply to any Microsoft * * * * updates, supplements, Internet-based services, and support services for this software, unless other terms accompany those items. terms apply. BY USING THE SOFTWARE, YOU ACCEPT THESE TERMS. NOT USE THE SOFTWARE. If so, those IF YOU DO NOT ACCEPT THEM, DO If you comply with these license terms, you have the rights below. 1. INSTALLATION AND USE RIGHTS. You may install and use any number of copies of the software on your devices. 2. SCOPE OF LICENSE. The software is licensed, not sold. This agreement only gives you some rights to use the software. Microsoft reserves all other rights. Unless applicable law gives you more rights despite this limitation, you may use the software only as expressly permitted in this agreement. In doing so, you must comply with any technical limitations in the software that only allow you to use it in certain ways. You may not * work around any technical limitations in the software; * reverse engineer, decompile or disassemble the software, except and only to the extent that applicable law expressly permits, despite this limitation; * make more copies of the software than specified in this agreement or allowed by applicable law, despite this limitation; * publish the software for others to copy; * rent, lease or lend the software; * transfer the software or this agreement to any third party; or * use the software for commercial software hosting services. 3. BACKUP COPY. You may make one backup copy of the software. only to reinstall the software. You may use it 4. DOCUMENTATION. Any person that has valid access to your computer or internal network may copy and use the documentation for your internal, reference purposes. 5. EXPORT RESTRICTIONS. The software is subject to United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the software. These laws include restrictions on destinations, end users and end use. For additional information, see www.microsoft.com/exporting. 6. SUPPORT SERVICES. Because this software is "as is," we may not provide support services for it. 7. ENTIRE AGREEMENT. This agreement, and the terms for supplements, updates, Internet-based services and support services that you use, are the entire agreement for the software and support services. 8. APPLICABLE LAW. www.nvidia.com a. United States. you acquired the software in the United DR-06739-001_v01_v7.5 | 43 States, End User License AgreementsIf (EULA) Washington state law governs the interpretation of this agreement and applies to claims for breach of it, regardless of conflict of laws principles. The �NVIDIA Nsight Development Platform, Visual Studio Edition Software License Agreement (Windows only) The Software contains components, as listed below that are licensed to Licensee pursuant to the terms and conditions of their respective End User License Agreements: NVIDIA CUDA Samples NVIDIA CUDA Toolkit NVIDIA DirectX SDK More information, including licensing information, about the NVIDIA CUDA Toolkit and the NVIDIA CUDA Samples can be found at: http://www.nvidia.com/getcuda More information, including licensing information, about the NVIDIA DirectX SDK can be found at: http://developer.nvidia.com/object/sdk_home.html www.nvidia.com End User License Agreements (EULA) DR-06739-001_v01_v7.5 | 44 �Chapter 6. NVIDIA CUDA GENERAL TERMS The Software, on the Windows platform, may collect non-personally identifiable information for the purposes of customizing information delivered to you and improving future versions of the Software. Such information, including IP address and system configuration, will only be collected on an anonymous basis and cannot be linked to any personally identifiable information. Personally identifiable information such as your username or hostname is not collected. www.nvidia.com End User License Agreements (EULA) DR-06739-001_v01_v7.5 | 45 �
nw/106.txt
END USER LICENSE AGREEMENT AND LIMITED WARRANTY END USER LICENSE AGREEMENT AND LIMITED WARRANTY IMPORTANT – PLEASE READ CAREFULLY Thank you for choosing Objectif Lune’s software. This End User License Agreement ("EULA") and Limited Warranty (hereinafter collectively the "License Agreement") constitute a legal agreement between the End User, either as a physical person or as a legal entity ("you"), and Objectif Lune Inc. ("OL") and describes your rights to use the OL software, including any stand-alone application sold as part of the software and all companion products, components, patches, updates and upgrades, and also including any computer software, PostScript® programs, media and all accompanying on-line or printed documentation (collectively the "Software"). The term Software also includes licensed components of other third parties bundled with OL’s proprietary Software. BY SELECTING "I AGREE" OR INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU ACCEPT TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT. IF SELECTING "I DECLINE", YOU MAY NOT USE THE SOFTWARE FOR ANY PURPOSE WHATSOEVER. IF YOU ARE AN EMPLOYEE, RESELLER, SERVICE PROVIDER, CONSULTANT, CONTRACTOR OR OTHER PARTY THAT INSTALLS THE SOFTWARE OR OBTAINS THE SERVICE ON BEHALF OF ANOTHER PERSON OR ENTITY, YOU WILL BE DEEMED TO HAVE ACCEPTED THE TERMS OF THIS CONTRACT ON BEHALF OF THAT PERSON OR ENTITY. COPYRIGHTS. - The Software is owned by OL, its affiliates companies or its suppliers and is protected by the Copyright Act (Canada), any copyright law and international copyright treaties. Therefore, you must treat the Software like any other copyrighted material except that you may make one copy of the Software solely for security backup or archival purposes or if it is essential for the compatibility of the computer program. You may also transfer the Software to a single hard disk provided you keep the original solely for backup or archival purposes and that such copy is not installed or used on any other computer. Any copies that you are permitted to make under this agreement must contain the same copyright and other proprietary notices that appear in the Software. PROPERTY AND INTELLECTUAL PROPERTY RIGHTS. - You acknowledge that the Software in source code, its structure and organization form remain confidential valuable trade secrets of OL or its suppliers and that all OL libraries, source code, byte code executables and any other files (collectively the “files”) remain OL's exclusive property or that of licensed third parties suppliers which are usually more fully identified in the “About” section of the Software Help menu. Therefore you agree not to modify the Software or attempt to reverse engineer, decompile or disassemble or otherwise attempt to discover the source code of the Software. You also agree that you may not distribute any files (particularly but not limited to OL source code and other non-executable files) except those that OL has expressly designated. Nothing in this License Agreement permits you to derive the source code of files provided to you in executable form only, or to reproduce, modify, adapt, translate, use or distribute the source code of such files. This License Agreement does not grant you any intellectual property rights in the Software nor in any third parties’ components licensed to OL and bundled in the Software. INFRIGEMENT. - OL will, at its own expense, defend or settle any claim or suit against you alleging that the Software, when used in accordance with this License Agreement, infringes a patent, copyright, trademark, trade secret or other proprietary right of a third party. OL will also pay all damages and costs that may be assessed against you by final judgment as a result of such an infringement under the following conditions: i) OL shall be notified promptly in writing of any claim or suit; ii) OL shall have sole control of the defense or settlement of any claim or suit; iii) you shall cooperate with OL in a reasonable way to facilitate the settlement or defense of any claim or suit; and iv) the claim or suit does not arise from modifications by you, or from combinations of products provided by OL with products provided by a third party, except as a combination occurring by use of the Software for which they were designed. For more clarity, this indemnity undertaking by OL applies only to the Software content and excludes any infringement of third party’s intellectual property rights resulting from your use or operation of the Software, or from development you made with the Software, including any workflow process developed by you with the Software functionalities. If the Software becomes, or in OL’s opinion is likely to become, the subject of a claim of infringement, OL will, at its option: i) procure you the right to continue using the Software; ii) replace the Software with a non-infringing product substantially complying with the Software specifications; iii) modify the Software so it becomes non-infringing and performs in a substantially similar manner to the original Software. If OL fails to provide any of the preceding options, you will discontinue any infringing use and OL will refund any fees theretofore received by OL hereunder with respect thereto less a reasonable allowance for use. You hereby agrees to keep harmless OL, its officers, directors and employees, representatives and agents of any claim or action from any third party, as well as any damages, fees, expenses including reasonable attorney’s fees, relating to the violation of this section by you, including any third party’s intellectual property infringement resulting from your use, operation or any development made with the Software. Page 1 �END USER LICENSE AGREEMENT AND LIMITED WARRANTY THIS SECTION STATES THE ENTIRE LIABILITY OF OL REGARDING INFRINGEMENT BY THE SOFTWARE OR ANY OTHER PRODUCT OR SERVICE PROVIDED BY OL. PRE-TESTING OF THE SOFTWARE. - You acknowledge that the Software must be thoroughly tested by you with noncritical data before you rely on it and you hereby assume the entire risk of using the Software. WARNING - HIGH RISK ACTIVITIES. - THE SOFTWARE IS NOT FAULT-TOLERANT AND IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE OR RESALE AS ON-LINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS, WITHOUT LIMITATION, IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE ("HIGH RISK ACTIVITIES"). OL AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES. SCOPE OF USE. - Except for the Connect Designer which can be installed on any number of devices, the license granted to you under this agreement is a single device license only and not a multi-device license. Consequently, you agree to use the Software for your own customary business or personal purposes on a single instance of any physical or virtual computer system for which the Software was licensed. If you need to use the Software on more than one device, you must purchase additional licenses. Contact OL for applicable royalties and licensing terms. If the Software can or will generate, create or modify PostScript programs called variable content documents ("VCD"), any VCD generated by the Software is licensed on a per "licensed output device" basis (including, without limitation, printers, Adobe Acrobat Distiller, Aladdin Ghostscript, etc.). This means that any VCD generated by the Software can be used by any number of users as long as they use the VCD on only that single licensed output device. If you need to use the VCD on more than one output device, you must purchase additional licenses. In case of cluster printing systems (multiple print engines attached to a single Raster Image Processor (RIP)), each print engine needs to be licensed individually. Contact OL for the applicable royalties and licensing terms for distribution of any VCD. Note that this paragraph does not apply for PlanetPress Office’s “Windows Printing”, PlanetPress Production’s “Optimized PostScript Stream” and “Windows Printing”, PlanetPress Connect or PReS Connect. SOFTWARE ACTIVATION. - Technological protection measures are included in the Software to prevent its unauthorized or illegal use. You agree to such technical measures and you undertake to follow their requirements. The Software requires activation within thirty (30) days after the initial installation. If you are using a time based license, you may need to reactivate the Software prior to its expiry. You may also need to reactivate the Software if you modify your computer hardware or install the Software on another computer. SINGLE/MULTI-TENANCY SOFTWARE AS A SERVICE (SAAS) AND PAY-PER-CLICK. - This license cannot be used to offer SaaS or PAY-PER-CLICK services without first contacting OL for execution of a specific agreement to that purpose. ANTI-SPAM AND PROTECTION OF PERSONAL INFORMATION. - As the Software may allow you to generate and output emails, you undertake to use the Software and any emails functionality in strict compliance with any anti-spam laws and regulations applicable to you in your jurisdiction. You also undertake to protect transactional information and personal information that you may collect using the Software in strict compliance with any protection of personal information laws and regulations applicable to you in your jurisdiction. OL, ITS AFFILIATED COMPANIES, DIRECTORS, OFFICERS AND EMPLOYEES ASSUME NO LIABILITY WHATSOEVER REGARDING ANY VIOLATION FROM YOU OF ANY ANTI-SPAM OR PROTECTION OF PERSONAL INFORMATION LAWS OR REGULATIONS. TRANSFER. - If the Software was provided to you through a leasing or a subscription agreement, it cannot and shall not be transferred and/or used by any third party at the end of the agreement. However, if you extend the agreement or buyout your lease without change of ownership, this License Agreement shall remain in effect accordingly. If the Software was not provided to you through a leasing or a subscription agreement, you may transfer it to a third party on a permanent basis, after prior written authorization of OL. In case of permanent transfer, you shall not retain any copy of the Software and the transferee shall be bound by the terms of this License Agreement. Except as provided herein, you may not transfer, rent, lease, lend, copy, modify, adapt, sublicense or time-share in any manner the Software or any part hereof. Page 2 �END USER LICENSE AGREEMENT AND LIMITED WARRANTY TERM. - This License Agreement is effective until the end of the period defined by the type of license used (as described on OL’S website) or until terminated. This License Agreement shall be automatically terminated upon i) if you fail to comply with any of the terms of this License Agreement and that you have not remedied any such breach within ten (10) days from receipt of a written notice from OL, without prejudice to OL‘s legal recourses, including injunctive reliefs or ii) default of payment not remedied within ten (10) days from receipt of a written notice from OL. Upon termination, you must destroy the original and any copy of the Software and cease all use of all the trademarks mentioned herein. LIMITED WARRANTY - SOFTWARE PURCHASE ON A PHYSICAL MEDIA. - OL warrants that the Software media will be free from defects in materials and workmanship, for a period of ninety (90) days from the date of its purchase. In case of defect, you must return the Software media to OL with a copy of your receipt and within the warranty period for replacement. DO NOT RETURN ANY PRODUCT UNTIL YOU HAVE CALLED THE OL CUSTOMER CARE DEPARTMENT AND PREVIOUSLY OBTAINED A RETURN AUTHORIZATION NUMBER. This Limited Warranty is void if failure of the Software media results from accident, abuse or misapplication. Any replacement of the Software media will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. WARRANTY DISCLAIMER. - EXCEPT AS EXPRESSLY SET FORTH IN THE "LIMITED WARRANTY - SOFTWARE PURCHASE ON A PHYSICAL MEDIA" SECTION, OL MAKES NO OTHER REPRESENTATION NOR PROVIDES ANY ADDITIONAL WARRANTY REGARDING THE SOFTWARE WHICH IS BEING DELIVERED « AS IS ». YOU ACKNOWLEDGE AND AGREE TO RELY AND OPERATE THE SOFTWARE AT YOUR OWN RISKS. OL MAKES NO REPRESENTATION NOR WARRANTY i) THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS, ii) THAT THE RESULTS WHICH MAY BE OBTAINED FROM THE SOFTWARE WILL BE ADEQUATE, RELIABLE OR ERROR FREE, NOR iii) THAT ANY SOFTWARE DEFECT WILL BE CORRECTED. MORE SPECIFICALLY, OL GIVES NO CONVENTIONAL OR LEGAL WARRANTY OF ANY NATURE, EXPRESS OR IMPLIED, ON THE SOFTWARE CONTENT, ITS RESULTS OR ITS DOCUMENTATION. OL EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR QUIET ENJOYMENT. No opinion, advice or representation whether verbal or in writing that you may receive from OL’s employees or its affiliated companies will constitute an additional warranty to the terms and conditions of this License Agreement. LIMITATION OF LIABILITY. - TO THE FULLEST EXTENT PERMITTED BY LAW, OL, ITS AFFILIATED COMPANIES, DIRECTORS, OFFICERS AND EMPLOYEES SHALL NOT BE HELD LIABLE, WHETHER BY CONTRACT OR IN TORT, TOWARDS YOU OR ANY OTHER THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS OR SAVINGS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR ANY OTHER PECUNIARY LOSS) ARISING FROM ANY SOFTWARE DEFECT, ITS DOCUMENTATION OR FOR ERRONEOUS RESULTS OR FROM THE USE OF OR INABILITY TO USE THE SOFTWARE OR THE PROVISION OF OR THE FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF OL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OL ASSUMES NO LIABILITY FOR ANY DAMAGE RESULTING FROM YOUR MISHANDLING OF THE SOFTWARE. IF A COMPETENT COURT SHOULD CONCLUDE TO OL’S LIABILITY DESPITE THE FOREGOING PROVISION, YOU EXPRESSLY AGREE THAT OL SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES REGARDLESS OF THE CAUSE OF ACTION, WHETHER IN CONTRACT OR IN TORT, IN EXCESS OF THE AMOUNT PAID FOR THE PURCHASE OF THE SOFTWARE. ASSIGNMENT OF OL RIGHTS. - OL is entitled to sell, transfer or assign in any way and at its sole discretion any rights under the present License Agreement to any third party and the assignee will be entitled to any of OL’s rights, privileges or recourses resulting from the present agreement. OL will notify you of such sale, transfer or assignment through a specific notice on its website. GENERAL PROVISIONS. - This License Agreement may only be modified in writing by a duly authorized officer of OL. OL shall announce any modifications to this License Agreement whether on its website or by email to you, at its own discretion, within thirty (30) days before its effective date. Acceptance of the modifications by selecting "I AGREE" and your subsequent use of the Software will be deemed your acceptance of these modifications. This License Agreement shall be binding upon the parties hereto and their respective successors and permitted assignees. If any or part of any provision of this License Agreement is, by final judgment, found void or unenforceable, the remainder shall remain valid and enforceable according to its terms. Any declaration of a court to the effect that any provision hereof is invalid or unenforceable shall not affect the validity or enforceability of any remaining provisions hereof. Page 3 �END USER LICENSE AGREEMENT AND LIMITED WARRANTY If OL fails to avail itself of any of its rights under the present agreement, this does not constitute a waiver or a modification of the rights available to it hereunder and OL may within the time prescribed by law, institute procedures to invoke its rights. A delay in doing so does not constitute a defense which is enforceable. None of the parties hereto shall be deemed in default in the performance of its obligations hereunder if such performance is delayed, detained or prevented because of force majeure. Force majeure is any cause beyond the control of the parties hereto and against which they could not protect themselves. Force majeure includes, without limitation, any fortuitous and natural disasters, strikes, work stoppages, lockouts, fire, riot, failure of communication networks including Internet, power failure, embargo, order, war, terrorism, inability to obtain raw materials, regulation or government controls or other similar event. U.S. GOVERNMENT RESTRICTED RIGHTS. - If a Software is acquired under the terms of a proposal or agreement with the United States Government or any contractor thereof, the Software is subject to the following restricted rights notice: "This Software is commercial computer software provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, FAR 52.227-17 Alternate III (g)(3), or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48 CFR 52.227-19, as applicable, and their successor provisions. Contractor/Manufacturer is Objectif Lune Inc., Montréal, Québec, Canada, H1V 2C8. U.S. EXPORT RULES. - You agree that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the “Export Laws”). In addition, if the Software is identified as export controlled items under the Export Laws, you represent and warrant that you are not a citizen of or otherwise located within an embargoed nation and that you are not otherwise prohibited under the Export Laws from receiving the Software. All rights to use the Software are granted on condition that such rights are forfeited if you fail to comply with the terms of this paragraph. ONLINE VERSION. - You acknowledge that when provided in its online format, this License Agreement has the same effect and same value as if it was signed on a paper version. A printed version of this online License Agreement or any notice sent by electronic mail shall be admissible in litigation as any other business document of the enterprise or register generally kept in paper format. GOVERNING LAW. - This License Agreement shall be governed and construed by the laws of the Province of Quebec or in default by the applicable Laws of Canada, excluding those provisions relating to conflicts of laws and excluding the United Nations Convention on contracts for the International Sale of Goods if applicable. The parties hereby irrevocably submit to the jurisdiction of the Courts of the Province of Quebec in the judicial district of Montreal, Canada for any litigation resulting from the present License Agreement, excluding any other jurisdiction. LICENSED THIRD PARTY COMPONENTS AND SPECIFIC RIGHTS AND LIMITATIONS. - As part of this License Agreement, you agree to the specific rights and limitations regarding third parties licensed components bundled in the Software in addition to the rights and limitations already mentioned herein which benefit such third parties, including: ADOBE ® TECHNOLOGY The term Software includes Adobe Technology and related documentation, and any upgrades, modified versions, updates, additions, and copies thereof. LICENSE GRANT AND RESTRICTIONS. - OL grants you a non-exclusive right to use the Software under the terms of this Agreement. You may make one backup copy of the Software, provided the backup copy is not installed or used on any computer. INTELLECTUAL PROPERTY RIGHTS. - The Software is owned by OL and its suppliers, and its structure, organization and code are the valuable trade secrets of OL and it suppliers'; The Software is also protected by United States Copyright law and International Treaty provisions. You may not copy the Software, except as provided in this Agreement. Any copies that you are permitted to make pursuant to this Agreement must contain the same copyright and other proprietary notices that appear on or in the Software. You agree not to modify, adapt, translate, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software. Except as stated above, this Agreement does not grant you any intellectual property rights in the Software. FONT LICENSE. - If the Software includes font software you may embed the font software, or outlines of the font software, into your electronic documents to the extent that the font vendor copyright owner allows for such embedding. The fonts contained in this package may contain both Adobe and non-Adobe owned fonts. You may fully embed any font owned by Adobe. Page 4 �END USER LICENSE AGREEMENT AND LIMITED WARRANTY DISCLAIMER OF WARRANTY. - THE "LIMITED WARRANTY. SOFTWARE PURCHASED ON A PHYSICAL MEDIA" SECTION OF THIS AGREEMENT STATES THE SOLE AND EXCLUSIVE REMEDIES FOR OL’S BREACH OF WARRANTY. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, ADOBE AND ITS SUPPLIERS MAKE NO WARRANTY, EXPRESS AND IMPLIED, AS TO THE MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR NON INFRINGEMENT. LIMITATION OF LIABILITY. - IN NO EVENT WILL ADOBE OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY DAMAGES, CLAIMS OR COSTS WHATSOEVER OR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL DAMAGES, OR ANY LOST PROFITS OR LOST SAVINGS, EVEN IF AN ADOBE REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. Some states or jurisdictions do not allow the exclusion or limitation of incidental, consequential or special damages, or the exclusion of implied warranties, or limitations on how long an implied warranty may last, so the above limitations may not apply to you. To the extent permissible, any implied warranties are limited to thirty (30) days. This warranty gives you specific legal rights. You may have other rights which vary from state to state or jurisdiction to jurisdiction. EXPORT RULES. - You agree that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the "Export Laws"). ln addition, if the Software is identified as export controlled items under the Export Laws, you represent and warrant that you are not a citizen, or otherwise located within, an embargoed nation (including without limitation Iran, Iraq, Syria, Sudan, Libya, Cuba, North Korea, and Serbia) and that you are not otherwise prohibited under the Export Laws from receiving the Software. All rights to use the Software are granted on condition that such rights are forfeited if you fail to comply with the terms of this Agreement. GENERAL PROVISIONS. - If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. This Agreement shall not prejudice the statutory rights of any party dealing as a consumer. TRADEMARKS. - Adobe and Adobe PDF Library are either registered trademarks or trademarks of Adobe Systems Incorporated in the United States and/or other countries. ORACLE TECHNOLOGY EXPORT. - You agree that U.S. export control laws and other applicable export and import laws govern your use of the programs, including technical data; additional information can be found on Oracle's Global Trade Compliance web site located at http://www.oracle.com/us/products/export/index.html. You agree that neither the programs nor any direct product thereof will be exported, directly, or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation. DISCLAIMER OF WARRANTY AND EXCLUSIVE REMEDIES. - THE PROGRAMS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. WE FURTHER DISCLAIM ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.IN NO EVENT SHALL WE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR DATA USE, INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR ENTIRE LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED ONE THOUSAND DOLLARS (U.S. $1,000). NO TECHNICAL SUPPORT. - Oracle technical support organization will not provide technical support, phone support, or updates to you for the programs licensed under this agreement. NOTICE OF RESTRICTED RIGHTS. - "Programs delivered subject to the DOD FAR Supplement are 'commercial computer software' and use, duplication, and disclosure of the programs, including documentation, shall be subject to the licensing restrictions set forth in the applicable Oracle license agreement. Otherwise, programs delivered subject to the Federal Acquisition Regulations are 'restricted computer software' and use, duplication, and disclosure of the programs, including documentation, shall be subject to the restrictions in FAR 52.227-19, Commercial Computer Software-Restricted Rights (June 1987). Oracle America, Inc., 500 Oracle Parkway, Redwood City, CA 94065." END OF AGREEMENT. - You may terminate this agreement by destroying all copies of the programs. We have the right to terminate your right to use the programs if you fail to comply with any of the terms of this agreement, in which case you shall destroy all copies of the programs Page 5 �END USER LICENSE AGREEMENT AND LIMITED WARRANTY RELATIONSHIP BETWEEN THE PARTIES. - The relationship between you and us is that of licensee/licensor. Neither party will represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, nor to represent the other party as agent, employee, franchisee, or in any other capacity. Nothing in this agreement shall be construed to limit either party's right to independently develop or distribute software that is functionally similar to the other party's products, so long as proprietary information of the other party is not included in such software. OPEN SOURCE. - "Open Source" software - software available without charge for use, modification and distribution - is often licensed under terms that require the user to make the user's modifications to the Open Source software or any software that the user 'combines' with the Open Source software freely available in source code form. If you use Open Source software in conjunction with the programs, you must ensure that your use does not: (i) create, or purport to create, obligations for us with respect to the Oracle programs; or (ii) grant, or purport to grant, to any third party any rights to or immunities under our intellectual property or proprietary rights in the Oracle programs. For example, you may not develop a software program using an Oracle program and an Open Source program where such use results in a program file(s) that contains code from both the Oracle program and the Open Source program (including without limitation libraries) if the Open Source program is licensed under a license that requires any "modifications" be made freely available. You also may not combine the Oracle program with programs licensed under the GNU General Public License ("GPL") in any manner that could cause, or could be interpreted or asserted to cause, the Oracle program or any modifications thereto to become subject to the terms of the GPL. ECLIPSE TECHNOLOGY The Software may include unmodified Eclipse redistributables available at www.eclipse.org. The Eclipse redistributables are submitted to the WARRANTY DISCLAIMER and LIMITATION OF LIABILITY provisions of this Agreement, and to the Eclipse Public License - v 1.0 that can be found at https://www.eclipse.org/legal/epl-v10.html. ENTIRE AGREEMENT. - This License Agreement contains the entire understanding of the parties. There are no representations, warranties, promises, covenants of understandings, oral or otherwise, other than those herein contained. Page 6 OL is a trademark of Objectif Lune Inc. All registered trademarks displayed are the property of their respective owners. © 2015 Objectif Lune Incorporated. All rights reserved. �
nw/107.txt
1-12-70-15A AMD #1 GovStor, Inc. Oracle EULA v130513 (6 pages) END USER LICENSE AGREEMENT (EULA) for ORACLE PRODUCTS and SERVICES A. Agreement Definitions “You” and “your” refers to the legal entity that has executed this agreement (“agreement” or “EULA”) and ordered Oracle programs and/or hardware and/or services from GovStor Inc. The term “ancillary programs” refers to third party materials specified in the program documentation which may only be used for the purposes of installing or operating the programs with which the ancillary programs ;are delivered. The term “program documentation” refers to the program user manual and program installation manuals. The term “programs” refers to the software products owned by Oracle and distributed by GovStor Inc. which you have ordered, program documentation, and any program updates acquired through technical support. The term “services” refers to technical support, education, hosted/outsourcing services, consulting or other services which you have ordered. B. Applicability of Agreement This agreement is valid for the order to which this agreement accompanies. C. Rights Granted Upon Oracle’s acceptance of GovStor Inc.’s order, you have the non-transferable, nonassignable, royalty free perpetual, limited right to use the programs and receive any services you ordered solely for your internal business operations and subject to the terms of this agreement, including the license definitions and rules set forth in the program documentation. You may allow your agents and contractors (including, without limitation, outsourcers) to use the programs for the purposes set forth in the end user license agreement, subject to the terms of such agreement, you are responsible for their compliance with this agreement in such use. For programs that are specifically designed to allow your customers and suppliers to interact with you in the furtherance of your internal business operations, such use shall be allowed under this agreement. Oracle’s license definitions and rules are subject to change and are available at http://partner.oracle.com (log in, select Membership / Agreements & Policies). Oracle’s license definitions and rules are hereby incorporated by reference into this agreement. Services are provided based on Oracle’s policies for the applicable services ordered, which are subject to change, and the specific policies applicable to you, and how to access them, will be specified on your order (Except technical support services which are as specified in section H of this agreement). Upon payment for services, you will have a perpetual, non-exclusive, nonassignable, royalty free license to use for your internal business operations anything developed by Oracle and delivered to you under this agreement; however, certain deliverables may be subject to additional license terms. The services provided under this agreement may be related to your license to use programs which you acquire under a separate order. The agreement referenced in that order shall govern your use of such programs. Any services acquired from GovStor Inc. or Oracle are bid separately from such program licenses, and you may acquire either services or such program licenses without acquiring the other. Oracle is a third party beneficiary of this agreement. D. Ownership and Restrictions Oracle or its licensor retains all ownership in the intellectual property rights to the programs, hardware, operating system and integrated software. Furthermore, Oracle retains all ownership and intellectual property rights to anything developed by Oracle and delivered to you under this agreement resulting from the services. Use of the operating system delivered with the hardware is limited to the terms of the license delivered with the hardware and only as incorporated in, and as part, of the hardware. Use of the integrated software, which is defined as software embedded in the hardware that is essential to hardware functionality (e.g., firmware) is limited to your internal business operations subject to the terms of the end user agreement and only as EULA for Oracle Products and Services under eServer v.130513 �1-12-70-15A AMD #1 GovStor, Inc. Oracle EULA v130513 (6 pages) incorporated in, and as part, of the hardware. Third party technology that may be appropriate or necessary for use with some Oracle programs and/or hardware is specified in the program documentation and/or hardware documentation and that such third party technology is licensed to you under the terms of the third party technology license agreement specified in the program documentation and/or hardware documentation and not under the terms of the end user agreement. Hardware and integrated software are not specifically designed, manufactured, or intended for use as parts, components, or assemblies for the planning, construction, maintenance, or operation of a nuclear facility and prohibit use of the hardware and/or integrated software for these purposes. Some programs may include source code that Oracle may provide as part of its standard shipment of such programs, which source code shall be governed by the terms of the end user agreement. You may not: use the programs for rental, timesharing, subscription service, hosting, or outsourcing; remove or modify any program or hardware markings or any notice of Oracle’s or its licensors’ proprietary rights; make the programs, operating system, integrated software available in any manner to any third party for use in the third party’s business operations (unless such access is expressly permitted for the specific program license); transfer title to the programs, operating system and/or integrated software from you to any other party; reverse engineer (unless required by law for interoperability), disassemble or decompile the programs (the foregoing prohibition includes but is not limited to review of data structures or similar material produced by programs), operating system and/or integrated software and prohibit duplication of the programs, operating system and/or integrated software except for a sufficient number of copies for your licensed use and one copy of each program media. publish any results of benchmark tests run on the programs and/or hardware; and assign, give, or transfer the programs, operating system, integrated software and/or any services ordered or an interest in them to another individual or entity (in the event you grant a security interest in the programs, operating system, integrated software and/or any services, the secured party has no right to use or transfer the programs, operating system, integrated software and/or any services). E. Warranties, Disclaimers and Exclusive Remedies The provisions of this section do not apply to third party programs. Oracle warrants that a program licensed to you will operate in all material respects as described in the applicable program documentation for one year after delivery. You must notify Oracle of any program warranty deficiency within one year after delivery. Oracle also warrants that services ordered will be provided in a professional manner consistent with industry standards. You must notify Oracle of any services warranty deficiencies within 90 days from performance of the services described in your purchase order. If you purchase Oracle hardware, the standard Oracle hardware warranty in effect at the time of purchase will apply. This warranty information is available at http://www.oracle.com/support/policies.html. ORACLE DOES NOT GUARANTEE THAT THE PROGRAMS WILL PERFORM ERROR-FREE OR UNINTERRUPTED OR THAT ORACLE WILL CORRECT ALL PROGRAM ERRORS. FOR ANY BREACH OF THE ABOVE WARRANTIES, YOUR EXCLUSIVE REMEDY, AND ORACLE’S ENTIRE LIABILITY, SHALL BE: (A) THE CORRECTION OF PROGRAM ERRORS THAT CAUSE BREACH OF THE WARRANTY, OR IF ORACLE CANNOT SUBSTANTIALLY CORRECT SUCH BREACH IN A COMMERCIALLY REASONABLE MANNER, YOU MAY END EULA for Oracle Products and Services under eServer v.130513 �1-12-70-15A AMD #1 GovStor, Inc. Oracle EULA v130513 (6 pages) YOUR PROGRAM LICENSE AND RECOVER THE FEES PAID FOR THE PROGRAM LICENSE AND ANY UNUSED, PREPAID TECHNICAL SUPPORT FEES YOU HAVE PAID FOR THE PROGRAM LICENSE; OR (B) THE REPERFORMANCE OF THE DEFICIENT SERVICES, OR IF ORACLE CANNOT SUBSTANTIALLY CORRECT A BREACH IN A COMMERCIALLY REASONABLE MANNER, YOU MAY END THE RELEVANT SERVICES AND RECOVER THE FEES PAID FOR THE DEFICIENT SERVICES. TO THE EXTENT PERMITTED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. F. Trial Programs You may order trial programs, or Oracle may include additional programs with your order which you may use for trial, non-production purposes only. You may not use the trial programs to provide or attend third party training on the content and/or functionality of the programs. You have 30 days from the delivery date to evaluate these programs. If you decide to use any of these programs after the 30 day trial period, you must obtain a license for such programs from Oracle or GovStor Inc. If you decide not to obtain a license for any program after the 30 day trial period, you will cease using and will delete any such programs from your computer systems. Programs licensed for trial purposes are provided “as is” and Oracle does not provide technical support or offer any warranties for these programs. G. Indemnification If a third party makes a claim against either you or Oracle (“Recipient” which may refer to you or Oracle depending upon which party received the Material), that any information, design, specification, instruction, software, data, or material (“Material”) furnished by either you or Oracle (“Provider” which may refer to you or Oracle depending on which party provided the Material), and used by the Recipient infringes its intellectual property rights, the Provider, at its sole cost and expense, will defend the Recipient against the claim and indemnify the Recipient from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by the Provider, if the Recipient does the following: notifies the Provider promptly in writing, not later than 30 days after the Recipient receives notice of the claim (or sooner if required by applicable law); gives the Provider sole control of the defense and any settlement negotiations; and gives the Provider the information, authority, and assistance the Provider needs to defend against or settle the claim. If the Provider believes or it is determined that any of the Material may have violated a third party’s intellectual property rights, the Provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the Provider may end the license for, and require return of, the applicable Material and refund any fees the Recipient may have paid to the other party for it and any unused, prepaid technical support fees you have paid to Oracle for the license. If you are the Provider and such return materially affects Oracle’s ability to meet its obligations under the relevant order, then Oracle may, at its option and upon 30 days prior written notice, terminate the order. The Provider will not indemnify the Recipient if the Recipient alters the Material or uses it outside the scope of use identified in the Provider’s user documentation or if the Recipient uses a version of the Materials which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was provided to the Recipient. The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon any information, design, specification, instruction, software, data, or material not furnished by the Provider. Oracle will not indemnify you to the extent that an infringement claim is based upon the combination of any Material with any products or services not provided by Oracle. Oracle will not indemnify you for infringement caused by your actions against any third party if the Oracle program(s) as delivered to you and used in accordance with the terms of this agreement would not otherwise infringe any third party EULA for Oracle Products and Services under eServer v.130513 �1-12-70-15A AMD #1 GovStor, Inc. Oracle EULA v130513 (6 pages) intellectual property rights. Oracle will not indemnify you for any infringement claim that is based on: (1) a patent that you were made aware of prior to the effective date of this agreement (pursuant to a claim, demand, or notice); or (2) your actions prior to the effective date of this agreement. This section provides the parties’ exclusive remedy for any infringement claims or damages. H. Technical Support For purposes of this agreement, technical support consists of annual technical support services you may have ordered for the programs. If ordered, annual technical support (including first year and all subsequent years) is provided under Oracle’s technical support policies in effect at the time the services are provided. Oracle’s technical support policies are hereby incorporated by reference into this agreement, and are subject to change at Oracle’s discretion; however, Oracle policy changes will not result in a material reduction in the level of services provided for supported programs during the period for which fees for technical support have been paid. You should review the policies prior to entering into your purchase order for the applicable services. You may access the current version of the technical support policies at http://oracle.com/contracts. If you decide to not purchase technical support at the time of the license and/or hardware purchase then you will be required to pay reinstatement fees to GovStor Inc. or Oracle in accordance with Oracle’s current technical support policies if you decide to purchase support at a later date. Technical support is effective upon the effective date of the order to which this agreement accompanies otherwise stated in your order. Software Update License & Support (or any successor technical support offering to Software Update License & Support, “SULS”) acquired with your order may be renewed annually and, if you renew SULS for the same number of licenses for the same programs, for the first and second renewal years the fee for SULS will not increase by more than 4% over the prior year’s fees. If you decide to purchase technical support for any license within a license set, you are required to purchase technical support at the same level for all licenses within that license set. You may desupport a subset of licenses in a license set only if you agree to terminate that subset of licenses. The technical support fees for the remaining licenses will be priced in accordance with the technical support policies in effect at the time of termination. Oracle’s license set definition is available in the current technical support policies. If you decide not to purchase technical support, you may not update any unsupported program licenses with new versions of the program. I. End of Agreement Upon the termination of the agreement, you will discontinue use and destroy or return to Oracle all copies of the programs and documentation. Provisions that survive termination or expiration are those relating to limitation of liability, infringement indemnity, payment, and others which by their nature are intended to survive. J. Fees and Taxes You agree to pay any sales, value-added or other similar taxes imposed by applicable law that GovStor Inc. must pay based on the programs and/or services you ordered. Also, you will reimburse GovStor Inc. for reasonable expenses related to providing the services. Fees for services listed in an order are exclusive of taxes and expenses. If you decide to finance your acquisition of the programs, operating system, integrated software and/or any services, you must follow Oracle’s policies regarding financing which are available at http://oracle.com/contracts. You agree that you have not relied on the future availability of any programs or updates in entering into the payment obligations in your purchase order; however, (a) if you order technical support from GovStor Inc. for the programs, the preceding sentence does not relieve Oracle of its obligation to provide updates under such order, if-and-when available, in accordance with Oracle’s then current technical support policies, and (b) the preceding sentence does not change the rights granted to you for any program licensed under the end user agreement, per the terms EULA for Oracle Products and Services under eServer v.130513 �1-12-70-15A AMD #1 GovStor, Inc. Oracle EULA v130513 (6 pages) of such end user agreement. K. Nondisclosure By virtue of this agreement, the parties may have access to information that is confidential to one another (“confidential information”). We each agree to disclose only information that is required for the performance of obligations under this agreement. Confidential information shall be limited to the terms and pricing under this agreement and all information clearly identified as confidential at the time of disclosure; subject to the California Publics Record Act. A party’s confidential information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party. We each agree to hold each other’s confidential information in confidence for a period of three years from the date of disclosure. Also, we each agree to disclose confidential information only to those employees or agents who are required to protect it against unauthorized disclosure. Nothing shall prevent either party from disclosing the terms or pricing under this agreement or orders submitted under this agreement in any legal proceeding arising from or in connection with this agreement or disclosing the confidential information to a federal or state governmental entity as required by law. L. Entire Agreement If any term of this agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and intent of this agreement. Any notice required under this agreement shall be provided to the other party in writing. M. Limitation of Liability TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF PROFITS, REVENUE, DATA, OR DATA USE ARISING FROM THE USE OF THE PROGRAMS. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, ORACLE SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF PROFITS, REVENUE, DATA, OR DATA USE ARISING FROM THE USE OF THE PROGRAMS. GOVSTOR INC.’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR ORDER, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNT OF THE FEES YOU PAID GOVSTOR INC. UNDER THIS AGREEMENT, AND IF SUCH DAMAGES RESULT FROM YOUR USE OF PROGRAMS OR SERVICES, SUCH LIABILITY SHALL BE LIMITED TO THE FEES YOU PAID GOVSTOR INC. FOR THE DEFICIENT PROGRAM OR SERVICES GIVING RISE TO THE LIABILITY. N. Export Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the programs. You must comply fully with all relevant export laws and regulations of the United States and other applicable export and import laws to assure that neither the programs, the hardware nor any direct product thereof, are exported, directly or indirectly, in violation of applicable laws. O. Other 1. This agreement is governed by the substantive and procedural laws of California in any dispute arising out of or relating to this agreement. EULA for Oracle Products and Services under eServer v.130513 �1-12-70-15A AMD #1 GovStor, Inc. Oracle EULA v130513 (6 pages) 2. If you have a dispute with GovStor Inc. or wish to provide a notice you may notify st GovStor Inc. via written notice to: GovStor Inc., 1914 21 Street, Sacramento, CA 95811. 3. If you have a dispute with Oracle or if you wish to provide a notice under the Indemnification section of this agreement, or if you become subject to insolvency or other similar legal proceedings, you will promptly send written notice to: Oracle America, Inc., 500 Oracle Parkway, Redwood City, California, United States, 94065, Attention: General Counsel, Legal Department. 4. Except for actions for nonpayment or breach of Oracle’s proprietary rights, no action, regardless of form, arising out of or relating to this agreement may be brought by either party more than two years after the cause of action has accrued. 5. Upon 45 days written notice, GovStor Inc. (or Oracle upon assignment) may audit your use of the programs. You agree to cooperate with such audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with your normal business operations. You agree to pay within 30 days of written notification any fees applicable to your use of the programs in excess of your license rights. If you do not pay, Oracle can end your technical support, licenses and/or this agreement. You agree that Oracle shall not be responsible for any of your costs incurred in cooperating with the audit. 6. Any third party firms retained by you to provide computer consulting services are independent of Oracle and are not Oracle’s agents. Oracle is not liable for nor bound by any acts of any such third party firm. 7. The Uniform Computer Information Transactions Act does not apply to this agreement or orders placed under it. EULA for Oracle Products and Services under eServer v.130513 �
nw/108.txt
OSTEOWARE END USER LICENSE AGREEMENT This Agreement is entered into by and between Smithsonian Institution, a trust instrumentality of the United States whose address is 1000 Jefferson Drive, S.W., Washington, D.C. 20560 and End User and is effective as of the date End User first downloads or uses the Osteoware software. IMPORTANT NOTICE – THIS IS A CONTRACT: By downloading, installing, copying, or otherwise using the Osteoware software, you agree to be bound by the terms of this Agreement. If you do not agree to the terms of this Agreement, do not download or use Osteoware. Osteoware is not sold and instead is only licensed to the public for non-commercial and either academic or research use strictly in accordance with the terms and conditions of this Agreement below: 1. DEFINITIONS End User means the entity or individual that downloads or uses the Software. The Software means the Osteoware computer software, database, program, and associated media and documentation, and any subsequent error corrections or updates supplied by the Smithsonian, all of which is made available for download from the Smithsonian websites. It provides tools for documenting human remains for academic and research purposes. The Term of this Agreement shall commence with the Effective Date and continue until terminated. 2. GRANT OF LICENSE The Smithsonian hereby grants Customer the following non-exclusive, non-transferable right to install and use the Software for non-commercial and either academic or research purposes provided that End User complies with the following conditions: a. No reverse engineering: End User may not reverse engineer, decompile, or disassemble the Software, nor attempt in any other manner to obtain the source code. b. No Separation of Components. The Software is licensed as a single product. Its component parts may not be separated or otherwise used separately from the other parts. c. No Resale or Rental. End User may not sell, trade, or resell the Software for any purpose. If a third party wishes to use the Software, End User should direct the third party to download the Software from the Smithsonian. d. Attribution Required. End User must provide a citation for Osteoware, as well as the Smithsonian Institution National Museum of Natural History and its website as the source of the tool, in any resulting publications for which the End User author(s) had employed Osteoware to enter, store, and/or retrieve data. �3. TERMINATION This Agreement will automatically terminate if End User fails to comply with any of the terms and conditions of this Agreement. This Agreement may terminate automatically if required by law. The Smithsonian may terminate this agreement for any reason by giving End User at least ninety (90) calendar days written notice of termination. Upon Termination, End User must destroy all copies of the Software and all of its component parts. 4. OWNERSHIP a. The Smithsonian owns all legal right, title, and interest in and to the Software, including any intellectual properties which subsist in the Software. End user acknowledges that his or her downloading and/or use of the Software do not create in End User any legal right, title, or interest to the Software. b. The name and logo of the Smithsonian Institution and its museums, programs, and Osteoware are trademarks. Smithsonian trademarks cannot be used without the prior written consent of the Smithsonian, except as authorized in this Agreement. Except as otherwise provided herein, End User shall not use or refer to Osteoware or the names or logos of the Smithsonian or any of its museums, organizations, or facilities in any manner or through any medium, whether written, oral, or visual, for any purpose whatsoever, including but not limited to advertising, marketing, promotion, publicity or on any letterhead or website by any company. c. End User will not remove, obscure, or alter any proprietary rights notices which may be affixed to or contained within the Software. d. End User retains any proprietary rights it already holds in the content that End User enters into the Software (the Content). All Content is the sole responsibility of the person from which the Content originated. The Smithsonian has no responsibility to End User for any Content that End User creates, accesses, or displays while using the Software or for the consequences of your actions by doing so. 5. APPLICABLE LAW AND CHOICE OF VENUE This Agreement shall be governed by and construed in accordance with federal law and the laws of the District of Columbia, regardless of place of execution of performance. The federal courts in the District of Columbia shall be the forum for any legal action arising from or incident to this Agreement. 6. REPRESENTATIONS The Smithsonian has legal right and authority to grant the licenses granted in this Agreement. The Software is original, does not plagiarize any other work, and does not otherwise violate the personal or property rights of any individual or entity. �7. DISCLAIMER OF WARRANTIES AND LIMITATION ON LIABILITY a. No Warranties. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED "AS IS" AND THE SMITHSONIAN DISCLAIMS ALL WARRANTIES, EITHERWHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. Without limiting the foregoing, you are solely responsible for determining and verifying that the Software you obtain and install is the appropriate version for your computer or network equipment. b. No Liability for Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE SMITHSONIAN BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF THE SMITHSONIAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 8. INDEMNIFICATION To the extent authorized by law, End User agrees to indemnify, defend and hold harmless the United States, the Smithsonian, and their officers, Regents, employees and agents against all claims, demands, suits, judgments, and expenses, including reasonable out-of-pocket attorneys’ fees, arising out of or based upon any third party claim that the End User has, through its actions under this Agreement or its omissions, caused harm, injury or damages to such third party. End User shall give prompt written notice to Smithsonian of any such claim or suit, including copies of any summons, complaint or other pleading. Smithsonian shall have the option to undertake and conduct the defense of any suit so brought, and End User agrees to cooperate with Smithsonian. End User may participate in any defense of a claim against it at its own expense. 9. MISCELLANEOUS This Agreement constitutes the entire understanding between the Smithsonian and End User with respect to the Software. This Agreement supersedes and replaces any previous documents, correspondence, conversations, and other oral or written understandings related to the Software. This Agreement may not be modified without a written document signed by both parties. The failure of either party to enforce any term or condition shall not be deemed a waiver. This Agreement may not be assigned by End User without the Smithsonian’s prior written approval. �
nw/109.txt
SOFTWARE LICENSE AGREEMENT The software that is subject to this End User’s License Agreement (EULA) is licensed, not sold, to the Licensee by Interactive Brands. Installing, copying, accessing, or using the Licensed Software constitutes Licensee's acceptance of, and promise to comply with, all of the terms and conditions of this EULA. LICENSE TERMS CONTENTS. The “Licensed Software” includes all of the contents of the files, disk(s), CD-ROM(s), DVDs, or other media for which this EULA is provided, including: (1) third party computer information or software that Interactive Brands has licensed for inclusion in the Licensed Software; (2) written materials or files relating to the Licensed Software (“Documentation”); (3) fonts; and (4) upgrades, modified versions, updates, additions, and copies of the Licensed Software, if any (collectively, “Updates”). INSTALLATION. Licensee may install one copy of the Licensed Software on a single computer. The primary user of the computer on which the Licensed Software is installed may install a second copy of the software for his or her exclusive use on either a portable computer or a computer located at his or her home, provided the software on the portable or home computer is not used at the same time as the software on the primary computer. If Licensed Software includes multiple licenses, Licensee may install the number of copies licensed to Licensee by Interactive Brands. Licensee shall be solely responsible for all expenses incurred in Licensee’s installation of the Licensed Software. ACTIVATION. The Licensed Software contains technological measures that are designed to prevent its unlicensed or illegal use. The Licensed Software may contain enforcement technology that limits Licensee's ability to install and uninstall the Licensed Software on a machine to no more than a finite number of times, and for a finite number of machines. The Licensed Software may require activation as explained during installation and in the Documentation. If any such applicable activation procedure(s) is not followed, then the Licensed Software may only operate for a finite period of time. If activation is required, and not completed within the finite period of time set forth in the Documentation and explained during installation, then the Licensed Software will cease to function until activation has been completed, at which time functionality will be restored. If Licensee has any problem with the activation process, Licensee should contact Interactive Brands customer support. COPIES. Licensee may make one copy of the Licensed Software for backup or archival purposes only, except that the Documentation may not be duplicated. �TRANSFER. Licensee may not sell, assign, or transfer the Licensed Software or the License granted by this EULA without prior written consent of Interactive Brands. USE. The License granted by this EULA is non-exclusive. PROHIBITED USES. (1) Licensee may not modify, adapt, translate, sublicense, rent, lease, or loan all or any portion of the Licensed Software or Documentation; (2) Licensee may not create any derivative works from all or any portion of the Licensed Software or Documentation; (3) Licensee may not reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the License Software the Licensed Software except, and then: only to the extent expressly permitted by applicable law; after notification to Interactive Brands; upon payment of a reasonable fee; and execution of a confidentiality agreement to protect the code from disclosure to any third parties; (4) Licensee may not use a previous version of the Licensed Software after receiving a media replacement or upgraded version as a replacement to a prior version (in such case you must destroy the prior version); (5) Licensee may not use the Licensed Software in the operation of aircraft, ship, nuclear facilities, life support machines, communication systems, or any other equipment in which the failure of the software could lead to personal injury, death, or environmental damage; (6) Licensee may not remove or obscure Interactive Brands copyright or trademark notices, or the copyright and trademark notices of third parties that Interactive Brands has included in the Licensed Software or Documentation; and (7) Licensee may not use the Licensed Software to host applications for third parties, as part of a facility management, timesharing, service provider, or service bureau arrangement; and (8) Licensee may not use the Licensed Software in any manner not authorized by this EULA. CONTENT. Licensee is solely responsible for Licensee's use of the Content. Licensee may only use the Content responsibly, in a manner consistent with the exercise of good judgment. If Licensee is having difficulty deciding whether Licensee's intended use is appropriate, or whether Licensee needs written permission, or whether other legal issues should be considered, Interactive Brands strongly encourages Licensee to seek competent legal counsel. Interactive Brands will not assist Licensee in making this determination, nor can Interactive Brands provide Licensee with legal advice as to intellectual property rights. If Licensee or Licensee's attorney determines that Licensee is required by law to obtain written permission to use portions of the Content, Licensee must request permission for reproduction, redistribution, or modification of the Content from the appropriate owner of the subject materials (as may be cited in the Licensed Software). If, on the other hand, Licensee or Licensee's attorney determines it is permissible to proceed and include Content from the Licensed Software, Interactive Brands asks Licensee to correctly designate Interactive Brands trademark(s) when referring to the Licensed software in the notice or copyright portion of Licensee's paper, project, or product. Licensee shall indemnity, hold harmless, and defend Interactive Brands and Interactive Brands suppliers from all claims, damages, attorneys' fees, costs, and lawsuits that arise from, or result from, Licensee's use or distribution of Content. SOFTWARE UPDATES. If the Licensed Software is an Update to a previous version, Licensee must possess a valid License to the previous version. Any Update provided to Licensee is made on a License exchange basis such �that Licensee agrees, as a condition for receiving an Update, that Licensee will terminate all of Licensee's rights to use any previous version of the Licensed Software. However, Licensee may continue to use the previous version only to assist in transitioning to the Updated version. Once an Update has been released, Interactive Brands may cease support for prior versions, without any notice to Licensee. SUPPORT. Interactive Brands is not obligated by this EULA to provide Licensee with any technical support services relating to the Licensed Software; however, Licensee may order additional support services for an additional charge as Interactive Brands may offer from time to time during the term of this EULA. LIMITED WARRANTY ON MEDIA. Interactive Brands warrants that the media on which the Licensed Software is distributed will be free from defects for a period of 30 days from the date the Licensed Software is delivered to Licensee. If Licensee discovers a defect in the media during this 30-day period, Licensee must then return the defective media to Interactive Brands within 10 calendar days of discovering the defect, and Licensee's sole remedy is to have either the defective media replaced, or at Interactive Brands sole option, a refund of the money that Licensee paid for the Licensed Software. NO WARRANTY ON LICENSED SOFTWARE. The Licensed Software is provided to Licensee “AS IS.” Interactive Brands, and Interactive Brands suppliers or affiliates, make no warranty as to its use or performance. INTERACTIVE BRANDS, AND INTERACTIVE BRANDS AFFILIATES, MAKE NO WARRANTIES, CONDITIONS, REPRESENTATIONS, OR TERMS (EXPRESS OR IMPLIED WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE, OR OTHERWISE) AS TO ANY MATTER INCLUDING WITHOUT LIMITATION NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, INTEGRATION, SATISFACTORY QUALITY, OR FITNESS FOR ANY PARTICULAR PURPOSE, EXCEPT FOR, AND TO THE EXTENT, THAT A WARRANTY MAY NOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW IN LICENSEE'S JURISDICTION. LIMITATION OF LIABILITY. IN NO EVENT WILL INTERACTIVE BRANDS, OR INTERACTIVE BRANDS AFFILIATES, BE LIABLE TO LICENSEE FOR ANY DAMAGES, CLAIMS, OR COSTS WHATSOEVER, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL DAMAGES, OR ANY LOST PROFITS OR LOST SAVINGS, EVEN IF A REPRESENTATIVE OF INTERACTIVE BRANDS OR ONE OF INTERACTIVE BRANDS AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS, OR COSTS, OR FOR ANY CLAIM BY ANY THIRD PARTY. THESE LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN LICENSEE'S JURISDICTION. THE AGGREGATE LIABILITY OF INTERACTIVE BRANDS, AND INTERACTIVE BRANDS AFFILIATES, UNDER OR IN CONNECTION WITH THIS EULA, SHALL BE LIMITED TO THE AMOUNT PAID FOR THE LICENSED SOFTWARE, IF ANY. ADDITIONAL TERMS FOR BETA SOFTWARE. If the Licensed Software that Licensee receives with this EULA is pre-commercial release or “BETA” software (“Pre-release Software”), then, to the extent that any provision in this section is in conflict with any other term or condition in this EULA, this section supersedes such conflicting term(s) and condition(s) as to the Pre-release Software, but only to the extent necessary to resolve the conflict. Licensee acknowledges that the Pre-release Software does not represent the final product from Interactive Brands, and may contain bugs, errors, and other problems that could cause system or other failures and data loss. Consequently, Interactive Brands disclaims any warranty or liability obligations to Licensee of any kind whatsoever. IN APPLICABLE JURISDICTIONS WHERE LIABILITY CANNOT BE SO EXCLUDED FOR PRE-RELEASE SOFTWARE, BUT MAY BE LIMITED, INTERACTIVE BRANDS LIABILITY, AND THAT OF ITS SUPPLIERS, SHALL BE LIMITED TO THE TOTAL OF FIFTY DOLLARS (U.S. $50.00). �Licensee acknowledges that Interactive Brands has not promised or guaranteed to Licensee that the Pre-release Software will be announced or made available to anyone in the future, and that Interactive Brands has no express or implied obligation to Licensee to announce or introduce the Pre-release Software. Interactive Brands may decide not to introduce a product similar to, or compatible with, the Pre-release Software. Accordingly, Licensee acknowledges that any research or development that Licensee performs regarding the Pre-release Software, or any product associated with the Pre-release Software, is done entirely at Licensee's own risk. During the term of this EULA, if requested by Interactive Brands, Licensee will provide feedback to Interactive Brands regarding testing and use of the Pre-release Software, including error or bug reports. If Licensee has been provided the Pre-release Software pursuant to a separate written agreement, then Licensee's use of the Pre-release Software is also governed by that agreement. Notwithstanding anything in this EULA to the contrary, if Licensee is located outside the United States, Licensee will return or destroy all unreleased versions of the Pre-release Software within 30 days of the completion of Licensee's testing of the Pre-release Software if that date is earlier than the date scheduled for Interactive Brands first commercial shipment of the publicly released (commercial) Software. SURVIVAL OF DISCLAIMERS. The exclusions of warranties and liability limitations shall survive the termination of this EULA, however caused; but this survival shall not imply or create any continued right to use the Licensed Software after termination of this EULA. EXPORT RULES. Licensee shall not ship, transfer, or export Licensed Software into any country or use Licensed Software in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions, or regulations (collectively the “Export Laws.”) If the Licensed Software is identified as export controlled items under the Export Laws, Licensee represents and warrants that Licensee, and Licensee's employees who will use the Licensed Software are not a citizen, or otherwise located within, an nation embargoed by the United States (including without limitation: Iran, Syria, Sudan, Cuba, and North Korea), and that Licensee, and Licensee's employees who will use the Licensed Software, are not otherwise prohibited under the Export Laws from receiving the Software. All rights to use the Licensed Software are granted on condition that Licensee complies with the Export Laws, and all such rights are forfeited if Licensee fails to comply with the Export Laws. GOVERNING LAW. This EULA is subject to, and will be governed by and construed in accordance with the substantive laws in force of the country of Malta. INTELLECTUAL PROPERTY OWNERSHIP. The Licensed Software and any authorized copies that Licensee makes are the intellectual property of, and are owned by, Interactive Brands, and by third parties whose intellectual property has been licensed by Interactive Brands. The structure, organization, and code of the Licensed Software are the valuable trade secrets and confidential information of Interactive Brands and such third parties. The Licensed Software is protected by law, including without limitation, the copyright laws of the United States and other countries, and by international treaty provisions. Except as expressly provided in this EULA, Licensee is not granted any intellectual property rights in the Licensed Software. RESERVATION OF RIGHTS. Interactive Brands reserves all rights not expressly granted to Licensee by this EULA. The rights �granted to Licensee are limited to Interactive Brands intellectual property rights, and to the intellectual property rights of third parties licensed by Interactive Brands, and do not include any intellectual property rights. COMPLETE AGREEMENT. This EULA constitutes the entire agreement between the Licensee and Interactive Brands relating to the Licensed Software, and it supersedes all prior or contemporaneous representations, discussions, undertakings, communications, agreements, arrangements, advertisements, and understandings regulating to the Licensed Software. MODIFICATION. This EULA may only be modified or amended by a writing signed by an authorized officer of Interactive Brands. SEVERABILITY. If any provision of this EULA is determined by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this EULA will remain in full force and effect. WAIVER. No failure or delay by Interactive Brands in exercising its rights or remedies shall operate as a waiver unless made by specific written notice. No single or partial exercise of any right or remedy of Interactive Brands shall operate as a waiver or preclude any other, or further, exercise of that, or any other right, or remedy. PROOF OF COMPLIANCE. Within 30 calendar days after request from Interactive Brands, or Interactive Brands authorized representative, Licensee will provide full documentation, and certify under penalty of perjury, that Licensee's use of any and all Licensed Software is in conformity with this EULA. TERMINATION. If Licensee breaches this EULA, and fails to cure any breach within 30 calendar days after request from Interactive Brands, or Interactive Brands authorized representative, Interactive Brands may terminate this EULA, whereupon all rights granted to Licensee shall immediately cease. Furthermore, upon termination, Licensee shall return to Interactive Brands all copies of the Licensed Software, or verify in writing that all copies of the Licensed Software have been destroyed . �
nw/11.txt
APPLIED MATHS NV, KEISTRAAT 120, 9830 SINT-MARTENS-LATEM, BELGIUM WWW.APPLIED-MATHS.COM Software End User License Agreement IMPORTANT: PLEASE READ THIS END USER LICENSE AGREEMENT CAREFULLY. DOWNLOADING, INSTALLING OR USING APPLIED MATHS SOFTWARE CONSTITUTES ACCEPTANCE OF THIS AGREEMENT. APPLIED MATHS IS WILLING TO LICENSE THE SOFTWARE TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS LICENSE AGREEMENT. BY DOWNLOADING OR INSTALLING THE SOFTWARE, YOU ARE BINDING YOURSELF AND THE BUSINESS ENTITY THAT YOU REPRESENT (COLLECTIVELY, 'CUSTOMER') TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN APPLIED MATHS IS UNWILLING TO LICENSE THE SOFTWARE TO YOU AND YOU SHOULD NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE. The Software: As used in this Agreement, the term "Software" means, collectively: (i) the software product identified above; (ii) all the contents of the disk(s), CD-ROM(s), electronic mail and its file attachments, or other media through which this Agreement is provided, including the object code form of the software delivered via a CD-ROM, electronic mail, or Web page; (iii) digital images, stock photographs, clip art, or other artistic works; (iv) related explanatory written materials and any other possible documentation related thereto ('Documentation'), and (v) upgrades, modified versions, updates, additions, and copies of the Software, if any, licensed to Customer by Applied Math s under this Agreement. License: Conditioned upon compliance with the terms and conditions of this Agreement, Applied Maths NV or its subsidiary licensing the Software instead of Applied Maths NV ('Applied Maths'), grants to Customer a nonexclusive and nontransferable license to use for Customer's internal business purposes the Software and the Documentation for which Customer has paid the required license fees. 'Documentation' means written information (whether contained in user or technical manuals, training materials, specifications or otherwise) specifically pertaining to the Software and made available by Applied Maths with the Software in any manner (including on CD-Rom, or on-line). Customer's license to use the Software shall be limited to, and Customer shall not use the Software in excess of, a single hardware or that number of concurrent users, sessions, IP addresses, port(s), seat(s), server(s) or site(s), as set forth in the applicable Purchase Order which has been accepted by Applied Maths and for which Customer has pa id to Applied Maths the required license fee. NOTE: For evaluation or beta copies for which Applied Maths does not charge a license fee, the above requirement to pay license fees does not apply. General Limitations: This is a license, not a transfer of title, to the use of the Software and Documentation, and Applied Maths retains ownership of all copies of the Software and Documentation. Customer acknowledges that the Software and Documentation contain trade secrets of Applied Maths, its suppliers or licensors, including but not limited to the specific internal design and structure of individual programs and associated interface information. Accordingly, except as otherwise expressly provided under this Agreement, Customer shall have no right to-, and Customer specifically agrees not to: (i) transfer, assign or sublicense its license rights to any other person or entity, and Customer acknowledges that any attempted transfer, assignment, sublicense or use shall be void; (ii) reverse engineer or decompile, decrypt, disassemble or otherwise reduce the Software to human readable form, or permit third parties to do the same; (iii) disclose, provide, or otherwise make available trade secrets contained within the Software and Documentation in any for m to any third party without the prior written consent of Applied Maths. Customer shall implement reasonable security measures to protect such trade secrets. To the extent required by law, and at Customer's written request, Applied Maths shall provide Customer with the interface information needed to achieve interoperability between the Software and another independently created program, on payment of Applied Maths' applicable fee, if any. Customer shall observe strict obligations of confidentiality with respect to such information and shall use such information in compliance with any applicable terms and conditions upon which Applied Maths makes such information available. In case Customer uses an evaluation license or beta copy of the Software, Customer specifically a grees not to: (i) use or permit the Software to be used to perform services for third parties, whether on a service bureau or time sharing basis; (ii) use or permit the Software to be used for commercial or profit-oriented purposes; (iii) publish any results obtained with the Software, except with the express written authorization of Applied Maths. Software, Upgrades and Additional Copies: For purposes of this Agreement, 'Software' shall include (and the terms and conditions of this Agreement shall apply to) computer programs, including firmware, as provided to Customer by Applied Maths or an authorized Applied Maths reseller, and any upgrades, updates, bug fixes or modified versions thereto (collectively, 'Upgra des') or backup copies of the Software licensed or provided to Customer by Applied Maths or an authorized Applied Maths reseller. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT: (1) CUSTOMER HAS NO LICENSE OR RIGHT TO USE ANY ADDITIONAL COPIES OR UPGRADES UNLESS CUSTOMER, AT THE TIME OF ACQUIRING SUCH COPY OR UPGRADE, ALREADY HOLDS A VALID LICENSE TO THE ORIGINAL SOFTWARE AND HAS PAID THE APPLICABLE FEE FOR THE UPGRADE OR ADDITIONAL COPIES; AND (2) THE MAKING AND USE OF ADDITIONAL COPIES IS LIMITED TO NECESSARY BACKUP PURPOSES ONLY. Proprietary Notices: Customer agrees to maintain and reproduce all copyright and other proprietary notices on all copies, in any form, of the Software in the same form and manner that such copyright and other proprietary notices are included on the Software. Except as expressly authorized in this Agreement, Customer shall not make any copies or duplicates of any Software without the �prior written permission of Applied Maths. Term and Termination: This Agreement and the license granted herein shall remain effective until terminated. Customer may terminate this Agreement and the license at any time by destroying all copies of Software, any Documentation, and, if provided, by sending back the hardware protection key (dongle). Customer's rights under this Agreement will terminate immediately without notice from Applied Maths if Customer fails to comply with any provision of this Agreement. Upon termination, Customer shall destroy all copies of Software and Documentation in its possession or control. All confidentiality obligations of Customer and all limitations of liability and disclaimers and restrictions of warranty shall survive termination of this Agreement. In addition, the provisions of the section titled 'General Terms Applicable to the Limited Warranty Statement and End User License' shall surv ive termination of this Agreement. Export: Software and Documentation, including technical data, may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer agrees to comply strictly with all such regulations and acknowledges that he has the responsibility to obtain licenses to export, re-export, or import Software and Documentation. Privacy: Customer acknowledges that anonymous usage data may be collected when consulting on-line Documentation. Applied Maths collects usage data with the sole intention of improving Documentation and will not share this information with third parties. Clinical Use Disclaimer: The Software licensed is for research purposes only. Applied Maths makes no representation that the Software is a clinically approved medical device, and users understand and accept that any result or its display presented in whatever form obtained using the Software must not be used for any purpose other than research. Limited Warranty: Subject to the limitations and conditions set forth herein, Applied Maths warrants that commencing from the date of shipment to Customer (but in case of resale by an authorized Applied Maths reseller, commencing not more than thirty (30) days after original shipment by Applied Maths), and continuing for a period of 1 year: (a) the media on which the Software is furnished will be free of defects in materials and workmanship under normal use; and (b) the Software substantially conforms to the Documentation. The date of shipment of the Software by Applied Maths is set forth on the packaging material in which the Software is shipped. Except for the foregoing, the Software is provided AS IS. This limited warranty extends only to the Customer who is the original licensee. Customer's sole and exclusive remedy and the entire liability of Applied Maths and its suppliers and licensors under this limited warranty will be (i) replacement of defective media and/or (ii) at Applied Maths's option, repair, replacement, or refund of the purchase price of the Software, in both cases subject to the condition that any error or defect constituting a breach of this limited warranty is reported to Applied Maths or the party supplying the Software to Customer, if different than Applied Maths, within the warranty period. Applied Maths or the party supplying the Software to Customer may, at its option, require return of the Software as a condition to the remedy. Because of the unique n ature of the algorithms and methodologies provided in the Software, Customer acknowledges that Applied Maths has incorporated protection measures against any form of non -licensed use of the Software or parts thereof. Customer agrees that the Software is provided with a hardware- or software- (for network licenses) protection key (dongle) which is required to run the Software and any of its applications. IT IS THE FULL RESPONSIBILITY OF CUSTOMER TO PROTECT THE DONGLE ADEQUATELY AND SECURE IT AGAINST LOSS AND DISAPPEARANCE. CUSTOMER WILL NOT BE ENTITLED TO OBTAIN A REPLACEMENT DONGLE UNLESS THE ORIGINAL DEFECTIVE DONGLE IS RETURNED TO APPLIED MATHS BY A TRACKABLE COURIER SERVICE. Insurance: Applied Maths offers hardware protection key insurance to minimize the risk of lost, stolen and/or defective dongles beyond the standard warranty terms. NOTE: For evaluation or beta copies for which Applied Maths does not charge a license fee, the Software may not be protected by means of a dongle but using a license negotiated with an Applied Maths Internet server. In no event does Applied Maths warrant that the Software is error free or that Customer will be able to operate the Software without problems or interruptions. Restrictions: This warranty does not apply if the Software (a) has been altered, except by Applied Maths or its authorized representative, (b) has not been installed, operated, or maintained in accordance with instructions supplied by App lied Maths, or (c) is licensed, for beta, evaluation, testing or demonstration purposes for which Applied Maths does not charge a purchase price or license fee. DISCLAIMER OF WARRANTY: EXCEPT AS SPECIFIED IN THIS WARRANTY, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, SATISFACTORY QUALITY, NON-INTERFERENCE, ACCURACY OF INFORMATIONAL CONTENT, OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW AND ARE EXPRESSLY DISCLAIMED BY APPLIED MATHS, ITS SUPPLIERS AND LICENSORS. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, THE ABOVE LIMITATION MAY NOT APPLY. THIS WARRANTY GIVES CUSTOMER SPECIFIC LEGAL RIGHTS, AND CUSTOMER MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. This disclaimer and exclusion shall apply even if the express warranty set forth above fails of its essential purpose. General Terms Applicable to the Limited Warranty Statement and End User License. Disclaimer of Liabilities. REGARDLESS WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL APPLIED MATHS OR ITS SUPPLIERS BE LIABLE FOR ANY LOST REVENUE, PROFIT, OR LOST OR DAMAGED DATA, BUSINESS INTERRUPTION, LOSS OF CAPITAL, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY OR WHETHER ARISING OUT OF THE USE OF OR INABILITY TO USE SOFTWARE OR OTHERWISE AND EVEN IF APPLIED MATHS OR ITS SUPPLIERS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall Applied Maths's or its suppliers' or licensors' liability to Customer, whether in contract, tort (including negligence), breach of warranty, or otherwise, exceed the price paid by Customer for the Software that gave rise to the claim. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. Customer agrees that the limitations of liability and disclaimers set forth herein will apply regardless of whether Customer has accepted the Software or any other product or service delivered by Applied Maths. Customer acknowledges and agrees that Applied Maths has set its prices and entered into this Agreement in reliance upon the disclaimers of warranty and the limitations of liability �set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract r emedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties. The Warranty and the End User License shall be governed by and construed in accordance with the Belgian law or the laws of the State of Texas, U.S., without reference to or application of choice of law rules or principles. If any portion hereof is found to be void or unenforceable, the remaining provisions of the Agreement shall remain in full force and effect. Except as expressly provided herein, this Agreement constitutes the entire agreement between the parties with respect to the license of the Software and Documentation and supersedes any conflicting or additional terms contained in any purchase order or elsewhere, all of which terms are excluded. This Agreement has been written in the English language, and the parties agree that the English version will govern. �
nw/110.txt
End User License Agreement for Software IMPORTANT. READ CAREFULLY: This End User License Agreement ("EULA") is a legal agreement between you (either an individual or a single entity) and Samsung Electronics Co., Ltd. ("Samsung") for software, owned by Samsung and its affiliated companies and its third party suppliers and licensors, that accompanies this EULA, which includes computer software and may include associated media, printed materials, "online" or electronic documentation in connection with your use of this device ("Software"). This device requires the use of preloaded software in its normal operation. BY USING THE DEVICE OR ITS PRELOADED SOFTWARE, YOU ACCEPT THE TERMS OF THIS EULA. IF YOU DO NOT ACCEPT THESE TERMS, DO NOT USE THE DEVICE OR THE SOFTWARE. 1. GRANT OF LICENSE. Samsung grants you the following rights provided that you comply with all terms and conditions of this EULA: You may install, use, access, display and run one copy of the Software on the local hard disk(s) or other permanent storage media of one computer and use the Software on a single computer or a mobile device at a time, and you may not make the Software available over a network where it could be used by multiple computers at the same time. You may make one copy of the Software in machine readable form for backup purposes only; provided that the backup copy must include all copyright or other proprietary notices contained on the original. Certain items of the Software may be subject to open source licenses. The open source license provisions may override some of the terms of this EULA. We make the applicable open source licenses available to you on the Legal Notices section of the Settings menu of your device. 2. RESERVATION OF RIGHTS AND OWNERSHIP. Samsung reserves all rights not expressly granted to you in this EULA. The Software is protected by copyright and other intellectual property laws and treaties. Samsung or its suppliers own the title, copyright and other intellectual property rights in the Software. The Software is licensed, not sold. 3. LIMITATIONS ON END USER RIGHTS. You may not reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or algorithms of, the Software (except and only to the extent that such activity is expressly permitted by applicable law not withstanding this limitation), or modify, or disable any features of, the Software, or create derivative works based on the Software. You may not rent, lease, lend, sublicense or provide commercial hosting services with the Software. 3 �4. CONSENT TO USE OF DATA. You agree that Samsung and its affiliates may collect and use technical information gathered as part of the product support services related to the Software provided to you, if any, such as IMEI (your device’s unique identification number), device number, model name, customer code, access recording, your device’s current SW version, MCC (Mobile Country Code), MNC (Mobile Network Code). Samsung and its affiliates may use this information solely to improve their products or to provide customized services or technologies to you and will not disclose this information in a form that personally identifies you. At all times your information will be treated in accordance with Samsung’s Privacy Policy, which can be viewed at: http://account.samsung.com/membership/pp. 5. SOFTWARE UPDATES. Samsung may provide to you or make available to you updates, upgrades, supplements and add-on components (if any) of the Software, including bug fixes, service upgrades (parts or whole), products or devices, and updates and enhancements to any software previously installed (including entirely new versions), (collectively “Update”) after the date you obtain your initial copy of the Software to improve the Software and ultimately enhance your user experience with your device. This EULA applies to all and any component of the Update that Samsung may provide to you or make available to you after the date you obtain your initial copy of the Software, unless we 4 provide other terms along with such Update. To use Software provided through Update, you must first be licensed for the Software identified by Samsung as eligible for the Update. After the Update, you may no longer use the Software that formed the basis for your Update eligibility. The updated Software version may add new functions and, in some limited cases, may delete existing functions. While the Update will be generally available, in some limited circumstances, the Software updates will only be offered by your network carrier, and such Software updates will be governed by your contractual relationship with your network carrier. With the “Automatic Update” function enabled (as in the default setting in the System Update menu in the Setting), your device downloads some Updates automatically from time to time. Your device will, however, ask for your consent before installing any Update If you choose to disable the “Automatic Update” function, then you can check the availability of new Updates by clicking on the “Check Update” menu in the Setting. We recommend that you check availability of any new Updates periodically for optimal use of your device. If you want to avoid any use of network data for the Update downloads, then you should choose the “Wi-Fi Only” option in the Setting. (Regardless of the option you choose, the “Automatic Update” function downloads Updates only through Wi-Fi connection.) �6. Some features of the Software may require your device to have access to the internet and may be subject to restrictions imposed by your network or internet provider. Unless your device is connected to the internet through Wi-Fi connection, the Software will access through your mobile network, which may result in additional charges depending on your payment plan. In addition, your enjoyment of some features of the Software may be affected by the suitability and performance of your device hardware or data access. 7. SOFTWARE TRANSFER. You may not transfer this EULA or the rights to the Software granted herein to any third party unless it is in connection with the sale of the mobile device which the Software accompanied. In such event, the transfer must include all of the Software (including all component parts, the media and printed materials, any upgrades, this EULA) and you may not retain any copies of the Software. The transfer may not be an indirect transfer, such as a consignment. Prior to the transfer, the end user receiving the Software must agree to all the EULA terms. 8. EXPORT RESTRICTIONS. You acknowledge that the Software is subject to export restrictions of various countries. You agree to comply with all applicable international and national laws that apply to the Software, including all the applicable export restriction laws and regulations. 9. TERMINATION. This EULA is effective until terminated. Your rights under this License will terminate automatically without notice from Samsung if you fail to comply with any of the terms and conditions of this EULA. Upon termination of this EULA, you must cease all use of the Software and destroy all copies, full or partial, of the Software. 10. DISCLAIMER OF WARRANTY. UNLESS SEPARATELY STATED IN A WRITTEN EXPRESS LIMITED WARRANTY ACCOMPANYING YOUR DEVICE, ALL SOFTWARE PROVIDED BY SAMSUNG WITH THIS MOBILE DEVICE (WHETHER INCLUDED WITH THE DEVICE, DOWNLOADED, OR OTHERWISE OBTAINED) IS PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS, WITHOUT WARRANTIES OF ANY KIND FROM SAMSUNG, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT POSSIBLE PURSUANT TO APPLICABLE LAW, SAMSUNG DISCLAIMS ALL WARRANTIES EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY OR WORKMANLIKE EFFORT, FITNESS FOR A PARTICULAR PURPOSE, RELIABILITY OR AVAILABILITY, ACCURACY, LACK OF VIRUSES, QUIET ENJOYMENT, NON INFRINGEMENT OF THIRD PARTY RIGHTS OR OTHER VIOLATION OF RIGHTS. SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OR LIMITATIONS OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, 5 �OBTAINED BY YOU FROM SAMSUNG OR ITS AFFILIATES SHALL BE DEEMED TO ALTER THIS DISCLAIMER BY SAMSUNG OF WARRANTY REGARDING THE SOFTWARE, OR TO CREATE ANY WARRANTY OF ANY SORT FROM SAMSUNG. 11. THIRD-PARTY APPLICATIONS. Certain third party applications may be included with, or downloaded to this mobile device. Samsung makes no representations whatsoever about any of these applications. Since Samsung has no control over such applications, you acknowledge and agree that Samsung is not responsible for the availability of such applications and is not responsible or liable for any content, advertising, products, services, or other materials on or available from such applications. You expressly acknowledge and agree that use of third party applications is at your sole risk and that the entire risk of unsatisfactory quality, performance, accuracy and effort is with you. It is up to you to take precautions to ensure that whatever you select to use is free of such items as viruses, worms, Trojan horses, and other items of a destructive nature. References on this mobile device to any names, marks, products, or services of any third-parties are provided solely as a convenience to you, and do not constitute or imply an endorsement, sponsorship, or recommendation of, or affiliation with the third party or its products and services. You agree that Samsung shall not be responsible or liable, directly or indirectly, for any damage or loss, including but not limited to any damage 6 to the mobile device or loss of data, caused or alleged to be caused by, or in connection with, use of or reliance on any such third party content, products, or services available on or through any such application. You acknowledge and agree that the use of any third-party application is governed by such third party application provider's Terms of Use, License Agreement, Privacy Policy, or other such agreement and that any information or personal data you provide, whether knowingly or unknowingly, to such third-party application provider, will be subject to such third party application provider's privacy policy, if such a policy exists. SAMSUNG DISCLAIMS ANY RESPONSIBILITY FOR ANY DISCLOSURE OF INFORMATION OR ANY OTHER PRACTICES OF ANY THIRD PARTY APPLICATION PROVIDER. SAMSUNG EXPRESSLY DISCLAIMS ANY WARRANTY REGARDING WHETHER YOUR PERSONAL INFORMATION IS CAPTURED BY ANY THIRD PARTY APPLICATION PROVIDER OR THE USE TO WHICH SUCH PERSONAL INFORMATION MAY BE PUT BY SUCH THIRD PARTY APPLICATION PROVIDER. 12. SAMSUNG APPLICATIONS. Certain Samsung applications and services may be included with, or downloaded to, this mobile device. Many of them require Samsung Services membership registration (“Samsung Account”), and your rights and obligations will be set forth in separate Samsung Account terms and conditions and privacy policies. There are non-Samsung Account applications and services that require your consent to �their separate terms and conditions and privacy policies. You expressly acknowledge and agree that your use of such applications and services will be subject to the applicable terms and conditions and privacy policies. 13. LIMITATION OF LIABILITY. SAMSUNG WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO THE USE OR THE INABILITY TO USE THE SOFTWARE OR ANY THIRD PARTY APPLICATION, ITS CONTENT OR FUNCTIONALITY, INCLUDING BUT NOT LIMITED TO DAMAGES CAUSED BY OR RELATED TO ERRORS, OMISSIONS, INTERRUPTIONS, DEFECTS, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, FAILURE TO CONNECT, NETWORK CHARGES, IN-APP PURCHASES, AND ALL OTHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES EVEN IF SAMSUNG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. NOTWITHSTANDING THE FOREGOING, SAMSUNG ELECTRONIC CO.'S TOTAL LIABILITY TO YOU FOR ALL LOSSES, DAMAGES, CAUSES OF ACTION, INCLUDING BUT NOT LIMITED TO THOSE BASED ON CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF YOUR USE OF THE SOFTWARE OR THIRD PARTY APPLICATIONS ON THIS MOBILE DEVICE, OR ANY OTHER PROVISION OF THIS EULA, SHALL NOT EXCEED THE AMOUNT PURCHASER PAID SPECIFICALLY FOR THIS MOBILE DEVICE OR ANY SUCH THIRD PARTY APPLICATION THAT WAS INCLUDED WITH THIS MOBILE DEVICE. THE FOREGOING LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS (INCLUDING SECTIONS 10, 11, 12 AND 13) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. 14. U.S. GOVERNMENT END USERS RESTRICTED RIGHTS. The Software is licensed only with "restricted rights" and as "commercial items" consisting of "commercial software" and "commercial software documentation" with only those rights as are granted to all other end users pursuant to the terms and conditions herein. All Products are provided only with "restricted rights" with only those rights as are granted to all other end users pursuant to the terms and conditions herein. All Software and Products are provided subject to Federal Acquisition Regulation (FAR) 52.227.19. 15. APPLICABLE LAW. This EULA is governed by the laws of the jurisdiction where you are a resident or, if a resident of the United States, by the laws of the state of Texas, without regard to its conflict of law provisions. This EULA shall not be governed by the UN Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. 7 �16. DISPUTE RESOLUTION. (a) Non-United States residents. If a dispute, controversy or difference arising in any way from this EULA or your use of the Software is not amicably settled, it shall be subject to the nonexclusive jurisdiction of the courts of the jurisdiction where you are a resident. Notwithstanding the foregoing, Samsung may apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction. (b) United States residents. ALL DISPUTES WITH SAMSUNG ARISING IN ANY WAY FROM THIS EULA OR YOUR USE OF THE SOFTWARE SHALL BE RESOLVED EXCLUSIVELY THROUGH FINAL AND BINDING ARBITRATION, AND NOT BY A COURT OR JURY. Any such dispute shall not be combined or consolidated with any other person’s or entity’s claim or dispute, and specifically, without limitation of the foregoing, shall not under any circumstances proceed as part of a class action. The arbitration shall be conducted before a single arbitrator, whose award may not exceed, in form or amount, the relief allowed by the applicable law. The arbitration shall be conducted according to the American Arbitration Association (AAA) Commercial Arbitration Rules applicable to consumer disputes. This arbitration provision is entered pursuant to the Federal Arbitration Act. The laws of the State of Texas, without reference to its choice of laws principles, shall govern the interpretation of the EULA and all disputes that are subject to this arbitration 8 provision. The arbitrator shall decide all issues of interpretation and application of this arbitration provision and the EULA. For any arbitration in which your total damage claims, exclusive of attorney fees and expert witness fees, are $5,000.00 or less ("Small Claim"), the arbitrator may, if you prevail, award your reasonable attorney fees, expert witness fees and costs as part of any award, but may not grant Samsung its attorney fees, expert witness fees or costs unless it is determined that the claim was brought in bad faith. In a Small Claim case, you shall be required to pay no more than half of the total administrative, facility and arbitrator fees, or $50.00 of such fees, whichever is less, and Samsung shall pay the remainder of such fees. Administrative, facility and arbitrator fees for arbitrations in which your total damage claims, exclusive of attorney fees and expert witness fees, exceed $5,000.00 ("Large Claim") shall be determined according to AAA rules. In a Large Claim case, the arbitrator may grant to the prevailing party, or apportion among the parties, reasonable attorney fees, expert witness fees and costs. Judgment may be entered on the arbitrator's award in any court of competent jurisdiction. This arbitration provision also applies to claims against Samsung’s employees, representatives and affiliates if any such claim arises from the licensing or use of the Software. You may opt out of this dispute resolution procedure by providing notice to Samsung no later than 30 calendar days from the date of the first consumer purchaser’s �purchase of this device. To opt out, you must send notice by e-mail to [email protected], with the subject line: "Arbitration Opt Out." You must include in the opt out e-mail (a) your name and address; (b) the date on which the device was purchased; (c) the device model name or model number; and (d) the IMEI or MEID or Serial Number, as applicable, if you have it (the IMEI or MEID or Serial Number can be found (i) on the device box; (ii) on the device information screen, which can be found under "Settings;" (iii) on a label on the back of the device beneath the battery, if the battery is removable; and (iv) on the outside of the device if the battery is not removable). Alternatively, you may opt out by calling 1-888-987-4357 no later than 30 calendar days from the date of the first consumer purchaser's purchase of the device and providing the same information. These are the only two forms of notice that will be effective to opt out of this dispute resolution procedure. Opting out of this dispute resolution procedure will not affect your use of the device or its preloaded Software, and you will continue to enjoy the benefits of this license. any provision of this EULA is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. [050113] 17. ENTIRE AGREEMENT; SEVERABILITY. This EULA is the entire agreement between you and Samsung relating to the Software and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software or any other subject matter covered by this EULA. If 9 �
nw/111.txt
------------------------------------------------------POSER PRO END USER LICENSE AGREEMENT ------------------------------------------------------This End User License Agreement (“EULA”) is between you (both the individual installing the Program and any single legal entity on behalf of which such individual is acting) (“you” or “your”) and Smith Micro Software, Inc., and/or its subsidiaries (“Company”). PLEASE READ THIS EULA CAREFULLY BEFORE USING THE SOFTWARE. BY CLICKING THE “I ACCEPT” BUTTON WHEN INSTALLING THE PROGRAM, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, CLICK ON THE “I DO NOT ACCEPT” BUTTON. IF YOU DO NOT ACCEPT THIS EULA, YOU MAY NOT USE OR ACCESS THE SOFTWARE. USING OR ACCESSING ANY PART OF THE SOFTWARE INDICATES THAT YOU ACCEPT THESE TERMS. ------------------------------------------------------DEFINITIONS ------------------------------------------------------- “Content” means animations, characters, clothing, faces, hair, geometries, images, materials, meshes, morphs, motion files, props, PoserPython scripts, textures, bump maps, transparencies, and similar files and data created with the intent of being used within the Program and/or third party applications. - “Documentation” means any written material in any form for installation and use of the Program provided by authorized agents or representatives of the Company. - “Legitimate Uses” means (a) creating morph targets based on the Restricted Content, provided that any distribution of the morph targets will not include the original mesh connectivity information (for example, distribution in the form of data utilized with morph moving utilities or in a .CR2 file that references the original geometry, but no inclusion of the complete mesh); (b) creating texture templates derived from the Restricted Content to create new maps for either Restricted Content or Other Content; (c) creating tutorials, books, or other educational materials using images of the Program interface or Content for sale, distribution, public display, or public performance, provided such materials are intended to educate users as to use of the Program; (d) creating original Content for sale, distribution, public display, or public performance; (e) creating materials (e.g., shader trees) for use with either Restricted Content or Other Content; (f) creating characters or props based on Restricted Content in Proprietary File Formats, where the original (or modified) geometry, texture, or other Restricted Content files are not distributed with such characters or props; or (g) creating PoserPython scripts. - “Other Content” means Content that is not Restricted Content or Unrestricted Content. Other Content may be subject to license terms imposed by the Other Content’s original creator. - “Program” means the Company computer software and associated files in Proprietary File Formats delivered via the accompanying physical media or electronic media. - “Proprietary File Formats” means any of Company’s proprietary compressed and uncompressed formats and/or future proprietary file formats, including files with the following extensions: CM2, CR2, FC2, HD2, HR2, LT2, MC6, MT5, PP2, PZ2, PZ3. - “Restricted Content” means all Content included with or part of the Program that is not Unrestricted Content, including without limitation mesh objects (geometry) in any format, files in Proprietary File Formats, images, materials, texture, transparency maps, Documentation, and Company’s proprietary data. sf-2470374 �- “Unrestricted Content” means Content included with or part of the Program that is specifically identified in the Documentation or listed in this EULA as Unrestricted Content. The following figure geometries and their associated textures are Unrestricted Content: low res male, low res female, medium res male, medium res female. ------------------------------------------------------THIRD-PARTY TECHNOLOGY AND CONTENT ------------------------------------------------------Portions of the Program and Other Content contain technology and/or other components licensed by the Company from the following third parties: Pixels Digital, Inc., Singular Inversions, Inc., Size8 Software, Inc., and Automatic Sync Technologies LLC, each of whom retain the ownership, copyrights, trademarks, and patents to their respective contributions to the Program. Other Content that is subject to third-party rights included with Program and Documentation is copyrighted and owned by the original Content creators. ------------------------------------------------------GENERAL ------------------------------------------------------You agree to use the Program, Documentation and Content only for lawful purposes. Any use of the Program, Documentation or Content other than as granted in this EULA must be approved by the Company's prior written consent. The Company maintains an ongoing EULA enforcement program. Violation of any provision in this EULA automatically terminates this EULA. The Company reserves all other rights that it may have for violation of this EULA. ------------------------------------------------------PROGRAM LICENSE ------------------------------------------------------A. Subject to the terms and conditions of this EULA and your payment of the license fee, the Company grants you a limited, personal, nontransferable and nonexclusive license (without the right to sublicense): (i) to use a single copy of the Program (except as expressly permitted in the Documentation) solely for your own internal business operations on a single computer as set forth in Section K below for production operation or, on a temporary basis, on a backup system if such equipment is inoperative, consistent with the limitations specified or referenced in this EULA and the Documentation; (ii) to use the Documentation provided with the Program in support of your authorized use of the Program; and (iii) to copy the Program to make one (1) archival copy of the Program for your personal archival or backup purposes, and to make a sufficient number of copies for Legitimate Uses or the intended use described in the Documentation, provided that all titles and trademark, copyright and restricted rights notices are reproduced on all such copies. Any other uses of the Program, including without limitation the Program interface, other than those granted in this EULA must be approved by the Company's prior written consent. B. You will not use, copy, modify, derive, or transfer the Program or Documentation, or any copy, modification, derivation, or merged portion thereof, in whole or in part via any means or for any purpose whatsoever except as expressly permitted in this EULA or the Documentation. You will not relicense, sublicense, rent, lease, or lend the Program for third-party training, commercial time-sharing or service bureau use. You will not, and will not permit any third party to, reverse engineer, decompile, debug, disassemble, circumvent the security features of, or interfere with the normal functionality and operation of the Program for any reason whatsoever without the express prior written consent of the Company or except to the extent expressly permitted by sf-2470374 �applicable law. If the Program is an upgrade to a previous version of the Program, you must possess and maintain a valid license to such previous version in order to use the upgrade. C. You expressly acknowledge that the Company has a valuable proprietary interest in both the Program and the Documentation. All title, ownership, interest and rights in and to the patent, copyright, trademark, trade secret and any other intellectual property rights in the Program (and any derivative works thereof) and the Documentation (and any derivative works thereof), not expressly granted to you by this EULA remain with the Company. You do not acquire any other rights, express or implied, in the Program (and any derivative works thereof) and the Documentation (and any derivative works thereof) other than those rights expressly granted under this EULA. Without limiting the generality of the foregoing, the Company retains all title, ownership, interest and rights in and to the patent, copyright, trademark, trade secret and any other intellectual property rights in the copy of the Program contained on your archival media, and all of the terms of this EULA apply to such archival copy as if it were the original Companyproduced copy of the Program that was furnished to you when you paid the licensing fee. D. Except as otherwise expressly permitted in the Documentation, you will only use the Program on a single computer, meaning that you must treat the Program “like a book.” "Like a book" means that the Program may be used by any number of people and may be freely moved from one computer to another so long as no possibility exists of the Program being used at more than one computer simultaneously. More than one person at a time cannot read the same copy of a book, and this restriction applies to the Program. The Company is pleased to offer site licenses for multiple simultaneous users. Please contact the Company at the address below for details. E. You, your employees, and/or authorized agents must protect the Program's confidentiality and act to enforce your obligations under this EULA. You cannot distribute or otherwise make the Program or Documentation available to any third party via any means whatsoever, public or private, for any purpose, commercial or not, unless explicitly allowed by this EULA. F. You assume full responsibility for your selection of the Program to achieve your intended results and for the installation, use, and results you obtain from the Program. Company has no obligation to provide support, maintenance, upgrades, modifications or new releases under this EULA. ------------------------------------------------------CONTENT LICENSE ------------------------------------------------------G. Subject to the terms and conditions of this EULA and your payment of the license fee, Company grants you a limited, personal, nontransferable and nonexclusive license (without the right to sublicense): a. To reproduce, prepare derivative works based upon, distribute, publicly display, and publicly perform the Unrestricted Content for any lawful purpose other than to create a product which is intended to compete with the Program or to create new content which is intended to compete with the Restricted Content. b. To prepare derivative works based upon the Restricted Content solely for Legitimate Uses and lawful uses. c. To reproduce, prepare derivative works based upon, distribute, publicly display, and publicly perform content you create using Restricted Content, provided that such use of Restricted Content shall be solely Legitimate Uses and lawful uses. H. Notwithstanding the foregoing, nothing shall limit the Company’s right to independently create, develop, own, market, distribute, license, sublicense, import, export, sell, or otherwise exploit any content or materials similar to any derivative works based upon the Content. I. You will use the Other Content in accordance with all applicable license terms imposed by the content's original creator. sf-2470374 �J. You will not use, copy, modify, derive, distribute, transfer or sublicense the Restricted Content, the Unrestricted Content, or the Other Content or any copy, modification, derivation, or portion thereof, in whole or in part via any means or for any purpose whatsoever except as expressly permitted in this EULA or the Documentation. K. You expressly acknowledge that the Company has a valuable proprietary interest in the Restricted Content and the Unrestricted Content. All title, ownership, interest and rights in and to the patent, copyright, trademark, trade secret and any other intellectual property rights in the Restricted Content and the Unrestricted Content not expressly granted to you by this EULA remain with the Company. You do not acquire any other rights, express or implied, in the Company-created Restricted Content (and any derivative works thereof) other than those rights expressly granted under this EULA. L. Except as otherwise expressly permitted in the Documentation or unless otherwise provided for herein, you will only use the Content on a single computer, meaning that you must treat the Content “like a book.” The Company is pleased to offer site licenses for multiple simultaneous users. Please contact the Company at the address below for details. ------------------------------------------------------TERM ------------------------------------------------------M. This EULA remains in full force and effect until terminated. You may terminate it at any time by returning or destroying both the Program and the Documentation, together with all copies, modifications, and merged portions of the Product and the Documentation in any form. The Company is in no way obliged to issue refunds. Company may terminate this EULA at any time upon your breach of any of the provisions hereof. N. Upon termination, you will immediately cease all use of the Program, return or destroy both the Program and the Documentation to the Company, together with all copies, modifications, and merged portions of the Product and the Documentation in any form, and so certify to vendor. Termination of this EULA for any reason in no way limits the Company's right to continue enforcing all rights provided by law and does not entitle you to a refund of your license fee except as provided herein. All provisions of this EULA that protect the Company's proprietary rights continue in full force and effect after termination. ------------------------------------------------------LIMITED WARRANTY ------------------------------------------------------O. The Company provides the Program and the Documentation AS IS with no warranty. The Company makes no representations or warranties, either express or implied, of any kind with respect to the Program and the Documentation. To the fullest extent permissible under applicable law, Company expressly disclaims all warranties of any kind, either express or implied, with respect to the Program or the Documentation, including warranties of merchantability, fitness for a particular purpose, satisfactory quality, and non-infringement. The Company does not warrant that the Program's functionality will meet your requirements or that the Program operation will be uninterrupted or error-free. No distributor, dealer, or any other entity or person is authorized to expand or alter either this warranty or this EULA, and the Company will not be bound by any such representation in any way. You assume the entire risk of the Program's and the Documentation's quality and performance. Should the Program prove defective, you assume the entire cost of all necessary servicing repair or correction. ------------------------------------------------------LIMITATION OF LIABILITY ------------------------------------------------------- sf-2470374 �P. In no event will the Company be liable to you for any indirect, incidental, consequential, special, or punitive damages, including damages for any lost profits, arising out of your use or inability to use the Program and the Documentation, even if the Company has been advised of the possibility of such damages or for any claim by any other party. Some states and countries do not allow the limitation or exclusion of liability for certain damages, so the above limitation or exclusion may not apply to you. In no event will the Company’s liability to you or any other person for damages hereunder exceed the amount of the license fee paid by you to use the Program regardless of the form of the claim. The parties acknowledge that this limitation of liability are an essential element of the bargain between the parties, without which Company would not have entered into this EULA. Company’s pricing reflects this allocation of risk and the limitation of liability specified herein. ------------------------------------------------------INDEMNIFICATION ------------------------------------------------------Q. You will indemnify and hold harmless, and at Company’s request defend, Company and its affiliates, successors and assigns from and against any and all claims, losses, liabilities, damages, settlements, expenses and costs (including, without limitation, attorneys’ fees and court costs) which arise out of or relate to any third party claim or threat thereof that your use of the Program, Documentation or Content is unlawful or not otherwise permitted by this EULA. Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification hereunder. ------------------------------------------------------EXPORT LAW ASSURANCES ------------------------------------------------------R. Export of this Program and Documentation is governed by the laws and regulations of the United States and import laws and regulations of certain other countries. You will comply with all such laws and regulations. Export of this Program and Documentation to any entity on the Denied Parties List and other lists promulgated by various agencies of the United States Federal Government is strictly prohibited. ------------------------------------------------------U.S. GOVERNMENT RESTRICTED RIGHTS ------------------------------------------------------S. The Program and Documentation is provided with RESTRICTED RIGHTS. Any use, modification, reproduction, release, performance, display or disclosure by the U.S. Government or any of its agencies shall be governed solely by the terms of this EULA and shall be prohibited except to the extent expressly permitted by the terms of this EULA. The Software and Documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFAR Section 227.7202 and FAR 12.212(b), as applicable. Any technical data provided that is not covered by the above provisions is deemed to be “technical data-commercial items” pursuant to DFAR Section 227.7015(a). Any use, modification, reproduction, release, performance, display or disclosure of such technical data shall be governed by the terms of DFAR Section 227.7015(b). ------------------------------------------------------MISCELLANEOUS ------------------------------------------------------- sf-2470374 �T. This EULA shall be governed by the laws of the State of California, without giving effect to any choice of law rules. This EULA will not be governed by the United Nations Convention on Contracts for the International Sales of Goods, the application of which is expressly excluded. Exclusive jurisdiction over and venue of any suit arising out of or relating to this EULA will be in the state and federal courts of Orange County, California. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this License shall continue in full force and effect. The waiver by either party of any default or breach of this EULA will not constitute a waiver of any other or subsequent default or breach. You may not assign, sell, transfer, delegate or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, this EULA or any rights or obligations under this EULA without the prior written consent of the Company. Any purported assignment, transfer or delegation by you will be null and void. This EULA constitutes the entire agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this EULA. This EULA may not be modified or amended except in a writing signed by a duly authorized representative of each party. ------------------------------------------------------CONTACT INFORMATION ------------------------------------------------------U. If you have questions concerning this EULA or need to contact Customer Service, please contact Company at this address: Smith Micro Software, Inc., 51 Columbia, Aliso Viejo, CA 92656. ------------------------------------------------------TRADEMARK & COPYRIGHT NOTICE ------------------------------------------------------Poser, Poser Pro, the Poser logo, and the Smith Micro Logo are trademarks and or registered trademarks of Smith Micro Software, Inc. Poser copyright © 1991-2008 All Rights Reserved. All other product names are trademarks or registered trademarks of their respective holders. Licensed product. This EULA does not grant you the right to use, and you shall not use, the copyrighted materials or trademarks of Company or its affiliates in any advertising, publicity or promotion, or to express or imply any endorsement of such party. Without limiting the generality of the foregoing, you may not express or imply any endorsement by the Company or its affiliates of any tutorials, books, or other educational materials you create using images of the Program interface or Content. BY CLICKING ON THE “I ACCEPT” BUTTON WHEN INSTALLING THE PROGRAM, YOU ACKNOWLEDGE THAT (1) YOU HAVE READ AND REVIEWED THIS AGREEMENT IN ITS ENTIRETY, (2) YOU AGREE TO BE BOUND BY THIS AGREEMENT, (3) THE INDIVIDUAL SO CLICKING HAS THE POWER, AUTHORITY AND LEGAL RIGHT TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOU AND, (4) BY SO CLICKING, THIS AGREEMENT CONSTITUTES BINDING AND ENFORCEABLE OBLIGATIONS OF YOU. sf-2470374 �
nw/112.txt
Provider End User License Agreement Select Agreement number Date MA EEC to complete Select Enrollment issuance MA EEC to complete 3185342 / 7085033 Eligible recipient’s Tax Identification Number number MA EEC to complete of 01S62524/01S6794 MA EEC to complete Name of eligible recipient signing this Agreement MA EEC to complete IMPORTANT—READ CAREFULLY: This Microsoft Provider End User License Agreement (“Provider EULA”) is issued to you, the eligible recipient (as such term is defined in the Massachusetts Department of Early Education and Care’s (MA EEC’s) Microsoft Select volume license agreement(s), and documents the transfer of the product license(s) listed below pursuant to MA EEC’s Microsoft Select Agreement. The issuance of this Provider EULA is conditioned upon your current status as an eligible recipient at the time this Provider EULA is issued. This Provider EULA is a legal agreement between you and Microsoft Licensing, GP (“Licensor”). For purposes of this Provider EULA, the term “Software Product” shall mean the product(s) identified in Section 1 below, and the term “License” shall mean the right to make, use or access a particular copy of the Software Product. The Software Product is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Software Product is licensed, not sold. By signing below, accepting delivery, and otherwise running or using the Software Product, you agree to be bound by the terms of this Provider EULA. Software Product license. 1. Grant of license Licensor hereby grants you the right to use one copy of the version number of the Software Product(s) identified below. Your right to use each Software Product shall be governed by and subject to the relevant section(s) of the most current product use rights as set forth in MA EEC’s Microsoft Select volume licensing agreement. A copy of such use terms is attached to and incorporated by reference into this Provider EULA. Product Description Version No. Microsoft Edition 2003 Office Standard Language English 2. Description of other rights and limitations. a. Limitations on reverse engineering, recompilation, and disassembly. You may not reverse engineer, decompile, or disassemble the Software Product, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. b. Separation of components. The Software Product is licensed as a single product. Its component parts, if any, may not be separated for use on more than one computer unless expressly stated otherwise in the use terms. c. Rental. You may not rent, lease, or lend the Software Product to any third party. d. Support Services. Customers acquiring software under the Microsoft Select License program are not entitled to free telephone support. Since you have acquired the Software Product under MA EEC’s Select volume licensing agreement, you shall not be entitled to free telephone support from Microsoft with respect to the Software Product, and must obtain any support from MA EEC. Any supplemental software code provided to you by MA EEC (and which was provided to MA EEC by Microsoft) as part of such support services shall be considered part of the Software Product and subject to the terms and conditions of this Provider EULA. With respect to technical information you provide to Microsoft or MA EEC as part of any such support services, Microsoft may use such information for its business Microsoft Academic Select v6.4 Student License Agreement (U.S.) (English) August 15, 2005 Page 1 of 3 �purposes, including for product support and development. Microsoft will not utilize such technical information in a form that personally identifies you. e. Software Transfer. Notwithstanding any terms to the contrary in MA EEC’s Microsoft Select volume licensing agreement, you may not sell, assign or otherwise transfer your rights under this Provider EULA. In view of the fact that you have acquired the right to use the Software Product under special terms pursuant to MA EEC’s Microsoft Select volume licensing agreement, any transfer of your rights under this Provider EULA is strictly prohibited. In the event that you transfer the computer upon which the License was provided to you by MA EEC to any party other than to MA EEC, you must remove the Software Product from the computer prior to such transfer. f. Termination. Without prejudice to any other rights, Microsoft may terminate this Provider EULA if you fail to comply with the terms and conditions of this Provider EULA. In such event, you must destroy all copies of the Software Product and all of its component parts. 3. Upgrades. All operating system licenses provided under this Provider EULA are upgrade Licenses. No full operating system licenses are available under MA EEC’s Microsoft Select volume license agreement. If the Software Product is labeled as an upgrade, you must be properly licensed to use a product identified by Microsoft as being eligible for the upgrade to use the Software Product. A Software Product labeled as an upgrade replaces and/or supplements the product that formed the basis for your eligibility for the upgrade. You may use the resulting upgraded product only in accordance with the terms of this Provider EULA. If the Software Product is an upgrade of a component of a package of software programs that you licensed as a single product, the Software Product may be used only as part of that single product package and may not be separated for use on more than one computer. 4. Copyright. All title and copyrights in and to the Software Product (including but not limited to any images, photographs, animations, video, audio, music, text, and “applets” incorporated into the Software Product), and any copies of the Software Product are owned by Microsoft or its suppliers. The Software Product is protected by copyright laws and international treaty provisions. Therefore, you must treat the Software Product like any other copyrighted material except that you may not perform your own installation of the Software Product, and may only use the Software Product on the single Granted Computer upon which MA EEC has installed the Software product for you. You may not make backup copies or archival copies of the Software Product. MA EEC will keep a backup copy from which it will perform any reinstallation that you may require. 5. U.S. government restricted rights. The Software Product is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software—Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is Microsoft Corporation/One Microsoft Way/Redmond, WA 98052-6399. 6. Limited warranty. For the purposes of this limited warranty, the following definitions shall apply: “Software Product” means an “eligible product,” as such term is defined in the Microsoft volume license agreement(s) between the Massachusetts Department of Early Education and Care (“MA EEC”); and “Granted Computer” means the computer that was provided to you by MA EEC, upon which the Software Product is installed. Microsoft warrants that the eligible product will perform substantially in accordance with the applicable user documentation published by Microsoft for a period of ninety (90) days from the date you first received the granted computer with the eligible product installed upon it. Some states and jurisdictions do not allow limitations on duration of an implied warranty, so the above limitation may not apply to you. To the extent allowed by applicable law, implied warranties on the eligible product, if any, are limited to ninety (90) days. Notwithstanding the foregoing, Microsoft under no circumstances warrants the eligible product copy on the granted computer. Microsoft does not provide you with any free support services associated with your License. Microsoft Provider End User License Agreement v6.4 of 3 (U.S.) (English) August 15, 2005 Page 2 �CUSTOMER REMEDIES. In the event that the eligible product fails to meet the above Limited Warranty, you must return the eligible product (along with the granted computer and your Provider EULA) to MA EEC. Microsoft’s, its suppliers’ and the MA EEC’s entire liability and your exclusive remedy shall be, at Microsoft’s option, either (a) the replacement of the eligible product that does not meet Microsoft’s Limited Warranty with one that does meet the Warranty, in which case MA EEC will return the granted computer to you with the replacement eligible product installed; or (b) the removal of the eligible product from the granted computer, in which case MA EEC will return the granted computer to you with the eligible product removed and will terminate the License transfer. This Limited Warranty is void if failure of the eligible product has resulted from accident, abuse, or misapplication. Any replacement eligible product will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. NO OTHER WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MICROSOFT AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, WITH REGARD TO THE ELIGIBLE PRODUCT, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHERS, WHICH VARY FROM STATE TO STATE. 6. Limitation of liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MICROSOFT OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE PRODUCT OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF MICROSOFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, MICROSOFT’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS PROVIDER EULA SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE PRODUCT OR U.S.$5.00. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. 7. Miscellaneous. a. Choice of law. This Provider EULA is governed by the laws of the state of Massachusetts. b. Questions. Should you have any questions concerning this Provider EULA, please contact MA EEC. If you desire to contact Microsoft for any reason, please write: Microsoft Sales Information Center/One Microsoft Way/Redmond, WA 98052-6399. By signing below, you agree to be bound by the terms of this Provider EULA: Name of eligible recipient Signature Printed name Printed tax identification number Date Microsoft Provider End User License Agreement v6.4 of 3 (U.S.) (English) August 15, 2005 Page 3 �
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PSCAD™ /EMTDC™ Simulation Software END USER LICENSE AGREEMENT (EULA) 1) Definitions. In this Agreement, the following terms shall have the following meanings: “Agreement” means this agreement and Schedules A, B, C and D entered into between MHRC and Licensee effective as of the date of receipt of delivery of the Software by Licensee. “Licensee” means a person or entity who installs and/or uses the Software. “MHRC” means Manitoba Hydro International Ltd. “MHRC’s Representatives” means the directors, officers, employees and subcontractors of MHRC and MHRC’s authorized agents, resellers and distributors of the Software. “Results” means any results, findings or other outputs produced or generated from use of the Software. “Software” means PSCAD™ and EMTDC™ simulation software in executable format. 2) Scope. The terms and conditions of this Agreement (i) apply to Software provided to License either by hardware lock-based licensing or through centralized licensing, unless otherwise specifically stated in this Agreement and (ii) apply to all of the following license types except where expressly stated otherwise in this Agreement: Professional/Commercial License Professional/Academic License Educational License Free License In addition, the terms and conditions set out in the following Schedules shall apply to the type of license specified below: (a) (b) (c) (d) Schedule A applies only to a Professional/Commercial License Schedule B applies only to a Professional/Academic License Schedule C applies only to an Educational License Schedule D applies only to a Free License. 3) Prohibition. IF LICENSEE DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT (INCLUDING AS CONTAINED IN ANY APPLICABLE SCHEDULE), LICENSEE SHALL CLICK ON “QUIT” OR “I DO NOT ACCEPT THE TERMS OF THE LICENSE AGREEMENT” AND SHALL NOT INSTALL, ACCESS OR OTHERWISE USE THE SOFTWARE AND SHALL PERMANENTLY ERASE THE SOFTWARE FROM LICENSEE’S SYSTEMS, DESTROY ANY PHYSICAL MEDIA CONTAINING THE SOFTWARE, AS WELL AS ACCOMPANYING DOCUMENTATION AND PROMPTLY RETURN ANY SUPPLIED HARDWARE LOCKS TO MHRC SUCH THAT NO ELECTRONIC COPIES OR PHYSICAL MANIFESTATIONS OF THE LICENSED SOFTWARE, DOCUMENTATION OR HARDWARE LOCKS, IN ANY FORM, REMAIN IN LICENSEE’S POSSESSION, USE OR CONTROL. 4) Agreement. By clicking on “I accept the terms of the License Agreement” or “I agree” when prompted in the installation of the Software, Licensee confirms its agreement to all terms and conditions of this Agreement. This Agreement also applies to any updates, supplements or add-on components for the Software that MHRC may subsequently provide to Licensee, unless other terms accompany those items. In that case, to the extent they conflict or are inconsistent with this Agreement, those other terms will apply. October 19, 2016 Page 1 of 10 �5) Ownership. The Software is licensed to Licensee, not sold. MHRC retains all title, rights, proprietary interests in, and ownership of, the Software. 6) Grant of License. Subject to Section 21 - Termination of this Agreement, and payment of license fees by Licensee in full, where applicable, MHRC, as licensor, grants Licensee a perpetual (unless stated to be time-limited in MHRC’s communication to Licensee, in which event the grant of license shall be for the time period stated therein), non-exclusive, non-assignable, non-transferable, non-sublicensable, limited right to use the Software for Licensee’s internal purposes. 7) Intellectual Property. The Software is protected by intellectual property laws and other statutory provisions, common law principles and treaties worldwide, and contains trade secrets of MHRC. MHRC reserves all rights not expressly granted. Licensee shall in no event, directly or indirectly, infringe upon, harm, contest or oppose the validity of any rights of MHRC in relation to the Software. 8) No Modifications. Licensee shall not modify, adapt or translate the Software, or create derivative or compilation works using or based upon the Software. Licensee shall not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software or any part thereof. Licensee shall not circumvent any technological measures that (i) monitor or control installation or reproduction of the Software or access to the Software, (ii) limit the number of simultaneous instances of the Software, or (iii) limit features of the Software. 9) Restrictions. Licensee shall not copy, reproduce, disclose, sell, license, sublicense, assign, lease, loan or otherwise transfer or convey the Software or any right in the Software to any person or third party, including Licensee’s affiliates, without the prior written consent of MHRC, provided however, that (i) Licensee may make copies of the Software strictly for internal backup purposes on condition that such copies contain the same proprietary notices as, and are not altered in any manner from, the original format of the Software and (ii) Licensee may also copy the documentation accompanying the Licensed Software for internal instructional purposes of Licensee. 10) Responsibility for Use. Licensee shall be solely responsible for the entire risk of the use of the Software or any use or reliance on any Results, and for any and all claims or liabilities that might arise as a result therefrom. Licensee is responsible for the supervision, management and control of the use of the Software and the Results, including, but not limited to, selection of the Software to achieve Licensee’s intended purposes; determining the appropriate uses of the Software and the Results; accuracy of any Results; and establishing adequate backup to prevent the loss of data in the event of a malfunction of the Software. The Software is a tool that is intended to be used only by professionals trained in its usage and application. It is not to be a substitute for professional judgment or independent testing. Licensee shall not use the Software or any Results in any manner or for any purpose that violates or infringes any intellectual property right of any person or third party. Licensee shall be solely responsible therefore and shall indemnify and hold harmless MHRC and MHRC Representatives from and against any and all losses, costs, damages and expenses suffered or incurred by MHRC or any MHRC Representatives resulting therefrom. The Software is not intended for use in activities in which the use of the Software or any Results could lead to death, personal injury, or physical or environmental damage, and in the event Licensee’s use of the Software or any Results does so lead to death, personal injury, or physical or environmental damage, Licensee shall be solely responsible therefor and shall indemnify and hold harmless MHRC and MHRC Representatives from and against any and all losses, costs, damages and expenses suffered or incurred by MHRC or any MHRC Representatives resulting therefrom. 11) Centralized Licensing. If Licensee is accessing and using the Software pursuant to centralized licensing with the Software hosted on MHRC’s designated website, Licensee shall be provided user authentication and access measures to access the Software on MHRC’s designated website via the internet. Licensee shall be solely responsible for securing its own access to and use of the internet, and acknowledges that certain locally active security settings and hardware/software (i.e. anti-spam, anti-virus, pop-up blocker, and other similar software) may interfere with or prevent access to and/or use of the Software and that MHRC has no control over any of the foregoing. MHRC does not represent or warrant that Licensee's access and use of Software will be uninterrupted or error-free, but in the event of any scheduled or unscheduled downtime, MHRC shall use reasonable efforts to notify Licensee by some means. Licensee acknowledges that October 19, 2016 Page 2 of 10 �pursuant to centralized licensing, access to the Software is provided over the internet or other networks over which MHRC has no control, and that substantial risks with respect to such access exist, including, without limitation, loss and corruption of data, delays, non-deliveries or misdirected deliveries of data, loss of confidentiality or integrity of data, and service interruptions. Licensee shall be solely responsible for any and all such risks, and agrees to ascertain, implement, and take all appropriate or necessary precautions to protect itself from losses and damages associated with such risks. Without limiting the generality or application of anything in this Agreement, Licensee shall be solely responsible for all of the foregoing, and shall fully indemnify and hold harmless MHRC from and against any and all losses, costs, damages and expenses suffered or incurred by MHRC and/or any MHRC Representatives or payable by any such parties, arising out of or related to any of the foregoing. 12) Testing. Licensee may conduct benchmark testing of the Software. If Licensee discloses the results of such testing, Licensee shall disclose at a website or other medium accessible by the general public (i) all information necessary for replication of the tests, including details of benchmark testing methodology, test parameters, platforms tested, name of any third party testing tool used to conduct the testing, and the source code used for the benchmark, (ii) the dates Licensee conducted the benchmark tests, (iii) the results of the testing and (iv) confirmation of the version of the Software used in the testing. 13) "As Is" Condition. Subject to Section 14 - Limited Warranty of this Agreement, the Software is provided "as is" and neither MHRC nor any MHRC Representatives make any warranty as to its integrity, use or performance and do not make any warranties, undertakings, representations, or terms, express or implied, written or oral, arising by statute, common law, custom usage or otherwise in relation to the Software, and expressly disclaim same as to any matter including without limitation merchantability, fitness for any particular purpose, satisfactory quality, safety, security, reliability, currentness, timeliness or requirements of or compatibility with Licensee’s hardware or software. 14) Limited Warranty. MHRC warrants that the Software will perform the functions in accordance with the written description of the user manual and installation instructions for a period of twelve (12) calendar months following receipt of delivery of the Software by Licensee. During such period, if the Software does not perform in accordance with the written description set out in the Software’s user manual and installation instructions, Licensee may request MHRC to provide assistance in rectifying the defect or replacing the Software. The foregoing warranty does not apply in the event the Software is not properly installed in accordance with the user manual and installation instructions or where the Software has been altered, modified or tampered with by the Licensee or any third party. This warranty does not apply to malfunctions relating to system incompatibility between the Software and Licensee’s hardware or other software. This warranty only extends to those failures to perform communicated by Licensee to MHRC in writing within the (12) month warranty period. No other oral or written information or advice given by MHRC or any MHRC Representative shall create a warranty, and Licensee may not rely upon such information or advice except at its sole risk and expense. MHRC’S ENTIRE LIABILITY AND LICENSEE’S SOLE REMEDY FOR DEFECTS IN THE SOFTWARE OR PERFORMANCE/NONPERFORMANCE OF THE SOFTWARE IN ACCORDANCE WITH THE WRITTEN DESCRIPTION SET OUT IN THE SOFTWARE’S USER MANUAL AND INSTALLATION INSTRUCTIONS SHALL BE TO USE COMMERCIALLY REASONABLE EFFORTS TO CORRECT THE DEFECTS IN THE SOFTWARE SO THAT IT OPERATES IN ACCORDANCE WITH THE WRITTEN DESCRIPTION SET OUT IN THE SOFTWARE’S USER MANUAL AND INSTALLATION INSTRUCTIONS OR TO REPLACE THE NONCONFORMING SOFTWARE. IF SUCH EFFORT FAILS, MHRC SHALL (I) REFUND THE PRICE LICENSEE PAID FOR THE SOFTWARE UPON RETURN OF THE NONCONFORMING SOFTWARE, OR (II) PROVIDE SUCH OTHER REMEDY AS MAY BE REQUIRED BY LAW. 15) Warranty of Non-Infringement. In addition to the limited warranty provided in Section 14 – Limited Warranty of this Agreement, MHRC warrants to Licensee that the Software code, as provided by MHRC to Licensee, does not contain any content that infringes any third party intellectual property rights. If the Software code is held to constitute an infringement of any third party intellectual property right by a court of competent jurisdiction and its use in enjoined, MHRC shall, at its option and at its own expense: (i) modify, with the Licensee’s reasonable assistance, the infringing Software code without impairing in any respect the functionality or performance of the Software, so that it is non-infringing; (ii) procure for October 19, 2016 Page 3 of 10 �Licensee the right to continue to use the infringing Software code; (iii) replace the Software code with any equally suitable, non-infringing replacement, which Software code the License shall have the right to require reasonable acceptance testing; or (iv) require Licensee to discontinue use of the infringing Software code and refund Licensee a repayment of all licensee fees paid to MHRC for the Software. Notwithstanding Section 18 – Limitation on Liability of this Agreement, MHRC agrees to indemnify and hold harmless the Licensee from and against any costs (including reasonable attorney fees) and direct damages payable by the Licensee resulting from a final judgment by a court of competent jurisdiction that the Software code directly infringes registered intellectual property of a third party, except only to the extent that such costs and/or damages are not caused by or arising out of a misrepresentation or breach of this Agreement by the Licensee, or a negligent act, omission, fraud, or misconduct, of the Licensee or any third party client of Licensee, and provided that MHRC is notified promptly in writing of the action and that the Licensee has not reached any compromise or settlement of such action or made any admissions in respect of the same, and that MHRC is given the option, at its expense, to control and/or defend the action and with the Licensee’s full cooperation. 16) Third Party Software. Third party software that may be provided with or incorporated into the Software is made available to Licensee on the following terms and conditions: a) Third party software is made available as a convenience. MHRC is the provider and not the licensor of the third party software. ACCEPTANCE AND USE OF THIRD PARTY SOFTWARE IS AT LICENSEE’S OWN RISK. b) Third party software is governed exclusively by the applicable license agreement included with such software by the third party to which Licensee will be deemed to have agreed upon installation of the Software. Licensee shall contact the vendor or manufacturer of third party software directly for any matter respecting the third party software, including, without limitation, its license agreement and any technical support and maintenance. c) THIRD PARTY SOFTWARE IS PROVIDED "AS IS" AND NEITHER MHRC NOR ANY MHRC REPRESENTATIVES MAKE ANY WARRANTY AS TO ITS INTEGRITY, USE OR PERFORMANCE AND DO NOT MAKE ANY WARRANTIES, UNDERTAKINGS, REPRESENTATIONS, OR TERMS, EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARISING BY STATUTE, COMMON LAW, CUSTOM USAGE OR OTHERWISE IN RELATION TO THIRD PARTY SOFTWARE AND THE USE OF ANY THIRD PARTY SOFTWARE IN CONNECTION WITH THE SOFTWARE, AND EXPRESSLY DISCLAIM SAME AS TO ANY MATTER INCLUDING WITHOUT LIMITATION NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, SATISFACTORY QUALITY, SAFETY, SECURITY, RELIABILITY, CURRENTNESS, TIMELINESS OR REQUIREMENTS OF OR COMPATIBILITY WITH LICENSEE’S HARDWARE OR SOFTWARE. 17) Indemnity. Licensee shall indemnify and save harmless MHRC and MHRC’s Representatives from and against any and all losses, costs, damages and expenses suffered or incurred by MHRC and/or any MHRC Representatives or payable by any such parties to any third party, arising out of or related to Licensee’s (i) use of the Software; (ii) production, use or delivery to a third party of any Results; (iii) negligent acts or omissions, fraud or willful misconduct in relation to this Agreement or the Software or Results or (v) breach or non-compliance with any provision(s) of this Agreement. 18) LIMITATION ON LIABILITY. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EXCEPT SUBJECT TO SECTION 5 LIMITATION ON LIABILITY FOR FREE LICENSE OF SCHEDULE D OF THIS AGREEMENT (WHICH ONLY APPLIES TO A FREE LICENSE), THE AGGREGATE LIABILITY OF MHRC AND MHRC REPRESENTATIVES TO LICENSEE AND ANY THIRD PARTY CLAIMING THROUGH LICENSEE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) ), BREACH OF WARRANTY, STATUTORY OR STRICT LIABILITY, EQUITY OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, THIRD PARTY SOFTWARE OR THIS AGREEMENT, SHALL NOT EXCEED THE FEES PAID BY LICENSEE TO MHRC FOR THE SOFTWARE. 19) EXCLUSION OF DAMAGES. NOTWTHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT SHALL MHRC OR MHRC’S REPRESENTATIVES BE LIABLE FOR October 19, 2016 Page 4 of 10 �ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL LOSSES OR DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUES OR PROFITS, LOSS OF BUSINESS, LOSS OF GOODWILL, LOSS OF OR DAMAGE TO DATA, LOSS OF PRODUCTION, OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS) THAT LICENSEE OR ANY PARTY CLAIMING THROUGH LICENSEE MAY SUFFER OR INCUR IN CONNECTION WITH THE SOFTWARE, INCLUDING THIRD PARTY SOFTWARE, OR THIS AGREEMENT WHETHER OR NOT SUCH LOSS OR DAMAGE IS BASED IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), BREACH OF WARRANTY, STATUTORY OR STRICT LIABILITY, EQUITY OR OTHERWISE, EVEN IF MHRC OR MHRC’S REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 20) Force Majeure. In the event that MHRC is prevented, delayed or interrupted in performing its obligations under this Agreement due to any occurrence beyond its control, such as, but not limited to, strikes, walkouts, wars or acts of government or government agencies or other authorities having jurisdiction, then such prevention, delay or interruption shall not be construed to be a default under this Agreement. MHRC shall give notice to Licensee of such events as soon as reasonably possible and both parties shall use their commercially reasonable efforts to comply with the terms of this Agreement notwithstanding such prevention, delay or interruption. 21) Termination. MHRC may terminate this Agreement immediately and without notice if Licensee fails to comply with any term or condition of this Agreement or in the event of any negligent act or omission, fraud or wilful misconduct by Licensee in relation to this Agreement or the Software or Results. This Agreement shall also be automatically terminated without notice in the event Licensee attempts to assign or otherwise transfer any of Licensee’s rights or obligations under this Agreement without the prior written authorization of MHRC or if Licensee becomes bankrupt or insolvent or otherwise ceases to carry on business. Termination is not an exclusive remedy and all other remedies otherwise available to MHRC at law or equity shall remain. Upon termination of this Agreement, for any reason, Licensee shall promptly cease all use of the Software, permanently erase and destroy all physical and electronic copies of the Software and documentation provided in connection with the Software and promptly return any hardware locks in Licensee’s possession or control to MHRC. All terms and conditions relating to confidentiality, proprietary rights, non-disclosure, indemnity, limited warranty, “as is” condition and limitation of liability and all other terms and conditions necessary to the interpretation of this Agreement shall survive the termination of this Agreement. 22) Further Assurances. Licensee shall do, execute, acknowledge and deliver or cause to be done, executed, acknowledged or delivered all such further acts, deeds, documents, instruments, assignments, transfers, conveyances, powers of attorney and assurances as may be reasonably necessary or desirable to effect the purpose of this Agreement and carry out its provisions. 23) No Export. The Software shall not be shipped, transferred or exported by Licensee or anyone operating under Licensee’s direction or control into any country or used in any manner prohibited by the laws of Canada or the United States of America. 24) No Assignment. Licensee shall not assign this Agreement without the prior written approval of MHRC, which may be withheld in MHRC’s sole discretion. 25) Severability. If a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision, or portion thereof, shall be considered separate and severable from this Agreement and the other provisions of this Agreement shall remain in force and continue to be binding upon Licensee and MHRC as though the invalid provision had never been included in this Agreement. 26) No Waiver. A waiver of any right under this Agreement by MHRC shall not be deemed to be a waiver of any other right, and a waiver of any right in any one instance by MHRC shall not be deemed to be a waiver of that right in any other instance. 27) Enurement. This Agreement shall enure to the benefit of, and be binding upon, the heirs, executors, administrators, successors and permitted assigns of the Licensee and MHRC. October 19, 2016 Page 5 of 10 �28) Governing Law. This Agreement shall be governed by the laws of the province of Manitoba and the laws of Canada applicable in Manitoba, and Licensee agrees to irrevocably submit to the exclusive jurisdiction of the courts of the province of Manitoba. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded from application to this Agreement. 29) Entire Agreement. This Agreement including Schedules A, B, C and D attached hereto is the entire agreement between the Licensee and MHRC with regard to the matters contained herein and supersedes all prior formal and informal agreements, proposals, promises, inducements, representations, conditions, warranties, understandings, negotiations and discussions (whether oral or written and whether made by MHRC directly or by any MHRC Representative) of Licensee and MHRC with respect to such matters. There are no other undertakings, representations, warranties or promises between the Licensee and MHRC, express or implied with respect to the subject matter of this Agreement. All other terms, expressed or implied by statute or otherwise, are excluded to the fullest extent permitted by law. October 19, 2016 Page 6 of 10 �THIS IS SCHEDULE A TO PSCAD™/EMTDC™ SIMULATION SOFTWARE END USER LICENSE AGREEMENT The following terms and conditions apply only to a PROFESSIONAL/COMMERCIAL LICENSE: 1) Additional License Rights. In addition to the grant of license set out in Section 6 – Grant of License of this Agreement, pursuant to a Professional/Commercial License, Licensee is entitled to use the Software for commercial purposes, including without limitation, the processing of data for third party clients. 2) Software Support. Pursuant to a Professional/Commercial License, Licensee is entitled to receive 12 months of reasonable technical support and maintenance for the Software from MHRC, calculated from the date of receipt of delivery of the Software by Licensee. 3) Concurrent Simulations. The number of concurrent simulation instances per Professional/Commercial License purchased by Licensee shall be as specified in MHRC’s communication to Licensee at the time of purchase of such license or as may be amended by written agreement of the parties subsequent to such purchase. October 19, 2016 Page 7 of 10 �THIS IS SCHEDULE B TO PSCAD™/EMTDC™ SIMULATION SOFTWARE END USER LICENSE AGREEMENT The following additional terms and conditions apply only to a PROFESSIONAL/ACADEMIC LICENSE: 1) Qualification. To be entitled to purchase a Professional/Academic License, Licensee represents and warrants that it is (i) an accredited educational institution recognized by MHRC and (ii) a full-time, nonprofit, tax-exempt, school, college or university whose primary purpose is to provide instruction to an enrolled body of students through a full-time faculty, licensed by an appropriate authority, to confer degrees or diplomas which are recognized as qualifying the student to pursue a course of higher education. 2) Non-Commercial Use. Pursuant to a Professional/Academic License, the Software may only be used by Licensee for generally recognized academic and educational purposes such as educational studies, educational research, demonstration, test or evaluation for the sole and internal benefit of Licensee, its faculty and students and no other third party. 3) Commercial Use. Pursuant to a Professional/Academic Licensee, if the Software is used by Licensee, for the benefit of any third party other than Licensee’s faculty and students, Licensee will be liable to pay the then current full retail fees charged by MHRC for a Professional/Commercial License. 4) Software Support. Pursuant to a Commercial/Academic License, Licensee is entitled to receive 12 months of reasonable technical support and maintenance for the Software from MHRC, calculated from the date of receipt of delivery of the Software by Licensee. 5) Concurrent Simulations. The number of concurrent simulation instances per Professional/Academic License purchased by Licensee shall be as specified in MHRC’s communication to Licensee at the time of purchase of such license or as may be amended by written agreement of the parties subsequent to such purchase. October 19, 2016 Page 8 of 10 �THIS IS SCHEDULE C TO PSCAD™/EMTDC™ SIMULATION SOFTWARE END USER LICENSE AGREEMENT The following additional terms and conditions apply only to an EDUCATIONAL LICENSE: 1) Qualification. To be entitled to purchase an Educational License, Licensee represents and warrants that it is (i) an accredited educational institution recognized by MHRC and (ii) a full-time, non-profit, tax-exempt, school, college or university whose primary purpose is to provide instruction to an enrolled body of students through a full-time faculty, licensed by an appropriate authority, to confer degrees or diplomas which are recognized as qualifying the student to pursue a course of higher education. 2) Non-Commercial Use. Pursuant to an Educational License, the Software may only be used by Licensee for generally recognized academic and educational purposes such as educational studies, educational research, demonstration, test or evaluation for the sole and internal benefit of Licensee, its faculty and students and no other third party. 3) Commercial Use. Pursuant to an Educational License, if the Software is used by Licensee for the benefit of any third party other than Licensee’s faculty or students, Licensee will be liable to pay the then current full retail fees charged by MHRC for a Professional/Commercial License. 4) Functionality Limitations. The Software purchased pursuant to an Educational License has functionality limitations. For Software with full functionality, Licensee must purchase either a Professional/Commercial License or Professional/Academic License. 5) Software Support. Pursuant to an Educational License, Licensee is entitled to receive 12 months of reasonable technical support and maintenance for the Software from MHRC, calculated from the date of receipt of delivery of the Software by Licensee. 6) Concurrent Simulations. The number of concurrent simulation instances per Educational License purchased by Licensee shall be as specified in MHRC’s communication to Licensee at the time of purchase of such license or as may be amended by written agreement of the parties subsequent to such purchase. October 19, 2016 Page 9 of 10 �THIS IS SCHEDULE D TO PSCAD™/EMTDC™ SIMULATION SOFTWARE END USER LICENSE AGREEMENT The following terms and conditions apply only to a FREE LICENSE: 1) Grant of License. Notwithstanding Section 6 – Grant of License of this Agreement, pursuant to a Free License, MHRC, as licensor and at no charge, grants Licensee a non-exclusive, non-assignable, nontransferable, non-sublicensable, limited right to use a limited version of the Software for Licensee’s internal purposes. MHRC may terminate Licensee’s Free License at any time without advance notice, in which event, the provisions of Section 21 – Termination of this Agreement shall apply. 2) Data Collection. As a condition of the Free License, Licensee agrees to permit MHRC to automatically collect, store and use certain information related to Licensee’s use of the limited version of the Software as provided by Licensee’s computer upon which the limited version of the Software is installed. Licensee shall not install or use the limited version of the Software pursuant to a Free License if Licensee does not additionally consent to the separate “PSCAD™/EMTDC™ Privacy Policy and Consent to Collect Information,” which permits MHRC to collect, store and use Licensee’s Software usage statistics. Licensee shall not install or use the limited version of the Software pursuant to a Free License if Licensee’s jurisdiction prohibits the collection, storage or usage of such information. Licensee may install the limited version of the Software on an unlimited number of Licensee’s computers. 3) Functionality Limitations. The limited version of the Software pursuant to a Free License has functionality limitations. For full functionality of the Software, Licensee must purchase either a Professional/Commercial License or Professional/Academic License. 4) No Warranty. Section 14 - Limited Warranty and Section 15 – Warranty of Non-Infringement of this Agreement and the obligations of MHRC set out therein shall not apply to a Free License and shall be of no force or effect in connection with a Free License or Licensee’s installation or use of the limited version of the Software provided pursuant to a Free License. 5) LIMITATION OF LIABILITY FOR FREE LICENSE. NOTWITHSTANDING SECTION 18 LIMITATION ON LIABILITY OF THIS AGREEMENT AND ANY OTHER PROVISION OF THIS AGREEMENT, THE AGGREGATE LIABILITY OF MHRC AND MHRC REPRESENTATIVES TO LICENSEE AND ANY THIRD PARTY CLAIMING THROUGH LICENSEE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY, STATUTORY OR STRICT LIABILITY, EQUITY OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH A FREE LICENSE, THE LIMITED VERSION OF THE SOFTWARE PROVIDED PURSUANT TO THE FREE LICENSE, OR THIS AGREEMENT, SHALL NOT EXCEED FIVE CANADIAN DOLLARS ($5.00 CAD). October 19, 2016 Page 10 of 10 �
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Reallusion Content End User License Agreement (October 1th, 2015) BY CREATING A MEMBER ACCOUNT OR PURCHASING CONTENT FROM REALLUSION YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS AND CONDITIONS, UNDERSTAND THEM, AND AGREE TO BE BOUND BY THEM. IF YOU DO NOT AGREE WITH OR UNDERSTAND THESE TERMS AND CONDITIONS YOU SHOULD NOT USE THE REALLUSION MEMBER SERVICES OR PURCHASE CONTENT FROM REALLUSION. ▌Definitions 1. Content or The Models - refers to assets published at REALLUSION Content Store, Marketplace & republished partner content or user-generated certified content, including but not limited to 3D models, textures, materials, motions, audio, AML script, BVH, FBX, OBJ, iMotion, iMotionPlus and images. 2. Base Content - Refers to any mesh, motion, material, and all other CONTENT originally created and published by REALLUSION or VENDOR. 3. Derivative Content - Refers to CONTENT that is modified from original BASE CONTENT and republished by VENDOR. DERIVATIVE CONTENT must have significant modifications to the original base mesh and/or material in order to be published for sale in the Marketplace or Content Store. 4. Member - refers to any person who creates a member account at REALLUSION and/or any person or business who purchases Content at REALLUSION. 5. Vendor - refers to Reallusion or a Reallusion Member who publishes Content at REALLUSION. 6. Royalty Free - refers to a one-time usage fee as distinguished from a recurring rights fee. 7. Membership Services - refers to transfer and/or purchase of Content to and from REALLUSION via the REALLUSION Website. 8. For Sale - refers to Content that requires a purchase of license rights, as distinguished from Content available for free download. 9. Valid Sale - refers to a completed sale of license rights to Content via REALLUSION, as distinguished from a sale which is cancelled or incomplete for reasons including but not limited to refund at REALLUSION's discretion or credit card fraud. 10. Third Party Content Store – refers to any online and/or offline content store platform, software, and/or service other than the REALLUSION Content Store or REALLUSION Marketplace operated by a third party which is not associated with REALLUSION. �▌License Agreement between Member and Vendor For any transfer of Content from a Vendor to a Member the following terms apply in addition to any terms specified in the text description of the Content: Purchase of Content on the REALLUSION website constitutes a legal agreement between you and the Vendor. Your use of any 'Content' from the Reallusion Content Store constitutes your agreement to the following terms and limitations. The Vendor grants to you a Royalty Free Non-Exclusive Limited Commercial License to use the 'The Models'. The Vendor retains all copyright, title and interest to 'The Models' and associated files. 1. You are authorized to use, copy, modify 'The Models' for any use which is not restricted by the Limitations outlined below. 2. Reallusion grants you a non-exclusive, worldwide, Royalty-Free license to display Content within your iClone and/or CrazyTalk and/or CrazyTalk Animator movies. You may generate, sell and redistribute your movies created with iClone and/or CrazyTalk and/or CrazyTalk Animator with full ownership and use-rights to the output media in Image or Video format within the output guidelines of this agreement. 3. You are authorized to use "Output" images or animations (renderings) generated using 'The Models' within iClone and/or CrazyTalk and/or CrazyTalk Animator (including royalty-free use for broadcast, commercial, industrial, educational, and personal.) Renderings must be of your original creation and are restricted from being sold or distributed as either a single image, part of clip-art library, or stock video or image collection. 4. If the content you have purchased includes the Export License, Reallusion grants you a nonexclusive, worldwide, Royalty-Free license to export Content via 3DXchange Pipeline version into .fbx, .bvh, .obj or other 3D file formats. You may then embed converted content in games and applications for personal, commercial or educational projects. Reallusion Content itself may not be repurposed, transferred, resold, regardless of format. 5. Single user license Content should be used in one computer and locked to the same purchase account, Reallusion also provides multiple seat content licenses for studio, school, and production house for group development. 6. Notice for developers or vendors using Reallusion, or 3rd-party content for mass distribution including game titles, apps, online services or kiosk for, but not limited to various platforms: PC, Mac, mobile and game consoles -- To get the free mass distribution rights for using Reallusion content, developers and vendors must first register their game or application information with Reallusion (please contact [email protected]), in order to receive the license agreement letter. Please provide evidence of using Reallusion content in your project or products (such as product or service page URL, or credit announcement) and confirm if the credit disclosure is included. �7. Reallusion encourages the modification and subsequent sale of modified CONTENT on the REALLUSION Content Store and Marketplace, provided that the Vendor obey the terms listed in this EULA and the Reallusion Certified Content Developer Agreement. Reallusion retains the right to determine, at its sole discretion, whether or not a Member or Vender has violated the terms of this EULA and the Reallusion Certified Content Developer Agreement. If CONTENT published by the Vendor is determined to violate the terms of this EULA, Reallusion will contact the Vendor to request the removal of the content it deems to be in violation of the terms. 8. All CONTENT sold on the REALLUSION Content Store and Marketplace must follow the specifications set out in the REALLUSION Content Specifications Guides (http://www.reallusion.com/contentstore/iclone/iClone_logo.asp) & (http://www.reallusion.com/ContentStore/CTA/Cta_logo.asp). 9. REALLUSION retains the right to remove any Vendor content that it determines to be in violation of the terms laid out in this EULA if there is no response from the Vendor within a period of 48 hours. 10.The Vendor may not use any of the resources provided in the REALLUSION Content Specification Guide if the CONTENT does not meet the specifications laid out in this EULA, as determined at the discretion of REALLUSION. ▌Limitations Content in its native 3D format may not be repurposed into another 3D format for purpose of resale. 1. You are not authorized to sell, resell, sell as, duplicate, share, distribute, sub-license, publish, market, or represent - for re-sale or as free objects, any REALLUSION CONTENT STORE Content or 'The Model', or any derivative thereof. 2. You are authorized to modify, sell modified versions, distribute modified versions, market, or represent - for re-sale or as free objects, any default content, except content designated as official contributing artist content, or any derivative thereof. Content may only be resold in the Marketplace and/or Content Store operated by REALLUSION. 3. DERIVATIVE CONTENT using a 3D mesh that is not significantly modified from the original BASE CONTENT must retain the original DRM protection of the BASE CONTENT. It must also be assigned as a derivative of the BASE CONTENT when publishing in the Marketplace. �4. Members and Vendors are not authorized to sell, duplicate, sub-license or publish any original, exported, re-purposed or derivative REALLUSION content in any third-party marketplace, regardless of file format. This includes Reallusion proprietary file formats, BVH, FBX, OBJ, and all other standard industry formats. 5. Any and all default CONTENT in the Character Creator is the property of and proprietary to REALLUSION, and cannot be published in any third-party marketplace. This includes original REALLUSION default CONTENT, CONTENT sold in REALLUSION content packs, as well as all derivative content created by Member(s) and Vendor(s). Any user-generated content derived from original REALLUSION content can only be sold in the REALLUSION Content Store and Marketplace. 6. For any published CONTENT that is determined, at REALLUSION’s sole discretion, to be substantially similar to other existing CONTENT, REALLUSION will contact the Vendor to request the removal of the aforementioned content. If the content is not removed within 48 hours, the Vendor’s account may be temporarily suspended. 7. Any violation of the terms and conditions defined by this EULA or the unauthorized sale, duplication, sub-licensing, or publishing of any REALLUSION CONTENT will result in the indefinite suspension of the Member or Vendor's REALLUSION account, and the possibility of legal action, depending on the extent of the violation. ▌Warranty REALLUSION has made efforts to ensure 'The Models' are free from defects and usable in iClone and/or CrazyTalk software applications; however, due to the instability and inconsistency of software, hardware and operating systems, it is not possible for Reallusion to provide any warranty or guarantee pertaining to the performance of 'The Models'. If you are unclear whether your intended use of a REALLUSION 3D Models are acceptable under this License Agreement, please contact REALLUSION at [email protected] for clarification and/or written permission. 1. Ownership. The Vendor retains, subject to this license agreement between Vendor and REALLUSION, copyright to Content purchased by any Member via REALLUSION. 2. Valid License. License rights relating to Content for sale via REALLUSION, contingent upon the transfer of money from the Member to REALLUSION to the Vendor. All license rights are revoked immediately if a sale is reversed for any reason. 3. Royalty-Free Rights Granted. The Vendor grants to REALLUSION and the Member who purchases license rights to Content via a Valid Sale, a non-exclusive, non-transferable, worldwide, royalty-free license to: publicly perform, publicly display, and digitally perform said Content. 4. Rights Not Granted. All other rights included in copyright are excluded from this license. �5. Resale. The resale or redistribution by the Member of any Content obtained from REALLUSION, whether part of a valid sale or not, is expressly prohibited. 6. Returned Content. In the event a Member returns Content at REALLUSION's discretion, all license rights granted herein terminate and the Member must immediately destroy all copies contained on any type of media under the control or possession of the Member. ------------------------------------------------------APPLICABLE LAW ------------------------------------------------------The laws of the state of California govern this EULA, except that federal and international law governs copyrights, patents, and registered trademarks. Should any court having appropriate jurisdiction find any provision of this EULA invalid, that particular provision will be deemed null and void and will not affect the validity of any other provision of this EULA. ------------------------------------------------------CONTACT INFORMATION ------------------------------------------------------If you have questions concerning this EULA or need to contact Customer Service, please contact company at this address: Reallusion, Inc. 2033 Gateway Place, Fifth Floor San Jose, CA 95110 Customer Service (returns, warranty): http://www.Reallusion.com/support Legal (EULA questions, illegal activity reporting): [email protected] Business Development: [email protected] ------------------------------------------------------COPYRIGHT ------------------------------------------------------The Program and the Documentation are ©2000-2015 �
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RELIEFJET ESSENTIALS END USER LICENSE AGREEMENT NOTICE TO USER: THIS IS A CONTRACT. AT THE END, YOU WILL BE ASKED TO ACCEPT THIS AGREEMENT AND CONTINUE TO INSTALL OR, IF YOU DO NOT WISH TO ACCEPT THIS AGREEMENT, TO DECLINE THIS AGREEMENT, IN WHICH CASE YOU WILL NOT BE ABLE TO USE, INSTALL OR OPERATE THE PRODUCT, AS DEFINED BELOW. BY INSTALLING THIS SOFTWARE YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. This Electronic End User License Agreement (the “Agreement”) is a legal agreement between you (either an individual or an entity), the licensee, and Relief, LLC (collectively, the “Company”), regarding the software and service titled ReliefJet Essentials that you about to download, downloaded, or otherwise obtained through other resources or media such as CD-ROMs, floppy disks, or though a network in object code form or other related services, including without limitation a) all of the contents of the files, disk(s), CD-ROM(s) or other media with which this Agreement is provided (the “Software”), and b) all successor upgrades, revisions, patches, enhancements, fixes modifications, copies, additions or maintenance releases of the Software, if any, licensed to you by the Company (collectively, the “Updates”) provided that the Updates shall not include a new subsequent releases of the Software bearing a new first numeral such as 2.0.0 or 3.0.0 (“New Releases”) but include any minor revisions of the Software version indicated by a change in the decimal numeral, such as 2.0.1 or 3.2.0, and c) related user documentation and explanatory materials or files provided in written, "online" or electronic form (the “Documentation” and together with the Software and Updates, the “Product”). You are subject to the terms and conditions of this End User License Agreement whether you access or obtain the Product directly from the Company, or through any other source. For purposes hereof, “you” means the individual person installing or using the Product on his or her own behalf; or, if the Product is being downloaded or installed on behalf of an organization, such as an employer, “you” means the organization for which the Product is downloaded or installed and it is represented hereby that such organization has authorized the person accepting this agreement to do so on its behalf. For purposes hereof the term “organization” ,without limitation, includes any partnership, limited liability company, corporation, association, joint stock company, trust, joint venture, labor organization, unincorporated organization, or governmental authority. By accessing, downloading, storing, loading, installing, executing, displaying, copying the Product into the memory of a computer or otherwise benefiting from using the functionality of the Product in accordance with the Documentation (“Operating”), you agree to be bound by the terms of this Agreement. If you do not agree to the terms and conditions of this Agreement, the Company is unwilling to license the Product to you. In such event, you may not Operate or use the Product in any way. BEFORE YOU PUT A CHECKMARK BY THE STATEMENT "I ACCEPT THE TERMS IN THE LICENSE AGREEMENT" AND CLICK ON THE "NEXT" BUTTON, CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOUR CLICK OF THE "NEXT" BUTTON IS A SYMBOL OF YOUR SIGNATURE AND BY CLICKING ON THE "NEXT" BUTTON, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT AND AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE "CANCEL" BUTTON AND THE SOFTWARE WILL NOT BE INSTALLED ON YOUR COMPUTER. This Product will not install on your �computer unless or until you accept the terms of this Agreement. 1. Proprietary Rights and Non-Disclosure. 1.1. Ownership Rights. You agree that the Product and the authorship, systems, ideas, methods of operation, documentation and other information contained in the Product, are proprietary intellectual properties and/or the valuable trade secrets of the Company or its suppliers and/or licensors and are protected by civil and criminal law, and by the law of copyright, trade secret, trademark and patent of the United States, other countries and international treaties. You may use trademarks only insofar as to identify printed output produced by the Product in accordance with accepted trademark practice, including identification of trademark owner's name. Such use of any trademark does not give you any rights of ownership in that trademark. The Company and its suppliers own and retain all right, title, and interest in and to the Product, including all copyrights, patents, trade secret rights, trademarks, and other intellectual property rights therein. Your possession, installation or use of the Product does not transfer to you any title to the intellectual property in the Product, and you will not acquire any rights to the Product except as expressly set forth in this Agreement. All copies of the Product made hereunder must contain the same proprietary notices that appear on and in the Product. Except as stated herein, this Agreement does not grant you any intellectual property rights in the Product. 1.2. Source Code. You acknowledge that the source code for the Product is proprietary to the Company or its suppliers and/or licensors and constitutes trade secrets of the Company or its suppliers and/or licensors. You agree not to modify, adapt, translate, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Product in any way. 1.3. Confidential Information. You agree that, unless otherwise specifically provided herein or agreed by the Company in writing, the Product, including the specific design and structure of individual programs and the Product, constitute confidential proprietary information of the Company or its suppliers and/or licensors. You agree not to transfer, copy, disclose, provide or otherwise make available such confidential information in any form to any third party without the prior written consent of the Company. You agree to implement reasonable security measures to protect such confidential information provided however, that you may make and distribute unlimited copies of the Software in object code only, including copies for commercial distribution, as long as each copy that you make and distribute contains this Agreement subject to end user's acceptance before the first use, the Software installer, and the same copyright and other proprietary notices pertaining to this Software that appear in the Software. If you download the Software from the Internet or similar on-line source, you must include the copyright notices resident on the Software with any on-line distribution and on any media you distribute that includes the Software. 1.4. No Modification. You agree not to modify or alter the Product in any way. You may not remove or alter any copyright notices or other proprietary notices on any copies of the Product. 2. Grant of License. 2.1. License. The Company grants you the non-exclusive and non-transferable license to store, load, install, execute, and display the specified version of the Software on a number of computers, workstations, personal digital assistants, 'smart phones', mobile phones, hand-held devices, or other electronic devices for which the software was designed (each a “Client Device”) explicitly defined by the license type. The �Company reserves all rights not expressly granted herein. 2.2. Updates. During the Term of this Agreement, you may download Updates to the Product when and as the Company publishes them in its website or through other online services. Notwithstanding any provision to the contrary herein, nothing is this Agreement shall be construed as to grant you any rights or licenses with regard to the New Releases of the Product or to entitle you to any New Release. This Agreement does not obligate the Company to provide any Updates. Notwithstanding the foregoing, any Updates that you may receive become part of the Product and the terms of this Agreement apply to them (unless this Agreement is superceded by a further Agreement accompanying such Update or modified version of to the Product). 2.3. Term and Termination. The term of this Agreement (“Term”) shall begin when you download or install the Product (whichever is earlier) and shall continue, unless otherwise terminated pursuant hereto, in perpetuity or for the term specified in the license granted hereunder. The Company may terminate this Agreement by offering you a superseding Agreement for the Product or any replacement or modified version of or upgrade or New Release of the Product and conditioning your continued use of the Product or such replacement, modified or upgraded version or New Release on your acceptance of such superseding Agreement. This Agreement may be also terminated by the Company immediately and without notice if you fail to comply with any of your obligation or conditions of this Agreement. Without prejudice to any other rights, this Agreement will terminate automatically if you fail to comply with any of the limitations or other requirements described herein. Upon any termination or expiration of this Agreement, you must immediately cease use of the Product and destroy all copies of the Product. 2.4. No Rights Upon Termination. Upon termination of this Agreement you will no longer be authorized to Operate or use the Product in any way. 3. Restrictions. 3.1. No Transfer of Rights. You may not rent, lease, loan the Product. You may not reverse engineer, decompile, disassemble or otherwise reduce any party of the Product to human readable form nor permit any third party to do so, except to the extent the foregoing restriction is expressly prohibited by applicable law. Notwithstanding the foregoing sentence, decompiling the Software is permitted to the extent the laws of your jurisdiction give you the right to do so to obtain information necessary to render the Software interoperable with other software; provided, however, that you must first request such information from the Company and the Company may, in its discretion, either provide such information to you (subject to confidentiality terms) or impose reasonable conditions, including a reasonable fee, on such use of the Software to ensure that the Company's and its suppliers and/or licensors proprietary rights in the Software are protected. You may not modify, or create derivative works based upon the Product in whole or in part. 3.2. Proprietary Notices and Copies. You may not remove any proprietary notices or labels on the Product. You may not copy the Product except as expressly permitted in Section 2 above. 3.3. No Transfer. Except as otherwise specifically provided herein, you may not transfer or assign any of the rights granted to you under this Agreement. �4. NO WARRANTY AND DISCLAIMER. 4.1. No Express Warranty. The Software is being delivered to you "AS IS" and the Company makes no warranty as to its use or performance. 4.2. NO IMPLIED OR OTHER WARRANTIES. EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT TO WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO YOU IN YOUR JURISDICTION, THE PRODUCT IS PROVIDED "AS-IS" WITHOUT ANY WARRANTY WHATSOEVER AND THE COMPANY MAKES NO PROMISES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE, REGARDING OR RELATING TO THE PRODUCT OR CONTENT THEREIN OR TO ANY OTHER MATERIAL FURNISHED OR PROVIDED TO YOU PURSUANT TO THIS AGREEMENT OR OTHERWISE. YOU ASSUME ALL RISKS AND RESPONSIBILITIES FOR SELECTION OF THE PRODUCT TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE PRODUCT. THE COMPANY MAKES NO WARRANTY THAT THE PRODUCT WILL BE ERROR FREE OR FREE FROM INTERRUPTION OR FAILURE, OR THAT IT IS COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, SATISFACTORY QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCT AND THE ACCOMPANYING WRITTEN MATERIALS OR THE USE THEREOF. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. YOU HEREBY ACKNOWLEDGE THAT THE PRODUCT MAY NOT BE OR BECOME AVAILABLE DUE TO ANY NUMBER OF FACTORS INCLUDING WITHOUT LIMITATION PERIODIC SYSTEM MAINTENANCE, SCHEDULED OR UNSCHEDULED, ACTS OF GOD, TECHNICAL FAILURE OF THE SOFTWARE, TELECOMMUNICATIONS INFRASTRUCTURE, OR DELAY OR DISRUPTION ATTRIBUTABLE TO VIRUSES, DENIAL OF SERVICE ATTACKS, INCREASED OR FLUCTUATING DEMAND, AND ACTIONS AND OMISSIONS OF THIRD PARTIES. THEREFORE, THE COMPANY EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY REGARDING SYSTEM AND/OR SOFTWARE AVAILABILITY, ACCESSIBILITY, OR PERFORMANCE. THE COMPANY DISCLAIMS ANY AND ALL LIABILITY FOR THE LOSS OF DATA DURING ANY COMMUNICATIONS AND ANY LIABILITY ARISING FROM OR RELATED TO ANY FAILURE BY THE COMPANY TO TRANSMIT ACCURATE OR COMPLETE INFORMATION TO YOU. 4.3. LIMITED LIABILITY; NO LIABILITY FOR CONSEQUENTIAL DAMAGES. YOU ASSUME THE ENTIRE COST OF ANY DAMAGE RESULTING FROM YOUR USE OF THE PRODUCT AND THE INFORMATION CONTAINED IN OR COMPILED BY THE PRODUCT, AND THE INTERACTION (OR FAILURE TO INTERACT PROPERLY) WITH ANY OTHER HARDWARE OR SOFTWARE WHETHER PROVIDED BY THE COMPANY OR A THIRD PARTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE COMPANY OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF GOODWILL, WORK STOPPAGE, HARDWARE OR SOFTWARE DISRUPTION IMPAIRMENT OR FAILURE, REPAIR COSTS, TIME VALUE OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCT, OR THE INCOMPATIBILITY OF THE PRODUCT WITH ANY HARDWARE SOFTWARE OR USAGE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL COMPANY'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES IN ANY ONE OR MORE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE EXCEED THE AMOUNT PAID BY YOU FOR THE PRODUCT. THIS LIMITATION �OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT THAT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. 5. U.S. and Russian Federation Government-Restricted Rights. 5.1. Notice to U.S. Government End Users. The Product and accompanying Documentation are deemed to be "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", respectively, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights, including any use, modification, reproduction, release, performance, display or disclosure of the Product and accompanying Documentation, as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States. 5.2. Export Restrictions. You acknowledge and agree that the Product may be subject to restrictions and controls imposed by the Export Administration Act and the Export Administration Regulations of the United States (the "Acts"). You agree and certify that neither the Product nor any direct product thereof is being or will be used for any purpose prohibited by the Acts. You may not Operate, download, export, or re-export the Product (a) into, or to a national or resident of, any country to which the United States has embargoed goods, or (b) to anyone on the United States Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By Operating the Product, you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country or on any such list. You acknowledge that it is your sole responsibility to comply with any and all government export and other applicable laws and that the Company has no further responsibility for such after the initial license to you. You warrant and represent that neither the U.S. Commerce Department, Bureau of Export Administration nor any other U.S. federal agency has suspended, revoked or denied your export privileges. 5.3. Notice to Russian Users. If you are a person or entity of Russian Federation or if you are otherwise subject to Russian laws and regulations you acknowledge and agree to be bound by Federal Law No. 149-FZ, dated 27 July 2006, “On Information, Information Technologies and Information Protection”, Federal Law No. 152-FZ, dated 27 July 2006, “On Personal Data” and other similar regulations, including international acts. You guarantee that the Product shall not be used for unauthorized access to computerized and other types of information, including confidential information and other restricted data. You shall immediately advise Company of all such events that are known to you. 6. Miscellaneous. 6.1. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Virginia without reference to conflicts of law �rules and principles. To the extent permitted by law, the provisions of this Agreement shall supersede any provisions of the Uniform Commercial Code as adopted or made applicable to the Products in any competent jurisdiction. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly disclaimed and excluded. The federal and state courts within the Commonwealth of Virginia shall have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement. You agree that this Agreement is to be performed in Commonwealth of Virginia and that any action, dispute, controversy, or claim that may be instituted based on this Agreement, or arising out of or related to this Agreement or any alleged breach thereof, shall be prosecuted exclusively in the federal or state courts in the Commonwealth of Virginia, and you, to the extent permitted by applicable law, hereby waive the right to change venue to any other state, county, district or jurisdiction; provided, however, that the Company as claimant shall be entitled to initiate proceedings in any court of competent jurisdiction. 6.2. Period for Bringing Actions. No action, regardless of form, arising out of the transactions under this Agreement, may be brought by either party hereto more than one (1) year after the cause of action has occurred, or was discovered to have occurred, except that an action for infringement of intellectual property rights may be brought within the maximum applicable statutory period. 6.3. Entire Agreement; Severability; No Waiver. This Agreement is the entire agreement between you and Company and supersedes any other prior agreements, proposals, communications or advertising, oral or written, with respect to the Product or to subject matter of this Agreement provided that the Company and you may limit, modify or changes the applicability of the terms of this Agreement by a prior, contemporaneous or subsequent written agreement by referencing this Section of the Agreement and expressly providing for such limitation, modification or changes. You acknowledge that you have read this Agreement, understand it and agree to be bound by its terms. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, void, or unenforceable for any reason, in whole or in part, such provision will be more narrowly construed so that it becomes legal and enforceable, and the entire Agreement will not fail on account thereof and the balance of the Agreement will continue in full force and effect to the fullest extent permitted by law. No waiver of any breach of any provisions of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach and no waiver will be effective unless made in writing. 6.4. Contact Information. If you have any questions concerning this Agreement, or if you desire to contact the Company for any reason, visit Company website: http://www.ReliefJet.com. Copyright © Relief, LLC and its licensors. All rights reserved. �
nw/116.txt
END USER LICENSE AGREEMENT (FOR SAP ON PREMISE INDIRECT SALES) (“EULA”) END USER LICENSE AGREEMENT (for SAP On Premise indirect sales) 1. DEFINITIONS. 1.1 “Add-on” means any development that adds new and independent functionality, but does not modify existing SAP functionality, and is developed using SAP application programming interfaces or other SAP code that allows other software products to communicate with or call on the Software. 1.2 “Affiliate” means any legal entity in the Territory in which the Licensee, directly or indirectly, holds more than fifty percent (50%) of the shares or voting rights. Any such legal entity shall be considered an Affiliate for only such time as such interest is maintained. 1.3 “Agreement” means the EULA Acceptance Form, this EULA and the Software Use Rights Schedule. 1.4 “Business Partner” means a legal entity or individual that requires access to the Software in connection with Licensee’s internal business operations, such as customers, distributors and/or suppliers of Licensee. 1.5 “Confidential Information" means, with respect to Licensee: Licensee’s marketing and business plans and/or financial information, and with respect to SAP: (a) the Software, Documentation and other SAP Materials, including without limitation the following information regarding the Software: (i) computer software (object and source codes), programming techniques and programming concepts, methods of processing, system designs embodied in the Software; (ii) benchmark results, manuals, program listings, data structures, flow charts, logic diagrams, functional specifications, file formats; and (iii) discoveries, inventions, concepts, designs, flow charts, documentation, product specifications, application program interface specifications, techniques and processes relating to the Software; (b) the research and development or investigations of SAP; and (c) product offerings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas, techniques, formulas, data, schematics, trade secrets, know-how, improvements, inventions (whether patentable or not), marketing plans, forecasts and strategies. In addition, Confidential Information of either SAP or Licensee (the party disclosing such information being the “Disclosing Party”) includes information which the Disclosing Party protects against unrestricted disclosure to others that (i) the Disclosing Party or its representatives identifies as confidential at the time of disclosure; or (ii) should reasonably be understood to be confidential given the nature of the information and the circumstances surrounding its disclosure; including, without limitation, information from, about or concerning any third party that is disclosed under this Agreement. 1.6 “Designated Unit” means information technology devices (e.g. hard disks or central processing units) identified by End User or Partner pursuant to or in connection with this Agreement that has been previously approved by SAP or otherwise officially made known to the public as appropriate for Use or interoperation with the Software. 1.7 “Distributor” means the person or entity to which SAP markets and distributes certain Software and from which the Partner bought or will buy the Software in case Partner has not or will not buy the Software from SAP directly. 1.8 “Documentation” means SAP's then-current technical and/or functional documentation which is delivered or made available by SAP either indirectly via Distributor and/or Partner or directly to Licensee with the Software. 1.9 “Effective Date” means the effective date set out in the EULA Acceptance Form as “Effective Date”. 1.10 “EULA Acceptance Form” means the “Acceptance Form for End User License Agreement (for SAP On Premise indirect sales)” concluded between SAP and Licensee. 1.11 “EUMA” means the “SAP Delivered Support Agreement (for SAP On Premise indirect sales)” which sets out the terms and conditions under which SAP provides support to End Users. 1.12 “Export Law” means all constitutions, laws, statutes, codes, ordinances, orders, judgments, decrees, injunctions, rules, regulations, permits restrictive measures, trade sanctions, embargos and other legally binding requirements of all federal, country, international, state and local governmental authorities relating to export, re-export or import. 1.13 “Intellectual Property Rights” means patents of any type, design rights, utility models or other similar invention rights, copyrights, mask work rights, trade secret or confidentiality rights, trademarks, trade names and service marks and any other intangible property rights, including applications and registrations for any of the foregoing, in any country, arising under statutory or common law or by contract and whether or not perfected, now existing or hereafter filed, issued, or acquired. 1.14 “Licensee” means the end user who is further identified in the EULA Acceptance Form as “End User”. 1.15 "Modification" means (i) a change to the delivered source code or metadata; or (ii) any development, other than a change to the delivered source code or metadata, that customizes, enhances, or changes existing functionality of the Software including, but not limited to, the creation of any new application program interfaces alternative user interfaces or the extension of SAP data structures; or (iii) any other change to the Software (other than an Add-on) utilizing or incorporating any SAP Materials. 1.16 “Partner” means the partner which is further identified in the EULA Acceptance Form as “Partner”. 1.17 “SAP” means the SAP entity which is further identified in the EULA Acceptance Form as “SAP”. 1.18 “SAP Delivered Support” means SAP’s support offering to directly provide support to End Users subject to the terms and conditions set out in the EUMA. 1.19 “SAP Group” means SAP Parent and any of its Affiliates. SAP Confidential SAP PartnerEdge EULA for Sell On Premise Program and Distribution Program enTH.v.4-2015 Page 1 of 6 �1.20 “SAP Materials” means any software, programs, tools, systems, data or other materials made available to Licensee directly by SAP or via Partner prior to or after the Effective Date including, but not limited to, the Software and Documentation. 1.21 “SAP Parent” means SAP, a European company (Societas Europaea), located at Dietmar-Hopp-Allee 16 in 69190 Walldorf, Germany and registered at the commercial register of Mannheim under the registration number HRB 350269. 1.22 “Software” means (i) any and all software products licensed to Licensee under this Agreement as specified in the EULA Acceptance Form, all as developed by or for the SAP Group and delivered by SAP either indirectly via Distributor and/or Partner or directly to Licensee; (ii) any new versions, releases, updates, upgrades, patches, fixes and corrections thereof, made available through unrestricted shipment pursuant to SAP support or warranty obligation; and (iii) any complete or partial copies or replacements of any of the foregoing. 1.23 “Software Use Rights Schedule” means the Software Use Rights Schedule current at the Effective Date of the EULA Acceptance Form which is made available at: www.sap.com/company/legal. 1.24 “Territory” means the territory stated in the EULA Acceptance Form. 1.25 “Third Party Software” means (i) any and all software products licensed to Licensee under this Agreement as specified in the EULA Acceptance Form, all as developed by or for companies other than the SAP Group and delivered by SAP either indirectly via Distributor and/or Partner or directly to Licensee; (ii) any new versions, releases, updates, upgrades, patches, fixes and corrections thereof, made available through unrestricted shipment pursuant to SAP support or warranty obligation; and (iii) any complete or partial copies or replacements of any of the foregoing. 1.26 "Use" means to activate the processing capabilities of the Software, load, execute, access, employ the Software, or display information resulting from such capabilities. 2. LICENSE GRANT. 2.1 License. 2.1.1 Subject to Licensee’s compliance with all the terms and conditions of this Agreement, SAP grants to Licensee a nonexclusive, non-transferable, perpetual (except for subscription based licenses) license to Use the Software, Documentation, and other SAP Materials at specified site(s) within the Territory to run Licensee’s and its Affiliates’ internal business operations (including customer back-up and passive disaster recovery) and to provide internal training and testing for such internal business operations, unless terminated in accordance with the terms of this Agreement. Licensee may make Modifications and/or Add-ons to the Software in furtherance of its permitted Use under this Agreement, and shall be permitted to use Modifications and Add-ons with the Software in accordance with this Section 2.1.1 and Section 6.3. Licensee shall not: (i) use the SAP Materials to provide services to third parties (e.g., business process outsourcing, service bureau applications or third party training) other than to Affiliates (subject to Section 2.2); (ii) lease, loan, resell, sublicense or otherwise distribute the SAP Materials, other than distribution to Affiliates (subject to Section 2.2); (iii) distribute or publish keycode(s); (iv) make any Use of or perform any acts with respect to the SAP Materials other than as expressly permitted in accordance with the terms of this Agreement; (v) use Software components other than those specifically identified in the EULA Acceptance Form, even if it is also technically possible for Licensee to access other Software components Licensee may permit Business Partners to Use the Software only through screen access, solely in conjunction with Licensee’s Use, and may not Use the Software to run any of Business Partners’ business operations. 2.1.2 Licensee agrees to install the Software only on Designated Units located at Licensee’s facilities and in Licensee’s direct possession. With advance written notice to SAP, the information technology devices may also be located in the facilities of an Affiliate and be in the Affiliate’s direct possession. Licensee must be appropriately licensed as stated in the Software Use Rights Schedule for any individuals that Use the Software, including employees or agents of Affiliates and Business Partners. Use may occur by way of an interface delivered with or as a part of the Software, a Licensee or third-party interface, or another intermediary system. If Licensee receives licensed Software that replaces previously licensed Software, its rights under this Agreement with regard to the previously licensed Software end when it deploys the replacement Software for Use on productive systems following a reasonable testing period. At the date the rights to the previously licensed Software end Licensee shall comply with Section 5.2 of this Agreement with respect to such previously licensed Software. 2.1.3 The terms and conditions of this Agreement relative to “Software” apply to Third Party Software except (i) Licensee shall not make Modifications and/or Add-ons to Third Party Software or otherwise modify Third Party Software unless expressly authorized by SAP; and (ii) subject to Section 12.9, as otherwise stated in the Software Use Rights Schedule. 2.2 Affiliate Use. Affiliates’ Use of the Software, Documentation and other SAP Materials to run their internal business operations as permitted under Section 2.1.1 is subject to the following: (i) Licensee ensures that the Affiliate agrees in writing to comply with the terms of this Agreement; and (ii) a breach of the Agreement terms by Affiliate shall be considered a breach by Licensee hereunder. If Licensee has an affiliate or subsidiary with a separate license or support agreement for SAP software with any member of the SAP Group or any other distributor of SAP software, the Software shall not be Used to run such affiliate’s or subsidiary’s business operations even if such separate agreement has expired or is terminated, unless otherwise agreed to in writing by the parties. 3. VERIFICATION. SAP shall be permitted to audit (at least once annually and in accordance with SAP standard procedures, which may include on-site and/or remote audit) the usage of the SAP Materials. Licensee shall cooperate reasonably in the conduct of such audits. In the event an audit reveals that (i) Licensee underpaid license fees and/or SAP support fees and/or (ii) that Licensee has Used the Software in excess of the license quantities or levels stated in the EULA Acceptance Form, Licensee shall pay such underpaid fees and/or for such excess usage based on the then-current SAP price list, terms and conditions in effect at the time of the audit, and shall order the Software license quantities or levels used in excess from the Partner and/or SAP and execute an additional EULA Acceptance Form to affect the required licensing of any additional quantities or levels. Reasonable costs of SAP’s audit shall be paid by Licensee if the audit results indicate usage in excess of the licensed quantities or levels. SAP reserves all rights at law and equity with respect to both Licensee’s underpayment of license fees or SAP support fees and usage in excess of the license quantities or levels. SAP may delegate to Partner or request Partner to perform any of the rights listed under this Section 3. SAP Confidential SAP PartnerEdge EULA for Sell On Premise Program and Distribution Program enTH.v.4-2015 Page 2 of 6 �4. ELECTRONIC DELIVERY In cases of electronic delivery, SAP makes the Software available for download from a network at its own cost, and Licensee is responsible for the cost of downloading the Software. 5. TERM. 5.1. Term. This Agreement and the license granted hereunder shall become effective on the Effective Date and shall continue in effect thereafter unless terminated upon the earliest to occur of the following: (i) thirty days after Licensee gives SAP written notice of Licensee's direction to terminate this Agreement, for any reason; (ii) thirty days after SAP gives Licensee written notice of Licensee's material breach of any provision of this Agreement (other than Licensee's breach of its obligations under Sections 6, 10 or 11, which breach shall result in immediate termination); (iii) immediately if Licensee files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors, or a petition for the opening of insolvency proceedings or similar proceedings if filed against the Licensee. For the avoidance of any doubt, termination of this Agreement shall strictly apply to all Software licensed under this Agreement, its appendices, schedules, addenda and order documents and any partial termination of this Agreement by Licensee shall not be permitted in respect of any part of this Agreement, its appendices, schedules, addenda, order documents. 5.2 End of Term Duties. Upon any termination hereunder, Licensee and its Affiliates shall immediately cease Use of all SAP Materials and Confidential Information. Within thirty (30) days after any termination, Licensee shall irretrievably destroy or upon SAP’s request deliver to SAP all copies of the SAP Materials and Confidential Information in every form, except to the extent it is legally required to keep it for a longer period in which case such return or destruction shall occur at the end of such period. Licensee must certify to SAP in writing that it has satisfied its obligations under this Section 5.2. Licensee agrees to certify in writing to SAP that it and each of its Affiliates has performed the foregoing. Sections 3, 4, 5.2, 6, 7.2, 8, 9, 10, 12.4, 12.5, 12.6 and 12.8 shall survive such termination. In the event of any termination hereunder, Licensee shall not be entitled to any refund by SAP of any payments made by Licensee to SAP. Termination shall not relieve Licensee from its obligation to pay fees that remain unpaid. 6. INTELLECTUAL PROPERTY RIGHTS. 6.1 Reservation of Rights. The SAP Materials and SAP Confidential Information and all title, rights and interest, especially, without limitation, any Intellectual Property Rights embodied therein are the sole and exclusive property of the SAP Group or their licensors, subject to any rights, title or interest expressly granted to Licensee in Section 2 and 6.3 herein. Except for the rights set forth in Section 2 and 6.3 herein, Licensee is not permitted to modify or otherwise make derivative works of the Software or other SAP Materials. 6.2 Protection of Rights. Licensee is not entitled to copy, translate, disassemble, decompile nor reverse engineer the Software or other SAP Materials. Licensee must not create or attempt to create the source code from the object code of the Software or other SAP Materials. Licensee is permitted to back up data in accordance with good information technology practice and for this purpose to create the necessary backup copies of the Software. Backup copies on transportable discs or other data media must be marked as backup copies and bear the same copyright and authorship notice as the original discs or other data media, unless technically infeasible. Licensee must not change or remove SAP’s copyright and authorship notices. 6.3 Modifications/Add-ons. 6.3.1 Licensee shall comply with SAP’s registration procedure prior to making Modifications or Add-ons. All Modifications and all rights associated therewith shall be the exclusive property of SAP, SAP Parent or its or their licensors. All Add-ons developed by SAP (either independently or jointly with Licensee) and all rights associated therewith shall be the exclusive property of SAP, SAP Parent or its or their licensors. Licensee agrees to execute those documents reasonably necessary to secure SAP’s rights in the foregoing Modifications and Add-ons. All Add-ons developed by or on behalf of Licensee without SAP’s participation (“Licensee Add-on”), and all rights associated therewith, shall be the exclusive property of Licensee subject to SAP’s rights in and to the Software and SAP Materials; provided, Licensee shall not commercialize, market, distribute, license, sublicense, transfer, assign or otherwise alienate any such Licensee Add-ons. SAP retains the right to independently develop its own Modifications or Add-ons to the Software, and Licensee agrees not to take any action that would limit SAP’s sale, assignment, licensing or use of its own Software or Modifications or Add-ons thereto. 6.3.2 Any Modification developed by or on behalf of Licensee without SAP’s participation or Licensee Add-on must not (and subject to other limitations set forth herein): enable the bypassing or circumventing any of the restrictions set forth in this Agreement and/or provide Licensee with access to the Software to which Licensee is not directly licensed; nor unreasonably impair, degrade or reduce the performance or security of the Software; nor render or provide any information concerning SAP software license terms, Software, or any other information related to SAP Materials. 6.3.3 Licensee covenants, on behalf of itself and its successors and assigns, not to assert against SAP or its affiliated companies, or their resellers, distributors, suppliers, commercial partners and customers, any rights in any (i) Licensee Add-ons or Modifications or (ii) other functionality of the SAP Software accessed by such Licensee Add-ons or Modifications. 7. PERFORMANCE WARRANTY. 7.1 Warranty. SAP warrants that the Software will substantially conform to the specifications contained in the Documentation for six months following delivery of the Software. The warranty does not apply: (i) if the Software is not used in accordance with the Documentation; or (ii) if the nonconformance is caused by a Modification or Add-on (other than a Modification or Add-on made by a member of the SAP Group which is provided through SAP support or under warranty), Partner, Licensee, another third party, thirdparty software, third party database or any other software not distributed by SAP; or (iii) to any Licensee unlicensed activities. SAP does not warrant that the Software will operate uninterrupted or that it will be free from minor defects or errors that do not materially affect such performance, or that the applications contained in the Software are designed to meet all of Licensee's business requirements. Provided Licensee notifies SAP in writing with a specific description of the Software’s nonconformance within the warranty period and SAP validates the existence of such nonconformance, SAP will, at its option: a) repair or replace the SAP Confidential SAP PartnerEdge EULA for Sell On Premise Program and Distribution Program enTH.v.4-2015 Page 3 of 6 �nonconforming Software, or b) refund the license fees paid by Licensee to Partner for the applicable nonconforming Software to Licensee in exchange for a return of such nonconforming Software. This is Licensee’s sole and exclusive remedy under this warranty. Licensee’s written notification of any nonconformance must include sufficient detail for SAP to analyze the alleged nonconformance. Licensee must provide commercially reasonable assistance to SAP in analyzing and remediating any nonconformance of the Software. 7.2 Express Disclaimer. SAP AND ITS LICENSORS DISCLAIM ALL OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS OR GURANTEES WITH RESPECT TO THE SOFTWARE EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE EXCEPT TO THE EXTENT THAT ANY WARRANTIES IMPLIED BY LAW CANNOT BE VALIDLY WAIVED. 8. THIRD PARTY CLAIMS. 8.1 Infringement and Defense of Licensee. SAP will, at its sole discretion, either defend Licensee against or settle any claim brought against Licensee in the Territory if such claim (i) is brought by any owner of the Intellectual Property Right specified below giving rise to the claim and (ii) alleges that Licensee's Use of the Software, in accordance with the terms and conditions of this Agreement, constitutes a direct infringement or misappropriation of such owner’s patent claim(s), copyright, trademark or trade secret right. SAP will pay damages finally awarded against Licensee (or the amount of any settlement SAP enters into) with respect to such claims. This obligation of SAP does not apply if the alleged infringement or misappropriation results from (i) Use of the Software in conjunction with any software or service other than the Software; (ii) Use of the Software in conjunction with an apparatus other than a Designated Unit; (iii) failure to promptly use an update provided by a member of the SAP Group if such infringement or misappropriation could have been avoided by use of the update; or (iv) any Use not permitted by this Agreement. This obligation of SAP will also not apply if Licensee fails to timely notify SAP in writing of any such claim; however Licensee’s failure to provide or delay in providing such notice shall not relieve SAP of its obligations under this Section except to the extent SAP is prejudiced by Licensee’s failure to provide or delay in providing such notice. SAP is permitted to control fully the defense and any settlement of any such claim as long as such settlement does not include a financial obligation on or admission of liability by Licensee. In the event Licensee declines SAP’s proffered defense, or otherwise fails to give full control of the defense to SAP’s designated counsel, then Licensee waives SAP’s obligations under this Section 8.1. Licensee must reasonably cooperate in the defense of such claim and provide SAP with all relevant information and reasonable support. Licensee may appear in any proceedings concerning such claim or legal dispute, at its own expense, through counsel reasonably acceptable to SAP. SAP expressly reserves the right to cease such defense of any claim(s) in the event the Software is no longer alleged to infringe or misappropriate, or is held not to infringe or misappropriate, the third party’s rights. SAP may settle or mitigate damages from any claim or potential claim by substituting alternative substantially equivalent non-infringing programs and supporting documentation for the Software. Licensee must not undertake any action in response to any infringement or misappropriation, or alleged infringement or misappropriation of the Software that is prejudicial to SAP’s rights. 8.2 The liability limitations contained in Section 9 below apply to all claims made under this Section 8. Any limitations to the liability and obligations of SAP according to this Section 8 will also apply for the benefit of any member of the SAP Group and their respective licensors. 8.3 THE PROVISIONS OF THIS SECTION 8 STATE THE SOLE, EXCLUSIVE, AND ENTIRE LIABILITY AND OBLIGATION OF SAP AND ITS LICENSORS TO LICENSEE, AND IS LICENSEE'S SOLE REMEDY, WITH RESPECT TO THE INFRINGEMENT OR MISAPPROPRIATION OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS. 9. LIMITATIONS OF LIABILITY. 9.1 Not Responsible. SAP and its licensors will not be responsible under this Agreement (i) if the Software is not used in accordance with the Documentation; or (ii) if the defect or liability is caused by Licensee or Partner, a Modification or Add-on (other than a Modification or Add-on made by a member of the SAP Group which is provided through SAP support or under warranty), or third-party software; or (iii) if the Software is used in conjunction with any third party software for which the Licensee lacks sufficient rights from the third party vendor for such use; or (iv) for any Licensee activities not permitted under this Agreement. SAP AND ITS LICENSORS WILL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM INHERENTLY DANGEROUS USE OF THE SOFTWARE AND/OR THIRD PARTY SOFTWARE LICENSED HEREUNDER. 9.2 Exclusion of Damages; Limitation of Liability. ANYTHING TO THE CONTRARY HEREIN NOTWITHSTANDING, EXCEPT FOR (I) DAMAGES RESULTING FROM (a) UNAUTHORIZED USE OR DISCLOSURE OF CONFIDENTIAL INFORMATION, (b) FRAUD OR WILFUL MISCONDUCT AND (c) DEATH OR PERSONAL INJURY ARISING FROM EITHER PARTY’S GROSS NEGLIGENCE OR ARISING FROM EITHER PARTY’S WILLFUL MISCONDUCT OR (II) SAP’S OBLIGATIONS UNDER SECTION 8.1, UNDER NO CIRCUMSTANCES AND REGARDLESS OF THE NATURE OF ANY CLAIM WILL SAP, ITS LICENSORS OR LICENSEE BE LIABLE TO EACH OTHER OR ANY OTHER PERSON OR ENTITY FOR AN AMOUNT IN EXCESS OF THE LICENSE FEES PAID BY LICENSEE TO PARTNER FOR THE SOFTWARE DIRECTLY CAUSING THE DAMAGES OR BE LIABLE IN ANY AMOUNT FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES, LOSS OF GOOD WILL OR PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION, ATTORNEYS’ FEES, COURT COSTS, INTEREST OR EXEMPLARY OR PUNITIVE DAMAGES. 9.3 Exclusions and Limitations for Third Party Software. SUBJECT TO THE EXCLUSION OF DAMAGES STATED IN SECTION 9.2 AND WITH RESPECT TO THIRD PARTY SOFTWARE, UNDER NO CIRCUMSTANCES AND REGARDLESS OF THE NATURE OF ANY CLAIM SHALL SAP OR ITS LICENSORS’ BE LIABLE FOR AN AMOUNT IN EXCESS OF THE PAID LICENSE FEES FOR THE THIRD PARTY SOFTWARE DIRECTLY CAUSING THE DAMAGES. 9.4 The provisions of this Agreement allocate the risks between SAP and Licensee. The license fees paid by Licensee reflect this allocation of risk and the limitations of liability herein. It is expressly understood and agreed that each and every provision of this Agreement which provides for a limitation of liability, disclaimer of warranties or exclusion of damages, is intended by the Parties to be severable and independent of any other provision and to be enforced as such. 10. CONFIDENTIALITY. SAP Confidential SAP PartnerEdge EULA for Sell On Premise Program and Distribution Program enTH.v.4-2015 Page 4 of 6 �10.1. Use of Confidential Information. Confidential Information must not be used or reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction of any Confidential Information of the Disclosing Party shall remain the property of the Disclosing Party and shall contain any and all confidential or proprietary notices or legends which appear on the original. With respect to the Confidential Information of the Disclosing Party, the party receiving the Confidential Information (“Receiving Party”): (a) shall take all Reasonable Steps (defined below) to keep all Confidential Information strictly confidential; and (b) shall not disclose any Confidential Information of the other to any person other than its bona fide individuals whose access is necessary to enable it to exercise its rights and/or perform its obligations hereunder, and who are under obligations of confidentiality substantially similar to those set forth herein. As used herein “Reasonable Steps” means those steps the Receiving Party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care. Confidential Information of either Party disclosed prior to execution of this Agreement shall be subject to the protections afforded hereunder. 10.2 Exceptions. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: (a) is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information, or is lawfully received free of restriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of this Agreement by the Receiving Party; (c) at the time of disclosure, was known to the Receiving Party free of restriction; or (d) the Disclosing Party agrees in writing is free of such restrictions. 10.3 Confidential Terms and Conditions; Publicity. Licensee shall not disclose the terms and conditions of this Agreement to any third party except for the Partner and the Distributor. Neither Party shall use the name of the other Party in publicity, advertising, or similar activity, without the prior written consent of the other, except that Licensee agrees that any member of the SAP Group may use Licensee's name in customer listings or, at times mutually agreeable to the Parties, as part of SAP Group’s marketing efforts (including without limitation reference calls and stories, press testimonials, site visits, SAPPHIRE participation). SAP will make reasonable efforts to avoid having the reference activities unreasonably interfere with Licensee's business. Licensee agrees that SAP may share information on Licensee with any other member of the SAP Group for marketing and other business purposes and that Licensee has secured permission from its employees to allow SAP to share business contact information with any other member of the SAP Group. ASSIGNMENT. Licensee may not, without SAP's prior written consent, assign, novate, delegate, pledge, subcontract or otherwise transfer this Agreement, or any of its rights or obligations under this Agreement, or the SAP Materials or SAP Confidential Information, to any party, whether voluntarily or by operation of law, including by way of sale of assets, merger or consolidation. SAP may assign, novate, delegate, pledge, subcontract or otherwise transfer this Agreement or any of its rights or obligations thereunder (in whole or in part) to any member of the SAP Group. SAP and any other member of the SAP Group may use third parties as sub-contractors for fulfilling any of its rights or obligations under this Agreement. SAP will continue to be liable for such obligations. 11. 12. GENERAL PROVISIONS. 12.1 Retention of data. With regard to business transactions covered by this Agreement, End User must retain any records for a period of ten years starting on 1th of January of the year following the year during which the data were transmitted or otherwise transferred, or for the minimum period prescribed by applicable law, whichever is longer. In addition, Licensee must maintain current, complete and accurate reports on all of SAP’s Confidential Information in its possession or in the possession of its representatives. 12.2 Severability. It is the intent of the parties that in case any one or more of the provisions contained in this Agreement shall be held to be wholly or in part illegal, invalid or unenforceable in any respect, such illegality, invalidity or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid or unenforceable provision had never been contained herein. The illegal, invalid or unenforceable provision will be replaced by a valid and enforceable provision which approximates as closely as possible the intent of the invalid or unenforceable provision. This will also apply in the case of contractual gaps. 12.3 No Waiver. If either Party should waive any breach of any provision of this Agreement, it shall not thereby be deemed to have waived any preceding or succeeding breach of the same or any other provision hereof. 12.4 Counterparts. This Agreement may be signed in one or more counterparts, each of which will be considered an original but all of which together form one and the same instrument and will be treated as if the signatures on the counterparts were on a single copy. This Agreement may be validly executed by means of transmission of signed facsimile, pdf or any other documented form for which a process has been provided by SAP. Signatures sent by fax, pdf, email or other electronic means for which a process has been provided by SAP shall be deemed original signatures. 12.5 Regulatory Matters. The Software, SAP Delivered Support, Documentation and SAP Materials as well as parts of any of these (e.g. new versions, releases, updates, upgrades, patches, fixed or correction of a software product) are subject to Export Laws of various countries, including, without limitation, the laws of the United States, the EU, Ireland and Germany. Licensee agrees that it will not submit the Software, SAP Delivered Support, Documentation or other SAP Materials or parts of any of these to any government agency for licensing consideration or other regulatory approval without the prior written consent of SAP, and that it will not export, re-export or import any Software, SAP Delivered Support, Documentation and/or SAP Materials to countries, persons or entities prohibited by any applicable Export Law. In that context, Licensee is responsible for complying with all applicable Export Laws. If SAP or any other member of the SAP Group wants to deliver and/or grant access to Software, SAP Delivered Support, Documentation other SAP Materials, or parts of any of these directly to a Licensee, Licensee will support SAP and any other member of the SAP Group in obtaining any required authorization, approval or other consent from the competent authorities by providing any necessary or useful declarations or other necessary or useful information, e.g. Licensee certificates, as may be requested by SAP or any other member of the SAP Group. Licensee acknowledges that the delivery of and/or granting of access to Software, SAP Delivered Support, Documentation and SAP Materials as well as parts of any of these may be subject to the prior obtaining of export or import authorizations or both from the competent authorities and that this process may (i) considerably delay or prevent the delivery of and/or granting of access to Software, SAP Delivered Support, Documentation and SAP Materials or part of any of these, (ii) impact SAP’s ability or the ability of any other member of the SAP Group to provide SAP Delivered Support or other services and SAP Confidential SAP PartnerEdge EULA for Sell On Premise Program and Distribution Program enTH.v.4-2015 Page 5 of 6 �(iii) lead to SAP or any other member of the SAP Group having to limit, suspend or terminate Licensee’s access to SAP Delivered Support services or other services. Neither SAP nor any other member of the SAP Group assumes any responsibility or liability: a) for any delay caused in the delivery and/or granting of access to Software, SAP Delivered Support, Documentation and SAP Materials or parts of any of these due to export or import authorizations or both having to be obtained from the competent authorities; b) if any required authorization, approval or other consent for the delivery of and/or granting of access to Software, SAP Delivered Support, Documentation and SAP Materials or parts of any of these cannot be obtained from the competent authorities; c) if the delivery of and/or granting of access to Software, SAP Delivered Support, Documentation and SAP Materials or parts of any of these is prevented due to applicable Export Laws; and d) if access to SAP Delivered Support or other services has to be limited, suspended or terminated due to applicable Export Law. SAP may terminate this Agreement and the license granted hereunder with thirty days’ prior written notice if SAP or any relevant member of the SAP Group may not deliver or grant access to Software, SAP Delivered Support, Documentation and SAP Materials to Licensee due to an embargo or other comparable trade sanction, which is expected to be in place for six months or longer. 12.6 Governing Law; Limitations Period. This Agreement and any claims (including any non-contractual claims) arising out of or in connection with this Agreement are governed by the laws of Thailand to the exclusion of the international law of conflicts and the UN Sales Convention. The exclusive place of jurisdiction for all disputes arising out of or in connection with this Agreement (including any dispute regarding the existence, validity or termination of this Agreement) is Bangkok, Thailand . Licensee must initiate a cause of action for any claim(s) arising out of or relating to this Agreement and its subject matter within one (1) year from the date when Licensee knew, or should have known after reasonable investigation, of the facts giving rise to the claim(s). 12.7 Notices. All notices or reports which are required or may be given pursuant to this Agreement shall be in writing and shall be deemed duly given when delivered to the respective executive offices of SAP and Licensee at the addresses first set forth in the EULA Acceptance Form. Where in this Section 12.6 or elsewhere in this Agreement a written form is required, except for any notice of termination or notice of a material breach which shall occur by exchange of letter(s), that requirement can be met by facsimile transmission, exchange of letters or other written form, including email or other electronic means for which a process has been provided by SAP. 12.8 Force Majeure. Any delay or nonperformance of any provision of this Agreement (other than for the payment of amounts due hereunder) caused by conditions beyond the reasonable control of the performing party shall not constitute a breach of this Agreement, and the time for performance of such provision, if any, shall be deemed to be extended for a period equal to the duration of the conditions preventing performance. 12.9 Entire Agreement. This Agreement constitutes the complete and exclusive statement of the agreement between SAP and Licensee, and all previous representations, discussions, and writings are merged in, and superseded by this Agreement and the Parties disclaim any reliance on any such representations, discussions and writings. This Agreement shall prevail over any additional, conflicting, or inconsistent terms and conditions which may appear on any purchase order or other document furnished by Licensee to SAP. This Agreement shall prevail over any additional, conflicting or inconsistent terms and conditions which may appear in any clickwrap end user agreement included in the Software. This Agreement does not create any partnership, joint venture or principal-and-agent relationship. 12.10 Amendments. Any modification, amendment or supplement to this Agreement (including this Section 12.10 (Amendments) must be made in writing or in any other documented form for which a process has been provided by SAP. 12.11 Effective Date. If a Party signs a part of this Agreement but fails to date its signature, the date that the other Party receives the signing Party’s signature will be deemed to be the date on that the signing Party signed that part of the Agreement. 12.12 WAIVER OF JURY TRIAL. EACH PARTY HEREBY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION COMMENCED UNDER OR IN CONNECTION TO THIS AGREEMENT. 12.13 Hierarchy. The following order of precedence shall be applied in the event of conflict or inconsistency between provisions of the components of this Agreement: (i) the EULA Acceptance Form; (ii) the EULA; (iii) the Software Use Right Schedule except with respect to third party pass-through terms for Third Party Software stated in the Software Use Rights Schedule, in which case the Software Use Rights Schedule shall prevail over any conflict or inconsistency in any component of this EULA solely with respect to such third party pass-through terms. 12.14 Survival. Sections 6.1 (Reservation of Rights), 6.2 (Protection of Rights), 7 (Performance Warranty), 8 (Third Party Claims), 9 (Limitations of Liability), 10 (Confidentiality), 12.1 (Retention of data), 12.2 (Severability), Error! Reference source not found. (Governing Law; Limitations Period), 12.12 (Waiver of Jury Trial) shall survive any termination of this Agreement. SAP Confidential SAP PartnerEdge EULA for Sell On Premise Program and Distribution Program enTH.v.4-2015 Page 6 of 6 �
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10 Thomas, Irvine, CA 92618 USA Tel: (949) 465-0900 Fax: (949) 465-0905 End-User License Agreement for SENSIT Test and Measurement Software IMPORTANT PLEASE READ THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT CAREFULLY BEFORE CONTINUING WITH THIS SOFTWARE INSTALL: This End-User License Agreement ("Agreement") is a legal agreement between you (either an individual person or a single legal entity (“You”) and FUTEK Advanced Sensor Technology, Inc. Irvine, California (“FUTEK”) for the software product(s) identified above which may include associated software components, media, printed materials, and "online" or electronic documentation ("Software Product"). By installing, copying, or otherwise using the Software Product, You agree to be bound by the terms of this Agreement. This Agreement represents the entire agreement concerning the Software Product between You and FUTEK, and it supersedes any prior proposal, representation, or understanding between the parties. From time to time, FUTEK may in its sole discretion update or modify the Agreement. The most recent version of the Agreement is located at: http://www.futek.com/files/pdf/SENSITTerms&Conditions.pdf If You do not agree to the terms of this Agreement, do not install or use the Software Product. 1. GRANT OF LICENSE. The Software Product is licensed as follows: (a) Installation and Use. FUTEK grants You a nonexclusive, limited, non-transferable license to install and use the Software Product only as authorized herein on your computer running a validly licensed copy of the operating system for which the Software Product was designed [e.g., Windows 95, Windows NT, Windows 98, Windows 2000, Windows 2003, Windows XP, Windows ME, Windows Vista, Windows 7]. (b) Backup Copies. You may make a reasonable number of backup copies of the Software Product, provided your backup copies are not installed or used for other than archival purposes. (c) Evaluation Use. You may use the Software Product for evaluation purposes only in a test environment without payment of a fee for a maximum of fourteen (14) days or such other duration as is specified by FUTEK at its sole discretion. 2. DESCRIPTION OF LIMITATIONS. (a) Maintenance of Intellectual Property Notices. You must not remove or alter any copyright, trademark or patent notices on any and all copies of the Software Product. (b) No Distribution or Transfer. You may not distribute copies of the Software Product to third parties. You may not sublicense, rent, lease, or lend your rights to the Software Product as granted in the Agreement to any party without prior written consent of FUTEK. (c) No Reverse Engineering, Decompilation, and Disassembly. You may not reverse engineer, decompile, or disassemble the Software Product, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. (d) Compliance with Applicable Laws. You must comply with all applicable laws regarding use of the Software Product. 3. TERM AND TERMINATION. This Agreement is effective for an unlimited duration unless and until earlier terminated by You or FUTEK. Your rights under this Agreement will terminate automatically without notice from FUTEK if You fail to comply with any term(s) of this Agreement. Upon termination of this Agreement, You must permanently remove all copies of the Software Product in your possession. 4. OWNERSHIP. FUTEK reserves all rights not expressly granted to You in this Agreement. The Software Product is protected by copyright and other intellectual property laws and treaties. FUTEK owns the title, copyright, and other intellectual property rights in the Software Product. The Software Product is licensed, not sold. 5. SUPPORT AND MAINTENANCE. FUTEK will use commercially reasonable efforts to provide You with support services related to the Software Product in accordance with its standard practices ("Support Services"). FUTEK shall have no obligation to support any version other than the then current and immediate prior version. Any supplemental software code provided to You as part of the Support Services shall be considered part of the Software Product and subject to the terms and conditions of this Agreement, unless separate terms are provided. �10 Thomas, Irvine, CA 92618 USA Tel: (949) 465-0900 Fax: (949) 465-0905 6. CONFIDENTIALITY. You acknowledge that the Software Product contains confidential and proprietary information of FUTEK, including without limitation the source code, inventions, algorithms, know-how and other proprietary information contained therein (collectively, “Confidential information”). You agree to protect the Confidential Information with at least the same degree of care employed with respect to your own confidential or proprietary information. You will not use the Confidential Information for any purpose other than in connection with your use of the Software Product under this Agreement. 7. NO WARRANTIES. FUTEK EXPRESSLY DISCLAIMS ANY WARRANTY FOR THE SOFTWARE PRODUCT. THE SOFTWARE PRODUCT IS PROVIDED 'AS IS' WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS OF A PARTICULAR PURPOSE. FUTEK DOES NOT WARRANT OR ASSUME RESPONSIBILITY FOR THE ACCURACY OR COMPLETENESS OF ANY INFORMATION, TEXT, GRAPHICS, LINKS OR OTHER ITEMS CONTAINED WITHIN THE SOFTWARE PRODUCT. FUTEK MAKES NO WARRANTIES RESPECTING ANY HARM THAT MAY BE CAUSED BY THE TRANSMISSION OF A COMPUTER VIRUS, WORM, TIME BOMB, LOGIC BOMB, OR OTHER SUCH COMPUTER PROGRAM. FUTEK FURTHER EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION TO AUTHORIZED USERS OR TO ANY THIRD PARTY. 8. LIMITATION OF LIABILITY. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL FUTEK BE LIABLE FOR PERSONAL INJURY, OR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES WHATSOEVER, WITHOUT REGARD TO CAUSE OR THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUE, BUSINESS INTERRUPTION, LOST INFORMATION OR OTHER PECUNIARY LOSS) ARISING OUT OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE PRODUCT PROVIDED HEREUNDER. EVEN IF FUTEK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. 9. INDEMNIFICATION. You agree to defend, indemnify and hold FUTEK and all of its subsidiaries and affiliates, and each of its officers, directors, and employees, from and against any and all claims, actions, liabilities, looses, damages, judgments, grants, costs, and expenses, including reasonable attorneys’ fees (collectively “Claims”) arising out of any use of the Software Product by You, any party related to You, or any party acting upon your authorization in a manner that is not expressly authorized by this Agreement. 10. GOVERNING LAW. This Agreement will be governed and construed in accordance with the laws of California, United States, without regard to conflicts of law rules. The United Nations convention on Contracts for the International Sale of Goods will not apply. 11. SEVERABILITY. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the remainder of this Agreement will remain in full force and effect. Copyright © 2013 FUTEK Advanced Sensor Technology, Inc. FUTEK Advanced Sensor Technology, Inc. 10 Thomas, Irvine, California 92618 EULAID: SENSIT_2.3_EN LA1000-A �
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SILICON GRAPHICS INTERNATIONAL CORP. ("SGI") END USER LICENSE AGREEMENT (“License”) CAUTION! THIS LICENSE APPLIES TO SOFTWARE WHICH IS IN ACCOMPANYING PACKAGING, INCLUDED WITH SGI HARDWARE PRODUCTS OR DOWNLOADED FROM AN SGI SITE OR SITE EXPRESSLY AUTHORIZED BY SGI (collectively, the "Licensed Software"). OPENING THE LICENSED SOFTWARE’S PACKAGING, DOWNLOADING THE SOFTWARE FROM AN SGI SITE OR SGI AUTHORIZED SITE, CLICKING “ACCEPT” OR YOUR USE OR INSTALLATION OF THE LICENSED SOFTWARE INDICATES YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS LICENSE. References herein to "You" or "Your” refer to both you and such person or entity on whose behalf you act, if any, as the licensee of the Licensed Software and original owner of the SGI hardware product(s). 1. General. The Licensed Software consists of a software program protected by copyright and other applicable intellectual property laws and treaties. Certain Licensed Software programs as defined in Section 10 below may be wholly or partially subject to other licenses. The Licensed Software is licensed, not sold, to You subject to these terms. SGI transfers no ownership interest in the Licensed Software. SGI and its licensors reserve all rights not expressly granted herein. Your acceptance of the Licensed Software occurs when the Licensed Software is made available to You for downloading or upon installation of Licensed Software, whichever first occurs. 2. Grant of License; R e s e r v a t i o n o f R i g h t s ; Restricted Software Use Restrictions. Subject to applicable restrictions herein, SGI hereby grants You a limited, revocable, non‐exclusive, non‐transferable license to install, run and use one copy (or other quantity, if expressly agreed in writing by SGI) of the Licensed Software in conformance with this License and the Licensed Software's accompanying documentation in written or electronic format. You shall not, in whole or in part: (a) modify, reverse engineer, decompile or disassemble the Licensed Software; (b) except in the case of that Licensed Software specified on www.sgi.com/support/licensing/exceptions.html or as may otherwise be agreed by SGI, install or use the Licensed Software on any hardware other than hardware manufactured by SGI; (c) copy the Licensed Software, other than onto the accompanying system’s storage medium and CPU memory, or otherwise as may be agreed by SGI; (d) copy the accompanying documentation, other than copying on‐line documentation for archival purposes; (e) remove, change or obscure any notices of intellectual property or other proprietary rights; (f) use the Licensed Software in connection with actual construction, maintenance, and/or operation of any nuclear facility, aircraft (including missiles or spacecraft), aircraft communication or aircraft ground support system, life support system, or surgical procedure (“High Risk Use”) except with the express written permission of SGI; and (g) make the Licensed Software available in any way on an application service provider basis, as a hosted and/or managed application, or as a bureau service. Certain Licensed Software requires a license key for activation and you agree to obtain such license key only from SGI or a third party authorized by SGI. You shall not disassemble, decompile, modify or reprogram such license key. Your use of certain Licensed Software may be restricted or subject to limitations as to number of users, data capacity, authorized installation sites, or otherwise, as set forth in SGI’s quotation and/or invoice, and if you exceed any such limitation, or the restrictions set forth herein, you will be in violation of the terms of this License and SGI may revoke Your license rights and terminate this License. 3. Transfer Restrictions. This License is personal to You. You may not transfer the Licensed Software and/or assign this License to any third party. If You attempt to transfer or assign any portion of this License, such transfer or assignment will be void and without effect. 4. Enforcement of Terms; Termination. This License will terminate upon the earlier of: (i) Your breach of any material obligation under this License, without cure within 30 days; (ii) Your termination of this License; and (iii) SGI’s termination at its convenience in the event You received the Licensed Software at no charge. Any licensors to SGI of portions of the Licensed Software are third‐party beneficiaries of this License, and may enforce it in relation to their own intellectual property within the Licensed Software, if any. Within 30 days of termination, You will deliver to SGI or render unusable all of the Licensed Software and any copies thereof. SGI and/or its licensors may pursue all available legal and equitable remedies, without the necessity of posting any security. 5. Export Restrictions. You agree that You will not export or re‐export any Licensed Software or accompanying documentation (or any copies thereof) or any products utilizing the Licensed Software or such documentation in violation of any applicable laws or regulations of the U.S. or the country in which You obtained them. 6. Governing Law; Disputes. E x c e p t a s s e t f o r t h i n S e c t i o n s 7 o r 1 1 b e l o w , T h i s License is governed by and interpreted under the laws of California, excluding choice of law rules. In the event that any dispute or controversy between the parties arises out of or is related to this License, whether in contract or tort, and/or the performance or termination (6 Jan 2014) � thereof, such dispute or controversy shall be subject to and the parties expressly consent to the exclusive jurisdiction of the California state courts in and for Santa Clara County, California (or, if there is federal jurisdiction, the U.S. District Court for the Northern District of California, San Jose), and the prevailing party shall recover all of its costs, including reasonable attorneys’ fees. 7. Governing Law and Disputes for Non‐U.S. Users. If You are a Licensee whose operations are located entirely outside the United States, Section 7 above (Governing Law) is amended and states as follows: This License is governed by and interpreted under the laws of California, excluding choice of law rules. The U.N. Convention on the International Sale of Goods is not applicable and is expressly disclaimed. In the event that any dispute or controversy between the parties arises out of or is related to this License and/or the performance or termination thereof, whether in contract or tort, and including the arbitrability of disputes hereunder, such dispute or controversy shall be subject to, and the parties expressly consent to, binding arbitration, to be conducted in English, in accordance with the JAMS International Arbitration Rules, before a single arbitrator, such arbitration to be held in Santa Clara County, California, United States. The parties shall share equally the direct costs of arbitration, not including each party’s own costs, provided however that a prevailing party shall recover all of its costs, including reasonable attorneys’ fees. Notwithstanding the foregoing, the parties acknowledges that breach of this Agreement may cause irreparable damage to SGI and hereby agree that SGI may be entitled to seek injunctive relief under this Agreement in any court of competent jurisdiction. 8. Disclaimer of Warranty. THE LICENSED SOFTWARE IS PROVIDED “AS IS,” WITHOUT EXPRESS, IMPLIED, OR STATUTORY WARRANTY OR CONDITION OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY WARRANTY OR CONDITION OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON‐INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN TO YOU BY ANY SGI EMPLOYEE, REPRESENTATIVE, OR DISTRIBUTOR WILL CREATE A WARRANTY FOR THE SOFTWARE, AND YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. SGI DOES NOT WARRANT OR GUARANTEE THAT USE OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. 9. Limitation of Liability. IN CONNECTION WITH THE LICENSED SOFTWARE AND/OR THIS LICENSE: (A) IN NO EVENT SHALL SGI OR ITS LICENSORS BE LIABLE FOR ANY (1) CLAIMS OR DAMAGES ARISING FROM HIGH RISK USE; (2) SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM HIGH RISK USE, LOSS OF PROFIT, DATA, GOODWILL, USE, SAVINGS, REVENUE, OR PROPERTY DAMAGE), WHETHER OR NOT SGI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS; AND (B) LIABILITY OF SGI AND/OR ITS LICENSORS FOR ANY AND ALL CLAIMS COMBINED WILL NOT EXCEED THE AMOUNT OF ANY LICENSE FEE PAID FOR THE LICENSED SOFTWARE. THE FOREGOING APPLIES NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY CONTRACTUAL REMEDY. Some jurisdictions do not allow the exclusion of warranties and/or limitation of incidental or consequential damages, so the above exclusion or limitation may not apply to You. Notwithstanding anything to the contrary, You will indemnify, defend (with counsel approved in writing by SGI) and hold SGI harmless against any third party claims arising out of or in connection with Your High Risk Use; provided, however, that the foregoing indemnification obligation shall not apply if You are an agency or instrumentality of the U.S. Government. 10. Other Software Licenses and/or Provisions. Certain portions of the Licensed Software (“Other Licensed Software”) may be subject to other licenses and/or provisions (“Other Licensed Software Provisions”), as indicated in accompanying licenses in printed and/or electronic format and/or in comments fields within source code to the Other Licensed Software, including open source licenses. This License is inapplicable to the extent it is contrary to such Other Licensed Software Provisions; provided, that to the extent permissible under such Other Licensed Software Provisions, Sections 6 through 12 hereof also apply to the Other Licensed Software. 11. U. S. Government Users. The provisions of this article apply to the license of software to the U.S. government and supersede any conflicting language herein. This Licensed Software was developed at private expense; it is licensed as "commercial computer software" as defined under FAR 2.101 and subject to the provisions of this License as specified in (a) FAR 52.227‐19, or (b) DFAR 227.7202, except where licensed under a GSA Schedule contract, in which case the terms of such contract will apply If the Licensed Software fails to meet the government's minimum needs or is inconsistent in any respect with federal procurement law, You agree to return the Licensed Software and documentation, unused, to Contractor/manufacturer SGI, at its corporate address found at www.sgi.com. The following articles of this License are amended for U.S. Government customers as follows. a. For GSA Customers: (i) Opening paragraph: GSA schedule customers become bound by the terms of this License by placing an order for the Licensed Software under the applicable GSA schedule contract. References to “You” or “Your” refer to the entity placing the order (ordering activity); (ii) Article 4 (Enforcement of Terms; Termination: This License may be terminated (6 Jan 2014) � only in accordance with the terms and conditions of the GSA schedule contract and applicable federal regulations; and (iii) Article 12 (Complete Agreement): The software license in the applicable GSA schedule under which you placed an order for the Licensed Software constitute the entire understanding between you and SGI with respect to the subject matter of this License. b. For All U.S. Government Customers: (i) Article 5 (Enforcement of Terms; Termination): This License may also be terminated in accordance with applicable Federal regulations; and (ii) Article 6 (Governing Law): As an agency or instrumentality of the U.S. Government, this License is government by and interpreted under the laws of the United States, and any dispute or controversy between the parties arising out of or related to this License, whether on contract or tort, and/or the performance or termination thereof, shall be resolved in a forum prescribed by the laws of the United States. In the absence of controlling Federal law or prescribed venue, the law of California shall apply, excluding choice of law rules, and the dispute shall be resolved in the U.S. District Court for the Northern District of California, San Jose. No legal fees or costs shall be payable by You except and to the extent expressly authorized by applicable Federal statute. 12. Complete Agreement. Subject to Sections 10, 11.a(iii) and the standard SGI Terms and Conditions of Sale (if applicable) this License constitutes the entire understanding between You and SGI with respect to the subject matter of this License, and supersedes all proposals, oral or written agreements, negotiations, understandings, conversations or discussions between the parties, and industry custom or past courses of dealing, with the exception of an agency or instrumentality of the U.S. government that placed an order for the Licensed Software under an applicable GSA Schedule contract. (6 Jan 2014) �
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Terms of the SigmaXL Inc. End User License Agreement (EULA) ACCEPTANCE OF TERMS By installing this program, you are consenting to be bound by this agreement. If you do not agree to all of the terms of this agreement, do not proceed with the installation process. GRANTING OF LICENSE Subject to payment of the license fee, SigmaXL Inc. grants to you a non-exclusive license to use "SigmaXL" in a manner described below. Payment of the license fee also entitles you to whatever technical support SigmaXL Inc. provides, on the condition that you are using the current version of "SigmaXL." LICENSE TERMS SigmaXL Inc. grants you a non-exclusive license to use "SigmaXL" in the manner described below: 1. Single User License. You may: (a) install "SigmaXL" on any single computer; (b) install "SigmaXL" on a second computer so long as only one copy is used at a time; You may not: (a) permit other individuals to use "SigmaXL" except under the terms above; (b) permit concurrent use of "SigmaXL"; (c) modify, translate, reverse engineer, decompile, disassemble or create derivative works based on "SigmaXL"; (d) copy "SigmaXL"; (e) rent, lease, transfer rights to "SigmaXL"; or (f) remove any proprietary notices or labels on "SigmaXL". 2. Multi-user License (on-site License). You may: (a) install "SigmaXL" on a limited number of computers (as specified in Site License Certificate) provided all the computers are on the same site; (b) concurrently use "SigmaXL" on all computers with “SigmaXL” installed (as specified in Site License Certificate). You may not: �(a) modify, translate, reverse engineer, recompile, disassemble or create derivative works based on "SigmaXL"; (b) copy "SigmaXL"; (c) rent, lease, transfer rights to "SigmaXL"; or (d) remove any proprietary notices or labels on "SigmaXL". TITLE This License may not be assigned, sublicensed or otherwise transferred by the Licensee, by operation of law or otherwise, without prior written consent from SigmaXL Inc. TERMINATION Without prejudice to any rights, SigmaXL Inc. may terminate this agreement if you fail to comply with the terms and conditions of this agreement. In such event, you must destroy all copies of "SigmaXL." DISCLAIMER OF WARRANTY "SigmaXL" and the accompanying files are sold "as is" and without warranties as to the performance or merchantability or any other warranties whether expressed or implied. The statistical calculations provided in the package are accurate to the best of our knowledge; however, this validity is not guaranteed. The user is responsible for decisions made based on the results generated by the package. Because of the various hardware and software environments into which "SigmaXL" may be put, no warranty of fitness for a particular purpose is offered. The user must assume the entire risk of using the program. Any liability of the Licensor (SigmaXL Inc.) will be limited exclusively to product replacement or refund of purchase price. LIMITATION OF LIABILITY Under no circumstances and under no legal theory, tort, contract, or otherwise, shall SigmaXL Inc. or its suppliers or resellers be liable to you or any other person for any indirect, special, incidental, or consequential damages of any character including, without limitation, damages for loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses. In no event will SigmaXL Inc. be liable for any damages in excess of the amount SigmaXL Inc. received from you for a license for "SigmaXL", even if SigmaXL Inc. shall have been informed of the possibility of such damages, or for any claim by any other party. This limitation of liability shall not apply to liability for death or personal injury to the extent applicable law prohibits such limitation. Furthermore, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, in such circumstances this limitation and exclusion may not apply. MICROSOFT SECURITY REQUIREMENT As an Excel add-in, Microsoft Office security settings may require macros to be digitally signed before they are run. SigmaXL Inc. uses VeriSign, which verifies that the application has been created by SigmaXL Inc.. This is done through digital signatures from VeriSign that must be renewed every 3 years. CONTACTS �SigmaXL Inc. Web Site: http://www.SigmaXL.com. For technical help e-mail: [email protected] Phone: 1-888-744-6295 or 519-579-5877 SigmaXL Inc. reserves the right to change the terms and conditions for the use of this product. �
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END USER LICENSE AGREEMENT IMPORTANT: READ CAREFULLY BEFORE DOWNLOADING OR COPYING TO YOUR COMPUTER ANY FILE(S) CONTAINED HEREWITH. THE COPYRIGHTED STANDARD(S) AND OTHER INFORMATION PROVIDED HEREWITH ARE LICENSED (NOT SOLD). BY DOWNLOADING ANY FILE PROVIDED HEREWITH TO YOUR COMPUTER, YOU ARE ACCEPTING AND AGREEING TO THE TERMS OF THIS AGREEMENT. IF YOU ARE NOT WILLING TO BE BOUND BY THE TERMS OF THIS AGREEMENT, PRIOR TO DOWNLOADING OR COPYING TO YOUR COMPUTER ANY FILES(S), YOU MUST DECLINE ACCESS TO SUCH MATERIALS. 1. GRANT OF LICENSE: Subject to the provisions contained herein and to the payment of all applicable fees, the American National Standards Institute, Inc. (“ANSI”) grants you a personal, non-exclusive, non-transferable license to the materials contained herewith (the “Product”). Your licensed rights to the Product are limited to the following: (a) This Agreement does not convey to you an interest in or to the Product, but only a limited right of use, revocable in accordance with the terms of this Agreement. (b) You may install one (1) copy of the Product on, and permit access to it by, a single computer owned, leased or otherwise controlled by you. In the event that computer becomes dysfunctional, such that you are unable to access the Product, you may transfer the Product to another computer, provided that the Product is removed from the computer from which it is transferred and the use of the Product on the replacement computer otherwise complies with the terms of this Agreement. You may print one (1) copy of the Product for personal use only. Neither concurrent use on two or more computers nor use in a local area network or other network is permitted. You shall not merge, adapt, translate, modify, rent, lease, sell, sublicense, assign or otherwise transfer the Product, or remove any proprietary notice or label appearing on any of the Product. You may make one (1) copy of the Product for backup purposes only. (c) You acknowledge and agree that the Product is proprietary to the Copyright holder (the “Owner”) identified on the front page of the Product, and is protected under U.S. copyright law and international copyright treaties. You acknowledge and agree that all provisions regarding the usage and copying of the Product in this Agreement replace all otherwise applicable limitations and privileges under the U.S. Copyright law, including, without limitation, the fair use doctrine. You further acknowledge and agree that all right, title and interest in and to the Product, including all intellectual property rights, are and shall remain with the Owner. (d) You shall provide ANSI or any designee of ANSI with all information necessary to assure compliance with the terms of this Agreement. In the event you are not in compliance with the terms of this Agreement through the actions of unrelated third parties, you shall use your best efforts to cooperate with ANSI and any of its designees to assure compliance. 2. LIMITED WARRANTY: (a) ANSI warrants for your benefit alone that, unless disclosed in the Product to the contrary, Owner and/or licensed distributor of the Product have granted ANSI the right to license the Product to you. (b) THE EXPRESS WARRANTY SET FORTH ABOVE CONSTITUTES THE ONLY WARRANTY WITH RESPECT TO THE PRODUCT AND ANSI MAKES NO OTHER REPRESENTATION OR WARRANTY OR CONDITION OF ANY KIND, WHETHER EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW) WITH RESPECT TO THE PRODUCT, INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO THE SUFFICIENCY, ACCURACY OR UTILIZATION OF, OR ANY INFORMATION OR OPINION CONTAINED OR REFLECTED IN, THE PRODUCT. ANSI EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. NO OFFICER, DIRECTOR, EMPLOYEE, MEMBER, AGENT, REPRESENTATIVE OR PUBLISHER OF THE OWNER IS AUTHORIZED TO MAKE ANY MODIFICATION, EXTENSION, OR ADDITION TO THIS LIMITED WARRANTY. 3. INDEMNIFICATION: The Owner, ANSI, any agent, representative, publisher or distributor of the Product, or any of their respective directors, officers, employees, agents, representatives or members (the “ANSI and Owner Indemnified Parties”) shall have no liability for, and you shall defend, indemnify and hold each of the Rev. 5/2009 �ANSI and Owner Indemnified Parties harmless from and against, any claim, loss, demand, liability, obligation and expenses (including reasonable attorneys' fees) based upon or arising out of any injury or damage, or any product liability claim, including but not limited to, any personal or bodily injury or property damage, arising out of, pertaining to, or resulting in any way from, the use or possession of any of the Product, including, without limitation, infringement of third party rights, by you and/or any of your directors, officers, employees, representatives, agents or contractors. 4. LIMITATION OF LIABILITY: (a) You acknowledge that each of ANSI and Owner's and/or Product distributor’s obligations and liabilities with respect to the Product are exhaustively defined in this Agreement. You are responsible for the consequences of any use of the Product (whether or not such use was consistent with the license granted hereunder) created therefrom. Whether or not ANSI or Owner or the Product’s distributor has been advised of their possibility, neither ANSI nor Owner nor any distributor of the Product nor any of their representatives or agents, directors, officers, employees, agents, representatives or members, shall be liable, whether under contract, tort (including negligence) or otherwise, for any indirect, special, punitive, incidental or consequential loss, damage, cost or expense of any kind whatsoever and howsoever caused, that may be suffered by you or any of your directors, officers, employees, agents, representatives or contractors or any third party. (b) If at any time an allegation of infringement of any rights of any third party is made, or in ANSI or Owner's or Product distributor’s opinion is likely to be made, with respect to any of the Product, ANSI may, at its option and at its own expense (i) obtain for you the right to continue using the Product, (ii) modify or replace the Product or any portion thereof so as to avoid any such claim of infringements, or (iii) refund to you the License Fee in return for you ceasing to use the Product. ANSI, the Owner and the Product distributor shall have no liability to you if any claim of infringement would have been avoided except for your refusal to use any modified or replacement Product supplied or offered to be supplied pursuant to this Section 4(b) or to otherwise cease using the Product. Notwithstanding anything contained in this Agreement, and except as set forth in this Section 4(b), ANSI and/or Owner's and/or Product distributor’s liability to you for damages pursuant to this Section 4(b), if any, shall not exceed the amount of the License Fee paid by you for the Product subject to any such claim. (c) Section 4(b) states the entire liability of ANSI and Owner and distributor of the Product with respect to an infringement or alleged infringement of any third party rights of any kind whatsoever by use of the Product. 5. TERMINATION: This Agreement may be terminated immediately by ANSI or Owner or distributor of the Product upon breach of any provision of this Agreement by you. Upon any termination of this Agreement, you shall immediately discontinue the use of the Product and shall, within ten (10) days, return files(s) on diskette(s), if any, to ANSI and certify in writing to ANSI that the Product, and any copy, has been deleted from your computer and is eliminated from your premises. Sections 2, 3, 4, 6, 7 and 8 shall survive the termination of this Agreement. 6. GOVERNING LAW: This Agreement shall be governed by the laws of the State of New York without reference to its conflict of laws provisions. You consent to exclusive jurisdiction and venue of the state and federal courts sitting in the City and State of New York. 7. MISCELLANEOUS: This Agreement constitutes the complete and exclusive agreement between ANSI and you with respect to the subject matter hereof, and supercedes all prior oral or written understandings, communications or agreements not specifically incorporated herein. This Agreement may not be modified except in writing duly signed by an authorized representative of ANSI and you. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable, and such decision shall not affect the enforceability (i) of such provision under other circumstances, or (ii) of the remaining provisions hereof under all circumstances. Headings shall not be considered in interpreting the Agreement. This Agreement and the rights granted to you may not be assigned or assignable, in whole or in part. For purposes of this Agreement, Owner shall be deemed to be a third party beneficiary, with full rights to enforce its intellectual property rights hereunder. 8. EXPORT: You may not load or export or re-export any of the Product or any underlying information or technology except in full compliance with all United States and other applicable laws and regulations. Rev. 5/2009 �BY ACCESSING THE PRODUCT, YOU ACKNOWLEDGE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. Rev. 5/2009 �
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INVENSYS SKELTA’S EULA IMPORTANT, READ CAREFULLY. THIS INVENSYS SKELTA END USER LICENSE AGREEMENT (THE “EULA”) IS A LEGALLY BINDING CONTRACT BETWEEN YOU, THE END-USER (“YOU” OR THE “LICENSEE”) AND INVENSYS SKELTA (“INVENSYS SKELTA” OR THE “LICENSOR”) FOR THE SOFTWARE PRODUCTS LICENSED TO YOU BY INVENSYS SKELTA. EXCEPT TO THE EXTENT YOU ARE BOUND BY A WRITTEN AGREEMENT SIGNED BY BOTH YOU AND INVENSYS SKELTA REGARDING THE USE AND LICENSE OF THIS SOFTWARE PRODUCT, BY INSTALLING OR USING THIS SOFTWARE PRODUCT, YOU, THE LICENSEE, ARE AGREEING TO BE BOUND BY THE TERMS, CONDITIONS AND LIMITATIONS OF THIS EULA, WHICH INCLUDE, BUT ARE NOT LIMITED TO, THE DISCLAIMER OF WARRANTY AND LIMITED WARRANTY, AND LIMITATION OF INVENSYS SKELTA’S LIABILITY. READ THE TERMS AND CONDITIONS OF THIS EULA CAREFULLY BEFORE INSTALLING OR USING THE SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS, CONDITIONS AND LIMITATIONS OF THIS EULA, TERMINATE THE INSTALLATION OF THIS SOFTWARE BY SELECTING "I DO NOT ACCEPT THE LICENSE AGREEMENT" IN THIS WINDOW OR BY CLICKING ON THE "CANCEL" BUTTON. YOU MAY THEN PROMPTLY DELETE THE LICENSE FILES AND SOFTWARE FROM YOUR COMPUTER AND RETURN THE LICENSE FILE MEDIA AND THE ENTIRE MEDIA PACKAGE (INCLUDING DOCUMENTATION AND PACKAGING) WITHIN 30 DAYS OF PURCHASE TO THE PLACE FROM WHICH YOU OBTAINED IT FOR A FULL REFUND. This EULA applies to all editions (Deployment and Developer Editions) of the Skelta BPM.NET 2009 Software and Documentation unless otherwise indicated. Please note, the Developer Edition Software only grants a development license and not a deployment license – in other words, use of Development Edition Software in a production environment is strictly prohibited under this EULA. 1.0 Definitions. 1.1 “Designated Device” means the single Device owned, leased or otherwise controlled by Licensee at a single location identified on the License File or Order Form on which the Software is to be installed or run. 1.2 “Device” means any physical or virtual client, node, server, computer, or other digital workstation, electronic, cellular, or computing instrument that runs, accesses, or utilizes the services of the Software. 1.3 “Documentation” means the user guides and manuals for the installation and use of the Software, whether provided in electronic, physical media, hard copy, or other form. 1.4 “License Fee” means the fee paid to Invensys Skelta for each specific license for the Software granted hereunder as may be identified in an Order Form. 1.5 “License File” means a component of the Software that enables one or more components of the Software and may also specify the location of the Designated Device(s), the named user(s), and the Licensee. 1.6 “Order Form” means (i) the document in hard or electronic copy by which particular Software is ordered by or for Licensee and by which Invensys Skelta is advised of the location of the Designated Device(s) and (ii) any order confirmation that may be issued by Invensys Skelta or an authorized partner of Invensys Skelta acknowledging receipt of, or accepting, an order by Licensee for particular Software. 1.7 “Software” means the computer software programs identified in this EULA and in any applicable Order Form for which Licensee is granted a license hereunder, the License Files necessary to enable those programs, the Documentation therefore and Updates thereto. All computer programs are licensed hereunder in object code (machine-readable) form only. 1.8 “Update” means: (a) supplemental programs, if and when developed and distributed by Invensys Skelta, that may contain bug fixes or improved program functions for the Software; and (b) a subsequent release of the Software, if and when developed by Invensys Skelta, which Invensys Skelta generally makes available for licensees that have an Annual Support Agreement (sold separately). An Update does not include any release, new version, option, or future product, which Invensys Skelta licenses separately. 2. Grant of License. In consideration of the License Fee and subject to the terms, conditions and limitations set forth in this EULA and the limitations in any Order Form, Invensys Skelta grants to Licensee a nonexclusive, perpetual (unless terminated by Licensee or Invensys Skelta under Section 9.0 (“Termination”) hereof) license to install and use the Software as stated in this EULA. The Software is licensed to Licensee, not sold. 2.1 Software. This license permits the installation and use of the Software on a single computer, which may be connected at any point in time to an unlimited number of computers operating on one or more networks subject to Licensee Invensys Skelta BPM EULA v.2 - June 18, 2010 Page 1 of 5 �purchasing the appropriate number of client licenses for such connections and paying the applicable License Fees. Unless specifically stated in the Order Form for the license purchased by Licensee, the Software can only be installed on a single CPU. A single CPU means a maximum of two logical CPU cores detected by the operating system and not necessarily a physical CPU. For example, if the processor is Dual Core, Licensee will only need to purchase one CPU license, however, if the processor is Quad Core, 2 CPU licenses must be purchased by Licensee). 2.2 Software Editions. Deployment Edition Software provides one single deployment license for production deployments on the server. Use of the Developer Edition license is strictly limited to internal development purposes. For any development involving third party software or integrated development environments such as Visual Studio, Licensee must purchase a license for Developer Edition Software even if Licensee has already purchased a license for Deployment Edition Software. 2.3 Software Use. Unless otherwise restricted under this EULA or any Order Form, you may use the Software for the purpose of embedding and enhancing applications, products or web based engines or for any other purpose allowed under this EULA. 2.4 Client License Requirements. For Deployment Edition Software, Licensee must purchase a client access licenses for each user connecting to the server. For Developer Edition Software, Licensee must purchase a license for each machine where such Software is installed and used for development including but not limited to the machine in the build environment. 2.5 User Based License. Any user who is touched by, uses or accesses the Software or the Invensys Skelta system as a workflow participant or for any other purpose is considered as one user consuming one user license. If a user based license is purchased by Licensee, then even for internet facing applications, user licenses must be purchased by Licensee on a per user basis. There are no CPU limitations in a single computer for user based licenses. 2.6 Server Based License. For server based licenses, an unlimited number of users can access the server irrespective of their locations. 2.7 Concurrent Workflows Based License. This license allows only a specific number of concurrent workflows to be executed, and has no limitations on the number of users. Software stops accepting more workflows if concurrency limits are exceeded - i.e. if more than the allowed number of workflows are either waiting or running. 3. License Restrictions. 3.1 Copy Restrictions. Copyright laws and international treaties protect the Software, including the Documentation. Unauthorized copying of the Software, the Documentation or any part thereof, is expressly prohibited. Subject to these restrictions, Licensee may make one (1) copy of the Software solely for backup or archival purposes, and may make a limited number of copies of the Documentation for use by Licensee in connection with its authorized use of the Software. All titles, trademarks, and copyright and restricted rights notices will be reproduced in such copies. 3.2 Use Restrictions. Licensee will not, nor will Licensee permit others to, modify, adapt, translate, reverse engineer, decompile or disassemble the Software or any component thereof (including the Documentation), or create derivative works based on the Software (including the Documentation), except to the extent such foregoing restriction is agreed to in writing by Invensys Skelta or prohibited by applicable law. 3.3 Transfer and Assignment Restrictions. Licensee may not transfer, sublicense, rent, lease, sell, loan or assign the Software or any part thereof, or any of its rights or duties under this EULA, to any other person or entity without the prior written consent of Invensys Skelta. 3.4 Ownership. Invensys Skelta or Invensys Skelta’s Licensors retains all title, copyright and other proprietary rights in, and ownership of, the Software regardless of the media upon which the original or any copy may be recorded or fixed. Licensee does not acquire any rights, express or implied, other than those expressly granted in this EULA. 3.5 Verification/Audit. At Invensys Skelta’s written request, not more frequently than annually, Licensee will furnish Invensys Skelta with a signed certification verifying that the Software is being used in accordance with the provisions of this EULA. Invensys Skelta may audit Licensee’s use of the Software. Any such audit will be conducted during regular business hours at Licensee’s facilities and will not unreasonably interfere with Licensee’s business activities. If an audit reveals that Licensee is using Software contrary to the terms and limitations of this EULA then Licensee will be invoiced for additional License Fees consistent with Licensee’s actual use of the Software in accordance with Invensys Skelta’s then current price list for the Software, which amount will be immediately due and payable. This assessment of additional fees will be without prejudice to any other remedies Invensys Skelta may have for breach of this EULA, including without limitation termination under Section 10 (“Term and Termination”). 3.6 Authorization Keys. Authorization keys, if any, may be installed and enabled for use in only one license control utility. You may not modify or make inoperable authorization keys or license control utilities. The number of concurrent workflow Invensys Skelta BPM EULA v.2 - June 18, 2010 Page 2 of 5 �instances or client access licenses (“CALS”) that you may run is restricted by the terms of your purchase and is registered on a per CPU basis. In other words, operating the Software on multiple CPUs requires as many licenses as there are CPUs. 4. Third Party Software. The Software may incorporate or embed components or software that is owned by third parties (“Invensys Skelta Licensors”). Use of Invensys Skelta Licensor’s components or software embedded in the Software is subject to: (i) the applicable Invensys Skelta Licensor’s end user license agreements located at http://www.skelta.com/license/EULAs/ or, if no such agreements are available at this location, then (ii) this EULA. In addition, Licensee agrees that the embedded components or software may not be used in any other fashion or for any other purpose other than as provided under the Invensys Skelta Licensor’s end user license agreement or, if not available at the location above, then this EULA. Copyright and other proprietary rights notices of Invensys Skelta and Invensys Skelta Licensors are contained in the Software, and Licensee will not modify or delete any such notices. 5.0 Support, Services and Updates. 5.1 Technical Support. Technical support and other services are available for an additional fee and are not included in the EULA. 5.2. Update Policy. Invensys Skelta may from time to time, but has no obligation to, create Updates of the Software. Subject to the then current Invensys Skelta product lifecycle, Invensys Skelta will make such Updates available to Licensee with a then current Annual Support Agreement at the time of the release of the Update. 6. Limited Warranties and Disclaimers. 6.1 Limited Warranty. Invensys Skelta warrants for a period of ninety (90) days following delivery of the Software that the Software will perform substantially in accordance with the Documentation. Defective media will be replaced without charge during the 90 day warranty period. During the Warranty period, Invensys Skelta will use commercially reasonable efforts to provide maintenance modifications or fixes with respect to any such material defect in the Software in a reasonably timely manner. If Invensys Skelta is unable to make the Software operate as warranted, then Licensee may, within thirty (30) days after Invensys Skelta’s failure to cure or fix the defect, elect to terminate the license granted hereunder and recover the License Fee paid to Invensys Skelta with respect to the defective Software. 6.2 Pre-Production Releases. As an accommodation to Licensee, Invensys Skelta may provide Licensee from time to time a pre-production release of the Software. All such Pre-Production Releases are provided strictly on an “as-is” basis and Invensys Skelta disclaims all warranties, express or implied, for all pre-production releases. 6.3 Disclaimer of All Other Warranties. THE WARRANTIES IN SECTION 6 ABOVE ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY INVENSYS SKELTA, ITS DEALERS, DISTRIBUTORS OR AGENTS OR EMPLOYEES WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTIES GIVEN IN THIS SECTION, AND LICENSEE MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. Invensys Skelta does not warrant that the Software will meet Licensee’s requirements, that the Software will operate in combinations other than as specified in the Documentation or that the operation of the Software will be uninterrupted or error-free. 7. Confidentiality. The Software, including the Documentation, the terms and pricing under this EULA, and any other information that may be marked as confidential is confidential and proprietary information of Invensys Skelta (“Confidential Information”). Results of any benchmark tests on the Software run by Licensee may not be disclosed outside of Licensee’s organization without the prior written consent of Invensys Skelta. Licensee will hold the Confidential Information in strict confidence during the term of this EULA and for a period of three (3) years thereafter. Licensee will take reasonable steps to ensure that its employees and agents also comply with the confidentiality obligations of this Section. Licensee acknowledges that confidential aspects of the Software (including any source code) is a trade secret of Invensys Skelta, the disclosure of which would cause substantial harm to Invensys Skelta that could not be remedied by the payment of damages alone. Accordingly, Invensys Skelta will be entitled to preliminary and permanent injunctive and other equitable relief for any breach of this Section 7. 8.0 Indemnity. Subject to the limitations in Section 9 (“Liability Limitations”) of this EULA, Invensys Skelta shall indemnify, defend and hold Licensee harmless from costs or liabilities (including reasonable attorneys fees) arising from any third party claim or action brought against Licensee alleging that the Software, when licensed in accordance with this EULA, or any Documentation, infringes any patent, copyright or other proprietary right of any third party in the country in which the Software is used by the Licensee (“Claims”), provided that (i) Licensee notifies Invensys Skelta promptly in writing of the Claims and Invensys Skelta is not prejudiced by any delay in providing such notification, (ii) Licensee permits Invensys Skelta to solely control the defense and settlement of the Claims (Invensys Skelta will not admit any liability or wrongdoing on the part of Licensee without Licensee’s prior written consent) and (iii) Licensee provides Invensys Skelta with the assistance, information and authority necessary (at the sole cost of Invensys Skelta) for Invensys Skelta to perform its Invensys Skelta BPM EULA v.2 - June 18, 2010 Page 3 of 5 �obligations under this Section 8. Licensee may participate in defense of Claims, with counsel of its own choosing, at its sole expense. If the Software is held, or is believed by Invensys Skelta, to infringe, then Invensys Skelta will have the option, at its expense, to: (i) modify the Software to be noninfringing; or (ii) obtain for Licensee a license to continue using the Software. If, in Invensys Skelta’s sole discretion, it is not economically or commercially reasonable to perform either of the above options then Invensys Skelta may terminate the license for the infringing Software and refund to Licensee the License Fee paid to Invensys Skelta for the infringing Software. The foregoing Invensys Skelta obligations shall not apply to (i) any Software developed or manufactured to the designs, drawings or specifications furnished and required by Licensee, (ii) Software stored, used, or maintained not in accordance with Invensys Skelta’s instructions or recommendations, (iii) Claims resulting from combining the Software with any other goods or services not furnished or otherwise authorized by Invensys Skelta, (iv) modifications to the Software without the prior written consent of Invensys Skelta, (v) parts, goods or software supplied by Licensee or any third party or (vi) Licensee’s failure to use corrections or enhancements made available by Invensys Skelta. Invensys Skelta may, at any time, cease to deliver any Software without breaching this EULA if Invensys Skelta reasonably believes such Software is or may be infringing. This Section 8 states Invensys Skelta’s entire liability and Licensee’s sole and exclusive remedy for Claims. 9. Liability Limitations. Notwithstanding any provision of this EULA to the contrary, except for Licensee's violation of Sections 2 (“Grant of License”), 3 (“License Restrictions”) or Section 7 (“Confidentiality”) hereof, in no event will either party, nor anyone else who has been involved in the creation, production or delivery of the Software, including Invensys Skelta licensors, be liable for any indirect, incidental, special, punitive or consequential damages, or damages for loss of profits, revenue, data or use, incurred by either party or any third party, whether in an action in contract or tort, even if such party has been advised of the possibility of such damages. Invensys Skelta’s liability for damages and expenses hereunder or relating hereto (whether in an action in contract, tort or otherwise) will in no event exceed the amount of License Fees paid to Invensys Skelta with respect to this EULA, and if such damages result from Licensee’s use of particular Software or technical support services then such liability will be limited to License Fees paid to Invensys Skelta for the Software or services giving rise to the liability. The provisions of this EULA allocate the risks between Invensys Skelta and Licensee. Invensys Skelta’s pricing reflects this allocation of risk and the limitation of liability specified herein. 10.0 Termination. 10.1 Termination. This EULA and the license granted hereunder automatically terminates if Licensee breaches any provision of this EULA including but not limited to the failure to pay in full the License Fee when due. Licensee may terminate the license granted hereunder at any time upon delivery of written notice to Invensys Skelta. Termination will not relieve Licensee of its obligations specified in Section 10.2 and will not entitle Licensee to a refund of any License Fee previously paid. 10.2 Effect of Termination. Upon termination of this EULA or the license granted hereunder, Licensee will cease using the Software, will delete the Software, including the License File(s), from its computer and will either return to Invensys Skelta or destroy the Software, including the License File(s), Documentation, packaging and all copies thereof. If Licensee elects to destroy the Software then Licensee will certify in writing to Invensys Skelta the destruction of the Software. Termination of this EULA and return or destruction of the Software will not limit either party from pursuing other remedies available to it, including injunctive relief, nor will such termination relieve Licensee’s obligation to pay all fees and expenses that have accrued or are otherwise owed by Licensee under this EULA or any Order Form received and accepted by Invensys Skelta. 11. General Terms. 11.1 Governing Law and Dispute Resolution. The validity of this EULA and the rights, obligations and relations of the parties hereunder and in any dispute between them will be construed and determined under and in accordance with the substantive laws of the state of Karnataka, India, without regard to such country’s principles of conflicts of law. The State courts in the State of Karnataka, India, shall have exclusive jurisdiction to hear all matters relating to this EULA and each of the Parties signing this EULA consents to personal jurisdiction in and venue of such courts and waives any objection to the venue of such courts. Additionally, the Parties waive all rights to trial by jury. To the extent otherwise applicable, the parties hereto agree that the United Nations Convention on the International Sale of Goods will not apply to this EULA. 11.2 Restricted Rights Legend—U.S. Government Users. The Software is a "commercial item" as that term is defined at 48 CFR 2.101 (October 1995), consisting of "commercial computer software" and "commercial computer software documentation", as such terms are used in 48 CFR 12.212 (September 1995), and is provided to the U.S. Government only as a commercial end item. Consistent with 48 CFR 12.212 and 48 CFR 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the Software with only those rights set forth herein. Contractor/ manufacturer is Invensys Skelta BPM EULA v.2 - June 18, 2010 Page 4 of 5 �Invensys Skelta Software Private Limited, 2nd Floor, Salarpuria Touchstone Sarjapur Outer Ring Road, Bangalore – 560 087, India 11.3 Export Restrictions. Licensee represents that it will comply with all export control laws and regulations of the United States and applicable countries, including but not limited to regulations of the United States Bureau of Export Administration, prohibiting export of goods, directly or indirectly, to "embargoed" countries. Licensee will ensure that (a) the ultimate destination of the Software is not a destination in violation of any such law or regulation; (b) the ultimate end-user is not a person or entity on the "denied persons list" and (c) the end-user intended use does not violate any regulations regarding Diversion, Nuclear Proliferation, Missile Technology or Chemical or Biological Weapons. 11.4 Force Majeure. Neither party will be responsible to the other for any failure or delay in its performance due to acts of God or other unforeseen circumstances beyond the reasonable control of either party, provided that such party gives prompt written notice thereof to the other party and uses its diligent efforts to resume performance. 11.5 Severability; Waiver. If a court of competent jurisdiction finds any provision of this EULA invalid or unenforceable, that provision of the EULA will be amended to achieve as nearly as possible the intent of the parties, and the remainder of this EULA will remain in full force and effect. The waiver by either party of a breach of any provision of this EULA in one instance shall not operate or be construed as a waiver of any subsequent breach of the same provision or any other provision of this EULA. 11.6 Notices. All notices required to be sent hereunder will be in writing and will be deemed to have been given when mailed by first class mail to the address shown on the relevant Order Form (if to Licensee) or to the Invensys Skelta address shown on the relevant Order Form (if to Invensys Skelta). 11.7 Assignment. Licensee may not assign this EULA, in whole or in part, without Invensys Skelta’s prior written consent. Any attempt to assign this EULA without such consent will be null and void. Subject to the foregoing, this EULA will bind and inure to the benefit of each party's permitted successors and assigns. 11.8 Injunctive Relief. A breach of any of the terms contained in this EULA may result in irreparable and continuing damage to Invensys Skelta for which there may be no adequate remedy at law. Accordingly, you acknowledge and agree that Invensys Skelta is therefore entitled to seek injunctive relief as well as such other and further relief as may be appropriate. 11.9 Survival. Following termination or expiration of this EULA, the Parties remain obligated under the provisions of this EULA which by their nature or terms continue after termination or expiration of the EULA, including but not limited to: Sections 3 (“License Restrictions”), 7 (“Confidentiality”), 9 (“Liability Limitations”), 10.2 (“Effect of Termination”), and 11 (“General Terms”). 11.10 Anti-Piracy. Licensee agrees it will not engage in the manufacture or use of counterfeit, pirated or illegal software (including the Software); it will not knowingly engage in the distribution or supply or transfer of counterfeit, pirated or illegal software (including the Software) and it will not knowingly supply the Software to end-users or Customers who engage in the use, manufacture, distribution or other supply or transfer of counterfeit, pirated or illegal software (including the Software). 11.11 Entire Agreement. This EULA (together with any information from the Order Forms and License Files necessary to identify the further specific restrictions applicable to Software licensed hereunder) constitutes the entire agreement between the parties and supersedes all prior or contemporaneous agreements, written or oral, concerning the subject matter of this EULA. This EULA may not be modified or amended except in a writing signed by an authorized representative of each party. It is expressly agreed that the terms of this EULA and any Order Form issued by Invensys Skelta will supersede the terms in any Order Form or other purchasing document submitted by Licensee; and the terms of any Licensee Order Form or other purchasing document are expressly rejected to the extent inconsistent with the terms of this EULA. Certain components of the Software may also be subject to a paper or electronic license agreement delivered by or on behalf of Invensys Skelta concurrently herewith, the terms of which will be supplemental hereto to the extent not inconsistent herewith. If a copy of this EULA in a language other than English is included with the Software or Documentation, it is included for convenience and the English language version of this EULA will control. Invensys Skelta BPM EULA v.2 - June 18, 2010 Page 5 of 5 �
nw/121.txt
Strategic IP Licensing, Inc. eLearning COURSE END USER LICENSE AGREEMENT BEFORE YOU INSTALL OR USE THE SOFTWARE YOU MUST READ, ACKNOWLEDGE AND ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT BELOW. BY ACCEPTING THE TERMS AND CONDITIONS OF THIS AGREEMENT OR BY USING OR INSTALLING THE SOFTWARE YOU REPRESENT THAT YOU HAVE CAREFULLY READ AND EXPRESSLY ACCEPT ALL TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT OR IN ANY OTHER DOCUMENT REFERENCED HEREIN INCLUDING BUT NOT LIMITED TO THE APPLICABLE LICENSE KEY LETTER(S) WHICH IS INCORPORATED HEREIN BY REFERENCE, AND WILL BE LEGALLY BOUND BY THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU SHALL NOT BE ABLE TO ACCESS OR USE THE SOFTWARE. Notice to User Please note that if you intend to use SkillSTICK® within corporate network infrastructures, firewall and other enterprise security measures (which may include company policies), you may first need to obtain permissions from your I.T. department before being able to use SkillSTICK®. Should these measures be found to impact use of SkillSTICK® within your company's technical environment, please email us at [email protected] and we will assist in working with your I.T. department to authorize (or 'white-list') SkillSTICK® technology. If you or your company paid for a single-user license for a SIPL course, then this means ONLY YOU ARE ELIGIBLE to take the course and ONLY FOR THE TIME LIMIT ALLOCATED. See Section 2 below. 1. GRANT OF LICENSE. SIPL grants you a nonexclusive and limited license to use the Software products and functionalities for which you have paid the applicable fees solely for your internal business purposes and in accordance with the terms and conditions of this Agreement. The Software is licensed, not sold, to you. This license does not apply to any other software program that may be provided with the Software. 2. INSTALLATION AND USE. You agree to load and use the Software only on a single computer or at a single location, for use by only one person per license purchased. You may install and use the Software only in the configuration and for the number of licenses acquired by you. For example, if you are licensed to �use a course, which has a usage allocation of two (2) hours, then the course will expire after you have exhausted this limit. THIS TIME ALLOCATION IS CUMULATIVE. You can log into the course as many times as you like as long as the cumulative time in the module is equal to or less than the allocated limit. Should you have any questions regarding this policy, please do not hesitate to contact us at [email protected]. You may also install nonproduction copies of the Software as is reasonably necessary for disaster recovery, emergency restart and backup, including, but not limited to making copies for such purposes for use at one or more disaster recovery sites. In order to exercise your rights to the Software under this License Agreement you must activate your copy of the Software in the manner described during the launch sequence. SIPL may control the number and type of licenses and the use of the Software by license key codes ("License Key"). 3. OWNERSHIP. SIPL and/or its suppliers retain all right, title and interest in and to the Software and all copies at all times, regardless of the form or media in or on which the original or other copies may subsequently exist, hardware provided by SIPL and any accompanying documentation. You neither own nor hereby acquire any claim or right of ownership to the Software or to any related patents, copyrights, trademarks, trade secrets or other intellectual property. You agree to retain the Software, the terms of this Agreement as well as any Software benchmark or similar tests (whether performed by you, SIPL or any third party) in confidence and prevent them from unauthorized disclosure or use except with SIPL's prior written consent. SIPL and/or its suppliers reserve all rights not expressly granted to you. SIPL's suppliers are the intended third party beneficiaries of this License Agreement and have the express right to rely upon and directly enforce the terms set forth herein. 4. COPYRIGHT. The Software is copyrighted by SIPL and/or its suppliers and is protected by United States copyright and patent laws and international treaty provisions. You will not remove copyright notices from the Software. Licensee agrees to prevent any unauthorized copying of the Software. You may not copy the Software except: (a) to provide a non-production backup copy; or (b) to install the Software components licensed by you, as set forth in Section 2, on to computers as part of executing the Software. Solely with respect to the documentation included with the Software, you may make a reasonable number of copies (either in hard copy or electronic form), provided that such copies shall be used only by licensed end users in conjunction with their use of the Software and are not republished or distributed to any third party. You must reproduce and include all copyright notices, trademarks or other proprietary legends of SIPL and its suppliers on any copy of the Software or documentation made by you. Any and all other copies of the Software made by you are in violation of this Agreement. �5. RESTRICTIONS. Except as expressly permitted by this License Agreement or by applicable law you may not: (a) lease, loan, resell, assign, sublicense, or otherwise distribute the Software or any of the rights granted by this License Agreement without the express written permission of SIPL; (b) use the Software to provide or operate Application Service Provider (ASP), service bureau, marketing, training, outsourcing services, or consulting services, or any other commercial service related to the Software or to develop training materials; (c) modify (even for purposes of error correction), adapt, or translate the Software or create derivative works therefrom except as necessary to configure the Software using the menus, options and tools provided for such purposes and contained in the Software; (d) in any way reverse engineer, disassemble or decompile the Software or the data file formats (including reverse compiling to ensure interoperability) or any portion thereof except to the extent and for the express purposes authorized by applicable law notwithstanding this limitation; (e) use the Software to develop a product which is competitive with any SIPL product offerings; (f) use unauthorized license key(s) or distribute license key(s); (g) disclose any Software benchmark results to any third party without SIPL's prior written approval, (h) permit third party access to, or use of the Software except as expressly permitted herein, and (i) distribute or publish license key(s) 6. LIMITED WARRANTY AND REMEDY. a. SIPL warrants to you that: (i) for a period of ninety (90) days from delivery of the Software, the Software will substantially conform to the functional description set forth in the standard documentation accompanying the Software when properly installed on a computer system or network which meets the minimum system requirements set forth below (which may be amended from time to time by SIPL); and (ii) for a period of thirty (30) days from delivery of any physical media (e.g., CD-ROM), such physical media will be free from defects in materials and workmanship. Any implied warranties on the Software and media are limited to thirty (30) days from delivery, to the extent such warranties cannot be disclaimed under Section 6(c) below. The above warranties specifically exclude defects resulting from accident, abuse, unauthorized repair, modifications, or enhancements, or misapplication. SIPL does not warrant that the Software will operate uninterrupted or error free. Delivery of additional copies of, or revisions or upgrades to, the Software, including releases provided under Support Services, shall not restart or otherwise affect the warranty period. b. Your exclusive remedy for breach of the above-stated limited warranty shall be that SIPL will use its commercially reasonable efforts to correct the Software or, at its sole option, replace the Software with product(s) �which conform to the above-stated limited warranty. Such remedy shall be provided to you by SIPL only if you give SIPL written notice of any breach of the above-stated limited warranty, within thirty (30) days of delivery of the Software. c. EXCEPT FOR EXPRESS WARRANTIES STATED IN THIS SECTION 6, SIPL AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY (I) OF MERCHANTABILITY, (II) OF FITNESS FOR A PARTICULAR PURPOSE, (III) OF NONINFRINGEMENT OF THIRD PARTY RIGHTS, OR (IV) AGAINST HIDDEN DEFECTS. SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU, AND YOU MAY HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE OR BY JURISDICTION. YOU ACKNOWLEDGE THAT IN ENTERING INTO THIS AGREEMENT, YOU HAVE RELIED UPON YOUR OWN EXPERIENCE, SKILL AND JUDGEMENT TO EVALUATE THE SOFTWARE AND THAT YOU HAVE SATISFIED YOURSELF AS TO THE SUITABILITY OF THE SOFTWARE TO MEET YOUR REQUSIPLEMENTS. d. Minimum System Requirements. To access the Software, your computer must meet the minimum system requirements, which can be found at the end of this Agreement and athttps://www.petroed.com/techsupport.php. The foregoing notwithstanding, SIPL makes no guarantee that the Software will run on a computer meeting the minimum system requirements. 7. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SIPL OR ITS DISTRIBUTORS, SUPPLIERS OR AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, ANY LOST PROFITS OR REVENUES, LOSS OR INACCURANCY OF ANY DATA, OR COST OF SUBSTITUTE GOODS, REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING NEGLIGENCE) AND EVEN IF SIPL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SIPL AND ITS SUPPLIERS' AGGREGATE LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER SHALL BE LIMITED TO THE SOFTWARE LICENSE FEES PAID BY YOU FOR THE SOFTWARE OR THE FEES PAID BY YOU FOR THE SERVICE DIRECTLY CAUSING THE DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING �ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE FOREGOING ALLOCATION OF RISK IS REFLECTED IN THE FEES CHARGED UNDER THIS LICENSE AGREEMENT. SOME STATES/JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY IN CERTAIN CIRCUMSTANCES INCLUDED IN THIS SECTION, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU ONLY IN SUCH CIRCUMSTANCES. SIPL has no liability whatsoever for any damages of any kind to your computers or equipment, nor for any disruptions, delays, mis-deliveries in service or other adverse effects of any nature upon you or your business, that arise directly or indirectly, or in whole or in part, from your use of the Software. You hereby release SIPL (including its parent, affiliated and subsidiary companies, and the officers, directors, managers, members, employees, sub-contractors and agents thereof) from any and all claims, demands and damages of any type or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way connected with your use of the Software. The Software is provided by SIPL to you on an "AS IS" basis, and SIPL assumes no responsibility, nor makes any warranties, regarding the completeness, accuracy, soundness, functionality or compatibility of the Software. 8. FEEDBACK; SUPPORT SERVICES; PERSONAL DATA. It is expressly understood, acknowledged and agreed that you shall, regardless of whether or not formally requested to do, provide to SIPL reasonable suggestions, comments and feedback regarding the Software, including but not limited to usability, bug reports and test results, with respect to Software testing (collectively, "Feedback"). If you provide such Feedback to SIPL, you shall grant SIPL the following worldwide, non-exclusive, perpetual, irrevocable, royalty free, fully paid up rights: i. to make, use, copy, modify, sell, distribute, sub-license, and create derivative works of, the Feedback as part of any SIPL product, technology, service, specification or other documentation (individually and collectively, "SIPL Products"); ii. to publicly perform or display, import, broadcast, transmit, distribute, license, offer to sell, and sell, rent, lease or lend copies of the Feedback (and derivative works thereof) as part of any SIPL Product; iii. solely with respect to Licensee's copyright and trade secret rights, to sublicense to third parties the foregoing rights, including the right to sublicense to further third parties; �iv. to sub-license to third parties any claims of any patents owned or licensable by Licensee that are necessarily infringed by a third party product, technology or service that uses, interfaces, interoperates or communicates with the feedback or portion thereof incorporated into a SIPL Product, technology or service. Further, you warrant that your Feedback is not subject to any license terms that would purport to require SIPL to comply with any additional obligations with respect to any SIPL Products that incorporate any Feedback. If you purchased Support Services, SIPL will provide to you product support services for the Software in accordance with SIPL then current Support Services terms and conditions. If you purchase Support Services for the Software, you must purchase Support Services for all authorized copies of said Software in your possession. SIPL handles your personal information in accordance with its privacy policy, which is amended from time to time and is available at www.petroed.com. Personal information hosted by the Software includes but is not limited to: (i) information delivered to SIPL by or on behalf of the end user at the time of purchase; (ii) information input by the end user into the 'Profile' section of the Software; (iii) training records or documents uploaded to the product software; and (iv) E-Learning Course registration and progress data. It is the responsibility of the end user to hold and keep safe the product hardware to protect their personal information. The end user is entirely and without exception responsible for any loss or theft of data, and you hereby release and hold harmless SIPL from any and all claims, demands, and damages of any type or nature arising out of or in any way connected with SIPL's collection and use of your personal information. 9. TERM. The term of this Agreement shall be Twelve (12) months from the date of first use of the Software. 10. TERMINATION. This Agreement is effective until terminated. Either party may terminate this Agreement at any time for any reason by providing the other party advance written notice of such termination, provided that if you terminate, you have complied with the return and/or destruction policy set forth below. This Agreement may be immediately terminated by SIPL if: (i) you fail to pay the license fees and other charges set forth at the time of your order; or (ii) you fail to comply with any of the terms and conditions set forth in this Agreement. Termination shall not relieve you from your obligation to pay fees that remain unpaid and shall not limit SIPL from pursuing other available remedies. Upon termination by SIPL of this Agreement, SIPL will have no obligation to refund to you any fees paid by you and you agree to waive in �perpetuity and unconditionally any and all claims for refunds. Upon any termination of this Agreement, you agree to: (i) immediately cease all use of the Software, including the use and distribution of any custom applications incorporating the Software; and (ii) at SIPL's sole discretion, either return the Software to SIPL or destroy same, and certify to SIPL, in writing, that all copies and partial copies thereof have been returned or completely destroyed and are no longer being used. Sections 4, 5, 6(c), 7, 9, 10, 11, 12 and 16 shall survive termination of this Agreement. 11. AUDIT. During the term of this Agreement and for two (2) years after termination or expiration, SIPL may audit, upon reasonable notice to you and at SIPL's expense, your books and records to determine your compliance with this Agreement. In the event any such audit reveals that you have knowingly breached any material obligation hereunder, then, in addition to such other remedies as SIPL may have, you shall pay or reimburse to SIPL the cost of the audit. 12. GENERAL. If any provision of this Agreement is ruled invalid, such invalidity shall not affect the validity of the remaining portions of this Agreement. This Agreement constitutes the entire agreement between you and SIPL, and supersedes any prior agreement, whether written or oral, relating to the subject matter of this Agreement. This Agreement may not be modified except by an instrument in writing duly signed by an authorized representative of each of the parties. If you are acquiring the Software on behalf of an entity, you represent and warrant that you have the legal capacity to bind such entity to this Agreement. All terms of any purchase order or other ordering document submitted by you shall be superseded by this Agreement. In the event you and SIPL have executed a mutually agreed upon a separately executed master software license agreement ("MLA") or a software license agreement ("SLA") (collectively, "Base Agreement") and acquired the Software pursuant to such Base Agreement respectively, the terms of the Base Agreement may govern your use of the Software and the terms of this EULA shall be superseded by those of the Base Agreement. The product name for the Software is a trademark or registered trademark of SIPL. Should you have questions concerning this Agreement, please contact SIPL at: Strategic IP Licensing, Inc. 2503 Robinhood Street, Suite 200 Houston, TX 77005 (713)461-5200 �[email protected] 13. U.S. GOVERNMENT RESTRICTED RIGHTS. The Software is provided with restricted rights. Use, duplication, or disclosure by the government is subject to restrictions as set forth in subparagraph (c)(f)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c) (1) and (2) of the Commercial Computer Software-Restricted Rights at 48 C.F.R. S:52.227-19, as applicable. 14. EXPORT CONTROLS. You acknowledge that the Software is of U.S. origin. You agree to comply with all applicable international and national laws that apply to the Software, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. 15. ORDER TERMS. Purchase orders conforming to SIPL purchase order requirements may be accepted from qualified companies. All pre-printed terms of any purchase order not approved in writing by SIPL shall have no effect. Payment terms are as set forth on the applicable invoice, Ex-Works Houston, Texas. SIPL specifically disclaims price guarantees of any kind. You are responsible for payment of all applicable sales, use, consumption, VAT, GST, and other taxes and all applicable export and import fees, custom duties and similar charges, excluding taxes based on SIPL net income. 16. GOVERNING LAW. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Texas, USA, without regard to the conflicts of law rules thereof. Any claim or dispute arising in connection with this Agreement shall be resolved in the federal or state courts situated within the Southern District of Texas. To the maximum extent permitted by law, you hereby consent to the jurisdiction and venue of such courts and waive any objections to the jurisdiction or venue of such courts. 17. CONFIDENTIALITY. You agree that, unless otherwise specifically provided herein or agreed by SIPL in writing, the Software (including but not limited to its design, organization, data, structure of individual programs, processes, user interfaces, logins, passwords, performance specifications, code, content, subject-matter and related documentation) as well as the terms of this Agreement provided to you by SIPL constitute confidential proprietary information of SIPL. You agree not to transfer, copy, disclose, provide or otherwise make available such confidential information in any form to any third party without the prior written consent of SIPL. You agree to implement reasonable security measures to protect such confidential information, but without limitation to the foregoing, shall use best efforts to maintain the security of the Software provided to you by SIPL. You will use your best efforts to cooperate with and assist SIPL in identifying and preventing any �unauthorized use, copying, or disclosure of the Software, or any portion thereof. This Agreement is publically available at www.petroed.com/documents/skillgrid_eula.pdf. Please indicate below whether you accept, or do not accept, the terms and conditions of this end user software license agreement. • • • • • • • • • • • Microsoft Windows® XP/Vista/7 (MAC not supported) A 2.33 + gigahertz (GHz) processor (Pentium® or equivalent) 256 MB RAM Graphics card with 128 MB graphics memory USB 2.0 port Soundcard with speakers or headphones One of the following internet browsers: o Microsoft Internet Explorer 8 + Appropriate internet security settings (to allow pop-ups and Active content) Initial administration/power user access to install: o Application components o Plug-ins Adobe Flash Player 9 + (download here) Adobe Shockwave Player 11 + (download here) Adobe Acrobat Viewer (download here) Java Runtime Environment 1.6 + (download here) ACELP®.net Audio Codec (download here) Internet connection (only required for initial activation and for synchronization) Ability to disable firewall or allow exceptions to it (only required for initial activation and for synchronization) �
nw/122.txt
END-USER LICENSE AGREEMENT FOR RATIONAL ACOUSTICS SMAART® SOFTWARE. IMPORTANT PLEASE READ THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT CAREFULLY BEFORE CONTINUING WITH THIS PROGRAM INSTALL: TERMS AND CONDITIONS This End-User License Agreement (EULA) is a legal agreement between you (either an individual or an entity), the EndUser, and Rational Acoustics, LLC (Rational Acoustics) governing your use of the software you have acquired from Rational Acoustics (the "SOFTWARE"). The SOFTWARE subject to this EULA includes computer software, the associated media on which it is stored, any printed materials accompanying it, and any electronic documentation for it. By turning on a computer system on which it has been installed, opening the wrapped packaging, copying or otherwise using the SOFTWARE, you agree to be bound by the terms of this EULA. If you do not agree to the terms of this EULA, Rational Acoustics is unwilling to license the SOFTWARE to you. In such event, you may not use or copy the SOFTWARE, and you must promptly contact Rational Acoustics (support@Rational Acoustics.com) for instructions on returning it to Rational Acoustics. SOFTWARE PRODUCT LICENSE Copyright laws and international copyright treaties, as well as other intellectual property laws and treaties protect the SOFTWARE. The SOFTWARE is licensed, not sold. 1. GRANT OF LICENSE. This EULA grants you (the End-User) the following rights: a. Software. You may install and use two (2) copies of the SOFTWARE on any two (2) computers ("COMPUTERS") for business/office/mobile/laptop/home use and/or for the purpose as a back-up copy. b. Storage/Network Use. If you wish to store or install a copy of the SOFTWARE on any COMPUTERS connected to an internal network, you must first acquire from Rational Acoustics additional licenses for the SOFTWARE for each computer connected to that internal network on which the SOFTWARE is to be used. This EULA does not permit the SOFTWARE to be used concurrently on more than two (2) computers per licensed user unless additional seats on that license have been purchased. 2. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS. a. Limitations on Reverse Engineering, Decompilation and Disassembly: You may not reverse engineer, decompile, or disassemble any and all parts, objects or units contained within the SOFTWARE. b. Separation of Components: The SOFTWARE is licensed as a single product. Its component parts and any upgrades may not be separated for use on more than two computers. c. Rental: You may not lend, rent or lease the SOFTWARE to any other person or entity. This does not preclude rentals of computers on which the software is legally installed. d. Termination: Without prejudice to any other rights, Rational Acoustics may terminate this EULA if you fail to comply with the terms and conditions of this EULA. In such event, you must destroy all copies of the SOFTWARE and all of its component parts. 3. COPYRIGHT. All title, including but not limited to copyrights, in and to the SOFTWARE and any copies thereof are owned by Rational Acoustics or its licensors. All rights not expressly granted are reserved by Rational Acoustics. 4. PRODUCT SUPPORT. Refer to the documentation for the SOFTWARE for product support. Should you have any questions concerning this EULA, or if you desire to contact Rational Acoustics for any other reason, write to Rational Acoustics, LLC, 241 H Church Street, Putnam, CT 06260 or [email protected] Copyright © 2010 Rational Acoustics LLC. All rights reserved. �5. LIMITED WARRANTY. Rational Acoustics warrants that the media on which the SOFTWARE is distributed is free from defects in materials and workmanship for a period of ninety (90) days from your receipt thereof. Your exclusive remedy in the event of any breach of the foregoing warranty shall be, at Rational Acoustics' sole option, either (a) a refund of the amount you paid for the SOFTWARE or (b) repair or replacement of such media, provided that you return the defective media to Rational Acoustics within ninety (90) days of your receipt thereof. The foregoing warranty shall be void if any defect in the media is a result of accident, abuse or misapplication. Any replacement media will be warranted as set forth above for the remainder of the original warranty period or 30 (thirty) days from your receipt of such replacement media, whichever is longer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, RATIONAL ACOUSTICS, ITS SUPPLIERS OR LICENSORS HEREBY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY, IN CONNECTION WITH THE SOFTWARE AND ANY ACCOMPANYING DOCUMENTATION, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND FITNESS FOR A PARTICULAR PURPOSE. 6. RULE NUMBER SIX. There is no rule number six. 7. LIMITATION OF LIABILITY. IN NO EVENT WILL RATIONAL ACOUSTICS, ITS SUPPLIERS OR LICENSORS, BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, USER DOCUMENTATION OR RELATED TECHNICAL SUPPORT, INCLUDING WITHOUT LIMITATION, DAMAGES OR COSTS RELATING TO THE LOSS OF PROFITS, BUSINESS, GOODWILL, DATA OR COMPUTER PROGRAMS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL RATIONAL ACOUSTICS, ITS SUPPLIERS' OR ITS LICENSORS' LIABILITY EXCEEDS THE AMOUNT PAID BY YOU FOR THE SOFTWARE PRODUCT. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. 8. TERMINATION. The license will terminate automatically if you fail to comply with the terms, conditions, or limitations contained in this EULA, including the payment of applicable license, renewal or other fees. On termination, you shall, at Rational Acoustics’ option, either return to Rational Acoustics or destroy all copies of the Software and documentation. This EULA shall remain in force until terminated. You may terminate this EULA at any time (with no obligation on the part of Rational Acoustics) by destroying all copies of the Software, deleting any copies of the Software from your hard drives, ceasing all use of the Software and documentation. The disclaimer of warranty and limitations on liability contained in Section 7 shall continue in force even after your rights to use the Software are terminated. 9. SILLY AND MEANINGLESS CLAUSE. Rational Acoustics warrants that it will not use nonsensical words like “waka waka,” “zoinks” or “throatwobblermangrove” anywhere in this EULA (besides this clause.) Further, Rational Acoustics warrants that this clause is devoid of any significant legal meaning and has only been included to determine if the End-User is actually reading this document. Moreover, the only quantifiable impact of this clause is to force the total count of clauses in this EULA to number 13. 10. UPGRADES. If the Software is designated by Rational Acoustics as an “Upgrade” product, then you may only use the Software if the End-User is also currently a licensed user of the base product to which the Upgrade applies. Unless the Rational Acoustics documentation for an Upgrade specifically provides, you shall not separate upgrade products from base products, nor transfer them separately. Rational Acoustics reserves the sole and exclusive right to set its policies and prices regarding updates, upgrades and enhancements. All other terms of this EULA apply with equal force to any such Upgrades. 11. DEMO OR EVALUATION VERSIONS. If Rational Acoustics designates the Software as a “Demo” or “Evaluation” version, then the your license rights under this EULA shall extend solely for a 30-day evaluation period, during which the End-User use is restricted solely to allow you to determine whether to purchase an ongoing license to the Software. You may not make copies of the Demo or Evaluation version of this Software, including documentation nor shall you request donations for any such copies or distribute Demo or Evaluation versions of the Software to third parties without prior written permission. Unregistered use of the Software, including documentation, beyond the 30-day evaluation period violates Rational Acoustics rights, as described above, including but not limited to Rational Acoustics rights under the United States Copyright Act. You acknowledge that any Demo or Evaluation version is merely a technology demonstration that may not be at the level of performance or compatibility of generally available Rational Acoustics products. Demo or Evaluation versions are provided strictly on an “as is” basis and are subject to Section 6, above. 12. SEVERABILITY. If any of the provisions, or portions thereof, of this Agreement are invalid under any applicable statute or rule of law, they are to that extent to be deemed omitted and the balance of this Agreement shall remain in full force and effect. Copyright © 2010 Rational Acoustics LLC. All rights reserved. �13. MISCELLANEOUS. The laws of the United States and the State of Connecticut govern this EULA, without reference to conflicts of law principles. This EULA sets forth all rights for the user of the SOFTWARE and is the entire agreement between the parties. This EULA supersedes any other communications with respect to the SOFTWARE and any associated documentation. This EULA may not be modified except by a written addendum issued by a duly authorized representative of Rational Acoustics. No provision hereof shall be deemed waived unless such waiver shall be in writing and signed by Rational Acoustics or a duly authorized representative of Rational Acoustics. If any provision of this EULA is held invalid the remainder of this EULA shall continue in full force and effect. The parties confirm that it is their wish that this EULA has been written in the English language only. The End-User agrees that this EULA is entered into at Putnam, Connecticut and further agree that any legal or equitable dispute brought or arising under this EULA shall be brought in court of choice in Windham County in the State of Connecticut. Copyright © 2010 Rational Acoustics LLC. All rights reserved. �
nw/123.txt
Snail END USER SOFTWARE LICENSE AGREEMENT This SNAIL END USER SOFTWARE LICENSE AGREEMENT (this “Agreement”) is made and entered into as of the latest date set out on the signature page hereof (the “Effective Date”) by and between the California Department of Transportation (the “Department”), a state agency of the State of California, and the entity indicated on the signature page hereof as the “Licensee.” 1. Grant of License. (a) License to Software. The Department hereby grants to Licensee, during the term, a limited, non-transferable, non-exclusive license, with no right to sublicense, to install and use the software known as Snail and described in Exhibit A (together with its related documentation, the “Software”) in executable form only, solely for the purpose of Licensee’s internal business use in analyzing and designing bridges. The Software may be used only on the computer equipment and systems that are compatible with the Department’s relevant specifications and only by the number of licenses for which Licensee has purchased license rights. Each license permits Licensee to operate the Software at a given time on a single individual computer workstation. Licensee must obtain an authorization code or a software security dongle from the Department for the initial installation and all subsequent installations. The grant of any additional licenses shall be subject to acceptance by the Department and payment of the Department’s thencurrent applicable license fees. Licensee is authorized to use the Software solely in connection with design projects of Licensee. Licensee shall not use the Software to process information relating to projects of a third party or use the Software to offer any services for the benefit of any third party. (b) Restrictions on Use. Licensee acknowledges that Licensee’s rights in and to the Software are solely as set forth in Section 1(a) hereto and do not include any rights of ownership in any of the Software. Licensee agrees that the Department owns all right, title and interest, including copyright, patent, trade secret and all other intellectual property rights, in and to the Software (and all copies thereof), and any changes, modifications or corrections thereof. Licensee shall not, and shall not permit any third party to, (i) modify or create a derivative work of the Software; or (ii) decompile, reverse engineer, disassemble or otherwise determine or attempt to determine source code (or the underlying ideas, algorithms, structure or organization) of the Software; or (iii) sublicense, distribute, rent, lease or offer the Software to any third party for timesharing any of the software, including actual “timesharing,” ASP, service bureau or other similar arrangements. This Agreement and the license granted pursuant hereto may not be assigned, sublicensed or otherwise transferred by Licensee without the prior written consent of the Department. (c) Audit Rights. The Department reserves the right, upon prior notice to Licensee, to audit usage of the Software at Licensee’s premises during normal business hours to verify Licensee’s compliance with the terms of this Agreement. If such audit should reveal that Licensee has used the Software in a manner not authorized by this Agreement, the Department reserves all rights and remedies permitted by law, including, prompt collection of any DEPARTMENT OF TRANSPORTATION END-USER LICENSE AGREEMENT FOR SNAIL SOFTWARE PAGE 1 OF 9 �underpayments revealed by such audit. In addition, if such underpayments exceed ten percent (10%) of the amounts actually paid by Licensee under this Agreement, then Licensee will pay all reasonable costs and fees associated with such audit. (d) Feedback. Licensee hereby irrevocably assigns to the Department any and all rights in any Feedback, including all intellectual property rights throughout the world and acknowledges and agrees that the Department may freely use ideas generated from such Feedback for any purpose, including further product development. “Feedback” means comments, criticisms, suggested improvements and other feedback, as prepared by Licensee independently or jointly by the Department and Licensee, in written or oral form, regarding the function, features and other characteristics of the Software, including without limitation the results of any testing conducted on or with the Software. 2. Term. (a) Term. This Agreement is effective as of the Effective Date and will remain in effect until terminated: (i) by Licensee upon thirty (30) days prior written notice to the Department; or (ii) by the Department pursuant to Section 2(b) hereof. (b) Termination by the Department. The Department may terminate this Agreement immediately: (i) in the event of the insolvency, bankruptcy or voluntary dissolution of Licensee; or (ii) if Licensee defaults in the performance of any provision hereunder, and if such default continues and is not cured within thirty (30) days after written notice thereof by the Department, provided, however, that no such cure period shall apply in the event of Licensee’s breach of Section 4. Such termination right is in addition to, and not in limitation of, any other remedies available to the Department at law or under this Agreement. (c) Effect of Termination. Notwithstanding anything to the contrary in this Agreement, any termination of this Agreement shall not relieve either party of any of its obligations or liabilities accrued prior to such termination. Within ten (10) days after termination of this Agreement, Licensee shall return to the Department or destroy, as instructed by the Department, all copies (including deleting all electronic copies) of Software then in Licensee’s possession, and an officer of Licensee shall certify in writing to the Department, within fifteen (15) days of any termination of this Agreement, that through its best efforts and to the best of its knowledge the original and all copies of the Software have been deleted, destroyed or returned to the Department. 3. License Fees. (a) License Fee. In consideration of the licenses granted herein, Licensee shall pay the Department’s current published licensee fees for the number of licenses purchased hereunder. All fees must be paid in advance, prior to shipment of the Software, by a payment method accepted by the Department. License fees do not include, and Licensee agrees to pay, the cost of shipment and insurance for the delivery of the Software to Licensee by a common carrier selected by the Department in its reasonable discretion. Risk of loss will pass to Licensee upon delivery to the common carrier. DEPARTMENT OF TRANSPORTATION END-USER LICENSE AGREEMENT FOR SNAIL SOFTWARE PAGE 2 OF 9 �(b) Taxes. Licensee is solely responsible for the payment of any taxes (including sales or use taxes, intangible taxes and property taxes) resulting from Licensee’s acceptance of this Agreement and use of the Software, exclusive of taxes based on the Department’s income. The Department reserves the right to have Licensee pay any such taxes as they fall due to the Department for remittance to the appropriate authority. Licensee agrees to hold harmless the Department from all claims and liability arising from Licensee’s failure to report or pay any such taxes. 4. Confidentiality of Software. (a) Protection of Confidential Information. The Software contains and embodies the confidential information and trade secrets of the Department (“Confidential Information”). Except as expressly provided herein, Licensee will not disclose or use such Confidential Information without the Department’s prior written consent, except disclosure to Licensee’s employees or consultants on a need-to-know basis, provided that such employees or consultants have been advised of the license restrictions of this Agreement and have executed written agreements restricting use or disclosure of such Confidential Information that are at least as restrictive as Licensee's obligations under this Agreement. In addition to the foregoing nondisclosure obligations, Licensee agrees to use at least the same care and precaution in protecting such Confidential Information as Licensee uses to protect Licensee's own confidential and proprietary information and trade secrets, and in no event less than reasonable care. If any of the Confidential Information, in whole or in part, is deemed to be a public record by law, court, state, regulation or governmental order to be disclosed, Licensee shall give the Department written notice so that the Department may seek a protective order or other appropriate remedy prior to such disclosure and provide full and complete documentation to the Licensee of its claim that the Confidential Information and Software are trade secrets. Licensee shall return all Confidential Information promptly upon the request of the Department or upon termination of this Agreement. (b) Licensee Responsibilities. It is the responsibility of Licensee to provide and prepare, in the configuration specified in the Documentation, the system environment upon which the Software is to be installed. Licensee shall implement reasonable security procedures to prevent the unauthorized use or disclosure of the Software. Licensee shall notify the Department promptly of any known or suspected breach of this Agreement. (c) Equitable Remedy. Licensee acknowledges that due to the unique nature of the Department’s Confidential Information, the Department will not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure of the Department’s Confidential Information. In addition to any other remedies that may be available in law, in equity, under this Agreement or otherwise, the Department shall be entitled to obtain any injunctive relief that may be appropriate to prevent such unauthorized use or disclosure. (d) Term of Nondisclosure Obligations. Licensee’s obligations set forth in this Section 4 will survive and continue for a period of ten (10) years after the termination of this Agreement, and will bind Licensee’s representatives, successors and assigns, if any; provided, DEPARTMENT OF TRANSPORTATION END-USER LICENSE AGREEMENT FOR SNAIL SOFTWARE PAGE 3 OF 9 �however, that such obligations will terminate with respect to any Confidential Information which becomes available for unrestricted public use through no fault of Licensee. 5. Acceptance Procedure; No Warranty. (a) Acceptance by Licensee. Licensee shall conduct acceptance tests of the Software during the thirty (30) days following the receipt of the Software. If during this acceptance period Licensee finds that the Software does not substantially conform to its material specifications, Licensee may reject the Software by providing written notice with a description of the nonconformity to the Department. The Department will replace the Software provided the Licensee returns such defective Software to the Department, paying for the return shipping and insurance such that the Software is returned in the same condition as delivered. FAILURE TO RETURN THE SOFTWARE WITHIN THE THIRTY (30) DAY PERIOD SHALL CONSTITUTE ACCEPTANCE OF THE SOFTWARE BY LICENSEE. Replacement within such period shall be Licensee’s sole remedy for the Software’s failure to conform to applicable specifications. (b) No Maintenance and Support. The Department will not offer to Licensee training, support or maintenance, and is not obligated to offer upgrades or updates with respect to the Software. Licensee is responsible for installation, management, operation and maintenance of the Software. Licensee is solely responsible for obtaining and using computer equipment and other required programs. Licensee acknowledges and agrees that the Department shall have no obligation or liability with respect to such equipment or services. At the present time, the Department does not plan to offer training, support, maintenance, upgrades or updates. If, in the future, the Department or a third party, authorized by the Department, offers training, support, maintenance, upgrades, updates or the like, with respect to the Software, such additional services will be offered for separate fees under a separate written agreement or a supplement to this Agreement. (c) Warranty. The Software is provided AS IS and without warranty of any kind, express or implied. NO WARRANTY, EXPRESS OR IMPLIED, IS MADE WITH RESPECT TO THE SOFTWARE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. NO WARRANTY IS MADE THAT USE OF THE SOFTWARE WILL BE UNINTERRUPTED, OR THAT ANY ERRORS OR DEFECTS IN THE SOFTWARE WILL BE CORRECTED, OR THAT THE SOFTWARE WILL INTEROPERATE WITH LICENSEE’S SYSTEM, OR THAT THE SOFTWARE’S FUNCTIONALITY WILL MEET LICENSEE’S REQUIREMENTS. NO WARRANTY IS MADE REGARDING THE RESULTS OF USE OF THE SOFTWARE OR THAT THE SOFTWARE WILL ACCURATELY AND RELIABLY TEST CONSTRUCTION DESIGNS FOR COMPLIANCE WITH ANY FEDERAL, STATE OR INDUSTRY STANDARDS, OR THAT THE SOFTWARE WILL PREDICT OR TEST THE SAFETY OR OTHER FEATURE OF A STRUCTURE. ENGINEERING JUDGMENT MUST BE USED TO APPLY THE SOFTWARE TO DESIGNS AND TO ADJUST DESIGNS TO FIT INDIVIDUAL SITE CONDITIONS. THE SOFTWARE IS NOT INTENDED TO BE A SUBSTITUTE FOR ENGINEERING KNOWLEDGE, EXPERIENCE OR JUDGMENT. LICENSEE DEPARTMENT OF TRANSPORTATION END-USER LICENSE AGREEMENT FOR SNAIL SOFTWARE PAGE 4 OF 9 �ACKNOWLEDGES ITS RESPONSIBILITY TO: (i) REGULARLY BACK UP DATA MAINTAINED ON ANY HARDWARE USING THE SOFTWARE; AND (ii) ADEQUATELY TEST PRIOR TO DEPLOYMENT EACH VERSION OF THE SOFTWARE IN A CONFIGURATION WHICH REASONABLY SIMULATES LICENSEE’S PLANNED ENVIRONMENT. (d) Limitation of Liability. THE DEPARTMENT’S LIABILITY UNDER THIS AGREEMENT OR FOR BREACH OF THIS AGREEMENT OR OTHERWISE RELATING TO THE SOFTWARE SHALL BE LIMITED TO REFUND OF THE RELEVANT LICENSE FEES PAID BY LICENSEE TO THE DEPARTMENT HEREUNDER. IN NO EVENT SHALL THE DEPARTMENT BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LOSS OF PROFITS, OR FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, BREACH OF CONTRACT, REPUDIATION OF CONTRACT, NEGLIGENCE OR OTHERWISE. THE DEPARTMENT SHALL NOT BE LIABLE FOR ANY CLAIMS IN CONNECTION WITH THE LICENSEE’S USE OF THE PROGRAM, INCLUDING, WITHOUT LIMITATION, LIABILITY ARISING FROM THIRD-PARTY CLAIMS, LIABILITY RELATED TO THE QUALITY OF CALCULATIONS OR THE SAFETY OR QUALITY OR STRUCTURES, LIABILITY FOR SCHEDULING DELAYS OR RE-DESIGN, RETROFIT OR RE-WORK OF STRUCTURES, OR OTHER SIMILAR LIABILITY. 6. Indemnity. (a) By the Department. Subject to the limitations of liability set forth in Section 5(d) and Section 6(c), the Department will defend, at its expense, any action brought against Licensee based upon the claim that the Software, as used within the scope of the license granted under this Agreement, directly infringes a duly issued U.S. patent or a registered U.S. copyright or misappropriates any trade secret. Licensee shall notify the Department promptly in writing of any such claim. Licensee shall not enter into any settlement or compromise any claim without the Department’s prior written consent. The Department shall have sole control of any such action or settlement negotiations, and Licensee shall provide the Department with information and assistance, at the Department’s expense, necessary to settle or defend such claim. The Department agrees to pay all damages and costs finally awarded against Licensee attributable to such claim. (b) Department Options. If any of the Software become, or in the opinion of the Department may become, the subject of a claim of infringement of any a duly issued U.S. patent or registered U.S. copyright or misappropriation of any trade secret, the Department may, at its option: (i) procure for Licensee the right to use such Software free of any liability; (ii) replace or modify such Software to make them noninfringing; or (iii) terminate this Agreement and pay to Licensee a prorated refund of the fees paid for the infringing Software, amortized on a straightline basis over three (3) years. The Department shall not be liable for any costs or expenses incurred by Licensee in connection with any potential claim of infringement without its prior written authorization. The remedies described in this Section 6(b) are Licensee’s exclusive remedies for third party infringement claims. DEPARTMENT OF TRANSPORTATION END-USER LICENSE AGREEMENT FOR SNAIL SOFTWARE PAGE 5 OF 9 �(c) No Department Liability. The Department assumes no liability hereunder for, and shall have no obligation to defend Licensee or to pay costs, damages or attorney's fees for, any claim based upon: (i) any method or process in which the Software may be used by Licensee; (ii) any results of using the Software; (iii) any use of other than a current unaltered release of the Software; or (iv) the combination, operation or use of any Software furnished hereunder with non-Department programs or data if such infringement would have been avoided by the combination, operation, or use of the Software with other programs or data. THE FOREGOING STATES THE SOLE AND EXCLUSIVE LIABILITY OF THE CALTRANS FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. (d) By Licensee. Licensee agrees to indemnify, defend and hold harmless the Department, the State of California, its officers, agents and employees from any and all claims, actions or causes of action for damages including, demands, costs, expenses, losses or other liabilities, including attorneys’ fees, arising out of or connected with: (i) the acts or omissions of Licensee’s employees, agents and representatives, or (ii) Licensee’s use of the Software for so long as Licensee continues to use the Software, including, any claims related to bridge design, or (iii) the operation of Licensee’s business. 7. General. (a) Modification of the Agreement. The terms of this Agreement may only be modified by a written agreement duly signed by both parties hereto. Variance from the terms and conditions of this Agreement in any Licensee purchase order or other written notification will be of no effect. (b) Assignment. This Agreement may not be assigned by Licensee without the prior written consent of the Department. (c) Survival. The provisions of Sections 1(b), 1(c) and 1(d) and Articles 2, 4, 5, 6 and 7 shall survive any termination of this Agreement. (d) Governing Law. This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of California. For any disputes arising under this Agreement, the parties agree to submit to the exclusive jurisdiction of the federal and state courts of the County of Sacramento, California. It is the parties’ intent that the provisions of Section 5(c) (“Warranty Disclaimer”) and Section 5(d) (“Limitation of Liability”) be interpreted according to the California Uniform Commercial Code—Sales, Cal. Comm. Code § 2101 et seq. (e) Notices. Any notice or report required or permitted by this Agreement, except as otherwise set forth in this Agreement, shall be in writing and shall be deemed sufficient upon receipt, when delivered personally or by courier, overnight delivery service or confirmed facsimile, or forty-eight (48) hours after being deposited in the regular mail as certified or registered mail (airmail if sent internationally) with postage prepaid, if such notice is addressed DEPARTMENT OF TRANSPORTATION END-USER LICENSE AGREEMENT FOR SNAIL SOFTWARE PAGE 6 OF 9 �to the party to be notified at such party’s address or facsimile number as set forth below or as subsequently modified by written notice. (f) Severability; Waiver. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith, in order to maintain the economic position enjoyed by each party as close as possible to that under the provision rendered unenforceable. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of the Agreement shall be enforceable in accordance with its terms. No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of such rights or of any other rights hereunder. (g) Entire Agreement. This Agreement, including all Exhibits hereto, is the product of both of the parties hereto, and constitutes the entire agreement between such parties pertaining to the subject matter hereof and merges all prior negotiations and drafts of the parties with regard to the transactions contemplated herein. Any and all other written or oral agreements existing between the parties hereto regarding such transactions are expressly canceled. DEPARTMENT OF TRANSPORTATION END-USER LICENSE AGREEMENT FOR SNAIL SOFTWARE PAGE 7 OF 9 �Snail END USER SOFTWARE LICENSE AGREEMENT Signature Page The parties have executed this Agreement as of the Effective Date. THE DEPARTMENT LICENSEE Company STATE OF CALIFORNIA Name: DEPARTMENT OF TRANSPORTATION Publication Distribution Unit Address: 1900 Royal Oaks Drive Sacramento, CA 95815-3800 Fax: (916) 263-0470 Phone: Fax: Email: Signature: Name (Printed): Title: Effective Date: DEPARTMENT OF TRANSPORTATION END-USER LICENSE AGREEMENT FOR SNAIL SOFTWARE PAGE 8 OF 9 �EXHIBIT A DESCRIPTION OF SOFTWARE Snail is geotechnical engineering software developed and maintained by Geotechnical Services, Division of Engineering Services, California Department of Transportation (Caltrans). This software is developed to assist engineers in performing stability analysis of soil nail walls and analysis of structural facing of soil nail walls using input from the user. Snail replaces the previous version, SnailzWin, of Snail that was first developed and maintained by Caltrans since circa 1989. The software runs under the Windows operating system. Snail includes the following main features: • Load and Resistance Factor Design (LRFD) ready • Allows multiple subsurface layers • Performs stability analysis using bi-linear search surfaces or tri-linear search surfaces • Performs structural facing analysis with or without soil nails stability analysis • Presents the controlling modes in soil nails stability analysis • Graphically presents the calculated most critical search surface or any user selected search surface, and corresponding factors of safety (FoS) • Allows parametric study of inter-slice force inclination • Allows both U.S customary and metric units • Provides graphic and text outputs DEPARTMENT OF TRANSPORTATION END-USER LICENSE AGREEMENT FOR SNAIL SOFTWARE PAGE 9 OF 9 �
nw/124.txt
MODULAR MINING SYSTEMS END USER LICENSE AGREEMENT NOTICE TO USER: This End User License Agreement (“EULA”) is a legal agreement between you, either an individual or a single entity (“End User”), and Modular Mining Systems, Inc. (“Modular”) for the Modular Mining Systems software Program identified above, which includes computer software and may include associated media, printed materials, online or electronic documentation, and Internet-based services. An amendment or addendum to this EULA may accompany the Program. BY INSTALLING, COPYING, OR OTHERWISE USING THE PROGRAM, END USER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA. If End User does not agree with such terms and conditions, End User: (a) shall not install or use the Program; (b) shall delete the Program or any portion thereof, where installed; and (c) if in conjunction with this Agreement, End User received a disk, CD-ROM, or other media containing the Program or documentation related to the Program, End User shall return these materials to Modular. SECTION 1. DEFINITIONS “Application Specific” refers to the Program which is limited to use in conjunction with Modular’s software products and shall not be modified for use with any third party application. “Intellectual Property” means all patents, patent rights, copyrights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and any other proprietary or intellectual property right, as may now exist or hereafter come into existence worldwide, and all applications therefore and registrations, renewals and extensions thereof, recognized under any state, country, or territory’s laws, or international treaty. “Open-source Materials” means Third Party Materials supplied under open-source software license agreements, including any modifications to such software made by Modular. “Program” means the object-code, Application Specific version of the software program, including Program documentation and any Program Updates acquired from Modular. “Source-code” means human-readable program statements written in a high-level or assembly language, as opposed to object-code, which is derived from source-code and is designed to be machinereadable. “Third Party Materials” means software licensed by Modular to End User which is specifically labelled as being provided by and/or owned other than by Modular, including Open-source Materials. “Update” means a broadly available improvement or fix to a specific problem in a Modular software Program and includes without limitation, subsequent versions, modifications, revisions, enhancements, adaptations, translations, updates, supplements and add-on components. SECTION 2. GRANT OF LICENSE Provided that End User complies with all the terms and conditions of this EULA, Modular grants to End User a non-exclusive, non-transferable (without right of sublicense or assignment), limited, and revocable license to use the Program: (a) solely in machine-readable, object-code form; (b) for End User’s internal business purposes; and (c) at the specific End User site location where the Program is first installed. License shall only be valid where End User has fully paid all applicable fees. THE PROGRAM UNDER THIS EULA IS LICENSED, NOT SOLD. ALL RIGHTS RESERVED. SECTION 3. RESTRICTIONS ON USE 123 - 8765432 Page 1 of 6 Rev 9/14 �(1) End User shall not duplicate the Program except for a single copy in machine-readable form as part of a normal system backup, and one archival copy of Program, solely for archival and disaster recovery purposes. All copies shall remain the exclusive property of Modular and shall be subject to the terms of this EULA. End User shall have no other right to copy the Program, in whole or in part. All copies shall include all Modular’s copyright and other Intellectual Property and proprietary notices, and include notices and legends embedded in the Program and affixed to its medium and container, as received from Modular. End User shall maintain a record of the location of Program copies, including where merged with other software. (2) End User shall not make Program available in any form to any third party without Modular’s prior express written consent. (3) End User shall not provide processing services, commercial time-sharing, subscription services, rental or sharing arrangements, or otherwise use or provide the Program to a third party on a service-bureau basis (4) End User shall not reverse-engineer, unless required by law for interoperability, disassemble or decompile, or in any way derive any Source-code from the Program. (5) End User shall be licensed to use the Program solely in conjunction with Modular’s software products. (6) End User shall take appropriate action to protect the confidentiality of the Program and ensure that any person or entity permitted access to the Program does not disclose or use the Program except as licensed by this EULA. (7) End User shall not modify the Program, write or develop any derivative work, software, or any other software program based on the Program. (8) End User shall not remove or modify any Program markings or any notice of Modular proprietary rights. (9) End User shall not perform benchmark tests on the Program without Modular’s prior express written consent. SECTION 4. OWNERSHIP RIGHTS End User acknowledges that the license granted under this EULA shall only provide the End User with a right of limited use. End User further acknowledges that Modular owns all right, title, and interest in the Program and End User will not contest those rights or engage in any conduct contrary to those rights. Modular shall retain full ownership of all Intellectual Property rights in the Program. Any copy, modification, revision, enhancement, adaptation, translation, or derivative work of or created from the Program, or documentation relating thereto, shall belong exclusively to Modular as shall all Intellectual Property rights therein. SECTION 5. SOURCE CODE AND UPDATES (1) End User understands that the Program may include Source-code provided by Modular, said Source-code shall be governed by the terms of this EULA. ALL SOURCE CODE IS LICENSED, NOT SOLD. ALL RIGHTS RESERVED. (2) Modular may, in its sole discretion, provide further Program Updates to End User hereunder. The terms and conditions of this EULA (except the limited warranty in section 7) shall apply to any 123 - 8765432 Page 2 of 6 Rev 9/14 �subsequent Program Update unless other terms of use are provided by Modular with such Update. SECTION 6. OPEN SOURCE MATERIALS End User understands that the Program may contain Open Source or third party Materials, and as such said Materials may be governed by open source and third party software license agreements. Modular makes no claim of ownership of Open Source or third party Materials, and said Materials are supplied solely in accordance with the applicable license agreement. Accordingly, End User is bound by all terms, conditions and restrictions contained in any and all applicable open source software license agreements. Notwithstanding, the provisions under section 9 (Limitation of Liability) apply to all Third Party Materials including Open Source Materials. SECTION 7. LIMITED WARRANTY (1) Modular warrants to End User, that for a period of ninety (90) days from receipt of Program, the Program will substantially comply with the functional specifications set forth in Modular’s documentation. Modular does not warrant that the Program will: (a) meet End User’s requirements; (b) operate in combination with other software (including without limitation, unsupported platforms, operating systems, or databases); (c) that operation of Program will be uninterrupted or error-free; or (d) that Modular will correct all Program errors. Modular’s entire liability and End User’s sole and exclusive remedy for breach of this limited warranty shall be, in Modular’s sole discretion: (i) correction of the defect, or replacement of non-conforming Program with conforming Program; or (ii) a refund of the price paid to Modular for the non-conforming Program or portion thereof. End User must notify Modular in writing of any nonconformity within the limited warranty period. The limited warranty shall be void if Program has been: (1) altered or modified by any party other than Modular; (2) subjected to accident, abuse, misuse, abnormal or negligent use; or (3) used, adjusted or installed other than in accordance with Modular’s instructions. (2) THIS LIMITED WARRANTY IS THE ONLY WARRANTY MADE BY MODULAR. EXCEPT FOR THE LIMITED WARRANTY STATED HEREIN, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, MODULAR DISCLAIMS ANY OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE PROGRAM AND RELATED INFORMATION. MODULAR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SECTION 8. INDEMNIFICATION End User shall indemnify, defend and hold Modular and its directors, officers, agents, employees, members, subsidiaries, and affiliates harmless from and against any claim, action, proceeding, liability, loss, damage, cost, or expense (including without limitation, attorneys’ fees), for any claims of Intellectual Property infringement made by any third party where: (a) End User alters the Program or uses said Program outside the scope of use identified in Modular documentation; (b) the claim is based upon the combination or operation of the Program with any other program, products or services not provided by Modular; (c) the claim is based upon specifications provided by End User for the development of custom programming; (d) the claim is based upon services performed on the Program, or modifications or derivative works of the Program by a party other than Modular; or (e) the claim is otherwise based on a violation by End User of this EULA. SECTION 9. LIMITATION OF LIABILITY (1) MODULAR'S TOTAL LIABILITY AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF ANY TYPE WHATSOEVER ARISING UNDER THIS AGREEMENT SHALL BE LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY MODULAR IN AN AMOUNT NOT TO 123 - 8765432 Page 3 of 6 Rev 9/14 �EXCEED THE PRICE PAID BY END USER TO MODULAR FOR THE PROGRAM GIVING RISE TO THE CLAIM. (2) IN NO EVENT SHALL MODULAR BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF DATA USE OR BUSINESS INTERRUPTION) WHETHER AN ACTION IN CONTRACT, TORT, OR BASED ON ANY OTHER LEGAL THEORY, EVEN WHERE MODULAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE RESULTING FROM ANY LIMITED REMEDY AND TO THE MAXIMUM EXTENT PERMITTED BY LAW. SECTION 10. TERM & TERMINATION (1) This EULA and the license granted hereunder shall remain in effect unless terminated as provided herein for breach of this EULA. The exercise of Modular’s right to termination shall not prejudice any other available remedy whether legal, equitable, or otherwise. (2) Where End User breaches any covenant, obligation, representation, or warranty under this Agreement, it being agreed that all breaches shall be deemed material, Modular may in its sole discretion: (a) immediately terminate this EULA upon giving notice to End User; (b) terminate this EULA where End User fails to cure said breach within a period of time defined by Modular; and/or (c) suspend, lock, or otherwise disable operation of the Program. (3) Upon termination of this EULA, End User shall immediately discontinue use of the Program and shall, at Modular’s option, promptly return to Modular, or certify destruction of, any and all copies of the Program and related information, and deliver to Modular a written certification that End User has complied with this section. (4) The following provisions shall survive termination of this Agreement: section 4 (Ownership Rights); section 8 (Indemnification); section 9 (Limitation of Liability); and any other obligation which is intended to survive termination of this EULA. SECTION 11. VERIFICATION Modular shall have the right to audit, at End User’s expense, all of End User’s supporting records, detail and information, and to verify End User’s use of the Program in order to satisfy Modular that End User is in compliance with the terms and conditions of this EULA. End User shall immediately pay any applicable adjustments to the license fee revealed by the audit. SECTION 12. IMPORT/EXPORT LAWS End User shall comply with the import and export laws and regulations of the United States and all other applicable customs, import and export laws and regulations to ensure that the Program, or any portion thereof, is exported, directly or indirectly, in violation of said laws. End User shall not ship, transfer, or export the Program to any country, or use the Program in any manner prohibited by the United States Export Administration Act or any export laws, restrictions, or regulations of any other applicable country or jurisdiction. End User shall arrange for import documentation and any documentation or permits related to the import of Program as required by applicable law. End User agrees to indemnify, defend and hold Modular harmless from any breach of End User’s obligations under this section 12. SECTION 13. MISCELLANEOUS (1) NEW AGREEMENT VERSIONS. Modular reserves the right to modify this EULA at any time by providing a revised EULA to End User, or by publishing the revised EULA on Modular’s website. The revised EULA shall become effective within thirty (30) days of such publication or provision to End User. End User’s express acceptance of the revised EULA, or End User’s continued use of 123 - 8765432 Page 4 of 6 Rev 9/14 �the Program after expiration of the thirty (30) day notice period, shall constitute acceptance of the revised EULA. (2) ENTIRE AGREEMENT. This Agreement encompasses the entire understanding between the Parties with respect to the subject matter of this EULA, and supersedes all prior or contemporaneous agreements or statements regarding the subject matter hereof. There are no representations, warranties, covenants, agreements, collateral understandings, oral or otherwise, expressed or implied, affecting this instrument not expressly set forth or provided for herein. (3) WAIVER. All waivers under this EULA must be made in writing to be effective. No delay on the part of either Party in exercising any of their respective rights under or the failure to exercise the same, nor the acquiescence in or wavier of a breach of any term, covenant or condition of this EULA shall be deemed or construed to operate as a waiver of such rights or acquiescence thereto except in the specific instance for which given. (4) AMENDMENT. Except as provided in section 13(1), none of the terms, conditions or provisions of this EULA shall be deemed modified or altered by any act, course of conduct, or knowledge of either Party, their respective agents, servants or employees. The terms of this EULA may not be amended, changed, waived, varied or modified except by a statement in writing signed by duly authorized representatives of the Parties expressly assenting to the amendment. (5) SEVERANCE. The invalidity or unenforceability of any provision of this EULA pursuant to any applicable statute, law or regulation shall not affect the validity or enforceability of the remaining provisions hereof. However, this EULA shall be construed as if not containing the provision held invalid or unenforceable in the jurisdiction in which so held, and remaining provisions shall remain in full force and effect. (6) COMMUNICATIONS. All notices, requests and other communications provided for in writing in this EULA shall be deemed to have been duly given: (i) on the date of delivery when delivered in person, including by courier service; (ii) upon receipt if delivered by mail, including by certified mail, return receipt, or postage prepaid; or (iii) upon receipt where sent by electronic or facsimile transmission. Any notice received at the addressee’s location on any business day after 5:00 p.m. (addressee’s local time) shall be deemed to have been received at 9:00 a.m. (addressee’s local time) on the next business day. Either Party to this EULA may notify the other Party of any changes to its address or any of the other details specified in this paragraph, provided that such notification shall only be effective on the date specified in such notice or five (5) business days after the notice is given, whichever is later. Rejection, refusal to accept, or the inability to deliver due to a changed address for which no notice was given shall result in deemed receipt of said notice as of the date of rejection, refusal or inability to deliver. (7) HEADINGS. Paragraph headings used herein are for the convenience of the Parties only. They do not form a part of this EULA and shall not be deemed or construed in any way to define or limit the meaning of such paragraphs. (8) SINGULAR INCLUDES PLURAL. In this EULA, unless there is something in a subject matter or context inconsistent therewith, the singular shall include the plural and the plural shall include the singular. (9) ASSIGNMENT. Neither this EULA nor any interest in this EULA may be assigned by End User without the prior express written consent of Modular. End User may not assign, pledge, mortgage, sell to a third party, or otherwise dispose of all or a portion of this EULA or the license granted hereunder. (10) LIMITATION OF ACTIONS. End User may not bring any action, suit, claim or other legal proceeding against Modular arising out of, or related to this EULA or the subject matter hereof more than one (1) year after the occurrence of the event which gave rise to said action. 123 - 8765432 Page 5 of 6 Rev 9/14 �(11) LEGAL COSTS. The Parties endeavor to resolve disputes under this EULA by mutual consultation. Where legal action is pursued to enforce any provision of this EULA, the prevailing Party shall be entitled to recover all associated fees, including reasonable attorney fees, and costs. (12) GOVERNING LAW. This Agreement shall be governed by the laws of the state of Arizona and the United States, without regard to conflict of laws principles, as set forth in section 13(13) below. The rights and obligations of the Parties to this Agreement shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods (1980), but instead shall be governing by the laws of the State of Arizona and the United States, as set forth in section 13(13) below. (13) JURISDICTION. The Parties irrevocably and unconditionally agree that the exclusive place of jurisdiction for any action relating to this EULA shall be in the courts of the United States of America sitting in the district of Arizona. If such courts do not have jurisdiction over the subject matter thereof, exclusive jurisdiction shall be in the courts of the State of Arizona sitting in the County of Pima or Maricopa. Each Party irrevocably and unconditionally waives any objection it may have to the venue of any action brought in such courts or to the convenience of such forum. Final judgment in any action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment, a certified or true copy of which shall be conclusive evidence of the fact and the amount of any indebtedness or liability of any Party therein described. (14) LANGUAGE. To the extent that this document or any subsequent agreements arising out of this EULA are translated into another language, the English version of said documents shall be the sole authoritative version. 123 - 8765432 Page 6 of 6 Rev 9/14 �
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END USER LICENSE AGREEMENT Description of Other Rights and Limitations Speech Recognition: VEHICLE SOFTWARE END USER LICENSE AGREEMENT (EULA) Limitations on Reverse Engineering, Decompilation Disassembly: IF YOU DO NOT AGREE TO THIS END USER LICENSE AGREEMENT ("EULA") DO NOT USE THE DEVICES OR COPY THE SOFTWARE. ANY USE OFTHESOFTWARE, INCLUDINGBUT NOT LIMITED TO USE ON THE DEVICES, WILL CONSTITUTE YOUR AGREEMENT TO THIS EULA (OR RATIFICATION OF ANY PREVIOUS CONSENT). GRANTOFSOFTWARELICENSE: and Limitations on Distributing, Copying, Modifying and Creating Derivative Works: �Single EULA: SOFTWARE Transfer: Links to Third Party Sites: Termination: Internet-Based Components: Services Obligation to Drive Responsibly: Additional Software/Services: �UPGRADES AND RECOVERY MEDIA: EXPORT RESTRICTIONS: TRADEMARKS: INTELLECTUAL PROPERTY RIGHTS: PRODUCT SUPPORT: No Liability for Certain Damages: SYNC® Automotive Important Safety Information Read and follow instructions: �Route Safety: Voice Command Control Prolonged Views of Screen: Potential Map Inaccuracy: Volume Setting: Emergency Services: Navigation Features: Distraction Hazard: Let Your Judgment Prevail: �Disclaimer of Warranty �(b) Notice of Dispute. Applicable Law, Venue, Jurisdiction (c) Small claims court. (d) Binding arbitration. Binding Arbitration and Class Action Waiver (a) Application. (e) Class action waiver. �(f) Arbitration procedure. (h) Claims or disputes must be filed within one year. Arbitration fees and incentives. (i) Severability. �Telenav Software End User License Agreement 2. Account Information 1. Safe and Lawful Use 3. Software License 3.1 License Limitations (a) (b) (c) �(d) (e) 4. Disclaimers 5. Limitation of Liability �7. Assignment 6. Arbitration and Governing Law 8. Miscellaneous 8.1 8.2 8.3 �9.1 End User Terms Required by HERE North America, LLC 8.4 8.5 8.6 Terms and Conditions Permitted Use. 9. Other Vendors Terms and Conditions �Restrictions. Disclaimer of Liability: Warning. No Warranty. Export Control. Disclaimer of Warranty: �Entire Agreement. Gracenote® Copyright Governing Law. Government End Users. Gracenote® End User License Agreement (EULA) NOTICE OF USE �(1) (2) �WARNING �
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TIMEKEEPER SOFTWARE END-USER LICENSE AGREEMENT PLEASE READ THIS END-USER LICENSE AGREEMENT (“EULA”) CAREFULLY. BY INSTALLING OR USING THE TIMEKEEPER SOFTWARE ACCOMPANYING THIS EULA, LICENSEE AGREES TO THE TERMS OF THIS EULA. IF LICENSEE DOES NOT AGREE, DO NOT INSTALL AND/OR USE THE SOFTWARE. BY CLICKING “I AGREE” OR OTHERWISE INSTALLING OR USING THE SOFTWARE, YOU REPRESENT AND WARRANT THAT YOU ARE THE LICENSEE IDENTIFIED IN A VALID TIMEKEEPER LICENSE CERTIFICATE OR THAT YOU ARE AUTHORIZED BY SUCH LICENSEE TO ACCEPT THE TERMS OF THIS EULA AS THE AGENT OF THE LICENSEE AND ON THE LICENSEE’S BEHALF. IF YOU ARE NOT A LICENSEE, OR ARE NOT PROPERLY AUTHORIZED BY A LICENSEE TO USE THE SOFTWARE IN COMPLIANCE WITH THE TERMS OF THIS EULA, YOU DO NOT HAVE ANY LICENSE TO THE SOFTWARE OR THE INTELLECTUAL PROPERTY RIGHTS CONTAINED THEREIN. 1. DEFINITIONS. The following definitions apply to this EULA: a. “Acquisition Event” means (1) the sale to a third party of (i) all or substantially all of the assets of Licensee’s business to which this EULA relates; (ii) sufficient equity of Licensee to effect a change of control of Licensee including by merger, acquisition, consolidation or other reorganization; or (iii) fifty percent (50%) or more of the combined voting power of Licensee’s then outstanding securities, or (2) the purchase by Licensee of (i) all or substantially all of the assets of a third party a third party’s business to which this EULA relates; (ii) sufficient equity of a third party to effect a change of control of the third party including by merger, acquisition, consolidation or other reorganization; or (iii) fifty percent (50%) or more of the combined voting power a third party’s then outstanding securities. b. “Authorized User” means an employee, agent, contractor or client of Licensee permitted by Licensee to use the Software. c. “Certificate” means the TimeKeeper License Certificate provided by FSMLabs to Licensee with the Software, which sets forth the scope and duration of Licensee’s rights to use the TimeKeeper Software. d. “EULA” means End User License Agreement. e. “FSMLabs” means Finite State Machine Labs, Inc., a Delaware corporation. f. “Device” means a single personal computer, workstation, terminal, handheld computer, pager, telephone, personal digital assistant, or other electronic device. g. “Licensee” means the party to this EULA identified in a valid Certificate accompanying the Software. h. “New Entity” means the successor to Licensee and/or the third party following an Acquisition Event. i. “TimeKeeper License File” means a data file that authorizes the use of TimeKeeper Software during the Term and determines the enabled capabilities of TimeKeeper Software. j. “TimeKeeper Software” means the software, documentation, interfaces, content, and any accompanying data provided to Licensee by FSMLabs. k. “Software” means the TimeKeeper Software, the TimeKeeper License File, and any update to the forgoing provided or made available to Licensee by FSMLabs during the Term. l. “Term” means the term set forth in the applicable Certificate issued to Licensee. 2. APPLICATION. This EULA is a legal agreement between FSMLabs and Licensee. This EULA governs the Software, together with the Server Computer(s) identified in the Certificate (if any), and any support services related to the Software. This EULA applies to any Software update, upgrade, add-on component or service that FSMLabs may provide or make available to Licensee, unless FSMLabs provides a separate license with such update, upgrade and add-on component or service, in which case the terms of that license will govern. �3. GRANT OF LICENSE. Licensee’s compliance with all the terms and conditions of this EULA, including without limitation, the payment of the applicable license fees set forth in the valid Certificate issued to Licensee, is a condition precedent to the license granted herein. FSMLabs grants Licensee the following non-exclusive rights during the Term of this EULA, subject to the reservations and restrictions set forth in this EULA (including without limitation Section 4): Licensee may install and use, and permit any Authorized User to use the Software on no more than the number of Devices, server computers, or virtual hosts (virtual machines) owned, operated or maintained by Licensee that are authorized by the valid Certificate issued to Licensee. Each copy of TimeKeeper Software must either (a) be installed with a copy of the TimeKeeper License File provided along with the TimeKeeper Software, or (b) be in communication with a server that provides the TimeKeeper License File. As a condition precedent to Licensee’s providing any Authorized User access to use the Software, Licensee agrees that it shall require such Authorized User to agree to use the Software in compliance with the limited right of use stated in this Section 3 and the restrictions set forth in Section 4. 4. RESTRICTIONS AND LIMITATIONS a. Reservation of Rights. The Software is protected by copyright and other intellectual property laws and treaties. FSMLabs or its suppliers own the title, copyright, and other intellectual property rights in the Software. The Software is licensed, not sold. FSMLabs reserves all rights not expressly granted to Licensee in this EULA. b. Restrictions. Notwithstanding any other provision in this EULA, neither this EULA nor any Certificate grants a license, under any FSMLabs intellectual property, to implement any functionality contained in the Software (including without limitation communication protocols used by the Software) in any other hardware or software, even if installed on a Device accessing or utilizing the Software. Licensee shall not, and agrees not to enable others to, modify, reverse engineer, decompile, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the Software or any services provided by the Software, or any part thereof, or otherwise exploit the Software in a manner not permitted under this EULA (except as and only to the extent any foregoing restriction is prohibited by applicable law or by licensing terms governing use of opensource components that may be included with the Software). Renting, leasing, or lending the Software (including providing commercial hosting services) is prohibited. c. Assignment. (1) Neither this EULA nor any of the rights or obligations hereunder may be assigned by Licensee without the prior express written consent of FSMLabs, except in accordance with Section 4.c.(2). Except in accordance with Section 4.c.(2), any attempt to so assign this EULA shall constitute a material breach of this EULA and shall automatically terminate, as of the date of the attempted assignment, this EULA. (2) Notwithstanding the preceding Section 4.c.(1), Licensee may assign this EULA in the event of an Acquisition Event to the New Entity, provided that: (i) all obligations of Licensee under this EULA shall become the obligations of the New Entity, including without limitation, the obligation of Licensee to pay the applicable license fees set forth in the valid Certificate issued to Licensee, and (ii) if the valid Certificate issued to Licensee permitted use of the Software on an unrestricted number of Devices, server computers, or virtual hosts, then, as of the effective date or the Acquisition Event, the New Entity’s rights under the Certificate and this EULA shall immediately be limited to permit use of the Software on no more than the number of Devices, server computers, or virtual hosts on which the Software was actually installed by Licensee thirty (30) days prior to the Acquisition Event. d. Notice of Violation. Licensee shall promptly notify FSMLabs of any breach of the restrictions in Section 3 of this EULA, regardless of whether such breach is by: i) Licensee; ii) Licensee’s client; iii) any employee, contractor, or other agent of Licensee or Licensee’s Client; or iv) a third-party utilizing a Server Computer licensed by Licensee or a Device owned, operated or maintained by Licensee. 5. PRODUCT SUPPORT SERVICES a. Rights and Obligations. FSMLabs will provide Licensee with telephone and email based responses to inquiries related to the operation of the Software during the Term. Licensee should contact FSMLabs with support inquiries at [email protected] or 512 263 5530. FSMLabs will not respond to any support inquiries from Licensee’s clients. FSM Labs may require Licensee to execute a separate support agreement for an additional fee where extensive support is required or desired by Licensee. Any software FSMLabs may Ver. Oct. 2013 2 �provide to Licensee as part of support services are governed by this EULA, unless separate terms are provided. THE FSMLABS SUPPORT SERVICES ARE OFFERED SUBJECT TO THE LIMITATIONS ON WARRANTIES AND LIABILITY SET FORTH IN SECTIONS 7-10 BELOW. b. Consent to Use of Data. Licensee agrees that FSMLabs may collect and use technical information gathered as part of the support services provided to Licensee, if any, related to the Software. FSMLabs may use this information solely to improve its products or to provide customized services or technologies to Licensee and will not disclose this information in a form that personally identifies Licensee. 6. LICENSE FEES/RENEWAL a. Fees & Renewal. Licensee shall pay to FSMLabs the license fee(s) set forth in the applicable Certificate(s) authorizing the use of the server computers and/or Software during the Term. This EULA may be renewed pursuant to the terms set forth in the Certificate. Licensee’s compliance with all terms of this Agreement is a condition precedent to Licensee’s rights to renew this EULA and to exploit the Software during the Term. b. Remote Monitoring. The Software includes components that automatically monitor compliance with the Certificate, and FSMLabs may monitor Licensee’s compliance with the terms of this EULA and the Certificate remotely or otherwise. Unless Licensee has separately negotiated an agreement with FSMLabs to the contrary, THE SOFTWARE MAY NOT FUNCTION (i) BEYOND THE TERM SET FORTH IN THE CERTIFICATE, OR (ii) IF LICENSEE ALTERS THE DATES AND TIMES FUNCTIONS ON THE DEVICE ON WHICH THE SOFTWARE IS INSTALLED. SOFTWARE PROVIDED UNDER AN EVALUATION LICENSE IS NOT INTENDED FOR USE IN PRODUCTION. ANY USE OF THE SOFTWARE OUTSIDE THE TERMS OF THE CERTIFICATE AND THIS EULA IS UNAUTHORIZED AND IS ENTIRELY AT LICENSEE’S OWN RISK. 7. TERMINATION. This EULA shall be effective from the Effective Date set forth in the applicable Certificate and shall continue in effect for the Term set forth in such Certificate and any renewal thereof, unless terminated earlier as permitted in this EULA. Without prejudice to any other rights, FSMLabs may terminate this EULA if Licensee or its employees, agents, contractors or clients are using the Server Computers or Software in any manner violating any terms or conditions of this EULA. In the event of the expiration or other termination of the Term, Licensee must destroy or return to FSMLabs all copies of the Software and return to FSMLabs all Server Computers. Upon termination or expiration of this EULA, all rights of Licensee and any Authorized User relating to the Software shall immediately cease. Sections 6-10, 14, and 15 shall survive termination of this EULA. 8. DISCLAIMER OF WARRANTIES. FSMLABS AND ITS SUPPLIERS PROVIDE THE SOFTWARE AND SUPPORT SERVICES (IF ANY) AS IS AND WITH ALL FAULTS, AND HEREBY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY (IF ANY) IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF RELIABILITY OR AVAILABILITY, OF ACCURACY OR COMPLETENESS OF RESPONSES, OF RESULTS, OF WORKMANLIKE EFFORT, OF LACK OF VIRUSES, AND OF LACK OF NEGLIGENCE, ALL WITH REGARD TO THE SOFTWARE, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATION, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE. 9. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL FSMLABS OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATION, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT LIABILITY, BREACH OF Ver. Oct. 2013 3 �CONTRACT OR BREACH OF WARRANTY OF FSMLABS OR ANY SUPPLIER, AND EVEN IF FSMLABS OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 10. LIMITATION OF LIABILITY AND REMEDIES. NOTWITHSTANDING ANY DAMAGES THAT LICENSEE MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED HEREIN AND ALL DIRECT OR GENERAL DAMAGES IN CONTRACT OR ANYTHING ELSE), THE ENTIRE LIABILITY OF FSMLABS AND ANY OF ITS SUPPLIERS UNDER ANY PROVISION OF THIS EULA AND LICENSEE’S EXCLUSIVE REMEDY HEREUNDER SHALL BE LIMITED TO THE LESSER OF THE ACTUAL DAMAGES INCURRED BY LICENSEE IN REASONABLE RELIANCE ON THE SOFTWARE OR THE AMOUNT ACTUALLY PAID BY LICENSEE FOR THE SOFTWARE. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS (INCLUDING SECTIONS 7, 8, AND 9) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. 11. NON-DISCLAIMABLE WARRANTY LIMITATION. IF, DESPITE THE DISCLAIMERS SET FORTH ABOVE, AN IMPLIED WARRANTY OR CONDITION OF THE SOFTWARE IS CREATED UNDER THIS EULA OR ANY LAW OR PRECEDENT UNDER APPLICABLE LAW, LICENSEE SHALL HAVE SUCH IMPLIED WARRANTY OR CONDITION, BUT ONLY AS TO DEFECTS DISCOVERED DURING THE FIRST NINETY DAYS OF THIS EULA. AS TO ANY DEFECTS DISCOVERED AFTER THE NINETY-DAY PERIOD, THERE IS NO WARRANTY OR CONDITION OF ANY KIND. 12. AUDIT RIGHTS. FSMLabs may audit Licensee’s compliance with the terms of this EULA as set forth in the Certificate. Upon reasonable notice, FSMLabs may conduct an audit during normal business hours (with the auditor’s costs being at FSMLabs’ expense). If an audit reveals use of the Software outside of the scope permitted by the Certificate or this EULA, then, at FSMLabs’ sole option, FSMLabs may immediately terminate this EULA as set forth in Section 6 and require Licensee to pay to FSMLabs the auditor’s costs and its then-current rates for the additional use outside of the scope of the Certificate. 13. U.S. GOVERNMENT LICENSE RIGHTS. All Software provided to the U.S. Government pursuant to solicitations issued on or after December 1, 1995, is provided with the commercial license rights and restrictions described elsewhere herein. All Software provided to the U.S. Government pursuant to solicitations issued prior to December 1, 1995, is provided with “Restricted Rights” as provided for in FAR, 48 CFR 52.227-14 (JUNE 1987) or DFAR, 48 CFR 252.227-7013 (OCT 1988), as applicable. 14. EXPORT RESTRICTIONS. Licensee acknowledges that the Software is subject to U.S. export jurisdiction. Licensee agrees to comply with all applicable international and national laws that apply to the Software, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments. For additional information see http://www.FSMLabs.com/exporting. 15. APPLICABLE LAW. This EULA is governed by the laws of the State of Delaware, excluding its choice of law principles. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Licensee consents to the jurisdiction of and venue of any dispute relating to the EULA or the Software in the State or Federal courts located in Delaware. 16. ENTIRE AGREEMENT; SEVERABILITY. This EULA (including any addendum or amendment to this EULA which is included with the Software) are the entire agreement between Licensee and FSMLabs relating to the Software and the Support Services (if any) and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software or any other subject matter covered by this EULA. To the extent the terms of any FSMLabs policies or programs for support services conflict with the terms of this EULA, the terms of this EULA shall control unless the parties otherwise agree in writing. If any provision of this EULA is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. 17. EFFECTIVE DATE. These terms are a legal contract that will bind both FSM Labs and Licensee as soon as Licensee or Licensee’s Authorized Agent clicks “I AGREE” or otherwise installs or uses the Software. Ver. Oct. 2013 4 �
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PLANET LABS END-USER LICENSE AGREEMENT This End-User License Agreement (“EULA”) between EndUser (“you,” “your”) and Planet Labs Germany GmbH (“Planet Labs,” “we,” “us,” “our”) is the basis upon which we provide Content to licensees. End-User and Planet Labs may be referred to in this EULA individually as a “Party “or collectively as “Parties.” The following terms and conditions represent a legally binding contract between End-User and Planet Labs for the use of Content. 1. DEFINITIONS “Purchaser” means any legal entity or government agency that enters or intends to enter into a binding agreement with us to obtain Content provided under the terms of this EULA. “Value-Added Product” or “VAP” means any product generated by you that contains source image data from the Content (including a reasonable facsimile of the Content) that has been by modified through higher processing, technical manipulations, or the integration of additional data. 2. “Content” means any imagery, data, product, value-added product, service, analysis, tool, or work licensed by Planet Labs under the terms of this EULA, including, without limitation, information products and digital data sets. “Derivative Product” means any product or information derived and developed by you from Content that does not contain any source image data from the Content (including a reasonable facsimile of the Content) and is irreversibly modified and uncoupled from the Content. “End-User” means any ONE of the following that accepts the terms of this EULA and is supplied with Content: You agree to be bound by the terms of this EULA by doing any of the following: accepting, wholly or partially, a quote for the supply of the Content; agreeing in writing to the terms of this EULA; opening the package containing the Content; downloading, installing, or using the Content on a computer or other electronic device; developing, using, or making available any Derivative Product; damaging or destroying the Content; retaining the Content for more than five days following receipt; or accessing the Content either through an End-User Access Account or, if a different delivery mechanism is selected by us, opening the package containing the Content. one individual; one company or corporation, not including subsidiaries, affiliates, or representative offices; one office or department of a civilian national agency/ministry at the cabinet level; one civilian national agency/ministry below the cabinet level; one office or department of a branch of a national military; one office or department of a national defense agency, national intelligence agency, or unified command; one federated state or provincial agency/ministry, county, or local government; one nongovernmental organization or nonprofit organization within a single country; one educational organization within a country; one office or department within an international organization, institution, or agency, including the United Nations or European Union; or any one entity or equivalent to any of the entities listed above. “End-User Access Account” means an individual account provided by us, including unique authorization credentials, that permits you to access the Content through our application programming interface (API). Page 1 of 4 ACCEPTANCE OF LICENSING TERMS A license granted under this EULA is nontransferable, unless otherwise approved in writing by us. We reserve all rights not expressly granted by this EULA or other signed writing between the Parties. 3. SCOPE The license type (“License Type”) identified at the time of purchase of the Content determines the number or group of End-Users granted a license to engage in permitted use. There are four standard License Types: License Type Number of End-Users Single-User 1 Multi-User 5 Enterprise 10 Expanded 11+ Unless a Single-User License Type is purchased for—and the terms of this EULA are accepted by—an alternate licensee identified to us at the time of purchase, the �Planet Labs End-User License Agreement Purchaser is the End-User. Rights granted under the other License Types may be passed to multiple End-Users in accordance with the definitions above up to the maximum number permissible if all licensees have been identified at the time of purchase; have been provided an End-User Access Account or other access permissions provided by us; and agree in writing to be bound by this EULA. Additionally, several government License Types are available for purchase as described below. Each government License Type designates a group of government agencies/ministries within a single country (“Group”) as a single End-User. The following government License Types only permit nonprofit/noncommercial use by the End-User. License Type Group ALL-CIV All civilian government agencies/ministries, at the federal/national, state/provincial, county, local, and municipal levels. considered a breach by you. 4. GRANTED LICENSE AND PERMITTED USES In consideration of the mutual covenants herein and for other good and valuable consideration, and conditioned upon your acceptance of and compliance with all terms of this EULA, we grant you a limited, nonexclusive, nontransferable license to make unlimited copies of the Content for internal use only; use, alter, and modify the Content to create VAPs for internal use; redistribute reduced resolution data sets with a ground sampling distance degraded to 30 meters or more and with the proper copyright conspicuously displayed: “Includes material © (Year) Planet Labs Germany GmbH. All rights reserved.”; use the Content to create a Derivative Product without restriction; make the Content or VAP available to consultants and contractors for customization with no right to sublicense or otherwise transfer to a third party; ALL-GOV All civilian and military government agencies/ministries at the federal/national, state/provincial, county, local, and municipal levels. For the United States, includes all Title 50 organizations as defined in 50 USC 401a. display the Content or VAP on an internet site at full resolution for noncommercial purposes in a nondownloadable, noninteractive fashion that does not allow a third party to access the Content or VAP as a standalone file and with the proper copyright conspicuously displayed: “Includes material © (Year) Planet Labs Germany GmbH. All rights reserved.”; and FED-CIV All federal civilian agencies/ministries. MOD/Title50 All defense agencies/ministries. For the United States, includes all Title 50 organizations as defined in 50 USC 401a. publish the Content or VAP in a nondigital format for noncommercial purposes in research reports or similar publications with the proper copyright conspicuously displayed: “Includes material © (Year) Planet Labs Germany GmbH. All rights reserved.” STATE-CIV All state/provincial, county, municipal, and local government agencies/ministries of a single federated state /province. government Unless otherwise agreed in writing between the Parties, you must not sublicense, sell, rent, lease, or otherwise transfer or assign the Content to a third party, except as expressly provided in this EULA; You may grant a temporary sublicense to an independent contractor or consultant if copy or otherwise reproduce the Content except as provided in this EULA; the contractor/consultant agrees in writing to be bound by this EULA; use the Content or a VAP for any purpose not expressly permitted under this EULA; the sublicensee uses the Content solely for purposes consistent with permitted use and immediately deletes the Content and all copies upon completion of the assigned tasks; and remove, bypass, or circumvent any electronic or other form of protection included in the Content; you assume responsibility for noncompliance by the sublicensee, whose breach of this EULA will be Page 2 of 4 reverse engineer or otherwise attempt to derive the algorithms, databases, or data structures from which the Content is derived; �Planet Labs End-User License Agreement alter or remove any copyright notice or proprietary legend contained in or on the Content; or use the Content in any manner that violates the Planet Labs Code of Ethics, available at https://www.planet.com/ethics. 5. LICENSE UPGRADE 9. You are free to redistribute Derivative Products without restriction. To redistribute Content or VAPs for commercial purposes or any other purpose not permitted by this EULA, you must request additional licensing from us. We may grant licensing allowing additional use upon the conclusion of a license upgrade for which the appropriate license fees will have been paid (“License Upgrade”). The relevant License Upgrade will be attached as an amendment to this EULA. The inclusion of Content or imagery and data contained in Content in any product for resale or distribution is considered value-added work and is not allowed under this EULA without purchasing the necessary License Upgrade. 6. INTELLECTUAL PROPERTY Content and data contained in the Content are owned by us or our licensor and protected by the laws of the Federal Republic of Germany, the United States, and applicable international laws, treaties, and conventions regarding intellectual property or proprietary rights. We or our licensor retain all rights, title, and ownership interest not granted under this EULA. From the date of acceptance of this EULA by one of the means listed above, you will employ all reasonable efforts to protect Content, or any part of the Content, from unauthorized use, distribution, disclosure, or publication. We or our licensor retain all rights over Planet Labs trademarks. 7. PROPRIETARY INFORMATION Content contains information proprietary to us or our licensor. You will not alter or remove any copyright notice or proprietary statement contained in or on the Content, unless otherwise agreed by us. Furthermore, you will impose this same obligation on any contractor or consultant you engage. 8. implied—including, without limitation, the implied warranties of merchantability, fitness for a particular purpose, noninterference, system integration, and noninfringement. The content and any accompanying documentation are provided “as is.” We do not warrant that Content will meet your needs or expectations. LIMITED WARRANTY We warrant we have sufficient rights in the Content to make it available to you under the terms of this EULA. We make no warranty as to the suitability of Content or its fitness for your requirements or intended purposes. We make no warranty that Content is free of errors, defects, or omissions, or that the operation and use of Content will be error-free, uninterrupted, or that all nonconformities can or will be corrected. Except for the above express limited warranty, we disclaim all other warranties of any kind—express or Page 3 of 4 LIMITATION OF LIABILITY Subject to the extent applicable law requires liability, we will not be liable to you for costs of substitute goods or services; lost profits, lost sales, or business expenditures; investments or other business commitments; lost goodwill; or any indirect, incidental, consequential, or punitive damages arising out of or related to this EULA or the use of any Content. In no event will our aggregate liability under all claims relating to the Content or otherwise arising out of this EULA exceed the total amount paid by Purchaser or End-User to access and use the Content. We disclaim any liability not expressly provided for above. 10. INDEMNIFICATION You will indemnify us and our licensors, and our/their respective owners, officers, directors, employees, and agents, from all loss, damages, claims, expenses, or attorney’s fees sustained by or asserted against us arising from or connected with (a) your use of the Content for any purpose; (b) your breach of any term of this EULA; or (c) any property damage or injury to or death of any person directly or indirectly caused by you. We will provide you notice of any claim. We will have the right to participate in the defense of any claim at our expense. 11. COMPLIANCE WITH LAWS Content may be subject to U.S. and Canadian laws and regulations, including regulations of exports and dealing with embargoed countries or denied parties. You will not export, re-export, import, or transfer any Content in violation of U.S., Canadian, or other applicable laws, whether directly or indirectly, and will not assist or facilitate others in doing any of the foregoing. You acknowledge your responsibility to comply with all applicable laws and regulations in connection with use of Content, including, without limitation, all export and import laws. 12. TERM AND TERMINATION This EULA runs for an unlimited term. Upon our request, you will provide reasonable assurances to us that your use of the Content is consistent with this EULA. We may terminate this EULA with immediate effect by notice to you in writing if you breach any term of this EULA. In this case, you will have no claim to any remedy or refund of license fees paid. If you use any Content in an unauthorized �Planet Labs End-User License Agreement manner or otherwise violate this EULA, we may, at our option, select any one or more of the following remedies in addition to any remedy available at law: demand return of the Content; enjoin your use of the Content; charge you a fee appropriate to your use of the Content; or charge you for enforcement costs. reasonable inspection and Upon termination, you will delete all Content and provide evidence of its deletion to us. All provisions of this EULA that by their nature contemplate performance after termination will survive termination of this EULA. 13. APPLICABLE LAW AND VENUE The laws of the Federal Republic of Germany, excluding conflict of laws principles and the United Nations Convention on Contracts for the International Sale of Goods, will govern all matters relating to this EULA. The Page 4 of 4 exclusive jurisdiction and venue for any legal action arising out of this EULA will be Berlin, Germany. A material breach of this EULA adversely affecting our proprietary rights may cause irreparable harm to us, for which a remedy at law would be inadequate; we will be entitled to injunctive relief in addition to any remedy we may have under this EULA or at law. 14. COMPLETE AND BINDING EULA Subject to any specific terms of an order for Content incorporating this EULA, this EULA constitutes the complete and exclusive understanding between the Parties relating to its subject matter. It supersedes all prior and contemporaneous representations, correspondence, proposals, or licensing agreements, whether oral or written. If any provision is determined to be invalid or unenforceable, the remaining provisions of this EULA will continue to be valid and enforceable. Our failure to enforce any of the provisions in this EULA will not constitute a waiver of our right to do so. Revision: January 1, 2016 �
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WAVE® END USER LICENSE AGREEMENT THE ACCOMPANYING SOFTWARE AND DOCUMENTATION (EACH AS DEFINED BELOW) BELONG TO TWISTED PAIR SOLUTIONS, A MOTOROLA SOLUTIONS COMPANY (“LICENSOR”) OR ITS LICENSORS AND ARE SUBJECT TO THIS END USER LICENSE AGREEMENT (“AGREEMENT”). WHEN YOU CLICK THE “ACCEPT” BUTTON OR WHEN YOU OTHERWISE INSTALL OR USE ANY PART OF THE SOFTWARE OR DOCUMENTATION, (i) YOU ARE REPRESENTING AND WARRANTING THAT YOU HAVE THE AUTHORITY TO BIND LICENSEE AND (ii) YOU ARE CONSENTING TO BE BOUND BY, AND BECOMING A PARTY TO, THIS AGREEMENT. IF YOU DO NOT AGREE TO (OR CANNOT COMPLY WITH) ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “CANCEL” BUTTON AND YOU WILL NOT BE AUTHORIZED TO USE OR HAVE ANY LICENSE TO ANY PART OF THE SOFTWARE OR DOCUMENTATION. IF YOU ARE DEEMED TO HAVE ORDERED THE SOFTWARE AND/OR DOCUMENTATION, LICENSOR’S ACCEPTANCE IS EXPRESSLY CONDITIONAL ON ASSENT TO THESE TERMS TO THE EXCLUSION OF ALL OTHER TERMS; IF THESE TERMS ARE CONSIDERED AN OFFER BY LICENSOR, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS. 1. Definitions. The following underlined terms shall have the following meanings: 1.1 “Competitive Products” shall mean any product that supports the same or similar functionality as the Software. 1.2 “Documentation” means any Licensor documentation that may be provided to you with the Software, including with any upgrade or update to the Software. Any particular Documentation applies only to the Software with which it is provided and for which it was prepared. 1.3 “Licensee” or “you” means the person or entity obtaining the Software and Documentation and made a party to this Agreement. 1.4 “Object Code” means any compiled, assembled or machine-executable version of the Software, or any part thereof. 1.5 “Software” means this computer program accompanying this Agreement, in Object Code form only, together with upgrades and updates that are made generally available by Licensor, and includes certain third-party software, which may only be used in conjunction with Licensor’s Software, and which third parties shall be the direct and intended third-party beneficiaries of this Agreement. 1.6 “Source Code” means the human readable form of the Software. 2. License Grant. Subject to all the terms and conditions of this Agreement, Licensor hereby grants to you a nonexclusive, non-sublicenseable, non-assignable right and license, under Licensor’s intellectual property rights in the Software and Documentation, to use the Software and Documentation, only in accordance with any applicable Documentation, on the levels of servers and as to the number of client access licenses for which you have purchased a license. 3. Ownership. As between the parties, Licensor (or its licensors) retains title to and ownership of WAVE EULA June 2016 �and all proprietary rights with respect to the Software and Documentation and all copies and portions thereof. The license grant hereunder does not constitute a sale of the Software or Documentation or any portion or copy of them, and except as expressly provided herein, you do not acquire any intellectual property or other proprietary rights in or related thereto. 4. Protection Requirements. 4.1 Legends and Notices. You shall not remove from the Software or Documentation or modify any product identification, copyright notices or other notices that appear on the Software or Documentation. 4.2 Copies. You shall not copy, in whole or in part, the Software or Documentation or modify for any purpose whatsoever without the express written consent of Licensor, except for one copy solely for backup purposes. You must reproduce and include any product identification and notices referred to in Section 4.1 on any copies and any associated media. 4.3 Certain Restrictions. You shall not (and shall not allow any third party to): (i) decompile, disassemble, translate, bootleg or otherwise reverse engineer or attempt to reconstruct or discover any Source Code or underlying ideas, algorithms, file formats or programming or interoperability interfaces of the Software, or of any files contained in or generated using the Software, by any means whatsoever; (ii) provide, lease, lend, use for timesharing, outsourcing or hosting or service bureau purposes or otherwise use or allow others to use the Software to or for the benefit of third parties, (iii) modify, incorporate into or with other software or create a derivative work of any part of the Software; or (v) create or disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software. 4.4 Competitive Products. You shall not develop, market or sell any Competitive Product based on or derived in any way from the Software, Documentation or from the benefits of know-how resulting from access to or work with Licensor’s Confidential Information. The term “benefits of know how” means information in non-tangible form which may be retained by persons who have had access to the Confidential Information, including ideas, concepts, know how or techniques contained therein. 4.5 Confidentiality. You acknowledge that the Software constitutes valuable proprietary information and includes Licensor’s trade secrets and copyrights, and you will preserve the confidentiality of the Software in the same manner that you protect your own confidential information and, in any event, with at least reasonable and prudent care. 4.6 Publicly Available Software. The Software contains or is provided with components subject to the terms and conditions of “open source” software licenses (“Open Source Software”). Open Source Software may be identified in the Documentation, or Licensor shall provide a list of the Open Source Software for a particular version of the Software to you upon your written request. To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Open Source Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering. You agree to comply with the terms and conditions set forth in the licenses applicable to such Open Source Software. 5. Warranty. 5.1 Warranty. Licensor hereby warrants that, during the Warranty Period, the unmodified Software, when used in accordance with the associated Documentation, will materially conform to the technical specifications set forth in the Documentation applicable to such Software. The “Warranty WAVE EULA June 2016 �Period” begins on the date Licensor makes the Software available for electronic download by you and ends ninety days later. This limited warranty is void if Software failure has resulted from modification, accident, abuse, misuse or misapplication of the Software or other conduct or conditions outside the control of Licensor. Your sole remedy for any breach of this limited warranty shall be, at Licensor’s sole discretion, either (i) return of the price paid by you for the defective Software or (ii) repair or replacement by Licensor of the defective Software. The warranty set forth in this Section 5.1 will terminate upon any termination of the license granted hereunder. 5.2 Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SOFTWARE, RELATED SERVICES AND DOCUMENTATION ARE PROVIDED “AS IS”. TO THE EXTENT PERMITTED BY APPLICABLE LAW. LICENSOR, FOR ITSELF AND ON BEHALF OF ITS SUPPLIERS, EXCLUDES ALL TERMS, CONDITIONS AND WARRANTIES, BE THEY EXPRESS OR IMPLIED BY LAW, STATUTE, COURSE OF DEALING, USAGE OR TRADE PRACTICE OR OTHERWISE. SPECIFICALLY, AND WITHOUT LIMITATION, ON ITS OWN BEHALF AND THAT OF ITS SUPPLIERS, LICENSOR EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY AND ANY WARRANTIES RELATING TO NON-INTERRUPTION OF USE OR FREEDOM FROM ERRORS, VIRUSES OR BUGS. NO PERSON IS AUTHORIZED TO MAKE ANY WARRANTY OR REPRESENTATION ON BEHALF OF LICENSOR CONCERNING THE SOFTWARE OR DOCUMENTATION. TO THE EXTENT AN IMPLIED TERM, CONDITION OR WARRANTY CANNOT BE EXCLUDED OR DISCLAIMED, THEN IT IS LIMITED IN DURATION TO THE WARRANTY PERIOD. 6. Maintenance. Licensor is not responsible for maintenance and support under this Agreement. 7. Term, Termination and Survival. The license granted hereunder is effective until terminated. The license granted hereunder will terminate automatically if you fail to cure any material breach of this Agreement within 30 days of receiving notice of such breach from Licensor or the Partner (or immediately upon notice in the case of a breach of Section 4 (Protection of Software). Upon termination, you shall immediately cease all use of the Software and Documentation and return or destroy all copies of the Software and Documentation and all portions thereof and, at Licensor’s request, so certify to Licensor. Except for the license granted hereunder and except as otherwise expressly provided herein, the terms of this Agreement shall survive any termination of the license granted hereunder. Termination is not an exclusive remedy and all other remedies will be available whether or not the license granted hereunder is terminated. 8. Limitation of Remedies and Damages. LICENSOR SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE OR OTHERWISE), STRICT LIABILITY OR OTHER THEORY (i) FOR INTERRUPTION OF USE, OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR (ii) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR (iii) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL. LICENSOR’S LICENSORS SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE OR OTHERWISE), STRICT LIABILITY OR OTHER THEORY WHATSOEVER. LICENSOR’S AGGREGATE LIABILITY FOR ALL CLAIMS, ACTIONS AND/OR OMISSIONS ARISING FROM OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT OF FEES PAID BY WAVE EULA June 2016 �YOU TO LICENSOR IN THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM ARISES. THESE LIMITATIONS WILL APPLY EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. 9. Government Matters. 9.1 Export. You shall comply with all applicable import and export laws, restrictions, and regulations of any United States or foreign agency or authority. You will not import or export or reexport, or allow the import or export or re-export of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any such laws, restrictions or regulations. 9.2 Government Procurement. As defined in FAR section 2.101, DFAR section 252.2277014(a)(1) and DFAR section 252.227-7014(a)(5) or otherwise, all software and accompanying documentation provided in connection with this Agreement are “commercial items,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement. You will ensure that each copy used or possessed by or for the government is labeled to reflect the foregoing. 10. Miscellaneous. 10.1 Governing Law; Venue for Disputes. This Agreement shall be governed in all respects by the laws of the state of Washington and the United States, without regard to the choice of law rules thereof. Application of the U.N. Convention on Contracts for the International Sale of Goods is expressly excluded. The sole jurisdiction and venue for actions relating to the subject matter hereof shall be the state and US federal courts located in King County, Washington. Both parties consent to the jurisdiction of such courts and agree that process may be served in the manner provided by applicable Washington state or United State federal law. 10.2 Attorneys’ Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover its reasonable costs and attorneys’ fees. 10.3 Equitable Remedies. The parties agree that a material breach of this Agreement adversely affecting Licensor’s proprietary rights in the Software or Documentation would cause irreparable injury to Licensor for which monetary damages would not be an adequate remedy and that Licensor shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law. 10.4 Waivers; Amendments. No delay, omission, or failure to exercise any right or remedy provided herein shall be deemed to be a waiver thereof or an acquiescence in the event giving rise to such right or remedy, but every such right or remedy may be exercised, from time to time as may be deemed expedient by the party exercising such remedy or right. Any waivers or amendments shall be effective only if made in writing by non-preprinted agreements and signed by a representative of the respective parties authorized to bind the parties. 10.5 Invalidity. In the event that any provision of this Agreement is unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision WAVE EULA June 2016 �shall be changed and interpreted so as to best accomplish the objectives of such provision within the limits of applicable law. 10.6 Assignment. Neither this Agreement nor any rights granted herein may be assigned or transferred by you, whether voluntarily or by operation of law, without the express written permission of Licensor, and any attempt to do so shall be null and void. This Agreement or any rights or obligations hereunder may be assigned by Licensor without your consent. 10.7 Relationship of Parties. Nothing herein shall be deemed to create an employer-employee relationship between Licensor and you, nor any agency, joint venture or partnership relationship between the parties. Neither party shall have the right to bind the other to any obligation, nor have the right to incur any liability on behalf of the other. 10.8 Entire Agreement. This Agreement is the complete and exclusive agreement between the parties with regard to the subject matter hereof and supersedes any and all prior discussions, negotiations and memoranda related hereto. WAVE EULA June 2016 �
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Microsoft Windows XP Professional, Microsoft Windows XP Tablet PC Edition and Microsoft® Windows® XP Media Center Edition 2004 END-USER LICENSE AGREEMENT FOR MICROSOFT SOFTWARE IMPORTANT—READ CAREFULLY: This End-User License Agreement (“EULA”) is a legal agreement between you (either an individual or a single entity) and the manufacturer ("Manufacturer") of the computer system or computer system component (“HARDWARE”) with which you acquired the Microsoft software product(s) identified on the Certificate of Authenticity ("COA") affixed to the HARDWARE or on the associated product documentation (“SOFTWARE”). The SOFTWARE includes Microsoft computer software, and may include associated media, printed materials, “online” or electronic documentation, and Internet based services. Note, however, that any software, documentation, or web services that are included in the SOFTWARE, or accessible via the SOFTWARE, and are accompanied by their own license agreements or terms of use are governed by such agreements rather than this EULA. The terms of a printed paper EULA, which may accompany the SOFTWARE, supersede the terms of any on-screen EULA. This EULA is valid and grants the end-user rights ONLY if the SOFTWARE is genuine and a genuine Certificate of Authenticity for the SOFTWARE is included. For more information on identifying whether your software is genuine, please see http://www.microsoft.com/piracy/howtotell. YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MAY NOT USE OR COPY THE SOFTWARE, AND YOU SHOULD PROMPTLY CONTACT MANUFACTURER FOR INSTRUCTIONS ON RETURN OF THE UNUSED PRODUCT(S) FOR A REFUND IN ACCORDANCE WITH MANUFACTURER’S RETURN POLICIES. SOFTWARE PRODUCT LICENSE The term "COMPUTER" as used herein shall mean the HARDWARE, if the HARDWARE is a single computer system, or shall mean the computer system with which the HARDWARE operates, if the HARDWARE is a computer system component. 1. GRANT OF LICENSE. Manufacturer grants you the following rights provided that you comply with all terms and conditions of this EULA: 1.1 Installation and use. You may install, use, access, display and run one copy of the SOFTWARE on the COMPUTER. The SOFTWARE may not be used by more than two (2) processors at any one time on the COMPUTER, unless a higher number is indicated on the COA. 1.2 SOFTWARE as a Component of the COMPUTER - Transfer. This license may not be shared, transferred to or used concurrently on different computers. The SOFTWARE is licensed with the COMPUTER as a single integrated product and may only be used with the COMPUTER. If the SOFTWARE is not accompanied by HARDWARE, you may not use the SOFTWARE. You may permanently transfer all of your rights under this EULA only as part of a permanent sale or transfer of the COMPUTER, provided you retain no copies of the SOFTWARE. If the SOFTWARE is an upgrade, any transfer must also include all prior versions of the SOFTWARE. This transfer must also include the Certificate of Authenticity label. The transfer may not be an indirect transfer, such as a consignment. Prior to the transfer, the end user receiving the Software must agree to all the EULA terms. 1.3 Mandatory Activation. The license rights granted under this EULA are limited to the first thirty (30) days after you first install the SOFTWARE unless you supply information required to activate your licensed copy in the manner described during the setup sequence of the SOFTWARE. You can activate the SOFTWARE through the use of the Internet 05/14/04 57777v3 XP Pro SP2 OEM EULA �or telephone; toll charges may apply. You may also need to reactivate the SOFTWARE if you modify your computer hardware or alter the SOFTWARE. There are technological measures in this SOFTWARE that are designed to prevent unlicensed use of the SOFTWARE. Microsoft will use those measures to confirm you have a legally licensed copy of the SOFTWARE. If you are not using a licensed copy of the SOFTWARE, you are not allowed to install the SOFTWARE or future SOFTWARE updates. Microsoft Licensing, GP, Microsoft Ireland Operations Limited and/or Microsoft (China) Co. Limited (collectively “MS”), Microsoft Corporation and its subsidiaries will not collect any personally identifiable information from your COMPUTER during this process. 1.4 Device Connections. You may permit a maximum of ten (10) computers or other electronic devices (each a “Device”) to connect to the COMPUTER to utilize one or more of the following services of the SOFTWARE: File Services, Print Services, Internet Information Services, Internet Connection Sharing and telephony services. The ten connection maximum includes any indirect connections made through “multiplexing” or other software or hardware which pools or aggregates connections. This ten connection maximum does not apply to other uses of the SOFTWARE, such as synchronizing data between a Device and the COMPUTER, provided only one user uses, accesses, displays or runs the SOFTWARE at any one time. This Section 1.4 does not grant you rights to access a COMPUTER Session from any Device. A “Session” means any use of the SOFTWARE that enables functionality similar to that available to an end user who is interacting with the COMPUTER through any combination of input, output and display peripherals. 1.5 Remote Desktop/Remote Assistance/NetMeeting. The SOFTWARE contains Remote Desktop, Remote Assistance, and NetMeeting technologies that enable the SOFTWARE or applications installed on the COMPUTER (sometimes referred to as a host device) to be accessed remotely from other Devices. You may use the SOFTWARE’s Remote Desktop feature (or other software which provides similar functionality for a similar purpose) to access a COMPUTER Session from any Device provided you acquire a separate SOFTWARE license for that Device. As an exception to this rule, the person who is the single primary user of the COMPUTER may access a Computer Session from any Device without acquiring an additional SOFTWARE license for that Device. When you are using Remote Assistance or NetMeeting (or other software which provides similar functionality for a similar purpose) you may share a Session with other users without any limit on the number of Device connections and without acquiring additional licenses for the SOFTWARE. For Microsoft and non-Microsoft applications, you should consult the license agreement accompanying the applicable software or contact the applicable licensor to determine whether use of the software with Remote Desktop, Remote Assistance, or NetMeeting is permitted without an additional license. Except as otherwise permitted by the NetMeeting and Remote Assistance features described above, a license for the SOFTWARE may not be shared or used concurrently on different computers, such as a workstation, terminal or other device. 1.6 Back-up Copy. YOU MAY MAKE A SINGLE BACK-UP COPY OF THE SOFTWARE. YOU MAY USE ONE (1) BACK-UP COPY SOLELY FOR YOUR ARCHIVAL PURPOSES AND TO REINSTALL THE SOFTWARE ON THE COMPUTER. EXCEPT AS EXPRESSLY PROVIDED IN THIS EULA OR BY LOCAL LAW, YOU MAY NOT OTHERWISE MAKE COPIES OF THE SOFTWARE, INCLUDING THE PRINTED MATERIALS ACCOMPANYING THE SOFTWARE. YOU MAY NOT LOAN, RENT, LEASE, LEND OR OTHERWISE TRANSFER THE CD OR BACK-UP COPY TO ANOTHER USER. 1.7 Use of Previous Version Of SOFTWARE. If the COA which accompanies the HARDWARE identifies the SOFTWARE as Microsoft Windows XP Professional SOFTWARE, then in lieu of installing and using Microsoft Windows XP Professional SOFTWARE, you may install, use, access, display and run the same language version of ONE (1) of the following versions: Microsoft® Windows® 2000 Professional, Microsoft® Windows® NT Workstation version 4.0 or Microsoft® Windows® 98 (Second Edition) ("Downgrade Software") on the COMPUTER, 05/14/04 57777v3 XP Pro SP2 OEM EULA �provided (1) you agree that Downgrade Software support will NOT be provided hereunder by Manufacturer, MS or Microsoft Corporation, their affiliates or subsidiaries; (2) you agree that neither Manufacturer, MS nor Microsoft Corporation are obligated to provide you with the Downgrade Software or media; (3) you may not loan, rent, lease, lend or otherwise transfer the CD or back-up copy of Microsoft Windows XP Professional to another end user, except as otherwise provided in the transfer provisions of this EULA; and (4) such Downgrade Software shall be deemed "SOFTWARE" for the purposes of this EULA and use of the Downgrade Software shall be in compliance with all the terms of this EULA, except that, with respect to Microsoft Windows 98 (Second Edition), your Connection Maximum shall be limited to five (5) Devices. If you exercise the downgrade rights granted herein, you may install, use, access, display and run the Microsoft Windows XP Professional SOFTWARE, provided (1) you remove the Downgrade Software from your hard drive; (2) you do not loan, rent, lease, lend or otherwise transfer the CD or back-up copy of Downgrade Software to another end user, except as otherwise provided in the transfer provisions of the EULA for the Downgrade Software; and (3) such Microsoft Windows XP Professional SOFTWARE shall be deemed "SOFTWARE" for the purposes of this EULA and use of the Microsoft Windows XP Professional SOFTWARE shall be in compliance with all of the terms of this EULA. If the COA which accompanies the HARDWARE identifies the SOFTWARE as either Windows XP Tablet PC Edition or Windows XP Media Center Edition 2004 then no downgrade rights are granted herein. 2. AUTOMATIC INTERNET-BASED SERVICES. The SOFTWARE features described below are enabled by default to connect via the Internet to Microsoft computer systems automatically, without separate notice to you. You consent to the operation of these features, unless you choose to switch them off or not use them. Microsoft does not use these features to collect any information that will be used to identify you or contact you. For more information about these features, please see the privacy statement at http://go.microsoft.com/fwlink/?LinkId=25243. 2.1 Windows Update Features. If you connect hardware to your COMPUTER, it may not have the drivers needed to communicate with that hardware. The SOFTWARE’s update feature can obtain the correct drivers from Microsoft and install them on your device. You can switch this update feature off. 2.2 Web Content Features. Under the SOFTWARE’s default configuration, if you are connected to the Internet, several features of the SOFTWARE are enabled by default to retrieve content from Microsoft computer systems and display it to you. When you activate such a feature, it uses standard Internet protocols, which transmit the type of operating system, browser and language code of your COMPUTER to the Microsoft computer system so that the content can be viewed properly from your COMPUTER. These features only operate when you activate them, and you may choose to switch them off or not use them. Examples of these features include Windows Catalog, Search Assistant, and the Headlines and Search features of Help and Support Center. 2.3 Digital Certificates. The SOFTWARE uses digital certificates based on the x.509 standard. These digital certificates confirm the identity of Internet users sending x.509 standard encrypted information. The software retrieves certificates and updates certificate revocation lists. These security features operate only when you use the Internet. 2.4 Auto Root Update. The Auto Root Update feature updates the list of trusted certificate authorities. You can switch off the Auto Root Update feature. 2.5 Windows Media Player. Some features of Windows Media Player automatically contact Microsoft computer systems if you use Windows Media Player or specific features of it: features that (A) check for new codecs if your COMPUTER does not have the correct ones for content you attempt to play (this feature may be switched off), and (B) check for new versions of Windows Media Player (this feature will operate only when you are using Windows Media Player). 05/14/04 57777v3 XP Pro SP2 OEM EULA �2.6 Windows Media Digital Rights Management. Content providers are using the digital rights management technology for Windows Media contained in this SOFTWARE (“WMDRM”) to protect the integrity of their content ("Secure Content") so that their intellectual property, including copyright, in such content is not misappropriated. Portions of this SOFTWARE and third party applications such as media players use WM-DRM to play Secure Content (“WM-DRM Software”). If the WM-DRM Software’s security has been compromised, owners of Secure Content ("Secure Content Owners") may request that Microsoft revoke the WMDRM Software’s right to copy, display and/or play Secure Content. Revocation does not alter the WM-DRM Software’s ability to play unprotected content. A list of revoked WM-DRM Software is sent to your COMPUTER whenever you download a license for Secure Content from the Internet. Microsoft may, in conjunction with such license, also download revocation lists onto your COMPUTER on behalf of Secure Content Owners. Secure Content Owners may also require you to upgrade some of the WM-DRM components in this SOFTWARE (“WM-DRM Upgrades”) before accessing their content. When you attempt to play such content, WM-DRM Software built by Microsoft will notify you that a WM-DRM Upgrade is required and then ask for your consent before the WM-DRM Upgrade is downloaded. WM-DRM Software built by third parties may do the same. If you decline the upgrade, you will not be able to access content that requires the WM-DRM Upgrade; however, you will still be able to access unprotected content and Secure Content that does not require the upgrade. WM-DRM features that access the Internet, such as acquiring new licenses and/or performing a required WM-DRM Upgrade, can be switched off. When these features are switched off, you will still be able to play Secure Content if you have a valid license for such content already stored on your COMPUTER. 3. RESERVATION OF RIGHTS AND OWNERSHIP. Manufacturer, MS and its suppliers (including Microsoft Corporation) reserve all rights not expressly granted to you in this EULA. The SOFTWARE is protected by copyright and other intellectual property laws and treaties. Manufacturer, MS and its suppliers (including Microsoft Corporation) own the title, copyright, and other intellectual property rights in the SOFTWARE. The SOFTWARE is licensed, not sold. 4. LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION, AND DISASSEMBLY. You may not reverse engineer, decompile, or disassemble the SOFTWARE, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. NO RENTAL/COMMERCIAL HOSTING. You may not rent, lease, lend or provide commercial 5. hosting services with the SOFTWARE to others. 6. SEPARATION OF COMPONENTS. The SOFTWARE is licensed as a single product. component parts may not be separated for use on more than one computer. Its 7. SPEECH/HANDWRITING RECOGNITION. If the SOFTWARE includes speech and/or handwriting recognition component(s), you should understand that speech and handwriting recognition are inherently statistical processes; that recognition errors are inherent in the processes; that it is your responsibility to provide for the handling of such errors and to monitor the recognition processes and correct any errors. Neither Manufacturer, MS, Microsoft Corporation, nor their suppliers shall be liable for any damages arising out of errors in the speech and handwriting recognition processes. 8. LANGUAGE VERSION SELECTION. Manufacturer may have elected to provide you with a one-time selection of two or more language versions of the SOFTWARE as part of the SOFTWARE setup process. In such event, you are licensed to use only one (1) of the language versions provided. Once you have used a language version, you are not licensed to use any of the other language versions that Manufacturer may have included with the COMPUTER. Notwithstanding the preceding, if Manufacturer has elected to provide you with a Multilingual User Interface (“MUI”) for certain language versions with additional language version support of the SOFTWARE, the preceding limitation to select and use only one language version of the SOFTWARE shall not apply, so long as (A) you acknowledge that the MUI, and the language support contained therein, is a part of the SOFTWARE, (B) you only use the MUI with the SOFTWARE, and (C) you comply with all of the other terms and conditions of this EULA. 05/14/04 57777v3 XP Pro SP2 OEM EULA �9. MULTIPLE EULAS OR COAS. The package for the SOFTWARE may contain multiple versions of this EULA, such as multiple translations and/or multiple media versions (e.g., in the user documentation and in the software). In this case, you are only licensed to use the SOFTWARE for which a COA is provided. If the COMPUTER is accompanied by more than one (1) COA for a Microsoft operating system, you are licensed to use each Microsoft operating system(s) for which a COA is provided. 10. IF YOU ARE LICENSED FOR WINDOWS XP MEDIA CENTER EDITION 2004, the following terms and conditions apply: 10.1 NOTICE REGARDING WORLDWIDE USE OF THE MEDIA CENTER EDITION: Windows XP Media Center Edition is not designed for use in every country. For example, although the Media Center Edition documentation may refer to certain features such as an electronic programming guide and/or provide information on how to configure a TV tuner; these features may not work for your location. Please refer to the Media Center Edition documentation for a list of features that may not work for your location. 10.2 Electronic Programming Guide. If the SOFTWARE includes access to an electronic programming guide service that displays customized television listings (the “EPG”), you agree that the terms and conditions governing your use of the EPG service are subject to a separate EPG terms of service agreement (“EPG Terms of Service Agreement”). The EPG also contains advertising content and other related EPG data, which are received and stored as data files within the SOFTWARE. If you do not agree to the EPG Terms of Service Agreement, you may continue to use the SOFTWARE, but you will not have access to the EPG. The EPG is not available in all areas. Please consult the SOFTWARE documentation for instructions on accessing the EPG Terms of Service Agreement. 10.3 Related Media Information. If you request related media information to be provided as part of your playback experience, you agree the data provided to you may not be in your local language. Please note: various countries/regions have laws and regulations which may restrict or limit the user's ability to access certain types of content and we urge you to determine if you are subject to such laws and regulations. 10.4 Consent to Update Infrared Receiver. The SOFTWARE may contain technology to ensure the proper functioning of the Infrared Emitter/Transceiver device that ships with certain Microsoft Windows XP Media Center Edition products. By accepting this EULA, you agree that the SOFTWARE may update the firmware of this device. 11. TRADEMARKS. This EULA does not grant you any rights in connection with any trademarks or service marks of Manufacturer, MS or its suppliers (including Microsoft Corporation). 12. PRODUCT SUPPORT. Support for the SOFTWARE is not provided by MS, Microsoft Corporation, or their affiliates or subsidiaries. For SOFTWARE support, please refer to Manufacturer's support number provided in the documentation for the HARDWARE. Should you have any questions concerning this EULA, or if you desire to contact Manufacturer for any other reason, please refer to the address provided in the documentation for the HARDWARE. 13. LINKS TO THIRD PARTY SITES. You may link to third party sites through the use of the SOFTWARE. The third party sites are not under the control of MS or Microsoft, and MS or Microsoft are not responsible for the contents of any third party sites, any links contained in third party sites, or any changes or updates to third party sites. MS or Microsoft are not responsible for webcasting or any other form of transmission received from any third party sites. MS or Microsoft are providing these links to third party sites to you only as a convenience, and the inclusion of any link does not imply an endorsement by MS or Microsoft of the third party site. 14. ADDITIONAL SOFTWARE/SERVICES. This EULA applies to updates, supplements, add-on components, product support services, or Internet-based services components, of the SOFTWARE that you may obtain from Manufacturer, MS, Microsoft Corporation or their subsidiaries after the date you obtain 05/14/04 57777v3 XP Pro SP2 OEM EULA �your initial copy of the SOFTWARE, unless you accept updated terms or another agreement governs. If other terms are not provided along with such Supplemental Components and the Supplemental Components are provided to you by MS, Microsoft Corporation or their subsidiaries then you will be licensed by such entity under the same terms and conditions of this EULA, except that (i) MS, Microsoft Corporation or their subsidiaries providing the Supplemental Components will be the licensor with respect to such Supplemental Components in lieu of the "Manufacturer" for the purposes of the EULA, and (ii) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SUPPLEMENTAL COMPONENTS AND ANY (IF ANY) SUPPORT SERVICES RELATED TO THE SUPPLEMENTAL COMPONENTS ARE PROVIDED AS IS AND WITH ALL FAULTS. ALL OTHER DISCLAIMERS, LIMITATION OF DAMAGES, AND SPECIAL PROVISIONS PROVIDED BELOW AND/OR OTHERWISE WITH THE SOFTWARE SHALL APPLY TO SUCH SUPPLEMENTAL COMPONENTS. MS, Microsoft Corporation or their subsidiaries reserve the right to discontinue any Internet-based services provided to you or made available to you through the use of the SOFTWARE. 15. UPGRADES. If the SOFTWARE is labeled as an upgrade, you must be properly licensed to use a product identified by MS or Microsoft Corporation as being eligible for the upgrade in order to use the SOFTWARE ("Eligible Product"). For the purpose of upgrade(s) only, "HARDWARE" shall mean the computer system or computer system component with which you received the Eligible Product. SOFTWARE labeled as an upgrade replaces and/or supplements (and may disable, if upgrading a Microsoft software product) the Eligible Product which came with the HARDWARE. After upgrading, you may no longer use the SOFTWARE that formed the basis for your upgrade eligibility (unless otherwise provided). You may use the resulting upgraded product only in accordance with the terms of this EULA and only with the HARDWARE. If the SOFTWARE is an upgrade of a component of a package of software programs that you licensed as a single product, the SOFTWARE may be used and transferred only as part of that single product package and may not be separated for use on more than one computer. 16. NOT FOR RESALE SOFTWARE. SOFTWARE identified as “Not For Resale” or “NFR,” may not be sold or otherwise transferred for value, or used for any purpose other than demonstration, test or evaluation. 17. ACADEMIC EDITION SOFTWARE. To use SOFTWARE identified as “Academic Edition” or “AE,” you must be a “Qualified Educational User.” For qualification-related questions, please contact the Microsoft Sales Information Center/One Microsoft Way/Redmond, WA 98052-6399 or the Microsoft subsidiary serving your country. 18. NOTICES REGARDING THE MPEG-4 VISUAL STANDARD. The SOFTWARE includes MPEG-4 visual decoding technology. This technology is a format for data compression of video information. For this technology, MPEG LA, L.L.C. requires this notice: USE OF THIS PRODUCT IN ANY MANNER THAT COMPLIES WITH THE MPEG-4 VISUAL STANDARD IS PROHIBITED, EXCEPT FOR USE DIRECTLY RELATED TO (A) DATA OR INFORMATION (i) GENERATED BY AND OBTAINED WITHOUT CHARGE FROM A CONSUMER NOT THEREBY ENGAGED IN A BUSINESS ENTERPRISE, AND (ii) FOR PERSONAL USE ONLY; AND (B) OTHER USES SPECIFICALLY AND SEPARATELY LICENSED BY MPEG LA, L.L.C. If you have questions regarding this notice, please contact MPEG LA, L.L.C., 250 Steele Street, Suite 300, Denver, Colorado 80206; Telephone 303 331.1880; FAX 303 331.1879; www.mpegla.com. 19. EXPORT RESTRICTIONS. You acknowledge that the SOFTWARE is subject to U.S. export jurisdiction. You agree to comply with all applicable international and national laws that apply to the SOFTWARE, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments. For additional information see <http://www.microsoft.com/exporting/>. 05/14/04 57777v3 XP Pro SP2 OEM EULA �20. END USER PROOF OF LICENSE. If you acquired the SOFTWARE on a device, or on a compact disc or other media, a genuine Microsoft “Proof of License” COA label with a genuine copy of the SOFTWARE identifies a licensed copy of the SOFTWARE. To be valid, the label must be affixed to the COMPUTER, or appear on the SOFTWARE packaging. If you receive the label separately, it is invalid. You should keep the label on the COMPUTER or packaging to prove that you are licensed to use the SOFTWARE. 21. TERMINATION. Without prejudice to any other rights, Manufacturer or MS may terminate this EULA if you fail to comply with the terms and conditions of this EULA. In such event, you must destroy all copies of the SOFTWARE and all of its component parts. 22. NOTICE REGARDING SECURITY. To help protect against breaches of security and malicious software, periodically back up your data and system information, use security features such as firewalls, and install and use security updates. 23. LIMITED WARRANTY FOR SOFTWARE ACQUIRED IN THE US AND CANADA. Manufacturer warrants that the SOFTWARE will perform substantially in accordance with the accompanying materials for a period of ninety (90) days from the date of receipt. If an implied warranty or condition is created by your state/jurisdiction and federal or state/provincial law prohibits disclaimer of it, you also have an implied warranty or condition, BUT ONLY AS TO DEFECTS DISCOVERED DURING THE PERIOD OF THIS LIMITED WARRANTY (NINETY DAYS). AS TO ANY DEFECTS DISCOVERED AFTER THE NINETY-DAY PERIOD, THERE IS NO WARRANTY OR CONDITION OF ANY KIND. Some states/jurisdictions do not allow limitations on how long an implied warranty or condition lasts, so the above limitation may not apply to you. Any supplements or updates to the SOFTWARE, including without limitation, any (if any) service packs or hot fixes provided to you after the expiration of the ninety-day Limited Warranty period are not covered by any warranty or condition, express, implied or statutory. LIMITATION ON REMEDIES; NO CONSEQUENTIAL OR OTHER DAMAGES. Your exclusive remedy for any breach of this Limited Warranty is as set forth below. Except for any refund elected by Manufacturer, YOU ARE NOT ENTITLED TO ANY DAMAGES, INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL DAMAGES, if the SOFTWARE does not meet Manufacturer’s Limited Warranty, and, to the maximum extent allowed by applicable law, even if any remedy fails of its essential purpose. The terms of Section 25 (“Exclusion of Incidental, Consequential and Certain Other Damages”) are also incorporated into this Limited Warranty. Some states/jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. This Limited Warranty gives you specific legal rights. You may have other rights which vary from state/jurisdiction to state/jurisdiction. YOUR EXCLUSIVE REMEDY. Manufacturer’s and its suppliers’ (including MS’, Microsoft Corporation’s (including its subsidiaries) and their respective suppliers’) entire liability and your exclusive remedy for any breach of this Limited Warranty or for any other breach of this EULA or for any other liability relating to the SOFTWARE shall be, at Manufacturer’s option from time to time exercised subject to applicable law, (a) return of the amount paid (if any) for the product(s) in accordance with Manufacturer’s return policies, or (b) repair or replacement of the SOFTWARE that does not meet this Limited Warranty and that is returned to Manufacturer with the Certificate of Authenticity and a copy of your receipt at the address specified by Manufacturer. You will receive the remedy elected by Manufacturer without charge, except that you are responsible for any expenses specified in Manufacturer’s warranty remedy documentation. This Limited Warranty is void if failure of the SOFTWARE has resulted from accident, abuse, misapplication, abnormal use or a virus. Any replacement SOFTWARE will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer, and Manufacturer will use commercially reasonable efforts to provide your remedy within a commercially reasonable time of your compliance with Manufacturer’s warranty remedy procedures. 05/14/04 57777v3 XP Pro SP2 OEM EULA �24. DISCLAIMER OF WARRANTIES. The Limited Warranty that appears above is the only express warranty made to you and is provided in lieu of any other express warranties or similar obligations (if any) created by any advertising, documentation, packaging, or other communications. Except for the Limited Warranty and to the maximum extent permitted by applicable law, Manufacturer and its suppliers (including MS, Microsoft Corporation (including its subsidiaries) and their respective suppliers) provide the SOFTWARE and support services (if any) AS IS AND WITH ALL FAULTS, and hereby disclaim all other warranties and conditions, whether express, implied or statutory, including, but not limited to, any (if any) implied warranties, duties or conditions of merchantability, of fitness for a particular purpose, of reliability or availability, of accuracy or completeness of responses, of results, of workmanlike effort, of lack of viruses, and of lack of negligence, all with regard to the SOFTWARE, and the provision of or failure to provide support or other services, information, software, and related content through the SOFTWARE or otherwise arising out of the use of the SOFTWARE. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE SOFTWARE. 25. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MANUFACTURER OR ITS SUPPLIERS (INCLUDING MS, MICROSOFT CORPORATION, (INCLUDING ITS SUBSIDIARIES) AND THEIR RESPECTIVE SUPPLIERS) BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATION, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE, OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF MANUFACTURER OR ANY SUPPLIER (INCLUDING MS, MICROSOFT CORPORATION (INCLUDING ITS SUBSIDIARIES) AND THEIR RESPECTIVE SUPPLIERS), AND EVEN IF MANUFACTURER OR ANY SUPPLIER (INCLUDING MS, MICROSOFT CORPORATION (INCLUDING ITS SUBSIDIARIES) AND THEIR RESPECTIVE SUPPLIERS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 26. LIMITATION OF LIABILITY AND REMEDIES. NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED HEREIN AND ALL DIRECT OR GENERAL DAMAGES IN CONTRACT OR ANYTHING ELSE), THE ENTIRE LIABILITY OF MANUFACTURER AND ANY OF ITS SUPPLIERS (INCLUDING MS, MICROSOFT CORPORATION (INCLUDING ITS SUBSIDIARIES) AND THEIR RESPECTIVE SUPPLIERS) UNDER ANY PROVISION OF THIS EULA AND YOUR EXCLUSIVE REMEDY HEREUNDER (EXCEPT FOR ANY REMEDY OF REPAIR OR REPLACEMENT ELECTED BY MANUFACTURER WITH RESPECT TO ANY BREACH OF THE LIMITED WARRANTY) SHALL BE LIMITED TO THE GREATER OF THE ACTUAL DAMAGES YOU INCUR IN REASONABLE RELIANCE ON THE SOFTWARE UP TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE OR US$5.00. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS (INCLUDING SECTIONS 23, 24, AND 25) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. 27. U.S. GOVERNMENT LICENSE RIGHTS. All software provided to the U.S. Government pursuant to solicitations issued on or after December 1, 1995, is provided with the commercial license rights and restrictions described elsewhere herein. All software provided to the U.S. Government pursuant to solicitations issued prior to December 1, 1995, is provided with “Restricted Rights” as 05/14/04 57777v3 XP Pro SP2 OEM EULA �provided for in FAR, 48 CFR 52.227-14 (JUNE 1987) or DFAR, 48 CFR 252.227-7013 (OCT 1988), as applicable. 28. APPLICABLE LAW. If you acquired this SOFTWARE in the United States, this EULA is governed by the laws of the State of Washington. If you acquired this SOFTWARE in Canada, unless expressly prohibited by local law, this EULA is governed by the laws in force in the Province of Ontario, Canada; and, in respect of any dispute which may arise hereunder, you consent to the jurisdiction of the federal and provincial courts sitting in Toronto, Ontario. If you acquired this SOFTWARE in the European Union, Iceland, Norway, or Switzerland, then local law applies. If you acquired this SOFTWARE in any other country, then local law may apply. 29. ENTIRE AGREEMENT; SEVERABILITY. This EULA (including any addendum or amendment to this EULA which is included with the SOFTWARE) are the entire agreement between you and Manufacturer relating to the SOFTWARE and support or other services (if any) and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the SOFTWARE or any other subject matter covered by this EULA. If any provision of this EULA is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. Si vous avez acquis le Logiciel au CANADA, la garantie limitée suivante s’applique : GARANTIE LIMITÉE Le Fabricant (identifié ci-dessus en anglais comme « Manufacturer ») garantit que le Logiciel fonctionnera substantiellement en conformité avec la documentation qui l’accompagne pour une période de quatrevingt-dix (90) jours suivant la date de réception. Si une garantie ou condition implicite est créée par votre État ou votre territoire et qu’une loi fédérale ou provinciale ou d’un État en interdit le déni, vous jouissez également d’une garantie ou condition implicite, MAIS UNIQUEMENT POUR LES DÉFAUTS DÉCOUVERTS DURANT LA PÉRIODE DE LA PRÉSENTE GARANTIE LIMITÉE (QUATRE-VINGT-DIX JOURS). IL N’Y A AUCUNE GARANTIE OU CONDITION DE QUELQUE NATURE QUE CE SOIT QUANT AUX DÉFAUTS DÉCOUVERTS APRÈS CETTE PÉRIODE DE QUATRE-VINGT-DIX JOURS. Certains États ou territoires ne permettent pas de limiter la durée d’une garantie ou condition implicite de sorte que la limitation ci-dessus peut ne pas s’appliquer à vous. Tous les suppléments ou toutes les mises à jour relatifs au Logiciel, notamment, les ensembles de services ou les réparations à chaud (le cas échéant) qui vous sont fournis après l’expiration de la période de quatre-vingt-dix jours de la garantie limitée ne sont pas couverts par quelque garantie ou condition que ce soit, expresse, implicite ou en vertu de la loi. LIMITATION DES RECOURS; ABSENCE DE DOMMAGES INDIRECTS OU AUTRES. Votre recours exclusif pour toute violation de la présente garantie limitée est décrit ci-après. Sauf pour tout remboursement au choix du Fabricant et dans la mesure maximale permise par le droit applicable, même si tout recours n’atteint pas son but essentiel, VOUS N’AVEZ DROIT À AUCUNS DOMMAGES, NOTAMMENT DES DOMMAGES INDIRECTS. Les termes de la clause « Exclusion des dommages accessoires, indirects et de certains autres dommages » sont également intégrés à la présente garantie limitée. Certains États ou territoires ne permettent pas l’exclusion ou la limitation des dommages indirects ou accessoires de sorte que la limitation ou l’exclusion ci-dessus peut ne pas s’appliquer à vous. La présente garantie limitée vous donne des droits légaux spécifiques. Vous pouvez avoir d’autres droits qui peuvent varier d’un territoire ou d’un État à un autre. VOTRE RECOURS EXCLUSIF. La seule responsabilité du Fabricant et de ses fournisseurs (y compris Microsoft Licensing, GP, Microsoft Ireland Operations Limited, Microsoft (China) Co. Limited (« MS ») Microsoft Corporation (y compris leurs filiales) et leurs fournisseurs respectifs) et votre recours exclusif pour toute violation de la présente garantie limitée ou pour toute autre violation du présent contrat ou 05/14/04 57777v3 XP Pro SP2 OEM EULA �pour toute autre responsabilité relative au Logiciel seront, selon le choix du Fabricant exercé de temps à autre sous réserve du droit applicable, a) le remboursement du prix payé, le cas échéant, pour le(s) produit(s) conformément aux politiques de retour du Fabricant, ou b) la réparation ou le remplacement du Logiciel qui ne respecte pas la présente garantie limitée et qui est retourné au Fabricant avec le Certificat d’authenticité et une copie de votre reçu à l’adresse spécifiée par le Fabricant. Vous recevrez la compensation choisie par le Fabricant, sans frais, sauf que vous êtes responsable pour toutes dépenses telles que spécifiées dans la documentation du Fabricant concernant les recours en cas de garantie. La présente garantie limitée est nulle si la défectuosité du Logiciel est causée par un accident, un usage abusif, une mauvaise application, un usage anormal ou un virus. Tout Logiciel de remplacement sera garanti pour le reste de la période initiale de la garantie ou pendant trente (30) jours, selon la plus longue entre ces deux périodes, et le Fabricant utilisera des efforts commercialement raisonnables pour vous fournir la compensation choisie dans un délai commercialement raisonnable après que vous vous soyez conformé aux procédures du Fabricant concernant les recours en cas de garantie. DÉNI DE GARANTIES. La garantie limitée qui apparaît ci-dessus constitue la seule garantie expresse qui vous est donnée et remplace toutes autres garanties expresses ou obligations similaires (s’il en est) créées par une publicité, un document, un emballage ou une autre communication. Sauf en ce qui a trait à la garantie limitée et dans la mesure maximale permise par le droit applicable, le Fabricant et ses fournisseurs (y compris MS, Microsoft Corporation (y compris leurs filiales) et leurs fournisseurs respectifs) fournissent le Logiciel et les services de soutien technique (le cas échéant) TELS QUELS ET AVEC TOUS LES DÉFAUTS et par les présentes ils dénient toutes autres garanties et conditions, expresses, implicites ou en vertu de la loi, notamment, mais sans limitation, (le cas échéant) les garanties, devoirs ou conditions implicites de qualité marchande, d’adaptation à une fin particulière, de fiabilité ou de disponibilité, d’exactitude ou d’exhaustivité des réponses, des résultats, des efforts déployés selon les règles de l’art, d’absence de virus et d’absence de négligence, le tout à l’égard du Logiciel et de la prestation ou de l’omission de la prestation des services de soutien technique ou autres services, renseignements, logiciels et contenu qui s’y rapporte grâce au Logiciel ou provenant autrement de l’utilisation du Logiciel. PAR AILLEURS, IL N’Y A AUCUNE GARANTIE OU CONDITION QUANT AU TITRE DE PROPRIÉTÉ, À LA JOUISSANCE OU À LA POSSESSION PAISIBLE, À LA CONCORDANCE À UNE DESCRIPTION NI QUANT À UNE ABSENCE DE CONTREFAÇON CONCERNANT LE LOGICIEL. EXCLUSION DES DOMMAGES ACCESSOIRES, INDIRECTS ET DE CERTAINS AUTRES DOMMAGES. DANS LA MESURE MAXIMALE PERMISE PAR LE DROIT APPLICABLE, EN AUCUN CAS LE FABRICANT OU SES FOURNISSEURS (Y COMPRIS MS, MICROSOFT CORPORATION (Y COMPRIS LEURS FILIALES) ET LEURS FOURNISSEURS RESPECTIFS) NE SERONT RESPONSABLES DES DOMMAGES SPÉCIAUX, INCIDENTS, PUNITIFS, INDIRECTS OU ACCESSOIRES DE QUELQUE NATURE QUE CE SOIT (Y COMPRIS, MAIS SANS LIMITATION, LES DOMMAGES POUR PERTE DE PROFIT OU POUR PERTE DE RENSEIGNEMENTS, CONFIDENTIELS OU AUTRES, POUR L’INTERRUPTION DES ACTIVITÉS, POUR BLESSURES CORPORELLES, VIOLATION DE LA VIE PRIVÉE, OMISSION DE REMPLIR TOUT DEVOIR DE BONNE FOI OU DE SOIN RAISONNABLE, POUR NÉGLIGENCE OU POUR TOUTE AUTRE PERTE PÉCUNIAIRE OU AUTRE PERTE DE QUELQUE NATURE QUE CE SOIT) SE RAPPORTANT DE QUELQUE MANIÈRE QUE CE SOIT À L’UTILISATION DU LOGICIEL OU À L’INCAPACITÉ DE S’EN SERVIR, À LA FOURNITURE OU À L’OMISSION DE FOURNIR DES SERVICES DE SOUTIEN TECHNIQUE OU AUTRES SERVICES, DES RENSEIGNEMENTS, LOGICIELS ET CONTENU QUI S’Y RAPPORTE GRÂCE AU LOGICIEL OU AUTREMENT EN VERTU DES TERMES DE TOUTE DISPOSITION DU PRÉSENT CONTRAT OU RELATIVEMENT À UNE TELLE DISPOSITION, MÊME EN CAS DE FAUTE, DE DÉLIT CIVIL (Y COMPRIS LA NÉGLIGENCE), DE FAUSSE REPRÉSENTATION, DE RESPONSABILITÉ STRICTE, DE VIOLATION DE CONTRAT OU DE VIOLATION DE GARANTIE DU FABRICANT OU DE TOUT FOURNISSEUR (Y COMPRIS MS, MICROSOFT CORPORATION (Y COMPRIS LEURS FILIALES) ET LEURS FOURNISSEURS RESPECTIFS), ET CE, MÊME SI LE FABRICANT OU TOUT FOURNISSEUR (Y COMPRIS MS, MICROSOFT CORPORATION (Y COMPRIS LEURS FILIALES) ET LEURS FOURNISSEURS RESPECTIFS) A ÉTÉ AVISÉ DE LA POSSIBILITÉ DE TELS DOMMAGES. 05/14/04 57777v3 XP Pro SP2 OEM EULA �LIMITATION DE RESPONSABILITÉ ET RECOURS. MALGRÉ LES DOMMAGES QUE VOUS PUISSIEZ SUBIR POUR QUELQUE MOTIF QUE CE SOIT (Y COMPRIS NOTAMMENT, MAIS SANS LIMITATION, TOUS LES DOMMAGES SUSMENTIONNÉS ET TOUS LES DOMMAGES DIRECTS OU GÉNÉRAUX, CONTRACTUELS OU AUTRES), LA SEULE RESPONSABILITÉ DU FABRICANT ET DE L’UN DE SES FOURNISSEURS (Y COMPRIS MS, MICROSOFT CORPORATION (Y COMPRIS LEURS FILIALES) ET LEURS FOURNISSEURS RESPECTIFS) AUX TERMES DE TOUTE DISPOSITION DU PRÉSENT CONTRAT ET VOTRE RECOURS EXCLUSIF EN VERTU DES PRÉSENTES (SAUF EN CE QUI CONCERNE TOUT RECOURS DE RÉPARATION OU DE REMPLACEMENT CHOISI PAR LE FABRICANT À L’ÉGARD DE TOUT MANQUEMENT À LA GARANTIE LIMITÉE) SE LIMITE AU PLUS ÉLEVÉ DES DOMMAGES RÉELS QUE VOUS AVEZ SUBIS EN VOUS FIANT RAISONNABLEMENT SUR LE LOGICIEL JUSQU’À CONCURRENCE DU MONTANT QUE VOUS AVEZ RÉELLEMENT PAYÉ POUR LE LOGICIEL OU 5,00 $US. LES LIMITES, EXCLUSIONS ET DÉNIS QUI PRÉCÈDENT (Y COMPRIS LES CLAUSES CI-DESSUS) S’APPLIQUENT DANS LA MESURE MAXIMALE PERMISE PAR LE DROIT APPLICABLE, MÊME SI TOUT RECOURS N’ATTEINT PAS SON BUT ESSENTIEL. À moins que cela ne soit prohibé par le droit local applicable, le présent contrat est régi par les lois en vigueur dans la province d’Ontario, Canada. En cas de tout différend qui pourrait surgir en vertu des présentes, vous consentez à la juridiction des tribunaux fédéraux et provinciaux siégeant à Toronto, dans la province d’Ontario. The following MANUFACTURER’S GUARANTEE applies to you if you acquired this SOFTWARE in any other country: Statutory rights not affected - The following guarantee is not restricted to any territory and does not affect any statutory rights that you may have from your reseller or from Manufacturer if you acquired the SOFTWARE directly from Manufacturer. If you acquired the SOFTWARE or any support services in Australia, New Zealand or Malaysia, please see the “Consumer rights” section below. The guarantee - The SOFTWARE is designed and offered as general-purpose software, not for any user’s particular purpose. You accept that no SOFTWARE is error free and you are strongly advised to back-up your files regularly. Provided that you have a valid license, Manufacturer guarantees that (a) for a period of ninety (90) days from the date of receipt of your license to use the SOFTWARE or the shortest period permitted by applicable law it will perform substantially in accordance with the materials that accompany the SOFTWARE; and (b) any support services provided by Manufacturer shall be substantially as described in applicable materials provided to you by Manufacturer. In the event that the SOFTWARE fails to comply with this guarantee, Manufacturer will either (a) repair or replace the SOFTWARE or (b) return the amount you paid (if any) for the product(s) in accordance with Manufacturer’s return policies. This guarantee is void if failure of the SOFTWARE results from accident, abuse or misapplication. Any replacement SOFTWARE will be guaranteed for the remainder of the original guarantee period or thirty (30) days, whichever period is longer. You agree that the above guarantee is your sole guarantee in relation to the SOFTWARE and any support services. Exclusion of All Other Terms - To the maximum extent permitted by applicable law and subject to the guarantee above, Manufacturer and its suppliers (including MS, Microsoft Corporation (including its subsidiaries) and their respective suppliers) disclaim all warranties, conditions and other terms, either express or implied (whether by statute, common law, collaterally or otherwise) including but not limited to implied warranties of satisfactory quality and fitness for particular purpose with respect to the SOFTWARE and the written materials that accompany the SOFTWARE. Any implied warranties that cannot be excluded are limited to ninety (90) days or to the shortest period permitted by applicable law, whichever is greater. 05/14/04 57777v3 XP Pro SP2 OEM EULA �Limitation of Liability - To the maximum extent permitted by applicable law and except as provided in the Manufacturer Guarantee, Manufacturer and its suppliers (including MS, Microsoft Corporation, (including its subsidiaries) and their respective suppliers) shall not be liable for any damages whatsoever (including without limitation, damages for loss of business profits, business interruption, loss of business information or other pecuniary loss) arising out of the use or inability to use the SOFTWARE, even if Manufacturer and its suppliers (including MS, Microsoft Corporation, (including its subsidiaries) and their respective suppliers) have been advised of the possibility of such damages. In any case Manufacturer’s and any of its suppliers’ (including MS’, Microsoft Corporation’s (including its subsidiaries’) and their respective suppliers’) entire liability under any provision of this EULA shall be limited to the amount actually paid by you for the SOFTWARE. These limitations do not apply to any liabilities that cannot be excluded or limited by applicable laws. Consumer rights - Consumers in Australia, New Zealand or Malaysia may have the benefit of certain rights and remedies by reason of the Trade Practices Act and similar state and territory laws in Australia, the Consumer Guarantees Act in New Zealand and the Consumer Protection Act in Malaysia in respect of which liability cannot lawfully be modified or excluded. If you acquired the SOFTWARE in New Zealand for the purposes of a business, you confirm that the Consumer Guarantees Act does not apply. If you acquired the SOFTWARE in Australia and if Manufacturer breaches a condition or warranty implied under any law which cannot lawfully be modified or excluded by this agreement then, to the extent permitted by law, Manufacturer’s and any of its suppliers’ (including MS’, Microsoft Corporation’s (including its subsidiaries’) and their respective suppliers’) liability is limited, at Manufacturer’s option, to: (i) in the case of the SOFTWARE: (a) repairing or replacing the SOFTWARE; or (b) the cost of such repair or replacement; and (ii) in the case of support services, if any: (a) re-supply of the services; or (b) the cost of having the services supplied again. EULAID:XPSP2_RM.0_PRO_OEM_EN 05/14/04 57777v3 XP Pro SP2 OEM EULA �
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End-User License Agreement APPIAN MEDICAL SOFTWARE END-USER LICENSE AGREEMENT ATTENTION: YOU MAY NEED TO SCROLL DOWN TO THE END OF THIS EULA BEFORE YOU CAN AGREE TO THE EULA AND CONTINUE WITH THE SOFTWARE INSTALLATION. IMPORTANT: THIS AGREEMENT (or "EULA") IS A LEGAL AGREEMENT BETWEEN THE PERSON, COMPANY, OR ORGANIZATION THAT HAS LICENSED THIS SOFTWARE ("YOU" OR "CUSTOMER") AND APPIAN MEDICAL. BY INSTALLING AND USING THE SOFTWARE, CUSTOMER ACCEPTS THE SOFTWARE AND AGREES TO THE TERMS OF THIS AGREEMENT. READ IT CAREFULLY BEFORE COMPLETING THE INSTALLATION PROCESS AND USING THE SOFTWARE. BY INSTALLING AND/OR USING THE SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE SOFTWARE AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, OR DO NOT HAVE AUTHORITY TO BIND CUSTOMER TO THESE TERMS, THEN DO NOT INSTALL AND/OR USE THE SOFTWARE AND RETURN THE SOFTWARE TO YOUR PLACE OF PURCHASE FOR A FULL REFUND IN ACCORDANCE WITH ITS REFUND POLICIES. THIS EULA SHALL APPLY ONLY TO THE SOFTWARE SUPPLIED BY APPIAN MEDICAL HEREWITH REGARDLESS OF WHETHER OTHER SOFTWARE IS REFERRED TO OR DESCRIBED HEREIN. 1. Definitions (a) "App Version" means any version of the Software licensed from Appian Medical, so identified, for use on cell phones or mobile based platforms, only. (b) "End User Product" means an Output File, which contains the Appian Medical Run-Time, generated by you. Examples of End User Products include the courseware, presentations, demonstration files, interactive multimedia material, interactive entertainment products and the like. (c) "Appian Medical Run-Time" means that portion of the Software required in order for the End User Product to operate on hardware on which the Software itself is not resident. (d) "Not For Resale (NFR) Version" means a version, so identified, of the Software to be used to review and evaluate the Software, only. (e) "Appian Medical" means Appian Medical, Inc. and its licensors, if any. (f) "Output File" means an output file generated by you using the Software. �(g) "Software" means only the Appian Medical software program(s) and third party software programs, in each case, supplied by Appian Medical herewith, and corresponding documentation, associated media, printed materials, and online or electronic documentation. Any updates to such Software which you are entitled to receive and that has been provided to you by Appian Medical shall also mean Software for purposes of this Agreement. (h) "Trial Version" means a version of the Software, so identified, to be used only to review, demonstrate and evaluate the Software for a limited time period. The Trial Version may have limited features, may lack the ability for the end-user to save the end product, and will cease operating after a predetermined amount of time due to an internal mechanism within the Trial Version. 2. License Grants The licenses granted in this Section 2 are subject to the terms and conditions set forth in this EULA: (a) Subject to Section 2(b), you may install and use the Software on a single mobile device. Except as otherwise specifically provided in Section 2(b), a license for the Software may not be shared, installed or used concurrently on different devices. Except solely for purposes of installing the Software on a mobile device as described above, a license for the Software may not be accessed and used via a server or network storage device, including without limitation through Citrix and Citrix-type environments. Subject to the terms and conditions set forth in this EULA, you shall not have more than one installation of the Software on any single device. (b) Portable or Home Mobile device Use for Software (Excluding Software Licenses Acquired under a Volume Discount). Subject to the terms and conditions of this Agreement, in addition to the copy of the Software permitted in Section 2(a), the primary user of the primary mobile device on which the Software is installed may make one other copy of the Software and install it on either a portable mobile device or a mobile device located at his or her home for his or her exclusive use, provided that : (A) the copy of the Software on the portable or home mobile device (i) is not used at the same time as the copy of the Software on the primary mobile device and (ii) is used by the primary user solely as allowed for such version or edition (such as for educational use only), (B) the copy of the Software on the portable or home mobile device is not installed or used after the time such user is no longer the primary user of the primary mobile device on which the Software is installed, and (C) the Software was not licensed under a volume discount. (c) Subject to the terms and conditions of this Agreement, in the event the Software is distributed along with other Appian Medical software products as part of a suite of products (collectively, the "Studio"), the license of the Studio is licensed as a single product and none of the products in the Studio, including the Software, may be separated for installation or use on more than one mobile device. �(d) You may make one copy of the Software in machine-readable form solely for backup purposes. You must reproduce on any such copy all copyright notices and any other proprietary legends on the original copy of the Software. You may not sell or transfer any copy of the Software made for backup purposes. In addition, you may make copies of the End User Product, and the associated Appian Medical Run-Time, and distribute those copies; provided, however, that (i) the Appian Medical Run-Time may not be distributed or used other than as bundled with the Output File as part of the End User Product, and (ii) you shall require each party to whom the End User Product is distributed to agree that no title to, or ownership rights in, the Appian Medical Run-Time are transferred and that the End User Product, including the Appian Medical Run-Time, shall not be reverse compiled or disassembled.. In addition, you may not distribute an End User Product the purpose of which is to replay the courseware, presentations, interactive multimedia material, interactive entertainment products and the like of others. (e) You agree that Appian Medical may audit your use of the Software for compliance with these terms at any time, upon reasonable notice. In the event that such audit reveals any use of the Software by you other than in full compliance with the terms of this Agreement, you shall reimburse Appian Medical for all reasonable expenses related to such audit in addition to any other liabilities you may incur as a result of such non-compliance. (f) Unless otherwise set forth in the documentation relating to such code and/or the Software or in a separate agreement between you and Appian Medical, you may modify the source code form of those portions of such software programs that are identified as sample code, sample application code, or components (each, "Sample Application Code") in the accompanying documentation solely for the purposes of designing, developing and testing websites and website applications developed using Appian Medical software programs; provided, however, you are permitted to copy and distribute the Sample Application Code (modified or unmodified) only if all of the following conditions are met: (1) you distribute the compiled object Sample Application Code with your application; (2) you do not include the Sample Application Code in any product or application designed for website development; and (3) you do not use Appian Medical's name, logos or other Appian Medical trademarks to market your application. You agree to indemnify, hold harmless and defend Appian Medical from and against any loss, damage, claims or lawsuits, including attorney's fees, that arise or result from the use or distribution of your application. (g) Your license rights under this EULA are non-exclusive. (h) Mandatory Product Activation. The license rights granted under this Agreement may be limited to the first thirty (30) days after you first install the Software unless you supply information required to activate your licensed copy in the manner described during the setup sequence of the Software. You may need to activate the Software through the use of the Internet or telephone; toll charges may apply. There are technological measures in this Software that are designed to prevent unlicensed or illegal use of the Software. You agree that Appian Medical may use those measures and you agree to follow any requirements regarding such technological measures. You may also need to reactivate the Software if you modify your mobile device hardware, alter the Software, or install the Software on another mobile device. Product activation is based on the exchange of information between your mobile device and Appian Medical. None �of this information contains personally identifiable information nor can they be used to identify any personal information about you or any characteristics of your mobile device configuration. (i) You agree to hold harmless and indemnify Appian Medical, its directors, management, shareholders and employees in relationship to the use of this software. (j) You also agree that the use of this software is not intended to replace or obviate the need for professional medical care or advice by a Physician, healthcare providers or other licensed health care practitioners and that its use is not intended to replace in any manner the need of the aforementioned healthcare providers. 3. License Restrictions (a) Other than as set forth in Section 2, you may not make or distribute copies of the Software, or electronically transfer the Software from one mobile device to another or over a network. (b) You may not alter, merge, modify, adapt or translate the Software, or decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form. (c) Unless otherwise provided herein, you may not rent, lease, or sublicense the Software. (d) Other than with respect to a Trial Version or a Not For Resale Version of the Software, you may permanently transfer all of your rights under this EULA only as part of a sale or transfer, provided you retain no copies, you transfer all of the Software (including all component parts, the media and printed materials, any upgrades, all platforms, this EULA, the serial numbers, and, if applicable, all other software products provided together with the Software), and the recipient agrees to the terms of this EULA. If the copy of the Software is licensed as part of the whole Studio (as defined above), the Software shall be transferred only with and as part of the sale or transfer of the whole Studio, and not separately. You may retain no copies of the Software. You may not sell or transfer any Software purchased under a volume discount. You may not sell or transfer any Trial Version or Not For Resale Version of the Software. If the Software is an Education Version, You may not sell or transfer any such Software to anyone except to another entity or person who is otherwise qualified to purchase Education Versions of the Software. (e) Unless otherwise provided herein, you may not modify the Software or create derivative works based upon the Software. (f) Education Versions may not be used for, or distributed to any party for, any commercial purpose. (g) Unless otherwise provided herein, you shall not (A) in the aggregate, install or use more than one copy of the Trial Version of the Software, (B) download the Trial Version of the Software under more than one username, (C) alter the contents of a hard drive or mobile device system to enable the use of the Trial Version of the Software for an aggregate period in excess of the trial period for one license to such Trial Version, (D) disclose the results of software performance benchmarks obtained using the Trial Version to any third party without Appian Medical's prior �written consent, or (E) use the Trial Version of the Software for a purpose other than the sole purpose of determining whether to purchase a license to a commercial or education version of the software; provided, however, notwithstanding the foregoing, you are strictly prohibited from installing or using the Trial Version of the Software for any commercial training purpose. (h) You may only use the Not for Resale Version of the Software to review and evaluate the Software. (i) You may not export the Software into any country prohibited by the United States Export Administration Act and the regulations thereunder. (j) You may receive the Software in more than one medium but you shall only install or use one medium. Regardless of the number of media you receive, you may use only the medium that is appropriate for the server or mobile device on which the Software is to be installed. (k) You may receive the Software in more than one platform but you shall only install or use one platform. (l) You shall not use the Software to develop any product having the same primary function as the Software. (m) In the event that you fail to comply with this EULA, Appian Medical may terminate the license and you must destroy all copies of the Software (with all other rights of both parties and all other provisions of this EULA surviving any such termination). (n) Notwithstanding anything herein to the contrary, you may not (A) install SnorTrak App on a server for multiple user access or use, or (B) modify or replace the SnorTrack App viewer user interface that displays FlashPaper documents. (o) Your rights to use any Appian Medical SnorTrak application is restricted to uses outlined by this agreement. Unless and except as provided therein, you shall have no rights to multi-use or distribute such software. (p) You may receive the Software in more than one language but you shall only install or use one language version. 4. Upgrades Except if the Software is an Education Version: If this copy of the Software is an upgrade from an earlier version of the Software, you must possess a valid full license to a copy of an earlier version of the Software used to upgrade to this upgrade copy in order to install and/or use this upgrade copy. You may continue to use each earlier version copy of the Software to which this upgrade copy relates on your mobile device after you receive this upgrade copy, provided that, (i) the upgrade copy and the earlier version copy are installed and/or used on the same mobile device only and the earlier version copy is not �installed and/or used on any other mobile device; (ii) you comply with the terms and conditions of the earlier version's end user license agreement with respect to the installation and/or use of such earlier version copy; (iii) the earlier version copy or any copies thereof on any mobile device are not transferred to another mobile device unless all copies of this upgrade copy on such mobile device are also transferred to such other mobile device; (iv) the earlier version copy or any copies thereof are not transferred to any other party unless you also transfer this upgrade copy and any copies thereof to such other party in accordance with Section 3; and (v) you acknowledge and agree that any obligation Appian Medical may have to support and/or offer support for the earlier version of the Software may be ended upon availability of the upgrade. If the Software is an Education Version: If this copy of the Software is an upgrade from an earlier version of the Software, you must possess a valid full license to a copy of an earlier version of the Software used to upgrade to this upgrade copy in order to install and/or use this upgrade copy, and the upgrade copy is provided to you on a license exchange basis. You agree by your installation and use of such copy of the Software to voluntarily terminate your earlier EULA and uninstall, destroy and cease using the earlier version of the Software or transfer it to another person or entity. 5. Prior Same Version License and Exchanges If this copy of the Software is licensed as part of the Studio (as defined above), and you have a prior license to the same version of the Software, and the Studio was licensed to you with a discount based, in whole or in part, on your prior license to the same version, the Software is provided to you on a license exchange basis. You agree by your installation and use of this copy of the Software to voluntarily terminate your EULA with respect to such prior license and that you will not continue to install or use such prior license of the Software or transfer it to another person or entity. If this copy of the Software ("New License") has been acquired via a permitted exchange (other than in connection with an upgrade) with a different type of Software license previously acquired by you ("Old License") (e.g. Education Version license for a Commercial Version license, where permitted), you must possess a valid full license to a copy of such Old License in order to install and/or use this New License, and the New License is provided to you on a license exchange basis. You agree by your installation and/or use of such copy of the New License to voluntarily terminate your earlier EULA to the Old License and uninstall, destroy and cease using the Old License. You agree to not transfer the Old License to another person or entity. 6. Ownership The foregoing license gives you limited license to use the Software. Appian Medical and its suppliers retain all right, title and interest, including all copyright and intellectual property rights, in and to, the Software (as an independent work and as an underlying work serving as a basis for any application you may develop), and all copies thereof. All rights not specifically granted in this EULA, including Federal and International Copyrights, are reserved by Appian Medical and its suppliers. �7. LIMITED WARRANTY AND DISCLAIMER (a) Except with respect to any Sample Application Code, Trial Version and Not For Resale Version of the Software, Appian Medical warrants that, for a period of ninety (90) days from the date of delivery (as evidenced by a copy of your receipt): (i) when used with a recommended hardware configuration, the Software will perform in substantial conformance with the documentation supplied with the Software; and (ii) the physical media on which the Software is furnished will be free from defects in materials and workmanship under normal use. (b) APPIAN MEDICAL PROVIDES NO REMEDIES OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, FOR ANY SAMPLE APPLICATION CODE, TRIAL VERSION AND THE NOT FOR RESALE VERSION OF THE SOFTWARE. ANY SAMPLE APPLICATION CODE, TRIAL VERSION AND THE NOT FOR RESALE VERSION OF THE SOFTWARE ARE PROVIDED "AS IS". (c) EXCEPT AS SET FORTH IN THE FOREGOING LIMITED WARRANTY WITH RESPECT TO SOFTWARE OTHER THAN ANY SAMPLE APPLICATION CODE, TRIAL VERSION AND NOT FOR RESALE VERSION, APPIAN MEDICAL AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALSO, THERE IS NO WARRANTY OF NON-INFRINGEMENT AND TITLE OR QUIET ENJOYMENT. APPIAN MEDICAL DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. NO RIGHTS OR REMEDIES REFERRED TO IN ARTICLE 2A OF THE UCC WILL BE CONFERRED ON YOU UNLESS EXPRESSLY GRANTED HEREIN. THE SOFTWARE IS NOT DESIGNED, INTENDED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION, THE DESIGN, CONSTRUCTION, MAINTENANCE OR OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS. APPIAN MEDICAL SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES. (d) IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SOFTWARE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY. (e) NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY APPIAN MEDICAL, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN. (f) ( USA only) SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS �WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE. 8. Exclusive Remedy Your exclusive remedy under the preceding is to return the Software to the place you acquired it, with a copy of your receipt and a description of the problem. Provided that any non-compliance with the above warranty is reported in writing to Appian Medical no more than ninety (90) days following delivery to you, Appian Medical will use reasonable commercial efforts to supply you with a replacement copy of the Software that substantially conforms to the documentation, provide a replacement for defective media, or refund to you your purchase price for the Software, at its option. Appian Medical shall have no responsibility if the Software has been altered in any way, if the media has been damaged by misuse, accident, abuse, modification or misapplication, or if the failure arises out of use of the Software with other than a recommended hardware configuration. Any such misuse, accident, abuse, modification or misapplication of the Software will void the warranty above. THIS REMEDY IS THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO YOU FOR BREACH OF EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SOFTWARE AND RELATED DOCUMENTATION. 9. LIMITATION OF LIABILITY (a) NEITHER APPIAN MEDICAL NOR ITS SUPPLIERS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SOFTWARE AND BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF APPIAN MEDICAL OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. (b) APPIAN MEDICAL'S TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE GREATER OF $500 OR THE AMOUNT PAID BY YOU FOR THE SOFTWARE THAT CAUSED SUCH DAMAGE. (c) (USA only) SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE. �(d) THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO THE WARRANTIES AND DISCLAIMERS ABOVE AND ALL OTHER ASPECTS OF THIS EULA. (e) APPIAN MEDICAL MAKES NO CLAIMS RELATED TO THE USE OF THE SOFTWARE SPECIFICALLY RELATED TO THE CARE OF DISEASE. NO USE OF THIS SOFTWARE IS INTENDED TO REPLACE OR OBVIATE THE NEED FOR PROFESSIONAL CARE BY PHYSICIANS, HEALTHCARE PROFESSIONALS OR OTHER LICENSED HEALTH CARE PROVIDERS. 10. Basis of Bargain The Limited Warranty and Disclaimer, Exclusive Remedies and Limited Liability set forth above are fundamental elements of the basis of the agreement between Appian Medical and you. Appian Medical would not be able to provide the Software on an economic basis without such limitations. Such Limited Warranty and Disclaimer, Exclusive Remedies and Limited Liability inure to the benefit of Appian Medical's licensors. 11. U.S. GOVERNMENT RESTRICTED RIGHTS LEGEND This Software and the documentation are provided with "RESTRICTED RIGHTS" applicable to private and public licenses alike. Without limiting the foregoing, use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in this EULA and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013 (c)(1)(ii)(OCT 1988), FAR 12.212(a)(1995), FAR 52.227-19, or FAR 52.227-14, as applicable. Manufacturer: Appian Medical, Inc. 12. (Outside of the USA ) Consumer End Users Only The limitations or exclusions of warranties and liability contained in this EULA do not affect or prejudice the statutory rights of a consumer, i.e., a person acquiring goods otherwise than in the course of a business. The limitations or exclusions of warranties, remedies or liability contained in this EULA shall apply to you only to the extent such limitations or exclusions are permitted under the laws of the jurisdiction where you are located. 13. Third Party Software The Software may contain third party software which requires notices and/or additional terms and conditions. Such required third party software notices and/or additional terms and conditions are available upon request from [email protected] and are made a part of and incorporated by reference into this EULA. By accepting this EULA, you are also accepting the additional terms and conditions, if any, set forth therein. 14. General �This EULA shall be governed by the internal laws of the State of Maryland, without giving effect to principles of conflict of laws. You hereby consent to the exclusive jurisdiction and venue of the state courts sitting in Anne Arundel County, Maryland or the federal courts in Anne Arundel County to resolve any disputes arising under this EULA. In each case this EULA shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods. This EULA contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written. You agree that any varying or additional terms contained in any purchase order or other written notification or document issued by you in relation to the Software licensed hereunder shall be of no effect. The failure or delay of Appian Medical to exercise any of its rights under this EULA or upon any breach of this EULA shall not be deemed a waiver of those rights or of the breach. No Appian Medical dealer, agent or employee is authorized to make any amendment to this EULA unless such amendment is in writing and signed by a duly authorized representative of Appian Medical. If any provision of this EULA shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this EULA will remain in full force and effect. All questions concerning this EULA shall be directed to: Appian Medical, Inc., [email protected], Attention: General Counsel. Appian Medical and other trademarks contained in the Software are trademarks or registered trademarks of Appian Medical, Inc. in the United States and/or other countries. Third party trademarks, trade names, product names and logos may be the trademarks or registered trademarks of their respective owners. You may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Software. This EULA does not authorize you to use Appian Medical's or its licensors' names or any of their respective trademarks. Â �
nw/130.txt
ZIMBRA CONSUMER EDITION END USER LICENSE AGREEMENT IMPORTANT-READ CAREFULLY: THE TERMS OF THIS END USER LICENSE AGREEMENT WILL GOVERN YOUR USE OF THE SOFTWARE. BY DOWNLOADING, INSTALLING, OR USING THE SOFTWARE, YOU (THE “SERVICE PROVIDER,” AN INDIVIDUAL OR LEGAL ENTITY PROVIDING CONNECTIVITY TO THE INTERNET) AGREE TO BE BOUND BY THE TERMS OF THIS END USER LICENSE AGREEMENT (“EULA”). IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MUST NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE. EVALUATION LICENSE. If Service Provider is licensing the Software for evaluation purposes, Service Provider’s use of the Software is only permitted in a non-production environment and for the period limited by the License Key. Notwithstanding any other provision in this EULA, an Evaluation License of the Software is provided “AS-IS” without indemnification, support, or warranty of any kind, expressed or implied. 1. DEFINITIONS 1.1 “Affiliate” means, with respect to a party, an entity that is directly or indirectly controlled by or is under common control with such party, where “control” means an ownership, voting, or similar interest representing fifty percent (50%) or more of the total interests then outstanding of the relevant entity (but only as long as such person or entity meets these requirements). 1.2 "Archive Mailbox" means a read-only copy of a particular named user's Consumer Edition Mailbox for legal intercept or litigation discovery. All in-bound and out-bound communications associated with that named user's Consumer Edition Mailbox are stored and indexed (for appropriate search including cross Consumer Edition Mailbox search) within the Archive Mailbox, subject to designated retention policies. 1.3 “Consumer” means a person who agrees to pay a fee to Service Provider for access to the Internet for personal, family, or household purposes, and who does not resell access. 1.4 "Consumer Edition Mailboxes" are mailboxes offered by Zimbra under that designation; they may only be used by an individual consumer. Consumer Edition Mailboxes are limited to use within Internet Domain names owned (1) by the Service Provider or a sublicensee of the Service Provider, or (2) by the Consumer him or herself. Consumer Edition Mailboxes may include the following applications: email (including POP, IMAP, and Webmail); address book; personal calendar (which does not include free-busy/group scheduling, delegation, locations, and resources); personal documents; and Zimbra Mobile (only for Consumer with Mobile Edition). Consumer Edition ZIMBRA NE CONSUMER EDITION EULA – 01.14 – Page 1 Mailboxes do not include or support attachment indexing & rendering; Zimbra Connector for Outlook or Zimbra Connector for Apple. 1.5 “Documentation” means the documentation that is generally provided to Service Provider by Zimbra with the Software, as revised by Zimbra from time to time, and which may include end-user manuals, operation instructions, installation guides, release notes, and online help files regarding the use of the Software. 1.6 “Hosting Service” means a service provided to Consumers, whereby the Consumer rents access to and use of the Software from Service Provider on a usage basis. 1.7 “Intellectual Property Rights” means any patent rights, copyrights, trade secrets, trade names, service marks, moral rights, know-how, and any other similar rights or intangible assets recognized under any laws or international conventions, and in any country or jurisdiction in the world, as intellectual creations to which rights of ownership accrue, and all registrations, applications, disclosures, renewals, extensions, continuations or reissues of the forgoing now or hereafter in force. 1.8 “License” means a license granted under Section 2.1 of this EULA. 1.9 “License Key” means a serial number or file that enables Service Provider to activate and use the Software. 1.10 “License Term” means the duration of a License as specified in the Order. �ZIMBRA CONSUMER EDITION END USER LICENSE AGREEMENT 1.11 “License Type” means the type of License applicable to the Software, as more fully described in the Order. 1.12 “Open Source Software” or “OSS” means software components that are licensed under a license approved by the Open Source Initiative (“OSI”) or similar open source or freeware license and are embedded in the delivered Software. 1.13 “Order” means a purchase order, enterprise license agreement, or other ordering document issued by Service Provider or a Zimbra-authorized reseller that references and incorporates this EULA and is accepted by Zimbra as set forth in Section 4. 1.14 “Software” means software products that are licensed to Service Provider under this EULA, including, but not limited to, any related components purchased or provided with the Software, Documentation, and any maintenance releases. 1.15 “Territory” means the country or countries in which Service Provider has been invoiced; provided, however, that if Service Provider has been invoiced within any of the European Economic Area member states, Service Provider may deploy the corresponding Software throughout the European Economic Area. 1.16 “Third Party Agent” means a third party delivering information technology services to Service Provider pursuant to a written contract with Service Provider. 1.17 “Zimbra” means Zimbra Inc., a Texas corporation. 2. LICENSE GRANT 2.1 Hosted Licenses. Subject to the terms of this EULA and provided that Service Provider fully complies with all the terms of this EULA, Zimbra grants to Service Provider a non-exclusive, non-transferrable, limited term license during the License Term of this EULA to provide a Hosting Service for the Software in the Territory by redistributing only the executable clientside portions of the Software (the “Client Components”) to: (a) Consumers of the Hosted Service provided by Service Provider; or (b) Consumers that provide a Hosting Service (“Consumer Hosters”), but any such use ZIMBRA NE CONSUMER EDITION EULA – 01.14 – Page 2 must be provided solely in accordance with the terms of this EULA, and all such Consumer Hosters must be bound by the terms and conditions at least as restrictive and protective of Zimbra in all regards as the terms of this EULA. The License to the Software is limited to the quantities specified in each applicable Order. Zimbra Collaboration Consumer Edition (and variants) can be deployed for Consumers in a single shared domain and in vanity domains only (i.e. not a Service Provider business contract). Zimbra Collaboration Standard and Professional can be deployed in a business domain (i.e. purchased under a Service Provider business contract), in which case, the Zimbra Network Edition End User License Agreement would control. If the Internet domain name is owned by the Consumer (often termed “vanity domains”), then there may be at most eight (8) Consumer Edition Mailboxes deployed within that Internet domain name and all of its subdomains. 2.2 Restrictions. (a) Service Provider will ensure that all Consumers will be enforceably bound for Zimbra’s benefit to the provisions of this EULA; (b) Service Provider will not engage in any advertising, promotional, or sales activity direct to (or reasonably expected to be effective in) any geographic area or market outside of the Territory, and Service Provider will use good faith efforts (to the extent consistent with applicable law) to ensure that each Consumer of a Consumer Edition Mailbox is primarily located in, and will use the Software solely within the Territory; (c) neither Service Provider nor its Affiliates will engage in selling, hosting, or providing paid support or integration services related to Zimbra Collaboration Open Source Edition or any other Zimbra open source product except to provide paid services related to Zimbra Collaboration Open Source Edition if such services are limited to supporting organizations migrating 100% of their Zimbra Open Source Edition end users to a Zimbra commercial license; and (d) Service Provider may not sublicense its right under this EULA without Zimbra’s prior written approval. 2.2 Permitted Copies. Service Provider may make one copy of the Software for archival purposes only. The copy will: (a) be kept within Service Provider’s possession or control; (b) include all titles, trademarks, and copyright and restricted rights notices included in �ZIMBRA CONSUMER EDITION END USER LICENSE AGREEMENT the original; and (c) be subject to this EULA. Service Provider may not otherwise copy the Software without Zimbra’s prior written consent. 2.4 Benchmarking. Service Provider may use the Software to conduct internal performance testing and benchmarking studies. Service Provider may only publish or otherwise distribute the results of the studies to third parties upon Zimbra’s written approval. 2.5 Open Source Software. Notwithstanding anything in this EULA to the contrary, Open Source Software is licensed to Service Provider under such OSS’s own applicable license terms, which can be found in the open_source_licenses.txt file, the Documentation, or as applicable, the corresponding source files for the Software at http://www.zimbra.com/downloads/osdownloads.html. Open Source Software provides sufficient right to use Software according to Section 2, and may contain additional rights benefiting Service Provider. The OSS license terms will take precedence over this EULA to the extent that this EULA imposes greater restrictions on Service Provider than the applicable OSS license terms. 3. RESTRICTIONS; OWNERSHIP 3.1 Restrictions. Service Provider acknowledges that the Software and the structure, organization, and source code of the Software constitute Zimbra’s valuable trade secrets and property. Accordingly, except as expressly permitted in Section 2 or as otherwise authorized by Zimbra in writing, Service Provider will not and will not permit any third party to: (a) sell, lease, license, distribute, sublicense, or otherwise transfer in whole or in part the Software or Documentation to any third party; (b) decompile, disassemble, reverse engineer, or otherwise attempt to derive source code from the Software, in whole or in part; (c) copy the Software, except for archival purposes, as set out in Section 2.2; (d) create, develop, license, install, use, or deploy any software or services to circumvent, enable, modify, or provide access, permissions, or rights which violate the technical restrictions of the Software as described in this EULA; (e) translate, modify, or create derivative works based upon the Software; (f) permit any use of or access to the Software by any third party; or (g) remove any ZIMBRA NE CONSUMER EDITION EULA – 01.14 – Page 3 product identification, proprietary, copyright, or other notices contained in the Software. 3.2 Decompilation. Notwithstanding the foregoing, decompiling the Software is permitted to the extent the laws of the Territory give Service Provider the express right to do so to obtain information necessary to render the Software interoperable with other software; provided, however, Service Provider must first request such information from Zimbra, provide all reasonably requested information to allow Zimbra to assess Service Provider’s claim, and Zimbra may, in its discretion, either provide interoperability information to Service Provider, impose reasonable conditions, including a reasonable fee, on the use of the Software, or offer to provide alternatives to ensure that Zimbra’s proprietary rights in the Software are protected and to reduce any adverse impact on Zimbra’s proprietary rights. 3.3 Ownership. The Software and Documentation, all copies and portions thereof, and all improvements, enhancements, modifications, and derivative works thereof, and all related Intellectual Property Rights, are and will remain the sole and exclusive property of Zimbra. Service Provider’s rights to use the Software and Documentation will be limited to those expressly granted in this EULA and any applicable Order. No other rights with respect to the Software or any related Intellectual Property Rights are implied. Service Provider is not authorized to use (and will not permit any third party to use) the Software, Documentation, or any portion thereof except as expressly authorized by this EULA or the applicable Order. 4. ORDER Service Provider’s Order is subject to this EULA. No Orders are binding on Zimbra until accepted by Zimbra. Orders for Software are deemed to be accepted upon Zimbra’s delivery of the Software included in such Order. Orders issued to Zimbra do not have to be signed to be valid and enforceable. 5. AUDIT RIGHTS 5.1 Records. Service Provider will, during the License Term for any Software licenses acquired under this EULA (and for a period of two (2) years from the �ZIMBRA CONSUMER EDITION END USER LICENSE AGREEMENT expiration of the applicable License Term), maintain accurate records of Service Provider’s use of the Software sufficient to demonstrate Service Provider’s compliance with the terms of this EULA and all Orders. 5.2 Audit Rights. During the period in which the Service Provider is obligated to maintain such records, Zimbra, or its third-party auditor, may, upon reasonable notice to Service Provider, audit such records to verify that Service Provider have: (a) used the Software solely in the manner authorized by this EULA; (b) paid all applicable license fees; and (c) otherwise complied with the terms of this EULA and all Orders. Zimbra may conduct no more than one (1) audit in any twelve (12) month period. Audits will be conducted during normal business hours and Zimbra will use commercially reasonable efforts to minimize the disruption of Service Provider’s normal business activities. Zimbra, and any third-party auditor, will not have physical access to Service Provider’s computing devices in connection with any such audit, without Service Provider’s prior written consent. Service Provider will reasonably cooperate with Zimbra and/or its third-party auditor and will promptly pay directly to Zimbra any underpayments revealed by such audit. Service Provider will promptly reimburse Zimbra for all reasonable costs and expenses incurred by Zimbra for such audit if: (i) such audit reveals an underpayment by Service Provider of more than five percent (5%) of the fees payable by Service Provider to Zimbra for the period audited, or (ii) such audit reveals Service Provider have materially failed to maintain accurate records of Service Provider’s use of the Software. 6. SUPPORT SERVICES Service Provider has no rights to any updates, upgrades, or extensions or enhancements to the Software developed by Zimbra unless you separately purchase Zimbra support services. 7. WARRANTIES 7.1 Software Warranty. Zimbra warrants to Service Provider that the Software will, for a period of thirty (30) days following delivery (“Warranty Period”), substantially conform to the applicable Documentation, provided that the Software (a) has been properly ZIMBRA NE CONSUMER EDITION EULA – 01.14 – Page 4 installed and used at all times in accordance with the applicable Documentation; and (b) has not been modified or added to by persons other than Zimbra. Zimbra will, at its own expense and as its sole obligation and Service Provider’s exclusive remedy for any breach of the foregoing warranty, either replace the applicable Software or correct any reproducible error in the Software reported to Zimbra by Service Provider in writing during the Warranty Period. If Zimbra determines that it cannot correct the error or replace the Software, Zimbra will refund to Service Provider all License fees actually paid by Service Provider, in which case the License for the applicable Software and Service Provider’s right to use such Software will terminate. 7.2 Disclaimer of Warranties. THE EXPRESS WARRANTY IN SECTION 7.1 ABOVE IS IN LIEU OF AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ZIMBRA AND ITS AFFILIATES DISCLAIM, ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE REGARDING OR RELATING TO THE SOFTWARE, THE DOCUMENTATION, OR ANY MATERIALS FURNISHED OR PROVIDED TO YOU UNDER THIS EULA. ZIMBRA AND ITS AFFILIATES DO NOT WARRANT THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED OR THAT IT WILL BE FREE FROM DEFECTS OR THAT THE SOFTWARE WILL MEET (OR IS DESIGNED TO MEET) YOUR BUSINESS REQUIREMENTS. 8. INTELLECTUAL PROPERTY INDEMNIFICATION 8.1 Indemnification. Zimbra will defend Service Provider against any third party claim that Service Provider’s use of the Software, as authorized under this EULA, infringes any patent, copyright, or trademark of a third party in the: (a) the United States and Canada; (b) the European Economic Area; (c) Australia; (d) New Zealand; or (e) Japan (“Infringement Claim”), and indemnify Service Provider from the resulting costs and damages awarded against Service Provider to the third party making the Infringement Claim; provided that, as conditions of Zimbra’s obligation to defend and pay, Service Provider: (a) notify Zimbra in writing of any Infringement Claim within thirty (30) days of notice of �ZIMBRA CONSUMER EDITION END USER LICENSE AGREEMENT the Infringement Claim; (b) give Zimbra sole control of the defense of any Infringement Claim and any related negotiations or settlement; and (c) give Zimbra the information and assistance necessary to settle or defend the Infringement Claim. Should the Software become, or in Zimbra’s opinion be likely to become, the subject of an Infringement Claim, Zimbra will, at Zimbra’s option either: (i) replace or modify the affected Software to make it non-infringing; (ii) procure for Service Provider the rights to continue using the Software; (iii) replace the Software or affect products with other comparable software and/or products; or (iv) terminate Service Provider’s rights to the affected Software and discontinue the related support services, and, upon Service Provider’s certified deletion of the affected Software, refund: (a) the fees paid by Service Provider for the License to the affected Software, less straight-line depreciation over a three (3) year useful life beginning on the date such Software was delivered; and (b) any pre-paid service fee attributable to related support services to be delivered after the date such service is stopped. Nothing in this Section 8.1 will limit Zimbra’s obligation under Section 8.1 to defend and indemnify Service Provider, provided that Service Provider replace the allegedly infringing Software upon Zimbra’s making alternate Software available to Service Provider and/or Service Provider discontinue using the allegedly infringing Software upon receiving Zimbra’s notice terminating the affected License. 8.2 Exclusions. Zimbra’s obligations under Section 8.1 do not apply to any Infringement Claim arising from the: (a) modifications to the Software made by Service Provider or any party other than Zimbra or Zimbra’s authorized representative; (b) use of other than the current version of the Software, if the infringement would have been avoided by use of the current version; (c) modification of the Software by any third party; (d) combination, operation, or use of the Software with materials not furnished by Zimbra; or (e) use of the Software outside the scope of this EULA. 8.3 Limitation. THIS SECTION 8 STATES THE SOLE LIABILITY OF ZIMBRA WITH RESPECT TO ANY INFRINGEMENT BY THE PRODUCTS OF ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK, OR OTHER INTELLECTUAL PROPERTY RIGHT. 9. LIMITATION OF LIABILITY 9.1 Limitation of Liability. TO THE MAXIMUM EXTENT MANDATED BY LAW, IN NO EVENT WILL ZIMBRA AND/OR ITS AND ITS AFFILIATES BE LIABLE ZIMBRA NE CONSUMER EDITION EULA – 01.14 – Page 5 FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOSS OF DATA, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE PRECEDING LIMITATION MAY NOT APPLY TO YOU. ZIMBRA’S AND ITS AND ITS AFFILIATES’ LIABILITY UNDER THIS EULA WILL NOT, IN ANY EVENT, REGARDLESS OF WHETHER THE CLAIM IS BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EXCEED THE LICENSE FEES YOU PAID FOR THE SOFTWARE, IF ANY. THE FOREGOING LIMITATIONS WILL APPLY REGARDLESS OF WHETHER YOU OR ZIMBRA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. 9.2 Further Limitations. Zimbra’s affiliates, subsidiaries, shareholders, employees, officers, and representatives will have no liability of any kind under this EULA and Zimbra’s liability with respect to any third party software embedded in the Software will be subject to Section 9.1. SERVICE PROVIDER MAY NOT BRING A CLAIM UNDER THIS EULA MORE THAN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION ARISES. 10. TERMINATION 10.1 License Term. This EULA will terminate in its entirety upon the termination of the License Term, unless terminated earlier under this Section 10. 10.2 Termination for Breach. Zimbra may terminate this EULA in its entirety effective immediately upon written notice to Service Provider if: (a) Service Provider breach any provision in Section 3; (b) Service Provider fail to pay any portion of the fees under an applicable Order within ten (10) days after receiving written notice from Zimbra that payment is past due; (c) Service Provider breach any other provision of this EULA and don’t not cure the breach within thirty (30) days after receiving written notice thereof from Zimbra; �ZIMBRA CONSUMER EDITION END USER LICENSE AGREEMENT or (d) Service Provider commit a material breach that is not capable of being cured. 10.3 Termination for Insolvency. Zimbra may terminate this EULA in its entirety effective immediately upon written notice to Service Provider if Service Provider: (a) terminate or suspend Service Provider’s business; (b) become insolvent, admit in writing Service Provider’s inability to pay Service Provider’s debts as they mature, make an assignment for the benefit of creditors; or become subject to control of a trustee, receiver or similar authority; or (c) become subject to any bankruptcy or insolvency proceeding. 10.4 Effect of Termination. If Zimbra terminates this EULA under this Section 10: (a) all Licensed rights to all Software granted to Service Provider under this EULA will immediately cease to exist; and (b) Service Provider must promptly discontinue all use of all Software, and destroy all copies of the Software and all License Key(s) and return, or if requested by Zimbra, destroy, any related Zimbra Confidential Information in Service Provider’s possession or control and certify in writing to Zimbra that Service Provider have fully complied with these requirements. Sections 1 (Definitions), 2.6 (Open Source Software), 3 (Restrictions; Ownership), 5.1 (Records), 5.2 (Audit Rights), 7.2 (Disclaimer of Warranties), 9 (Limitation of Liability), 10 (Termination), 11 (Confidential Information), and 12 (General) will any survive termination of this EULA. 10.5 Limitation of Liability upon Termination. WITHOUT PREJUDICE TO SECTION 9 (LIMITATION OF LIABILITY), ZIMBRA WILL NOT BE LIABLE TO THE OTHER FOR DAMAGE OF ANY KIND, INCLUDING LOSS OF PROFITS, LOSS OF CUSTOMERS, LOSS OF BUSINESS OPPORTUNITIES, LOSS OF GOODWILL, AND INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, ON ACCOUNT OF THE TERMINATION OR EXPIRATION OF THIS EULA IN ACCORDANCE WITH THIS SECTION 10. YOU WAIVE ANY RIGHT YOU MAY HAVE TO RECEIVE ANY COMPENSATION OR REPARATIONS ON TERMINATION OR EXPIRATION OF THIS EULA UNDER THE LAW OF THE TERRITORY OR OTHERWISE, OTHER THAN AS EXPRESSLY PROVIDED IN THIS EULA. ZIMBRA WILL NOT BE LIABLE ON ACCOUNT OF TERMINATION OR EXPIRATION OF THIS EULA FOR REIMBURSEMENT ZIMBRA NE CONSUMER EDITION EULA – 01.14 – Page 6 OR DAMAGES FOR THE LOSS OF GOODWILL, PROSPECTIVE PROFITS, OR ANTICIPATED INCOME, OR ON ACCOUNT OF ANY EXPENDITURES, INVESTMENTS, OR COMMITMENTS MADE BY YOU OR FOR ANY OTHER REASON WHATSOEVER BASED UPON OR GROWING OUT OF THE TERMINATION OR EXPIRATION. YOU ACKNOWLEDGE THAT THIS SECTION HAS BEEN INCLUDED AS A MATERIAL INDUCEMENT FOR ZIMBRA TO ALLOW YOUR USE AND THAT ZIMBRA WOULD NOT HAVE ALLOWED USE BUT FOR THE LIMITATIONS OF LIABILITY AS SET FORTH IN THIS EULA. 11. CONFIDENTIAL INFORMATION 11.1 Definition. “Confidential Information” means information or materials provided by Zimbra to Service Provider which are in tangible form and labeled “confidential” or the like, or, information which a reasonable person knew or should have known to be confidential. The following information will be considered Confidential Information whether or not marked or identified as such: (a) License Keys; (b) information regarding Zimbra’s pricing, product roadmaps, or strategic marketing plans; and (c) nonpublic materials relating to the Software. 11.2 Protection. Service Provider may use Zimbra’s Confidential Information: (a) to exercise its rights and perform its obligations under this EULA; or (b) in connection with the parties’ ongoing business relationship. Service Provider will not use any Confidential Information of Zimbra for any purpose not expressly permitted by the EULA, and will disclose the Confidential Information of Zimbra only to Service Provider’s employees or contractors who have a need to know such Confidential Information for purposes of the EULA and who are under a duty of confidentiality no less restrictive than Service Provider’s duties under this EULA. Service Provider will protect Confidential Information from unauthorized use, access, or disclosure in the same manner as Service Provider protect Service Provider’s own confidential or proprietary information of a similar nature but with no less than reasonable care. 11.3 Exceptions. Service Provider’s obligations under Section 11.2 with respect to any Confidential Information will terminate if Service Provider can show �ZIMBRA CONSUMER EDITION END USER LICENSE AGREEMENT by written records that such information: (a) was already known to Service Provider at the time of disclosure by Zimbra; (b) was disclosed to Service Provider by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of Service Provider has become, generally available to the public; or (d) was independently developed by Service Provider without access to, or use of, Zimbra’s Information. In addition, Service Provider will be allowed to disclose Confidential Information to the extent that such disclosure is required by law or by the order of a court of similar judicial or administrative body, provided that Service Provider notify Zimbra of such required disclosure promptly and in writing and cooperates with Zimbra, at Zimbra’s request and expense, in any lawful action to contest or limit the scope of such required disclosure. If Zimbra is unable to obtain a protective order or other appropriate remedy with respect to the disclosure of Confidential Information, then Service Provider will disclose only that portion of the Confidential Information necessary to ensure compliance with the legal requirement. 11.4 Data Privacy. Service Provider agree that Zimbra may process technical and related information about Service Provider’s use of the Software which may include internet protocol address, hardware identification, operating system, application software, peripheral hardware, and non-personally identifiable Software usage statistics to facilitate the provisioning of updates, support, invoicing, or online services and may transfer such information to other companies in the Zimbra worldwide group of companies from time to time. To the extent that this information constitutes personal data, Zimbra will be the controller of such personal data. To the extent that it acts as a controller, each party will comply at all times with its obligations under the local legislation applicable in the Territory for the protection of individuals with regard to the processing of personal data. 11.5 Irreparable Injury. Service Provider acknowledge that damages for improper disclosure of Confidential Information would be irreparable; therefore, upon breach, Zimbra may seek equitable relief, including temporary restraining order(s) or ZIMBRA NE CONSUMER EDITION EULA – 01.14 – Page 7 preliminary or permanent injunction, without the necessity of posting a bond, in addition to all other remedies, for any violation or threatened violation of this Section 11. 12. SERVICE PROVIDER INDEMNITY Service Provider agrees to indemnify and hold Zimbra harmless from any loss, cost, liability, or damage, including attorneys’ fees, of Zimbra arising out of any third party claim, suit, or proceeding brought against Zimbra based upon: (a) any act or omission of the Service Provider, its employees, or agents; (b) any omission or inaccuracy in the Service Provider’s advertisements and promotional materials that relate to Zimbra or the Software; (c) any representations made by the Service Provider relating to Zimbra or the Software; or (d) Service Provider’s performance of services related to the Software. 13. GENERAL 13.1 Assignment. This EULA and any Orders, and any of Service Provider’s rights or obligations thereunder, may not be assigned, subcontracted or transferred by Service Provider, in whole or in part, whether voluntary, by operation of contract, law or otherwise, without the prior written consent of Zimbra. Any attempted assignment or transfer in violation of the foregoing will be null and void. Subject to the foregoing, this EULA will be binding upon and will inure to the benefit of the parties and their respective successors and assigns. 13.2 Notices. Any notice delivered by Zimbra to Service Provider under this EULA will be delivered via mail, email, or fax. 13.3 Waiver. The waiver of a breach of any provision of this EULA will not constitute a waiver of any other provision or any subsequent breach. 13.4 Severability. If any provision of this EULA is held to be illegal, invalid, or unenforceable, the provision will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remaining provisions of this EULA will remain in full force and effect. �ZIMBRA CONSUMER EDITION END USER LICENSE AGREEMENT 13.5 Compliance with Laws; Export Control; Government Regulations. Each party will comply with all laws applicable to the actions contemplated by this EULA. Service Provider acknowledge that the Software is of United States origin, is provided subject to the U.S. Export Administration Regulations, may be subject to the export control laws of the applicable territory, and that diversion contrary to applicable export control laws is prohibited. Service Provider represent that: (1) you are not, and are not acting on behalf of, (a) any person who is a citizen, national, or resident of, or who is controlled by the government of any country to which the United States has prohibited export transactions; or (b) any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List; and (2) you will not permit the Software to be used for, any purposes prohibited by law, including, any prohibited development, design, manufacture or production of missiles or nuclear, chemical or biological weapons. The Software and Documentation are deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying, or disclosing of the Software and Documentation by the U.S. Government will be governed solely by the terms and conditions of this EULA. United States bear a substantial relationship to this EULA and that the selection of Delaware law to govern this EULA and the license of the Software is reasonable and appropriate, and you consent to the selection of such law to govern this EULA and the relationship of the parties. This EULA has been agreed to only in the English language, which version of this EULA will be controlling regardless of whether any translations of this EULA have been prepared or exchanged. As an exception to the preceding sentence, if Zimbra provides this EULA to you only in a non-English language version, then such nonEnglish language version will control. Otherwise, you acknowledge and represent that you have carefully reviewed this EULA with the involvement and assistance of Service Provider’s employees, advisors, and/or legal counsel fluent in the English language, that you have consulted with local legal counsel and counsel competent to render advice with respect to transactions governed by the law applicable to this EULA, that you have no questions regarding the meaning or effect of any of this EULA’s terms, and that you have obtained highquality translations of this EULA for use by you or any of Service Provider’s team who are not fluent in the English language, with the understanding that you alone will bear the risk of any misunderstandings that may arise as a result of such translation. All communications in connection with this EULA will be in the English language. Les parties ont demandé que cette convention ainsi que tous les documents qui s'y rattachent soient rédigés en anglais. 13.6 Construction. The headings of sections of this EULA are for convenience and are not to be used in interpreting this EULA. As used in this EULA, the word “including” means “including but not limited to.” 13.8 Jurisdiction and Venue. All disputes arising out of this EULA involving Zimbra will be subject to the jurisdiction of the federal or state courts of Northern Texas, with venue lying in Dallas County, Texas. YOU WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT YOU MAY HAVE TO TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS EULA. 13.7 Choice of Law and Language. This EULA will be governed by the laws of the State of Delaware, USA, to the exclusion of the UN Convention on Contracts for the International Sale of Goods. Service Provider acknowledge that the headquarters of the Zimbra family of companies is located in Texas, and that the software licensed under this EULA and the related products marketed in connection with such software were in substantial part conceived, developed, or marketed by Zimbra personnel in the United States. Further, you acknowledge, agree and stipulate that the laws of the ZIMBRA NE CONSUMER EDITION EULA – 01.14 – Page 8 13.9 Third Party Rights. Other than as expressly set out in this EULA, this EULA does not create any rights for any person who is not a party to it, and no person who is not a party to this EULA may enforce any of its terms or rely on any exclusion or limitation contained in it. �ZIMBRA CONSUMER EDITION END USER LICENSE AGREEMENT 13.10 Documentation. In addition to the above sections, Service Provider’s use of the Software is subject to any additional terms and conditions set forth in the Documentation, which is incorporated into this EULA. 13.11 Order of Precedence. In the event of conflict or inconsistency among the Documentation, this EULA and the Order, the following order of precedence will apply: (a) the Documentation, (b) this EULA, and (c) the Order. With respect to any inconsistency between this EULA and an Order, the terms of this EULA will supersede and control over any conflicting or additional terms and conditions of any Order, acknowledgement or confirmation or other document issued by Service Provider, unless the parties execute a written agreement expressly indicating: (i) that such Order will modify this EULA; or (ii) that the terms of such Order will supersede and control in the event of any inconsistency. 13.12 Force Majeure. Zimbra will not be liable for any nonperformance or delays in deliveries caused by strikes, differences with workmen, accidents, fires, floods, transportation delays, delays in procuring materials or supplies, government regulations, war, disaster, Acts of God, or other delays caused by events beyond the reasonable control of Zimbra. 13.13 Entire Agreement. This EULA, including accepted Orders and any amendments to this EULA, and the Documentation contain the entire agreement of the parties with respect to the subject matter of this EULA and supersede all previous or contemporaneous communications, representations, proposals, commitments, understandings, and agreements, whether written or oral, between the parties regarding this license agreement. This EULA may be amended only in writing signed by authorized representatives of both parties. 13.14 Contact Information. Please direct legal notices or other correspondence to Zimbra Inc., 3000 Internet Blvd., Suite 200, Frisco, Texas, United States Attn: General Counsel. If Service Provider has any questions concerning this EULA, please send an email to [email protected]. ZIMBRA NE CONSUMER EDITION EULA – 01.14 – Page 9 �
nw/131.txt
END-USER LICENSE AGREEMENT FOR ZIPLOGIX PRODUCTS AND SERVICES CAREFULLY READ THESE TERMS AND CONDITIONS BEFORE INSTALLING OR USING THE ZIPLOGIX PRODUCTS OR SERVICES REFERENCED IN THIS AGREEMENT. THIS IS A LEGALLY BINDING AGREEMENT. YOUR CONTINUED ACCESS TO AND USE OF THE PRODUCT OR SERVICE CONSTITUTES YOUR AGREEMENT TO BE BOUND BY THE MOST CURRENT VERSION OF THIS AGREEMENT, THE TERMS AND CONDITIONS OF WHICH ZIPLOGIX MAY CHANGE AT ANY TIME, AND WHICH MAY BE FOUND AT WWW.ZIPFORM.COM/EULA/ZIPLOGIXEULA.PDF OR SUCH OTHER WEBSITE AS DESIGNATED BY ZIPLOGIX. This End-User License Agreement for zipLogix Products and Services (“Agreement”) is a legally binding agreement between you and RE FormsNet, LLC dba zipLogix (“zipLogix”, “us”, or “our”) regarding the zipLogix software product(s) identified as zipForm®, or such other name(s) as it may be known as from time to time (“Forms Software”), zipLogix website, and other zipLogix products and services (each, including the Forms Software, a “zipLogix Product”) referenced in this Agreement. zipLogix Products and their written documentation (including user guides built into zipLogix Products) are owned by or licensed to zipLogix and protected by copyright laws, international copyright treaties and other intellectual property laws and treaties. The zipLogix Products are being licensed, not sold, to you by zipLogix for use only under the terms of this Agreement. zipLogix retains ownership in the zipLogix Products themselves. By downloading, installing, copying, or otherwise accessing or using a zipLogix Product, you agree to be bound by the terms of this Agreement, which include a software license and disclaimer of software and hardware warranties. If you do not agree to the terms of this Agreement, you may not install or use the zipLogix Product. Please review the zipLogix Privacy and Security Statement, which also governs your use of the zipLogix Product. By using the zipLogix Product, you agree to the terms of the zipLogix Privacy and Security Statement, the terms of which zipLogix may change at any time, and which may be found at http://www.zipform.com/eula/ziplogixprivacy.pdf or such other website as designated by zipLogix. Copyright Infringement. If you believe there has been an infringement of your copyrighted material in a zipLogix Product, please notify zipLogix’s designated agent at DMCA Notification/Attention: Shuan Lue, 525 South Virgil Avenue, Los Angeles, California 90020, fax your notification to our designated agent at (213) 739-7275, or email your notification to our designated agent at [email protected]. Pursuant to the requirements of the Digital Millennium Copyright Act (“DMCA”) 17 U.S.C. § 512(C)(3), all notifications must be in writing and contain the following information: 1. 2. 3. 4. 5. 6. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit zipLogix to locate the material. Information reasonably sufficient to permit zipLogix to contact you, such as your address, telephone number, and, if available, an electronic mail address at which you may be contacted. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. zipLogix will respond to all DMCA compliant notices pursuant to the procedures specified in the DMCA. zipLogix will terminate the account of users who repeatedly infringe any other person’s copyrights. 1 �TERMS AND CONDITIONS FOR ALL ZIPLOGIX PRODUCTS SECTION 1. GENERAL TERMS AND CONDITIONS. A. Account Setup. Use of a zipLogix Product may require that you open an account. Your broker or administrator may do this for you, or you may do this yourself. During the registration process, you must provide us with current, complete and accurate information as prompted by the applicable registration form(s). Your email address will be required, and you will need to choose a password. Our use of your email address is an integral part of the zipLogix Product. You will need your email address to log into the zipLogix Product, and in some circumstances the zipLogix Product will auto-generate email messages to you. You agree to timely update your account information so that it remains current, complete and accurate throughout the term of this Agreement. B. Password; Account Activities. You are entirely responsible for maintaining the confidentiality of your password, security question(s) and answer(s), and all other zipLogix Product account credentials. Furthermore, you are entirely responsible for any and all activities that occur under your account. You agree to notify zipLogix immediately of any unauthorized access or use of your account or any other breach of security that potentially compromises the privacy of your account credentials, documents or information. zipLogix will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. You may be held liable for losses incurred by zipLogix or another party due to someone else using your account or password. You may not, at any time, give your zipLogix password or credentials to anyone else, allow anyone else to use your zipLogix account, password or credentials or use anyone else's zipLogix account, password or credentials. Giving your zipLogix password or credentials to another person, allowing another person to use your zipLogix account, password or credentials, or using another person’s zipLogix account, password or credentials is a material breach of this Agreement. C. Monitoring. zipLogix has no obligation, but reserves the right, to monitor and review your account information and history and the content and materials uploaded by you or others in the Forms Software or any other zipLogix Product for the purpose of determining compliance with this Agreement or to detect illegal activity. For monitoring and other business purposes, information about you and the association(s) of REALTORS® you are a member of, if any, may be attached to documents exported from the Forms Software in .pdf format. zipLogix reserves the right at all times to disclose any information obtained through monitoring as zipLogix deems appropriate. D. Prohibitions on Use. As a condition of your use of any zipLogix Product, you agree that you will not use the zipLogix Product for any purpose that is unlawful or prohibited by these terms, conditions, and notices. You may not use the zipLogix Product in any manner that could damage, disable, overburden, or impair any zipLogix server(s), or the network(s) connected to any zipLogix server(s), or interfere with any other party's use of the zipLogix Product. You may not attempt to gain unauthorized access to the zipLogix Product, other accounts, computer systems or networks connected to any zipLogix server(s), through hacking, password mining or any other means. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the zipLogix Product. By way of example, and not as a complete list, you agree that when using the zipLogix Product, you will not upload files that contain viruses, Trojan horses, worms, time bombs, corrupted files, or any other similar software or programs that may damage the operation of another's computer or property of another. harvest or otherwise collect information about others, including e-mail addresses. create a false identity. publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, obscene, indecent or unlawful topic, name, material or information. violate any code of conduct or other guidelines which may be applicable. violate any applicable laws or regulations, including but not limited to those relating to privacy, personal information, telephone calls, faxes, e-mails and security breaches. use, download or otherwise copy, or provide (whether or not for a fee) to a person or entity any directory of users of the zipLogix Product or other user or usage information or any portion thereof. use the zipLogix Product or the zipLogix server(s) in connection with surveys, contests, junk email, spamming or any duplicative or unsolicited messages (commercial or otherwise). separate font software which generates typeface designs from zipLogix Products containing such software. 2 �E. Use Without a Valid License. Use of each zipLogix Product requires that you have and maintain a valid license. By using a zipLogix Product, you represent and warrant that you have a valid license to use such zipLogix Product. If you download, install, copy, or otherwise access and use a zipLogix Product without a valid license, you acknowledge and agree that you are in material breach of this Agreement. Your license to use zipLogix Products is conditioned on your payment of any agreed-upon amounts between you and zipLogix, and your license may be terminated by zipLogix for nonpayment of any such amounts. If your zipLogix Product account was purchased by your broker as an Admin Seat (as defined in Section 2(A)), you hereby certify that you will not engage in any activities requiring a real estate license in your state concurrently with your use and access of the Admin Seat. Engaging in any activities requiring a real estate license concurrently with use and access of an Admin Seat shall be considered a material breach of this Agreement. F. Backup Copies. If permitted by a zipLogix Product, you may make copies of the zipLogix Product as necessary for backup and archival purposes. SECTION 2. LICENSE TERMS FOR ZIPLOGIX PRODUCTS A. Grant of License; Permission to Verify Membership with Board/Association of REALTORS®. 1. Individual Purchase. If you purchased the zipLogix Product as an individual user, zipLogix grants you a license, on the terms and conditions in this Agreement, to use the zipLogix Product for a period commencing on the date of purchase and ending twelve (12) months after the date of purchase. 2. Multi-User or Third Party Purchase. If you are using a multi-user version of the zipLogix Product, or if the zipLogix Product is being provided to you under the terms of an agreement between zipLogix or Real Estate Business Services, Inc. (“REBS”) and a third party, such as your real estate brokerage, a board/association of REALTORS® or a multiple listing service, zipLogix grants you a license, on the terms and conditions in this Agreement, to use the zipLogix Product for a period commencing on the date zipLogix creates your account and ending one (1) year after the date zipLogix creates your account; provided, however, that your license may terminate earlier in accordance with the agreement between zipLogix or REBS and the third party. Please see Section 4 for more information on termination of your zipLogix Product license. 3. zipForm® Team Edition. If you are using the zipForm® Team Edition, or if the zipLogix Product is being provided to you under the terms of an agreement between zipLogix or Real Estate Business Services, Inc. (“REBS”) and a third party, such as your real estate brokerage, a board/association of REALTORS® or a multiple listing service, zipLogix grants you a license, on the terms and conditions in this Agreement, to use the zipLogix Product for a period commencing on the date zipLogix creates the team account in zipForm® Team Edition and ending one (1) year after the date zipLogix creates the team account in zipForm® Team Edition; provided, however, that your license may be terminated earlier by the administrator of your team account or in accordance with the agreement between zipLogix or REBS and the third party. Please see Section 4 for more information on termination of your license to the zipForm® Team Edition. 4. Membership Verification. If you are a REALTOR®, you hereby grant zipLogix permission to obtain information from the National Association of REALTORS® (“NAR”) concerning boards/associations of REALTORS® of which you are a member, so that zipLogix may confirm you are authorized to access the applicable board/association of REALTORS®’ library of forms. 5. Third Party Invitee. If you are invited by a third party to use the zipLogix Product in order to access, view, review and/or sign electronic documents, you are granted a limited, personal, non-exclusive, non-transferable, nonsublicensable, royalty-free license to use the zipLogix Product only for the limited purpose for which you were invited by such third party. 6. Certified Trainers. If you are a current certified trainer for a zipLogix Product, zipLogix hereby grants you a limited, personal, non-exclusive, non-transferable, non-sublicensable license to use the zipLogix Product solely in connection with your training activities as a certified trainer. You may not use the zipLogix Product in connection with actual real estate transactions or for any other purpose whatsoever unless otherwise expressly licensed by 3 �zipLogix. Your license to use the zipLogix Product will terminate immediately upon your termination from the certified trainers program unless otherwise licensed by zipLogix. Upon termination from the certified trainers program you must immediately remove the zipLogix Product from any and all computers and/or mobile devices, if applicable, and you may not use the zipLogix Product after termination unless otherwise expressly licensed by zipLogix. 7. Demonstration Software. If you have requested and zipLogix has granted you a zipLogix Product demonstration license, zipLogix hereby grants you a limited, personal, non-exclusive, non-transferable, nonsublicensable license to use a zipLogix Product or particular features of a zipLogix Product as determined by zipLogix, in its sole discretion, for demonstration purposes only. The license term commences on the date zipLogix creates your account. The expiration date is determined by zipLogix, in its sole discretion. You may not use the zipLogix Product in connection with actual transactions or for any other purpose whatsoever unless otherwise expressly licensed by zipLogix. Upon termination of the demonstration license you must immediately remove the zipLogix Product from any and all computers and/or mobile devices, if applicable, and you may not use the zipLogix Product after termination unless otherwise expressly licensed by zipLogix. B. Installation and Use. 1. Downloadable zipLogix Products. If a downloadable zipLogix Product was purchased by you or is being provided to you pursuant to an agreement with a third party, including the zipForm® Form Viewer, if applicable, zipLogix grants you the right to install and use the zipLogix Product on any number of personal computers which are owned by you or that you are permitted to use in connection with your real estate transactions. Each license is registered to you as an individual user. 2. Online zipLogix Products. If an online zipLogix Product was purchased by you or is being provided to you pursuant to an agreement with a third party, zipLogix grants you the right to use the zipLogix Product online located at the website designated by zipLogix, subject to the terms and conditions of this Agreement. Each license is registered to you as an individual user. 3. zipLogix Product Multi-User License (Broker Edition). If you have purchased a multi-user Broker Edition version of a zipLogix Product, zipLogix grants you and each licensee for whom you have paid a multi-user license fee the right to use the zipLogix Product online located at the website designated by zipLogix and the right to install the zipForm® Forms Viewer, if applicable, on any number of personal computers which are owned by you and each licensee for whom you have paid a multi-user license fee, or that you and/or each licensee are permitted to use in connection with your real estate transactions. Each license is registered to you and your licensees as individual users and your office as an office location. For clarification, an “office” shall mean each and every distinct, different and unique brokerage office address or location requested or required by broker to be added as a brokerage office location in the Forms Software, which shall not be limited to physical “bricks and mortar” office addresses or locations. You agree to be responsible for monitoring your and your licensees’ use and to ensure that a licensee for whom you have paid a multi-user license fee no longer has access to or use of the multi-user version of the zipLogix Product once that licensee no longer works at that office location. If you have purchased accounts for any administrative assistant(s) (“Admin Seats”), you agree to monitor to ensure that such Admin Seats are not used and accessed by individuals engaged in activities requiring a real estate license in your state. Allowing an individual engaging in activities requiring a real estate license to access and use an Admin Seat for any reason shall be considered a material breach of this Agreement. If you wish to add additional offices, licensees, or Admin Seats, you must pay additional multi-user license fees. 4. zipLogix Product Multi-User License (Team Edition). If you have purchased the zipForm® Team Edition, zipLogix grants you and each team member for whom you have paid a zipForm® Team Edition license fee the right to use the zipForm® Team Edition online located at the website designated by zipLogix and the right to install the zipForm® Forms Viewer, if applicable, on any number of personal computers which are owned by you and each team member for whom you have paid a zipForm® Team Edition license fee, or that you and/or each team member are permitted to use in connection with your real estate transactions. If you, as the administrator of the team account, wish to additional team members, you must pay the additional license fee, if applicable, subject to the maximum number of team members permitted by zipLogix. 4 �5. Individual Use. Unless otherwise expressly licensed by zipLogix, the zipLogix Products are for your individual use, and you may not modify, copy, distribute, transmit, display, reproduce, publish, license, sublicense, sell, create derivative works from or transfer the zipLogix Products or any source code, object code or documentation in connection therewith. You may not access or use the zipLogix Product account of any third party. Unless otherwise expressly licensed by zipLogix, the zipLogix Product may only be used in connection with the purchase, sale, listing, lease or management of real property, a business opportunity or other activity requiring a real estate license. SECTION 3. OTHER RIGHTS AND LIMITATIONS. A. No Removal of Trademark or Copyright Notices. You may not remove or alter any trademark or copyright notices on or in any zipLogix Product or any documents, printouts or PDFs generated using any zipLogix Product. B. Distribution and Reproduction. Any unauthorized reproduction, distribution or use of any zipLogix Product in whole or in part is expressly prohibited, and may result in severe civil and criminal penalties. Violators may be prosecuted to the maximum extent possible. You may not distribute or reproduce copies of the zipLogix Product to third parties, including but not limited to transferring the zipLogix Product electronically from one computer to another through any communications means or over a computer network. Except as expressly permitted by this Agreement, you may not reproduce the zipLogix Product, the forms found within the Forms Software, any webpage used in conjunction with any zipLogix Product, or any related source code, image versions, scripts or formatting styles of any webpages or forms, in any file format or representation whatsoever, including, but not limited to .pdf, HTML, JavaScript or Cascading Style Sheets. Your rights regarding any forms found within the Forms Software may be subject to restrictions or prohibitions of the copyright owner of the forms, in the copyright owner’s sole discretion. C. Prohibition on Reverse Engineering, Decompilation, and Disassembly. You may not reverse engineer, decompile, or disassemble any zipLogix Product, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. D. Rental. You may not rent, lease, or lend any zipLogix Product. E. Support Services; Feedback. zipLogix may provide you with support services related to zipLogix Products ("Support Services"). Use of such Support Services will be governed by zipLogix’s then current policies and procedures or as may be described in the user manual built into the zipLogix Product or website, if applicable. Any supplemental software code provided to you as part of the Support Services shall be considered part of the zipLogix Product and subject to the terms and conditions of this Agreement. zipLogix may use any technical information and/or feedback you provide to zipLogix as part of the Support Services for its business purposes, including for product support and development. Any technical information and/or feedback you provide to zipLogix shall belong solely and exclusively to zipLogix without consideration, and you may not use or disclose technical information and/or feedback that was first provided to zipLogix to any third party without zipLogix’s prior written consent. F. Transmission of Data to Third Parties at User Instruction. zipLogix may provide you with the ability to use services (“External Services”) from within or in conjunction with zipLogix Products that require the transmission of your documents, forms, or other data to a third party outside the zipLogix Products environment. External Services include but are not limited to zipForm® MLS-Connect and Partner tab web services. If you choose to use any External Service(s), you explicitly grant permission to zipLogix to transmit such data as is necessary for you to use the External Service(s) you’ve selected. G. Data Exchanging Features. This Agreement does not grant you, and specifically excludes, the right to use any data exchanging features contained within a zipLogix Product that allow data to be imported or exported to or from the zipLogix Product to or from any other product. Use of such data exchanging features requires that you enter into a separate end user license agreement, unless zipLogix has otherwise given its consent for you to use such features. Please contact zipLogix for information with regard to obtaining a license to use any data exchanging features contained within a zipLogix Product. 5 �H. Data Fill Feature. If you purchase or otherwise have permission to access or use a zipLogix Product which includes the Data Fill Feature (a feature that allows you to input text in certain data fields of a form or document without viewing the entire text of the form or document being completed), you acknowledge that you should review the form or document in its entirety with all text and data revealed before you send, use, or rely on the form, document or any text you fill in the form or document using the Data Fill Feature. You agree that zipLogix has no responsibility or liability whatsoever for any damages which might result from your use of the Data Fill Feature. I. Document Transmission Capabilities. You may not use the document transmission capabilities of any zipLogix Product, including fax and email capabilities, for marketing or promotional activities, to directly or indirectly send unsolicited commercial faxes or emails, or for your own personal use (i.e., uses not related to your real estate transactions). Use of the document transmission capabilities of any zipLogix Product in violation of these terms may result in zipLogix charging you a fee based on the number of pages you fax multiplied by the current per-page fax fee or terminating your zipLogix Product license (with no refund issued), or both. The current per-page fax fee is fifteen cents ($0.15), which is subject to increase by zipLogix without notice. J. Change in Pricing. Unless otherwise agreed by zipLogix in writing, zipLogix reserves the right to change the pricing under which a zipLogix Product is offered at any time without notice. Pricing may be on a periodic or “per use” basis, depending upon the plan and features purchased by you or a third party, such as your brokerage, board/association of REALTORS®, or multiple listing service. Your use of the zipLogix Product is based on the pricing plan and features purchased. You may be charged additional fees for services outside of your pricing plan. Please contact zipLogix for details about your pricing plan in connection with your zipLogix Product. K. No Refunds. Unless expressly stated otherwise by zipLogix, any fee you pay for the use of a zipLogix Product is nonrefundable. L. System Requirements. Unless otherwise agreed by zipLogix in writing, zipLogix reserves the right to change the minimum system requirements necessary for a zipLogix Product to perform properly at any time without notice. SECTION 4. TERM AND TERMINATION. This Agreement is effective as set forth in Section 2 for the particular zipLogix Product in question and terminates automatically at the end of that term. However, if the zipLogix Product is being provided to you under the terms of an agreement between zipLogix or REBS and a third party, such as a state/local association of REALTORS®, a real estate brokerage or a multiple listing service, the term of this Agreement may expire earlier in accordance with the terms of the agreement between zipLogix or REBS and such third party. An administrator of a multi-user version of a zipLogix Product, including but not limited to the Broker Edition and zipForm® Team Edition, may terminate a licensee’s or team member’s license to use the multi-user version of the zipLogix Product at any time at his/her discretion. Without prejudice to any other rights, zipLogix may terminate this Agreement immediately and without notice if you fail to make any payments required pursuant to your pricing plan for any zipLogix Product, if you fail to comply with any of the terms and conditions of this Agreement, or if in zipLogix’s opinion your continued use of the zipLogix Product would result in a threat to the safety, security or privacy of a zipLogix Product or any third party. In the event of termination of this Agreement, you must immediately cease all use of the zipLogix Product, destroy all copies of the zipLogix Product and uninstall any and all versions of the zipLogix Product from each and every computer in which the zipLogix Product is installed. Any license fees paid to zipLogix for use of and access to the zipLogix Product shall be non-refundable in the event this Agreement is terminated prior to the end of the term. SECTION 5. OWNERSHIP; THIRD PARTY FORMS; THIRD PARTY PRODUCTS AND SERVICES. A. In General. All right, title and interest in the Forms Software and all other zipLogix Products, including but not limited to all copyrights, trademarks and trade secrets and any copies thereof, are owned by zipLogix and/or its suppliers, licensors and other third parties. All right, title and interest in the proprietary forms within the Forms Software are owned by their respective copyright owners and/or licensors. The trademarks “zipForm®,” “zipForm® Plus,” “zipForm® 6,” “zipForm Online®,” “zipForm® Mobile Web Edition,” “zipFormMLS-Connect®,” “MLSPush™” “zipLogix Digital Ink®,” “zipVault®,” “zipConsult™,” and “TouchSign®” are owned by zipLogix. 6 �The trademark “ePUBS®” is owned by REBS. All rights not expressly granted are reserved by zipLogix and its suppliers, licensors and other third parties. B. ERC Forms. Certain forms in the Forms Software may be licensed to zipLogix by the Employee Relocation Council (ERC) and are subject to the terms of that license. The use of all ERC forms generated by the Forms Software is limited to the preparation of completed forms by the end-user for its business use. The reproduction of blank forms is strictly prohibited. ERC reserves the right to change, modify, or discontinue the use or endorsement of any of its forms at any time, without notice to the end-user. ERC makes no claims or representations concerning its forms whatsoever, including their fitness for any specific purpose. ERC is not connected in any way with any software vendor and licenses its forms widely. C. Florida Association of REALTORS® (“FAR”) Forms. FAR and FAR/BAR forms © 2016 Florida Association of REALTORS®. All rights reserved. The FAR and FAR/BAR forms included in this software are reproduced under a license agreement from Real Estate Industry Solutions LLC (“REIS”), licensing agent of the Florida Association of REALTORS®. This license agreement does not constitute an endorsement or recommendation of this software by REIS or FAR. Blank forms may not be resold, repackaged or redistributed to any third party. Read your terms of service carefully. D. AIR Essentials for zipForm®-User Information; Representations and Warranties; Form Changes. If you purchase, access or use AIR Essentials for zipForm® (the “Commercial Forms Library”), you agree that REBS and/or zipLogix may provide AIR Commercial Real Estate Association (“AIR”) with your name, company name, business address, e-mail address and your business telephone number (your “Information”): to assist you; for statistical purposes; for AIR’s own membership needs; and to offer you AIR training, educational materials and other products and services. AIR shall not sell or transfer your Information without your written consent. Reasonable steps are taken to maintain the accuracy and update the Commercial Forms Library on the website. However, AIR, C.A.R, REBS and zipLogix make no representations or warranties regarding the accuracy of the forms, nor do they make any commitment to update the forms. C.A.R. and AIR reserve the right in their sole discretion to add, remove or otherwise modify the forms, and C.A.R., REBS and/or zipLogix may modify the website at any time without notice. As these forms are frequently modified to meet changing requirements of the law and industry practice, feel free to contact AIR at (213) 687-8777 and fax (213) 687-8616, to ensure you are using the most current version of the form. All right, title and interest in the Commercial Forms Library belong solely to AIR. zipLogix is not responsible for AIR’s conduct with regard to the Information or the modification of AIR’s forms. E. AIR Nationwide Library. If you purchase, access or use the AIR nationwide library of forms, the following terms apply: While AIR endeavors to create forms that have widespread applicability throughout the United States, neither AIR nor zipLogix represent or warrant in any manner that any form in the AIR nationwide library complies with the laws, rules and/or regulations of, or is otherwise valid and enforceable in or appropriate for, the jurisdiction in which the form is used or for your particular transaction. You are advised to consult with an appropriate professional (i.e. an attorney, tax advisor, etc.) to determine whether a specific form complies with federal, state and/or local laws, rules and regulations and is otherwise valid and enforceable in the relevant jurisdiction and appropriate for your particular transaction. AIR reserves the right in its sole discretion to add, remove or otherwise modify a form in the AIR nationwide library of forms at any time without notice and as such, you may wish to contact AIR at (213) 687-8777 to ensure that you are using the most current version of the form. zipLogix is not responsible for AIR’s conduct with regard to the modification of its forms. F. New Hampshire Association of REALTORS® Library. The use of the forms provided by NHAR are offered and conditioned on the acceptance of the following terms, conditions, and notices. If you do not agree with these terms and conditions, do not use the NHAR forms. The forms provided by NHAR should not be used as a substitute or an alternative for the advice of an attorney. NHAR does not provide legal advice. NHAR’s forms cannot therefore be relied upon as the equivalent of legal advice. Because the law changes rapidly, NHAR cannot guarantee that the forms provided are current or correct. Not only does the law differ from jurisdiction to jurisdiction, but it also is subject to interpretation by different courts. The forms provided by NHAR will not fit every circumstance. Therefore, you should have the forms provided by NHAR reviewed by your own counsel prior to your use. Also, if you need legal advice for a specific problem, you should consult a licensed attorney. NHAR is not responsible for any loss, injury, claim, liability, or damage related to your use of the forms provided by NHAR, specifically claims 7 �related to errors or omissions in the content of the forms provided by NHAR. In short, your use of the forms provided by NHAR is at your own risk. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NHAR DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY, SECURITY AND ACCURACY. YOU AGREE THAT NHAR IS NOT LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THE ASSOCIATION FORMS CONTAINED IN THE ASSOCIATION LIBRARY, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL AND PUNITIVE DAMAGES. G. California Association of REALTORS® Forms. California Association of REALTORS® (“C.A.R.”) owns all copyright in the C.A.R. forms, unless otherwise stated on the form. C.A.R. forms are licensed only for use in real estate transactions by real estate professionals licensed and in good standing with the California Bureau of Real Estate and attorneys licensed and in good standing with the California State Bar. Blank C.A.R. forms may not be printed or exported from zipForm®. Use of C.A.R. forms other than as expressly licensed is prohibited. You understand and acknowledge that Third Party Forms (as defined in Section 8(E)) are not covered by C.A.R.’s User Protection Agreement unless expressly indicated in writing by C.A.R. SECTION 6. DISCLAIMERS; LIMITATION OF LIABILITY. A. Disclaimer of Warranties. OTHER THAN THE LIMITED WARRANTIES EXPRESSLY PROVIDED IN THIS AGREEMENT, ZIPLOGIX EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES FOR THE ZIPLOGIX PRODUCTS. EACH ZIPLOGIX PRODUCT AND ANY RELATED DOCUMENTATION IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, TITLE AND NONINFRINGEMENT. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE ZIPLOGIX PRODUCT REMAINS WITH YOU. ZIPLOGIX MAKES NO WARRANTY THAT ANY ZIPLOGIX PRODUCT WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE. ZIPLOGIX DISCLAIMS ANY AND ALL RESPONSIBILITY FOR ANY INTERFERENCE OR SUSPENSION OF INTERNET SERVICE OR FOR ANY LOSS OR CORRUPTION OF DOCUMENTS, DATA, OR LOSS OF ANY OTHER MATERIALS YOU MAY STORE ON THE INTERNET. ZIPLOGIX MAKES NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, OR AVAILABILITY OF ANY ZIPLOGIX PRODUCT FOR ANY PURPOSE. B. Disclaimer for User Transactions. You acknowledge and agree that zipLogix and/or REBS: (a) is not and shall not be deemed a party to any transaction or document stored using any zipLogix Product by you or any third party; (b) makes no representations or warranties and shall not be liable for the content, validity, legality, enforceability, accuracy, suitability or appropriateness of any document, content, information or transaction in any zipLogix Product; and (c) makes no representations or warranties and shall not be liable in any way for the ability or inability to access, view, review and/or receive documents in any zipLogix Product or within any particular period of time. C. Disclaimer for Third Party Forms. While the owner/licensor of Third Party Forms (as defined in Section 8.E) may provide warranties and representations for some of all of its Third Party Forms, such warranties and representations, if any, are of the owner or licensor and not zipLogix. zipLogix and its affiliates make no representations, warranties or guarantees whatsoever regarding the use, content, legality or sufficiency of such Third Party Forms, or that the Third Party Forms are the most accurate or up-to-date version of such forms, unless expressly indicated in writing by zipLogix or its affiliates, as applicable. All right, title and interest in and to the Third Party Forms belong solely to such third party and/or its licensors, as applicable. All other portions of Section 6 shall remain applicable for such Third Party Forms. D. Disclaimer for Third Party Products and Services. The Forms Software may contain, provide links to, or refer to products and services that are owned and/or licensed to zipLogix by third parties (“Third Party Products”). All right, title and interest in and to the Third Party Products belong solely to such third party and/or its licensors, as applicable. zipLogix and its affiliates make no representations, guarantees or warranties whatsoever regarding the use, content, legality or sufficiency of Third Party Products unless expressly indicated in writing by zipLogix or its 8 �affiliates, as applicable. Please review any applicable license agreements and/or privacy policies before using such Third Party Products to be sure the terms are acceptable to you. The Forms Software may also include the names of certain Third Party Products and services in drop-down menus provided to users to fill in form fields. zipLogix and its affiliates make no representations, guarantees, or warranties whatsoever regarding the use, content, quality, legality, or sufficiency of these products or services. E. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ZIPLOGIX OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE ZIPLOGIX PRODUCT OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF ZIPLOGIX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES WERE FORESEEABLE. IN ANY CASE ZIPLOGIX’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT WILL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU FOR THE ZIPLOGIX PRODUCT OR U.S. FIFTY DOLLARS ($50.00). BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY OR WARRANTIES, CERTAIN EXCLUSIONS AND LIMITATIONS IN THIS SECTION 6 MAY NOT APPLY TO YOU, AND IN SUCH CASE, THE WARRANTIES ARE LIMITED TO THE MINIMUM WARRANTY PERIODS ALLOWED BY THE APPLICABLE LAW. YOU SPECIFICALLY AGREE THAT ZIPLOGIX SHALL NOT BE RESPONSIBLE OR LIABLE IN ANY WAY WHATSOEVER FOR UNAUTHORIZED ACCESS TO, USE OR ALTERATION OF YOUR DATA, ANY MATERIAL, CONTENT, DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, OR ANY TRANSACTION CREATED, ACCESSED OR STORED IN CONNECTION WITH THE ZIPLOGIX PRODUCT, WHETHER EXPRESS, IMPLIED OR STATUTORY. SECTION 7. MISCELLANEOUS. A. Entire Agreement; Amendment. Unless otherwise specified herein, this Agreement, together with your pricing plan and any individual license agreements regarding data exchanging features of zipLogix Products, constitute the entire agreement between you and zipLogix regarding the subject matter hereof, and this Agreement, together with your pricing plan and any individual license agreements regarding data exchanging features of zipLogix Products, supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and zipLogix regarding the subject matter hereof. Except as explicitly set forth herein, this Agreement may not be amended except in a writing signed by the parties. B. Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the substantive and procedural laws of the State of California, excluding its conflict of law principles. All claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration in the County of Los Angeles, State of California or another location mutually agreeable to the parties. An award of arbitration may be confirmed in a court of competent jurisdiction. Federal arbitration laws and California state arbitration laws apply to this Agreement. The parties agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated, or representative action. Each party hereby authorizes and accepts service of process sufficient for personal jurisdiction in any action against it as contemplated by this paragraph by registered or certified mail, return receipt requested, postage prepaid, or nationally recognized overnight courier. You hereby waive any objection you may have in any such action based on lack of personal jurisdiction, improper venue or inconvenient forum. C. Relationship. You agree that no joint venture, partnership, employment, or agency relationship exists between you and zipLogix as a result of this Agreement. D. Indemnification. You agree to indemnify and hold zipLogix, its parents, subsidiaries, affiliates, and its and their directors, officers and employees, harmless from any claim, action, demand, loss, cost, expense or damage, including reasonable attorneys’ fees, asserted by any third party due to or arising out of your use of any zipLogix Product. 9 �E. Severability; Waiver. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect. A party’s waiver of any breach of this Agreement must be made in writing and shall not constitute a waiver of any other breach. A party’s failure to demand performance of any obligation shall not constitute a waiver of a party’s right to demand performance of such obligation in the future. F. Information Regarding zipLogix Products and Services. You consent to zipLogix sending you information via fax and/or email regarding products and services that may be interesting or valuable to you via the contact information you provided. If you no longer wish to receive information regarding such products and services, please make your request by visiting http://support.zipform.com/emailsupport.asp or call (586) 840-0140. We will implement your request as quickly as possible. G. Transfer and Assignment. You may not transfer and/or assign any or all of your rights or obligations under this Agreement. H. Survival. All provisions which may reasonably be construed to survive shall survive the expiration or termination of this Agreement. ADDITIONAL TERMS FOR SPECIFIC ZIPLOGIX PRODUCTS SECTION 8. FORMS SOFTWARE. A. Exporting; Portable Data Format (.pdf); Other File Formats. zipLogix grants you the right to use the Forms Software to export the desktop, online and multi-user versions of the forms to .pdf format. The export of the forms will result in the creation of a .pdf file. zipLogix shall not be responsible for providing you with the applicable software to open, view or otherwise use the .pdf file. Forms exported from the Forms Software to .pdf format may not be altered, manipulated or changed in any way, including but not limited to, altering the form text or data, “unlocking” or otherwise opening or attempting to open or bypass the security/password protection of a .pdf form, making a derivative work(s), adding any data, text, graphics or software into or on top of a form, converting the form from .pdf format to a different file format, removing copyright dates and/or symbols, and removing company specific information which is embedded in the form, unless expressly permitted by the copyright holder of the form. Any violation of this section shall be deemed a material breach of this Agreement and may result in a violation of law and civil and/or criminal penalties. Certain fonts in your computer’s operating system/software may be missing or corrupt due to no fault of the Forms Software, which may result in formatting, saving, printing and e-mailing problems or other errors in your .pdf documents. You agree that zipLogix has no responsibility or liability whatsoever for any damages which might result from such errors in your .pdf documents. If you experience problems or errors in .pdf documents due to missing or corrupted fonts, please contact your computer system/software provider (e.g. Microsoft®, Apple®, etc.) or Adobe® (www.adobe.com) for assistance. B. Printing Out or Using Blank or Partially Blank Forms. The Forms Software is intended to be used as an electronic forms-filling software program. Unless permitted by the copyright holder of the forms, you may not use the Forms Software to: print out, reproduce or display on the Internet or in any other manner, blank or partially blank pages or copies of the forms contained within the Forms Software (i.e. forms with partial or no text filled into the fillable portion of the forms) in any way or in any file format, including blank .pdf or HTML versions of the forms; or enter nominal characters, such as “.” “,” “xxxxxxxx” or other characters that do not in good faith constitute real estate transaction information to enable the printing of essentially blank forms; or print out blank or essentially blank forms and manually insert information on the hard copies. Such actions may constitute a copyright violation of the copyright owner’s forms, may result in a violation of law and civil and/or criminal penalties and, in addition to any other remedies, may result in the termination of this Agreement by zipLogix. 10 �C. Transaction Document Storage. You agree that zipLogix has no responsibility or liability whatsoever for the deletion, corruption or failure to store any transaction, template, clause, content, form or document maintained by the Forms Software. You acknowledge that zipLogix reserves the right to delete accounts and/or stored documents within accounts that have not been active or modified for a period of fourteen (14) months. The amount of storage space available to you will depend upon the plan and features purchased by you or, if the Forms Software is being provided to you under the terms of an agreement between zipLogix and/or REBS and a third party, such as your real estate brokerage, a board/association of REALTORS® or a multiple listing service, the plan and features purchased by such third party. Your documents will be stored in the Forms Software for a period of time that is dependent upon your state (or other jurisdiction) and the creation date or the closing date of the transaction to which the documents are related, except that zipLogix shall have no obligation to maintain or provide you with any transaction, document, information, or access to your account once your Forms Software license term expires or terminates for any reason. After the applicable time period, your transactions (and all associated transaction documents) will be deleted from your account and will not be recoverable by you. These periods of time are subject to change at any time without notice. zipLogix shall not be responsible or liable to you or any third parties in any way whatsoever for documents or transactions that are deleted in accordance with this policy. If you wish to save Forms Software transaction documents beyond the applicable time frame, you should export the documents to another location, such as saving the documents in zipVault® or on your computer, CD-ROM or some other external storage medium. D. User Name. Forms printed or exported from the Forms Software may identify the licensed user's name and/or company information at the bottom of the forms. You must use the licensed user’s correct name and company information within the Forms Software and it shall be considered a material breach of this Agreement to use anyone else’s name or include a false company name and/or address within the Forms Software; except that users with Admin Seat licenses may enter the name and company information for the applicable real estate licensees under the Agreement and users of the zipForm® Team Edition may create and edit transactions for other members of the same team using such member’s name and company information to the extent permitted by zipLogix and the Forms Software. To reduce the possibility that some users may attempt to share their access and use of the Forms Software with others, the information at the bottom of the forms, once it is entered, may not be changeable by you. Please contact zipLogix to change such information. E. Form Libraries. The Forms Software may contain “libraries” of forms and other forms that are owned and/or licensed by third parties, such as a board/association of REALTORS’® forms, a multiple listing service’s forms or an individual brokerage company’s mandated/recommended internal office forms (“Third Party Forms”). Third Party Forms are licensed to zipLogix by third parties and you must have a separate license to access each library of Third Party Forms. Any license to use Third Party Forms is subject to Sections 5 and 6(C) of this Agreement. If you purchase a license to use Third Party Forms, or if such license is being provided to you under the terms of an agreement between zipLogix or REBS and a third party, such as your real estate brokerage, a board/association of REALTORS® or a multiple listing service, zipLogix grants you a license to access and use the applicable Third Party Forms in connection with the Forms Software for the duration of your Forms Software license term as set forth in Section 2(A); provided, that your license to use such Third Party Forms may terminate earlier in accordance with the applicable license agreement between zipLogix and the Third Party Forms licensor. You acknowledge and agree that zipLogix shall have no obligation to provide you with access to or use of Third Party Forms after the license agreement between zipLogix and the applicable Third Party Forms licensor terminates for any reason. You further acknowledge and understand that once your license to use Third Party Forms terminates for any reason, you will no longer be able to access new Third Party Forms in the applicable library. If you wish to save Third Party Forms you have used in your Forms Software transactions beyond the term of your applicable Third Party Forms license period, you should export the documents to another location, such as saving the documents in zipVault® or on your computer, CD-ROM or some other external storage medium. F. Export Restrictions. You agree that you will not export or re-export the Forms Software to any country, person, entity or end user subject to U.S.A. export restrictions. G. Limited Warranty for zipForm® Standard. zipLogix warrants that zipForm® Standard will be free of material defects for a period of ninety (90) calendar days from the date of your purchase or acquisition, as applicable. Within this period, zipLogix will replace any defective zipForm® Standard software without charge. Refunds will not be issued to you or the purchasing party, as applicable, unless the defect cannot be remedied by a replacement. 11 �H. Forms Software Data Exchange. The Forms Software may automatically exchange data between your zipForm® Standard account and the zipForm® Plus server. Transactions in your zipForm® Standard account may be copied and saved to your zipForm® Plus account unless you elect to turn off this feature in zipForm® Standard. I. Compliance with Law. zipLogix shall not be responsible for, and you are solely responsible for, determining whether you have any retention obligations for any documents within the Forms Software and whether your use of the Forms Software to store documents complies or does not comply with any and all laws, rules and regulations relating to retention or audit of records, including, but not limited to, the Electronic Signatures in Global and National Commerce Act (E-Sign), the Uniform Electronic Transactions Act (UETA) and your state’s laws and regulations pertaining to retention or audit of records and the real estate industry. zipLogix makes no representations or warranties that the Forms Software is appropriate for any retention or audit obligations that may be required for your particular transaction. If you are unsure whether your use of the Forms Software to store documents complies or does not comply with relevant law, please consult an appropriate professional, such as an attorney. J. zipForm® Team Edition. 1. The ability of an administrator of a team account to add additional members is solely within zipLogix’s discretion and is subject to the maximum number of persons permitted per team account and payment of the applicable fee. An agent can only be a member of one team account at a time. A transaction coordinator/assistant can be a member of more than one team account with the payment of the applicable fee(s). The administrator for the team account can add and remove team members at any time, up to the maximum number of team members permitted by zipLogix. Once a team member is removed from a team account, such team member will no longer have access to any transactions within the team account or any transactions saved to zipVault® for the team account. Transactions created in the team account will only be stored by zipLogix as long as the team account is active. If you wish to save transactions you have used in your team account beyond the term of your applicable team account license period, you should export the documents to another location, such as saving the documents in your individual zipVault® account or on your computer, CD-ROM or some other external storage medium. 2. Each team member will be able to create, edit, modify, print, send, export and delete transactions for, or on behalf of, any other member of the team. Each team member will be able to use other team member’s names and contact information to create, edit, modify, print and send transactions, and each team member will be able to access the contact list of the other team members. Each team member will only be able to access the forms libraries for which such member has a valid license. Joining a team account will not create a license for, or otherwise enable, an individual team member to view, access, create, edit or modify forms in a forms library for which such member does not have a valid license, even if another team member has a valid license for such other forms library. Team members may not alter the name of the agent and broker that prints automatically at the bottom of each form, including by altering the form to add the name of the team. SECTION 9. OTHER ZIPLOGIX PRODUCTS AND SERVICES. A. zipForm®MLS-Connect and MLSPush™. zipForm®MLS-Connect and MLSPush™ are expressly designed and intended to be used in conjunction with the Forms Software, and cannot be used if you do not have or fail to maintain a valid license to use the Forms Software. Your license to use zipForm®MLS-Connect and/or MLSPush™ entitles you to access your individual Forms Software account only, and you may not access the Forms Software account of any other end user through zipForm®MLS-Connect and/or MLSPush™. In order to use zipForm®MLSConnect and/or MLSPush™, you must have and maintain valid permission to access and use content within the database of your multiple listing service (“MLS”), and your MLS must have an agreement in place with zipLogix in connection with zipForm®MLS-Connect and/or MLSPush™. Should the agreement between zipLogix and your MLS terminate, your access to and use of zipForm®MLS-Connect and/or MLSPush™ shall also terminate. Any fee you paid for the use of zipForm®MLS-Connect and/or MLSPush™ will not be refunded to you. B. Single Sign On. Your use of the Single Sign On services (“SSO”) shall at all times be subject to and must be in compliance with this Agreement. The SSO will only be available if zipLogix maintains agreements with providers of each product and service to be accessed by the SSO. If zipLogix’s agreement with a provider terminates, your access to and use of the provider’s product or service using the SSO shall also terminate. All products and services accessed under the SSO will be linked to, and capable of being accessed using, a single password or set of 12 �credentials. You should therefore exercise caution, prudence and care in using the password and/or set of credentials to protect them from unauthorized access, disclosure and use. You agree that zipLogix has no responsibility or liability whatsoever for any damages which might result from such unauthorized access, disclosure and use. C. ePUBS®. If you are a C.A.R. Member during the current membership year, zipLogix grants you a license to use ePUBS® and to e-mail or otherwise provide ePUBS® publications to your clients and customers during the current membership year, or that portion of the current membership year during which you remain a member, if shorter. You must have an active Forms Software account in order to access and/or use ePUBS®. Should your Forms Software account terminate, you will no longer be able to access or use ePUBS®, and no refund will be issued to you. You may not sell, resell, license, sublicense, publish, make derivative works from or publicly display (e.g. on your website or any other websites), or alter (except as expressly permitted in ePUBS®) any ePUBS® publications, and you may not reproduce any portion of any ePUBS® publication other than as expressly permitted without REBS’ prior written consent. Except as expressly permitted herein, you may not allow others to access or use your ePUBS® license or any ePUBS® publication accessible under your license. Certain ePUBS® publications cannot be e-mailed to clients and customers unless you have an open transaction, or you fill in the appropriate client information on the separate signature page of the publication or the last page of the publication, as applicable. Your or your broker’s name, brokerage information, client name and property information may be auto-populated at the bottom of certain ePUBS® publications. ePUBS® is a registered trademark of REBS. D. Beta Test License. If you are a beta test user of a zipLogix Product, you acknowledge that zipLogix is conducting beta testing for the zipLogix Product and you agree to participate in such testing and to provide feedback as requested by zipLogix. Feedback consists of any of your suggestions, comments or other feedback whether it is required or provided by you voluntarily relating to the zipLogix Product (“Feedback”). You agree that zipLogix may freely use, disclose, reproduce, license, publish and distribute Feedback in the zipLogix Product or any zipLogix product or service, specifications, or other documentation; and none of the Feedback you provide is subject to or infringes upon any patent, copyright, or other intellectual property claim or right of any third party or requires any permissions, consents or approvals from any third party. This beta test license does not include and specifically excludes the right to copy, reproduce, distribute, modify, lease, license, sell, make derivate works from, or use the zipLogix Product or any other information or materials provided to you by or on behalf of zipLogix other than expressly set forth in this section unless zipLogix states otherwise in writing. Due to the experimental nature of the zipLogix Product and the possibility of bugs, errors or other malfunctions therein, use of the software in an actual real estate transaction is at your own risk. You agree that zipLogix shall not be liable to you, your customers, clients or any third parties for any deletion, corruption or failure of the zipLogix Product or zipLogix’s servers to store, maintain or transmit any transaction, template, clause, data or other content. zipLogix shall have no obligation to maintain any data or content or to forward any data or content to you or any third party. zipLogix shall have the right and option to limit, alter, change, remove and correct the features, functionality and any other aspect of the zipLogix Product; and to deny, limit access or limit levels of access to the zipLogix Product and to terminate this beta test license at any time without notice. zipLogix may, in its discretion, provide technical and customer support to you in connection with the zipLogix Product, upon terms to be determined solely by zipLogix. You shall not be entitled to receive any fees or reimbursement for any expenses incurred by you in connection with the zipLogix Product and this beta test license. YOU ACKNOWLEDGE THAT THE ZIPLOGIX PRODUCT IS EXPERIMENTAL IN NATURE, STILL IN THE DEVELOPMENT STAGE, AND HAS NOT BEEN FULLY TESTED. THE ZIPLOGIX PRODUCT IS PROVIDED “AS IS” AND MAY NOT BE FUNCTIONAL ON ANY MACHINE OR IN ANY ENVIRONMENT. ZIPLOGIX IS UNDER NO OBLIGATION TO FIX ERRORS, IMPERFECTIONS OR INCOMPATIBILITIES FOUND IN THE ZIPLOGIX PRODUCT. ZIPLOGIX DISCLAIMS ALL WARRANTIES RELATING TO THE ZIPLOGIX PRODUCT, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND TO THE AVAILABILITY OR RELIABILITY OF THE ZIPLOGIX PRODUCT, ZIPLOGIX’S SERVERS OR THE INTERNET. YOU ASSUME THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE ZIPLOGIX PRODUCT. ZIPLOGIX DOES NOT WARRANT OR GUARANTEE THAT YOUR USE OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY OR WARRANTIES, CERTAIN EXCLUSIONS AND LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU, AND IN SUCH CASE, THE WARRANTIES ARE LIMITED TO THE MINIMUM WARRANTY PERIODS ALLOWED BY THE APPLICABLE LAW. 13 �E. zipLogix Digital Ink®. 1. In General. (a) You must be at least eighteen (18) years old to use zipLogix Digital Ink®. (b) Should your Forms Software license terminate, your access to and use of zipLogix Digital Ink® and any documents maintained or stored therein may terminate simultaneously, your subscription fee shall not be refunded, and the documents will be deleted from zipLogix Digital Ink® within a time period at zipLogix’s discretion and may not be recoverable. 2. Transaction Document Storage. zipLogix Digital Ink® documents will be maintained by zipLogix, or a third party on behalf of zipLogix, for a period of time that is dependent upon your state (or other jurisdiction) and the creation date or the closing date of the transaction to which the documents are related, except that zipLogix shall have no obligation to maintain or provide you with any transaction, document, information, or access to your account once your zipLogix Digital Ink® license term expires or terminates for any reason. zipLogix reserves the right to delete accounts that are inactive or have not been modified for a period of fourteen (14) months. You agree that zipLogix has no responsibility or liability whatsoever for the deletion, corruption or failure to store any transaction, template, clause, content, form or document maintained or transmitted by zipLogix Digital Ink®. After the termination or expiration of your zipLogix Digital Ink® account for any reason, subject to the terms as expressly set forth herein, documents will be deleted from your account and will not be recoverable. zipLogix shall not be responsible or liable to you or any third parties in any way whatsoever for documents or transactions that are deleted in accordance with this policy. If you wish to save documents signed using zipLogix Digital Ink® beyond the applicable time frame, you should export those documents to zipVault® or another location, such as saving documents in .pdf form on your computer, or on a CD-ROM, etc. zipLogix may establish limits concerning the maximum number of documents and transactions that may be stored, signed, or transmitted, the maximum amount of disk space that will be allotted on zipLogix's servers on your behalf, and the maximum number of times and duration you may access zipLogix Digital Ink® in a given period of time, which are subject to change at any time without notice. 3. Disclaimer; Digital Signatures. You acknowledge and agree that zipLogix makes no representations or warranties and is not liable for the accuracy, validity or invalidity of any authentication measure used in connection with zipLogix Digital Ink®. You may upload and sign .pdf documents in zipLogix Digital Ink®. If the uploaded document already contains a digital signature, zipLogix Digital Ink® will create a new .pdf file in which the existing digital signature is converted into a copy of the digital signature (an “Image”), similar to a photocopy of a document with a signature. You understand and acknowledge that the Image is not a digital signature and will not contain the security features associated with a digital signature. You may add new digital signatures to the uploaded document using zipLogix Digital Ink®. The new zipLogix Digital Ink® digital signatures will have all of the security features associated with digital signatures. If you need to access and recover pre-existing digital signatures that were converted into Images, those digital signatures will still be available in the original .pdf file. 4. Compliance with Law. As routine practice, zipLogix provides consumer disclosures for all signature transactions processed through zipLogix Digital Ink®. However, zipLogix shall not be responsible for, and you are solely responsible for, determining whether the use of an electronic record or electronic signature complies or does not comply with any and all laws, rules and regulations, including but not limited to electronic record and electronic signature laws such as the Electronic Signatures in Global and National Commerce Act (E-SIGN) or the Uniform Electronic Transactions Act (UETA) and your state’s laws and regulations pertaining to electronic record and electronic signatures and the real estate industry. zipLogix shall not be responsible or liable for, and you are solely responsible for, determining whether a consumer (as defined under applicable law) must be provided with a disclosure required by law to be in writing, whether the delivery of an electronic record satisfies such law, and for providing such disclosure to the consumer. zipLogix makes no representations or warranties that the consumer disclosures in zipLogix Digital Ink® are appropriate for or provide all of the disclosures as required for your particular transaction. If you are unsure whether your electronic record or electronic signature complies or does not comply with relevant law, please consult an appropriate professional, such as an attorney. F. zipVault®. 14 �1. General. Your license entitles you to use zipVault® in connection with your individual Forms Software account only. You may not access or use zipVault® through the zipLogix account of a third party. Should your zipVault® license terminate, your access to and use of zipVault® and any documents maintained or stored therein will terminate simultaneously, your subscription fee, if any, shall not be refunded, and the documents will be deleted from zipVault® within a time period at zipLogix’s discretion and may not be recoverable by you. 2. Document Storage/Deletion. You must maintain a valid zipVault® license to store and access documents using zipVault®. Except as expressly set forth herein, zipLogix shall have no obligation to maintain any document, content, or form and zipLogix shall have no obligation to provide you with any document, information or access to your account once your zipVault® license term expires or terminates for any reason. The amount of storage space available to you in zipVault® will depend upon the plan and features purchased by you, or if zipVault ® is being provided to you under the terms of an agreement between zipLogix and a third party, such as your real estate brokerage, a board/association of REALTORS® or a multiple listing service, the plan and features purchased by such third party. Except as provided herein, your documents will be stored in zipVault® for a period of time that is dependent upon your state (or other jurisdiction) and the creation date or the closing date of the transaction to which the documents are related. You may delete documents that you have stored using your personal zipVault® account at any time. You (or your broker, if applicable) may designate a deletion date that is earlier than the default deletion date available to you under your zipVault® plan. Please contact zipLogix for details about your zipVault ® plan and features. After the applicable time period, stored documents will be deleted from zipVault ® and will not be recoverable by you. These storage times are subject to change at any time without notice. Any change to applicable storage times will affect only those transactions created after the change is made. Once a transaction document is deleted, you will not be able to recover the deleted document using your zipVault® account. You agree that zipLogix has no responsibility or liability whatsoever for the deletion, corruption or failure to store any document, form or content stored, maintained or transmitted by zipVault ®. zipLogix has no obligation to provide you or third parties with any documents that have been deleted for any reason. You agree that zipLogix shall not be responsible or liable to you or any third parties in any way for stored documents deleted in accordance with this policy. If you wish to save documents you have uploaded and stored using zipVault® beyond the expiration of the applicable time period or prior to the expiration or termination of your zipVault ® license, you should export the documents to another location, such as saving the documents on your computer, on a CD-ROM or some other external storage medium. zipLogix reserves the right to limit the amount of storage space available to you, to limit the types of files eligible for storage, to charge a fee for additional storage space and to otherwise change the terms and conditions of document storage, retention and deletion using zipVault® at any time. If you wish to purchase additional storage capacity or time, you should contact zipLogix. 3. Compliance with Law. zipLogix shall not be responsible or liable for, and you are solely responsible for, determining whether your use of zipVault® to store documents complies or does not comply with any and all laws, rules and regulations relating to retention or audit of records including, but not limited to, the Electronic Signatures in Global and National Commerce Act (E-Sign), the Uniform Electronic Transactions Act (UETA) and your state’s laws and regulations pertaining to retention or audit of records and the real estate industry. If you are unsure whether your use of zipVault® to store documents complies or does not comply with relevant law, please consult an appropriate professional, such as an attorney. G. TouchSign®. 1. In General. (a) You must be at least eighteen (18) years old to use TouchSign®. (b) Acquired as part of zipForm® Mobile Web Edition. If you acquired a TouchSign® license as part of your zipForm® Mobile Web Edition subscription, zipLogix grants you a license to use TouchSign ® for the duration of your zipForm® Mobile Web Edition subscription. Should your zipForm® Mobile Web Edition license terminate, your access to and use of TouchSign® will terminate simultaneously and your subscription fee, if any, shall not be refunded. 2. Transaction Document Storage. You agree that zipLogix has no responsibility or liability whatsoever for the deletion, corruption or failure to store any signature, transaction, template, clause, content, form or document 15 �executed or transmitted by TouchSign®. If you wish to save documents you have signed using TouchSign ® you should export those documents to zipVault® or another external storage location, such as by saving documents in .pdf form on your computer or on a CD-ROM. 3. Disclaimer; Limitations. You acknowledge and agree that zipLogix makes no representations or warranties relating to the accuracy, validity or invalidity of any authentication measure used in connection with TouchSign®. zipLogix may establish limits concerning the maximum number of documents and transactions that may be signed or transmitted, the maximum amount of disk space that will be allotted on zipLogix's servers on your behalf, and the maximum number of times and duration you may access TouchSign ® in a given period of time, which are subject to change at any time without notice. 4. Compliance with Law. As routine practice, zipLogix provides consumer disclosures for all signature transactions processed through TouchSign®. However, zipLogix shall not be responsible for, and you are solely responsible for, determining whether the use of an electronic record or electronic signature complies or does not comply with any and all laws, rules and regulations including, but not limited to, electronic record and electronic signature laws such as the Electronic Signatures in Global and National Commerce Act (E-SIGN) or the Uniform Electronic Transactions Act (UETA) and your state’s laws and regulations pertaining to electronic records and electronic signatures and the real estate industry. zipLogix shall not be responsible or liable for, and you are solely responsible for, determining whether a consumer (as defined under applicable law) must be provided with a disclosure required by law to be in writing, whether the delivery of an electronic record satisfies such law, and for providing such disclosure to the consumer. zipLogix makes no representations or warranties that the consumer disclosures in TouchSign® are appropriate for or provide all of the disclosures as required for your particular transaction. If you are unsure whether your electronic record or electronic signature complies or does not comply with relevant law, please consult an appropriate professional, such as an attorney. H. zipConsult™. zipLogix provides a link in the Forms Software to zipConsult™, a web conferencing tool. zipConsult™ is powered by AnyMeeting, which is a Third Party Product. All right, title and interest in and to AnyMeeting belongs solely to AnyMeeting and/or its licensors, as applicable. zipLogix and its affiliates make no representations, guarantees or warranties whatsoever regarding the use, content, legality or sufficiency of AnyMeeting. By accessing zipConsult™, you agree to comply with AnyMeeting’s Terms of Service and Privacy Policy set forth on AnyMeeting’s website, currently located at www.anymeeting.com/accountmanager/messages/AnyMeetingTermsOfService.htm and www.anymeeting.com/Privacy.aspx, as may be amended from time to time. You agree to comply with all telephonic and electronic recording laws, rules and regulations in connection with your use of zipConsult™, and you agree to indemnify, defend, and hold zipLogix harmless for any breach of this obligation. QUESTIONS Should you have any questions concerning this Agreement, or if you desire to contact zipLogix for any reason, please contact zipLogix at: zipLogix P.O. Box 130 Fraser, MI 48026 www.zipform.com Effective: June 24, 2016 Last Revised: June 24, 2016 16 �
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End User License Agreement for AT&T ENHANCED PTT INTEGRATED DISPATCH SOFTWARE READ CAREFULLY - BY DOWNLOADING OR USING THE AT&T ENHANCED PUSH-TO-TALK (“PTT”) INTEGRATED DISPATCH SOFTWARE, YOU ARE AGREEING TO THE TERMS OF THIS LICENSE AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT CLICK THE “ACCEPT” BUTTON OR DOWNLOAD, INSTALL OR USE THE SOFTWARE. BY CLICKING THE “ACCEPT” BUTTON OR DOWNLOADING, INSTALLING OR USING THE SOFTWARE, YOU AFFIRM THAT YOU ARE EITHER OVER THE AGE OF MAJORITY IN YOUR JURISDICTION OF RESIDENCE, OR ARE AN EMANCIPATED MINOR, OR POSSESS LEGAL PARENTAL OR GUARDIAN CONSENT, AND THAT YOU ARE FULLY ABLE AND COMPETENT TO ENTER INTO THE TERMS, CONDITIONS, OBLIGATIONS, AFFIRMATIONS, REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS LICENSE AND IN THE RELATED AGREEMENTS, AND TO ABIDE BY AND COMPLY WITH THIS LICENSE AND THE RELATED AGREEMENTS. IF YOUR COMPANY PAYS THROUGH AN AT&T WIRELESS SERVICE PLAN FOR THE WIRELESS SERVICE THAT YOU USE IN CONNECTION WITH YOUR USE OF THIS SOFTWARE, THIS LICENSE IS SUBJECT TO THE ARBITRATION CLAUSE OF THE APPLICABLE AGREEMENT BETWEEN YOUR COMPANY AND AT&T, AS AMENDED FROM TIME TO TIME. IF YOUR COMPANY DOES NOT PAY FOR THE WIRELESS SERVICE THAT YOU USE IN CONNECTION WITH YOUR USE OF THE SOFTWARE, BUT INSTEAD YOU HAVE AN INDIVIDUAL AT&T WIRELESS SERVICE PLAN THAT YOU ARE USING OR THAT IS BEING BILLED IN CONNECTION WITH YOUR USE OF THE SOFTWARE, THEN THIS LICENSE IS SUBJECT TO THE ARBITRATION CLAUSE OF YOUR APPLICABLE AT&T WIRELESS CUSTOMER AGREEMENT, AS AMENDED FROM TIME TO TIME. USE OF THIS SOFTWARE MAY ALLOW YOUR COMPANY TO ACCESS YOUR DEVICE AND TO VIEW AND MANAGE SOFTWARE, TRANSACTIONS, AND INFORMATION ON YOUR DEVICE. IF YOU DO NOT INTEND TO ALLOW THIS ACCESS TO YOUR COMPANY, DO NOT DOWNLOAD AND USE THIS SOFTWARE. As used herein, “Software” includes, without limitation, any services specific to the Software or Software (excluding, however, your applicable wireless service plan), software code, scripts, interfaces, graphics, displays, text, images, artwork, music or video clips, documentation and other components or content and any updates, modifications or enhancements to these items accompanying the Software or this License. As used here, “Device” includes, without limitation, personal computers, laptops, tablets, smartphones and other computing equipment used with this Software. These terms are an agreement between you and AT&T Corp. and its affiliates (individually and collectively, “AT&T”). “You” and “Your” (upper or lower case) in this License refer to you, an individual, and/or to the company on whose behalf you accept this License. 1. GRANT OF LICENSE. Subject to the terms of this Agreement, AT&T ("Licensor") hereby grants you a limited, non-transferable, royalty-free, nonexclusive license to use AT&T Enhanced PTT Integrated Dispatch software ("Software") that you are about to activate only in accordance with any documentation that accompanies it and the AT&T EPTT terms of use as defined at www.att.com/eptt. The Software is licensed not sold. By clicking the “accept” button or downloading or using the Software, You are entering into and agreeing to be bound by the terms of this License, the AT&T Acceptable Use Policy located at www.att.com/aup, and the AT&T Privacy Policy located at www.att.com/privacy, each as amended from time to time, which policies are incorporated herein by reference. The AT&T Privacy Policy will only apply to information that is provided to or accessed by AT&T. Information provided to and/or accessed by your company in connection with the Software will be governed by your company’s policies and practices, which AT&T does not control or guarantee. If at any time after reviewing the �Software you wish to terminate this License, you must un-install and remove the Software from your Device, and delete any copy in your possession. If AT&T makes any updates or upgrades to the Software available to you, such updates or upgrades shall be subject to the terms and conditions of this License unless the Software is expressly provided to you under other, or additional terms and conditions, in which case, those other, or additional terms and conditions (which may include the payment of additional fees), shall apply. 2. RESTRICTIONS. Except as expressly and unambiguously permitted by this Agreement, you shall not, nor permit anyone else to, directly or indirectly: (i) copy, modify, or distribute the Software; (ii) reverse engineer, disassemble, reconstruct, decompile translate, adapt or create derivative works of the Software, including without limitation, any aspect or portion thereof or otherwise attempt to discover the source code, algorithms or structure, sequence and organization of the Software (except to the limited extent the foregoing restrictions are prohibited by applicable local law); (iii) use the Software for performing comparisons or other "benchmarking" activities, either alone or in connection with any software (and you will not publish any such performance information or comparisons); (iv) rent, lease, redistribute, resell or display any part of the Service; (v) hack or break any security mechanism of the Software or (vi) reproduce, archive, retransmit, distribute, disseminate, sell, lease, rent, exchange, modify, broadcast, synchronize, publicly perform, publish, publicly display, make available to third parties, transfer or circulate the Software except as otherwise allowed herein. You shall maintain and not remove or obscure any proprietary notices on the Software. As between the parties, title, ownership rights, and intellectual property rights in and to the Software, and any copies, portions or derivatives thereof, shall remain with Licensor and its suppliers or licensors. You understand that Licensor may modify or discontinue offering the Software at any time. The Software is protected by the copyright laws of the United States and international copyright treaties. This Agreement does not give you any rights not expressly granted herein. 3. ENHANCEMENTS. This Agreement does not entitle you to any upgrades, patches, feature additions, or fixes for the Software (collectively, "Enhancements"), and any such Enhancements provided are at AT&T’s discretion. Any such Enhancements for the Software that may be made available by Licensor shall become part of the Software and subject to this Agreement. 4. WARRANTY DISCLAIMER. LICENSOR PROVIDES THE SOFTWARE ON AN "AS IS" AND “AS AVAILABLE” BASIS, AND THAT YOUR USE OF OR RELIANCE UPON THE SOFTWARE AND ANY THIRD PARTY CONTENT AND SERVICES ACCESSED THEREBY IS AT YOUR SOLE RISK AND DISCRETION. THIS SOFTWARE IS PROVIDED WITHOUT WARRANTY OR CONDITIONS OF ANY KIND, AND LICENSOR AND ITS COLLABORATORS, AND SUPPLIERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES AND CONDITIONS, WHETHER ORAL, EXPRESS, OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES AND CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY, AND NON-INFRINGEMENT, WHETHER SUCH WARRANTIES OR CONDITIONS MAY BE IMPLIED BY STATUTE, CUSTOM, COURSE OF DEALING BETWEEN THE PARTIES, TRADE USAGE OR COMMON LAW. FURTHERMORE, AT&T AND ITS COLLABORATORS, SUPPLIERS AND LICENSORS MAKE NO WARRANTY THAT (I) THE SOFTWARE OR THIRD PARTY CONTENT AND SERVICES WILL MEET YOUR REQUIREMENTS; (II) THE SOFTWARE OR THIRD PARTY CONTENT AND SERVICES WILL BE UNINTERRUPTED, ACCURATE, RELIABLE, TIMELY, SECURE, FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS OR ERROR-FREE; (III) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL ACCESSED OR OBTAINED BY YOU THROUGH THE SOFTWARE WILL BE AS REPRESENTED OR MEET YOUR EXPECTATIONS; OR (IV) ANY ERRORS IN THE SOFTWARE OR THIRD PARTY CONTENT AND SERVICES WILL BE CORRECTED. AT&T DOES NOT CONTROL AND IS NOT RESPONSIBLE FOR ANY ACCESS TO, USE OR MISUSE OF YOUR INFORMATION BY YOUR COMPANY, AND �HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND GUARANTIES REGARDING YOUR COMPANY’S ACCESS TO, USE OR MISUSE OF YOUR INFORMATION. AT&T DOES NOT WARRANT THAT THE SOFTWARE WILL BE COMPATIBLE OR INTEROPERABLE WITH YOUR DEVICE OR ANY OTHER PIECE OF HARDWARE, SOFTWARE, EQUIPMENT OR DEVICE INSTALLED ON OR USED IN CONNECTION WITH YOUR DEVICE. FURTHERMORE, YOU ACKNOWLEDGE THAT COMPATIBILITY AND INTEROPERABILITY PROBLEMS CAN CAUSE THE PERFORMANCE OF YOUR DEVICE TO DIMINISH OR FAIL COMPLETELY, AND MAY RESULT IN PERMANENT DAMAGE TO YOUR DEVICE, LOSS OF THE DATA LOCATED ON YOUR DEVICE, AND CORRUPTION OF THE SOFTWARE AND FILES LOCATED ON YOUR DEVICE. YOU ACKNOWLEDGE AND AGREE THAT AT&T AND ITS COLLABORATORS, SUPPLIERS AND LICENSORS, AND THEIR OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, SHALL HAVE NO LIABILITY TO YOU FOR ANY LOSSES SUFFERED, RESULTING FROM OR ARISING IN CONNECTION WITH COMPATIBILITY OR INTEROPERABILITY PROBLEMS. SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE BURDEN OF ALL NECESSARY EXPENSES, SERVICING, REPAIR, OR CORRECTION. THESE OBLIGATIONS SURVIVE TERMINATION OF THIS LICENSE. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU. 5. LIMITATION OF LIABILITY. LICENSOR DOES NOT EXCLUDE OR LIMIT ITS LIABILITY (I) IN NEGLIGENCE FOR DEATH OR PERSONAL INJURY, OR (II) FOR FRAUD, OR (III) OTHERWISE TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF ITS LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY LAW. EXCEPT FOR THE FOREGOING, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE, SHALL LICENSOR OR ITS LICENSORS, SUPPLIERS OR RESELLERS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY (I) INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS OR COMPUTER FAILURE OR MALFUNCTION OR FOR ANY OTHER LOSSES THAT COULD NOT HAVE BEEN REASONABLY FORESEEN, OR (II) AMOUNTS IN THE AGGREGATE IN EXCESS OF THE FEES PAID BY YOU IN CONNECTION WITH THE SOFTWARE. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU. 6. INFRINGEMENT. AT&T HAS NO DUTY TO DEFEND, INDEMNIFY, OR HOLD YOU HARMLESS FROM OR AGAINST ANY SETTLEMENTS, DAMAGES, COSTS AND OTHER AMOUNTS INCURRED BY YOU ARISING FROM THE ACTUAL OR ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY BASED ON THE SOFTWARE. 7. EXPORT CONTROLS. You shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control ("OFAC"), or other United States or foreign agency or authority, and you shall not export, or allow the export or re-export of the Software in violation of any such restrictions, laws or regulations. By activating or using the Software, you agree to the foregoing and represents and warrant that you are not located in, under the control of, or a national or resident of any restricted country. 8. PERSONAL INFORMATION. AT&T may disclose certain information relevant to your use of the Software to your Company, including, without limitation, your name, wireless telephone number, personal wireless account status and applicable wireless network provider/carrier, Device number, Device make and manufacturer, and other operational Device information such as battery level and signal strength. This Agreement constitutes your consent to such disclosures. This notice may serve as �AT&T’s sole notice to you that the Software may disclose your personal information to your company, and you may not receive any reminders or further notice. If you no longer wish to allow your company to have access to you personal information as described above, you must uninstall the software and delete the Software from your Device. 9. SEVERABILITY. If any provision of this License is held to be invalid or unenforceable with respect to a party, the remainder of this License, or the application of such provision to persons other than those to whom it is held invalid or unenforceable shall not be affected and each remaining provision of this License shall be valid and enforceable to the fullest extent permitted by law. 10. WAIVER. Except as provided herein, the failure to exercise a right or require performance of an obligation under this License shall not affect a party’s ability to exercise such right or require such performance at any time thereafter nor shall the waiver of a breach constitute waiver of any subsequent breach. 11. INDEMNIFICATION. You agree to indemnify, defend and hold harmless AT&T from and against any claim, proceeding, loss, damage, fine, penalty, interest and expense (including, without limitation, fees for attorneys and other professional advisors) arising out of or in connection with the following: (i) your access to or use of the Software or Third Party Content and Services; (ii) your breach of this License; (iii) Your violation of law; (iv) your negligence or willful misconduct; or (v) your violation of the rights of a third party. You will promptly notify AT&T in writing of any third-party claim arising out of or in connection with your access to or use of the Software. These obligations survive termination of this License 12. MODIFICATION OR AMENDMENT. AT&T may modify or amend the terms of this License at any time, with or without notice to you, by posting a copy of the modified or amended License available through the Software. You will be deemed to have agreed to any such modification or amendment by your decision to continue using the Software following the date in which the modified or amended License is made available through the Software. 13. ENTIRE AGREEMENT. This License, including the documents incorporated herein by reference, constitutes the entire agreement with respect to the use of the Software licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter. 14. MISCELLANEOUS. This Agreement is specific to you and you shall not assign or transfer the Agreement or the Software to any third party under any circumstances. Licensor may assign this Agreement in whole or in part. This Agreement shall be governed by and construed under Texas law, without regard to the conflict of laws provisions thereof and without application of the United Nations Convention on Contracts for the International Sale of Goods. If you are located outside of the United States, then, without limiting either party’s right to seek injunctive or other equitable relief in court, either party may elect (by written notice given prior to filing a complaint or, in the case of the defendant, prior to answering a complaint) to resolve a dispute by binding arbitration in the English language in your country of residence under the International Arbitration Rules of the International Centre for Dispute Resolution; the decision of the arbitrator will be enforceable in any court. The original of this Agreement has been written in English, and that version will apply if there is any dispute. �
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Audio Hero End User License Agreement TERMS AND CONDITIONS AudioHero’s royalty free music and sound effects (“AudioHero.com Music and Sound Effects”) are sold to you with a lifetime non-transferable license (“License”) for synchronization rights only. By accepting any AudioHero.com Music and Sound Effects, you acknowledge and agree to the stated terms, conditions and limitations of use. In the event of a breach of this License agreement, action may be taken against you directly by the owner of the copyright. AudioHero.com Music and Sound Effects must be purchased directly from AudioHero.com. Unauthorized resale or redistribution of AudioHero.com Music and Sound Effects is prohibited. RIGHTS GRANTED You have the right to synchronize AudioHero.com Music and Sound Effects with audio and/or visual productions or applications such as: film, video, DVD & TV productions • training, marketing & trade show presentations • corporate videos & educational applications • on hold messages & advertising • radio presentations & commercials • television programs & commercials • live performances • speech & audio book products • Web pages & multimedia presentations • Online streaming and video broadcast sites such as Youtube • Social Media such as Facebook & Twitter • PowerPoint & Flash productions • interactive programs, computer games & synchronized content for Apps • AV & computer generated displays • podcasts (all such applications hereinafter referred to as "the Production").You may create copies of the Production for distribution without limitations - no additional clearances or paperwork are required.You may also synchronize AudioHero.com Music and Sound Effects an unlimited number of times and distribute the Production worldwide without restrictions. The rights and limitations to AudioHero.com Music and Sound Effects as outlined in this License agreement are in effect for the life of the Production and pass automatically to the End User of the Production. Please note however, that all rights not expressly granted within this License agreement are reserved. LIMITATIONS Copyright infringement is a serious offence. AudioHero.com protects its copyright by all necessary means, including legal action.You are NOT authorized to: �• Make copies of any unsynchronized AudioHero.com Music and Sound Effects, in any format. This License has the sole purpose of granting you the rights to specific audio and/or visual synchronization of AudioHero.com Music and Sound Effects. The registered user is granted a single user license, meaning that only the registered user can use AudioHero.com Music and Sound Effects. This License is not transferable. • Copy, duplicate, provide access to, sell, lease, loan or give away unsynchronized AudioHero.com Music and Sound Effects by any means including the World Wide Web, streaming audio or any delivery method now known or which shall become known. • Transfer, re-record, copy or duplicate any AudioHero.com Music and Sound Effects, in whole or in part, for any purpose not authorized under the terms of this License agreement.You may not transfer AudioHero.com Music and Sound Effects electronically or via any peer to peer file sharing program, FTP site, service bureau operation, DRS, computer network or in any way not expressly allowed by AudioHero.com. • Provide remote access to unsynchronized AudioHero.com Music and Sound Effects to any user except the registered user. • Provide AudioHero.com Music and Sound Effects in whole or in part as mobile telecom audio content such as ring tones, ringback tones, soundscapes, multimedia messaging services (MMS), voice messaging, audio enhancements, greeting mail services, or other content applications now known or which shall become known. • Provide AudioHero.com Music and Sound Effects in whole or in part within other mobile communications or entertainment applications, such as iTunes Apps, or as unsynchronized content offered in software packages. • Provide Audiohero.com Music and Sound Effects in whole or in part within retail toys, electronic sampling products or program chips. • Sell or otherwise dispose of computers, hard drives or discs or any other electronic storage media which contain AudioHero.com Music and Sound Effects, unless all the AudioHero.com Music and Sound Effects have been deleted. All AudioHero.com Music and Sound Effects maintained on any computers, hard drives, discs or any other electronic storage media must be deleted before the disposal, transfer or sale of any computer, hard drive or disc that contains AudioHero.com Music and Sound Effects. • Change or alter in any way any AudioHero.com Music and Sound Effects owned or represented by AudioHero.com (for example, by adding instruments or lyrics). PERFORMING RIGHTS Performing rights represent the entitlement of music composers and publishers to benefit from the public performance of their compositions. Performing rights societies like ASCAP and BMI in the United States and SOCAN in Canada, as well as many more around the world, have been �established to collect and fairly distribute performing rights revenues to music composers and publishers. If you use AudioHero.com Music in a television show, a feature film or a documentary production, please file a cue sheet with your local performing rights society, as a courtesy.You will not be required to pay any additional fees or costs when you file a cue sheet. WARRANTY AudioHero.com warrants that your use of AudioHero.com Music and Sound Effects in accordance with this License agreement does not infringe on any third party proprietary rights. LIABILITY AudioHero.com accepts no responsibility for any loss of business or business profits resulting directly or indirectly from the performance of any AudioHero.com Music and Sound Effects. AudioHero.com’s liability is limited and restricted solely to replacement at no charge of the AudioHero.com Music and Sound Effects in question �
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BALSAMIQ END USER LICENSE AGREEMENT Balsamiq End User License Agreement Version 3.4, Oct 2016 This Agreement applies to Balsamiq Mockups 3 for Desktop, Mockups for Confluence Server and Mockups for JIRA Server. Other Balsamiq products are covered by other agreements, as specified on http://balsamiq.com/eulas/ The individual installing or using this software represents that he or she has authority to enter into this Agreement with Balsamiq on behalf of the Licensee, that he or she has read the terms and conditions set out herein and that the Licensee accepts and agrees to be bound by this Agreement. If the Licensee does not agree with the terms and conditions, the Licensee must not use or permit the use of the Product. 1. Definitions Balsamiq means Balsamiq Studios, LLC (EIN 26-2200095) of 1517 24th Street, Sacramento, CA, 95816 USA. Authorized Machine means a single installation of a copy of the Product on a single physical computer. Authorized Use means the defined number of copies or instances of the Product that may be used by Licensee, and where applicable, limited to the number of Authorized Machines, as designated in the Quote/Receipt/Invoice issued by Balsamiq. Authorized User means a person or user account who is licensed to use the Product, regardless of whether that person is an employee, contractor, subcontractor, vendor, partner or customer of the Licensee. Commencement Date means the date on which Licensee first installs Product for the first time. Desktop Version means a version of the Product that works outside the browser, as a standalone application. License means the right to use the Product as defined by Authorized Use. Licensee means the individual or entity (inclusive of affiliates and subsidiaries) that has licensed the Product under the terms and conditions of this Agreement. Maintenance Start Date means the beginning date of the Software Maintenance period, as designated in the Quote/Receipt/Invoice issued by Balsamiq , or the Invoice date if no beginning date is specified. VERSION 3.4 – OCT 2016 1 �BALSAMIQ END USER LICENSE AGREEMENT Plug-in Version means a version of the Product that works as a plug-in to another web application, such as Balsamiq Mockups for Confluence Server and Balsamiq Mockups for JIRA Server. It does not include Balsamiq Mockups 3 for Desktop. Product means the Balsamiq product defined in the Quote/Receipt/Invoice delivered by Balsamiq to Licensee, including any documentation and updates provided under the terms of this Agreement in accordance with Clause 5. Protected Code means source code contained within the Product that is protected by Balsamiq against access. 2. License Fee A one-time fee paid by Licensee to Balsamiq, as designated by Product, in consideration for the Authorized Use of the Product. License fee is payable upon acceptance of the terms and conditions set out herein. License fee is nonrefundable after 60 days from the date payment is received by Balsamiq. 3. Grant of License Subject to the terms of this Agreement, including limitations defined by the License, Balsamiq hereby grants to Licensee, and Licensee accepts from Balsamiq, a perpetual, irrevocable (except pursuant to Clause 12 below), fullypaid, worldwide, non-exclusive, non-transferable (except pursuant to Clause 18 below), non-sublicensable (except to Licensee’s related entities) License to use the Product as defined by Authorized Use. 4. No Warranty Except as described in this Agreement and save as provided in Clauses 13, 14 and 16 below, the Product is provided on an “as is” and "as available" basis without warranty, express or implied, of any kind or nature, including, but not limited to, any warranties of performance or merchantability or fitness for a particular purpose, including without limitation that Balsamiq does not warranty that the Product will be error-free, complete, or correct. Balsamiq provides evaluation copies of the Product so that customers can assess the Product. 5. Balsamiq’s Obligations Upon receipt of Licensee Fee from Licensee, Balsamiq will (a) supply the Licensee with the Product via electronic download; and (b) provide Software Maintenance as defined in Clause 6 below. VERSION 3.4 – OCT 2016 2 �BALSAMIQ END USER LICENSE AGREEMENT 6. Software Maintenance 6.1. For Plug-in Versions Software Maintenance includes Balsamiq’s provisioning to Licensee Product updates and/or enhancements made generally available to customers from time to time, and online technical support (and where applicable, phone support) to one Licensee-designated technical contact for the sole purpose of addressing technical issues relating to the use of the Product (excluding any form of on-site visits by Balsamiq personnel or contractors), for a period of twelve (12) months from the Maintenance Start Date (the "Plug-in Initial Maintenance Period"). The Plug-in Initial Maintenance Period may be renewed for additional twelve (12) month periods ("Renewal Period") at Licensee’s sole and absolute discretion at the then-current rate for Software Maintenance. Subsequent Renewal Periods commence upon the expiration of the prior Software Maintenance regardless of when it is purchased. 6.2. For Desktop Versions Software Maintenance includes Balsamiq’s provisioning to Licensee Product minor-version updates (3.x but not 4.0 and later) and/or enhancements made generally available to customers from time to time. Software Maintenance also includes online technical support via online forums only (no email, instant messenger or phone support) to one Licensee-designated technical contact for the sole purpose of addressing technical issues relating to the use of the Product, for a period of twelve (12) months from the Maintenance Start Date. No additional support will be provided after that. 7. Licensee Obligations The Licensee must at all times: (a) ensure that only an Authorized User may use the Product and only for Authorized Use in accordance with the terms and conditions of this Agreement; (b) promptly advise Balsamiq, including in writing, if the Licensee becomes aware of any unauthorized use or distribution of the Licensee's License Information (Name and Key) by any person. 8. Unauthorized Use or Distribution Licensee may not, whether through deliberate or negligent act or act of omission, distribute or cause the distribution of the Product to any third party other than an Authorized User. 9. Investigation of Unauthorized Use and Distribution If Balsamiq reasonably suspects that the Product has been distributed to or obtained by any person or party without Balsamiq’s prior written consent, Balsamiq has the right to reasonably request once per calendar year from the Licensee an unqualified certificate executed by the Licensee’s auditor or authorized representative at the Licensee’s cost for the purpose of verifying compliance with Authorized Use of the Product. VERSION 3.4 – OCT 2016 3 �BALSAMIQ END USER LICENSE AGREEMENT 10. Licensee’s Restrictions Licensee will not, without the prior written consent of Balsamiq, which may be withheld in Balsamiq’s sole discretion and which may include certain conditions: (a) decompile, reverse engineer, disassemble, analyze, modify, adapt, convert, create derivative works from, or otherwise attempt to derive, the Protected Code; (b) sell, sublicense, redistribute, reproduce, transmit, circulate, disseminate, translate or reduce to or from any electronic medium or machine readable form the Product or any data/information provided to the Licensee through the Product to a person (except that nothing in Clause 10(b) is intended to prevent an Authorized User undertaking Authorized Use); (c) vary or amend the Authorized Use without Balsamiq’s prior written approval; (d) except as otherwise permitted in this EULA, publish, promote, broadcast, circulate or refer publicly to the Balsamiq name, trade name, trademark, service mark or logo; (e) commit any act or omission the likely result of which is that Balsamiq’s reputation will be brought into disrepute or which act or omission could reasonably be expected to have or does have a material and adverse effect on Balsamiq’s interests. In addition, the Product includes license protection mechanisms that are designed to manage and protect the intellectual property rights of Balsamiq. Licensee must not modify or alter those features to try to defeat the Product use rules that the license protection mechanisms are designed to enforce. 11. Term The term of this Agreement begins on the Commencement Date and will continue in full force and effect unless terminated in accordance with Clause 12 below. 12. Termination Licensee may terminate this Agreement at any time by destroying all copies of the Product in its possession. Either party hereto may terminate this Agreement if the other party commits a material breach and such party does not cure such material breach within thirty (30) days of written notice of such breach. Licensee agrees upon termination of this License to destroy all copies of the Product in its possession. Balsamiq reserves the right to discontinue the Product at any time. In this event, Balsamiq will announce an End-Of-Life date on the Balsamiq website. The EndOf-Life date will be at least 12 months after the announcement date. Balsamiq VERSION 3.4 – OCT 2016 4 �BALSAMIQ END USER LICENSE AGREEMENT will honor the terms of this Agreement until the End-Of-Life date. Should Licensee’s Software Maintenance period exceed the End-Of-Life date, Balsamiq will offer a refund for any unused maintenance time. At the End-Of-Life date, this Agreement will terminate. Clauses 1, 4, 8 – 10, 13 – 24 shall survive any termination of this Agreement. 13. Infringement Indemnification (a) Balsamiq will defend, indemnify, hold Licensee and its directors, officers, employees and other agents (collectively, “Licensee Indemnitees”) harmless, at Balsamiq’s sole cost and expense, any action brought against any Licensee Indemnitee based upon the claim that the Product, if used within the scope of the License granted under this Agreement, infringes, violates, or misappropriates a patent, trademark, copyright, trade secret, or other intellectual property or proprietary right (“IP Claim”); provided, however, that: (i) Licensee shall notify Balsamiq promptly in writing of any such IP Claim; (ii) Licensee shall not enter into any settlement or compromise on any IP Claim without Balsamiq’s prior written consent; (iii) Balsamiq shall have sole control of any such action and settlement negotiations so long as there is no detriment or liability to Licensee; and (iv) Licensee shall provide Balsamiq with reasonable information and assistance, at Balsamiq’s request and sole cost and expense, necessary to settle, defend, indemnify or hold harmless such IP Claim. Balsamiq agrees to pay all damages and costs incurred Licensee attributable to such IP Claim. The foregoing states the sole liability of Balsamiq and the exclusive remedy of Licensee for any infringement of intellectual property rights by the Product or any other items provided by Balsamiq hereunder. (b) If the Product becomes, or in the opinion of Balsamiq may become, the subject of a claim of infringement of any third party right, Balsamiq may, at its option and in its discretion promptly: (i) procure for Licensee the right to use the Product free of any liability; (ii) replace or modify the Product to make it noninfringing; or (iii) refund any License Fees related to this Product paid by Licensee. (c) Exclusions from Defense Obligation. Balsamiq will have no duty to defend any IP Claim to the extent such IP Claim is based on: (i) use of a superseded release of the Product, if such infringement would have been avoided by the use of a current release of the Product and Balsamiq timely notified Licensee of the availability of the non-infringing Product at no additional cost; (ii) the combination, operation, or use of the Product with programs or data not furnished by Balsamiq or at Balsamiq’s direction, or with hardware or operating system software other than the hardware platform and operating system with which the Product is designed to function, if such infringement would have been avoided by the use of the Product without such programs, data, hardware or operating systems; (iii) modification or attempted modification of the Product by anyone except Balsamiq or at Balsamiq’s direction, or use or distributions of such modifications; or (iv) VERSION 3.4 – OCT 2016 5 �BALSAMIQ END USER LICENSE AGREEMENT Licensee’s use of the Product in a manner that results in defamation, violates the privacy rights of individuals, transmits material in violation of any applicable law, rule, regulation, or uses any proprietary thirty party content without legally binding consent of such third party. (d) To the extent an IP Claim is excluded from Balsamiq’s defense obligation, is based upon the claim that any modifications to the Product or combination of the Product with products, not provided by Balsamiq or at Balsamiq’s direction, infringes or violates any third party, Licensee will defend or settle, at its expense, any action brought against Balsamiq provided, however, that: (i) Balsamiq shall notify Licensee promptly in writing of any such claim; (ii) Balsamiq shall not enter into any settlement or compromise any such claim without Licensee’s prior written consent; (iii) Licensee shall have sole control of any such action and settlement negotiations; and (iv) Balsamiq shall provide Licensee with information and assistance, at Licensee’s request and expense, necessary to settle or defend such claim. Licensee agrees to pay all damages and costs finally awarded against Balsamiq attributable to such claim. Balsamiq may elect to assume control of the defense and settlement of any such claim with counsel of its choosing; provided however, that if Licensee will not have breached its defense and settlement obligations hereunder, Licensee will have no obligation to pay the costs and expenses of such Balsamiq-controlled defense or settlement. The foregoing states the sole liability of Licensee and the exclusive remedy of Balsamiq for any infringement of intellectual property rights by the Licensee modifications or combinations or any other items provided by Licensee hereunder. (e) Notwithstanding Clause 13(a) above, Balsamiq assumes no liability hereunder for, and shall have no obligation to defend Licensee or to pay costs, damages or attorney's fees for, any claim based upon any modifications to any of the Product not approved by Balsamiq or at Balsamiq’s direction or combination of any of the Product with products not approved by Balsamiq or at Balsamiq’s direction. 14. Limitation of Liability Excluding Balsamiq’s indemnification obligations described in Clause 13 hereof, neither party hereto will be liable to any third-party for any loss, damage, cost, expense or other claim (including consequential, directly, indirect, special, punitive or other damages and loss of data or profits) in relation to this Agreement or the Product including, without limitation: (a) any use or reliance on a Product by the third-party (including the form and content of errors in and/or omissions from any information contained in a Product); (b) any delay, interruption or other failure in the provision of the Product; or (c) any change in the form or content of the Product. Excluding Balsamiq indemnification obligations described in Clause 13 hereof, in no event will either party’s liability under any claims arising out of this Agreement exceed the fees paid by Licensee under this Agreement. Except for each party's indemnification obligations or VERSION 3.4 – OCT 2016 6 �BALSAMIQ END USER LICENSE AGREEMENT breach of Clause 2 (“Licensee Fee”), 8 (“Unauthorized Use or Distribution”), or 10 (“Licensee’s Restrictions”), neither party will be liable for lost profits or for special, indirect, incidental or consequential damages, regardless of the form of action, even if such party is advised of or aware of the possibility of such damages. The foregoing liability limitations shall apply to the maximum extent allowed by applicable law. To the extent the foregoing liability limitations or the warranty disclaimers of Clause 4 are not allowed by applicable law, then the liability of Balsamiq, and the remedy of Licensee, shall be limited to the prompt: (d) re-supply of any defective Product; or (e) refund of any license fees paid by Licensee for such defective Product. 15. Ownership / Intellectual Property This Agreement only confers the right to use the Product and does not convey any rights of ownership in or to the Product. The Licensee acknowledges that the Product and all intellectual property rights in relation to the Product are the property of Balsamiq and Balsamiq is entitled to take whatever action it may decide in order to protect its intellectual property rights in the Product. Balsamiq does not claim intellectual property rights over wireframes created with the Product. 16. Open Source Code With respect to open source software, Balsamiq hereby represents and warrants: (a) that the Licensee’s use thereof does not create, or purport to create, obligations on the Licensee to grant licenses or usage rights to the general public to any source or object code, whether such code is embedded in the Product or any other software provided under this Agreement or used in conjunction therewith; (b) that in no event shall the Licensee be liable for any damages whatsoever, whether direct or indirect, and whether experienced by Balsamiq or a third party, which are related to a loss of Balsamiq or any third party resulting from such use of Open Source Software hereunder; and (c) to, and hereby does, waive any claims it may have against the Licensee in relation to The Licensee’s use of such open source software. All open source software included in Balsamiq Product is listed on Exhibit A attached to this Agreement. 17. Publicity Rights (a) The Licensee grants Balsamiq the right to include the Licensee as a customer in Product promotional material. (b) Licensee can deny Balsamiq this right by submitting a written request via email to [email protected], requesting to be excluded from Product VERSION 3.4 – OCT 2016 7 �BALSAMIQ END USER LICENSE AGREEMENT promotional material. Confirmation of such denial (via reply email) must be received prior to purchasing for this exclusion to be effective. (c) Should the Licensee come to be or already be included in Product promotional material, as a result of any prior purchases where the Licensee did not request exclusion from Product promotional material, the Licensee can at any point in time, submit a written request via email to [email protected] to have Balsamiq remove the Licensee's name from Product promotional material. Upon receipt of such request, Balsamiq will remove any reference to the Licensee from such promotional material within 30 days and make no further reference to the Licensee. 18. No Assignment or Amendment Licensee may not amend this Agreement without prior written consent of Balsamiq. Licensee may assign this Agreement to succeeding parties in the case of a merger, acquisition or change of control so long as in doing so, Balsamiq is notified in writing via email to [email protected] within ninety (90) days of the closure of such transaction. If Licensee merges into or with a direct competitor of Balsamiq, as determined in Balsamiq’s sole discretion, then this Agreement will automatically terminate as of the effective date of such merger. Balsamiq may assign its rights and obligation under this Agreement without consent of Licensee. 19. Tax Payments made by the Licensee under this Agreement exclude any taxes or duties payable in respect of the goods or services supplied in the jurisdiction where the payment is made or received. To the extent that any such taxes or duties are payable by Balsamiq, the Licensee must pay to Balsamiq the amount of such taxes or duties in addition to the license fee under this Agreement unless Licensee is exempt from paying such taxes or duties at the time such taxes or duties are levied or assessed. Balsamiq will provide the Licensee with documents requested by Licensee necessary to enable the Licensee to obtain a tax or duty refund or credit. 20. Governing Law This Agreement is governed by the laws of the State of California, USA, regardless of conflict of law provisions, and the parties hereby irrevocably and unconditionally submit to the exclusive jurisdiction of the courts in San Francisco, California, USA. 21. Attorneys Fees The prevailing party in any legal action or arbitration relating to this Agreement will be entitled to recover its attorneys’ fees and litigation costs and expenses VERSION 3.4 – OCT 2016 8 �BALSAMIQ END USER LICENSE AGREEMENT incurred in connection with such action or arbitration as part of the same proceeding. 22. Counterparts/Faxed Signatures This Agreement may be executed in any number of counterparts, each of which will be an original and all of which will constitute together one and the same document. 23. No Waiver The failure of either party hereto to prosecute its rights with respect to a breach hereunder will not constitute a waiver of the right to enforce its rights with respect to the same or any other breach. 24. Notices Balsamiq may give notice by means of a general notice on the Balsamiq website, electronic mail to your e-mail address on record with Balsamiq, or by written communication sent by first class mail or pre-paid post to your address on record. Such notice will be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Balsamiq at any time by any of the following: letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Balsamiq’s addresses on its website. Licensee agrees that the Product will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations. 25. Privacy of Authorized User’s Data Mockups for Desktop 3 is a Desktop application: the Authorized User decides where to save the projects they created with it (Authorized User Data). Mockups 3 for Confluence Server and Mockups 3 for JIRA Server run behind Licensee’s firewall, and store the data on Licensee’s server, in the form of Wiki page or Issue attachments. The Products covered by this Agreement do not “call home” nor transmit any Authorized User Data to our servers. Should they choose to, the End User can access our servers to access help manuals and other online material via the Help menu. The only data collected is related to your product purchase. When purchased from balsamiq.com Balsamiq collects the necessary information to complete the purchase and deliver the license. Additional details on what information is VERSION 3.4 – OCT 2016 9 �BALSAMIQ END USER LICENSE AGREEMENT collected with your purchase and how it is used can be found at https://balsamiq.com/privacy/ Data collected with purchases made via Atlassian Marketplace is governed by Atlassian's Privacy Policy, available at https://www.atlassian.com/legal/privacypolicy. Although Balsamiq does not have access to your files or data related to your users or usage of Product, you may need to contact us to help solve a support issue (see Clause 6). In these cases, we use return email addresses to answer the email we receive. Such addresses are not used for any other purpose and are not shared with outside parties. If you contact us outside of the public forums at https://forums.balsamiq.com/, we never share the mockups or information about your support case with other customers or the general public. VERSION 3.4 – OCT 2016 10 �BALSAMIQ END USER LICENSE AGREEMENT Exhibit A – Open Source Components All Product Versions • Adobe Flex SDK Home Page: http://opensource.adobe.com/wiki/display/flexsdk/Flex+SDK License: MPL 1.1 http://opensource.adobe.com/wiki/display/flexsdk/Legal+Stuff • Adobe as3corelib library Home page: https://github.com/mikechambers/as3corelib License: BSD - http://www.opensource.org/licenses/bsd-license.php • AlivePDF Actionscript library Home page: http://alivepdf.bytearray.org/?page_id=2 License: MIT - http://www.opensource.org/licenses/mit-license.php • Dashed Lines class by Ely Greenfield License: MIT - http://www.opensource.org/licenses/mit-license.php • AS3 Zip Home page: http://nochump.com/blog/archives/15 License: MIT - http://www.opensource.org/licenses/mit-license.php • PubNub Flash-based APIs Home page: https://github.com/pubnub/flash License: MIT - https://github.com/pubnub/flash/blob/master/LICENSE • FontAwesome Icon Font Home page: http://fortawesome.github.io/Font-Awesome/ License: SIL OFL1.1 http://scripts.sil.org/cms/scripts/page.php?site_id=nrsi&id=OFL • Redacted Font by Christian Naths Home page: https://github.com/christiannaths/Redacted-Font License: SIL OFL1.1 http://scripts.sil.org/cms/scripts/page.php?site_id=nrsi&id=OFL Balsamiq Mockups for Confluence • Apache Common File Upload library Home page: http://commons.apache.org/fileupload/ License: Apache License v.2.0 - http://www.apache.org/licenses/LICENSE2.0 VERSION 3.4 – OCT 2016 11 �
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Basware End Agreement User License 1 (3) CONFIDENTIAL IMPORTANT NOTICE: READ CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING END USER LICENSE FOR BASWARE PRODUCTS By downloading, installing or otherwise using the Basware Message Software Product (“Product”), or clicking an “accept” button or a logical equivalent, you are binding yourself and the business entity you represent (“Customer”) (hereinafter collectively “You”) to the terms and conditions of this end user license (hereinafter “EULA”) including the warranty disclaimers and limitations of liability provisions below. If You do not agree to the terms and conditions of this EULA, do not download, install or otherwise use the Product and destroy or return the Product, all copies and accompanying documentation thereof. YOU AGREE THAT YOU HAVE READ THIS EULA, UNDERSTAND AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. 1 Product Definition As used in this EULA, the term “Product” means the Product in object code form, or any part thereof, and any and all printed, online and/or electronic documentation related thereto (hereinafter “Documentation) as well as modifications, additions, updates and upgrades of the Product supplied by Basware (hereinafter “Upgrades”). 2 License Grant The Product is licensed, not sold by Basware. Subject to compliance with the terms and conditions of this EULA and the payment of the agreed license fees, Basware hereby grants to You solely for the term of this EULA, a limited, non-exclusive, non-transferable license, without rights to sublicense, to download, install and internally use the object code of the Product following the limitations and restrictions in this EULA and respecting all the laws in force in the jurisdiction in which the Product is used. Customer shall have the right to make one (1) machine-readable copy of the Product only for backup or archival purposes provided that archival or back up copy is not installed or used on any computer. The server components of the Product are restricted to one database system unless other conditions are specified in the contract between Customer and Basware. The named user of each computer on which the Product is installed or used may also install the Product on one home or portable computer. However, the Product may not be used on the secondary computer by any other person at the same time the Product is being used on the primary computer. Basware reserves any and all rights not expressly granted herein. 3 Restrictions of License You are not entitled to assign Your rights and obligations pursuant to this EULA. You may not sublicense, sell, lease, lend, resell, distribute, alter or amend the Product or create derivative works based on the Product and neither are You entitled to reverse-engineer, disassemble or decompile the Product nor any part thereof or otherwise reduce the Product to any human-perceivable form. You may use the Product only to process the Customer’s own data and only for Customer’s internal operations. You may not use the Product to offer timesharing or other computer based services to third parties. �Basware End Agreement User License 2 (3) CONFIDENTIAL 4 Ownership and Intellectual Property Rights All rights including without limitation intellectual property rights in the Product shall remain those of Basware and/or its suppliers. The Product is protected by copyright laws and international copyright, as well as other intellectual property treaties. This license does not grant You any right to make any enhancements or Upgrades to the Product. Third party products are owned by suppliers of Basware or other third parties and are protected by copyright laws, international treaty provisions and other applicable national laws. You agree to treat third party products as copyrighted material. You may not copy third party products, except for installing the agreed number of copies (licenses) for Your use and for backup purposes. The structure, organization, algorithms and code of the Product are valuable trade secrets and confidential information of Basware and/or third parties and You agree not to disclose the same to third parties without prior written consent of Basware. You agree not to remove any copyright or other notices from the Product. 5 Maintenance and Support This EULA does not give You any rights to any Upgrades to the Product or to any extensions or enhancements to the Product developed by Basware at any time in the future unless separately agreed in writing between Customer and Basware. Basware has no obligation to furnish You with maintenance and support services unless separately agreed in writing between Customer and Basware. 6 Warranty Basware does not warrant that the use of the Product will be uninterrupted or that the Product is error free or suitable for the intended purpose. The Product is provided ”as is”. EXCEPT AS EXPRESSLY STATED OTHERWISE IN THIS EULA, BASWARE MAKES NO WARRANTY, STATUTORY, EXPRESS OR IMPLIED WITH RESPECT TO THE SOFTWARE PROVIDED HEREUNDER AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, CONFORMANCE WITH DESCRIPTIONS, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. 7 Limitation of Liability EXCLUDING CASES OF GROSS NEGLIGENCE OR INTENT, BASWARE’S LIABILITY AND THAT OF BASWARE’S RESELLERS, AGENTS, REPRESENTATIVES AND EMPLOYEES UNDER ANY BASIS WHETHER IN CONTRACT OR IN TORT IS LIMITED AT ALL TIMES TO COMPENSATE FOR DIRECT DAMAGES CAUSED BY THE PRODUCT THAT ARE PROVEN BY THE CUSTOMER AND WHICH ARE DUE TO BASWARE’S NEGLIGENCE UP TO AN AGGREGATE AMOUNT, WHICH CORRESPONDS TO THE TOTAL AMOUNT OF THE PRICE OF THE PRODUCT. EXCEPT FOR CASES OF GROSS NEGLIGENCE, INTENTIONAL MISCONDUCT OR BREACH OF CONFIDENTIALITY OBLIGATION, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY FOR ANY INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGES HOWSOEVER ARISING, INCLUDING WITHOUT LIMITATION LOST REVENUES OR PROFITS, EVEN IF THE PARTY HAS PREVIOUSLY BEEN INFORMED OF THE POSSIBILITY THAT SUCH LOSS OR DAMAGE MAY ARISE. “INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGES” SHALL MEAN ANY ECONOMIC LOSS INCLUDING, WITHOUT LIMITATION, ANY DIRECT OR INDIRECT LOSS OF PROFITS, ANTICIPATED SAVINGS, BUSINESS, CONTRACTS, REVENUE, TIME OR GOODWILL OR LOSS OR HARM OF DATA. �Basware End Agreement User License 3 (3) CONFIDENTIAL Any claims for damages hereunder must be made within six (6) months from the time at which the Party making the claim became aware of the event that gave rise to the claim. Such claims may, under no circumstances, be brought later than one (1) year from the event that gave rise to the claim in question. Basware has no liability for any damages that are attributable to any third party software, which is used in conjunction with the Product such as operating systems, database management systems or email systems, or are otherwise attributable to You or defects that are in whole or in part caused by You or other Customer personnel. 8 Term and Termination This EULA shall become effective by clicking an “accept” button or a logical equivalent and/or by downloading, installing or using the Product. Customer may terminate this EULA at any time by permanently destroying or returning at Customer’s own cost the Product, including all back-up copies and related Documentation. Your rights granted under this EULA terminate automatically without further notice from Basware if You fail to comply with any terms or conditions of this EULA. Basware may terminate this EULA immediately should any Product become, or in Licensor’s opinion be likely to become, the subject of a claim of infringement of a patent, trade secret or copyright. Basware is entitled to terminate this EULA at any time with a prior written notice of thirty (30) days. Upon termination of this EULA for any reason, You agree to return the Product, destroy all copies of the Product (including those in the memory of a computer), cease to use the Product and upon request provide Basware with a certificate on the fulfillment of Your obligations hereunder. After the expiry of the EULA, such contractual provisions, which by their nature are meant to remain in effect, shall remain in effect. Such provisions include, but are not limited to, the provisions of sections 4 (Intellectual Property Rights), 7 (Limitation of Liability) and 9 (Governing Law and Dispute Resolution). 9 Governing Law and Dispute Resolution This EULA shall be governed by the laws of the country of incorporation of Basware. Any dispute, controversy or claim arising out of or in connection with this EULA, or the breach, termination or invalidity thereof, that cannot be settled by negotiations between the Parties, shall be finally settled in the competent courts of the country of incorporation of Basware. Nothing herein shall be deemed to prevent a Party from seeking interim injunctive relief or such other relief as may be available subject to applicable law. 10 Contact Information If you have any questions about or notices relating to this EULA, or if you want to contact Basware for any reason, please find your local support service desk contact details at: www.basware.com/about-us/contact/support. �
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EULA version 200501 END USER LICENSE AGREEMENT FOR BENTLEY SOFTWARE IMPORTANT – READ CAREFULLY: This End-User License Agreement (“EULA”) is a legal agreement between you (either an individual or a single entity) and Bentley Systems, Incorporated ("Bentley") for the Bentley software and associated documentation that accompanies this EULA, which includes the associated media and Bentley internetbased services (“Software”). YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY DOWNLOADING, INSTALLING, COPYING, OR OTHERWISE ACCESSING OR USING THE SOFTWARE. YOUR ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS OF THIS EULA IS A CONDITION TO THE GRANT OF LICENSE BELOW. THIS EULA, AS MAY BE MODIFIED BY ANY APPLICABLE SIGNED WRITTEN AGREEMENT BETWEEN YOU AND BENTLEY, REPRESENTS THE ENTIRE SET OF TERMS AND CONDITIONS GOVERNING YOUR USE OF THE SOFTWARE AND SUPERSEDES ALL PRIOR OR CONTEMPORANEOUS ORAL OR WRITTEN COMMUNICATIONS, PROPOSALS AND PRESENTATIONS WITH RESPECT TO THE SOFTWARE OR THE SUBJECT MATTER OF THE EULA. If this agreement is translated into a language other than English and there is a conflict of terms between the English and the other language, the English version will control. You should keep a copy of this EULA for your records. The latest version of this EULA appears in its entirety on http://www.bentley.com/legal/eula_en.txt. Bentley may update or amend the EULA at any time without notice to you; however, the form of EULA in effect at the time of the Software acquisition will apply. Section 1: Terms and Conditions 1. CERTAIN DEFINITIONS. 1.1. “Academic Related Use” means the use of designated Software in object code form solely for internal classroom instruction or research of your teaching staff and/or students matriculated in a degree program and not to include student use in a paid employment setting or any other use prohibited under this EULA. 1.2. “Academic Software” means Software that is identified as “Academic Edition” or “Academic License” (or words of similar meaning). 1.3. “CAL” means client access license. 1.4. “Device” means a single personal computer, workstation, terminal, hand held computer, pager, telephone, personal digital assistant, Server or other electronic device used by a User. 1.5. “External User” means any individual (not an organization) who is not: (i) one of your full-time, part-time or temporary employees; or (ii) agency �temporary personnel or an independent contractor on assignment at your place of business or work-site. 1.6. “License Key” means the document furnished to you by Bentley in electronic or such other format, as determined in Bentley’s sole discretion, that sets forth a unique serial number for the Software and authorizes use of the Software. 1.7. “Production Use” means use of the Software in object code form by a single User or a Device, as applicable, solely for internal production purposes in support of one Site. 1.8. “Site” means the discrete geographic location where you first install or use the Software. 1.9. “Time Clocks” means any time clocks, copy-protection mechanisms, or other security devices embedded in the Software which may deactivate the Software after expiration of any applicable subscription or termed license period. 1.10. “User” means any individual or entity that is not an External User. 2. GRANT OF LICENSE. As and for so long as you comply with all of the terms of this EULA, Bentley grants you the right to (a) install and use one copy of the Software for Production Use in the country where the Software is first obtained and (b) use the documentation that accompanies the Software for internal, noncommercial reference purposes only. 3. RESERVED RIGHTS. You acknowledge and agree that the Software is a proprietary product of Bentley or its suppliers, distributors and unrelated third parties ("Suppliers") protected by copyright and other applicable intellectual property laws and treaty provisions. You further acknowledge and agree that the entire right, title and interest in and to the Software including associated intellectual property rights, shall remain with Bentley or its Suppliers. This license grant may be made by Bentley on behalf of Suppliers as third party beneficiaries of the license rights provided herein. Bentley retains all rights not expressly granted to you in this EULA. THE SOFTWARE IS LICENSED NOT SOLD. 4. REGISTRATION. You acknowledge that registration or activation may be required in order for you to utilize the full benefits of the Software. 5. NO RENTAL OR COMMERCIAL HOSTING. Software is licensed for Production Use only. You may not rent, lease, lend or provide commercial hosting services with the Software. You may also not use the Software to provide fee or transaction based services. Contact Bentley for the availability of alternate pricing if you desire to use the Software in such fashion. 6. NO "MULTIPLEXING" OR POOLING. Use of software or hardware that reduces the number of electronic devices directly monitored or managed by the Software or directly accessing or utilizing the Software (sometimes called "multiplexing" or "pooling" software or hardware) does not reduce the number of licenses required; the number of licenses required would equal the number of distinct inputs to the multiplexing or pooling hardware/software "front end." �7. LIMITATIONS ON REVERSE ENGINEERING. You may not decode, reverse engineer, reverse assemble, reverse compile, or otherwise translate the Software except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. To the extent that you are expressly permitted by law to undertake any of the activities listed in the previous sentence, you will not exercise those rights until you have provided Bentley with thirty (30) days prior written notice of your intent to exercise such rights. 8. DATA CAPTURE AND USE. You agree that Bentley may collect and utilize technical information gathered as part of Software support services that may be provided to you. Data capture in this form will only be used to improve Bentley’s products and/or provide customized services to you and will not be disclosed or disseminated to third parties except in an aggregated form. 9. ARCHIVAL COPY. You may make one copy of the Software on media appropriate for your single Device for the express purpose of backup in the event that the Software media is damaged or destroyed, provided that you reproduce and include on the backup copy all the information appearing on the original labels. 10. RESTRICTIONS ON CERTAIN SOFTWARE. Software identified as demo, evaluation, BDN, Beta or “NFR” (or “Not for Resale” or with words of similar meaning) may not be sold, bartered or otherwise transferred. Such Software may not be used for any purpose other than your testing or evaluation unless specified otherwise pursuant to a separate agreement signed by both you and Bentley. 11. ACADEMIC SOFTWARE. For Academic Software, Bentley hereby grants you a non-exclusive right and license to use in object code form such Academic Software for Academic Related Use only. You may not sell, barter or otherwise transfer Academic Software. Special Note Applicable to Academic Software: If you have covered the Academic Software subject to this EULA pursuant to a valid BEN SELECT Agreement (or successor agreement) with Bentley then you may be entitled to additional and incremental licensing benefits to those set forth in this EULA by virtue of that relationship. In the event that Academic Software is no longer covered by a valid BEN SELECT agreement due to termination of the BEN SELECT agreement or any other reason, then you will lose those incremental benefits, and your license rights will only be as set forth in this EULA. 12. TIME CLOCKS. Bentley’s default licensing term is perpetual unless otherwise specifically identified for the Software licensed. If you have licensed the Software subject to this EULA for a term shorter than a perpetual license, you acknowledge that the Software may be delivered to you with embedded Time Clocks. You agree that Time Clocks are not considered a defect of the Software and you release Bentley from any and all claims, however characterized, arising from or related to Time Clocks or their operation. 13. TRANSFER. Internal. You may transfer the Software and the EULA to a different Device at the same Site, provided you completely remove the Software from all prior Devices. You may also make a one-time transfer of a CAL to another of your Users or Devices located at the same Site. In order to accomplish these transfers you may need to contact Bentley. External. You may not transfer the Software and license �granted under this EULA, or a CAL, to a third party without Bentley's prior written consent. If such consent is obtained, you may permanently transfer the Software and the license granted under this EULA, or the CAL, provided you transfer the Software and all and media to such third party, and you do not retain any copies. The recipient of such transfer must agree to all terms and conditions of the EULA. Any purported sublicense, assignment, transfer or encumbrance is void without Bentley's prior consent. 14. UPGRADES. You may not use any Software identified as an upgrade unless you are properly licensed to use Software which Bentley has identified as being eligible for an upgrade. After installing an upgrade, you may use the original Software product that was eligible for an upgrade provided that at any one time you use only the upgraded Software or the prior Software version subject to the upgrade. 15. NO EXTENSION OF CAPABILITIES. You may develop your own applications that interoperate or integrate with the Software. Bentley prices its Software, among other factors, based on capabilities that we expose to you. You may not extend the Software to enable or unlock capabilities of the Software not specifically identified by Bentley as forming part of the specified end user functionality. 16. SEPARATION OF COMPONENTS. The Software is licensed as a single product. Component parts of the Software may not be separated and installed or used on multiple Devices. 17. TERMINATION. If you breach the terms and conditions of this EULA, Bentley may terminate this EULA without prejudicing any of its other rights. In such event you must destroy and remove all copies of the Software from your Device(s). Sections 1, 3, 13, 20, 21, 23, 25, 26, 27, 28 and 29 specifically survive termination. 18. NO AUTOMATED USE. A license for the Software may not be shared or used concurrently on different Devices, nor to support multiple User or operational requests as indicated above. As a result, you may not use the Software in an automated, unattended, non-interactive server application or component (including ASP) where: (i) multiple User requests from different Users are queued for processing; or (ii) multiple requests from one User are queued for processing but acting against content created or edited by other Users. Examples which would violate this Section 18 include but are not limited to use as a plot server, file translator, print server or other applications using or employing similar methods. 19. LIMITED WARRANTY. Except for Software which is identified as no-charge, free, demo, evaluation, BDN, Beta or NFR, which is provided to you “AS-IS” and specifically without warranty of any kind, for sixty (60) days from the date of first installation (the "Warranty Period"), Bentley warrants that (i) the Software will perform substantially in accordance with the functional specifications in the documentation which accompanies the Software; and (ii) the media on which the Software is distributed meets generally accepted industry standards. It is understood that neither Bentley nor its Suppliers are responsible for your use of the Software or the results from such use. It is further understood that there may be errors or omissions in the information contained in the Software, that the information contained in the Software may not be current or complete and that defects in �hardware or software may prevent you from gaining access to the Software. This limited warranty is offered by Bentley alone, and is not extended to any software code that may be contributed to the Software by our Suppliers. Any supplements or updates to the Software (including but not limited to fixes, work in progress builds, or subsequent updates) provided to you after the expiration of the Limited Warranty period above are not covered by any warranty or condition, express, implied or statutory. 20. DISCLAIMER. THE FOREGOING LIMITED WARRANTY STATES THE SOLE AND EXCLUSIVE REMEDIES FOR BENTLEY’S OR ITS SUPPLIER’S BREACH OF WARRANTY. EXCEPT FOR THE LIMITED WARRANTY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BENTLEY AND ITS SUPPLIERS PROVIDE THE SOFTWARE AS IS AND WITH ALL FAULTS, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION, BENTLEY AND ITS SUPPLIERS DISCLAIM ANY AND ALL OTHER WARRANTIES, FOR ITSELF AND FOR ALL SUPPLIERS, EITHER STATUTORY, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF GOOD TITLE, WARRANTIES AGAINST INFRINGEMENT, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THIS LIMITED WARRANTY GIVES YOU SPECIFIC RIGHTS; YOU MAY HAVE OTHER RIGHTS, WHICH VARY AMONG JURISDICTIONS. 21. HIGH RISK ACTIVITIES. The Software is not fault tolerant and is not designed, manufactured or intended for use or resale as control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Software could lead directly to death, personal injury, or severe physical or environmental damage ("High Risk Activities"). Accordingly, Bentley and its Suppliers specifically disclaim any express or implied warranty of fitness for High Risk Activities. 22. END USER REMEDIES. If a defect in the Software appears that constitutes a breach of the above Limited Warranty, Bentley shall, at its sole option, repair the Software, refund the price you paid for the Software or replace the defective item(s), provided that: (i) you notify Bentley of the defect during the Warranty Period; (ii) the Software is not modified, changed, or altered by anyone other than Bentley, unless authorized by Bentley in writing; (iii) your computer equipment is in good operating order and the Software is installed in an officially supported environment; and (iv) the non-conformity is not caused by a third party or by you, your agents, employees or contractors. Repaired, corrected, or replaced Software shall be covered by this limited warranty for the period remaining under the warranty covered by the original Software, or if longer, for thirty (30) days after the date: (a) of installation by you of the repaired or replaced Software, or (b) Bentley advised you how to operate the Software so as to achieve the functionality described in the documentation. YOU AGREE THAT THE FOREGOING CONSTITUTES YOUR SOLE AND EXCLUSIVE REMEDY FOR BREACH BY BENTLEY OF THE LIMITED WARRANTY MADE IN THIS EULA. Outside the United States, neither these �remedies nor any product support services offered by Bentley are available without proof that you acquired the accompanying copy of the Software from an authorized source outside the United States. 23. LIMITATION OF LIABILITY. Regardless of whether any remedy set forth herein fails of its essential purpose by law, in no event will Bentley or its Suppliers be liable for indirect, special, incidental, economic or consequential damages, regardless of the nature of the claim, including without limitation lost profits, costs of delay, interruption of business, loss of use, costs of lost or damaged data or documentation or liabilities to third parties arising from any source, even if Bentley has been advised of the possibility of such damages. In no event shall the liability of Bentley or its Suppliers exceed the amount paid by you (in the currency used to purchase) for the Software. Some jurisdictions do not allow the exclusion or limitation of implied warranties or limitation of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you. THE PROVISIONS OF THIS EULA ALLOCATE THE RISKS BETWEEN BENTLEY AND YOU. BENTLEY’S PRICING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN. 24. STATUTORY CONSUMER RIGHTS. Nothing in this EULA is meant to contravene statutory rights that consumers may have pursuant to local law. 25. EXPORT CONTROLS. The Software has been manufactured or developed in the United States of America and accordingly may be subject to U.S. export control laws, regulations and requirements. Regardless of any disclosure made by you to Bentley of an ultimate destination of the Software, you must not export or transfer, whether directly or indirectly, the Software, or any portion thereof, or any system containing such Software or portion thereof, to anyone outside the United States (including further export if you took delivery of the Software outside the United States) without first complying strictly and fully with all export controls that may be imposed on the Software by the United States Government or any country or organization of nations within whose jurisdiction you use the Software. The countries subject to restriction by action of the United States Government are subject to change, and it is your responsibility to comply with the United States Government requirements as they may be amended from time to time. You shall indemnify, defend and hold Bentley harmless for any breach of your obligations pursuant to this Section. 26. U.S. GOVERNMENT RESTRICTED RIGHTS. If the Software is acquired for or on behalf of the United States of America, its agencies and/or instrumentalities ("U.S. Government"), it is provided with restricted rights. The Software and accompanying documentation are "commercial computer software" and "commercial computer software documentation," respectively, pursuant to 48 C.F.R. 12.212 and 227.7202, and "restricted computer software" pursuant to 48 C.F.R. 52.227-19(a), as applicable. Use, modification, reproduction, release, performance, display or disclosure of the Software and accompanying documentation by the U.S. Government are subject to restrictions as set forth in this Agreement and pursuant to 48 C.F.R. 12.212, 52.22719, 227.7202, and 1852.227-86, as applicable. Contractor/Manufacturer is Bentley Systems, Incorporated, 685 Stockton Drive, Exton, PA 19341-0678. �27. GOVERNING LAW. This EULA will be governed by and construed in accordance with the substantive laws in force in the Commonwealth of Pennsylvania. The state courts located in Chester County, Pennsylvania and the federal courts located in Philadelphia, Pennsylvania shall have exclusive jurisdiction over all disputes relating to this Agreement. To the maximum extent permitted by applicable law, the parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods, as amended, and of the Uniform Computer Information Transactions Act, as it may have been or hereafter may be in effect in any jurisdiction shall not apply to this Agreement. 28. SEVERABILITY. The provisions of this EULA shall be deemed to be separable and the invalidity of any provision hereof shall not affect the validity of the remainder of this Agreement. 29. NOTICES. Please send all notices under this EULA to Bentley Systems, Incorporated, Attn: General Counsel, 685 Stockton Drive, Exton, PA 19341-0678. 30. QUESTIONS. Should you have any questions regarding this EULA, please contact the Bentley subsidiary serving your country, or write to: Bentley Systems, Incorporated, Legal Department, 685 Stockton Drive, Exton, PA 19341-0678. 31. RE-DISTRIBUTION OF BENTLEY® VIEW™. If you are interested in redistributing Bentley View either internally or externally to your organization, please complete the online Bentley View Distribution Agreement found at: http://www.bentley.com/bentleyview/redistribute.html. Section 2: Terms Applicable to Server Software This section details the installation, use and licensing of Server Software and associated CALs as well as External Connector licenses. 1. CERTAIN ADDITIONAL DEFINITIONS. 1.1. “Client Software” means software that allows a Device to access or utilize Server Software (and, also where applicable to utilize certain aspects of the Software when disconnected from the Server). 1.2. "External Connector" means a separately licensable module for specific Server Software which authorizes use of the Server Software by External Users. 1.3. "Per Processor" is a Server Software licensing mode where you are licensed to utilize the Server Software on one or more physical or virtual processors within a designated Server. 1.4. “Per Server” is a Server Software licensing mode where you are licensed to utilize the Server Software on all processors physically contained within the designated Server. 1.5. "Per User" or “Per Device” are licensing modes that requires you to license a separate CAL for each unique User or Device that accesses or utilizes the Server Software. 1.6. “Server” means any one of your computers that can run Server Software. �1.7. “Server Software” means Software that provides services or functionality to your Server(s). 1.8. "Server/CAL" is a licensing mode where the maximum number of Users (or Devices, if applicable) which may access or utilize the Server Software at a given interval is less than or equal to the number of CALs that you have acquired and designated for use exclusively with that Server Software. 2. LICENSING MODES. 2.1. Servers. Bentley licenses Server Software on a Server/CAL basis with either Device or User CALs and/or on a Per Processor basis. Some Server Software may be eligible for External Connector licensing. Server Software may be limited, even in Server/CAL licensing mode, as to the total number of Devices and/or Users that may access a designated Server Product. Unless explicitly specified in the documentation accompanying the Server Software, the default licensing mode for all Server Software is Server/CAL with User CALs. 2.2. CALs. CALs are licensed by Bentley on a per Server, per Device or per User basis. A User CAL permits one User (using any Device) to access or use the Server Software. A Device CAL permits one Device to access or use the Server Software. Special Note Applicable to CAL Licensing: If you have covered the CALs and Server Software subject to this EULA pursuant to a valid SELECT Agreement with Bentley then you may be entitled to additional and incremental licensing benefits to those set forth in this EULA by virtue of that relationship. In the event your SELECT Agreement with Bentley terminates or you otherwise elect to remove CALs and/or their associated Server Software from coverage pursuant to a SELECT Agreement with Bentley then you will lose those incremental benefits, and your license rights will only be as set forth in this EULA. 2.3. External Connectors. Certain Server Products may be licensed to support External Users by virtue of an External Connector license. 3. GRANT OF LICENSE FOR SOFTWARE IN SERVER/CAL MODE. As and for so long as you comply with all of the terms of this EULA, Bentley grants you the following rights: 3.1. Installation and Use. (a) Server Software. You may install and use one copy of the Server Software for Production Use on a single Server in the country where the Server Software was first obtained. You may also use the documentation that accompanies the Server Software for internal, non-commercial reference purposes only. (b) Client Software. You may install and use the Client Software on the aggregate total number of Devices to which you have dedicated a CAL for such usage. (c) CALs. A separate CAL is required for each User or Device that accesses or uses Server Software on any of your Servers. A CAL grants a User (using �any Device) or a Device the right to access or otherwise utilize the Server Software you have deployed on your Server. The maximum number of Users or Devices that may access or use Server Software installed on a particular Server at a given interval equals the number of CALs (of either type) that you acquire and designate for use exclusively with that Server. CALs cannot be pooled among internal Users or Devices and are tied to one Server Software installation. (d) Passive Fail-Over Server. If the Server Software is used in a clustered environment, you may use the Server Software on a temporary basis on a Server that is employed only and exclusively for fail-over support. 4. GRANT OF LICENSE FOR SERVER SOFTWARE IN PER SERVER MODE. As and for so long as you comply with all of the terms of this EULA, Bentley grants you the following rights: 4.1. Installation and Use (a) Server Software. You may install and use one copy of the Server Software for Production Use on a single Server in the country where the Server Software was first obtained. You may also use the documentation that accompanies the Server Software for internal, non-commercial reference purposes only. In Per Server licensing mode, the Bentley default is that you may use the Server Software on all processors physically contained within that one Server. If the Server Software is licensed in Per Processor mode, you may only use the Software on the authorized and licensed number of processors (physical or virtual) within that Server. (b) Client Software. In Per Server licensing mode, unless Bentley licenses the Server Software with a limitation on the maximum number of Devices or Users that may access it, you may install the Client Software on any Device in support of any number of Users so long as the Client Software is being used only in conjunction with the Server Software. (c) CALs. In Per Server licensing mode, unless Bentley licenses the Server Software with a limitation on the maximum number of Users or Devices that may access it, an unlimited number of Users or Devices may access and use the Server Software. CALs are not required for individual Users or Devices in the Per Server licensing mode. (d) Passive Fail-Over Server. If the Server Software is used in a clustered environment, you may use the Server Software on a temporary basis on a Server that is employed only and exclusively for fail-over support. 5. GRANT OF LICENSE FOR EXTERNAL CONNECTOR LICENSES. As and for so long as you comply with all of the terms of this EULA, Bentley grants you the following rights: 5.1. Installation and Use (a) External Connector License. You may install and use one copy of the External Connector on one Device and connect that Device to the designated �Server Software whether or not located at the same Site, but always within the same country as the Server Software installation. (b) External Users. The default licensing mode for an External Connector authorizes you, for each External Connector license that you acquire, to permit any number of External Users to access or use a single copy of the designated Server Software for which the External Connector License has been obtained without the need for you to acquire a CAL for each External User. If any User does not clearly qualify as an External User then you will need to properly license such use and access by the User of the Server Software by a method other than via the External Connector. Certain External Connector licenses only authorize a limited number of External Users to connect via that External Connector, please check your Product documentation and License Key for specific details, limitations and qualifications. (c) Passive Fail-Over External Connector. If the External Connector is installed on a Device used in a clustered environment, you may use the External Connector on a temporary basis on a Server or Device that is employed only and exclusively for fail-over support. �
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BRIGHT COMPUTING END USER LICENSE AGREEMENT PLEASE READ THIS SOFTWARE LICENSE (THIS "LICENSE" or “EULA”) CAREFULLY. THIS LICENSE GOVERNS THE USE OF THE SOFTWARE AND ACCOMPANYING DOCUMENTATION. THE SOFTWARE COVERED BY THIS LICENSE IS LICENSED ONLY TO THE OWNER OF THE EQUIPMENT ON WHICH IT WAS ORIGINALLY INSTALLED ("CUSTOMER"). BY CLICKING THE "ACCEPT" BOX, LICENSEE IS AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. 1. 2. 3. The Software; Definitions. (a) Bright Computing, Inc. is defined under this License as "Bright Computing" or "Licensor." (b) The Software consists of: (i) software governed by the GNU Public License published by the Free Software Foundation, Inc. ("GNU Public License Software"), (ii) software governed other open-source licenses ("Open Source Software"), (iii) software governed by license terms of third parties ("Third Party Software"), and (iv) "Bright Computing Software", which is all software provided by Bright Computing to Licensee that is not GNU Public License Software, Other Open Source Software or Third Party Software. (c) "Documentation" means all documents, made available by Licensor to Licensee pertaining to the Software, including all amendments or updates thereto made or provided by or on behalf of Licensor. License Grant. Subject to the terms and conditions set forth in this License, Bright Computing hereby grants to Licensee a single, nontransferable, nonsublicenseable, nonexclusive license during the Term of this EULA to use the Bright Computing Software and Third-Party Software and the Documentation solely for Licensee's internal business purposes, including the provision of data processing service to others in the normal course of Licensee's business. Licensee may use the Software only on the equipment upon which the Software was first installed (except for Subscription Licenses, which explicitly provides for the transfer of the Subscription License between equipment). No license to use the Bright Computing Software or Third-Party Software in source code form is granted, and Licensee may use the Bright Computing Software and ThirdParty Software only in binary form. No license to the Bright Computing Software or Third-Party Software is granted to Licensee except that expressly set forth in this License. Ownership and Rights. (a) Retention of Rights. THE SOFTWARE IS LICENSED, NOT SOLD. Except for the limited rights specifically granted to Licensee under this EULA, this EULA does not constitute, and shall not be deemed to constitute, a transfer, assignment or any other form of alienation by Licensor of any of Licensor's rights, title, and interests, either in whole or in part, in the Software or in any intellectual property included in the Software, including without limitation ownership and title. Licensor retains all rights not specifically granted to Licensee under this EULA. (b) GNU Public License Software and Open Source Software. With the limited exception of components contributed by Bright Computing that are incorporated in the GNU Public License Software and the Open Source Software, Bright Computing does not grant any rights with respect to the GNU Public License Software or the Open Source Software. Licensee's rights with respect to the GNU Public License Software are limited to the rights granted, and will be subject to the conditions and limitations imposed, under those versions of the GNU Public License Software 4. 5. 6. 7. 1 designated applicable by respective copyright owners of the GNU Public License Software, and additional copies are available from Bright Computing upon request. Licensee's rights with respect to the Open Source Software will be limited to the rights granted, and will be subject to the conditions and limitations imposed under, the respective Open Source Software licenses. License Disclaimer. Licensee acknowledges and agrees that: (a) Bright Computing cannot and has not verified that the GNU Public License Software and Open Source Software have validly been made available, by third parties having the right to do so, under the terms of the GNU Public license or Open Source Software licenses, as applicable; (b) Bright Computing cannot and does not warrant or promise, and cannot ensure that the GNU Public License or applicable Open Source Software licenses effectively grant Licensee the rights necessary for Licensee to use the GNU Public License Software or Open Source Software as contemplated or required by Licensee; and (c) Bright Computing cannot and does not warrant or promise, and cannot ensure that the GNU Public License or applicable Open Source Software licenses, or Licensee's access and use of the GNU Public License Software or Open Source Software, will continue or remain in effect for any particular period of time, including but not limited to the term of this License. Licensee Assumption of Risk. Licensee assumes all risk arising out of or relating to each of the following: (a) any claim that any GNU Public License Software or Open Source Software, or Licensee's use thereof, infringes or violates any rights of any third party; (b) any judicial, administrative or other interpretation, enforcement or invalidation of the GNU Public License Software or any Open Source Software licenses; (c) any partial or complete termination or cancellation of any rights granted or derived from the GNU Public License or any Open Source Software licenses; and (d) any resulting denial or termination of access to, or use of, any GNU Public License Software or Open Source Software. Copy Restrictions. Licensee will not copy the Bright Computing Software or Third-Party Software, or any on-line or hard copy form of any Documentation for the Bright Computing Software or Third-Party Software, except that Licensee may make and maintain one (1) current copy of the Bright Computing Software and Third-Party Software in machinereadable form and related documentation for back-up and archival purposes only. Licensee will reproduce in such archival copy all proprietary and restrictive notices set forth in such Software and Documentation. Restrictions. Licensee shall not do or allow to be done, either directly or indirectly, any of the following: (a) Reverse Engineer. Reverse engineer, decompile, disassemble or otherwise reduce the Software to a humanreadable form (e.g., source code). (b) Modify. Modify, adapt or translate the Software. Bright Computing EULA (Nov-2016) �(c) Publish. Publish or otherwise disclose the Software for others to copy. (d) Transfer. Sell, assign, sublicense, rent, lease, lend, subcontract, delegate or otherwise transfer, either in whole or in part, the Software, this EULA, any software key issued by Licensor to Licensee, or any right or obligation of Licensee under this EULA. (e) Transmit or Avoid. Electronically transmit the Software from one computer to another or over a network, or use the Software in connection with any hardware or software that reduces the number of computers or users that directly access or use the Software, in any manner that would avoid any limitation or restriction in this EULA. . (f) Markings. Alter, remove or obscure any marking or notice, if any, of Licensor's intellectual property rights included in or on the Software or Documentation. 8. Prohibited Uses. Licensee acknowledges that the Software is not designed, recommended or licensed for use in or in connection with any of the following ("Critical Applications"): on-line control equipment in hazardous environments, such as operation of nuclear facilities or aircraft navigation, communication or control; life-support systems or procedures; medical diagnostic applications; surgical or other intrusive procedures or otherwise to implement medical procedures or sustain life; or any other applications where product failure could lead to injury to persons or loss of life or catastrophic property damage. ACCORDINGLY, SHOULD YOU DECIDE TO USE THIS SOFTWARE FOR ANY CRITICAL APPLICATION BRIGHT COMPUTING DISCLAIMS ANY AND ALL LIABILITY ARISING OUT OF THE USE OF THE SOFTWARE IN ANY CRITICAL APPLICATION, IF YOU USE THE SOFTWARE IN A CRITICAL APPLICATION, YOU, AND NOT BRIGHT COMPUTING, ASSUME FULL RESPONSIBILITY FOR SUCH USE. Further you shall indemnify and hold Bright Computing harmless from any and all damages, liabilities, costs, and expenses, including reasonable attorneys' fees and amounts paid in settlement of third party or government claims, incurred by Bright Computing as a result of or in any way arising from or relating to the use of the Software in a Critical Application. 9. Software Patents. Parts of the Bright Computing Software and Third-Party Software may have been patented or copyrighted by Bright Computing or a third-party provider. Patent or copyright notices have been included in the Bright Computing Software and Third-Party Software for protective purposes, and such notices will not be construed as causing publication of such Software. The Bright Computing Software and Third-Party Software are confidential and Licensee will treat such Software as the confidential information and property of the respective owners. Licensee will not use any such confidential information during the term of this License or thereafter for any purpose other than as permitted or required hereunder. Licensee will not disclose or make available to any third party any Bright Computing Software, Third-Party Software or Documentation, in any form, except to its employees, users and contractors for purposes specifically related to Licensee's use of the Bright Computing Software and Third-Party Software in accordance with this License. Licensee will take all necessary measures to prevent any such disclosure by its employees, agents, contractors or consultants that have access to such confidential information for such purposes. 10. Limited Warranty. Bright Computing's sole warranty with respect to the Software shall be that (i) the Bright Computing Software, when delivered, and for a period of ninety (90) days thereafter, will perform in all material respects in accordance with Bright Computing’s then current specifications or Documentation, and (ii) that Bright Computing will use reasonable efforts, in accordance with standard software industry practice, to ensure that the Bright Computing Software, when delivered to Licensee, shall not contain a computer “virus” or other contaminant, including codes or instructions intended to delete, damage or disable Licensee’s computer system. Bright Computing’s sole obligation under the limited warranties set forth in subsections (i) and (ii) is to use reasonable efforts to correct or replace any non-conforming Bright Computing Software once Bright Computing has been made aware of such non-conformance. 11. Limitation of Warranty and Remedy. Except as otherwise expressly stated in this License, Bright Computing does not warrant that the Software will operate uninterrupted, be error free, conform to any reliability or performance standards, will meet Licensee's needs or requirements or that Bright Computing will correct all defects. Licensee is responsible for the selection of the Software to achieve its intended results, Licensee's use of Software, and the results obtained by Licensee with the Software. EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS LICENSE, ALL SOFTWARE IS PROVIDED "AS IS" AND "WITHOUT WARRANTY" OF ANY KIND. BRIGHT COMPUTING HEREBY EXPRESSLY EXCLUDES AND DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY OR GUARANTY OF ABSENCE OF HIDDEN DEFECTS, ANY WARRANTY OF NON-INFRINGEMENT, AND ANY WARRANTY THAT MAY ARISE BY REASON OF CUSTOM, USAGE OF TRADE OR COURSE OF DEALING. 12. Limitation of Liability. BRIGHT COMPUTING WILL NOT BE LIABLE FOR (A) ANY LOST PROFITS, LOST SAVINGS, LOST VALUE OR LOST SALES (WHETHER SUCH PROFITS, SAVINGS, VALUE OR SALES ARE DIRECT, INDIRECT, CONSEQUENTIAL OR OF ANY OTHER NATURE), LOST OR CORRUPTED DATA OR SOFTWARE, LOSS OF USE OF SYSTEM(S) OR NETWORK(S), OR THE RECOVERY OF SUCH DATA, SYSTEMS(S) OR NETWORK(S), LOSS OF BUSINESS OPPORTUNITY, BUSINESS INTERRUPTION OR DOWNTIME, LOSS OF GOODWILL OR REPUTATION, SOFTWARE NOT BEING AVAILABLE FOR USE OR THE PROCUREMENT OF SUBSTITUTE SOFTWARE OR GOODS, OR (B) ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, WHICH IN ANY CASE RELATE TO, ARISE OUT OF OR ARE IN CONNECTION WITH THIS EULA UNDER ANY THEORY OF LIABILITY EVEN IF ADVISED OR AWARE OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS EULA, BRIGHT COMPUTING’S TOTAL LIABILITY FOR ANY AND ALL CLAIMS RELATING TO, ARISING OUT OF OR IN CONNECTION WITH THIS EULA AND/OR THE SOFTWARE SHALL NOT EXCEED THE TOTAL AMOUNT RECEIVED BY BRIGHT COMPUTING FOR THE USE OF THE SOFTWARE AND/OR THIS LICENSE BY THE LICENSEE. 13. Export Compliance. The Software and Documentation may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export or release the Software and Documentation to, or make the Software and Documentation accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or 2 Bright Computing EULA (Nov-2016) �14. 15. 16. 17. 18. regulation. You shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Software and Documentation available outside the US. Applicable Law and Jurisdiction. THIS EULA SHALL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES THAT MAY DICTATE A CONTRARY RESULT. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS AND THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT, AND ANY ADAPTATIONS THEREOF ADOPTED BY ANY JURISDICTION, SHALL NOT APPLY. LICENSOR AND LICENSEE HEREBY AGREE THAT ANY ACTIONS BROUGHT BY EITHER OF THEM UNDER OR RELATED TO THIS EULA SHALL BE SUBMITTED TO THE SOLE AND EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SEATED IN SAN JOSE, CALIFORNIA, AND LICENSOR AND LICENSEE HEREBY WAIVE ANY CLAIM THAT ANY SUCH COURT IS AN INCONVENIENT FORUM. Licensee Responsibility and Indemnity. (a) Responsibility. Licensee shall have the sole and exclusive responsibility for: (i) selection of the Software to achieve its and their intended results; (ii) the installation of the Software; (iii) the use of the Software; (iv) the results obtained from the Software; and (v) the selection and use of, and the results obtained from, any other software, devices or services used with the Software. Licensee shall pay directly or reimburse Licensor for all taxes, assessments, permits and fees which are, or may be in Licensor's reasonable opinion, levied upon the Licensee's execution or acceptance of this EULA or use of the Software, exclusive of any income taxes owed by Licensor on its net income. (b) Indemnification. Licensee shall indemnify and hold Licensor and each of its directors, officers, employees and agents harmless from and against any and all claims or remedies, suits, actions, liabilities and damages, whether in tort (and whether or not arising from the negligence of licensor), in contract or otherwise, including costs and expenses and attorney's fees incident thereto, which may be suffered by, accrued against, charged to or recoverable from licensor or any of its directors, officers, employees and agents relating to: (i) Licensee's breach of this EULA; (ii) Licensor's enforcement of Licensor's rights under this EULA; (iii) injury to or death of any person or loss or damage to property (tangible or intangible) arising from (but not limited to) use of the Software or Documentation, or any products or services derived therefrom; and (iv) use of the Software in combination with other software, devices or services apart from the normal use for which the Software was intended. Limitation on Actions. No action seeking damages or other compensation, regardless of the form of such action or the form or extent of such damages or compensation, arising out of this EULA may be brought more than two (2) years after such cause of action has arisen. License Term and Termination. This License takes effect as of the date the Software is delivered to Licensee (the "Effective Date"), and remains in effect until the first anniversary of the Effective Date. Entire Agreement. This EULA constitutes the entire agreement of Licensor and Licensee with respect to the subject matter of this EULA, superseding in all respects any and all prior proposals, negotiations, understandings, writings, communications and agreements, whether oral or written, between Licensor and Licensee. If there is a conflict between this EULA and any exhibit or appendix attached hereto, such exhibit or appendix shall prevail. If there is a conflict between this EULA and any license agreement imbedded in the Software or any click-through license agreement entered into by Licensee in connection with the download or installation of the Software, this EULA shall prevail. Any purchase order or order form used by Licensee in connection with its purchase of the Software and/or this License will be considered to have its pre-printed clauses and statements deleted and such terms are expressly rejected by Bright Computing. Any waivers or amendments, to be effective, must be in writing, signed by both parties. Any translation of this License is done for local requirements and in the event of a dispute between the English and non-English versions, the English version of this License shall govern. 19. Severability. If any provision of this License is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original provision, and all other provisions of this License will continue in full force and effect. 20. No Assignment. Licensee may not assign or transfer its interests, rights or obligations under this EULA, in whole or in part, whether voluntarily, by contract, or by merger (whether that party is the surviving or disappearing entity), stock or asset sale, consolidation, dissolution, through government action or order, or otherwise. 21. Reseller. If Licensee acquired the Software through a Reseller, Licensee acknowledges that (i) payment and delivery terms for the Software have been established separately and independently between Licensee and Reseller (ii) this EULA constitutes the entire and only agreement between Licensee and Bright Computing as to the subject matter described above and is controlling between Licensee and Bright Computing; (iii) the terms and conditions of any purchase order or any other agreement between Licensee and Reseller are not binding on Bright Computing; (iv) Reseller is not authorized to alter, amend or modify the terms of this EULA or to otherwise grant any license or other rights relating in any way to the Software; and (v) Licensee's nonpayment of any amount due to Reseller relating to its license rights under this EULA shall constitute a basis for Bright Computing's termination of this EULA. Licensee further acknowledges that Bright Computing makes no representation or warranty with regard to any services provided by Reseller, or any actions or failures to act by Reseller. 3 Bright Computing EULA (Nov-2016) �
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STRATUS TECHOLOGIES ftServer® SOFTWARE END-USER LICENSE AGREEMENT THIS END-USER LICENSE AGREEMENT (“EULA”) CONSTITUTES THE LEGAL AGREEMENT BETWEEN THE LICENSEE (“YOU”) AND STRATUS TECHNOLOGIES IRELAND LIMITED (“STRATUS”) FOR THE STRATUS® ftServer® SOFTWARE PRODUCTS, CERTAIN THIRD PARTY SOFTWARE PRODUCTS* AND RELATED MEDIA, MATERIALS AND DOCUMENTATION (“PRODUCTS”). BY INSTALLING THE PRODUCT OR RETAINING IT FOR MORE THAN TEN (10) DAYS, YOU AGREE TO BE BOUND BY THIS EULA. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT USE THE PRODUCTS AND YOU MUST RETURN THE UNUSED PRODUCTS WITHIN TEN (10) CALENDAR DAYS OF RECEIPT FOR A FULL REFUND OF ANY PAID PRODUCT USE FEES. CONTACT YOUR PRODUCTS SUPPLIER OR VENDOR FOR RETURN INSTRUCTIONS. IF YOU RECEIVED THE PRODUCTS DIRECTLY FROM STRATUS, REFER TO THE STRATUS WEB SITE AT “www.stratus.com” OR CONTACT YOUR LOCAL STRATUS SALES OFFICE FOR RETURN INSTRUCTIONS. IF STRATUS PROVIDES YOU WITH AN UPDATE TO ANY PRODUCT FURNISHED UNDER THIS EULA, YOU AGREE TO DESTROY THE PREVIOUS VERSION PRODUCT WITHIN A REASONABLE TIME AND USE ONLY THE PRODUCT’S UPDATED VERSION. THE PERSON ENTERING INTO THIS EULA REPRESENTS AND WARRANTS THAT HE IS AUTHORIZED TO ENTER INTO A BINDING AGREEMENT ON BEHALF OF HIS EMPLOYER AS THE LICENSEE. *This EULA applies to the Stratus Software Products and any third party software programs (such as EMC software products) that are supplied by Stratus or its resellers but that are not packaged with a separate end-user license agreement (the Stratus Software Products and such third party software programs collectively hereinafter referred to as the “Products”). 1 Software License. Except for the limited use right set forth in this Section 1, Stratus and its licensors (“Licensors”) shall own all right, title and interest in and to the Products and any copies of the Products. The Products are licensed, not sold. Any updates, supplements, corrections or bug fixes for the Products will be governed by the terms of this EULA. 1.1 You acknowledge that you have only a non-exclusive and limited right to use the object code version of the Products on a single ftServer system and the applicable peripheral devices (including without limitation storage equipment) sold to you by Stratus or its authorized distributor or reseller (collectively, the “System”) in accordance with this EULA. You may make a single copy of the Products in object code form for archival or backup purposes. You may not remove or obscure any proprietary rights notice, Restricted Rights legend (as defined in section 1.4 below) or other notice (collectively, “Notices”) included with the Products. You must include all Notices on all copies of the Products. You may not reverse engineer, decompile or disassemble the Products or attempt to gain access to the source code for the Products, except and only to the extent that it is expressly permitted by applicable law, and, to the extent applicable law permits contractual waiver of such right, you hereby waive your rights to do so. 1.2 Provided you have not breached any of your duties or obligations under this EULA, you may permanently transfer the Products and all rights under this EULA only as part of a one-time sale or transfer of the System on which the Products are installed and only to a transferee who agrees to be bound by all of the terms and conditions set forth in this EULA. Upon such transfer, you agree that you will (1) transfer all of the Products with the System, (2) retain no copies of the Products, and (3) assign all rights and delegate all obligations under this EULA to your transferee. You will not otherwise transfer or assign the Products or this EULA and/or any rights or obligations hereunder without the prior written consent of Stratus. 1.3 Without prejudice to any other rights, Stratus has the right to terminate this EULA and refuse to ship any Products if you fail to pay any relevant license fees or other charges. Your rights under this EULA will automatically terminate if you breach any of your material obligations under this EULA. Upon any termination of this EULA, you will return to Stratus or its designee, or if instructed by Stratus to do so, destroy all copies of the Products promptly after such termination. 1.4 The Products include commercial computer software that has been developed entirely at private expense and is regularly used for non-governmental purposes and licensed to the public. All software provided to the U.S. Government is provided with "Restricted Rights" as provided in FAR, 48 CFR 52.227-14 (JUNE 1987) or DFAR 48 CFR 252.227-7013 (OCT 1988), as applicable. All rights not expressly granted are reserved. 2 Confidentiality. You acknowledge that the Products embody trade secrets and proprietary information and materials of Stratus and its Licensors (“Confidential Information”). You agree not to disclose such Confidential Information to any third party. Without limiting the foregoing, you agree to treat the Confidential Information with at least the same degree of care with which you treat your own confidential information of like importance, but in no event will you s066us.doc �treat such Confidential Information with less than reasonable care. Notwithstanding the above, you will have no liability with regard to any Confidential Information that (1) was in the public domain at the time it was disclosed or has entered the public domain through no fault of you, (2) was known to you, without restriction, at the time of disclosure, (3) was independently developed by you without any use of or reference to the Confidential Information, or (4) is disclosed pursuant to a valid order or requirement of a court, administrative agency, or other governmental body, provided that you promptly furnish to Stratus notice of such requirement or order enabling Stratus and its Licensors to seek a protective order or otherwise prevent or restrict such disclosure. 3 Infringement Indemnity. 3.1 Stratus will defend any claim brought against you alleging that the Products infringe a patent or copyright in your jurisdiction, and will indemnify you against all damages and costs finally awarded against you provided that Stratus is notified promptly in writing of the claim and given full authority, information and assistance for the defense and/or settlement of such claim, which defense and/or settlement will be under the sole control of Stratus. If a claim has occurred, or in Stratus' opinion is likely to occur, you agree to permit Stratus, at its sole option and expense, to (1) procure for you the right to continue using the Products, or (2) to replace or modify the Products so that they are noninfringing. If in Stratus’ sole judgment neither of the foregoing alternatives is commercially practicable, Stratus may terminate this license, remove the Products and refund to you the product use fees as depreciated or amortized by an equal annual amount over the lifetime of the Products taking into account generally accepted accounting practices. 3.2 Neither Stratus, nor its affiliates, subsidiaries nor the Licensors will have any liability for any claim based upon or arising out of (1) the combination, operation or use of the Products with (a) any Microsoft or other third party software programs, (b) any equipment, devices or software not supplied by Stratus, or (2) the alteration or modification of any Products. To the full extent permitted by law, this section states the entire liability of Stratus, its affiliates, subsidiaries and the Licensors and your sole remedy with respect to any claim of infringement. 4 Limited Warranty. 4.1 Stratus warrants that the media containing each Product will be free from defects in material and workmanship for thirty (30) days from the date of receipt. Stratus’ sole liability and your exclusive remedy for such defective Product media will be to replace the defective media free of charge. You may obtain information for reporting warranty defects from your Products supplier or vendor or from the Stratus web site at “www.stratus.com”. 4.2 Stratus does not represent or warrant that the Products will operate without interruption or will be error free. This warranty does not apply to defects attributable to (1) modification or alteration of the Products made without the prior written approval of Stratus, (2) accident, neglect, misuse or abuse, or (3) exposure to conditions outside the range of the environmental, power and operating specifications provided by Stratus. 5 Disclaimer And Limitation of Liability: 5.1 Except as expressly set forth in this EULA, neither Stratus, its affiliates, subsidiaries nor the Licensors make any other warranties, express or implied, including any implied warranties of merchantability and fitness for a particular purpose. Stratus, its affiliates, subsidiaries and the Licensors expressly disclaim all warranties not stated in this EULA. Any implied warranties that may be imposed by law are limited to the terms contained in this EULA to the maximum extent permitted by law. 5.2 Except for damages or losses related to death or bodily injury, in no event will Stratus, its affiliates, subsidiaries or the Licensors, be liable for any special, indirect, punitive, incidental or consequential damages or losses (including without limitation loss of use, data, profit, savings or business), whatever the basis of the claim or action (such as breach of warranty, condition, contract, infringement and tort, including strict liability and negligence, or other legal theory) even if advised of the possibility of such damages or if such possibility was reasonably foreseeable. To the maximum extent permitted by law, the liability of Stratus, its affiliates, subsidiaries and the Licensors for damages or losses for any cause whatsoever, and regardless of the basis of the claim or action will be limited to the amount you actually paid for the specific Product that caused the damages or losses. Because some states or countries do not allow a limitation on the duration of an implied warranty or the exclusion of incidental or consequential damages, the above limitations and/or exclusions may not apply to you. 6 Import / Export. You acknowledge that the Products are of U.S. origin and are subject to U.S. Export Administration, international and national import and export control laws and regulations, including end-user, end-use and destination restrictions issued by the U.S. and other governments (“Import and Export Controls”). You agree that you will not export, import, directly or indirectly, re-export, divert, or transfer the Product or, any materials, items or s066us.doc 2 �7 technology relating to Stratus’ or the Licensors’ business or related technical data or any direct product thereof to any destination, company or person restricted or prohibited by the Import and Export Controls. General Terms and Conditions. 7.1 This EULA constitutes the entire agreement between you and Stratus with respect to the subject matter hereof and supersedes all previous and contemporaneous written and oral representations, proposals, negotiations and communications, including, without limitation, the terms and conditions of any purchase order. You acknowledge that the terms and conditions of this EULA are intended to inure to the benefit of Stratus’ affiliates, subsidiaries and the Licensors as third party beneficiaries of the EULA, any and all of which will be entitled to invoke such terms and conditions on their behalf and enforce such terms and conditions against you. You further acknowledge that Stratus’ affiliates, subsidiaries and the Licensors accept their third party beneficiary rights and that such rights will be deemed irrevocable. 7.2 Stratus may assign this EULA or any of the rights or obligations hereunder, and any causes of action arising hereunder, to any third party without necessity or obligation of notice to you. The waiver or failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further right hereunder. The invalidity or unenforceability of any provision of this EULA will not affect the validity or enforceability of any other provision, the remaining provisions being deemed to continue in full force and effect. 7.3 Stratus will not be responsible for any failure to perform its obligations under this EULA due to circumstances beyond its reasonable control, including without limitation acts of God, war, riot, terrorism, embargoes, acts of civil or military authorities, fire, flood or accidents. You agree that Stratus will be entitled to all legal and equitable remedies otherwise available to it to protect the intellectual property, proprietary rights and Confidential Information of itself and its Licensors, including, without limitation, the right to seek and obtain injunctive relief and enforce the same against you without the necessity of having to post bond or other such guarantee. 7.4 Sections 1.1, 1.3, 1.4, 2, 3.2, 5, 6, and 7 will survive any termination of this EULA. Except and only to the extent prohibited by applicable law, this EULA will in all respects, be governed by and construed and enforced in accordance with the laws of the Commonwealth of Massachusetts and the United States of America, excluding the choice of law principles thereof. The United Nations Convention on the International Sale of Goods will not apply to this EULA or the Products. You consent to the jurisdiction and venue of the state and federal courts in and for Suffolk County, Massachusetts, U.S.A. for the resolution of any dispute arising under or related to this EULA or the Products; provided, however, that Stratus, its affiliate, subsidiaries and the Licensors may initiate legal action in any court with jurisdiction over you for the enforcement of this EULA. s066us.doc 3 �
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HPE End User License Agreement – Enterprise Version 1. Applicability. This end user license agreement (the "Agreement") governs the use of accompanying software, unless it is subject to a separate agreement between you and Hewlett Packard Enterprise Company and its subsidiaries (“HPE”). By downloading, copying, or using the software you agree to this Agreement. HPE provides translations of this Agreement in certain languages other than English, which may be found at: http://www.hpe.com/software/SWLicensing. 2. Terms. This Agreement includes supporting material accompanying the software or referenced by HPE, which may be software license information, additional license authorizations, software specifications, published warranties, supplier terms, open source software licenses and similar content ("Supporting Material"). Additional license authorizations are at: http://www.hpe.com/software/SWLicensing. 3. Authorization. If you agree to this Agreement on behalf of another person or entity, you warrant you have authority to do so. 4. Consumer Rights. If you obtained software as a consumer, nothing in this Agreement affects your statutory rights. 5. Electronic Delivery. HPE may elect to deliver software and related software product or license information by electronic transmission or download. 6. License Grant. If you abide by this Agreement, HPE grants you a non-exclusive non-transferable license to use one copy of the version or release of the accompanying software for your internal purposes only, and is subject to any specific software licensing information that is in the software product or its Supporting Material. Your use is subject to the following restrictions, unless specifically allowed in Supporting Material: You may not use software to provide services to third parties. You may not make copies and distribute, resell or sublicense software to third parties. You may not download and use patches, enhancements, bug fixes, or similar updates unless you have a license to the underlying software. However, such license doesn't automatically give you a right to receive such updates and HPE reserves the right to make such updates only available to customers with support contracts. You may not copy software or make it available on a public or external distributed network. You may not allow access on an intranet unless it is restricted to authorized users. You may make one copy of the software for archival purposes or when it is an essential step in authorized use. You may not modify, reverse engineer, disassemble, decrypt, decompile or make derivative works of software. If you have a mandatory right to do so under statute, you must inform HPE in writing about such modifications. 7. Remote Monitoring. Some software may require keys or other technical protection measures and HPE may monitor your compliance with the Agreement, remotely or otherwise. If HPE makes a license management program for recording and reporting license usage information, you will use such program no later than 180 days from the date it's made available. 8. Ownership. No transfer of ownership of any intellectual property will occur under this Agreement. 9. Copyright Notices. You must reproduce copyright notices on software and documentation for authorized copies. 10. Operating Systems. Operating system software may only be used on approved hardware and configurations. 5012-3777 v1.5, 2016 Page 1 of 3 © Copyright 2015 Hewlett Packard Enterprise Development LP *5012-3777* �HPE End User License Agreement – Enterprise Version 11. 90-day Limited Warranty for HPE Software. HPE-branded software materially conforms to its specifications, if any, and is free of malware at the time of delivery; if you notify HPE within 90 days of delivery of non-conformance to this warranty, HPE will replace your copy. This Agreement states all remedies for warranty claims. HPE does not warrant that the operation of software will be uninterrupted or error free, or that software will operate in hardware and software combinations other than as authorized by HPE in Supporting Material. To the extent permitted by law, HPE disclaims all other warranties. 12. Intellectual Property Rights Infringement. HPE will defend and/or settle any claims against you that allege that HPE-branded software as supplied under this Agreement infringes the intellectual property rights of a third party. HPE will rely on your prompt notification of the claim and cooperation with our defense. HPE may modify the software so as to be non-infringing and materially equivalent, or we may procure a license. If these options are not available, we will refund to you the amount paid for the affected product in the first year or the depreciated value thereafter. HPE is not responsible for claims resulting from any unauthorized use of the software. 13. Limitation of Liability. HPE's liability to you under this Agreement is limited to the amount actually paid by you to HPE for the relevant software, except for amounts in Section 12 ("Intellectual Property Rights Infringement"). Neither you nor HPE will be liable for lost revenues or profits, downtime costs, loss or damage to data or indirect, special or consequential costs or damages. This provision does not limit either party's liability for: unauthorized use of intellectual property, death or bodily injury caused by their negligence; acts of fraud; willful repudiation of the Agreement; or any liability that may not be excluded or limited by applicable law. 14. Termination. This Agreement is effective until terminated or in the case of a limited-term license, upon expiration; however, your rights under this Agreement terminate if you fail to comply with it. Immediately upon termination or expiration, you will destroy the software and documentation and any copies, or return them to HPE. You may keep one copy of software and documentation for archival purposes. We may ask you to certify in writing you have complied with this section. Warranty disclaimers, the limitation of liability, this section on termination, and Section 15 ("General") will survive termination. 15. General. a. Assignment. You may not assign this Agreement without prior written consent of HPE, payment of transfer fees and compliance with HPE's software license transfer policies. Authorized assignments will terminate your license to the software and you must deliver software and documentation and copies thereof to the assignee. The assignee will agree in writing to this Agreement. You may only transfer firmware if you transfer associated hardware. b. U.S. Government. If the software is licensed to you for use in the performance of a U.S. Government prime contract or subcontract, you agree that, consistent with FAR 12.211 and 12.212, commercial computer software, computer software documentation and technical data for commercial items are licensed under HPE's standard commercial license. c. Global Trade Compliance. You agree to comply with the trade-related laws and regulations of the U.S. and other national governments. If you export, import or otherwise transfer products provided under this Agreement, you will be responsible for obtaining any required export or import authorizations. You confirm that you are not located in a country that is subject to trade control sanctions (currently Cuba, Iran, N. Korea, N. Sudan, and Syria) and further agree that you will not retransfer the products to any such country. HPE may suspend its performance under this Agreement to the extent required by laws applicable to either party. d. Audit. HPE may audit you for compliance with the software license terms. Upon reasonable notice, HPE may conduct an audit during normal business hours (with the auditor's costs being at HPE's expense). If an audit reveals underpayments then you will pay to HPE such underpayments. 5012-3777 v1.5, 2016 © Copyright 2015 Hewlett Packard Enterprise Development LP Page 2 of 3 �HPE End User License Agreement – Enterprise Version e. f. g. h. i. If underpayments discovered exceed five (5) percent, you will reimburse HPE for the auditor costs. Open Source Components. To the extent the Supporting Material includes open source licenses, such licenses shall control over this Agreement with respect to the particular open source component. To the extent Supporting Material includes the GNU General Public License or the GNU Lesser General Public License: (a) the software includes a copy of the source code; or (b) if you downloaded the software from a website, a copy of the source code is available on the same website; or (c) if you send HPE written notice, HPE will send you a copy of the source code for a reasonable fee. Notices. Written notices under this Agreement may be provided to HPE via the method provided in the Supporting Material. Governing Law. This Agreement will be governed by the laws of the state of California, U.S.A., excluding rules as to choice and conflict of law. You and HPE agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Force Majeure. Neither party will be liable for performance delays nor for non-performance due to causes beyond its reasonable control, except for payment obligations. Entire Agreement. This Agreement represents our entire understanding with respect to its subject matter and supersedes any previous communication or agreements that may exist. Modifications to the Agreement will be made only through a written amendment signed by both parties. If HPE doesn't exercise its rights under this Agreement, such delay is not a waiver of its rights. 16. Australian Consumers. If you acquired the software as a consumer within the meaning of the 'Australian Consumer Law' under the Australian Competition and Consumer Act 2010 (Cth) then despite any other provision of this Agreement, the terms at this URL apply: http://www.hpe.com/software/SWLicensing. 17. Russian Consumers. If you are based in the Russian Federation and the rights to use the software are provided to you under a separate license and/or sublicense agreement concluded between you and a duly authorized HPE partner, then this Agreement shall not be applicable. 5012-3777 v1.5, 2016 © Copyright 2015 Hewlett Packard Enterprise Development LP Page 3 of 3 �
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CEAGENT END USER LICENSE AGREEMENT PLEASE READ THIS AGREEMENT CAREFULLY. BY INSTALLING OR OTHERWISE USING THIS SOFTWARE, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH THESE TERMS, DO NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE. This CEAGENT End-User License Agreement (this “EULA”) is a legal agreement between You (an entity or a person) and 3Storm, Inc., dba CEAgent (“we” or “us”). The CEAGENT software application (the “Software”) made available to you by us, whether by us directly, through the Mac App Store Service and App Store Service or through any other third-party supplier, is licensed, not sold, to you. Your license to and use of the Software is subject to your prior acceptance of this EULA. We reserve all rights in and to the Software not expressly granted to you under this EULA. A. Scope of License. This license granted to you for the Software by us is limited to a nontransferable license to use the Software on any products running Apple or [pc-based] operating systems (such products are referred to hereafter as “Devices”) that you own or control. This license does not allow you to use the Software on any Device that you do not own or control, you may not distribute or make the Software available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, transfer redistribute, or sublicense the Software and, if you sell your Device to a third party, you must remove the Software from the Device before doing so. Except as expressly permitted by this EULA, you may not – nor may you permit any other person to – copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Software, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the Software). Any attempt to do so is a violation of our rights. If you breach this restriction, you may be subject to prosecution and damages. B. Upgrades, Support & Maintenance. The terms of this EULA will govern any upgrades we may provide that replace and/or supplement the original Software, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern. We shall use reasonable efforts to respond to your questions regarding the installation and use of the Software. Support can be initiated by you by phone or by email, using the Support Contact Information that we provide. All services other than �maintenance services that we provide to you under this EULA — such as customization, training, professional consulting services, and other related services — shall be provided under a separate services agreement. Such other services shall be offered in accordance with terms and conditions as we shall determine solely at our discretion, and nothing in this EULA shall obligate us to provide any such other services. C. Consent to Use of Data. You agree that we may collect and use technical data and related information — including but not limited to technical information about your Device, system and application software, and peripherals — that is gathered periodically to facilitate the provision of software updates, product support, and other services to you (if any) related to the Software. We may use this information, as long as it is in a form that does not personally identify you, to improve our products or to provide services or technologies to you. D. Termination. The license is effective until terminated by you or us. Your rights under this EULA will terminate automatically without notice from us if you fail to comply with any term(s) of this EULA. Upon termination of the EULA, you shall cease all use of the Software and destroy all copies, full or partial, of the Software. E. NO WARRANTY. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND ANY SERVICES PERFORMED OR PROVIDED BY THE SOFTWARE ARE PROVIDED "AS IS" AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND WE HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE AND ANY SERVICES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NONINFRINGEMENT OF THIRDPARTY RIGHTS. WE DO NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE, THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED OR PROVIDED BY THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERRORFREE, OR THAT DEFECTS IN THE SOFTWARE OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR OUR AUTHORIZED �REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SOFTWARE OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU. F. LIMITATION OF LIABILITY. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL WE BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall our total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose. G. You may not use or otherwise export or re-export the Software except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the Software may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department's Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Software for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons. H. Miscellaneous. The laws of the Commonwealth of Pennsylvania, excluding its conflicts of law rules, shall govern the construction, interpretation, and performance of this EULA and your use of the Software. Your use of the Software may also be subject to other local, state, national, or international laws. Any action brought to enforce any of the terms of this EULA shall be filed only in the state or federal courts located in �Allegheny County, Pennsylvania and you hereby consent to submit to the exclusive jurisdiction of such courts. You shall not assign or delegate any right, interest, obligation, or duty under this EULA without our prior written approval. Our failure at any time to enforce any of the provisions of this EULA or any right or remedy available to us hereunder or at law or equity, or to exercise any option herein provided will in no way be construed to be our waiver of such provisions, rights, remedies, or options or in any way to affect the validity of this EULA. Any terms of this EULA that by their nature extend beyond the date this EULA ends shall remain in effect until fulfilled and shall apply to respective permitted successors and assignees. If any of the above provisions are held to be in violation of applicable law, void, or unenforceable in any court of competent and appropriate jurisdiction, then such provisions are herewith waived to the extent necessary for this EULA to be otherwise enforceable in such jurisdiction. This EULA shall not be modified or amended without the consent of each party hereto which must be evidenced by an instrument in writing executed by each party hereto, or by their respective successors or permitted assigns. This EULA shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. This EULA constitutes the entire agreement between you and us relating to the Software, and supersedes all prior or contemporaneous oral or written communications, proposals, and representations with respect to the Software or any other subject matter covered by this EULA. �
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END USER LICENSE AGREEMENT PLEASE READ THIS END USER LICENSE AGREEMENT (“AGREEMENT”) BEFORE INSTALLING, ACCESSING OR USING COHO DATA, INC. SUPPLIED SOFTWARE. BY INSTALLING, ACCESSING OR USING THE SOFTWARE OR THE EQUIPMENT THAT CONTAINS THIS SOFTWARE, YOU (AS CUSTOMER OR IF YOU ARE NOT THE CUSTOMER, AS A REPRESENTATIVE/AGENT AUTHORIZED TO BIND THE CUSTOMER) CONSENT TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT OR CANNOT AGREE TO THE TERMS CONTAINED HEREIN, THEN DO NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE. 1. The Parties. The parties to this Agreement are (i) Coho Data, Inc. (“Coho”); and (ii) the person or organization that originally purchased from Coho or an authorized Coho reseller the applicable license(s) for use of the Coho-supplied software or the Coho equipment in which such software is embedded (“Customer”) (collectively, the “Parties”). 2. The Software. In this Agreement, “Software” means the program modules, feature sets and features of the Coho-supplied software for which Customer has paid the applicable license fees to Coho or an authorized Coho reseller, or which was embedded by Coho in equipment that Customer purchased from Coho or an authorized Coho reseller. “Software” also includes any Coho-supplied updates, upgrades, additions or replacements that are subsequently embedded in or loaded onto the equipment. 3. License Grant. Subject to payment of the applicable fees and the limitations and restrictions set forth herein, Coho grants to Customer a non-exclusive and non-transferable license, without right to sublicense, to use the Software solely in executable form only and solely for Customer’s internal business purposes, subject to the following use restrictions: a. Customer shall use Software solely as embedded in, and for execution on, Coho equipment originally purchased by Customer from Coho or an authorized Coho reseller. b. The paper or electronic user documentation that accompanies the Software and/or the particular licenses purchased by Customer may specify limits to Customer’s use of the Software. Customer’s use of the Software shall be subject to all such limitations and purchase of all applicable licenses. The foregoing license is not transferable or assignable by Customer except pursuant to Section 15. No license is granted herein to any user who did not originally purchase the applicable license(s) for the Software from Coho or an authorized Coho reseller. All rights not specifically granted herein are reserved by Coho. 4. Use Prohibitions . Notwithstanding the foregoing, the license provided herein does not permit the Customer to, and Customer agrees not to and shall not: (a) modify, unbundle, reverse engineer, or create derivative works based on the Software; (b) make unauthorized copies of the Software (except as necessary for backup purposes); (c) rent, sell, transfer, or grant any rights in and to any copy of the Software, in any form, to any third party; (d) remove any proprietary notices, labels, or marks on or in any copy of the Software or any product in which the Software is embedded; (e) distribute any copy of the Software to any third party, including as may be embedded in Coho equipment sold in the secondhand market; (f) use any ‘locked’ or key-restricted feature, function, service, application, operation, or capability without first purchasing the applicable license (s) and obtaining a valid key from Coho, even if such feature, function, service, application, operation, or capability is enabled without a key; (g) distribute any key for the Software provided by Coho to any third party; (h) use the Software in any manner that extends or is broader than the uses purchased by Customer from Coho or an authorized Coho reseller; (i) use the Software on non-Coho equipment; (j) use the Software (or make it available for use) on Coho equipment that the Customer did not originally purchase from Coho or an authorized Coho reseller; (k) disclose the results of testing or benchmarking of the Software to any third party without the prior written consent of Coho; or (l) use the Software in any manner other than as expressly provided herein. 5. Audit. Customer shall maintain accurate records as necessary to verify compliance with this Agreement. Upon request by Coho, Customer shall furnish such records to Coho and certify its compliance with this Agreement. 6. Confidentiality. The Parties agree that aspects of the Software and associated documentation are the confidential property of Coho. As such, Customer shall exercise all reasonable commercial efforts to maintain the Software and associated documentation in confidence, which at a minimum includes restricting access to the Software to Customer employees and contractors having a need to use the Software for Customer’s internal business purposes. END USER LICENSE AGREEMENT 1 � 7. Ownership. Coho and Coho’s licensors, respectively, retain ownership of all right, title, and interest (including copyright) in and to the Software, associated documentation, all copies of the Software, and all intellectual property rights therein or thereto. N othing in this Agreement constitutes a transfer or conveyance of any right, title, or interest in the Software or associated documentation, or a sale of the Software, associated documentation, or copies of the Software. Customer understands and agrees that Coho may, automatically or through other means, collect and use diagnostic and technical information related to Customer’s use of the Software, including without limitation system performance, capacity usage, hardware faults, and other information of a similar nature (“Diagnostic Data”). The Software may transmit Diagnostic Data to Coho on a daily or other periodic basis, or upon a failure or crash of the Software. The Diagnostic Data does not include any user data contained within a storage device. Customer agrees that Coho may use the Diagnostic Data to support Customer’s use of the Software or related equipment, improve Coho's products or to provide customized services or technologies to Customer. Coho may disclose the Diagnostic Data to others in an aggregated form that does not personally identify Customer or link such Diagnostic Data to Customer. 8. Warranty and Disclaimer. a. Limited Warranty. Coho warrants that for ninety (90) days from the date of original purchase, the media (e.g., CD ROM), if any, on which the Software is contained will be free from defects in materials and workmanship. Coho’s and its suppliers' entire liability and Customer’s exclusive remedy for any breach of the foregoing warranty shall be replacement of the defective media in which the Software is contained. Customer must return the defective media to Coho at Customer’s expense. This limited warranty is void if the defect has resulted from accident, abuse, or misapplication. Any replacement media will be warranted for the remainder of the original warranty period. b. Disclaimer . Nothing in this Agreement shall give rise to any obligation to support the Software. Technical support services may be purchased separately. Any such support shall be governed by a separate, written support services agreement. Except for the limited warranty set forth in Section 8.a above, THE SOFTWARE IS PROVIDED "AS IS" AND COHO MAKES NO WARRANTY AS TO USE OR PERFORMANCE. EXCEPT TO THE EXTENT SUCH EXCLUSIONS OR LIMITATIONS ARE PROHIBITED BY APPLICABLE LAW, COHO, ITS SUPPLIERS AND AUTHORIZED PARTNERS MAKE NO WARRANTY, CONDITION OR REPRESENTATION (EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE) AS TO ANY MATTER INCLUDING, WITHOUT LIMITATION, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, SATISFACTORY QUALITY, INTEGRATION, OR FITNESS FOR A PARTICULAR PURPOSE. Coho products and Software are not designed or intended for use in (i) the design, construction, operation or maintenance of any nuclear facility, (ii) navigating or operating aircraft; or (iii) any life-saving, life- support or life-critical medical equipment, and Coho disclaims any express or implied warranty of fitness for such uses. Customer assumes responsibility for selecting the Software to achieve Customer’s intended results, and for Customer’s use thereof. WITHOUT LIMITING THE FOREGOING PROVISIONS, COHO MAKES NO WARRANTY THAT THE SOFTWARE WILL BE ERRORFREE, FREE OF VULNERABILITY TO INTRUSION OR ATTACK, OR FREE FROM INTERRUPTIONS OR OTHER FAILURES, OR THAT THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS. 9. Limitation of Liability . TO THE MAXIMUM EXTENT PERMITTED BY LAW, COHO SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA, OR COSTS OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, THE SOFTWARE, OR ANY COHO OR COHOSUPPLIED SOFTWARE. IN NO EVENT SHALL COHO BE LIABLE FOR DAMAGES ARISING FROM UNAUTHORIZED OR IMPROPER USE OF ANY COHO OR COHO- SUPPLIED SOFTWARE. IN NO EVENT SHALL COHO’S OR ITS SUPPLIERS’ OR LICENSORS’ LIABILITY TO CUSTOMER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY, OR OTHERWISE, EXCEED THE PRICE PAID BY CUSTOMER FOR THE SOFTWARE THAT GAVE RISE TO THE CLAIM, OR IF THE SOFTWARE IS EMBEDDED IN ANOTHER COHO PRODUCT, THE PRICE PAID BY CUSTOMER FOR SUCH PRODUCT. Customer acknowledges and agrees that Coho has set its prices and entered into this Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the same reflect an allocation of risk between the Parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the Parties. 10. Termination. Any breach of this Agreement or failure by Customer to pay any applicable fees due shall result in automatic termination of the license granted herein. Upon such termination, Customer shall destroy or return to Coho all copies of the Software and related documentation in Customer’s possession or control and may be required by Coho to provide certification of compliance with these terms. 11. Taxes. All license fees payable under this agreement are exclusive of tax. Customer shall be responsible for paying Taxes arising from the purchase of the license, or importation or use of the Software. If applicable, valid exemption documentation for each taxing jurisdiction shall be provided to Coho prior to invoicing, and Customer shall promptly notify Coho if Customer’s exemption is revoked or modified. All payments made by Customer shall be net of any applicable END USER LICENSE AGREEMENT 2 �withholding tax. Customer will provide reasonable assistance to Coho in connection with such withholding taxes by promptly: providing Coho with valid tax receipts and other required documentation showing Customer’s payment of any withholding taxes; completing appropriate applications that would reduce the amount of withholding tax to be paid; and notifying and assisting Coho in any audit or tax proceeding related to transactions hereunder. Customer shall comply with all applicable tax laws and regulations, and Customer will promptly pay or reimburse Coho for all costs and damages related to any liability incurred by Coho as a result of Customer’s non-compliance or delay with its responsibilities herein. Customer’s obligations under this Section shall survive termination or expiration of this Agreement. 12. Export. Customer agrees to comply with all applicable export laws and restrictions and regulations of any United States and any applicable foreign agency or authority, and not to export or re-export the Software or any direct product thereof in violation of any such restrictions, laws or regulations, or without all necessary approvals. Customer shall be liable for any such violations. The version of the Software supplied to Customer may contain encryption or other capabilities restricting Customer’s ability to export the Software without an export license. 13. Commercial Computer Software. The Software and any related documentation are each a “commercial item” as that term is defined at FAR 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are defined in FAR 12.212, and are provided to the U.S. Government only as commercial end items. Government end users acquire the rights set out in this Agreement for the Software and related documentation consistent with: (i) for acquisition by or on behalf of civilian agencies, the terms set forth in FAR12.212; or (ii) for acquisition by or on behalf of units of the Department of Defense, the terms set forth in DFARS 227.7202. Use of the Software and related documentation is further restricted by the terms and conditions of this Agreement. For the purposes of any applicable government use, the Software and Documentation were developed exclusively at private expense, and are trade secrets of Coho or Coho’s Licensors, as applicable, for the purpose of any Freedom of Information legislation or any other disclosure statute, regulation or provision. 14. Third Party Software. Any licensor of Coho whose software is embedded in the Software and any supplier of Coho whose products or technology are embedded in (or services are accessed by) the Software shall be a third party beneficiary with respect to this Agreement, and such licensor or vendor shall have the right to enforce this Agreement in its own name as if it were Coho. In addition, certain third party software may be provided with the Software and is subject to the accompanying license(s), if any, of its respective owner (s). Portions of the Software (“Open Source Software”) provided to Customer may be subject to a license that permits Customer to modify these portions and redistribute the modifications (an “Open Source License”). Customer’s use, modification and redistribution of the Open Source Software is governed solely by the terms and conditions of the applicable Open Source License. More details regarding the Open Source Software and the applicable Open Source Licenses are available at cohodata.com/licenses. Some of the Open Source software may be subject to the GNU General Public License v.2 (“GPL”) or the GNU Lesser General Public License v.2.1 (“LGPL”), copies of which are available at on the Software Licensing Web Site. In accordance with the terms of the GPL and LGPL, Customer may request a copy of the relevant source code for up to three years from the date of Customer’s original receipt of the applicable software. 15. Miscellaneous. This Agreement shall be governed by the laws of the State of California without reference to its conflicts of laws principles. The provisions of the U.N. Convention for the International Sale of Goods and the Uniform Computer Information Act shall not apply to this Agreement. For any disputes arising under this Agreement, the Parties hereby consent to the personal and exclusive jurisdiction of, and venue in, the state and federal courts within Santa Clara County, California. This Agreement constitutes the entire and sole agreement between Coho and the Customer with respect to the Software, and supersedes all prior and contemporaneous agreements relating to the Software, whether oral or written (including any inconsistent terms contained in any quote, purchase order or purchase order acknowledgement). No modification to this Agreement nor any waiver of any rights hereunder shall be effective unless expressly assented to in writing by the party to be charged. Neither Party may assign this Agreement whether voluntarily, by operation of law, or otherwise without the other Party’s prior written consent, provided however an assignment in connection with a merger or acquisition of substantially all business of either Party will not require written consent. Any purported assignment in derogation of the foregoing is void. If any portion of this Agreement is held invalid, the Parties agree that such invalidity shall not affect the validity of the remainder of this Agreement. This Agreement and associated documentation has been written in the English language, and the Parties agree that the English version will govern. (For Canada: Les parties aux présentés confirment leur volonté que cette convention de même que tous les documents y compris tout avis qui s'y rattaché, soient redigés en langue anglaise. (Translation: The parties confirm that this Agreement and all related documentation is and will be in the English language)). END USER LICENSE AGREEMENT 3 � Coho Data, Inc. US Office 4151 Middlefield Road, Suite 100, Palo Alto, CA 94303 408.419.1907 Canadian Office 1110 Hamilton Street, Suite 500, Vancouver, BC. V6B 2S2 778.724.0761 END USER LICENSE AGREEMENT, version 02.0.0.04 Document number: 770-00020 Printed on: July-08-15 END USER LICENSE AGREEMENT 4 �
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CONVERGE™ EMS SOFTWARE END-USER LICENSE AGREEMENT IMPORTANT—READ CAREFULLY: This End-User License Agreement (“EULA”) is a legal agreement between TRANSITION NETWORKS, INC. ("TRANSITION"), 10900 RED CIRCLE DRIVE, MINNETONKA, MN 55343 And the END USER ("Licensee") for the CONVERGE™ EMS software, which includes computer software and may include associated media, printed materials, “online” or electronic documentation. By INSTALLING, COPYING, OR OTHERWISE USING THE PRODUCT, the END USER ("Licensee") agrees to a license of CONVERGE™ EMS software in accordance with the terms and conditions contained in this Agreement. TERMS AND CONDITIONS I. DEFINITIONS A. B. C. D. "Licensed Software" means the TRANSITION CONVERGE™ EMS Software for which Licensee is granted a license under this Agreement. "Converge™ EMS" means the Licensed Software that is installed on a single Licensee Server. Each Converge™ EMS installation requires a Converge™ EMS License Key file configured for the unique Server ID of the computer on which the Converge™ EMS software is installed. "Converge™ EMS License Key" means the unique, encrypted software license key file provided by TRANSITION (only upon payment of the applicable fees) that is designed to prevent use of the Converge™ EMS Licensed Software beyond the scope of the license paid for by Licensee by limiting, as appropriate, the number of devices the Converge™ EMS software can manage and the number of copies of the Converge™ EMS software that can be used. "Documentation" means all materials in written, computer readable or other form containing information about the Licensed Software that accompany the Licensed Software, or that TRANSITION may provide during the term of this Agreement. II. GRANT OF LICENSE On the terms and conditions of this Agreement, and upon payment of all applicable fees, TRANSITION grants to Licensee and Licensee accepts the non-exclusive licenses and the restrictions set forth below. A. B. C. D. E. Software License. TRANSITION grants to Licensee a non-exclusive license to install and use the Licensed Software in machine-readable object code form only in the configuration and to the scope identified per terms of the license contract with TRANSITION. Documentation. TRANSITION grants to Licensee a non-exclusive license to use the Documentation in connection with Licensee's internal use of the Licensed Software. Limitation on Use. Licensee understands and acknowledges that use of the Licensed Software is controlled by the CONVERGE™ EMS License Key. Licensee may not use the Licensed Software beyond the scope enabled by the CONVERGE™ EMS License Key provided by TRANSITION to Licensee upon payment of the applicable license fee. Licensee may install and only use the CONVERGE™ EMS software on the server specifically enabled by the CONVERGE™ EMS License Key provided to Licensee by TRANSITION. Licensee may only use the CONVERGE™ EMS software to manage the number of devices specifically enabled by the CONVERGE™ EMS License Key provided to Licensee by TRANSITION. Licensee may have an unlimited number of concurrent users for use by Licensee, provided Licensee does not receive any direct payment for doing so Licensee may not modify or alter the Licensed Software or CONVERGE™ EMS License Key to increase the scope of its use of the Licensed Software. Further, Licensee may not use any device, process or computer program that increases, directly or indirectly, the scope of use of the Licensed Software enabled by the CONVERGE™ EMS License Key provided to Licensee by TRANSITION. If Licensee wishes to increase the scope of its licensed use of the Licensed Software, Licensee must purchase an additional CONVERGE™ License Key from TRANSITION. Back-Up Copies. Licensee may make one copy of the Licensed Software solely for back-up or archival purposes, provided that such copy must contain all proprietary notices affixed to or appearing in the original copy. Hazardous Environments. The Licensed Software is not designed or intended for use in online control equipment in environments requiring fail-safe performance, such as the operation of nuclear facilities, aircraft communication or control systems or life support systems, in which software failure could lead to personal injury or severe property or environmental damage. Licensee warrants that it will not use or allow the use of the Licensed Software for such purposes. �III. OWNERSHIP AND USE RESTRICTIONS A. Ownership. Licensee acknowledges that the Licensed Software, all enhancements, corrections and modifications to the Licensed Software (regardless whether made by TRANSITION, Licensee or anyone else), all copyrights, patents, trade secrets, or trademarks or other intellectual property rights protecting or pertaining to any aspect of the Licensed Software (or any enhancements, corrections or modifications) and the Documentation, are and shall remain the sole and exclusive property of TRANSITION and, where applicable, TRANSITION's suppliers. This Agreement does not convey title or ownership to Licensee, but instead gives Licensee only the limited rights set forth in Section II. TRANSITION reserves all rights not expressly granted by this Agreement. B. Restrictions. Except as expressly set forth in this Agreement, Licensee has no right to use, make, sublicense, modify, transfer, rent, lease, sell, display, distribute or copy originals or copies of any Licensed Software or Documentation, or to permit anyone else to do so. C. Transfer. Licensee may not assign or transfer its rights under this Agreement or its rights to the Licensed Software without the prior written consent of TRANSITION. Upon any such transfer or assignment, Licensee must transfer all copies of the Licensed Software and Documentation and assignee must agree in writing to all the terms of this Agreement. D. Proprietary Notices. Licensee shall not remove any patent, copyright or trademark or other intellectual property notices that may appear on any part of the Licensed Software or the Documentation. E. Trade Secrets. Licensee acknowledges that the Licensed Software, in its source code form, contains valuable trade secrets belonging to TRANSITION. Licensee may not reverse engineer, unencrypt, decompile, disassemble or otherwise translate the Licensed Software or allow anyone else to do so. F. Audit Rights. Licensee authorizes TRANSITION or its designee to audit its compliance with this Agreement, as TRANSITION deems reasonable. G. Notice to Employees and Agents. Licensee will use commercially reasonable efforts to inform its employees, agents and others using the Licensed Software under this Agreement that it may not be used, copied or transferred in violation of this Agreement. H. Irreparable Harm. Licensee acknowledges that money damages may not be an adequate remedy for any breach or violation of any requirement set forth in Section III of this Agreement and that any such breach or violation may leave TRANSITION without an adequate remedy at law. Licensee therefore agrees that, in addition to any other remedies available at law, in equity or under this Agreement, TRANSITION shall be entitled to obtain temporary, preliminary and permanent injunctive relief, without bond, from a court of competent jurisdiction to restrain any such breach or violation. IV. SHIPMENT AND PAYMENT A. B. C. D. Shipment of Licensed Software. TRANSITION shall deliver all Licensed Software via a secure website download, the details of which shall be sent via email to the End user along with the Converge™ EMS license key file which is unique to the server that the Licensed Software will be installed on. TRANSITION Product Delivery Schedule and Delays. Although TRANSITION shall use reasonable efforts to meet Licensee's requested delivery schedules for Licensed Software, TRANSITION shall not be liable for any loss, damage or expense due to late delivery. Payment. Licensee shall pay for all Licensed Software in accordance with the terms of their contract with TRANSITION. Taxes. With the sole exception of taxes based on TRANSITION's net income, Licensee shall pay all sales, use, excise, value added or other taxes that may arise out of Licensee's installation or use of the Licensed Software. V. NO PRODUCT MAINTENANCE AND SUPPORT Licensee is not entitled to any maintenance or support for the Licensed Software or any upgrades or enhancements under this Agreement. Licensee may purchase from TRANSITION maintenance and support pursuant to the terms, conditions and pricing of TRANSITION's maintenance and support agreement as in effect on the date of Licensee's purchase of the maintenance and support agreement. All updates and enhancements made available to Licensee shall become part of the Licensed Software and become subject to this Agreement. VI. LIMITED WARRANTY A. Ownership. TRANSITION warrants that it owns or has the right and authority to license the Licensed Software and Documentation to Licensee on the terms and conditions of this Agreement. �B. C. Licensed Software. TRANSITION warrants that, in the form delivered to Licensee by TRANSITION, the Licensed Software shall perform substantially in accordance with the Documentation for ninety (90) days after delivery to Licensee. TRANSITION's warranty is conditioned upon: (a) the use of the Licensed Software in accordance with the Documentation and other instructions provided by TRANSITION and shall be null and void if Licensee alters or modifies the Licensed Software without TRANSITION's prior written approval, does not use the Licensed Software in accordance with the Documentation and TRANSITION's instructions, or if the Licensed Software fails because of any accident, abuse or misapplication; and (b) Licensee notifies TRANSITION in writing of the claimed nonconformity within ninety (90) days after delivery of the Licensed Software to Licensee. As TRANSITION's sole liability and Licensee's sole remedy respecting the Licensed Software's nonconformance with the limited warranty set forth in this Section VI.C, TRANSITION may at its option: (i) use reasonable efforts to correct the Licensed Software to make it conform substantially with the specifications set forth in the Documentation; (ii) replace the Licensed Software; or (iii) upon return of the Licensed Software and Documentation to TRANSITION, refund the license fees paid by Licensee under this Agreement and terminate this Agreement. TRANSITION DOES NOT REPRESENT OR WARRANT THAT THE LICENSED SOFTWARE WILL OPERATE PROPERLY WITH OTHER HARDWARE OR SOFTWARE, THAT THE LICENSED SOFTWARE WILL MEET LICENSEE'S REQUIREMENTS OR EXPECTATIONS OR THAT OPERATION OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. VII. NO OTHER WARRANTY EXCEPT AS SET FORTH IN SECTION VI, TRANSITION IS PROVIDING THE LICENSED SOFTWARE AND THE DOCUMENTATION "AS IS," AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TRANSITION SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, CONDITIONS OR REPRESENTATIONS (WHETHER EXPRESS, IMPLIED OR STATUTORY, OR ORAL OR WRITTEN) WITH RESPECT TO THE LICENSED SOFTWARE OR DOCUMENTATION INCLUDING WITHOUT LIMITATION ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT TRANSITION KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE) OR CONDITIONS OF TITLE OR NONINFRINGEMENT WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE OR BY COURSE OF DEALING. TRANSITION ALSO EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OR REPRESENTATION TO ANY PERSON OTHER THAN LICENSEE. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHERS, WHICH VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION. VIII. LIMITATION OF LIABILITY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE CUMULATIVE LIABILITY OF TRANSITION FOR ALL CLAIMS OF ANY NATURE RELATED TO THE LICENSED SOFTWARE OR DOCUMENTATION OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING ANY CAUSE OF ACTION BASED ON WARRANTY, CONTRACT, TORT, STRICT LIABILITY PATENT OR COPYRIGHT INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY, SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL LICENSE FEES THAT LICENSEE HAS ACTUALLY PAID UNDER THIS AGREEMENT. NEITHER TRANSITION NOR ANY OF ITS RESELLERS, SUPPLIERS OR LICENSORS SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, OR FOR ANY LOSS OF PROFITS, LOSS OF SAVINGS, LOSS OF DATA OR LOSS OF USER DAMAGES ARISING OUT OF THIS AGREEMENT OR THE USE (OR INABILLITY TO USE) OF THE LICENSED SOFTWARE EVEN IF TRANSITION OR RESELLER, SUPPLIER OR LICENSOR HAS BEEN AWARE OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. IN NO EVENT WILL TRANSITION BE LIABLE FOR ANY CLAIM BROUGHT MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE OR SHOULD HAVE BEEN DISCOVERED. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IX. TERMINATION Without prejudice to any other rights it may have under this Agreement or at law or equity, TRANSITION may terminate this Agreement if Licensee fails to comply with the terms of this Agreement. Upon termination of this Agreement for any reason, Licensee will immediately discontinue use of the Licensed Software, destroy or return to �TRANSITION all copies of the Licensed Software and Documentation in whatever form they exist, including all backup copies, and certify in writing to TRANSITION that all copies have been destroyed. X. INDEMNIFICATION The Licensed Software is intended for use only with properly licensed media, content and content creation tools. It is Licensee’s responsibility to ascertain whether any copyright, patent or other licenses are necessary and to obtain any such licenses to serve and/or create or compress such media and content. Licensee agrees to transmit and/or compress only those materials for which it has the necessary patent, copyright or other permissions, licenses and/or clearances. Licensee agrees to hold harmless, indemnify and defend TRANSITION, its officers, directors and employees, from and against any losses, damages, fines and expenses (including attorneys' fees and costs) arising out of or relating to any claims that Licensee has encoded, compressed, copied or transmitted any materials (other than materials provided by TRANSITION) in connection with the Licensed Software in violation of another party's rights or in violation of any law. If Licensee is importing the Licensed Software from the United States, it shall indemnify and hold TRANSITION harmless from and against any import and export duties or other claims arising from such importation. XI. GENERAL TERMS A. Export Regulations. The Licensed Software and Documentation, including technical data, is subject to U.S. Export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Licensee agrees to comply strictly with all such regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export, or import the Licensed Software or Documentation. Neither the Software nor Documentation may be downloaded, or otherwise exported or re-exported (i) into, or to a national or resident of Cuba, Iraq, Iran, North Korea, Libya, Sudan, Syria or any country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nations or the U.S. Commerce Department's Table of Denial Orders. By installing or using the Licensed Software, Licensee is warranting that it is not located in or under the control of, or a national or resident of any such country or on any such list. B. U.S. Government Restrictions. The use, duplication or disclosure by the United States Government of the Licensed Software and Documentation is subject to the restrictions as set forth in the Rights in Technical Data and Computer Software Clauses in DFARs 252.227-7013(c)(1)(ii) and FAR 52.227-19(c) C. Governing Law and Forum. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota and the United States without reference to conflicts of laws principles. Licensee consents to the exclusive jurisdiction and venue of the federal and state courts in Hennepin County, Minnesota for resolution of any disputes concerning this Agreement. D. Attorneys' Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to recover from the losing party its reasonable attorney's fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled. E. Complete Understanding. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding its subject matter. No amendment to or modification of this Agreement will be binding unless in writing and signed by duly authorized representatives of both TRANSITION and Licensee. F. Survival. The following provisions of this Agreement shall survive termination of this Agreement, along with any other terms which by their nature require survival: Section III, Section V, Section VI, Section VII, Section IX and Section X. G. Absence of Third Party Beneficiaries. Unless otherwise expressly provided, no provisions of this Agreement are intended or shall be construed to confer upon or give to any person other than TRANSITION and Licensee any rights, remedies or other benefits under or by reason of this Agreement. H. Disclaimer of Agency. TRANSITION and Licensee each acknowledge that the parties to this Agreement are independent. Neither party is authorized or empowered to act as agent or legal representative for the other for any purpose and shall not on behalf of the other enter into any contract, warranty or representation as to any matter. Neither party shall be bound by the acts nor shall conduct of the other and nothing herein be construed as creating a partnership or joint venture. I. No Waiver. The failure of either party to enforce any provision of this Agreement shall not be deemed a waiver of that provision or any other available right or remedy. J. Headings. The section headings used in this Agreement are intended for convenience only and shall not be deemed to modify, limit or supersede any provision. �K. Severability. In the event that any provision of this Agreement is found to be invalid, illegal or unenforceable pursuant to judicial decree or decision, the remainder of this Agreement shall remain valid and enforceable according to its terms. XII. SOFTWARE PRE-REQUISITES The following software pre-requisites apply to Converge EMS™ R 1.2.x. The software components listed are prerequisites for use of the software and must be procured and installed independently. Converge EMS™ licensing or fees do not include these components: Operating System: Windows 7,Ubuntu 12.04 , Red Hat Enterprise Linux Database: MySQL -5.6 Java: Java 7 Application Server: Apache Tomcat 7 XIII. TRANSITION TRADEMARKS Converge™ EMS is a registered trademark of Transition Networks, in the United States and other countries. "Apache Tomcat" and "Tomcat" are trademarks of the Apache Software Foundation. Oracle, Java and Solaris are registered trademarks of Oracle and/or its affiliates. MySQL is a trademark of MySQL AB in the United States and other countries. Microsoft,Windows and Internet Explorer are trademarks of Microsoft Corporation in the U.S.A. and/or other countries. Oracle is a registered trademark of Oracle Corporation. Ubuntu is a registered trademark of Canonical Ltd. Red Hat is a trademark or registered trademark of Red Hat, Inc. in the United States and other countries. Mozilla Firefox is a trademark of Mozilla Foundation. Google Chrome is a trademark of Google Inc. Other names may be trademarks of their respective owners. All contents Copyright © TRANSITION NETWORKS. All rights reserved. �
nw/24.txt
EULA End-User License Agreement END-USER LICENSE AGREEMENT FOR THE CAPSTORM SOFTWARE YOU HAVE SELECTED IMPORTANT PLEASE READ THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT CAREFULLY BEFORE CONTINUING WITH THIS PROGRAM. CAPSTORM End-User License Agreement ("EULA") is a legal agreement between you (either an individual or a single entity) and CAPSTORM for the CAPSTORM software products which may include associated software components, printed materials, and "online" or electronic documentation ("SOFTWARE PRODUCT"). By installing, copying, or otherwise using the SOFTWARE PRODUCT, you agree to be bound by the terms of this EULA. This license agreement supersedes any prior proposal, representation, or understanding between the parties. If you do not agree to the terms of this EULA, do not download or use the SOFTWARE PRODUCT. The SOFTWARE PRODUCT is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The SOFTWARE PRODUCT is licensed, not sold. 1. GRANT OF LICENSE. The SOFTWARE PRODUCT is licensed as follows: (a) Installation and Use. CAPSTORM grants you the right to download and use a single copy of the SOFTWARE PRODUCT on your computer. (b) License specifics by SOFTWARE PRODUCT: Capstorm Product Salesforce Instance Type CopyStorm Production CopyStorm is licensed for use with a single Salesforce Organization. CopyStorm Sandbox CopyStorm is licensed for use with a single Salesforce Organization for each 30 day period. The Sandbox must be associated with a single named Salesforce Production instance. CopyStorm/Restore Production CopyStorm/Restore is licensed for use with a single Salesforce Organization. CopyStorm/Restore Sandbox CopyStorm/Restore is licensed for use with a single Salesforce Organization for each 30 day period. The Sandbox must be associated with a single named Salesforce Production instance. License NOTE: Salesforce Organization is determined by the Salesforce Organization Id. July 2014 �(c) Backup Copies. You may also make copies of the SOFTWARE PRODUCT as may be necessary for backup and archival purposes. 2. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS. (a) Maintenance of Copyright Notices. You must not remove or alter any copyright notices on any and all copies of the SOFTWARE PRODUCT. (b) Distribution. Except as expressly allowed herein or by applicable law, you are not licensed or permitted under this Agreement to do any of the following: copy, reproduce, republish, upload, post, transmit, license, sublicense, modify or create derivative works based on the SOFTWARE PRODUCT in whole or in part, resell or distribute in any way the SOFTWARE PRODUCT; permit any third party to benefit from the use or functionality of the SOFTWARE PRODUCT via a rental, lease, time sharing, service bureau, or other arrangement; transfer any of the rights granted to you under this Agreement; or decompile, disassemble, or otherwise reverse engineer the SOFTWARE PRODUCT except as otherwise permitted by applicable law. You may not distribute copies of the SOFTWARE PRODUCT to third parties. (c) Prohibition on Reverse Engineering, Decompilation, and Disassembly. You may not reverse engineer, decompile, or disassemble the SOFTWARE PRODUCT, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. (d) Rental. You may not rent, lease, or lend the SOFTWARE PRODUCT. (e) Support Services. CAPSTORM may provide you with support services related to the SOFTWARE PRODUCT. Any supplemental software code provided to you by CAPSTORM shall be considered part of the SOFTWARE PRODUCT and subject to the terms and conditions of this EULA. (f) Compliance with Applicable Laws. You must comply with all applicable laws regarding use of the SOFTWARE PRODUCT. 3. COPYRIGHT All title, including but not limited to copyrights, in and to the SOFTWARE PRODUCT and any copies thereof are owned by CAPSTORM. All title and intellectual property rights in and to the content which may be accessed through use of the SOFTWARE PRODUCT is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This EULA grants you no rights to use such content. All rights not expressly granted are reserved by CAPSTORM. 4. NO WARRANTIES CAPSTORM expressly disclaims any warranty for the SOFTWARE PRODUCT. The SOFTWARE PRODUCT is provided 'As Is' without any express or implied warranty of any kind, including but not limited to any warranties of merchantability, noninfringement, or fitness of a particular purpose. July 2014 �CAPSTORM does not warrant or assume responsibility for the accuracy or completeness of any information, text, graphics, links or other items contained within the SOFTWARE PRODUCT. CAPSTORM makes no warranties respecting any harm that may be caused by the transmission of a computer virus, worm, time bomb, logic bomb, or other such computer program. CAPSTORM further expressly disclaims any warranty or representation to you or to any third party. 5. LIMITATION OF LIABILITY In no event shall CAPSTORM be liable for any damages (including, without limitation, lost profits, business interruption, or lost information) rising out of your use of or inability to use the SOFTWARE PRODUCT, even if CAPSTORM has been advised of the possibility of such damages. In no event will CAPSTORM be liable for loss of data or for indirect, special, incidental, consequential (including lost profit), or other damages based in contract, tort or otherwise. CAPSTORM shall have no liability with respect to the content of the SOFTWARE PRODUCT or any part thereof, including but not limited to errors or omissions contained therein, libel, infringements of rights of publicity, privacy, trademark rights, business interruption, personal injury, loss of privacy, moral rights or the disclosure of confidential information. July 2014 �
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END USER LICENCE AGREEMENT ("EULA") PLEASE READ THIS CAREFULLY BEFORE CONTINUING BEFORE CLICKING TO START DOWNLOADING THE SOFTWARE YOU SHOULD CAREFULLY READ THE TERMS AND CONDITIONS OF THIS LICENCE AGREEMENT. BY DOWNLOADING YOU ARE AGREEING TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THIS LICENCE AGREEMENT AND AGREE TO BECOME A LICENSEE. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS LICENCE AGREEMENT YOU SHOULD NOT DOWNLOAD OR USE THE SOFTWARE. When you accept the terms and conditions of this Licence Agreement by downloading or accepting the licence terms & conditions, COUNTERSOFT LIMITED (the “Licensor”) shall immediately grant you (the “Licensee”) a limited, non-exclusive, non-transferrable licence to Use the software and any and all accompanying documentation (the “Software”) subject to the terms and conditions of this Licence Agreement. You warrant and represent to the Licensor that this EULA shall be binding upon you the Licensee, and that the individual agreeing to be bound under the terms and conditions of this EULA is authorized or has been empowered to do so and is more than 18 years of age and is fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this EULA, and to abide by and comply with the terms and conditions contained herein When you use the Software, the Licensor may collect certain information about your computer to facilitate, evaluate and verify your use of the Software, which may be sent to a computer designated by the Licensor for its own internal use and shall not be shared with any third parties. This information is collected in the aggregate form, without identifying any user individually, for the purpose of performance and error diagnostics and for improving the Software to providing you with a better service and more relevant experience. As indicated above, if you do not desire to accept this EULA or agree to the terms and conditions of this EULA, you should not download or use the software. The software will continue to work even if your computer is not connected to the Internet or if your firewall policies do not allow such information to be sent to the Licensor’s computer. You acknowledge and agree that you are not an owner of the Software or any copies of the Software; that you have no right to further transfer or distribute the Software or any copies of the Software or provide access to the Software in any manner without the Licensor’s prior written consent. You further agree not to challenge the enforceability or validity of this EULA or to initiate any proceedings inconsistent with the terms and conditions of this EULA. This EULA has been prepared in the English language and the interpretation of this EULA shall be based on the English language. Any non-English version of this EULA is solely for accommodation purposes. 1. Use of the Software 1.1 In this Licence Agreement, “Use” shall be defined as including the installation of the Software by copying, transmitting or loading it into the permanent memory of a computer or other device (each a “Computer”) for the processing of the system instructions or statements contained in the Software. “Use” shall also include copying the Software in machine-readable form for the COUNTERSOFT LIMITED · GEMINI EULA 1 �purposes of understanding the contents of such machine-readable material (which may be known as reverse-engineering). 1.2 2. A maximum of ONE copy of the Software may be made for back-up and/or disaster recovery purposes only. Nature of the Software The Software is commercially licensed software. It is not open-source, freeware or shareware. The Licensor may demand a licence fee for Use of the Software in accordance with this Licence Agreement and only the Licensor may waive payment for the software. 3. Licensee’s Undertakings By accepting the terms and conditions of this Licence Agreement you hereby undertake: 4. 3.1 Not to copy the Software except as permitted by sub-Clause 1.2; 3.2 Not to disassemble, decompile or otherwise reverse-engineer the Software; 3.3 Not to install the Software on more than ONE Computer(s) at any one time in violation of this Licence Agreement; 3.4 To ensure that your employees, agents and other parties under your control who will use the Software do so in accordance with the terms and conditions of this Licence Agreement and are accordingly notified of the same; 3.5 To reproduce and include any and all copyright notices of the Licensor as they appear in or on the Software and any and all copies thereof; 3.6 Not to create any derivative or competing product based upon this software; 3.7 Not to permit or facilitate the Use of the Software in any manner which would constitute a breach of the terms and conditions of this Licence Agreement; 3.8 Not to place or distribute the Software on any website, ftp server or similar location without the express prior written consent of the Licensor; 3.9 Not to Use the Software for any purpose which may be deemed immoral, illegal, offensive, threatening, abusive or otherwise harmful; and 3.10 Not to remove or otherwise obscure any copyright notices of the Licensor displayed within the software. Transferring the Software 4.1 5. The Software is licensed only to you the Licensee. You may not rent, lease, sub-licence, sell, assign, pledge, transfer or otherwise dispose of the Software, on a temporary or permanent basis, without the prior written consent of the Licensor. Limited Warranty 5.1 Subject to the limitations and exclusions of liability below, the Licensor warrants to make best endeavours to ensure that the Software materially conforms with any documentation that accompanies it. 5.2 Subject to sub-Clause 5.1, the Software is provided “as is” without any warranty of any kind, whether express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. COUNTERSOFT LIMITED · GEMINI EULA 2 �6. 5.3 You acknowledge that any Trial or Free version of the software may have limited features, function for a limited time, have other limitations or include features not present in a non-trial or paid for version of the software. 5.4 The Licensor does not warrant that the Software will be error-free or that such errors will be corrected and the Licensee is solely responsible for all costs and expenses associated with the rectification, repair or damage caused by such errors. 5.5 The Licensor shall not be liable if the Software fails to operate in accordance with the limited warranty set out in sub-Clause 5.1 as a result of any modification, variation or addition to the Software not performed by the Licensor or caused by any abuse, corruption or incorrect use of the Software, including use of the Software with equipment or other software which is incompatible. 5.6 In the event that the Licensor incurs any liability of any kind, that liability shall be limited to the licence fee paid by the Licensee for the Software. Nothing in this Clause 5 nor in the remainder of this Licence Agreement shall limit or exclude the Licensor’s liability for death or personal injury arising out of the Licensor’s negligence nor for fraudulent misrepresentation. 5.7 The Software may contain libraries, utilities or other binary executable files belonging to third parties. Any illegal re-use of redistributable libraries, utilities or other binary executable files belonging to 3rd parties shall leave you the Licensee solely liable for damages and breach of third party software license agreements. 5.8 You agree to defend, indemnify and hold Licensor, its affiliates, subsidiaries, officers, directors, employees, consultants, agents, suppliers, licensors and resellers from any and all third party claims, whether foreign or domestic, and any and all liability, damages and/or costs including, but not limited to, reasonable attorney fees, arising from your Use of the Software and the distribution of the same. Your Statutory Rights This Licence Agreement gives you specific legal rights and you may also have other rights that vary from one country to another. Some jurisdictions do not allow the exclusion of implied warranties, or certain kinds of limitations or exclusions of liability, so the limitations and exclusions included in this Licence Agreement may not apply to you. Other jurisdictions do allow limitations and exclusions subject to certain conditions. In either case the limitations and exclusions included in this Licence Agreement shall apply to the fullest extent permitted by the laws of such applicable jurisdictions. If any part of the limitations or exclusions in this Licence Agreement is held to be void or unenforceable, such part shall be deemed to be deleted from this Licence Agreement and the remainder of the limitation or exclusion shall continue in full force and effect. Any rights that you may have as a consumer (i.e. a purchaser for private as opposed to business, academic or government use) are not affected. 7. Intellectual Property Rights The Software and related documentation are copyright works of authorship and are also protected under applicable database laws. The Licensor retains ownership of the Software, all subsequent copies of the Software and all intellectual property rights subsisting therein, regardless of the form in which such copies may exist. This Licence Agreement is not a sale of the original Software or any copies thereof. COUNTERSOFT LIMITED · GEMINI EULA 3 �8. 9. 10. Term and Termination 8.1 This Licence Agreement is effective until terminated. You may terminate it at any time by destroying the Software together with all copies in any form. 8.2 This Licence Agreement shall also terminate upon conditions set out elsewhere in this Licence Agreement or if you fail to comply with any of the terms and conditions of this Licence Agreement. 8.3 You agree that, upon such termination, you will destroy the Software including any copies in whatever form. 8.4 Refunds full or partial are not provided as you are requested to fully evaluate the Software before purchasing it or using it in what can be construed as a Live, Production, or Operational environment. 8.5 We may terminate this Licence Agreement immediately and without notice if we reasonably suspect that you are using the Software for any purpose which contravenes the laws of the country of registration of the Licensor. General 9.1 Each party irrevocably agrees that the courts of the country of registration of the Licensor, its subsidiary office, or reseller which issues an invoice for the Software, shall have exclusive jurisdiction to resolve any controversy or claim of whatever nature arising out of or in relation to this Licence Agreement and the place of performance of this Licence Agreement shall be that country and the laws of that country shall govern such controversy or claim. 9.2 This Licence Agreement constitutes the complete and exclusive statement of the Licence Agreement between the Licensor and you with respect to the subject matter of this Licence Agreement and supersedes all proposals, representations, understandings and prior agreements, whether oral or written, and all other communications between us relating to that subject matter. 9.3 Any Clause in this Licence Agreement that is found to be invalid or unenforceable shall be deemed deleted and the remainder of this Licence Agreement shall not be affected by that deletion. 9.4 Failure or neglect by either party to exercise any of its rights or remedies under this Licence agreement will not be construed as a waiver of that party’s rights nor in any way affect the validity off the whole or part of this Licence Agreement nor prejudice that party’s right to take subsequent action. 9.5 This Licence Agreement is personal to you and [subject to Clause 4] you may not assign, transfer, sub-contract or otherwise part with this Licence Agreement or any right or obligation under it without the Licensor’s prior written consent. Revisions to Licensing Terms We reserve the right to revise the terms of this License by updating the License on our website or informing you via email. It is recommended that you routinely check the following website link to up-to-date license agreement: http://www.countersoft.com/eula.pdf Your Use of the Software shall be deemed to constitute the acceptance of any revised terms. COUNTERSOFT LIMITED · GEMINI EULA 4 �11. Software Support All versions of the Software purchased directly from the Licensor are provided with 12 months support via email and free access to the Licensor’s documentation and other Software support websites, such as an online helpdesk (“Product Support”). Regardless of whether the Software has been purchased directly from the Licensor or a reseller, customers must renew their annual support and maintenance agreement after the initial 12 month period to continue to be entitled to Product Support. Customers who have purchased the Software and are entitled to Product Support will also be entitled to upgrades and new releases of the package they purchased at no additional cost. Product Support for different versions Express and Professional package customers are entitled to free email support where the Licensor will endeavour to respond to emails within 24 hours. Telephone and GoToMeeting based support are not available to Express and Professional package customers. Premium package customers are entitled to free email and telephone support. The Licensor will endeavour to respond to emails within 24 hours. Telephone support is available between the hours of 8am and 9pm GMT and is limited to a maximum of two phone calls per week. GoToMeeting based support is not available to Premium package customers. Enterprise package customers are entitled to free email, telephone and GotoMeeting support. The Licensor will endeavour to respond to emails within 24 hours. Telephone support is available between the hours of 8am and 9pm GMT and is limited to a maximum of four phone calls per week. GoToMeeting support will be delivered at mutually agreed times and will be limited to a maximum of two sessions per calendar month with a maximum duration of one hour per session. We reserve the right to withdraw or refuse telephone support without notice. You accept that, although we will use reasonable endeavours to solve problems identified by purchasers of the Software, the nature of software is such that no guarantee can be provided that any particular problem will be solved. Renewal of license is required within six months of expiry. Failure to renew within 6 months of expiry means the Licensee forgoes any entitlement to renew the expired license and would be required by the Licensor to purchase a new license to obtain Product Support. 12. Privacy and Data Collection We may contact you to inform you of product updates or new products and you consent to such use of your personal data. Your contact details (email address) will never be disclosed to any other party. We do not expose any data held within the SOFTWARE to any external sources. We reserve the right if we sell the assets of our business to transfer personal data to the new owners or where required by law so to do. COUNTERSOFT LIMITED · GEMINI EULA 5 �We do not sell or otherwise disclose your email address. We reserve the right the display your corporate logo on our website solely for demonstrating our client credentials. At your written request we will remove any such logo used on our website within 28 days. 13. Software Usage Tracking We may collect software usage metrics for the sole purposes of product research and development. Purchasers of the Software can opt out of software usage metrics by requesting removal via [email protected]. 14. Acceptance of Licence You will be deemed to have accepted the terms of the Licence by downloading, installing or using the Software on any computer or by clicking the ‘I Accept’ button. Any questions concerning this Licence Agreement or the Software should be directed to the Licensor. Contact details are available from http://www.countersoft.com. COUNTERSOFT LIMITED · GEMINI EULA 6 �
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End User License Agreement BY USING THE EQUIPMENT YOU ARE PURCHASING, YOU ARE CONSENTING TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN DO NOT PURCHASE THIS EQUIPMENT. YOUR RIGHT TO RETURN AND REFUND EXPIRES 30 DAYS AFTER PURCHASE, AND APPLIES ONLY IF YOU ARE THE ORIGINAL PURCHASER. The terms and conditions of sale contained herein supersede all agreements made and purchase orders submitted to and accepted by Digital Speech. All agreements are contingent upon such unavoidable incidents as strikes, accidents, material shortage, or other delays beyond Digital Speech’s control. Prices and conditions of sale on all in-stock and special order merchandise are subject to change without notice. Every effort has been made to ensure the accuracy of all information contained herein. The image displayed for every product might not be the exact picture. This is used for display purposes only. License Subject to the terms and conditions of and except as otherwise provided in this Agreement, Digital Speech grants to Customer ("Customer") a nonexclusive and nontransferable license to use the specific Digital Speech Software, Digital Speech Scripts, third-party embedded software, and Digital Speech Configuration Files. General Limitations Except as otherwise expressly provided under this Agreement, Customer shall have no right and Customer specifically agrees not to: (i) transfer, assign or sublicense its license rights to any other person, or use the Software on unauthorized equipment, and any such attempted transfer, assignment or sublicense shall be void; (ii) make error corrections to or otherwise modify or adapt the Software or create derivative works based upon the Software, or to permit third parties to do the same. Upgrades and Additional Copies For purposes of this Agreement, "Software" shall include (and the terms and conditions of this Agreement shall apply to) any upgrades, updates, bug fixes or modified versions (collectively, "Upgrades") or backup copies of the Software licensed or provided to Customer by Digital Speech. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT: (1) CUSTOMER HAS NO LICENSE OR RIGHT TO USE ANY SUCH ADDITIONAL COPIES OR UPGRADES UNLESS CUSTOMER, AT THE TIME OF ACQUIRING SUCH COPY OR UPGRADE, ALREADY HOLDS A VALID LICENSE TO THE ORIGINAL SOFTWARE AND HAS PAID THE APPLICABLE FEE FOR THE UPGRADE; (2) USE OF UPGRADES IS LIMITED TO DIGITAL SPEECH EQUIPMENT FOR WHICH CUSTOMER IS THE ORIGINAL END USER PURCHASER OR LESSEE OR WHO OTHERWISE HOLDS A VALID LICENSE TO USE THE SOFTWARE WHICH IS BEING UPGRADED; AND (3) USE OF ADDITIONAL COPIES IS LIMITED TO BACKUP PURPOSES ONLY. Proprietary Notices Customer agrees to maintain and reproduce all copyright and other proprietary notices on all copies, in any form, of the Software in the same form and manner that such copyright and other proprietary notices are included on the Software. Except as expressly authorized in this Agreement, Customer shall not make any copies or duplicates of any Software without the prior written permission of Digital Speech. Customer may make such backup copies of the Software as may be necessary for Customer's lawful use, provided Customer affixes to such copies all copyright, confidentiality, and proprietary notices that appear on the original. Protection of Information �Customer agrees that aspects of the Software and associated documentation, including the specific design and structure of individual programs, constitute trade secrets and/or copyrighted material of Digital Speech. Customer shall not disclose, provide, or otherwise make available such trade secrets or copyrighted material in any form to any third party without the prior written consent of Digital Speech. Customer shall implement reasonable security measures to protect such trade secrets and copyrighted material. Title to Software and documentation shall remain solely with Digital Speech. Limited Warranty If Customer obtained the Software directly from Digital Speech, then Digital Speech warrants that during the Warranty Period (as defined below): (i) the Software will substantially conform to its published specifications. The "Warranty Period" means a period beginning on the date of Customer's receipt of the Software and ending on the later of (a) ninety (90) days from the date of initial shipment of the Software by Digital Speech, or (b) the end of the minimum period required by the law of the applicable jurisdiction. The limited warranties extend only to Customer as the original licensee. Customer's sole and exclusive remedy and the entire liability of Digital Speech and its suppliers under these limited warranties will be, at Digital Speech’s or its service center's option, repair, replacement, or refund of the Software if reported (or, upon request, returned) to Digital Speech or its designee. Except as expressly granted in this Agreement, the Software is provided AS IS. Digital Speech does not warrant that the Software is error free or that Customer will be able to operate the Software without problems or interruptions. This warranty does not apply if the Software (a) has been altered, except by Digital Speech, (b) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by Digital Speech, or (c) has been subjected to abnormal physical or electrical stress, misuse, negligence, or accident. Disclaimer of Warranties EXCEPT AS SPECIFIED IN THIS WARRANTY, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, SATISFACTORY QUALITY OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE WARRANTY PERIOD. BECAUSE SOME COUNTRIES, STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. Disclaimer of Liabilities IN NO EVENT WILL DIGITAL SPEECH OR ITS SUPPLIERS BE LIABLE FOR ANY LOST REVENUE, PROFIT, OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE EVEN IF DIGITAL SPEECH OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall Digital Speech liability to Customer, whether in contract, tort (including negligence), or otherwise, exceed the price paid by Customer to Digital Speech. The foregoing limitations shall apply even if the above-stated warranty fails of its essential purpose. BECAUSE SOME COUNTRIES, STATES OR JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. All merchandise left our warehouse in good condition. The risk of loss or damage to goods shall pass to buyer as soon as such goods are picked up by carrier for delivery to buyer. Buyer should therefore inspect all packages for damages before signing delivery receipt. Claims should be filed immediately with the carrier (not with Digital Speech) for merchandise damaged in transit. In the event of a dispute Digital Speech shall be entitled to recover reasonable attorney(s) fees and cost incurred in the dispute resolution. �Term and Termination This Agreement is effective until terminated. Customer may terminate this Agreement at any time by destroying or returning to Digital Speech all copies of Software including any documentation. Customer's license rights under this Agreement will terminate immediately without notice from Digital Speech if Customer fails to comply with any provision of this Agreement. Upon termination, Customer must destroy all copies of Software in its possession or control. Export Software, including technical data, may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer agrees to comply strictly with all such regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export, or import Software. General This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, United States of America, as if performed wholly within the state and without giving effect to the principles of conflict of law. If any portion hereof is found to be void or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect. Digital Speech hereby specifically disclaims the UN Convention on Contracts for the International Sale of Goods. Except as expressly provided herein, this Agreement constitutes the entire agreement between the parties with respect to the license of the Software and supersedes any conflicting or additional terms contained in the purchase order. �
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END USER LICENSE AGREEMENT FOR DOLBY SOFTWARE The following is Dolby’s current version of the End User License Agreement (“EULA”). Dolby may modify this EULA: (A) immediately in any way which does not reduce or degrade Reseller’s rights or benefits pursuant to the policy, or (B) in all other instances, on forty-five (45) days written notice; provided, however, that the EULA in effect at the time of the sale of any Product unit shall continue to govern such Product unit. This EULA is a legal agreement between you (as an individual hereinafter referred to as “you” or “Customer” or “End User”) and Dolby Laboratories, Inc., a California Corporation, and Dolby International AB, a Swedish company residing in The Netherlands (collectively “Dolby”) for the Dolby® software that accompanies this EULA, which includes computer software and may include associated media, printed materials, “online” and electronic documentation, and any updates thereto provided when and if available (collectively, the “Software”). Dolby is providing you with the Software pursuant to a separate agreement between you (or a third party such as your employer) and one of Dolby’s licensees (a “Parent Agreement”). In the case of a conflict, this EULA takes priority over the Parent Agreement and governs your use of the Software. YOU HEREBY AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY ACCEPTING THIS EULA, OR BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT INSTALL, COPY, OR USE THE SOFTWARE. 1. LICENSE GRANT. Dolby grants you only those rights expressly granted to you in this EULA provided that you comply with all terms and conditions of this EULA. 1.1 Software License Grant. Dolby grants you a nonexclusive, revocable, limited, non-transferable license to (a) install and run the Software solely for the purpose of using the Dolby Conference Phone, or if applicable, accessing the conferencing service solutions provided under the Parent Agreement, and (b) make one copy of the Software solely for backup or archival purposes. 1.2 Documentation. You may make and use an unlimited number of copies of the documentation, if any, provided that such copies shall be used solely for your own use in association with the Software and are not to be republished nor distributed (in hard copy, electronic or any other form) beyond your premises or to any third party. 1.3 Beta Materials. The following apply to any Software provided as “pre-release” or “beta:” (a) You shall identify errors, potential improvements, and provide other feedback to Dolby about the pre-release or beta Software as reasonably requested by Dolby, and (b) Dolby reserves the right not to commercially release pre-release or beta Software or, if it does so, to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, and other characteristics of the commercial release. 2. RESERVATION OF RIGHTS AND OWNERSHIP. Dolby reserves all rights not expressly granted to you in this EULA. The Software is protected by copyright, patent, and/or other intellectual property laws and treaties and contains trade secrets of Dolby and its suppliers. Dolby and its suppliers own the title, copyright, and other intellectual property rights in the Software. Notwithstanding any statements to the contrary contained in any terms of sale for the Software, the Software is licensed, not sold and Dolby retains ownership of all copies of the Software. 3. LIMITATIONS ON LICENSE. You are expressly prohibited from using the Software in any manner not specifically authorized by Dolby in this EULA. You may not make any copies of the Software except and to the extent necessary for backup and archival purposes. You may not modify, create derivative works, reverse engineer, decompile, or disassemble the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. You may not rent, lease, lend or provide commercial hosting services with the Software. You may not delete, fail to reproduce, or modify any patent, copyright, trademark or other proprietary rights notices which appear on or in the Software or documentation. No license, right, or interest in any Dolby trademark, trade name, or service mark is granted to you pursuant to this EULA. 4. TERMINATION. Without prejudice to any other rights, Dolby may immediately terminate this EULA if you are in material breach of any of the terms or conditions of Sections 1-3 of this EULA which has not been remedied within 14 days of written notice from Dolby to you. In such event, you must immediately cease using the Software and destroy all copies of the Software and all of its component parts. v.04Feb2016 Page 1 of 3 �5. REPRESENTATIONS AND WARRANTIES. 5.1 You represent, warrant, and covenant that your use of the Software will at all times comply with the terms of this EULA, applicable laws and regulations, and that you will not install, use, access, or run the Software for purposes other than using the Dolby Conference Phone, or if applicable, accessing the conferencing services provided under the Parent Agreement. 5.2 Dolby represents and warrants that (a) it owns or has the right to license the Software, and (b) that the Software is complete, correct, effective, and capable of meeting the specifications included in the documentation, if any, provided under the Parent Agreement. Your sole remedy for breach of the foregoing representation in Section 5.2(b) shall be Dolby’s commercially reasonable efforts to redeliver the affected Software. 6. DISCLAIMER OF WARRANTIES. EXCEPT AS OTHERWISE SET FORTH ABOVE, DOLBY MAKES NO WARRANTIES REGARDING THE SOFTWARE. FURTHER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DOLBY AND ITS SUPPLIERS PROVIDE THE SOFTWARE AS IS, AND HEREBY DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE. THERE IS NO WARRANTY THAT THE SOFTWARE WILL OPERATE IN THE COMBINATIONS THAT YOU MAY SELECT FOR USE, THAT THE OPERATION OF THE SOFTWARE WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT ALL SOFTWARE ERRORS WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM DOLBY OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS EULA. THE ENTIRE RISK AS TO THE QUALITY, OR ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE REMAINS WITH YOU. 7. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. IN NO EVENT WILL DOLBY BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS EULA OR THE USE OR PERFORMANCE OF THE SOFTWARE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT DOLBY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. YOU AGREE THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS EULA IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. 8. LIMITATION OF LIABILITY AND REMEDIES. NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED HEREIN AND ALL DIRECT OR GENERAL DAMAGES IN CONTRACT OR ANYTHING ELSE), THE ENTIRE LIABILITY OF DOLBY AND ANY OF ITS SUPPLIERS UNDER ANY PROVISION OF THIS EULA AND YOUR EXCLUSIVE REMEDY HEREUNDER (OTHER THAN THE LIMITED REMEDY DESCRIBED IN SECTION 5.2 ABOVE) SHALL BE LIMITED TO THE AMOUNT OF USD$10.00 (TEN U.S. DOLLARS). THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS (INCLUDING SECTIONS 6, 7, AND 8) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY SPECIFIED IN THIS EULA IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. 9. GOVERNING LAW: The validity, interpretation, and performance of this EULA shall be governed by and construed in accordance with the laws, without respect to conflict of laws provisions, and you agree to submit to the jurisdiction of the court, set forth below based on the applicable region where you are located: Region: Europe, then Governing Law is England and Court Jurisdiction is English Courts. Region: All other countries, then Governing Law is the State of California, USA and Court Jurisdiction is State or Federal Courts. Region: People’s Republic of China, then Governing Law is the State of California, USA and Court Jurisdiction is Arbitration at the Hong Kong International Arbitration Centre in accordance with the UNCITRAL Arbitration Rules (“UNCITRAL Rules”). The arbitration tribunal shall consist of one arbitrator to be appointed according to the UNCITRAL Rules. The language of the arbitration shall be English. Notwithstanding the foregoing, nothing in this Section 9 shall prevent Dolby from seeking any injunctive or equitable relief by a court of competent jurisdiction that is necessary to protect Dolby’s rights or property until such dispute is resolved. This EULA will be interpreted and construed in accordance with the English v.04Feb2016 Page 2 of 3 �language. The parties agree that the provisions of the Uniform Computer Information Transactions Act (“UCITA”) and the U.N. Convention on Contracts for the International Sale of Goods will have no force or effect on these terms and conditions. 10. THIRD PARTY SOFTWARE AND/OR OPEN SOURCE. The Software contains open source components and other third party components, subject to the applicable licensing terms and conditions. From time to time, Dolby may include additional third party software and components subject to third party terms and conditions of use. For more information about these software components, see the following: • • www.dolby.com/us/en/about/warranty-and-maintenance-policies.html Open Source Software Guide for the Software or Software Operations and Management Guide v.04Feb2016 Page 3 of 3 �
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AFMG Ahnert Feistel Media Group Software-Engineering | Research | Development EASE Focus 3 – End User License Agreement AFMG is a worldwide leader in the development of software for the pro-audio industry. AFMG has developed, amongst other programs, and is the sole owner of, the Software EASE Focus Version 3 (“Software”). The Software is an acoustic modeling software for line array systems, digitally steered columns and conventional loudspeakers. It supports threedimensional SPL mapping, multiple systems, time and frequency response plots as well as many other features. The Software is provided by AFMG or authorized manufacturers/providers of loudspeaker cabinets (“Authorized Distributors”) in order to use the software for the design of sound systems. EASE and AFMG are registered trademarks of AFMG Technologies GmbH. Their use is governed by AFMG’s official trademark guidelines and all applicable trademark laws. This end user license agreement (“Agreement”) governs the legal relationship between AFMG Technologies GmbH, Arkonastraße 45-49, 13189 Berlin, Germany (“AFMG”), and the commercial end user of the Software (“User”). This Agreement does not apply for private end users. By downloading the Software from AFMG’s or from the Authorized Distributors’ websites, the User unconditionally accepts the terms and conditions of this Agreement. 1. Subject of the Agreement 1.1. AFMG provides the Software for download from its or from the Authorized Distributors’ websites free of charge for the User. 1.2. The establishment and maintenance of a functional hardware and software environment is the sole responsibility of the User. The minimum system requirement for the installation of the Software is Microsoft Windows 7. 1.3. By downloading the Software, the User also receives an English version of the user manual, which is included in the download file and will be installed on the User's computer automatically in the installation process. 1.4. The Software can be used in different languages. 1.5. AFMG does not provide and has no obligation to provide the User with the source code of the Software. For the avoidance of doubt, the source code is not subject of this Agreement. 1.6. The User shall observe all instructions provided by AFMG for the installation and operation of the Software. 2. Grant of rights 2.1. AFMG grants the User a non-exclusive right to use the Software on any computer with no limitation as to time. The User may only use the Software for the intended purpose, i.e., for the design of sound systems, and only with system definitions (i.e. GLL data files) authorized by AFMG or its Authorized Distributors. 2.2. The User may transfer a copy of the Software to another party only if the other party accepts the provisions of this Agreement. 2.3. AFMG remains the sole owner of all rights, in and to the Software granted to AFMG under the German Copyright Act (Urheberrechtsgesetz) and all other applicable laws and expressly reserves all rights not granted to the User under this Agreement. Page 1 / 3 �AFMG Ahnert Feistel Media Group Software-Engineering | Research | Development 3. Limitations of liability 3.1. AFMG shall not be liable for any claims for damages or any claims for reimbursement of wasted expenses, regardless of the type of violation involved and regardless of the legal grounds, except: a) In cases of damage from injury to life, body or health due to negligent breach of duty by AFMG or intentional or negligent breach of duty by a legal representative or a person used to perform an obligation of AFMG; b) In cases of other damage arising from a grossly negligent breach of duty by AFMG or from an intentional or grossly negligent breach of duty by a legal representative or a person used to perform an obligation of AFMG; c) In cases involving personal injuries or damages recoverable under the German Product Liability Act (Produkthaftungsgesetz), where liability shall be governed by applicable law, regardless of default. 3.2. Except as provided in Section 3.1. above, AFMG shall not be liable for any damages, including, without limitation, financial losses of any kind. 3.3. For the avoidance of doubt, it is expressly agreed between the parties that AFMG shall not be liable for the correctness of the User’s data and simulation results and any damages resulting from the use of data and simulation results generated with the Software. 4. Indemnification 4.1. The User shall fully indemnify AFMG from all third party claims, which arise from any illegal, culpable use of the Software by the User. This includes in particular patent claims, copyright claims or other commercial intellectual property right claims as well as claims arising from a violation of personal rights or from the unauthorized collection, storage and application of personal data. The User will indemnify and hold harmless AFMG from all legal fees reasonably incurred by AFMG that are attributable to any such claim. 4.2. In the event the User learns or must learn that the infringement of such right is imminent, the User shall immediately inform AFMG. 5. Jurisdiction, Governing law, final provisions 5.1. Any disputes arising from or in connection with this Agreement shall be determined by a court of competent jurisdiction in Berlin, Germany. 5.2. This Agreement shall be governed by and construed in accordance with the laws of the Federal Republic of Germany. For the avoidance of doubt, the United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply. 5.3. This Agreement reflects the entire agreement between the parties. The parties have entered into no oral or written collateral agreements with respect to the subject matter hereof. 5.4. If any provision of this Agreement shall be held invalid, the validity of the remaining provisions shall remain unaffected thereby. Any invalid provision shall, to the extent permitted by law, be replaced by such valid provision as most closely reflects the commercial intent and purpose of the original provision. The forgoing shall apply respectively if any provision shall have been inadvertently omitted from this Agreement. Berlin, March 7, 2016 Page 2 / 3 �AFMG Ahnert Feistel Media Group Software-Engineering | Research | Development AFMG Technologies GmbH Company Data AFMG Technologies GmbH Arkonastr. 45-49 13189 Berlin Germany Management: Prof. Dr.-Ing. habil. Wolfgang Ahnert Dr. rer. nat. Stefan Feistel Registered at: Berlin-Charlottenburg HRB 115012 B St.Nr: 37/483/21254 USt-IdNr: DE261093044 EORI-Nr: DE1173936 Page 3 / 3 �
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END USER LICENSE AGREEMENT ENCASE APP CENTRAL LICENSED APPLICATION END USER LICENSE AGREEMENT (“EULA”) This Licensed Application End User License Agreement (this “EULA”) governs Your purchase of a license to use a software application(s) (a “Licensed Application”) via Guidance Software, Inc.’s (“Company”) EnCase App Central portal located at www.encaseappcentral.com (the “Service”). The Applications transacted through the Service are licensed, not sold, to You for Your use only under the terms of this EULA along with any supplemental license agreement (a “Supplemental EULA”) that accompanies Your particular Application. The licensor of the Application licensed to You (the “Application Provider”) reserves all rights not expressly granted to You hereunder or under any Supplemental EULA. The terms and conditions of this EULA shall control to the extent of any conflict between the terms of this EULA and any Supplemental EULA. 1. Scope of License: This license granted to You for the Licensed Application by Application Provider is limited to a non-transferable license to use the Licensed Application on any computer that You own or control. This license does not allow You to use the Licensed Application on any computer that You do not own or control, and You may not distribute or make the Licensed Application available over a network where it could be used by multiple end users/devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the Licensed Application. You may not copy (except as expressly permitted by this EULA), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed Application, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Licensed Application). Any attempt to do so is a violation of the rights of the Application Provider, Company and their respective licensors. If You breach this restriction, You may be subject to prosecution and damages. This EULA will govern any upgrades provided by Application Provider that replace and/or supplement the original Licensed Application licensed to You, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern. 2. Consent to Use of Data: You agree that Company and/or Application Provider may collect and use technical data and related information, including but not limited to technical information about Your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to You (if any) related to the Licensed Application. Company and/or Application Provider may use this information, as long as it is in a form that does not personally identify You, to improve products or to provide services or technologies to You. 3. Termination. This EULA is effective until terminated by You or Application Provider. Your rights under this EULA will terminate automatically without notice from the Application Provider if You fail to comply with any term(s) of this EULA. Upon termination of the EULA, You shall cease all use of the Licensed Application, and destroy all copies, full or partial, of the Licensed Application. 4. NO WARRANTY: YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED APPLICATION IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APPLICATION AND ANY SERVICES PERFORMED OR PROVIDED BY THE LICENSED APPLICATION ARE PROVIDED "AS IS" AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND BOTH COMPANY AND APPLICATION PROVIDER EACH HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED APPLICATION AND ANY SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. APPLICATION PROVIDER DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE LICENSED APPLICATION, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE LICENSED APPLICATION WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE LICENSED APPLICATION OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE LICENSED APPLICATION OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY AND/OR APPLICATION PROVIDER OR THEIR AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY. SHOULD THE LICENSED APPLICATION PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU. 5. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL COMPANY OR APPLICATION PROVIDER BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR Page 1 of 2 � END USER LICENSE AGREEMENT INABILITY TO USE THE LICENSED APPLICATION, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF COMPANY AND/OR APPLICATION PROVIDER HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall Company’s or Application Provider’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose. 6. You may not use or otherwise export or re-export the Licensed Application except as authorized by United States law and the laws of the jurisdiction in which the Licensed Application was obtained. In particular, but without limitation, the Licensed Application may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Licensed Application, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons. 7. The Licensed Application and related documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States. 8. The laws of the State of California, excluding its conflicts of law rules, govern this EULA and your use of the Licensed Application. Your use of the Licensed Application may also be subject to other local, state, national, or international laws. Page 2 of 2 �
nw/3.txt
Western Digital End User License Agreement IMPORTANT - READ CAREFULLY. SECTION 10 OF THIS DOCUMENT CONTAINS A BINDING ARBITRATION PROVISION THAT REQUIRES THE RESOLUTION OF DISPUTES ON AN INDIVIDUAL BASIS, LIMITS YOUR ABILITY TO SEEK RELIEF IN A COURT OF LAW AND YOUR RIGHT TO A JUDGE OR JURY IN A COURT PROCEEDING, AND WAIVES YOUR RIGHT TO PARTICIPATE IN CLASS ACTIONS OR CLASS ARBITRATIONS FOR CERTAIN DISPUTES. This End User License Agreement (this “Agreement”) is a legal contract between you, either as an individual or a single entity (“you”), and Western Digital Technologies, Inc., its subsidiaries and affiliates (collectively, “WDT”), governing your use of the software, services, and associated online or electronic documentation published, distributed or otherwise made available by WDT (this software, firmware, services, and documentation, and any applicable updates provided by WDT, collectively referred to as the “Software”), and if applicable, your use of Software designed for application with WDT hardware devices and products (“WDT Devices”). If, however, WDT software or services are accompanied by a separate license agreement, the terms of that separate license agreement will apply to your use of the applicable WDT software or services. BY INSTALLING, ACTIVATING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, WHICH ARE CONDITIONS TO WDT’S LICENSE GRANT TO YOU PURSUANT TO THIS AGREEMENT, AND THE WDT PRIVACY POLICY, AS INCORPORATED BY REFERENCE IN SECTION 5 BELOW. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT AND THE WDT PRIVACY POLICY, DO NOT INSTALL, ACTIVATE, COPY, OR USE THE SOFTWARE. Except as provided in Section 10 of this Agreement, this Agreement may be amended from time to time by WDT; however, any changes to this Agreement will not be binding on you unless you affirmatively assent to the applicable changes. 1. LICENSE GRANT AND RESTRICTIONS The Software is licensed to you and not sold. Subject to the terms of this Agreement, WDT hereby grants you a personal, non-exclusive, non-transferable, non-sublicensable, and revocable license to use the Software for your personal or internal purposes, and to make a reasonable number of copies of the Software solely as reasonably necessary to use the Software as permitted pursuant to this Agreement. You acknowledge and agree that you will not, and you agree not to enable others to: (a) reproduce the Software, except as expressly permitted under this Section 1; (b) modify, adapt, translate the Software, or create any derivative works thereof; (c) attempt to circumvent or disable the Software or any technology features or measures in the Software, including without limitation any access controls or copyright protection mechanisms, by any means or in any manner; (d) attempt to decompile, disassemble, reverse engineer, or otherwise attempt to derive 1 �the source code for the Software; (e) distribute, encumber, sell, rent, lease, sublicense, or otherwise transfer, publish or disclose the Software to any third party; (f) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in or on the Software or used in connection with the Software; or (g) use the Software in any manner to aid in the violation of any third-party intellectual property rights, including without limitation copyrights, trademarks, trade secrets, and patents, or the applicable laws of any applicable jurisdictions, including without limitation libel, defamation, obscenity, and privacy-related torts. 2. RESERVATION OF RIGHTS You acknowledge that the Software is protected by copyrights and other intellectual property and proprietary rights. WDT and its third-party licensors (“Licensors”) reserve all of these rights with respect to the Software, except for the license expressly granted to you in Section 1. You acknowledge that, except for the express license granted to you in Section 1, no right, title, interest or license in or to the Software, whether by implication, estoppel or otherwise, is granted, assigned or transferred to you. You agree not to take any action that interferes with or challenges, in any manner, WDT or its Licensors’ rights with respect to the Software. 3. USE OF NON-WDT DEVICES In some instances, the Software may operate with devices manufactured by entities other than WDT (“Non-WDT Devices”). You acknowledge and agree that WDT makes no representations or warranties with respect to the quality or capability of any of these Non-WDT Devices. You acknowledge that WDT may offer support for some Non-WDT Devices and not others; WDT makes no guarantees that the Software is, will be, or will remain compatible with any applicable Non-WDT Device. 4. UPDATES; AUTOMATIC FEATURES You acknowledge that WDT has no obligation to provide you with any Updates (as defined below) to the Software. WDT may, however, from time to time, issue updated versions of the Software and the Software may automatically connect to WDT or third-party servers via the Internet to check for available updates to the Software, such as bug fixes, patches, upgrades, additional or enhanced functions, plug-ins and new versions (collectively, “Updates”) and may either (a) automatically electronically update the version of the Software that you are using on your personal device or (b) give you the option of manually downloading applicable Updates. By installing the Software and not disabling any automated check for Updates, if applicable, you hereby agree and consent to automatically request and receive Updates from WDT or third-party servers, and that the terms and conditions of this Agreement shall apply to all of these Updates. 5. INFORMATION AUTOMATICALLY COLLECTED BY WDT The Software may contain automatic communications features which relay certain information to WDT and its third-party data analytics providers in connection with the operation of the Software. For more information about how WDT and its third-party data analytics providers collect and use information provided through the Software, please review the WDT Privacy Policy located at http://www.wd.com/en/company/corporateinfo/privacy.aspx, which is incorporated into this Agreement by reference. By agreeing to the terms of this Agreement, you 2 �agree to the terms of the WDT Privacy Policy. If you do not agree to the terms of the Privacy Policy, you should not use the Software. 6. REGISTRATION INFORMATION As part of any Software or WDT Device registration process, WDT may request registrationrelated information, including without limitation your name, e-mail address, username, or password. By providing this information, you consent to its collection and use by WDT to provide non-promotional communications regarding any WDT Device purchased with the Software, including notices of Update availability, product recalls, or safety concerns. WDT’s use of information it collects from you in connection with the registration process, or that you otherwise provide to WDT in connection with WDT’s Software or WDT Devices, shall be governed by the WDT Privacy Policy. You agree you will maintain the confidentiality of your username and password and assume all responsibility due to any loss, theft, or other destruction of any data as the result of any access to your account via the use of your username and password. 7. THIRD PARTY CONTENT AND SERVICE PROVIDERS Your use of the Software may allow you to download and use third-party software or link to third-party content accessed through the Software (this third-party software and content collectively, “Third-Party Content”). You acknowledge that all Third-Party Content is the property of the applicable Third-Party Content owners and may be protected by applicable copyright and other intellectual property rights. You may not use any Third-Party Content in any manner that has not been authorized by the applicable service provider (“Service Provider”) or Third-Party Content owner. You acknowledge that you may be required to enter into a separate agreement with a Service Provider or Third-Party Content owner, or comply with a Service Provider’s terms or conditions of use in order to access or have the right to access and use certain Third-Party Content. It is your responsibility to ensure that accessing, reproducing, displaying or otherwise using Third-Party Content in connection with your use of the Software does not infringe any third-party intellectual property rights. 8. DISCLAIMER OF WARRANTY THE SOFTWARE IS PROVIDED TO YOU “AS IS” WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WDT, AND ITS LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRDPARTY INTELLECTUAL PROPERTY RIGHTS OR LACK OF VIRUSES, AND ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY OR TIMELINESS OF THE SOFTWARE. WDT DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR BE ERROR-FREE. WDT DOES NOT WARRANT THAT USE OF THE SOFTWARE WILL BE CONTINUOUS OR UNINTERRUPTED AND WDT SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SOFTWARE. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE REMAINS WITH YOU. YOU UNDERSTAND AND AGREE THAT ANY SOFTWARE, MATERIAL, OR DATA 3 �DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SOFTWARE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER, DEVICE, SYSTEM, OR NETWORK, INCLUDING WITHOUT LIMITATION ANY LOSS OR CORRUPTION OF DATA. THE FOREGOING WARRANTY DISCLAIMER SHALL NOT MODIFY, CONSTRUE, OR AMEND THE APPLICABLE WARRANTY THAT RELATES TO YOUR USE, IF APPLICABLE, OF WDT DEVICES. WDT DOES NOT MAKE ANY REPRESENTATIONS ABOUT AND DISCLAIMS ALL WARRANTIES WITH RESPECT TO ANY THIRD-PARTY CONTENT, ANY NON-WDT DEVICE, OR THE ACTIONS OR OMISSIONS OF A SERVICE PROVIDER OR THIRDPARTY CONTENT OWNER. WDT IS NOT RESPONSIBLE FOR EXAMINING OR EVALUATING THE CONTENT, ACCURACY, COMPLETENESS, TIMELINESS, VALIDITY, COPYRIGHT COMPLIANCE, LEGALITY, DECENCY, QUALITY, OR ANY OTHER ASPECT OF THIRD PARTY CONTENT. WDT, ITS OFFICERS, AFFILIATES, AND SUBSIDIARIES DO NOT WARRANT OR ENDORSE AND DO NOT ASSUME AND WILL NOT HAVE ANY LIABILITY OR RESPONSIBILITY TO YOU OR ANY OTHER PERSON FOR ANY THIRD PARTY CONTENT OR WEB SITES, OR FOR ANY OTHER MATERIALS, PRODUCTS, OR SERVICES OF THIRD PARTIES ACCESSED THROUGH THE SOFTWARE. TO THE EXTENT YOU CHOOSE TO USE OR ACCESS ANY THIRD PARTY CONTENT THROUGH THE SOFTWARE, YOU DO SO AT YOUR OWN INITIATIVE AND ARE RESPONSIBLE FOR COMPLIANCE WITH ANY APPLICABLE LAWS, INCLUDING WITHOUT LIMITATION APPLICABLE LOCAL LAWS AND PRIVACY AND DATA COLLECTION LAWS. 9. LIMITATION ON LIABILITY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WDT OR ITS LICENSORS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, COMPUTER SYSTEM FAILURE, MALFUNCTION OR OTHER PECUNIARY LOSS RELATING TO OR ARISING OUT OF THIS AGREEMENT, THE USE OF OR INABILITY TO USE THE SOFTWARE, WDT DEVICES, ANY THIRD PARTY CONTENT, OR ANY NON-WDT DEVICE, EVEN IF WDT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL WDT’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES IN CONNECTION WITH THIS AGREEMENT OR THE SOFTWARE EXCEED $25. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. WDT IS NOT RESPONSIBLE OR LIABLE FOR ANY INFECTIONS OF, CONTAMINATION OF, OR DAMAGE TO YOUR SYSTEM, OR DELAYS, INACCURACIES, ERRORS OR OMISSIONS ARISING OUT OF OR RELATED TO YOUR USE OF THE SOFTWARE OR WDT DEVICES. THE SOFTWARE IS NOT INTENDED 4 �FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION, COMMUNICATIONS SYSTEMS OR AIR TRAFFIC CONTROL MACHINES OR ANY OTHER MACHINES IN WHICH CASE THE FAILURE OF THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. 10. DISPUTES, BINDING INDIVIDUAL ARBITRATION, AND WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS 10.1 Disputes. The terms of this Section 10 shall apply to all Disputes between you and WDT. For the purposes of this Section 10 and subject to the exceptions set forth in this Section 10.1, “Dispute” shall mean any dispute, claim, or action between you and WDT arising out of or relating to the Software, WDT Devices, this Agreement, or other transaction involving you and WDT, whether in contract, warranty, misrepresentation, fraud, tort, intentional tort, statute, regulation, ordinance, or any other legal or equitable basis, and shall be interpreted to be given the broadest meaning allowable under law. YOU AND WDT AGREE THAT “DISPUTE” AS DEFINED IN THIS AGREEMENT SHALL NOT INCLUDE ANY CLAIM OR CAUSE OF ACTION BY YOU OR WDT FOR (A) TRADE SECRET MISAPPROPRIATION, (B) PATENT INFRINGEMENT, (C) COPYRIGHT INFRINGEMENT OR MISUSE, AND (D) TRADEMARK INFRINGEMENT OR DILUTION. MOREOVER, NOTWITHSTANDING SECTION 10.6, YOU AGREE THAT A COURT, NOT THE ARBITRATOR, MAY DECIDE IF A CLAIM FALLS WITHIN ONE OF THESE FOUR EXCEPTIONS. 10.2 Binding Arbitration. You and WDT further agree: (a) to arbitrate all Disputes between the parties pursuant to the provisions in this Agreement; (b) this Agreement memorializes a transaction in interstate commerce; (c) the Federal Arbitration Act (9 U.S.C. §1, et seq.) governs the interpretation and enforcement of this Section 10; and (d) this Section 10 shall survive termination of this Agreement. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JUDGE OR JURY IN A COURT PROCEEDING AND YOUR GROUNDS FOR APPEAL ARE LIMITED. The arbitrator may award you the same damages as a court sitting in proper jurisdiction could, and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. In addition, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. The decision of the arbitrator shall be final and enforceable by any court with jurisdiction over the parties. 10.3 Small Claims Court. Notwithstanding the foregoing, you may bring an individual action in the small claims court of your state or municipality if the action is within that court’s jurisdiction and is pending only in that court. 10.4 Dispute Notice. In the event of a Dispute, you or WDT must first send to the other party a notice of the Dispute that shall include a written statement that sets forth the name, address and contact information of the party giving it, the facts giving rise to the Dispute, and the relief requested (the “Dispute Notice”). The Dispute Notice to WDT must be addressed to: Western Digital Technologies, Inc., ATTN: Legal Department, 3355 Michelson Drive, Suite 100, Irvine, CA 92612, U.S.A. (the “WDT Notice Address”). The Dispute Notice to you will be 5 �sent by certified mail to the most recent address WDT has on file or otherwise in our records for you. If WDT and you do not reach an agreement to resolve the Dispute within sixty (60) days after the Dispute Notice is received, you or WDT may commence an arbitration proceeding pursuant to this Section 10. Following submission and receipt of the Dispute Notice, each of the parties agrees to act in good faith to seek to resolve the Dispute before commencing arbitration. 10.5 WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS. YOU AND WDT AGREE THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER PARTY ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, INCLUDING WITHOUT LIMITATION FEDERAL OR STATE CLASS ACTIONS, OR CLASS ARBITRATIONS. ACCORDINGLY, UNDER THE ARBITRATION PROCEDURES OUTLINED IN THIS SECTION, AN ARBITRATOR SHALL NOT COMBINE OR CONSOLIDATE MORE THAN ONE PARTY’S CLAIMS WITHOUT THE WRITTEN CONSENT OF ALL AFFECTED PARTIES TO AN ARBITRATION PROCEEDING. 10.6 Arbitration Procedure. If a party elects to commence arbitration, the arbitration shall be governed by the rules of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”), available at http://www.jamsadr.com or by calling 1-800-352-5267, and under the rules set forth in this Agreement. If there is a conflict between the JAMS Rules and the rules set forth in this Agreement, the rules set forth in this Agreement shall govern. You may, in arbitration, seek any and all remedies otherwise available to you pursuant to federal, state, or local laws. All Disputes shall be resolved by a single neutral arbitrator, and both parties shall have a reasonable opportunity to participate in the selection of the arbitrator. The arbitrator is bound by the terms of this Agreement. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement, including without limitation any claim that all or any part of this Agreement is void or voidable. Notwithstanding this broad delegation of authority to the arbitrator, a court may determine the limited question of whether a claim or cause of action is for (a) trade secret misappropriation, (b) patent infringement, (c) copyright infringement or misuse, or (d) trademark infringement or dilution, which are excluded from the definition of “Disputes” in Section 10.1. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. You may choose to engage in arbitration hearings by telephone. Arbitration hearings not conducted by telephone shall take place in a location reasonably accessible from your primary residence, or in Orange County, California, at your option. (a) Initiation of Arbitration Proceeding. If either you or WDT decides to arbitrate a Dispute, both parties agree to the following procedure: (i) Write a Demand for Arbitration. The demand must include a description of the Dispute and the amount of damages sought to be recovered. You can find a copy of a Demand for Arbitration at http://www.jamsadr.com (“Demand for Arbitration”). 6 �(ii) Send three copies of the Demand for Arbitration, plus the appropriate filing fee, to: JAMS 500 North State College Blvd., Suite 600 Orange, CA 92868, U.S.A. (iii) Send one copy of the Demand for Arbitration to the other party at the same address as the Dispute Notice, or as otherwise agreed to by the parties. (b) Hearing Format. In all hearing formats, the arbitrator shall issue a written decision that explains the essential findings and conclusions on which an award, if any, is based. During the arbitration, the amount of any settlement offer made by WDT or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or WDT is entitled. The discovery or exchange of non-privileged information relevant to the Dispute may be allowed during the arbitration. The parties shall maintain the confidential nature of the arbitration proceeding and the award, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision. (c) Arbitration Fees. WDT shall pay, or (if applicable) reimburse you for, all JAMS filing, administration, and arbitrator fees for any arbitration commenced (by you or WDT) pursuant to provisions of this Agreement. (d) Award in Your Favor. For Disputes in which you or WDT seeks $75,000 or less in damages exclusive of attorney’s fees and costs, if the arbitrator’s decision results in an award to you in an amount greater than WDT’s last written offer, if any, to settle the Dispute, WDT will: (i) pay you $1,000 or the amount of the award, whichever is greater; (ii) pay you twice the amount of your reasonable attorney’s fees, if any; and (iii) reimburse you for any expenses (including expert witness fees and costs) that your attorney reasonably accrues for investigating, preparing, and pursuing the Dispute in arbitration. Except as agreed upon by you and WDT in writing, the arbitrator shall determine the amount of fees, costs, and expenses to be paid by WDT pursuant to this Section 10.6(d). (e) Attorney’s Fees. WDT will not seek its attorney’s fees and expenses for any arbitration commenced involving a Dispute under this Agreement. Your right to attorney’s fees and expenses under Section 10.6(d) above does not limit your rights to attorney’s fees and expenses under applicable law; notwithstanding the foregoing, the arbitrator may not award duplicative awards of attorney’s fees and expenses. (f) Opt-out. You may elect to opt-out (exclude yourself) from the final, binding, individual arbitration procedure and waiver of class and representative proceedings specified in this Agreement by sending a written letter to the WDT Notice Address within thirty (30) days of your assent to this Agreement (including without limitation the purchase, download, installation of the Software or other applicable use of WDT Devices, products and services) that specifies (i) your name, (ii) your mailing address, and (iii) your request to be excluded from the final, binding individual arbitration procedure and waiver of class and representative proceedings specified in this Section 10. In the event that you opt-out consistent with the procedure set forth 7 �above, all other terms shall continue to apply, including the requirement to provide notice prior to litigation. 10.7 Amendments to Section 10. Notwithstanding any provision in this Agreement to the contrary, you and WDT agree that if WDT makes any future amendments to the dispute resolution procedure and class action waiver provisions (other than a change to WDT’s address) in this Agreement, WDT will obtain your affirmative assent to the applicable amendment. If you do not affirmatively assent to the applicable amendment, you are agreeing that you will arbitrate any Dispute between the parties in accordance with the language of this Section 10. 10.8 Severability. If any provision in this Section 10 is found to be unenforceable, that provision shall be severed with the remainder of this Agreement remaining in full force and effect. The foregoing shall not apply to the prohibition against class or representative actions as provided in Section 10.5; if Section 10.5 is found to be unenforceable, the entire Section 10 (but only Section 10) shall be null and void. 11. U.S. GOVERNMENT RESTRICTED RIGHTS The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the U.S. Government or any contractor therefor, you receive only those rights with respect to the Software as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other U.S. Government licensees and their contractors. 12. EXPORT AND IMPORT RESTRICTIONS WDT makes no representation that the Software is appropriate for use in your country of use. You acknowledge that no part of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported into (or to a national or resident of) any countries or regions subject to U.S. trade embargo (currently Iran, Cuba, Syria, North Korea, Sudan, and the region of Crimea), or anyone on any of the U.S. government’s Lists of Parties of Concern including, the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Denied Persons List and Entity List. By using the Software, you are agreeing to the foregoing, and are representing and warranting that you are not located in or under the control of a national or resident of any such country or on any such list and you agree that you will not use the Software in any activities directly or indirectly related to the proliferation of weapons of mass destruction, except as authorized under applicable laws and regulations. You further acknowledge and understand that certain functionality of the Software, such as encryption or authentication, may be subject to export and import restrictions and you are responsible for complying with all applicable restrictions and regulatory requirements. 13. INDEMNITY You hereby agree to indemnify, defend, and hold WDT and its Licensors harmless from and against any and all liabilities, damages, claims, fines, and expenses arising out of any breach of this Agreement by you. 8 �14. TERMINATION Without prejudice to any other WDT rights, WDT shall have the right to immediately terminate this Agreement, including without limitation termination of any user accounts associated with the Software, with or without notice to you if WDT deems that you fail to comply with your obligations under this Agreement. Upon termination, you must immediately cease all use of the Software and destroy all copies of the Software. 15. TRANSFER You may not assign or otherwise transfer, by operation of law or otherwise, this Agreement or the Software. 16. OPEN SOURCE SOFTWARE The Software licensed under this Agreement may include “Open Source” software (computer software that is distributed under a licensing arrangement, which provides that the computer code can be shared, viewed, and modified by the public). The restrictions of Section 1, 2, 14, and 15 of this Agreement only apply to any applicable Open Source software when and to the extent that they do not conflict with any terms of the Open Source software’s respective license(s). To the extent necessary to comply with the terms of the included Open Source software’s respective licenses, WDT makes available the necessary portion of the source code for Software at http://support.wdc.com/ for a period of at least three years after your receipt of the Software from WDT. WDT provides no support for the Open Source software. 17. SUPPORT For questions regarding the Software, please visit WDT’s support forum at http://support.wdc.com or submit an email to WDT’s customer support using the web form at http://wdc.custhelp.com/app/ask/. 18. ENTIRE AGREEMENT This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior or contemporaneous oral or written understandings. 19. GOVERNING LAW; EXCLUSIVE VENUE FOR LITIGATION Except for Section 10, this Agreement shall be governed by the laws of the State of California, without regard to conflicts of law provisions. In the event of a Dispute in which the provisions in Section 10 are inapplicable, severed from the remainder of this Agreement by a court of competent jurisdiction, or you opt-out pursuant to the provisions of Section 10, you and WDT both consent to the exclusive jurisdiction of the state and federal courts sitting in Orange County, California. 9 �20. UNITED NATIONS CONVENTION ON CONTRACTS FOR THE SALE OF INTERNATIONAL SALE OF GOODS This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. 21. SEVERABILITY; WAIVER Subject to Section 10.7 of this Agreement, if any provision of this Agreement is held unenforceable by a court of competent jurisdiction, the applicable provision shall be modified to the extent necessary to render it enforceable without losing its intent or severed from this Agreement if no applicable modification is possible, and other provisions of this Agreement shall remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive the applicable term or condition or any subsequent breach thereof. 22. SURVIVAL Sections 2, 8, 9, 10, 13 and 19 of this Agreement, and any other provisions of this Agreement that require or contemplate performance after the termination of this Agreement, shall be enforceable notwithstanding termination of this Agreement. 23. EXCUSED PERFORMANCE Neither party shall be in default or be liable for any delay, failure in performance (excepting the obligation to pay), or interruption of service resulting directly or indirectly from any cause beyond its reasonable control. 4078-705022-A09 August 2015 10 �
nw/30.txt
END USER LICENCE AGREEMENT FOR SECURE MONITOR EXAMPLE CODE (ARMv8-A) THIS END USER LICENCE AGREEMENT ("LICENCE") IS A LEGAL AGREEMENT BETWEEN YOU (EITHER A SINGLE INDIVIDUAL, OR SINGLE LEGAL ENTITY) ("YOU") AND ARM LIMITED ("ARM") FOR THE USE OF THE SOFTWARE ACCOMPANYING THIS LICENCE. ARM IS ONLY WILLING TO LICENSE THE SOFTWARE TO YOU ON CONDITION THAT YOU ACCEPT ALL OF THE TERMS IN THIS LICENCE. BY CLICKING "I AGREE" OR BY INSTALLING OR OTHERWISE USING OR COPYING THE SOFTWARE YOU INDICATE THAT YOU AGREE TO BE BOUND BY ALL OF THE TERMS OF THIS LICENCE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENCE, ARM IS UNWILLING TO LICENSE THE SOFTWARE TO YOU AND YOU MAY NOT INSTALL, USE OR COPY THE SOFTWARE, AND YOU SHOULD PROMPTLY RETURN THE SOFTWARE TO YOUR SUPPLIER. "ARMv8-A Architecture" means ARM's proprietary ARMv8-A application architecture profile associated with a 64-bit execution model, instruction set, exception model, memory model and debug support. "ARM Compliant Product" means an integrated circuit which incorporates technology licensed from ARM and may or may not include a CPU provided that where such integrated circuit incorporates a CPU then such CPU is either: (i) a CPU manufactured under licence from ARM; or (ii) a CPU other than a CPU manufactured under licence from ARM, provided that such CPU is not: (a) substantially compliant with the ARM instruction sets licensed by ARM from time to time; or (b) marketed as being compliant with the ARM instruction sets licensed by ARM from time to time. "SMC Software Implementation" means Your implementation of the Software for use in a Trusted Execution Environment using an ARM Compliant Product compatible with the ARMv8-A Architecture. "Software" means the source code of the secure monitor example code and all accompanying software, example application code and data, and any updates, patches and modifications ARM may make available to You under the terms of this Licence. "Trusted Execution Environment" means a application processor based security solution that provides a separate execution environment for use by one or more trusted applications. 1. LICENCE GRANTS. ARM hereby grants to You, subject to the terms and conditions of this Licence, a revocable, non-exclusive, non-transferable, perpetual, worldwide licence, to use, copy and modify the Software solely for: �(i) internal use of the source code of the Software solely for development by You of the SMC Software Implementation for execution on ARM Compliant Products compatible with the ARMv8-A Architecture; and (ii) distribution of the SMC Software Implementation created under Clause 1(i) in binary form only to the public for execution on ARM Compliant Products compatible with the ARMv8-A Architecture. 2. RESTRICTIONS ON USE OF THE SOFTWARE. PERMITTED USERS: The Software may be used only by Your employees, employees of Your wholly-owned subsidiaries, Your contractors and contractors of Your wholly owned subsidiaries, provided that such contractors access the Software using Your IT systems. You hereby agree to be liable to ARM for the acts and omissions of Your wholly owned subsidiaries, Your contractors and contractors of Your wholly-owned subsidiaries. Only contractors who access the Software using Your IT systems are permitted to use the Software. Except as expressly permitted by this Clause, You shall not allow third parties to use the Software unless ARM specifically agrees otherwise with You on a case-by-case basis. REMOTE USE: The Software shall only be used onsite at Your premises, except when used offsite by an employee (but not a contractor) of Yours, on a portable computer, in accordance with the paragraph above, as part of his or her normal work activities, and only for Your benefit. RESULTS: You shall treat all results of Your use of the Software, including but not limited to benchmarking data, ("Results"), as confidential information in accordance with Clause 4 below and you shall not disclose such Results to any third party without ARM's express written consent. Notwithstanding the foregoing, ARM agrees not to withhold consent for reasonable requests to make such disclosures, provided that such disclosures are under appropriate confidentiality obligations. COPYING: You shall not use or copy the Software except as expressly authorised in this Licence. You may make one additional copy of the delivered Software media or image for backup or archival purposes. COPYRIGHT AND RESERVATION OF RIGHTS: The Software is owned by ARM or its licensors and is protected by copyright and other intellectual property laws and international treaties. The Software is licensed not sold. You acquire no rights to the Software other than as expressly provided by this Licence. You shall not remove from the Software any copyright notice or other notice and shall ensure that any such notice is reproduced in any copies of the whole or any part of the Software made by You or other permitted users. 3. SUPPORT AND MAINTENANCE. �ARM is not under an obligation to provide support and maintenance, but it may do so at its own discretion. 4. CONFIDENTIALITY. You acknowledge that the source code of the Software, any information exchanged in the provision of support and related information contain trade secrets and confidential material, and You agree to maintain them in confidence and apply security measures no less stringent than the measures which You apply to protect Your own like information, but not less than a reasonable degree of care, to prevent their unauthorised disclosure and use. You agree that You shall not use any such information other than for the purpose permitted under the licences granted in this Licence. Subject to any restrictions imposed by applicable law, the period of confidentiality shall be twenty (20) years from the date of disclosure. The provisions of this Clause 4 shall not apply to information which: (i) is known to and has been reduced to tangible form by the receiving party prior to its receipt provided that such information is not already subject to any obligations of confidentiality; or (ii) is in the public domain at the time of receipt or later becomes part of the public domain without breach of the confidentiality obligations in this Licence; or (iii) is received from a third party without any breach of any obligation of confidentiality in respect of such information provided that such information is not subject to any continuing obligations of confidentiality. 5. NO WARRANTIES. YOU AGREE THAT THE SOFTWARE IS LICENSED "AS IS", AND THAT ARM EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, CONDITIONS OR OTHER TERMS, EXPRESS OR IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, SATISFACTORY QUALITY, AND FITNESS FOR A PARTICULAR PURPOSE. YOU EXPRESSLY ASSUME ALL LIABILITIES AND RISKS, FOR USE OR OPERATION OF SOFTWARE APPLICATIONS, INCLUDING WITHOUT LIMITATION, SOFTWARE APPLICATIONS DESIGNED OR INTENDED FOR MISSION CRITICAL APPLICATIONS, INCLUDING, BUT NOT LIMITED TO, PACEMAKERS, WEAPONRY, AIRCRAFT NAVIGATION, FACTORY CONTROL SYSTEMS, ETC. SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. 6. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ARM BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS) ARISING OUT OF THE USE OR INABILITY TO �USE THE SOFTWARE WHETHER BASED ON A CLAIM UNDER CONTRACT, TORT OR OTHER LEGAL THEORY, EVEN IF ARM WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ARM does not seek to limit or exclude liability for death or personal injury arising from ARM's negligence or ARM's fraud and because some jurisdictions do not permit the exclusion or limitation of liability for consequential or incidental damages the above limitation relating to liability for consequential damages may not apply to You. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LICENCE, THE MAXIMUM LIABILITY OF ARM TO YOU IN AGGREGATE FOR ALL CLAIMS MADE AGAINST ARM IN CONTRACT TORT OR OTHERWISE UNDER OR IN CONNECTION WITH THE SUBJECT MATTER OF THIS LICENCE SHALL NOT EXCEED THE GREATER OF: (I) THE TOTAL OF SUMS PAID BY YOU TO ARM (IF ANY) FOR THIS LICENCE; OR (II) $10.00 USD. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE OR EXTEND THE LIMIT. 7. U.S. GOVERNMENT END USERS. US Government Restrictions: Use, duplication, reproduction, release, modification, disclosure or transfer of the Software is restricted in accordance with the terms of this Licence. 8. TERM AND TERMINATION. This Licence shall remain in force until terminated by You, or by ARM. Without prejudice to any of its other rights if You are in breach of any of the terms and conditions of this Licence then ARM may terminate this Licence immediately upon giving written notice to You. You may terminate this Licence at any time. Upon termination of this Licence by You or by ARM, You shall stop using the Software and confidential information and destroy all copies of the Software and confidential information in Your possession. The provisions of clauses 4, 5, 6, 7, 8, and 9 shall survive termination of this Licence. 9. GENERAL. This Licence is governed by English Law. Except where ARM agrees otherwise in: (i) a written contract signed by You and ARM; or (ii) a written contract provided by ARM and accepted by You, this is the only agreement between You and ARM relating to the Software and it may only be modified by written agreement between You and ARM. Except as expressly agreed in writing, this Licence may not be modified by purchase orders, advertising or other representation by any person. If any clause or sentence in this Licence is held by a court of law to be illegal or unenforceable the remaining provisions of this Licence shall not be affected thereby. The failure by ARM to enforce any of the provisions of this Licence, unless waived in writing, shall not constitute a waiver of ARM's rights to enforce such provision or any other provision of this Licence in the future. �The Software provided under this Licence is subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. You agree to comply fully with all laws and regulations of the United States and other countries ("Export Laws") to assure that the Software, is not: (1) exported, directly or indirectly, in violation of Export Laws, either to any countries that are subject to U.S.A. export restrictions or to any end user who has been prohibited from participating in the U.S.A. export transactions by any federal agency of the U.S.A. government; or (2) intended to be used for any purpose prohibited by Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation. ARM contract references: LES-PRE-20262 for Secure Monitor Example Code ARMv8A/end �
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END USER LICENSE AGREEMENT This End User License Agreement (“EULA”) is a legal agreement between Lantronix, Inc. (“Lantronix”) and the Licensee (either an individual or on behalf of an entity, “Licensee” or “you”). By installing, downloading, or otherwise using the software in any manner (including, but not limited to, using the product in which the software may be embedded), Licensee agrees to be bound by the terms of this EULA. If you do not agree, are not at least 18 years of age, or do not have the authority to enter into this EULA, then do not install, download or otherwise use the software or the product in which it may be embedded. b. Open Source Components. Open Source Components (if any), even if supplied in the same electronic file transmission, are not licensed under the terms of this EULA. Lantronix grants Licensee no right to receive source code to any Open Source Component; however, in some cases, rights and access to source code for the Open Source Components may be available directly from Lantronix’ licensors. Upon request, Lantronix will identify the Open Source Components and the licenses that apply to them. Licensee’s use of each Open Source Component is subject to the terms of each applicable license. 1. 3. DEFINITIONS. a. “Hardware” means the applicable Lantronix product on which the Software is designed to run. b. “Lantronix Products” means certain products developed and owned by Lantronix, which may be comprised of Hardware and Software (as defined in this EULA). c. “Open Source Components” means certain portions of the Software (if any) that are not licensed under the terms of this EULA, but are instead licensed to Licensee under the applicable open source licenses, such as the BSD License or the Lesser GNU General Public License. d. “Proprietary Components” mean those components of the Software owned or duly licensed by Lantronix, excluding the Open Source Components. e. “Software” means the computer software (regardless of format or media in which distributed) designed to run on Lantronix Products, printed materials and electronic documentation, each of which are owned or duly licensed by Lantronix. Software includes, but is not limited to, the Proprietary Components and Open Source Components (if any). 2. GRANT OF LICENSE. a. Limited License. Other than as set forth in this EULA, Lantronix grants to the Licensee a limited, nonexclusive, non-transferable, revocable license to use the Software in object code form or in binary code provided, solely for Licensee’s use, without any modification. This license is not a sale. Subject to the terms of this EULA, Licensee may not rent, lease, lend, or distribute the Software or any portion thereof. This License applies to updates or supplements to the original Software, unless Lantronix provides other terms along with the update or supplement. LEG-0014, Rev. A, EULA (July 2015) RESERVATION OF RIGHTS. a. Ownership. With the exception of any Open Source Components or third party software that are duly licensed to Lantronix, Licensee agrees that Lantronix owns all legal right, title and interest in and to the Software. Lantronix reserves all rights not expressly granted to Licensee in this EULA. Title and copyrights to the Software remain with Lantronix or its third party licensors. b. Trademarks. Nothing in this EULA gives Licensee a right to use any of Lantronix’ trade names, trademarks, service marks, logos, domain names, or other distinctive brand features. Licensee agrees not to remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) that may be affixed to or contained within the Software or Hardware. 4. SUPPORT. Licensee agrees that Lantronix may stop (permanently or temporarily) providing the Software (or any features within the Software) to end users at Lantronix' sole discretion, without prior notice. Lantronix shall have no obligation to support the Software. 5. LIMITATION ON REVERSE ENGINEERING, DECOMPILATION, AND DISASSEMBLY. Licensee may not reverse engineer, decompile, modify, or disassemble the Software. Licensee may not copy the Software or transfer it to other devices without the express prior written consent of Lantronix. 6. EXPORT. Licensee agrees not to export or re-export the Software (or portions thereof) to any country, person or entity in violation of any applicable law or regulation. Licensee further agrees not to use the Software for any purposes prohibited by law or regulation, including but not limited to U.S. laws and regulations. 7. GOVERNMENT RESTRICTED RIGHTS. The Software is provided with “RESTRICTED RIGHTS.” Use, duplication, or Page 1 of 2 �END USER LICENSE AGREEMENT disclosure by the Government is subject to restrictions as set forth in FAR 52.227-14 and DFAR 252.227-7013 et seq. or their successors. Use of the Software by the Government constitutes acknowledgment of Lantronix’ proprietary rights therein. The manufacturer of the Lantronix Products is Lantronix, Inc., 7535 Irvine Center Drive, Suite 100, Irvine, California 92618. 8. LIMITED WARRANTY. Lantronix warrants that, for a period of sixty (60) days after the date of shipment, the Software will perform substantially in accordance with the applicable documentation, which can be found at www.lantronix.com/support/downloads. AS TO ANY DEFECTS IN THE SOFTWARE DISCOVERED AFTER THE SIXTY (60) DAY PERIOD, THERE IS NO WARRANTY OR CONDITION OF ANY KIND. Any supplements or updates to the Software, including without limitation, any service packs or hot fixes provided to Licensee after the expiration of the sixty (60) day period are not covered by any warranty or condition, express, implied or statutory. LANTRONIX EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. assigned, transferred or delegated by Licensee without the prior written approval of Lantronix. 12. APPLICABLE LAW. This EULA is governed by the laws of the State of California, without reference to any conflict of laws principles. Any dispute arising out of or relating to this EULA shall be subject to the exclusive jurisdiction and venue of the courts sitting in Orange County, California, USA. The parties expressly agree that neither UCITA nor the Uniform Convention on Contracts for the International Sale of Goods shall apply. 13. ENTIRE AGREEMENT. This EULA is the entire agreement between Licensee and Lantronix relating to the Software and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software or any other subject matter covered by this EULA. Lantronix may make changes to this EULA, by posting such changes on its website at www.lantronix.com. Licensee’s continued use of the Software shall be deemed consent of the most recent Software terms available www.lantronix.com. 9. LIMITATION OF LIABILITY. During the limited warranty period described in Section 8, if the Software does not perform substantially in accordance with the applicable documentation, Lantronix’ liability is limited to (at Lantronix’ election): (a) refund of Licensee’s purchase price (if any) for such affected Software (without interest); or (b) repair or replacement of the Software. The foregoing is void if failure of the Software is the result from accident, abuse, misapplication, abnormal use or a virus. Any replacement Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. IN NO EVENT SHALL LANTRONIX BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, OR OTHER LOSS ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF THE SOFTWARE. 10. TERMINATION OF EULA. Lantronix may terminate this EULA at any time if Licensee has breached any provision of this EULA, Lantronix is required to do so by law, or Lantronix decides to no longer provide the Software or any component thereof. 11. ASSIGNMENT AND DELEGATION. The rights and duties or obligations granted or created under this EULA may not be LEG-0014, Rev. A, EULA (July 2015) Page 2 of 2 �
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OpenText End User License Agreement – BRAZIL This End User License Agreement (“EULA”) is between the OpenText entity from which the applicable Software is purchased ("OT") and you (either as an individual, a single corporation, or other single legal entity that purchases the applicable Software) ("Licensee"), and is effective from the date of the applicable Transaction Document, as defined below (“Effective Date”). OT and Licensee agree as follows: 1.0 Definitions “Affiliate” means any entity controlled by, controlling, or under common control with a party to this EULA. Control exists through ownership, directly or indirectly, of a majority of the outstanding equity capital and of the voting interests of the subject entity. If an entity ceases to meet these criteria, it will cease to be an Affiliate under this EULA; “Claim” means claims, suits, actions or proceedings brought against Licensee in a court of competent jurisdiction in a Covered Country by a third party which allege an infringement of the third party’s patent, copyright, or trade secret rights of which OT is aware existing under the laws of the Covered Countries; “Covered Countries” means Canada, the United States, Austria, Belgium, France, Italy, the United Kingdom, Spain, the Netherlands, Sweden, Denmark, Finland, Norway, Switzerland, Germany, Australia, New Zealand and Brazil; “Documentation” means user guides, operating manuals, and release notes in effect as of the date of delivery of the applicable Software, made generally available by OT; “License Documents” means this EULA including any addenda, the License Model Schedule, all Transaction Documents (including pricing information), Documentation, the document entitled Third Party Notifications available at www.opentext.com/agreements, and any other documents provided by OT setting out permitted uses of the Software; “License Fees” means the non-refundable (except as expressly provided for in this EULA) fees payable by Licensee to OT with respect to the granting of Software Licenses; “License Model” means the description of the conditions, limitations and restrictions associated with the Software License which govern the use of the Software; “License Model Schedule” for each individual Software License means the schedule entitled “License Model Schedule” posted at http://www.opentext.com/agreements in effect on the date of the applicable Transaction Document, a copy of which Licensee hereby acknowledges it has reviewed and agrees to. The Licensee acknowledges and agrees that the License Model Schedule is incorporated into and is an integral part of, this EULA; “Physical Media” means the physical media or hardware containing or enabling Software; “Reseller means an authorized OT reseller; “Software” includes software products, Documentation, and Support Software licensed to Licensee under this EULA, including all copies made by Licensee; “Software License” means a license for the Software granted under this EULA to the Licensee; “Support Software” means all maintenance and support software, updates, upgrades, patches, fixes or new versions of the Software provided to Licensee pursuant to an OT maintenance and support program, together with all related Documentation provided to Licensee pursuant to such program; “Taxes” means the sales, use, consumption, goods and services, value-added and any other taxes imposed by the appropriate governments arising out of granting of licenses and delivery of Software under this EULA, except taxes imposed on OT's income; “Third Party Software” means software products owned and licensed directly by third parties to the end user; “Transaction Document” includes: a) a written order schedule signed by both parties which references this EULA, b) a quotation issued by OT and signed by the Licensee, c) an invoice issued by OT, or d) any other document that references this EULA and is agreed to by OT in writing. If and to the extent of any inconsistency between two or more Transaction Documents, the priority of the Transaction Documents will be interpreted in the order listed above. All Transaction Documents are governed by this EULA. 2.0 Ownership of the Software 2.1 Ownership. None of the Software is being sold. All ownership, intellectual property, and other rights and interests in the Software remain solely with Open Text Corporation, its Affiliates or its licensors. The source code of the Software is a trade secret of Open Text Corporation, its Affiliates or its licensors, and is their confidential information. 3.0 License Grant 3.1 Grant of License. Except as otherwise stated in the License Documents and subject to Licensee’s payment of the License Fees and Taxes in full, OT grants to Licensee a worldwide, nonexclusive, perpetual (unless stated to be a time limited term), internal business use license (unless otherwise stated in the License Model Schedule) to download, install and execute the Software identified in the applicable Transaction Document subject to the License Models, restrictions, quantities, conditions, and limitations stated in the License Documents. 3.2 Applicable License Models. The License Model and any restrictions for the Software will be stated in the Transaction Document. If no License Model or restrictions are specified in the Transaction Document, the License Model (and any capacities) for which OT has been paid License Fees will apply. 3.3 Allocation of Licenses to Affiliates. Unless prohibited under the applicable License Document, the Licensee may allocate Software Licenses to its Affiliates, provided: (a) the Licensee remains responsible for the Affiliate’s compliance with the License Documents; and (b) the Licensee is liable for any breach of the License Documents by an Affiliate. OpenText End User License Agreement, January 2014 (v2.0) Page 1 �4.0 Authorized Copies 4.1 Software and Documentation. Licensee may make as many copies of the Software necessary for it to use the Software as licensed under this EULA. Each copy of the Software made by Licensee must contain the same copyright and other notices that appear on the original copy. Licensee will not modify the Documentation. Documentation may: (a) only be used to support Licensee’s use of the Software; (b) not be republished or redistributed to any unauthorized third party; and (c) not be distributed or used to conduct training for which Licensee, or any other party, receives a fee. Licensee will not copy any system schema reference document related to the Software. 5.0 Restrictions 5.1 General Restrictions. Except as provided in the License Documents, Licensee will not and will not permit any other party to: (a) assign, transfer, sublicense, publicly display or perform, or redistribute the Software to any party in whole or in part; (b) rent or use the Software for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Software; (c) charge a fee to any party for access to or use of the Software; or (d) use the Software in a manner inconsistent with the License Documents. Licensee will not disclose results of any benchmark or other test run on the Software. Licensee will not use the Software for (w) the on-line control of aircraft, air traffic, aircraft navigation, or aircraft communications; (x) in the design, construction, operation or maintenance of any nuclear facility; (y) medical or surgical applications; or (z) any other application in which failure could cause personal injury or death. Except as expressly permitted under applicable law, Licensee will not modify, adapt, translate, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Software or any confidential information or trade secret 5.2 Derivative Works. Licensee is prohibited from creating any change, translation, addition, extension, upgrade, update, improvement, new version, or other derivative work of the Software. Notwithstanding the above, if any of the Software is provided to the Licensee in source code format (or any other format that can be modified), the Licensee may modify such portion of the Software for the sole purpose of using the Software in accordance with this EULA and OT will solely own all modified portions. In the event of such modifications, Licensee hereby assigns all ownership rights in such modifications to OT and promises to provide all and any documents requested by OT as evidence of such assignment.. 5.3 Interfacing and Interactive Software. Licensee may not permit any software products not licensed by OT to interface or interact with the Software, unless accomplished through the use of application program interfaces provided by OT. 6.0 Ordering Software Licenses 6.1 Direct Orders. If Licensee orders Software directly from OT, the Software must be identified on a Transaction Document acceptable to OT. 6.2 Orders through an OT Reseller. Software Licenses ordered through a Reseller are governed by the license grant set out in this EULA and the License Model description set out in the License Model Schedule. The License Model will be stated in an order document between Licensee and Reseller. If Reseller does not notify Licensee of the correct License Model, then the License Model for which OT has been paid License Fees will apply. 6.3 Risk of Loss and Shipping Terms. The Software is deemed delivered on the earlier of (a) when it is made available by OT for electronic download, or (b) when OT delivers the Software on Physical Media. Title to the Physical Media and all risk of loss for the Physical Media will pass to Licensee when delivered by OT to the shipping dock of the OT shipping facility. 6.4 Invoicing And Payment. OT may invoice Licensee for License Fees and Taxes upon delivery of Software. All License Fees and Taxes due to OT by Licensee are due and payable upon Licensee’s receipt of an invoice from OT. License Fees do not include Taxes which are the responsibility of Licensee. If OT is obligated to pay Taxes on behalf of Licensee, Licensee will reimburse OT in full promptly following receipt of OT’s invoice. Licensee is responsible for paying the full Licensee Fees to OT regardless of any Taxes Licensee is required to withhold or deduct. All License Fees and Taxes due to OT under this EULA are payable in the currency specified in the Transaction Document. All License Fees and Taxes due to OT which are not paid in full within 30 days following its due date will bear interest at a rate of 1% per month (12% per annum) or the maximum amount allowed by applicable law, if less, on the unpaid portion until fully paid. This subsection does not apply if Software is purchased through an OT reseller. 6.5 Over Usage. OT may invoice Licensee for fees and Taxes payable by Licensee due to use of or access to the Software in excess of the number or type of Software Licenses granted by OT. 6.6 Licensee Affiliate Orders. Licensee’s Affiliates that order Software Licenses are bound by the terms and conditions of this EULA as if it were the Licensee. Licensee and its Affiliates are jointly and severally liable to OT for any breach of this EULA. 6.7 OT Affiliate Orders. OT Affiliates may fulfill orders pursuant to a Transaction Document in which case the OT Affiliate is bound by all of the terms and conditions of this EULA as if it were OT. 7.0 OT Support and Maintenance. 7.1 OT Support and Maintenance Program. All Support Software provided to Licensee under an OT maintenance or support program is governed by this EULA. The provision of maintenance and support services by OT will be governed by the then-current version of the applicable OT software maintenance program handbook (available at www.opentext.com/agreements, a copy of which Licensee hereby acknowledges it has reviewed and agrees to). 8.0 Audits and Noncompliance. 8.1 Audit. During the term of this EULA and for 24 months after, Licensee will maintain electronic and other records sufficient for OT to confirm that Licensee has complied with this EULA. Licensee will promptly and accurately complete and return (within 30 days) any self-audit questionnaires, along with a certification by an authorized representative of Licensee confirming that Licensee’s responses to the questionnaire accurately and fully reflect Licensee's usage of the Software. OpenText End User License Agreement, January 2014 (v2.0) Page 2 �Furthermore OT may once per year audit Licensee’s records and computer systems (including servers, databases, and all other applicable software and hardware) to ensure Licensee has complied with this EULA. Licensee shall cooperate with OT’s audit team and promptly and accurately respond to, database queries, location information, system reports, and other reports requested by OT and provide a certification by an authorized representative of Licensee confirming that information provided by Licensee accurate reflects Licensee's usage of the Software 8.2 Conduct. Audits will be conducted during regular business hours and will not interfere unreasonably with Licensee’s business. OT will provide Licensee with 7 days prior notice of each audit. Licensee will allow OT to make copies of relevant Licensee records for audit purposes. OT will comply with all applicable data protection regulations. 8.3 Noncompliance. If Licensee is not in compliance with the Software Licenses, Licensee will be deemed to have acquired additional Software Licenses at OT’s then-current list price to bring Licensee into compliance, and Licensee must immediately pay: (a) the applicable License Fees and Taxes, and (b) maintenance and support fees covering (i) the period Licensee was not in compliance with the Software License; and (ii) the first year maintenance and support fees on any additional Software Licenses. If Licensee has failed to comply with the License Documents, Licensee will reimburse all costs incurred by OT in performing the audit. Compliance with the License Documents is the sole responsibility of Licensee. 9.0 Limited Warranties 9.1 Limited Software Warranty. OT warrants to Licensee that Software: (a) will be free of all known viruses at the time of first delivery; and (b) will perform substantially in accordance with its accompanying Documentation for 60 days from the date of first delivery, which will be considered the technical validity period of the Software. OT’s entire liability, and Licensee's sole remedy, for each breach by OT of the warranty in: (i) clause (a) is limited to requiring OT to deliver a replacement copy of the Software to Licensee free of known viruses; and (ii) clause (b) is limited to requiring OT to correct or work around the portion of the Software giving rise to such breach within a commercially reasonable time, failing which OT will refund all License Fees attributable to the portion of the Software giving rise to the breach. 9.2 Warranty Exclusions. The warranties do not apply to any breach caused by: (a) any change to the Software, except where the changes were made by OT through Support Software; (b) Licensee's failure to provide a suitable installation or operating environment for the Software; (c) use of the Software on or caused by software, firmware, computer systems, data, technology or a hardware platform not approved by OT in writing; (d) any telecommunications medium used by Licensee; (e) failure of Licensee or user to comply with the Documentation; or (f) failure of Licensee to report a warranty claim within the warranty period. OT does not warrant that the Software is error-free or will operate without interruption. 9.3. WARRANTY DISCLAIMER. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES PROVIDED IN THIS SECTION, OT AND OT’S LICENSORS MAKE NO REPRESENTATIONS AND DISCLAIM ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, WRITTEN OR ORAL, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THE ADEQUACY OF THE SOFTWARE TO PRODUCE A PARTICULAR RESULT. 9.4 Inability to Exclude Warranties. If a jurisdiction applicable to this EULA restricts the exclusion of certain implied warranties, limitations on how long an implied warranty may last, or the exclusion or limitation of incidental, consequential, or special damages: (a) each warranty which cannot be excluded is limited in time to 60 days from the date of first delivery of the Software, (b) OT's total liability to Licensee for breach of all such warranties are limited to the amount stated in the Limitation of Liability section and (c) the limitations set out in this section shall apply to the maximum extent permissible, with the other provisions remaining in full force and effect. 10.0 OT Infringement Indemnity 10.1 Infringement Claims. OT will defend Licensee from any Claim, to the extent the Claim arises solely as a result of Licensee's use of the Software in accordance with the License Documents, and provided the alleged infringement was not caused by: (a) Licensee’s failure to incorporate a Software update or upgrade that would have avoided the alleged infringement; (b) the modification of the Software by any party other than OT; or (c) the combination or use of the Software with software, hardware, firmware, data, or technology not licensed to Licensee by OT or approved by OT in writing. 10.2 Exclusions. OT’s obligations in the this section are conditioned upon: (a) Licensee notifying OT in writing within 10 days of Licensee becoming aware of a Claim; (b) Licensee not making an admission against OT’s interests; (c) Licensee not agreeing to any settlement of any Claim without the prior written consent of OT; and (d) Licensee, at the request of OT, providing all reasonable assistance to OT in connection with the defense, litigation, and settlement by OT of the Claim; and (e) OT having sole control over the selection and retainer of legal counsel, and over the litigation or the settlement of each Claim. OT will indemnify Licensee from any judgment finally awarded, for which all avenues of appeal have been exhausted, or any final settlement in connection with any Claims, provided all the conditions of this section are satisfied. 10.3 Licensee's Continued Use. If the Software becomes the subject of a Claim, OT will, in its absolute discretion, either (a) obtain a license for Licensee to continue using the Software, (b) replace or modify the Software without unreasonable degradation in functionality or (c) terminate the Software License and refund the unamortized portion of the License Fees received by OT and attributable to the infringing portion of the Software, based on a 3 year straight line amortization. OT’s entire liability and Licensee’s sole and exclusive remedy with respect to any Claims are limited to the remedies set out in the OT Infringement Indemnity section. 11.0 Limitation of Liability 11.1 EXCLUSION OF DAMAGES. NOTWITHSTANDING ANY BREACH BY OT (INCLUDING FUNDAMENTAL BREACH) OR TERMINATION OF THIS EULA, OT IS NOT LIABLE TO LICENSEE OR TO ANY OTHER PARTY FOR: (A) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, AGGRAVATED, EXEMPLARY, OR PUNITIVE DAMAGES; OR (B) ANY LOST SALES, LOST REVENUE, LOST PROFITS, LOST OR CORRUPTED DATA, OR REPROCUREMENT AMOUNT. OpenText End User License Agreement, January 2014 (v2.0) Page 3 �11.2 LIMITATION OF LIABILITY. OT’S AGGREGATE LIABILITY TO LICENSEE WILL NOT EXCEED THE TOTAL AMOUNT OF LICENSE FEES PAID TO OT UNDER THE RELEVANT TRANSACTION DOCUMENT. THE PARTIES WOULD NOT HAVE ENTERED INTO THIS EULA WITHOUT THIS SECTION. 11.3 DISCLAIMER. THE LIMITATIONS IN THIS SECTION APPLY: (A) TO LIABILITY FOR NEGLIGENCE; (B) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, EQUITY, AT LAW, STRICT PRODUCT LIABILITY, OR OTHERWISE; (C) EVEN IF OT IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (D) EVEN IF LICENSEE’S REMEDIES FAIL IN THEIR ESSENTIAL PURPOSE. THE LIMITATIONS SET OUT IN THIS SECTION SHALL APPLY TO THE MAXIMUM EXTENT PERMISSIBLE, WITH THE OTHER PROVISIONS REMAINING IN FULL FORCE AND EFFECT. IF THE APPLICATION OF THIS SECTION IS LIMITED BY LAW OT’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW. 12.0 Termination 12.1 Termination for Default. Either party may terminate this EULA if the other party: (a) becomes insolvent; (b) requests or has declared for it, bankruptcy or judicial reorganization; or (c) has a receiver or receiver manager appointed with respect to it or any of its assets. Either party may terminate this EULA for default in the event the other party breaches any provision of this EULA, provided that (i) the aggrieved party sends the defaulting party written notice of the breach and provides a period of 10 days for curing the breach (“Cure Period”); and (ii) the defaulting party fails to cure the breach by the end of the Cure Period. 12.2 Effect of Termination or Expiration. Except in the case of termination for default in accordance with subsection 12.1 based on a breach of this EULA by OT, upon any termination of this EULA or expiration of a term license: (a) all Software Licenses will immediately terminate; (b) Licensee will immediately cease all use of the Software; and (c) Licensee must either deliver to OT or destroy all copies of Software, Documentation, and OT confidential information in Licensee’s possession or control. Within 15 days after termination, an authorized representative of Licensee must certify in writing that all copies have been delivered to OT or destroyed. Any terms in this EULA which by their nature extend beyond termination or expiration of this EULA will remain in effect until fulfilled. 12.3 Effect of Termination Based on breach by OT. In the event of a termination for default under section 12.1 based on breach of this EULA by OT: a) licenses granted by OT herein shall not terminate, and b) any terms in this EULA which by their nature extend beyond termination or expiration of this EULA will remain in effect until fulfilled (including, for the avoidance of doubt, sections 1, 2, 3, 4, 5, 8, 9.2, 9.3, 9.4, 11 and 13). 13.0 Miscellaneous Provisions 13.1 Confidentiality. Information exchanged under this EULA will be treated as confidential if identified as such at disclosure or if the circumstances of disclosure would reasonably indicate such treatment. Confidential information may only be used for the purpose of fulfilling obligations or exercising rights under this EULA and may only be shared with employees, agents, or contractors with a need to know such information. Confidential information will be protected using a reasonable degree of care to prevent unauthorized use or disclosure during the period the information remains confidential or a trade secret. These obligations do not cover information that (a) was known or becomes known to the receiving party without obligation of confidentiality; (b) is independently developed by the receiving party or (c) is required to be disclosed by law or a governmental agency. 13.2 Automated Verification. The Software may contain or require a license key to prevent unauthorized installation or to enforce limits of the Software License, and may contain devices or functionality to monitor Licensee’s compliance with this EULA. 13.3 Developer Tools. OT is not responsible or liable for Licensee’s development or use of additional software code or software products (“Licensee Software”) using software developer tools licensed by OT and Licensee will defend and indemnify OT against any claims, damages, costs, losses or expenses related to the development or use of the Licensee Software. 13.4 Independent Contractors. OT and Licensee are independent contractors. Neither party has any authority to bind the other in any manner. 13.5 Waiver, Amendment, Assignment. Any amendment of this EULA must be in writing and signed by both parties. Licensee may not assign, transfer, or sublicense any portion of its interests, rights, or obligations under this EULA by written agreement, merger, consolidation, change of control, operation of law, or otherwise, without the prior written consent of OT. Neither party will be deemed to have waived any of its rights under this EULA by lapse of time or by any statement or representation other than by a written waiver by a duly authorized representative. No waiver of a breach of this EULA will constitute a waiver of any prior or subsequent breach of this EULA. An assignment in contravention of this section will be null and void. Except to the extent identified in this subsection, this EULA will be binding upon and inure to the benefit of the respective successors and assigns of the parties. 13.6 Governing Law. This EULA is governed by the laws of the Federal Republic of Brazil excluding (a) its conflicts or choice of law rules, and (b) the United Nations Convention on Contracts for the International Sale of Goods. Except for a request by OT for injunctive or other equitable relief, any dispute arising out of this EULA will be subject to the exclusive jurisdiction of the courts located in the City of São Paulo, State of São Paulo. The prevailing party in any litigation related to this EULA will be entitled to its reasonable attorneys’ fees and court costs. 13.7 Force Majeure. Except for payment and confidentiality obligations, or protection of intellectual property, neither party is responsible for any delay or failure in performance of this EULA to the extent due to causes beyond its reasonable control. 13.8 Severability. If any provision of this EULA is deemed contrary to applicable law or unenforceable by a court of competent jurisdiction, the provision will be severed from this EULA and all remaining provisions will continue in full force. 13.9 Export Laws. The Software, including Documentation, is subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. OpenText End User License Agreement, January 2014 (v2.0) Page 4 �Licensee will comply strictly with all regulations and has the responsibility to obtain any licenses required to export, re-export, or import Software or Documentation. 13.10 Press Release. OT may refer to Licensee’s relationship with OT in a public press release or marketing materials. 13.11 Attribution Notices. Licensee will not remove, modify, obscure, resize, or relocate any ownership, attribution, or branding notices from the Software. 13.12 Resale of Third Party Software. The use of any Third Party Software resold by OT to the Licensee will be governed by a license agreement between the Third Party Software owner and the Licensee. OT does not provide any warranties related to the Third Party Software. OT has no liability or obligation to the Licensee related to the Third Party Software. 13.13 US Government End Users-Restricted Rights Legend. If the Software is being licensed directly or indirectly on behalf of the United States government, the following applies. For civilian agencies and departments: the Software was developed at private expense and is "restricted computer software" submitted with restricted rights in accordance with subparagraphs (a) through (d) of the Commercial Computer Software-Restricted Rights clause of FAR 52.227-19 and its successors, and it is unpublished and all rights are reserved under the copyright laws of the United States. For units of the Department of Defense, the Software is “commercial computer software” and “commercial computer software documentation” under the Rights in Computer Software and Computer Software Documentation clause of DFAR 227.7202-3 (a) and its successors, and all use, duplication or disclosure is subject to the license and restrictions set forth in this EULA. 13.14 Entire License Agreement. The License Documents set forth the entire agreement between the parties with respect to this subject matter, and supersede all other related oral and written agreements and communications between the parties. Neither party has relied upon such other agreements or communications. Any purchase order terms which purport to amend or modify terms of the License Documents, or which conflict with the License Documents are void. 13.15 Third Party Rights. Except as otherwise expressly set out in this EULA and/or in the applicable License Model, this EULA does not confer a benefit on any person or entity who is not a party to this EULA. This EULA is not enforceable by any person or entity who is not a party to this EULA. 13.16 Legal Review and Interpretation. Both parties have had an opportunity for legal review of the License Documents. The parties agree that the License Documents result from negotiation between the parties. The License Documents will not be construed in favor of or against either party by reason of authorship. The headings used in this EULA are for convenience only. The term section refers to all subsections below a section heading (i.e. 3.0) and the term subsection refers to sequentially numbered subsections following a section (i.e. 3.1). 13.17 Notices. Any notice under this EULA that must be given by a party in writing is deemed effective when sent either: (a) via certified or registered mail, postage prepaid, or (b) via express mail or nationally recognized courier service to the other party’s address specified in this EULA or on the most recent Transaction Document. Notices to OT will also be sent to OT’s general counsel at 4300 Avenida Brigadeiro, 13th Floor, Faria Lima, São Paulo, Brazil 04578. 13.18 Hardware. IF HARDWARE IS IDENTIFIED ON A TRANSACTION DOCUMENT, THE SALE AND USE OF THE HARDWARE WILL BE GOVERNED BY TERMS OTHER THAN THIS EULA. OT DISCLAIMS ALL WARRANTIES AND LIABILITY WITH RESPECT TO THE HARDWARE. OpenText End User License Agreement, January 2014 (v2.0) Page 5 �
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END USER LICENSE AGREEMENT FOR SIEMEN’S Facility To Go for Use with Any Blackberry Device IMPORTANT – READ CAREFULLY: This End-User License Agreement (“EULA”) is a legal agreement between You (either an individual, a legal entity or any affiliated companies or other entities) and Siemens Building Technologies division of Siemens Industry, Inc. as the licensor (“Licensor” or “Siemens”) of the LICENSED SOFTWARE specified in Clause 1. An amendment or addendum to this EULA may accompany the LICENSED SOFTWARE. The use of the LICENSED SOFTWARE is subject to the provisions of this EULA which is enclosed with the LICENSED SOFTWARE or is integrated therein. Use of the LICENSED SOFTWARE is only permitted in connection with this EULA. The EULA may not be assigned to third parties. BY INSTALLING, COPYING, OR OTHERWISE USING THE LICENSED SOFTWARE YOU ACKNOWLEDGE THAT YOU: (1) HAVE READ AND UNDERSTOOD THIS EULA AND ANY THIRD PARTY LICENSES FOR RESPECTIVE THIRD PARTY CODE THAT MAY BE USED IN OR WITH THE LICENSED SOFTWARE; AND (2) AND AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS EULA AND SUCH THIRD PARTY LICENSES. FURTHERMORE YOU CONFIRM THAT YOU HAVE THE POWER TO MAKE SUCH A DECLARATION ALSO FOR YOUR COMPANY. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS EULA, YOU ARE NOT ENTITLED TO INSTALL OR USE THE LICENSED SOFTWARE. 1. Licensed Software. As used in this EULA, the term “LICENSED SOFTWARE” shall mean (i) the software application offered by Siemens under the brand name “Facility To Go” that you are attempting to download from a website operated by Research In Motion Limited (“RIM”), including Blackberry® App World, for licensed use with or on a Blackberry®. branded mobile device or other RIM proprietary handheld software platform operating on a wireless handheld device (“Blackberry Device”) and (ii) any related electronic documentation for the LICENSED SOFTWARE. 2. Intellectual Property Rights Notice. The LICENSED SOFTWARE and all rights, without limitation including proprietary rights therein (including but not limited to source code, object code, pictures, photographs, animations, videos, audios, music, text and "applets" which are contained in the LICENSED SOFTWARE), the printed accompanying materials and every copy of the LICENSED SOFTWARE, and all intellectual property rights therein (including any all copyrights, patents, trademarks, trade secrets, and publicity rights), are owned by Siemens, its licensors or affiliates. The LICENSED SOFTWARE is protected for Siemens on the basis of copyright law and international treaty provisions as well as on the basis of other laws and agreements regarding intellectual property. Except as expressly and unambiguously provided herein, You do not possess, and Siemens does not grant to You, any express or implied rights (whether by implication, estoppel or other legal theory) in or to any such intellectual property rights and all such rights are retained by Siemens, its licensors or affiliates. You acknowledge and agree that You - and not Siemens or RIM - shall be solely responsible for the investigation, defense, settlement and discharge of any intellectual property infringement claim or suit, or any other harm or damages resulting from Your use of or access to the LICENSED SOFTWARE. 3. License Grant. Only a license is granted for the LICENSED SOFTWARE, the LICENSED SOFTWARE is not sold. Siemens grants to You in this EULA a non-transferable, non-exclusive license to use the LICENSED SOFTWARE in object code and solely for the installation of the LICENSED SOFTWARE provided You comply with all terms and conditions of this EULA. 4. Description Of Further Rights And Restrictions. �a) You are entitled to install the LICENSED SOFTWARE on any BlackBerry Device owned by You and to use the LICENSED SOFTWARE, access it, execute it or to interact with it in some other way on such Blackberry Device. b) You may not sublicense, assign or transfer the EULA, the LICENSED SOFTWARE or its components, or any portion thereof without express written consent from Siemens. If you violate these restrictions, this EULA shall automatically be terminated. c) You may not or direct any third party to, reverse engineer, decompile, or disassemble the LICENSED SOFTWARE. d) You (or any third party at your direction) also shall not (i) modify or create a derivative work of the LICENSED SOFTWARE, or (ii) extract any individual parts except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. e) This EULA does not grant You any rights whatsoever in relation to Licensor’s or Siemens AG’s trademarks or service marks. f) Siemens may at its discretion offer You support services concerning the LICENSED SOFTWARE ("Support Services"). Siemens is entitled to use the technical data that You make available to Siemens in connection with the use of the LICENSED SOFTWARE and/or with Siemens’ Support Services for business purposes, including product ordering, support and development. Siemens does not guarantee that Support Services shall cure any technical problem caused by the use of the LICENSED SOFTWARE. 5. Reservation of Rights. Licensor reserve all rights not expressly granted to You in this EULA. 6. Additional Software / Component or Third Party Licenses. This EULA applies to updates or supplements to the original LICENSED SOFTWARE provided by Licensor or Siemens, unless Licensor or Siemens provides other terms along with the update or supplement. The Licensor or Siemens may contain certain components (each, a “Component”) that included a separate end user license agreement (a “Component Agreement” or “Third Party License”). The terms of any Component Agreement or Third Party License as are herein incorporated by reference to this EULA; in the event of any inconsistencies between this EULA and any Component Agreement or Third Party License, the terms of this EULA shall control. 7. Termination: This EULA is effective from the first date You install, copy or otherwise use the LICENSED SOFTWARE. Without prejudice to any other rights of Licensor or Siemens, the EULA shall terminate upon conditions set forth in Clause Error! Reference source not found. or if shall be entitled to terminate this EULA without notice or if You fail to comply with any provision or condition of this EULA. In such a case You will be obliged to destroy all copies, all related materials of the LICENSED SOFTWARE and all its components. 8. Backup Copy and Printing Documentation. . After the installation of the LICENSED SOFTWARE in compliance with the EULA You may make a single electronic copy of the LICENSED SOFTWARE for backup and archive purposes. Unless specifically stated otherwise in this EULA, You may under no other circumstances make any other copies of the LICENSED SOFTWARE. If this LICENSED SOFTWARE contains any documentation which is only provided in electronic form, You may print copies of this electronic documentation. You must reproduce and include the copyright notices on any permitted copies You make of such electronic documentation or LICENSED SOFTWARE. 9. Warranty. Siemens shall be only liable for defects and any violation of property rights, as set forth in this Clause Error! Reference source not found.. a) YOU ACKNOWLEDGE THE LICENSED SOFTWARE IS PROVIDED “AS IS” AND NEITHER SIEMENS NOR ANY OF THEIR LICENSORS (IF ANY) MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT �LIMITED TO THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR THAT THE LICENSED SOFTWARE WILL NOT INFRINGE ANY THIRD PARTY PATENTS, COPYRIGHTS, TRADEMARKS OR OTHER RIGHTS. THERE IS NO WARRANTY BY SIEMENS OR THEIR LICENSORS OR BY ANY OTHER PARTY THAT THE FUNCTIONS CONTAINED IN THE LICENSED SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY A SIEMENS REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY AFFECT THIS DISCLAIMER. YOU ASSUME ALL RESPONSIBILITY TO ACHIEVE YOUR INTENDED RESULTS AND FOR THE INSTALLATION, USE, AND RESULTS OBTAINED FROM IT. b) Any further rights and remedies than those as per this Clause Error! Reference source not found. ( (in particular Your right to claim damages) based on a defect or a violation of property rights shall be excluded. This exclusion shall not apply in the event of gross negligence, unlawful intent or insofar as mandatory law provides otherwise. 10. Limitation Of Liability. UNLESS OTHERWISE AGREED IN CLAUSES Error! Reference source not found. AND Error! Reference source not found., ABOVE, IN NO EVENT SHALL SIEMENS, ITS EMPLOYEES, LICENSORS, AFFILIATES, AGENTS OR SIEMENS AG AND THEIR AFFILIATES, OR RIM OR ANY PLATFORM OR SERVICE PROVIDERS FOR THE LICENSED SOFTWARE (INCLUDING AIRTIME SERVICE PROVIDERS OR TELECOMMUNICATIONS CARRIERS) BE LIABLE FOR ANY LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, PROPERTY DAMAGE, LOSS OF PROFITS, INTERRUPTION OF BUSINESS OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, ECONOMIC, PUNITIVE OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, AND WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, OR OTHER THEORY OF LIABILITY, OR ARISING OUT OF THE USE OF OR INABILITY TO USE THE LICENSED SOFTWARE, EVEN IF SIEMENS IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATION OF LIABILITY SHALL NOT APPLY IF AND TO THE EXTENT SIEMENS’ LIABILITY IS MANDATORY UNDER THE APPLICABLE LAW (e.g., PRODUCT LIABILITY LAW OR INTENSIONAL MISCONDUCT). 11. Debugging / Technical Support. Unless otherwise agreed, Siemens or SIEMENS AG and their affiliates have no obligation to furnish You with any further technical support or to debug the LICENSED SOFTWARE. Siemens reserves the right to improve the LICENSED SOFTWARE described here and to carry out modifications at any time without any prior notice. You acknowledge that RIM has no obligation to furnish any maintenance and support services with respect to the LICENSED SOFTWARE. 12. Governing Law/Export Restrictions/Legal Compliance. . This EULA shall be governed by and construed and interpreted by the laws of the State of Illinois, without regard to any conflict of laws provisions therein. Licensee shall comply with all then-current export and import laws and regulations of the United States and such other governments as are applicable when distributing or using the LICENSED SOFTWARE. Licensee hereby certifies that it will not directly or indirectly export, re-export, transship, or transmit the LICENSED SOFTWARE, or any portion thereof, or related information, media, or LICENSED SOFTWAREs in violation of United States laws and regulations. You represent and warrant that You are not (i) located in any country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist sponsoring" country, or (ii) listed on any U.S. Government list of prohibited or restricted parties including the Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List. 13. Other Usage Rules, Restrictions, Obligations, Rights and Notices Related To The Licensed Software. �a) You acknowledge that (i) this EULA is concluded between You and Siemens only, and not with RIM or any platform or service provider of the LICENSED SOFTWARE, and (ii) Siemens, not RIM, is solely responsible for the LICENSED SOFTWARE and the content thereof. Without limitation, Your use of the LICENSED SOFTWARE with any Blackberry Device, including a Blackberry smart phone, is subject to the Usage Rules established by RIM and located at or accessible through the Blackberry My World repository, the applicable provisions of which are incorporated herein by this reference. Note: Blackberry and Blackberry App World are trademarks of Research In Motion Limited. b) In no event shall RIM or any platform or service providers for the LICENSED SOFTWARE (including airtime service providers or telecommunications carriers) be liable for any claims whatsoever by You or any third party relating to the LICENSED SOFTWARE (including the sale and distribution thereof, or Your possession or Your use of the LICENSED SOFTWARE, including, but not limited to, (i) any product liability claims; (ii) any claim that the LICENSED SOFTWARE fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. c) Except as provided in this Clause 13(c), nothing contained in this EULA is intended or shall be construed to confer upon any person (other than the parties hereto) any rights, benefits or remedies of any kind or character, or to create any obligations or liabilities of a party to any such person. Notwithstanding the foregoing, You acknowledge and agree that RIM, Inc. and its subsidiaries are third party beneficiaries to this EULA, and that, upon Your acceptance of the terms and conditions of this License, RIM will have the right to enforce this EULA against You in its capacity as a third party beneficiary to this EULA. 14. For U.S. Government End Users: The LICENSED SOFTWARE was developed at private expense and is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the LICENSED SOFTWARE with only those limited rights set forth therein. Publisher is Siemens Industry, Inc., 1000 Deerfield Parkway, Buffalo Grove, Illinois 60089. a) For clarity, if this LICENSED SOFTWARE is being licensed under a US federally funded project, then the following Restricted Rights Notice is in effect: Restricted Rights Notice a) This computer software is submitted with restricted rights under Government Contract (and subcontract, if appropriate). It may not be used, reproduced, or disclosed by the Government except as provided in paragraph(b) of this notice or as otherwise expressly stated in the contract. (b) This computer software may be— (1) Used or copied for use with the computer(s) for which it was acquired, including use at any Government installation to which the computer(s) may be transferred; (2) Used or copied for use with a backup computer if any computer for which it was acquired is inoperative; (3) Reproduced for safekeeping (archives) or backup purposes; (4) Modified, adapted, or combined with other computer software, provided that the modified, adapted, or combined portions of the derivative software incorporating any of the delivered, restricted computer software shall be subject to the same restricted rights; �(5) Disclosed to and reproduced for use by support service contractors or their subcontractors in accordance with paragraphs (b)(1) through (4) of this notice; and (6) Used or copied for use with a replacement computer. (c) Notwithstanding the foregoing, if this computer software is copyrighted computer software, it is licensed to the Government with the minimum rights set forth in paragraph (b) of this notice. (d) Any other rights or limitations regarding the use, duplication, or disclosure of this computer software are to be expressly stated in, or incorporated in, the contract. (e) This notice shall be marked on any reproduction of this computer software, in whole or in part. (End of notice) 15. Miscellaneous. This EULA represents the entire agreement between You and Licensor or Siemens relating to the LICENSED SOFTWARE and (i) supersedes all prior or contemporaneous oral or written communications, proposals, and representations with respect to its subject matter; and (ii) prevails over any conflicting or additional terms of any acknowledgement or similar communication between the parties during the term of this License. If any provision of this EULA is held invalid, all other provisions shall remain valid unless such validity would frustrate the purpose of this EULA, and this EULA shall be enforced to the full extent allowable under applicable law. No modification to this EULA is binding, unless in writing and signed by a duly authorized representative of each party. This EULA shall be binding on and shall inure to the benefit of the heirs, successors, and assigns of the parties hereto. The failure of either party to enforce any right resulting from the breach of any provision of this EULA by the other party will not be deemed a waiver of any right related to a subsequent breach of such provision or any other right hereunder. ATTN: Facility To Go Contact SIEMENS INDUSTRY, INC. 1000 DEERFIELD PKWY BUFFALO GROVE, IL 60089 [email protected] © Siemens Industry, Inc. 2011. All Rights Reserved �
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End-User License Agreement for Artelys Knitro® IMPORTANT—READ CAREFULLY: This type of license is issued by Artelys when Artelys Knitro® is to be used by an end-user or customer of Artelys. The license granted hereunder does not permit Artelys Knitro® to be sold or used as part of a third-party software package or transferred other than as expressly provided hereunder. THIS END-USER LICENSE AGREEMENT (the "Agreement") is a legal agreement between you (either an individual or a single entity) and Artelys SA or its subsidiaries ("Artelys") for the Artelys Knitro® non-linear optimization software that accompanies this Agreement (the "Software"). This Agreement does not relate to any media, documentation, information or services that you may otherwise obtain or receive from Artelys, nor does this Agreement relate to any information or data obtained by you for use with the Software, including any mathematical information, formulas, data or other information, whether obtained in electronic form or manually inputted, or the results generated by your use of the Software (collectively, "Ancillary Data"). An amendment or addendum to this Agreement may accompany the Software. BY INSTALLING, COPYING, OR USING THE SOFTWARE YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE, DO NOT INSTALL, COPY, OR USE THE SOFTWARE. ANY USE OF THE SOFTWARE WILL BE DEEMED TO REPRESENT YOUR ACCEPTANCE OF THE SOFTWARE AND CONSENT TO BE BOUND BY THE TERMS OF THIS AGREEMENT. 1. GRANT OF LICENSE. Provided that you comply with all of the terms and conditions of this Agreement, Artelys grants you a non- exclusive, non-transferable, non-sublicensable, and terminable right and license to use the object code version of the Software for your internal business purposes, and only within the United States unless and until you have complied with all applicable export restrictions of the United States, and all applicable import restrictions, if any, of the country in which you intend to use the Software. This license includes the following rights: 1.1 INSTALLATION AND USE. You may: (i) install and use one (1) copy of the Software on one (1) personal computer or other device at any one (1) time; or (ii) copy the Software into the local memory or storage device of a computer that you are currently using; or (iii) install a copy of the Software on a network storage device, such as a local area network ("LAN") or secure intranet, and allow one (1) access device, such as a personal computer, to access and use that licensed copy of the Software over a private network (however, additional devices may not access and use the Software unless you have licensed the use of the Software on such additional devices); or (iv) make archival or back-up copies of the Software for archival or back-up purposes only. Artelys USA 150 N. Michigan Avenue, Suite 800 Chicago, IL 60601 USA +1 (312) 588-3376 Artelys FRANCE 12 rue du Quatre Septembre 75002 Paris FRANCE +33 (0)1 44 77 89 00 Artelys CANADA 2001 Bd Robert-Bourassa, Suite 1700 H3A 2A6 Montréal (QC) Canada +1 (514) 228-7595 �No other use or copying of the Software is permitted under this Agreement. Once installed, the Software cannot be installed or transferred to an additional or different computer or other device other than as expressly provided in this Agreement. 1.2 LICENSE GRANT FOR DOCUMENTATION. The documentation that accompanies the Software, if any, is licensed for your internal, non-commercial reference purposes only. 1.3 NO LICENSE FOR ANCILLARY DATA. Use of the Software contemplates that you will obtain, and input into the Software, Ancillary Data. The license granted under this Agreement does not include any rights to any Ancillary Data. You are solely responsible for entering into any commercial agreements required to obtain such Ancillary Data to be inputted into the Software and for assuring that all such Ancillary Data is inputted correctly and accurately. The Software contains no features for assuring that any Ancillary Data that is inputted is correct or accurate. 1.4 LICENSE FEE. In exchange for your use of the Software as set forth in this Agreement, you hereby agree to pay the fees and costs (collectively, the "License Fees") set forth in a separate document furnished to you by Artelys (or a distributor) on or before the date hereof, the receipt of which you hereby acknowledge, and the terms of which are hereby incorporated by this reference into this Agreement; provided, however, that if you were given a free trial version of the Software by Artelys (or a distributor), you are not obligated to pay such fees, but all other terms and conditions of this Agreement still apply to your use of the Software and related documentation and media. 2. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS 2.1 MANDATORY ACTIVATION. There are technological measures in the Software that are designed to prevent unlicensed use of the Software. Depending on the nature of the license granted, you may not be able to exercise your rights to the Software under this Agreement after a finite number of product launches, or after a certain period of time has expired following your initial installation of the Software, unless you activate or renew your copy of the Software in the manner described during the launch sequence. This may require you to obtain from Artelys an additional password, key or other access identifier not included with the Software. You may also need to reactivate the Software if you modify your computer hardware or attempt to alter the Software. If you are not using a licensed copy of the Software, you are not allowed to install the Software and will not be entitled to receive continued use of the Software. 2.2 SERVICES. Artelys may offer certain services for use in connection with the Software, including product support. You may not use any Artelys services associated with the Software in any manner that could damage, disable, overburden, or impair such services or interfere with any other party's use and enjoyment of them. You may not attempt to gain unauthorized access to any service, account, computer systems or networks associated with the services. 2.3 LIMITATIONS ON COMMERCIAL USE. If the license for the Software is designated as something other than a commercial license, including academic or research licenses, student licenses, or certain free promotional licenses, then you may not use the license for commercial gain or purpose. Moreover, if the license is designated as a trial or evaluation license, then it may only be used during the designated trial period for evaluation purposes and may not be used for commercial gain or profit. Only a license specifically designated as a commercial license may be used for Artelys USA 150 N. Michigan Avenue, Suite 800 Chicago, IL 60601 USA +1 (312) 588-3376 Artelys FRANCE 12 rue du Quatre Septembre 75002 Paris FRANCE +33 (0)1 44 77 89 00 Artelys CANADA 2001 Bd Robert-Bourassa, Suite 1700 H3A 2A6 Montréal (QC) Canada +1 (514) 228-7595 �commercial purposes. The license type may be designated in a separate document including the license fees or may appear in the printed output of the Software. 3. RESERVATION OF RIGHTS AND OWNERSHIP. Artelys reserves all rights not expressly granted to you in this Agreement. The Software is protected by copyright and other intellectual property laws and international treaties. The Software, and all modifications thereto and derivatives thereof, is owned and copyrighted by Northwestern University and Artelys SA. Artelys SA and Northwestern University own all right, title, interest, copyright, and other intellectual property rights in and to the Software, and all modifications thereto and derivatives thereof. Artelys has an exclusive license to distribute the Software. Your use of the Software and associated documentation is subject to the applicable copyright laws and the expressed rights and restrictions of these terms. The Software is licensed, not sold. This Agreement does not grant you any rights to trademarks or service marks of Artelys. 4. LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION, DISASSEMBLY, USE, COPYING, MODIFICATION, LEASING, SUBLICENSING, TRANSFERRING, ASSIGNMENT, ETC. You may not, nor permit any other person under your control or direction, to do any of the following: (i) reverse engineer, decompile, or disassemble the Software (including the Formulas or any of the documentation) for any reason; (ii) reduce the Software to a human perceivable form (or permit any other person to do any of the foregoing); (iii) use, copy, modify, or transfer the Software or any copy, modification or merged portion thereof, in whole or in part, except as expressly permitted by this Agreement; (iv) rent, lease, lend, sublicense, collateralize, assign, or otherwise transfer, in whole or in part, the Software, except as expressly permitted by this Agreement; (v) make the Software available to others over the Internet or similar networking technology; (vi) make the Software available to others over any intranet or similar networking technology; (vii) attempt to use the Software, or any copy, modification or merged portion, in whole or in part, without the copy protection device, if applicable, being attached to the computer running the Software; (viii) avoid, or attempt to avoid, any applicable time limitation or problem size limitation or other limitation as to use of the Software; (ix) remove or alter any copyright, trademark, or other proprietary notices from the Software, any accompanying documentation or related media; or (x) provide commercial hosting services with, or involving the use of, the Software. 5. ADDITIONAL SOFTWARE; UPDATES. Unless superseded by a separate license or agreement, this Agreement relates to the Software with which the Agreement has been delivered, as well as all updates, supplements, add-on components, or Internet-based components that Artelys may provide or make available to you after the date you obtain your initial copy of the Software. 6. EXPORT RESTRICTIONS. You acknowledge that the Software is subject to United States export jurisdiction. You agree to comply with all applicable international and national laws that apply to the Software, including the U.S. Export Administration Regulations and regulations of the Bureau of Industry and Security, as well as end-user, end-use, and destination restrictions issued by the United States and other governments. 7. SEPARATION OF COMPONENTS. The Software is licensed as a single product. Its component parts may not be separated for use on more than one computer or other device. Artelys USA 150 N. Michigan Avenue, Suite 800 Chicago, IL 60601 USA +1 (312) 588-3376 Artelys FRANCE 12 rue du Quatre Septembre 75002 Paris FRANCE +33 (0)1 44 77 89 00 Artelys CANADA 2001 Bd Robert-Bourassa, Suite 1700 H3A 2A6 Montréal (QC) Canada +1 (514) 228-7595 �8. UNAUTHORIZED USES. In the event you gain knowledge of any use of the Software licensed under this Agreement that does not comply with the rights and limitations of this Agreement, you will notify Artelys immediately of such activity, and provide reasonable assistance to Artelys in the investigation and prosecution of such activity. 9. TERM AND TERMINATION. Your right to use the Software and this Agreement are effective until terminated. For certain license types, including trial, evaluation and student licenses, this Agreement, and your right to use the Software, may be terminated by Artelys automatically and without further notice after a finite number of product launches, or after a certain period of time has expired following your initial installation of the Software. In addition, without prejudice to any other rights, Artelys may terminate this Agreement if you fail to comply with the terms and conditions of this Agreement, including by your transferring possession of any copy, modification or merged portion of the Software to another party. You may terminate this Agreement and your right to use the Software at any time by destroying the Software and all copies thereof and returning all product materials, copy protection device(s), if applicable, to Artelys. Notwithstanding the foregoing, if you received a trial version of the Software which is time disabled, this Agreement will automatically terminate upon expiration of the applicable trial period. You agree upon termination of this Agreement to destroy the Software together with all copies, modifications and merged portions in any form and to return the copy protection device(s), if applicable, to Artelys. 10. DISCLAIMER OF WARRANTIES. ARTELYS WARRANTS THAT THE SOFTWARE WILL PERFORM SUBSTANTIALLY AS DESCRIBED IN THE DOCUMENTATION ACCOMPANYING THE SOFTWARE FOR A PERIOD OF NINETY (90) DAYS FROM DOWNLOADING OR ACTIVATION (THE "WARRANTY PERIOD"). OTHER THAN THIS LIMITED WARRANTY, ARTELYS DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE PROGRAM WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE PROGRAM WILL BE UNINTERRUPTED OR ERROR FREE. WHILE ARTELYS HAS ATTEMPTED TO ASSURE THAT USE OF THE SOFTWARE WILL NOT RESULT IN ANY ERRORS OR MISCALCULATIONS, ARTELYS IS NOT RESPONSIBLE IN THE EVENT ANY ERRORS OR MISCALCULATIONS OCCUR. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PROGRAM IS WITH YOU; AND YOU ASSUME ALL RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION, USE AND RESULTS OBTAINED FROM THE SOFTWARE. ARTELYS PROVIDES THE SOFTWARE AND DOCUMENTATION AS IS AND WITH ALL FAULTS, AND HEREBY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY (IF ANY) IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF RELIABILITY OR AVAILABILITY, OF ACCURACY OR COMPLETENESS OF RESPONSES, OF RESULTS, OF WORKMANLIKE EFFORT, OF LACK OF VIRUSES, AND OF LACK OF NEGLIGENCE WITH REGARD TO THE SOFTWARE. THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE SOFTWARE. In the event you identify any feature or function that is believed by you to be inoperable or does not work as expected, your sole and exclusive remedy is to terminate your use of the Software, remove it from any computer or other device on which you have installed it, and contact Artelys for a replacement or a refund of the purchase price as set forth in Section 11 hereof. While you may wish to report the related feature or function, Artelys has absolutely no obligation to undertake to correct or repair any aspect of the Software. Further, Artelys is under no obligation to develop, maintain or market the Software. Future versions of the Software, if any, may not be compatible with the current release of the Software. Artelys USA 150 N. Michigan Avenue, Suite 800 Chicago, IL 60601 USA +1 (312) 588-3376 Artelys FRANCE 12 rue du Quatre Septembre 75002 Paris FRANCE +33 (0)1 44 77 89 00 Artelys CANADA 2001 Bd Robert-Bourassa, Suite 1700 H3A 2A6 Montréal (QC) Canada +1 (514) 228-7595 �11. LIMITATION ON REMEDIES; NO CONSEQUENTIAL OR OTHER DAMAGES. 11.1 YOU ARE NOT ENTITLED TO ANY DAMAGES OR PAYMENTS, INCLUDING BUT NOT LIMITED TO DIRECT OR CONSEQUENTIAL DAMAGES, ARISING FROM YOUR USE OF THE SOFTWARE. THE SOFTWARE IS PROVIDED TO YOU FOR YOUR CONVENIENCE AND ARTELYS ACCEPTS NO LIABILITY FOR ANY DAMAGES YOU EXPERIENCE IN THE USE OF THE SOFTWARE. SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. 11.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ARTELYS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IN THE EVENT OF ANY FAULT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF ARTELYS, AND EVEN IF ARTELYS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 11.3 NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED HEREIN AND ALL DIRECT OR GENERAL DAMAGES IN CONTRACT OR ANYTHING ELSE), THE ENTIRE LIABILITY OF ARTELYS UNDER ANY PROVISION OF THIS AGREEMENT AND YOUR EXCLUSIVE REMEDY HEREUNDER SHALL BE, AT THE OPTION OF ARTELYS, EITHER: (I) REPAIR OR REPLACEMENT OF THE NONCONFORMING SOFTWARE, OR (II) REFUND OF YOUR PURCHASE PRICE. THIS WARRANTY AND REMEDY ARE SUBJECT TO YOUR RETURNING THE SOFTWARE DURING THE WARRANTY PERIOD TO ARTELYS IN THE COUNTRY IN WHICH YOU OBTAINED THE SOFTWARE. THE ABOVE WARRANTIES ARE YOUR EXCLUSIVE WARRANTIES AND NO OTHER WARRANTY, EXPRESS OR IMPLIED, WILL APPLY. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS (INCLUDING SECTIONS 10 AND 11 HEREOF) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. 12. APPLICABLE LAW; VENUE; WAIVER OF JURY. This Agreement is governed by the laws of the State of Illinois, United States of America and, in respect of any dispute which may arise hereunder. You hereby consent to the exclusive jurisdiction of the federal and state courts sitting in Cook County, Illinois, United States of America for all matters arising under this Agreement and the interpretation thereof, or in connection with your use or purchase of the Software. YOU HEREBY AGREE TO WAIVE ANY RIGHT TO A TRIAL BY JURY THAT YOU MAY HAVE UNDER THE LAWS OF THE STATE OF ILLINOIS, THE UNITED STATES OF AMERICA, OR ELSEWHERE IN CONNECTION WITH ANY MATTER BROUGHT UNDER THIS AGREEMENT OR THE INTERPRETATION THEREOF, OR IN CONNECTION WITH YOUR PURCHASE OR USE OF THE SOFTWARE. 13. CUSTOMER SUPPORT SERVICES. Annual license maintenance and support ("ALMS") services are available for payment of an additional annual fee. Artelys will provide maintenance and support services in connection with your use of the Software as set forth in a separate document furnished by Artelys (or a distributor) to you on or before the date Artelys USA 150 N. Michigan Avenue, Suite 800 Chicago, IL 60601 USA +1 (312) 588-3376 Artelys FRANCE 12 rue du Quatre Septembre 75002 Paris FRANCE +33 (0)1 44 77 89 00 Artelys CANADA 2001 Bd Robert-Bourassa, Suite 1700 H3A 2A6 Montréal (QC) Canada +1 (514) 228-7595 �hereof, the receipt of which you hereby acknowledge and the terms of which are hereby incorporated by this reference into this Agreement. If you did not pay for the Software because you were issued a free trial version of the Software or otherwise, then Artelys is not obligated to provide any maintenance or support services in connection with your use of the Software and may do so, if at all, in its sole discretion. 14. ENTIRE AGREEMENT; SEVERABILITY. This Agreement (including any addendum or amendment to this Agreement which is include with the Software) is the entire agreement between you and Artelys relating to the Software and the support services (if any) and the terms of this Agreement supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software or any other subject matter covered by this Agreement. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. 15. TRANSFER OF SOFTWARE. You may permanently transfer your rights to use the Software, the Software itself including any updates to the purchased version of the Software, and the accompanying documentation, including this Agreement, provided that you retain no copies of the Software, updates, documentation, or this Agreement and the recipient accepts all of the terms and conditions of this Agreement without reservation or condition. Artelys must be notified in writing of any such transfer. Any attempt otherwise to rent, lease, sublicense, assign, or otherwise transfer any of the rights, duties or obligations of this Agreement is not permitted, shall be void and of no force or effect. 16. FEEDBACK. Subject to any overriding confidentiality agreement, any comments or materials sent to Artelys including feedback data, such as questions, comments, suggestions, or the like regarding the Software (collectively "Feedback"), shall be deemed to be non-confidential. Artelys shall have no obligation of any kind with respect to such Feedback and shall be free to reproduce, use, disclose, exhibit, display, transform, create derivative works and distribute the Feedback to others without limitation. Further, Artelys shall be free to use any ideas, concepts, know-how or techniques contained in such Feedback for any purpose whatsoever, including but not limited to developing, manufacturing and marketing products incorporating such Feedback. You agree that Artelys may use your name as a licensee of the Software in its general marketing. 17. CONTACTING ARTELYS. Should you have any questions concerning this Agreement, please contact Artelys SA, 12 rue du Quatre Septembre, 75002 Paris, FRANCE. 18. ACKNOWLEDGEMENT. BY YOUR USE OF THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. 19. INCORPORATION OF THIRD-PARTY SOFTWARE. THE SOFTWARE INCORPORATES ONE OR MORE THIRD-PARTY SOFTWARE PROGRAMS OWNED OR LICENSED BY AN ENTITY UNRELATED TO ARTELYS, INCLUDING THE COIN CLP SOLVER INCORPORATED INTO THE SOFTWARE. BY YOUR USE OF THE SOFTWARE, YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL ABIDE BY ALL TERMS, CONDITIONS OR LIMITATIONS IMPOSED BY SUCH THIRD-PARTIES, COPIES OF WHICH ARE AVAILABLE UPON WRITTEN REQUEST SENT TO ARTELYS. NEITHER ARTELYS NOR SUCH THIRD PARTIES PROVIDE ANY ASSURANCES THAT THE THIRD-PARTY PROGRAMS INCORPORATED INTO THE SOFTWARE DO NOT INFRINGE ON THE INTELLECTUAL PROPERTY RIGHTS OF ANY OTHER ENTITY. ACCORDINGLY, ARTELYS AND SUCH THIRD-PARTIES DISCLAIM ANY LIABILITY TO YOU FOR CLAIMS BROUGHT BY ANY OTHER ENTITY BASED ON INFRINGEMENT OF INTELLECTUAL Artelys USA 150 N. Michigan Avenue, Suite 800 Chicago, IL 60601 USA +1 (312) 588-3376 Artelys FRANCE 12 rue du Quatre Septembre 75002 Paris FRANCE +33 (0)1 44 77 89 00 Artelys CANADA 2001 Bd Robert-Bourassa, Suite 1700 H3A 2A6 Montréal (QC) Canada +1 (514) 228-7595 �PROPERTY RIGHTS OR OTHERWISE. AS A CONDITION TO YOUR USE OF THE SOFTWARE AND THE LICENSE GRANTED HEREUNDER, YOU HEREBY WAIVE ANY CLAIMS THAT YOUMAY HAVE AGAINST ALL SUCH THIRD-PARTIES AND ARTELYS FOR ANY REASON, INCLUDING IN THE EVENT SUCH THIRD-PARTY PROGRAMS INFRINGE ON THE INTELLECTUAL PROPERTY RIGHTS OF ANY OTHER ENTITY OR DO NOT FUNCTION AS DESIRED, INTENDED, OR DESCRIBED IN ANY ACCOMPANYING DOCUMENTATION. THE SOURCE CODE FOR THE COIN CLP SOLVER INCORPORATED INTO THE SOFTWARE IS AVAILABLE TO YOU AND MAY BE DOWNLOADED FROM: http://www.artelys.com/tools/clp 20. DERIVATIVE WORKS. As provided in Section 3 hereof, Artelys SA and/or Northwestern University own all right, title and interest in and to the Software and any modifications thereto or derivatives thereof. In the event that you breach this Agreement and modify the Software or create a derivative of the Software, you hereby acknowledge and agree that all right, title and interest to such modification or derivative shall be held exclusively by Artelys SA and/or Northwestern University, and you agree that to the extent that you have any right in such modification or derivative, you hereby unconditionally and irrevocably assign such right to Artelys SA and/or Northwestern (as directed by Artelys SA) and waive enforcement of any such right and all claims and causes of action of any kind against Artelys SA and Northwestern University and their respective successors, assigns and customers. 21. BINDING EFFECT AND ASSIGNMENT. You may not assign, in whole or in part, this Agreement without the written consent of Artelys. In such event, this Agreement shall be binding upon and shall inure to the benefit of your successors and assignees. 22. NO TRANSFER OF AGREEMENT OR LICENSE. You may not sublicense, collateralize or otherwise transfer (by operation of law or otherwise) or dispose of this Agreement, the license to the Software granted hereunder, or any of its rights or obligations under such Agreement or license without the prior written consent of Artelys. 23. THIRD-PARTY BENEFICIARIES. Notwithstanding any other provisions of this Agreement, nothing in this Agreement confers or purports to confer any right to enforce any of its terms on any person who is not a party to it. 24. ATTORNEYS' FEES. In the event that any action or proceeding is brought by Artelys to enforce or interpret any provision, covenant or condition contained in this Agreement, and Artelys is successful in such action or proceeding, then you hereby acknowledge and agree that Artelys shall be entitled to recover from you its expenses therein, including reasonable attorneys' fees and allowable costs. Copyright (C) 2015 Artelys SA. All rights reserved. Artelys USA 150 N. Michigan Avenue, Suite 800 Chicago, IL 60601 USA +1 (312) 588-3376 Artelys FRANCE 12 rue du Quatre Septembre 75002 Paris FRANCE +33 (0)1 44 77 89 00 Artelys CANADA 2001 Bd Robert-Bourassa, Suite 1700 H3A 2A6 Montréal (QC) Canada +1 (514) 228-7595 �
nw/35.txt
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!" End"User"License"Agreement"(EULA)"for"the"software"programs"MAXQDA"and"MAXQDAplus" !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!" Date"revised"last:"25.08.2015" !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!" " 1."Subject"matter" !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!" This"software"end"user"license"agreement"(“EULA”)"is"a"legal"agreement"between"you"and"VERBI" GmbH,"Berlin,"Germany."It"provides"a"license"to"use"the"software"and"contains"warranty"information" and"liability"disclaimers." By"installing"and"using"the"software,"you"are"confirming"your"acceptance"of"the"software"and" agreeing"to"become"bound"by"the"terms"of"this"agreement."If"you"do"not"agree"to"be"bound"by"these" terms,"use"the"button"“Cancel”,"do"not"install"the"software"and"return"the"software"to"your"place"of" purchase"for"a"full"refund." " 2."Conditions"of"Use"according"to"the"license"type" !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!" 2.1."Single"User"Licenses" The"Single"User"License"may"be"used"by"one"person."He"or"she"may"install"the"license"on"two" machines"(PCs"or"laptops)."Both"installations"may"not"be"used"simultaneously."Under"no" circumstances"they"may"be"used"by"different"persons." " 2.2."Portable"Licenses" The"portable"license"may"be"installed"on"a"USB"flash"drive"and"may"be"used"directly"from"it"on" different"computers"(Windows"XP,"Vista,"7"or"8"required)."The"customer"installs"the"software"on"its" own"hardware"and"has"to"assume"full"responsibility"for"it."A"portable"license"makes"MAXQDA"a" physical"item"tied"to"the"specific"USB"flash"drive"it"is"installed"on."Under"no"circumstances"does"VERBI" take"any"responsibility"in"case"the"MAXQDA"license"is"not"available"due"to"loss,"theft"or"damage"of" the"USB"flash"drive"the"software"is"installed"on."(Regardless"of"the"legal"responsibility"of"the"license" holder"we"recommend"users"who"cannot"access"their"MAXQDA"license"because"of"hardware" problems"to"contact"the"MAXQDA"online"support"in"order"to"work"out"a"satisfying"individual" solution.)" " �2.3."Network"Licenses" Network"Licenses"are"server"based"licenses,"which"allow"the"simultaneous"use"of"the"software"in"the" amount"of"the"number"of"purchased"licenses"(starting"with"5"licenses)."The"total"access"may"be"twice" as"high"as"the"number"of"purchased"licenses"(concurrent"/"floating"use)."Network"licenses"need"to"be" set"up"and"managed"with"our"license"management"tool"MAXServer."This"requires"the"server"PC"to" have"a"Windows"environment"(Windows"XP"or"newer)." " 2.4."PC"Lab"Licenses" The"PC"Lab"License"is"a"special"license"to"equip"teaching"classrooms"of"educational"institutions."The" license"is"server"based"and"may"be"accessed"by"up"to"30"computers"of"the"PC"Lab."The"license"holder" guarantees"that"this"license"type"is"only"made"available"to"computers,"who"are"physically"located"in" the"same"classroom."The"use"of"the"license"is"strictly"limited"to"teaching"purposes."It"may"not"be"used" for"research"projects"(except"of"teaching"related"research"projects)."PC"Lab"Licenses"need"to"be"set" up"and"managed"with"our"license"management"tool"MAXServer."This"requires"the"server"PC"to"have"a" Windows"environment"(Windows"XP"or"newer)." " 2.5."Student"Licenses"/Semester"Licenses" Student"Licenses"and"Semester"Licenses"are"drastically"discounted"special"licenses"for"students."" They"offer"full"functionality"and"are"available"in"two"versions:" " a)"The"Student"License"may"be"used"on"2"private"computers"owned"by"the"student."The"two" installations"may"not"be"used"simultaneously."Under"no"circumstances"may"they"be"used"by"another" person."The"license"is"valid"for"2"years"starting"with"the"date"of"purchase."The"student"license"is" available"as"the"basic"version"(MAXQDA)"and"the"extended"version"(MAXQDAplus)." " b)"The"Semester"License"may"be"used"on"1"private"computer"owned"by"the"student."The"license"is" valid"for"6"months"starting"with"the"date"of"purchase."The"student"license"is"only"available"as"the" basic"version"(MAXQDA)." " All"student"licenses"are"personal"licenses"which"may"only"be"purchased"by"students"who"verified"their" student"status"during"the"order"process."Recipient"of"the"invoice"and"the"delivery"must"be"the" student"with"his/her"private"address."The"purchasing"of"student"licenses"by"institutions"is"not" permitted."Student"licenses"may"never"be"sold"to"a"non!student"or"in"some"way"be"shared"with"them." The"use"is"limited"to"private"purpose"(i.e."schoolwork,"preparations"for"qualification,"etc.)."The"use"for" professional"activities"and"commercial"purpose"is"prohibited."Student"licenses"cannot"be"upgraded"to" new"versions." " 2.6."Campus"License" �2.6.1."The"Campus"License"is"available"only"for"educational"institutions"(schools,"colleges," universities)."It"is"server"based"and"can"only"be"obtained"on"an"annual"payment"basis"(lease"option)." 2.6.2."The"leasing"period"is"for"one"year"at"a"time,"beginning"on"the"invoice"date."The"leasing"license"is" extended"automatically"for"an"additional"year"unless"the"subscription"is"cancelled"in"writing"at"least" two"months"ahead"of"the"end"of"the"current"leasing"period." 2.6.3."The"price"of"the"campus"license"depends"on"the"number"of"authorized"users,"which"is" calculated"based"on"the"number"of"faculty"staff"and"students."The"purchaser"of"the"license"is" responsible"for"recalculating"the"number"of"authorized"users"on"a"yearly"basis"and"providing"the" information"to"VERBI." 2.6.4."The"purchaser"of"the"license"is"permitted"to"make"the"software"available"on"a"server"for"all" faculty"members"and"students"of"the"educational"institution."It"is"furthermore"permitted"to"allow"for" external"access"to"the"software"via"VPN"(Virtual"Private"Network)."Campus"licenses"need"to"be"set"up" and"managed"with"our"license"management"tool"MAXServer."This"required"the"server"PC"to"have" Windows"(Windows"XP"or"newer)." 2.6.5."Campus"licenses"include"free"upgrades"to"new"software"versions."Free"updates"and"E!mail" support"are"also"included"for"all"authorized"users."The" 2.6.6."The"purchaser"of"the"license"is"responsible"for"ensuring"that"only"authorized"users"access"the" software."The"use"of"the"software"for"commercial"purposes"is"not"permitted"in"any"situation." " 3."Copyright"and"License" !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!" 3.1."The"Software"(program"and"manual)"supplied"by"VERBI"is"protected"by"copyright."For"the" purposes"of"the"relationship"between"the"parties"hereto,"VERBI"shall"be"solely"entitled"to"the"rights" relating"to"the"Software"as"well"as"any"other"documentation"made"available"during"the"phase"of" preparing"and"implementing"this"agreement." " 3.2."VERBI"shall"grant"to"the"Customer"a"non!exclusive"right,"without"any"geographical"or"time" restrictions,"to"use"the"Software"for"his"own"purposes"and"as"described"in"this"contract"and"in"the" manual."The"Customer"shall"be"entitled"to"copy"the"software"within"the"scope"of"its"contractual"use" as"contemplated"herein."He"shall"be"entitled"to"load"the"Software"into"the"RAMs"and"hard"disks"of" the"hardware"used"by"him." " 3.3."The"Customer"shall"be"entitled"to"make"the"number"of"backup"copies"necessary"for"reliable" operation."Such"backup"copies"shall"be"marked"as"such"and"(as"far"as"technically"possible)"shall"be" provided"with"the"same"copyright"notice"which"also"appears"on"the"original"data"medium."The" Customer"shall"not"be"entitled"to"copy"the"user’s"manual"for"any"purposes"other"than"the"Customer’s" internal"purposes." �" 3.4."The"Customer"shall"not"be"entitled"to"change"or"obscure"in"any"manner"any"copyright"notices," trademarks,"other"legal"reservations,"serial"numbers"or"other"features"used"for"program" identification"purposes." " 3.5."Any"other"form"of"using"the"software,"including,"but"not"limited"to,"its"compiling,"editing," arranging,"or"modifying"in"any"other"manner"whatsoever"(other"than"decompiling"pursuant"to"section" 69e"of"the"German"Copyright"Law"[§"69"UrhG])"or"the"(offline"or"online)"dissemination"of"the" software"in"any"other"manner"as"well"as"the"renting"or"lending"out"thereof"shall"be"subject"to"the" written"consent"of"the"Licensor."You"may"not"modify"the"Software"or"create"derivative"works"based" upon"the"Software."You"may"not"decompile,"reverse"engineer,"disassemble,"or"otherwise"reduce"the" Software"to"a"human!"perceivable"form." " 3.6."Specific"license"restrictions"apply"for"Foxit"PDF"SDK,"integrated"part"of"MAXQDA:"Foxit"PDF"SDK" remains"the"intellectual"property"of"Foxit."You"are"not"allowed"to"redistribute,"modify,"reverse" engineer,"or"reuse"any"part"of"the"Foxit"PDF"SDK"in"any"other"application"than"in"MAXQDA." " 3.7."The"Customer"shall"only"be"entitled"to"pass"the"Software"on"to"a"third"party"if"such"third"party" declares"that"he"accepts"the"validity"of"these"General"Terms"and"Conditions."In"the"event"that"the" Customer"passes"the"Software"on"to"a"third"party,"he"shall"discontinue"once"and"for"all"the"use"of"the" Software"and"shall"not"keep"any"copies"thereof."The"Customer"shall"also"pass"on"to"such"third"party" the"data"media"and"the"manuals."You"may"not"rent,"lease,"or"sublicense"the"Software." " 3.8."VERBI"shall"be"entitled"to"revoke"the"license"rights"for"a"material"reason."A"material"reason"shall," in"particular,"be"deemed"to"exist"if"the"Customer"is"in"default"with"the"payment"of"a"substantial"part" of"the"remuneration"or"if"the"Customer"fails"to"abide"by"the"Terms"and"Conditions"of"the"license"and" fails"to"immediately"remedy"such"default"after"VERBI’s"written"request,"including"VERBI’s" announcement"to"terminate"the"license"otherwise."In"the"event"that"the"license"is"terminated,"the" Customer"shall"return"to"the"Licensor"the"original"software"as"well"as"any"copies"thereof,"and"delete" any"programs"stored."At"the"Licensor’s"request,"the"Customer"shall"confirm"in"writing"that"he"has" returned"such"software"and"deleted" such"programs"as"aforestated."In"the"event"that"you"fail"to"comply"with"this"EULA,"VERBI"may" terminate"the"license"and"you"must"destroy"all"copies"of"the"Software." " 3.9."VERBI"GmbH"reserves"the"right"to"periodically"audit"you"to"ensure"that"you"are"not"using"any" Software"in"violation"of"this"agreement."During"your"standard"business"hours"and"upon"prior"written" notice,"VERBI"may"visit"you"and"you"will"make"available"to"VERBI"GmbH"or"its"representatives"any" records"pertaining"to"the"Software"to"VERBI." �" 4."Activating"the"software" !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!" 1."When"purchasing"a"MAXQDA"license,"the"user"receives"a"serial"number."This"represents"the"key"to" use"the"software"according"to"the"license"terms." " 2."The"customer"needs"to"activate"the"software"with"a"serial"number."VERBI"explicitly"points"out"that" for"some"operating"systems"(e.g."Mac"OS"X)"a"connection"to"the"internet"is"required"to"activate"the" software." " 3."When"the"user"activates"the"software"online"his/her"name,"institution,"e!mail"address,"operating" system,"IP"address,"and"MAXQDA"serial"number"are"transferred"to"the"VERBI"activation"server."By" using"MAXQDA"the"customer"agrees"to"the"transfer"of"this"information."VERBI"will"store"the" information"and"is"entitled"to"use"it"to"process"support"requests"and"to"verify"compliance"with"the" license"conditions."The"data"is"not"disclosed"to"a"third"party." " 4."By"using"MAXQDA"the"user"agrees"that"the"software"automatically"and"regularly"checks"the"users" compliance"with"the"license"terms"by"comparing"current"license"information"with"the"information"on" the"VERBI"activation"server."VERBI"will"inform"the"user"if"his/her"license"does"not"comply"with"the" license"terms"and"is"entitled"to"demand"proper"licensing"and/or"prevent"the"further"use"of"the" software." " 5."When"the"user"deactivates"the"software"on"her/his"system"with"the"appropriate"feature"of"the" software,"the"same"information"as"listed"above"is"transferred"to"the"VERBI"activation"server."This" allows"the"user"to"activate"the"software"on"a"new"system." " " 5."Updates"and"Upgrades" !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!" 4.1."License"holders"of"a"MAXQDA"license"receive"program"updates"within"the"purchased"program" version"without"charge."As"soon"as"updates"are"available,"they"can"be"downloaded"by"using"the" update"function"within"the"software." " �4.2."Registered"license"holders"of"a"purchase"license"receive"a"reduction"on"the"original"price"for"the" number"of"already"existing"licenses"(upgrade"price)."The"eligibility"to"purchase"an"upgrade"is"to"be" proven"by"stating"the"license"number(s)."The"upgrade"right"expires,"when"the"license"holder" perceived"his"right"to"upgrade"for"two"program"versions"subsequently." " 4.3."VERBI"is"entitled"to"create"software"updates"by"own"discretion."Licensees"that"have"not"paid"any" update"fees"(for"example"subscription)"have"no"right"to"updates"of"the"program." " " 6."Support"services" !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!" 5.1."VERBI"offers"free"online"support"to"licensees"of"a"MAXQDA"license."The"online"support"offers" technical"assistance"to"questions"about"the"functions,"as"well"as"difficulties"with"the"installation"and" activation"of"the"software"product."The"online"support"does"not"offer"consulting"or"research" consulting."Before"utilizing"the"support,"the"given"information"by"VERBI"(installation"guides,"manuals," FAQs,"etc.)"are"to"be"consulted." " 5.2."To"receive"technical"support,"the"client"is"obliged"to"register"the"software"online"at:" http://www.maxqda.com/support/register" " 5.3."VERBI"offers"free"online!support"only"for"the"current"and"the"previous"version"of"the"software." " 5.4."Furthermore"individual"support"services"(consulting)"are"of"charge"and"require"an"individual," separate"agreement"with"VERBI." " 5.5."By"violation"of"the"Terms"and"Conditions,"VERBI"reserves"the"refusal"of"support"services." " " 7."Ownership" !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!" 7.1."VERBI"retains"all"right,"title"and"interest,"including"all"intellectual"property"rights,"in"and"to"the" Software"and"all"copies"thereof."The"foregoing"license"gives"you"limited"license"to"use"the"Software." �All"rights"not"specifically"granted"in"this"EULA,"including"Federal"and"International"Copyrights,"are" reserved" by"VERBI"and"its"suppliers."Your"possession,"installation,"or"use"of"the"Software"does"not"transfer"to" you"any"title"to"the"intellectual"property"in"the"Software,"and"you"will"not"acquire"any"rights"to"the" Software"except"as"expressly"set"forth"in"this"Agreement." " 7.2."The"ownership"and"the"copyright"of"the"software"product"(including,"but"not"limited"to"pictures," photographies,"animations,"videos,"audio,"music,"text"and"“applets”,"that"are"included"in"the" software"product),"the"printed"escort"material"and"all"copies"of"the"software"product"belong"to" VEBRI." " 7.3."The"software"product"is"to"be"treated"like"any"other"copyright"protected"material"with"the" exception,"that"a"copy"of"the"software"is"created"for"back"up!"or"archiving"purposes."Through" ownership,"the"installation"or"use"of"the"software"the"client"acquires,"apart"from"the"user"rights,"that" are"granted"because"of"the"agreement,"no"rights"of"the"intellectual"property." " " 8."Data"Protection" !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!" 8.1."The"Customer"is"herewith"informed"that"VERBI"collects,"stores,"processes"and"–"if"necessary"–" passes"on"to"third"parties"the"Customer’s"data"to"the"extent"necessary"for"the"performance"hereof" and"subject"to"the"applicable"data"protection"and"data"privacy"laws." " 8.2."VERBI"is"entitled"to"raise,"save"and"use"the"personal"data"as"far"as"this"is"necessary"to"process" your"order"and"to"deduct"via"invoicing."Dissemination"to"third"parties"does"not"take"place,"if"it"has"not" been"explicitly"indicated"and"the"customer"has"agreed"to"it." " 8.3."Customers"can"view"their"personal"data"free"of"charge"at"any"time"at"VERBI."Written"inquieries" can"be"sent"to"VERBI"GmbH,"Marie!Elisabeth!Lüders!Str."1,"10625"Berlin,"Germany"or"via"e!mail"to" [email protected]." " " 9."Defects"of"quality"and"defects"in"title" !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!" �9.1."VERBI"shall"supply"the"Software"to"the"Customer"in"a"condition"free"from"defects"in"quality"or" defects"in"title."Defects"affecting"the"suitability"for"use"of"the"Software"to"a"minor"extent"only"shall" not"be"considered"as"defects"for"the"purposes"of"this"agreement."Functional"impairment"caused"by" the"hardware"and"software"environment"made"available"by"the"Customer,"operator"error,"defective" external"data,"computer"network"malfunction"or"any"other"reason"belonging"to"the"Customer’s" sphere"of"responsibility"shall"not"be"considered"as"defects"for"the"purposes"of"this"agreement." " 9.2."VERBI"does"not"warrant"the"proper"functioning"of"software"that"has"been"modified"by"the" Customer"unless"the"Customer"demonstrates"that"the"defect"reported"was"not"caused"by"such" modification." " 9.3."The"Customer"shall"take"reasonable"precautions"in"the"event"that"the"Software"fails"to"work" correctly"in"part"or"in"full."He"shall"test"the"Software"thoroughly"in"order"to"ensure"it’s"suitably"for"the" purpose"intended"by"him"before"using"it"in"operations."The"Customer"shall"also"save"his"data"in"a" manner"consistent"with"the"latest"state"of"the"art"–"he"should"do"so"after"each"work"session"in"which" he"used"the"software."He"shall"ensure"that"he"latest"data"in"machine!readable"form"from"the"data" stocks"available" can"be"reproduced"with"reasonable"effort."In"the"event"of"a"loss"of"data,"VERBI's"liability"shall"be" limited"to"the"damage"which"would"have"occurred"even"with"the"Customer"performing"data"backup" procedures." " 9.4."VERBI"shall"initially"eliminate"any"defects"in"quality"by"repair."The"Customer"shall"be"entitled"to" demand"repair"or"a"new"program"unless"VERBI"is"entitled"by"law"to"refuse"such"repair"or" replacement."The"Customer"shall"grant"to"VERBI"a"reasonable"period"of"grace"for"repair/replacement." " 9.5."In"the"event"of"failure"to"repair"or"replace"as"aforesaid,"the"Customer"shall"be"entitled"to"reduce" his"payment(s)"or"to"cancel"the"agreement." " 10."Limited"Liability,"Limited"Warranty,"Exclusive"Remedy"and"Disclaimer" !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!" 10.1."The"warranty"period"by"VERBI"expires"24"months"after"the"product"has"been"received"by"the" customer,"when"the"customer"is"an"end"user."The"end"user"has"the"choice"of"rectifications"of"defects" or"replacement."VERBI"has"the"right"to"reject"the"chosen"type"of"remedy,"if"the"cost"associated"with" the"chosen"type"is"disproportionate"to"the"remedy"offered"by"the"other"remedy"offered,"and"no" disadvantages"arise"from"this"decision"for"the"customer."Is"the"performed"fulfillment"not"satisfactory," the"customer"has"the"right"to"request"a"reduced"price"or"revoke"the"contract."Should"the"customer"be" entitled"to"a"refund"rather"than"replacement,"VERBI"is"only"liable"for"the"amount"paid"for"the" �software"at"the"time"of"purchase,"not"for"any"further"damages."For"the"rest"any"other"liabilities"in" conjunction"with"defective"or"wrong"deliveries"or"breach"of"contracts"in"conjunction"with"the" fulfillment"and"any"other"liability"claims"due"to"negligence"are"excluded"from"these"Terms"and" Conditions." " 10.2."The"warranty"period"by"VERBI"expires"after"six"(6)"month"in"case"the"customer"is"not"an"end! user."In"this"case"the"customer"has"to"inspect"the"software"received"from"VERBI"immediately"upon" receipt"for"any"defects."This"inspection"will"generally"be"completed"within"14"days."In"order"to" maintain"his"warranty"rights;"the"customer"must"notify"VERBI"of"visible"defects"in"the"software"in" writing"within"14"days"of"receiving"the"software."VERBI"shall"initially"eliminate"any"defects"in"quality" by"repair."The"Customer"shall"be"entitled"to"demand"repair"or"a"new"program"unless"VERBI"is"entitled" by"law"to"refuse"such"repair"or"replacement."The"Customer"shall"grant"to"VERBI"a"reasonable"period" of"grace"for"repair/replacement."In"the"event"of"failure"to"repair"or"replace"as"aforesaid,"the" Customer"shall"be"entitled"to"reduce"his"payment(s)"or"to"cancel"the"agreement." " 10.3."VERBI"shall"pay"damages"or"refund"futile"expenditure"for"whatever"legal"reason"(including,"but" not"limited"to,"failure"to"fulfill"obligations,"tortuous"act)"to"the"following"extent"only." "•" In"the"case"of"willful"action"and"in"the"case"of"a"guarantee"concerning"agreed"properties:"to" the"full"amount."" "•" In"the"case"of"gross"negligence:"to"the"amount"of"the"typical"or"foreseeable"damage"to"be" prevented"by"the"VERBI's"obligation"to"exercise"due"care."" "•" In"any"other"case,"always"subject"to"violation"of"a"material"contractual"obligation"and"in"the" case"of"default:"to"the"amount"of"typical"and"foreseeable"damage,"however,"limited"to"an"amount"of" EUR"20"per"case"and"EUR"20"for"all"cases"of"damage"under"this"agreement."" " 10.4."VERBI"does"not"accept"any"liability"for"the"loss"of"data"or"damages"done"to"the"systems"due"to" the"use"of"the"product." " 10.5."VERBI"shall"have"no"responsibility"if"the"Software"has"been"altered"in"any"way,"if"the"media"has" been"damaged"by"accident,"abuse"or"misapplication,"or"if"the"failure"arises"out"of"use"of"the"Software" with"other"than"a"recommended"hardware"configuration." " 10.6."To"the"extent"to"which"liability"is"limited"or"excluded,"this"shall"also"apply"to"personal"liability"on" the"part"of"VERBI's"employees,"representatives"or"agents." " �10.7."Notwithstanding"the"foregoing,"statutory"liability"for"personal"injury"and"liability"under"the" product"liability"act"shall"remain"unaffected." " 10.8."(USA"only)"Some"states"do"not"allow"the"exclusion"of"implied"warranties,"so"the"above"exclusion" may"not"apply"to"you."This"warranty"gives"you"specific"legal"rights"and"you"may"also"have"other"legal" rights"that"vary"from"state"to"state." " 10.9."Neither"VERBI"nor"its"Suppliers"shall"be"liable"to"you"or"any"third"party"for"any"indirect,"special," incidental"or"con"sequential"damages"(including,"but"not"limited"to,"damages"for"loss"or"business,"loss" of"profits,"business"interruption"or"the"like)"arising"out"of"the"use"of,"or"inability"to"use"the"software" and"based"on"any"theory"of"liability"including"breach"of"contract,"breach"of"warranty,"tort"(including" negligence),"Product"liability"or"otherwise,"even"if"VERBI"GmbH"or"its"representatives"have"been" advised"of"the"possibility"of"such"damages"and"even"if"a"remedy"set"forth"herein"is"found"to"have" failed"of"its"essential"purpose." " 10.10."VERBI"total"liability"to"you"for"actual"damages"for"any"cause"whatsoever"will"be"limited"to"the" greater"of"500"US!Dollars"or"the"amount"paid"by"you"for"the"software"that"caused"such"damage." " 11."Basis"of"Bargain" !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!" The"Limited"Warranty,"Exclusive"Remedies"and"Limited"Liability"set"forth"above"are"fundamental" elements"of"the"basis"of"the"agreement"between"VERBI"and"you."VERBI"would"not"be"able"to"provide" the"Software"on"an"economic"basis"without"such"limitations." " 12."(Outside"of"the"USA)"Consumer"End"Users"Only" !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!" The"limitations"or"exclusions"of"warranties"and"liability"contained"in"these"Terms"do"not"affect"or" prejudice"the"statutory"rights"of"a"consumer,"i.e.,"a"person"acquiring"goods"otherwise"than"in"the" course"of"a"business." " 13."Third"Party"Software" !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!" �MAXQDA"and"MAXQDAplus"are"trademarks"or"registered"trademarks"of"VERBI."Third"party" trademarks,"trade"names,"product"names"and"logos"may"be"the"trademarks"or"registered"trademarks" of"their"respective"owners." " 14."Limitation"period" !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!" 14.1."Any"claims"which"the"Customer"may"have"for"reason"of"defects"in"quality"or"defects"in"title" (section"7"hereof)"shall"become"statute!barred"two"years"after"delivery."In"the"event"that"a"defect"in" title"consists"of"a"material"right"of"any"third"party"entitling"such"third"party"to"claim"the"surrendering" of"the"software,"the"statutory"periods"of"limitation"shall"apply." " 14.2."Any"other"claims"which"the"Customer"may"have"under"contractual"aspects"or"from"an" obligatory"relationship"(section"311,"subsection"2"of"the"German"Civil"Code"[§311,"Abs."2"BGB])"shall" become"statute!barred"one"year"after"the"statutory"date"of"commencement"of"the"period"of" limitation."Claims"shall"at"the"latest"become"statute!barred"on"expiration"of"the"maximum"statutory" periods"(section"199,"subsection"3,"subsection"4"of"the"German"Civil"Code"[§"199"Abs."3,"Abs."4"BGB])." " 15."Miscellaneous"provisions" !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!" 15.1."All"legal"relationships"arising"under"this"contractual"relationship"shall"be"subject"to"the"laws"of" the"Federal"Republic"of"Germany"excluding"the"unified"law"governing"the"international"purchase"of" movable"goods"and"the"law"governing"international"contracts"of"purchase"for"movable"goods." " 15.2."The"place"of"jurisdiction"for"all"disputes"arising"hereunder"shall"be"Berlin"in"as"far"as"the" Customer"is"a"merchant"or"has"a"legal"standing"equivalent"to"this"or"in"the"event"that"the"Customer" has"his"place"of"business"or"his"branch"abroad." " 15.3."This"Agreement"is"governed"by"the"laws"of"Germany,"without"reference"to"conflict"of"laws" principles."The"application"of"the"United"Nations"Convention"of"Contracts"for"the"International"Sale"of" Goods"is"expressly"excluded." " 15.4."This"Agreement"sets"forth"all"rights"for"the"user"of"the"Software"and"is"the"entire"agreement" between"the"parties." " �15.5."In"the"event"that"any"provision"hereof"is"or"becomes"invalid"or"in"the"event"that"the"contract"is" incomplete,"the"validity"of"the"remaining"provisions"shall"not"be"affected"thereby."The"parties"hereto" shall"replace"such"invalid"provision"with"a"provision"that"reflects"the"meaning"and"purpose"in"a"lawful" sense"of"such"invalid"provision"in"as"far"as"possible."This"provision"shall"also"apply"to"any"loopholes." �
nw/36.txt
KEPWARE SOFTWARE END USER LICENSE AGREEMENT By clicking the accept box, or using the Software referenced in this Agreement, you have agreed to the terms and conditions of this Software End-User License Agreement. This End-User License Agreement (“Agreement”) governs the use of the Kepware software product(s) described on the related Quote and any Updates (as defined below) to that software (collectively, the “Software”) by you as an end user (“Licensee”) of the Software and is a binding agreement between Licensee and Kepware, a business division of PTC Inc., or, if the purchase was made in a country specified on schedule a to this agreement, the affiliate specified on Schedule A located at https://www.kepware.com/support/ (as applicable, “Kepware”) as the licensor (“Licensor”). This Agreement shall be binding upon and inure to the benefit of Licensor and Licensee and their respective successors and permitted assigns. Licensee shall not assign or transfer this Agreement or the license rights granted hereunder without the prior written consent of Licensor. As used herein, the term “Updates” means any correction, modification, revision, addition or supplement to the Software that improves the manner in which the Software performs existing functions that is provided by Licensor as part of an active Support Services contract and that Licensor makes generally available to its Support Services customers. (1) Ownership of Software. Licensee is being provided a limited license to use the Software in the manner described below. PTC Inc. and its licensors are the sole owners of the Software and any and all related documentation and of all copyright, trade secret, patent, trademark and other intellectual or industrial property rights in and to the Software. Licensee acknowledges that the license granted hereunder does not provide Licensee with title to or ownership of the Software or any copies thereof, but only a right of limited use consistent with the express terms and conditions of this Agreement. Licensee shall have no rights to the source code for the Software Nothing herein shall be deemed to constitute a sale of the original or any copies of the Software. (2) License Grant and Unauthorized Use. (a) License Grant. Licensor grants to Licensee and Licensee hereby accepts from Licensor a non-exclusive and non-transferable right and license to concurrently access the Software on that number of computers, processors, servers, terminals and other computer equipment (“Physical Machines”) or software-based virtual servers, computers and processors (“Virtual Machines”) equal to the number of licenses purchased by Licensee (pursuant to the attached or related Quote) for the duration of the license term specified on the Quote (if no term is specified, then the term shall be perpetual) and solely for Licensee’s internal business purposes. For example, if Licensee has a license to access and use the Software on three (3) machines, Licensee may access and use the Software on only three (3) total Physical Machines and/or Virtual Machines at any one time. (b) Additional License Terms for Virtual Machines. (i) Licensee must purchase a separate license for each instance of a Virtual Machine on which the Software operates. (ii) If Licensee installs the Software on the host operating system of a Physical Machine in a computer network where Virtual Machines are operating, then Licensee must hold a valid, fully paid license for such host operating system and each operating Virtual Machine. (c) Trial Version of Software. The trial version of the Software made available by Licensor (the “Trial Software”) has no limitations on the installation timeline. Such Trial Software may be installed on Licensee’s computer network, free of charge, provided however, Licensee shall use 400 Congress Street, Portland, ME 04101 | +1 888-KEPWARE | kepware.com � such Trial Software solely for non-production testing and evaluation purposes with each such test and evaluation session being limited to a two hour period. (d) Unauthorized Use. Licensee may not: (i) attempt to circumvent any security device or licensing restriction contained in the Software or violate the permitted non-production uses of backup licenses for Software purchased for the specific purpose of a disaster recovery event; (ii) sell, assign, loan, rent, lease, sublease, sublicense, transfer, translate, modify, alter, adapt, decompile or disassemble the Software, modify or create derivative works based on the Software or otherwise reverse engineer the Software; (iii) remove, alter, cover or obfuscate any copyright, trade secret, patent, trademark, logo, proprietary and/or other legal notice placed on or displayed by the Software and its documentation, whether in machine language or human readable form; or (iv) copy or otherwise reproduce the Software in whole or in part. Failure to comply with this Section 2 or using the Software in any way except as expressly authorized herein will result in an immediate and automatic termination of Licensee’s license and will make available to Licensor all other legal and equitable remedies. (3) Third Party Software. The Software licensed hereunder may include certain third party software products (“Third Party Software”) which require additional notices, disclaimers and/or terms and conditions. Such additional Third Party Software notices, disclaimers and/or terms and conditions are included in the product installation folder and included with the CD of the Software and, to the extent applicable, are hereby made a part of and are incorporated by reference into this Agreement. By accepting this Agreement, Licensee is also accepting the applicable notices, disclaimers, terms and conditions, if any, set forth therein. (4) Limited Warranty. Licensor warrants that during the “Warranty Period,” the Software shall substantially conform to the product documentation. The Warranty Period for perpetual licenses is a period of ninety (90) days from the date of initial shipment of the Software and for subscription licenses is the same as the term of the subscription. Licensor’s entire liability and Licensee’s exclusive remedy for any breach by Licensor of the warranty above shall be, at Licensor’s sole discretion, either to (a) replace the applicable Software, or (b) use diligent efforts to repair the Software or (c) refund the applicable prepaid license fees. Notice of the error must be received by Licensor within the Warranty Period. EXCEPT AS EXPRESSLY STATED IN THIS SECTION, LICENSOR DISCLAIMS (AND LICENSEE WAIVES) ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE AND FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, FOR THE SOFTWARE AND ALL CHANNEL SALES PROGRAM WRITTEN MATERIALS AND/OR ANY WARRANTY THAT LICENSEE WILL ACHIEVE ANY PARTICULAR RETURN ON INVESTMENT. LICENSEE IS SOLELY RESPONSIBLE FOR ANY RESULTS OBTAINED FROM USING THE SOFTWARE, INCLUDING THE ADEQUACY OF INDEPENDENT TESTING OF RELIABILITY, SECURITY AND ACCURACY OF ANY ITEM DESIGNED USING SOFTWARE. LICENSOR DOES NOT WARRANT THAT THE OPERATION OR OTHER USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE OR WILL NOT CAUSE DAMAGE OR DISRUPTION TO LICENSEE’S DATA, COMPUTERS OR NETWORKS. The warranty provisions above state the entire liability of Licensor, its subsidiaries and affiliates, and each of their respective directors, officers, employees or agents, with respect to the Software and Support Services, including (without limitation) any liability for breach of warranty. (5) Limitation of Liability. LICENSEE UNDERSTANDS AND AGREES THAT LICENSOR’S CUMULATIVE LIABILITY TO LICENSEE FOR ANY AND ALL LOSSES, CLAIMS, SUITS, CONTROVERSIES, BREACHES AND/OR DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT AND/OR THE SOFTWARE, REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY, SHALL BE LIMITED TO (I) FOR LICENSES 400 Congress Street, Portland, ME 04101 | +1 888-KEPWARE | kepware.com � PURCHASED ON A PERPETUAL BASIS, THE FEES PAID BY LICENSEE FOR THE SOFTWARE OR SUPPORT SERVICES THAT GAVE RISE TO THE CLAIM, AND (II) FOR LICENSES PURCHASED ON A TERM OR SUBSCRIPTION BASIS, EXCEED THE FEES PAID BY LICENSEE IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO DAMAGES. IN NO EVENT SHALL LICENSOR AND ITS AFFILIATES, RESELLERS, DISTRIBUTORS AND LICENSORS OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, PUNITIVE, INCIDENTAL OR SIMILAR DAMAGES OF ANY KIND WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTIONS, LOSS OF BUSINESS DATA, LOSS OF USE DAMAGES, LOSS OF GOODWILL, LOSS OF BUSINESS OPPORTUNITY, LOSS OF SALES, LOSS OF REPUTATION OR LOSS OF ANTICIPATED SAVINGS, ANY LOSS OR INACCURACY OF DATA OR BUSINESS INFORMATION OR FAILURE OR INADEQUACY OF ANY SECURITY SYSTEM OR FEATURE, OR ANY OTHER PECUNIARY LOSS, ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF LICENSOR HAS BEEN ADVISED OF, OR OTHERWISE SHOULD HAVE BEEN AWARE OF, THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE LEGAL THEORY OR BASIS FOR SUCH CLAIM. SOME JURISDICTIONS DO NOT ALLOW DISCLAIMERS OF IMPLIED WARRANTIES OR LIMITATIONS ON LIABILITY, SO THESE LIMITATIONS MAY NOT APPLY TO LICENSEE. (6) Support and Maintenance. A copy of Licensor’s Software Support Services terms are available at https://www.kepware.com/support/technical-support/. Licensor and/or its authorized subcontractors shall provide Support Services in accordance with these terms for a time period of twelve (12) months or for such other period specified in Licensee’s order for Support Services or a subscription license accepted by Licensor for Support Services (a “Support Services Plan”). Licensee understands and agrees that unless it has (a) purchased software or technical support services through one of Licensor’s authorized value-added Channel Sales Program Participants or Distributors, or (b) elected to purchase a Software Support Services Agreement by executing and delivering to Licensor the Software Support Services Agreement referenced above and paying to Licensor the applicable annual Software Support fee, Licensee will not be provided with any Updates to the Software or technical support, or correction of errors. (6) Miscellaneous. (a) Orders and Taxes. Licensee shall be obligated to pay the applicable fees for the Software and/or Support Services ordered. All fees and other charges due hereunder are due and payable in full within thirty (30) days of the date of the invoice to Licensee, or later if specified on the invoice. Licensee shall be responsible for all sales, use, VAT, transfer and other taxes and duties imposed by any federal, state, municipal or other governmental authority relating to the Software granted or the Support Services provided hereunder, exclusive, however, of taxes based on the net income of Licensor. CUSTOMER MAY NOT CANCEL AN ORDER ONCE LICENSOR HAS ACCEPTED IT. Other than the line items that serve to order Software and/or Support Services, in no event shall any other terms of any Licensee purchase order modify or become part of this Agreement or become binding on Licensor. (b) Termination. This Agreement and all Software and the provision of Support Services for Software will terminate thirty (30) days after written notice from Kepware specifying a breach of this Agreement, if such breach is not, within that thirty (30) day period, remedied to Kepware’s reasonable satisfaction. (c) Governing Law. No provision of this Agreement shall be amended, supplemented or waived except by written agreement signed by the parties hereto. If purchased in the United States, this Agreement is governed by the laws of the Commonwealth of Massachusetts, without regard to its conflicts of laws principles. If the Licensee has purchased a license to any Software outside of the United States, the following is set forth at https://www.kepware.com/support/: the Licensor entity granting the license; (notwithstanding Section 6(c) of this Agreement) the governing law and jurisdiction; and any additional or alternate terms required under local law. (d) Entire Agreement. This Agreement sets forth the entire understanding and agreement 400 Congress Street, Portland, ME 04101 | +1 888-KEPWARE | kepware.com � between the parties with respect to the subject matter set forth herein and supersedes any prior or contemporaneous discussions, understandings, orders, requests or statements regarding such subject matter, other than the pricing and payment terms contained on the attached or related invoice. (e) Compliance with Laws. Each party shall be responsible for its own compliance with applicable laws, regulations and other legal requirements relating to the conduct of its business and this Agreement. Further, Licensee represents and warrants that it will use the Software, as well as related technology and services, in full compliance with applicable laws and regulations. Licensee hereby warrants and represents that neither Licensee nor any of Licensee’s directors, officers or affiliates are listed on the U.S. Commerce Department’s Denied Persons List, Entity List, or Unverified List, the U.S. State Department’s Nonproliferation Sanctions List, the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons or the Sectoral Sanctions Identifications (SSI) List (collectively, the “Restricted Party Lists”). Licensee acknowledges and agrees that the Software and related technical data and services are subject to the export control laws and regulations of the United States and any country in which the Software or related technical data or services are developed, received, downloaded, used, or performed. Further, Licensee understands and acknowledges that the release of software or technology to a non-U.S. person within the United States or elsewhere abroad is deemed to be an export to the non-U.S. person’s home country or countries, and that the transfer of the Software or related technology to Licensee’s employees, affiliates, or any third party, may require a license from the United States Government and possibly other applicable authorities. Licensee shall be solely responsible for determining whether Licensee’s use or transfer of the Software or related technology or services requires an export license or approval from U.S. or other authorities, and for securing all required authorizations. (f) Marketing. Licensee agrees that while this Agreement is in effect, Licensor shall be authorized to identify Licensee as a customer/end-user of Licensor software and services (as applicable) in public relations and marketing materials. (g) Government Licensees. If Licensee is a United States Governmental entity, Licensee agrees that the Software are “commercial computer software” under the applicable federal acquisition regulations and are provided with the commercial license rights and restrictions described elsewhere herein. If Licensee is acquiring the Software under a United States government contract, Licensee agrees that Licensee will include all necessary and applicable restricted rights legends on the Software to protect Licensor’s proprietary rights under the FAR or other similar regulations of other federal agencies. Licensee agrees to always include such legends whenever the Software are, or are deemed to be, a deliverable under a government contract. 400 Congress Street, Portland, ME 04101 | +1 888-KEPWARE | kepware.com �
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BQE Software Inc. End User License Agreement IMPORTANT: THIS SOFTWARE END USER LICENSE AGREEMENT ("EULA") IS A LEGAL AGREEMENT BETWEEN YOU AND BQE SOFTWARE INC. READ IT CAREFULLY BEFORE COMPLETING THE INSTALLATION PROCESS AND USING THE SOFTWARE. IT PROVIDES A LICENSE TO USE THE SOFTWARE AND CONTAINS WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. BY INSTALLING AND USING THE SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE SOFTWARE AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, DO NOT INSTALL THE SOFTWARE AND RETURN THE SOFTWARE TO YOUR PLACE OF PURCHASE FOR A FULL REFUND. THIS EULA SHALL APPLY ONLY TO THE SOFTWARE SUPPLIED BY BQE SOFTWARE INC. HEREWITH REGARDLESS OF WHETHER OTHER SOFTWARE IS REFERRED TO OR DESCRIBED HEREIN. 1. Definitions (a) "Education Version" means a version of the Software, so identified, for use by students and faculty of educational institutions, only. (b) "Not For Resale (NFR) Version" means a version, so identified, of the Software to be used to review and evaluate the Software, only. (c) "BQE" means BQE Software Inc. and its licensors, if any. (d) "Software" means only the BQE’s software program(s) and third party software programs, in each case, supplied by BQE herewith, and corresponding documentation, associated media, printed materials, and online or electronic documentation. (e) "Trial Version" means a version of the Software, so identified, to be used only to review, demonstrate and evaluate the Software for a limited time period. The Trial Version may have limited features, may lack the ability for the end-user to save the end product, and will cease operating after a predetermined amount of time due to an internal mechanism within the Trial Version. 2. License Grants (a) You may install and use the Software on a single computer; OR install and store the Software on a storage device, such as a network server, used only to install the Software on your other computers over an internal network, provided you have a license for each separate computer on which the Software is installed and run. A license for the Software may not be shared, installed or used concurrently on different computers. (b) In the event the Software is distributed along with other BQE’s software products as part of a suite of products, the license of the suite is licensed as a single product and none of the products in the suite, including the Software, may be separated for installation or use on more than one computer. (c) You may make one copy of the Software in machine-readable form solely for backup purposes. You must reproduce on any such copy all copyright notices and any other proprietary legends on the original copy of the Software. (d) Education Versions may not be used for, or distributed to any party for, any commercial purpose. (e) You agree that BQE may audit your use of the Software for compliance with these terms at any time, upon reasonable notice. (f) For BQE’s Web based software programs only: With respect to the BQE’s Web based software programs, you may modify the HTML, CFML, XHTML, XML, JavaScript or similar source code form of those portions of such software programs that are identified as sample code in the accompanying documentation solely for the purposes of designing, developing and testing websites and website applications developed using BQE’s software programs. However, you are permitted to copy and distribute the sample code (modified or unmodified) only if all of the following conditions are met: (1) you distribute the sample code with your application; (2) you do not include the sample code in any product or application designed for website development; and (3) you do not use BQE’s name, logos or other BQE trademarks to market your application. You agree to indemnify, hold harmless and defend BQE from and against any loss, damage, claims or lawsuits, including attorney's fees that arise or result from the use or distribution of your application. (g) Your license rights under this EULA are non-exclusive. 3. License Restrictions (a) Other than as set forth in Section 2, you may not make or distribute copies of the Software, or electronically transfer the Software from one computer to another or over a network. (b) You may not alter, merge, modify, adapt or translate the Software, or decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form. (c) Unless otherwise provided herein, you may not rent, lease, or sublicense the Software. �(d) Other than with respect to a Trial Version or a Not For Resale Version of the Software, you may permanently transfer all of your rights under this EULA only as part of a sale or transfer, provided you retain no copies, you transfer all of the Software (including all component parts, the media and printed materials, any upgrades, this EULA, and the serial numbers), and the recipient agrees to the terms of this EULA. If the Software is an upgrade, any transfer must include all prior versions of the Software from which you are upgrading. You may retain no copies of the Software. You may not sell or transfer any Software purchased under a volume discount. You may not sell or transfer any Trial Version or Not For Resale Version of the Software. If the copy of the Software is licensed as part of the Suite (as defined above), the Software shall be transferred only with and as part of the sale or transfer of the whole Suite and not separately. (e) Unless otherwise provided herein, you may not modify the Software or create derivative works based upon the Software. (f) Unless otherwise provided herein, you shall not (A) in the aggregate, install or use more than one copy of the Trial Version of the Software, (B) download the Trial Version of the Software under more than one username, (C) alter the contents of a hard drive or computer system to enable the use of the Trial Version of the Software for an aggregate period in excess of the trial period for one license to such Trial Version, and (D) use the Trial Version of the Software for a purpose other than the sole purpose of determining whether to purchase a license to a commercial or education version of the software; provided, however, notwithstanding the foregoing, you are strictly prohibited from installing or using the Trial Version of the Software for any commercial training purpose. (g) You may only use the Not for Resale Version of the Software to review and evaluate the Software. (h) You may not export the Software into any country prohibited by the United States Export Administration Act and the regulations thereunder. (i) You may receive the Software in more than one medium but you shall only install or use one medium. Regardless of the number of media you receive, you may use only the medium that is appropriate for the server or computer on which the Software is to be installed. (j) You are required to pay an annual maintenance fee to be eligible for the continued use of the software beyond the initial expiration date. Failure to pay the annual maintenance fee will result in an automatic lock on the usage of the software and will constitute as a breach of this EULA. (k) In the event that you fail to comply with this EULA, BQE may terminate the license and you must destroy all copies of the Software (with all other rights of both parties and all other provisions of this EULA surviving any such termination). 4. Upgrades If this copy of the Software is an upgrade from an earlier version of the Software, it is provided to you on a license exchange basis. You agree by your installation and use of such copy of the Software to voluntarily terminate your earlier EULA and that you will not continue to use the earlier version of the Software or transfer it to another person or entity unless such transfer is pursuant to Section 3. 5. Prior Same Version License If this copy of the Software is licensed as part of the Suite (as defined above), and you have a prior license to the same version, and the Suite was licensed to you with a discount based, in whole or in part, on your prior license to the same version, the Software is provided to you on a license exchange basis. You agree by your installation and use of this copy of the Software to voluntarily terminate your EULA with respect to such prior license and that you will not continue to install or use such prior license of the Software or transfer it to another person or entity. 6. Ownership The foregoing license gives you limited license to use the Software. BQE and its suppliers retain all right, title and interest, including all copyright and intellectual property rights, in and to, the Software (as an independent work and as an underlying work serving as a basis for any application you may develop), and all copies thereof. All rights not specifically granted in this EULA, including Federal and International Copyrights, are reserved by BQE and its suppliers. 7. LIMITED WARRANTY AND DISCLAIMER (a) Except with respect to the Trial Version and Not For Resale Version of the Software, BQE warrants that, for a period of thirty (30) days from the date of delivery (as evidenced by a copy of your receipt): (i) when used with a recommended hardware configuration, the Software will perform in substantial conformance with the documentation supplied with the Software; and (ii) the physical media on which the Software is furnished will be free from defects in materials and workmanship under normal use. (b) BQE PROVIDES NO REMEDIES OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, FOR THE TRIAL VERSION AND THE NOT FOR RESALE VERSION OF THE SOFTWARE. THE TRIAL VERSION AND THE NOT FOR RESALE VERSION OF THE SOFTWARE ARE PROVIDED "AS IS". (c) EXCEPT AS SET FORTH IN THE FOREGOING LIMITED WARRANTY WITH RESPECT TO SOFTWARE OTHER THAN THE TRIAL VERSION AND NOT FOR RESALE VERSION, BQE AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND �REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALSO, THERE IS NO WARRANTY OF NON-INFRINGEMENT AND TITLE OR QUIET ENJOYMENT. BQE DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. NO RIGHTS OR REMEDIES REFERRED TO IN ARTICLE 2A OF THE UCC WILL BE CONFERRED ON YOU UNLESS EXPRESSLY GRANTED HEREIN. THE SOFTWARE IS NOT DESIGNED, INTENDED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION, THE DESIGN, CONSTRUCTION, MAINTENANCE OR OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS. BQE SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES. (d) IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SOFTWARE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO THIRTY (30) DAYS FROM THE DATE OF DELIVERY. (e) NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY BQE, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN. (f) (USA ONLY) SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE. 8. Exclusive Remedy Your exclusive remedy under the preceding is to return the Software to the place you acquired it, with a copy of your receipt and a description of the problem. Provided that any non-compliance with the above warranty is reported in writing to BQE no more than thirty (30) days following delivery to you, BQE will use reasonable commercial efforts to supply you with a replacement copy of the Software that substantially conforms to the documentation, provide a replacement for defective media, or refund to you your purchase price for the Software, at its option. BQE shall have no responsibility if the Software has been altered in any way, if the media has been damaged by misuse, accident, abuse, modification or misapplication, or if the failure arises out of use of the Software with other than a recommended hardware configuration. Any such misuse, accident, abuse, modification or misapplication of the Software will void the warranty above. THIS REMEDY IS THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO YOU FOR BREACH OF EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SOFTWARE AND RELATED DOCUMENTATION. 9. LIMITATION OF LIABILITY (a) NEITHER BQE NOR ITS SUPPLIERS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SOFTWARE AND BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF BQE OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. (b) BQE'S TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE GREATER OF $200 OR THE AMOUNT PAID BY YOU FOR THE SOFTWARE THAT CAUSED SUCH DAMAGE. (c) (USA only) SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE. (d) THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO THE WARRANTIES AND DISCLAIMERS ABOVE AND ALL OTHER ASPECTS OF THIS EULA. 10. Basis of Bargain The Limited Warranty and Disclaimer, Exclusive Remedies and Limited Liability set forth above are fundamental elements of the basis of the agreement between BQE and you. BQE would not be able to provide the Software on an economic basis without such limitations. Such Limited Warranty and Disclaimer, Exclusive Remedies and Limited Liability inure to the benefit of BQE’s licensors. 11. U.S. GOVERNMENT RESTRICTED RIGHTS LEGEND This Software and the documentation are provided with "RESTRICTED RIGHTS" applicable to private and public licenses alike. Without limiting the foregoing, use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in this EULA. Manufacturer: BQE Software Inc., 3825 Del Amo Blvd, Torrance, CA 90503. �12. (Outside of the USA) Consumer End Users Only The limitations or exclusions of warranties and liability contained in this EULA do not affect or prejudice the statutory rights of a consumer, i.e., a person acquiring goods otherwise than in the course of a business. The limitations or exclusions of warranties, remedies or liability contained in this EULA shall apply to you only to the extent such limitations or exclusions are permitted under the laws of the jurisdiction where you are located. 13. Third Party Software The Software may contain third party software that requires notices and/or additional terms and conditions. Such required third party software notices and/or additional terms and conditions are located at http://www.bqe.com and are made a part of and incorporated by reference into this EULA. 14. General This EULA shall be governed by the internal laws of the State of California, without giving effect to principles of conflict of laws. You hereby consent to the exclusive jurisdiction and venue of the state courts sitting in Los Angeles County, California or the federal courts in the Southern District of California to resolve any disputes arising under this EULA. In each case this EULA shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods. This EULA contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written. You agree that any varying or additional terms contained in any purchase order or other written notification or document issued by you in relation to the Software licensed hereunder shall be of no effect. The failure or delay of BQE to exercise any of its rights under this EULA or upon any breach of this EULA shall not be deemed a waiver of those rights or of the breach. No BQE dealer, agent or employee is authorized to make any amendment to this EULA. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law that provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect. All questions concerning this EULA shall be directed to: BQE Software Inc., 3825 Del Amo Blvd, Torrance, CA 90503, Attention: Legal Department. BillQuick and other trademarks contained in the Software are trademarks or registered trademarks of BQE Software Inc. in the United States and/or other countries. Third party trademarks, trade names, product names and logos may be the trademarks or registered trademarks of their respective owners. You may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Software. This EULA does not authorize you to use BQE’s or its licensors’ names or any of their respective trademarks. �
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PLEASE READ THIS END USER LICENSE AGREEMENT (“AGREEMENT”). BY DOWNLOADING OR INSTALLING ARISTA SOFTWARE (“SOFTWARE”), OR BY USING ARISTA EQUIPMENT THAT CONTAINS THE SOFTWARE (“EQUIPMENT”), YOU AND ANY ENTITY YOU REPRESENT (“CUSTOMER”) AGREE TO BE BOUND BY THIS AGREEMENT WITH ARISTA NETWORKS, INC. (“ARISTA”). IF CUSTOMER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN DO NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE. The following terms govern Customer’s use of any Software except to the extent particular Software (a) is the subject of a separate written agreement between Customer and Arista; or (b) includes or references a separate license agreement. If any Software is identified in a Purchase Order, invoice or proof of entitlement issued by Arista (collectively, “Proof of Entitlement”), Customer’s license to such Software is subject to any additional terms and conditions contained in the Proof of Entitlement, including, without limitation, the term of the license (“License Term”), applicable license fees (“Fees”), applicable devices or types of devices (“Applicable Devices”) and limitations with respect to use on a single hardware device, number of devices under management, number of ports or other quantitative limits (“Quantitative Limits”). The Software provided or made available to Customer may include features or functionality (e.g., the E, V and Z features of EOS) that Customer may not use unless Customer purchases a separate license to such features and functionality. Information about the license terms applicable to the Software (including, without limitation, EOS, EaaS, CloudVision and CloudVision Lite) is available on the Arista website at https://www.arista.com/en/support/product-documentation/eos-featurelicensing. Limited License Grant. With respect to the specific program modules, feature set(s) or feature(s) of the Software identified in any Proof of Entitlement, and subject to Customer’s compliance with the Limitations and Restrictions section of this Agreement, including, without limitation, Customer’s payment of any applicable Fees, Arista grants to Customer a limited, revocable, nonexclusive, nonsublicensable and nontransferable license, during the License Term to: (1) download, install and use such Software consistent with the use and restrictions set forth in the applicable Proof of Entitlement and only for Customer’s internal business purposes; (2) reproduce, copy, modify, and create derivative works of any such Software that is provided in source code format, only for Customer’s internal business purposes; provided, however, that if any Software is provided in source code format, Customer shall not create any derivative works of the Software that contain Open Source Software nor shall Customer use the Software or portion thereof to merge with, link to, make function calls to, or share data structures with any Open Source Software, if any such combination or use of the Software would require the Software to be made available royalty free or in source code form; (3) use the Software in conjunction with Third Party Software in a manner consistent with the terms of this Agreement; (4) review the Software including, without limitation, unpacking archives (such as ZIP, SWI and RPM files provided by Arista), and accessing underlying operating system facilities; and (5) extend the Software provided in source code format and linking Customer-developed software to the Software. As used in this Agreement, “Open Source Software” means any software made available by a third party under a license approved by the Open Source Initiaitve, or any substantially similar license. Limitations and Restrictions. Except as otherwise expressly provided in this Agreement, the foregoing license grant excludes any right to, and Customer shall not: (1) sell, transfer, assign or sublicense the Software or Customer’s license rights under this Agreement, whether voluntarily or by operation of law, to any third party, directly or indirectly, and any such attempted transfer, assignment or sublicense shall be void; (2) use or allow use of the Software on any hardware other than the Equipment or Applicable Devices; (3) modify, reproduce, decompile, decrypt, disassemble, reverse engineer, create derivative works of or otherwise reduce to humanreadable form any Software (other than Software that is provided in source code format); gain access to trade secrets or confidential information in the Software; circumvent any copy-protection or license enforcement; or attempt to do any of the foregoing, except to the extent expressly permitted by applicable law; (4) combine, commingle, or integrate any Software with Open Source Software or incorporate Open Source Software into any Software that may add any additional Open Source Software requirements, obligations, or licensing terms to the Software; (5) disclose to any third party any results of benchmarking or other testing generated in connection with Customer’s use of Software, including without limitation any comparisons of the Software or Equipment with any other products; (6) provide a third party with a copy of or access to the Software (including, without limitation, source code) (if Customer does so, Customer will be responsible to Arista for all acts of such Standard EULA – Rev. 2016 07 01 �third party); (7) remove from the Software (or fail to include in any copy) any readme files, notices, headers, disclaimers, marks or labels; and (8) use or allow use of the Software in violation of any applicable law or regulation or to support or facilitate any illegal activity. Customer shall be liable to Arista for any damages, injury or harm caused to Arista as a result of Customer’s violation of any of these limitations or restrictions. Evaluation License. Arista may make certain Software available in object code form to end users only for evaluation, training or other limited non-commercial purposes without charging a Fee (“Evaluation License”). Where Arista has provided an Evaluation License, all of the terms of this End User License Agreement shall apply except that (i) Customer’s license rights shall be limited to the evaluation of that Software, (ii) Customer shall not be required to pay a Fee for the evaluation of that Software and (iii) Arista shall have the right to revoke the license to the Software at any time and for any reason. Updates. The terms and conditions of this Agreement shall apply to any upgrades, updates, bug fixes or modified versions (collectively, “Updates”) or additional copies of the Software. Notwithstanding any other provision of this Agreement: (1) Customer has no license or right to use any such Updates or additional copies unless Customer, at the time of acquiring them, already holds a valid license to the Software associated with such Updates and has paid any required Fees for such Software; and (2) use of additional copies of the Software is limited to backup purposes only. By downloading or using any Updates, Customer’s rights with respect to the Updates are subject to the terms of the latest revision of this Agreement posted at the time of receipt of the Updates, Arista’s then-current policies and procedures, and Customer’s Proof of Entitlement for the Software associated with such Updates. Proprietary Notices. Customer agrees to maintain and reproduce all copyright and other proprietary notices on all copies, in any form, of the Software in the same form and manner that such copyright and other proprietary notices are included on the Software. Except as expressly authorized in this Agreement, Customer may make such backup copies of the Software as may be necessary for Customer’s lawful use, provided Customer affixes to such copies all copyright, confidentiality, and proprietary notices that appear on the original. Reservation of Rights. The Software and documentation are owned by Arista and its licensors, and is protected by copyright, patent, trademark, and trade secret laws of the United States and other jurisdictions, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. As between Customer and Arista, the Software, including without limitation intellectual property rights therein and thereto, are the sole and exclusive property of Arista or its subsidiaries or affiliated companies and/or its third-party licensors. All Software is licensed to Customer, not sold. Arista reserves all rights not expressly granted in this Agreement, and no rights or licenses shall be deemed or interpreted to be granted or transferred hereunder, whether by implication, estoppel, or otherwise. Fees and Payments. Unless otherwise specified in the Proof of Entitlement, any license or subscription Fees with respect to the Software are due and payable no later than thirty (30) days after the date of invoice or first use of the Software by Customer, whichever is earlier. Late invoices shall be subject to interest of 1.5% per month (or the maximum rate permitted by law if less) plus any expenses of collection. Arista reserves the right to suspend and/or terminate access to the Software if any Fees payable hereunder are past due. Such suspension or termination shall not relieve Customer from its obligation to pay all amounts due under this Agreement. Taxes. The Fees do not include any foreign, federal, state or local taxes, or any sales, use, excise, ad valorem, value-added, withholding or other taxes or duties that may be applicable to the purchase of Software (collectively, “Taxes”). Fees pursuant to this Agreement may not be reduced to reflect any Tax or other mandatory payment to government agencies. When Arista has the legal obligation to collect Taxes related to any invoice, unless Customer provides Arista with a valid and acceptable tax exemption certificate prior to issuance of said invoice, the appropriate amount shall be added to Customer’s invoice and paid by Customer. If a tax authority subsequently finds that any Tax payment related to any sale or service to Customer was insufficient and requires additional payment by Arista, Arista will make such payment and Customer will reimburse Arista for such additional Tax payments (including, without limitation, any interest, levies, and Standard EULA – Rev. 2016 07 01 �penalties). Arista will not be responsible for any Taxes or other amount assessed to Customer by any government agency based on Customer’s net income, gross revenue, or for any other reason. Third Party Software. The Software may be distributed alongside certain third party software ("Third Party Software", together with the Software, the “Package”) provided under separate license terms (the "Third Party Terms"). Information regarding Third Party Software provided to Customer by Arista is forth in more detail on the Arista web site at http://www.arista.com/en/gpl and through the Software’s help menu. Notwithstanding licenses granted in this Agreement, Customer acknowledges that certain components of the Software may be covered by Open Source Software licenses of third parties (“Open Source Components”). Arista shall provide a list of Open Source Components for a particular version of the Software upon Customer’s request. To the extent required by the open source licenses applicable to the Open Source Components, the terms of such licenses will apply to such Open Source Components in lieu of the terms of this Agreement. To the extent the terms of the open source licenses applicable to an Open Source Component prohibit any of the restrictions in this Agreement with respect to such Open Source Component, such restrictions will not apply to such Open Source Component. To the extent the terms of the open source licenses applicable to the Open Source Components require Arista to make an offer to provide source code or related information in connection with Open Source Components, such offer is hereby made. Any request for source code or related information should be directed only to: www.arista.com/en/support/product-documentation/gpl.Customer acknowledges receipt of notices for the Open Source Components for the initial delivery of the Software. Protection of Information. Customer agrees that the Software and associated documentation, including, without limitation, the specific design and structure of individual programs, constitute trade secrets and/or copyrighted material of Arista. Customer shall not disclose, provide, or otherwise make available such trade secrets or copyrighted material in any form to any third party without the prior written consent of Arista. Customer shall implement reasonable security measures to protect such trade secrets and copyrighted material. Commercial Item. The Software and associated documentation are “commercial items” as defined at FAR 2.101 comprised of “commercial computer software” and “commercial computer software documentation” as those terms are used in FAR 12.212. Consequently, regardless of whether Customer is United States Government or a department or agency thereof, Customer shall acquire only those rights with respect to the Software and associated documentation that are set forth in this Agreement. Term and Termination. This Agreement is effective until terminated. Customer may terminate this Agreement at any time by destroying all copies of Software including, without limitation, any documentation. Customer’s license rights under this Agreement will terminate immediately without notice from Arista if Customer fails to comply with any provision of this Agreement. If Customer’s Proof of Entitlement for any Software states that the license for that Software is “Perpetual,” then the License Term applicable to that Software is perpetual, subject only to termination for nonpayment of Fees or other breach of this Agreement. If Customer’s Proof of Entitlement for any Software states that the license for that Software is a subscription (“Subscription Software”), then the License Term applicable to that Software is for the time period identified in such Proof of Entitlement, subject to early termination for nonpayment of applicable Fees or other breach of this Agreement. In addition, with respect to any Subscription Software, this Agreement, and the license rights afforded hereunder, shall terminate with respect to such Subscription Software upon the earlier of the completion of any License Term for such Subscription Software or immediately upon the failure of Customer to pay any subscription Fees when due and owing to Arista. Upon termination or expiration of this Agreement for any reason, (a) Customer shall immediately cease using any Software and must destroy or return to Arista all copies of the Software and associated documentation in its possession or control; and (b) Customer shall promptly pay to Arista any amounts owed under this Agreement, including, without limitation, any unpaid Fees. Limited Software Warranty and Disclaimers. Subject to the terms and conditions of this Agreement, for any Software identified in a Proof of Entitlement, Arista warrants for a period of 90 days from the Start Date that (i) the media on which the Software is delivered will be free of defects in material and workmanship under normal authorized use consistent with the product instructions and (ii) the Software will perform substantially in accordance with Arista’s standard specifications. The sole and exclusive remedy of the Customer and the entire Standard EULA – Rev. 2016 07 01 �liability of Arista under this limited software warranty shall be (i) for Arista to replace the defective media, and (ii) at Arista’s option, to repair, replace or refund the Fees paid for such Software. This limited warranty extends only to the original purchaser. The “Start Date” shall mean the date when the Customer is granted access to the Software on the Arista website or when the Software is shipped from Arista’s facilities or from an authorized Arista reseller to Customer, as applicable. NOTWITHSTANDING THE FOREGOING, ANY SOFTWARE LICENSED UNDER AN EVALUATION LICENSE, ANY SOFTWARE THAT IS PROVIDED WITHOUT CHARGING ANY FEE, ANY MODIFIED SOFTWARE AND ANY THIRD PARTY SOFTWARE ARE FURNISHED “AS IS,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED. ARISTA DISCLAIMS ANY WARRANTY, REPRESENTATION OR ASSURANCE THAT THE SOFTWARE, OR ANY EQUIPMENT OR NETWORK RUNNING THE SOFTWARE, WILL OPERATE WITHOUT ERROR OR INTERRUPTION, OR WILL BE FREE OF VULNERABILITY TO INTRUSION OR ATTACK. CUSTOMER MAY NOT MAKE A WARRANTY CLAIM AFTER EXPIRATION OF THE 90-DAY WARRANTY PERIOD. No warranty will apply if the Arista product, Equipment or Software (i) has been altered, except by Arista; (ii) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by Arista in the applicable documentation; or (iii) has been subjected to unreasonable physical, thermal or electrical stress, misuse, negligence, or accident. In addition, the Arista products, Equipment and Software are not designed or intended for use in (i) the design, construction, operation or maintenance of any nuclear facility; (ii) navigating or operating aircraft; or (iii) any life-saving, life-support or life-critical medical equipment, and Arista disclaims any express or implied warranty of fitness for such uses. Customer is solely responsible for assessing the suitability of the Arista products, Equipment and Software for use in particular applications and for backing up its programs and data to protect against loss or corruption. Arista’s warranty obligations do not include installation support. EXCEPT AS SPECIFIED IN THE LIMITED SOFTWARE WARRANTY SET FORTH IN THIS AGREEMENT, ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR MEETING CUSTOMER’S REQUIREMENTS, NONINFRINGEMENT OF ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS, COMPATIBILITY OR INTEROPERABILITY WITH ANY HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY ARISTA, SATISFACTORY QUALITY, OR FREEDOM FROM INTERRUPTION OR ERROR, ARE HEREBY DISCLAIMED AND EXCLUDED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE 90-DAY WARRANTY PERIOD OR OTHERWISE TO THE MAXIMUM EXTENT PERMITTED BY LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, THE ABOVE LIMITATION MAY NOT APPLY TO CUSTOMER. THIS WARRANTY GIVES CUSTOMER SPECIFIC LEGAL RIGHTS, AND CUSTOMER MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM JURISDICTION TO JURISDICTION. Disclaimer of Liabilities. IN NO EVENT WILL ARISTA OR ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY LOST REVENUE OR PROFIT, LOSS OF DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF ARISTA OR ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, SUPPLIERS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE CUMULATIVE LIABILITY OF ARISTA, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, SUPPLIERS OR LICENSORS TO CUSTOMER, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNTS ACTUALLY PAID TO ARISTA BY CUSTOMER FOR THE SOFTWARE OR EQUIPMENT THAT IS THE SUBJECT OF SUCH CLAIM IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE WHEN NOTICE OF SUCH CLAIM WAS PROVIDED HEREUNDER. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE ABOVE-STATED WARRANTY FAILS OF ITS ESSENTIAL PURPOSE. BECAUSE SOME Standard EULA – Rev. 2016 07 01 �STATES OR JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO CUSTOMER. IN SUCH A CASE THE FOREGOING LIMITATION WILL BE APPLIED TO THE GREATEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW. Indemnification. Customer shall defend, indemnify, and hold Arista, its affiliates, directors, employees, and representatives harmless against any liabilities, losses, damages, claims, demands, fees, expenses and other costs of any kind or nature, including, without limitation, any attorney fees, expert fees, filing fees, judgments, and settlement amounts associated therewith, as and when incurred, arising out of or related to Customer’s use of the Software or any breach or alleged breach by Customer or any of Customer’s employees, representatives or agents of any obligation, representation or warranty contained in this Agreement. Export and Compliance with Laws. Customer shall comply with all applicable laws and regulations in connection with its use of the Software, as well as related technical information and data. Customer acknowledges that the Software may contain encryption or encryption technology and may be subject to certain controls and restrictions under U.S. and non-U.S. export, re-export and other laws, regulations and restrictions (collectively, the “Export Regulations”), including, without limitation, the U.S. Export Administration Act of 1979, as amended from time to time, and regulations promulgated thereunder, U.S. trade sanction programs, and other regulations promulgated by the Office of Foreign Assets Control, the Department of Commerce or other departments of the U.S. government. Customer agrees that it is solely responsible for obtaining and will obtain any necessary approvals or licenses from the applicable U.S. and foreign regulatory authorities. Without limiting the generality of the foregoing, Customer represents and warrants to Arista that it will not, directly or indirectly, export or re-export, supply or otherwise make available the Software or any related technical information or data to any person in violation of any Export Regulation, including, without limitation, re-exporting, supplying or otherwise making available the Software to any person on the U.S. Department of Commerce’s Denied Persons List or affiliated lists, on the U.S. Department of Treasury’s Specially Designated Nationals List, in a country on the State Sponsors of Terrorism list or on any U.S. export exclusion lists (collectively, the "Export Denial Lists"). Customer represents and warrants that it is not on any of the Export Denial Lists and that Customer is not using and will not use any Software or related technical information or data to further activities in support of development, manufacture or use of nuclear fuel or weapons, missiles, or chemical or biological weapons. Customer further certifies to Arista that Customer will immediately notify Arista if at any time those warranties and representation become no longer accurate. Trust-Based Licensing Model. Certain Software licensed under this Agreement does not include programmatic license enforcement. It is Customer’s responsibility to ensure compliance with this Agreement, including, without limitation, all applicable restrictions set forth herein or in any Proof of Entitlement. By adopting this trust-based licensing model, Arista does not waive its right to enforce any aspect of this Agreement at any time. Additionally, Arista’s knowledge of Customer’s use of the Software beyond the scope of the license shall not operate as a waiver of Arista’s rights to enforce the terms of this Agreement under any legal or equitable doctrine. Reports and Audit. Customer agrees to monitor its use of the Software and generate accurate, complete and auditable records of its level of use. If at any time Customer becomes aware that it has used any Software without paying any applicable Fees or in excess of the limitations set forth in any applicable Proof of Entitlement, Customer shall promptly notify Arista in writing of such use and pay any additional Fees for the type of the Software or the features or functionality thereof actually used by Customer. Customer agrees that Arista shall have the right, at Arista’s expense, to audit Customer’s use of the Software on at least 15 business days’ advance notice, during Customer’s normal business hours and no more frequently than twice each year, which audit shall not unreasonably interfere with Customer’s business. Survival. The license limitations and restrictions contained in the section entitled “Limitations and Restrictions” as well as the following provisions shall survive the termination or expiration of this Agreement: Reservation of Rights, Protection of Information, Term and Termination, Limited Software Warranty and Disclaimers, Disclaimer of Liabilities, Indemnification, Reports and Audit, and General Provisions. Standard EULA – Rev. 2016 07 01 �General Provisions. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California, without regard to conflict of laws provisions thereof. Neither the provisions of the United Nations Convention on Contracts for the International Sale of Goods nor those of the Uniform Computer Information Transactions Act shall apply. Disputes arising hereunder shall be subject to the exclusive jurisdiction of the state and federal courts located in the Northern District of California, and the parties agree to submit to the jurisdiction of such courts. Arista may assign this Agreement or delegate its responsibilities without restriction. Customer may not assign this Agreement, its rights or licenses, or delegate its duties, hereunder, nor may any successor entity of Customer assume such rights, licenses or duties, in whole or in part, directly or indirectly, whether by sale of stock or assets, merger, change of control, operation of law, or otherwise, without Arista’s prior written consent. Any assignment or assumption in violation of the foregoing shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties and their respective permitted successors and assigns. This Agreement is the entire agreement between Arista and Customer with respect to the Software, and supersedes any and all prior agreements, negotiations, or other communications between Arista and Customer, whether oral or written, with respect to the subject matter hereof. In the event that any provision of this Agreement is held to be invalid or unenforceable, then: (a) such provision shall be deemed to be reformed to the extent strictly necessary to render such provision valid and enforceable, or if not capable of such reformation shall be deemed to be severed from this Agreement; and (b) the validity and enforceability of all of the other provisions hereof, shall in no way be affected or impaired thereby. Arista’s failure to exercise, or delay in exercising, a right, power or remedy provided in this Agreement or by law shall not constitute a waiver of that right, power or remedy. Arista’s waiver of any obligation or breach of this Agreement shall not operate as a waiver of any other obligation or subsequent breach of the Agreement. The English language version of this Agreement shall be the official and controlling version, and any translation provided is solely for convenience. Standard EULA – Rev. 2016 07 01 �
nw/39.txt
INTEL SECURITY END USER LICENSE AGREEMENT BY DOWNLOADING, INSTALLING, COPYING, ACCESSING OR USING THIS SOFTWARE, YOU AGREE TO THE TERMS OF THIS END USER LICENSE AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY OR LEGAL ENTITY TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS: • DO NOT DOWNLOAD, INSTALL, COPY, ACCESS OR USE THIS SOFTWARE, AND • PROMPTLY RETURN THIS SOFTWARE AND PROOF OF ENTITLEMENT TO THE PARTY FROM WHOM YOU ACQUIRED THEM 1) Definitions. a) b) c) d) e) f) g) h) “Authorized Partner” means any of Intel’s distributors, resellers or other business partners that are authorized by Intel in writing to sell Support or the Software license rights granted under this Agreement. “Documentation” means explanatory materials in printed, electronic or online form accompanying the Software in English and other languages, if available. “DATs” means detection definition files, also referred to as signature files, that contain the code(s) anti-malware software uses to detect and repair viruses, Trojan horses, and potentially unwanted programs. “Grant Letter” means a confirmation notice letter issued by Intel to you, confirming the Software and Support purchased by you, including the applicable product entitlement, as defined in the Product Entitlement Definitions (further described at Section 3(a) below). “High Risk System” means a device or system that requires extra safety functionalities such as fail-safe or faulttolerant performance features to maintain a safe state where it is reasonably foreseeable that failure of the device or system could lead directly to death, personal injury, or catastrophic property damage. A device or system with a fail-safe feature in the event of failure may revert to a safe condition rather than break down, may include a secondary system that comes into operation to prevent a malfunction, or may operate as a backup in the event of a malfunction. A device or system with a fault-tolerant feature in the event of failure may continue its intended operation, possibly at a reduced level, rather than failing completely. Without limitation, High Risk Systems may be required in critical infrastructure, industrial plants, manufacturing facilities, direct life support devices, aircraft, train, boat or vehicle navigation or communication systems, air traffic control, weapons systems, nuclear facilities, power plants, medical systems and facilities, and transportation facilities. “Intel” means (i) Intel Americas, Inc., with offices located at 2200 Mission College Blvd., Santa Clara, California 95054, USA, if the Software is purchased in the United States (except as provided in subclause (vi), below), Canada, Mexico, Central America, South America, or the Caribbean, (ii) Intel Corporation UK Limited, with its registered offices located at Pipers Way, Swindon, Wiltshire SN3 1NJ, United Kingdom, if the Software is purchased in Europe, the Middle East, or Africa, (iii) Intel Semiconductor (US) LLC, with a trading address located at 69/F, Central Plaza, 18 Harbour Road, Wanchai, Hong Kong, if the Software is purchased in Asia (other than China (if the Software is purchased in RMB) or Japan) or the region commonly referred to as Oceania, (iv) Intel Kabushiki Kaisha, with offices located at Kokusai Building 5F, 1-1, Marunouchi 3-chome, Chiyoda-ku, Tokyo, 1000005, Japan, if the Software is purchased in Japan, (v) Intel Trading (Shanghai) Co., Ltd., with a trading address located at Room IIA/B, First Floor, No. 999 Ying Lun Road, Waigaoqiao Free Trade Zone, Pudong, Shanghai, 200131 China, if the Software is purchased in China (in RMB), or (vi) Intel Security Public Sector LLC, with offices located at 2821 Mission College Blvd., Santa Clara, California 95054, USA, if the Software is purchased by the U.S. Government, State or Local Government, Healthcare organization or Educational institution within the United States. “Software” means the Intel software program in object code format (i) licensed from Intel and purchased from Intel or its Authorized Partners, or (ii) embedded in or pre-loaded on Intel Security- or McAfee-branded hardware equipment purchased from Intel or its Authorized Partners, in each case including Upgrades and Updates that you install during the applicable Support period. “Standard” means any generally recognized technology or technical standard promulgated, distributed, specified, or published by an entity whose activities include developing, coordinating, promulgating, amending, reissuing, or otherwise producing standardized technology specifications or protocols for adoption by product manufacturers or the public. “Standards” includes “de facto” technology or technical standards that are initially introduced by one or more entities, which then become more widely adopted by others in other products; includes features characterized as “mandatory,” “optional,” and their equivalents; and includes versions characterized as “draft.” Examples of Standards include GSM, GPRS, EDGE, CDMA, UMTS, LTE, WCDMA, WiFi (also known as 802.11[x]), Bluetooth (also known as 802.15.1), and de-facto standards such as HTML or VHS (video). Examples of entities that promulgate, distribute, specify or publish Standards include the IEEE, ITU, 3GPP, ETSI, and the USB Implementers’ Forum. Corporate EULA Page 1 of 7 04/2016 �i) j) k) l) 2) License Grant; Proprietary Rights. a) b) 3) “Subsidiary” means any entity controlled by you through greater than fifty per cent (50%) ownership of the voting securities. “Support” or “Technical Support” means the support services offered by Intel for the support and maintenance of the Software and the McAfee- or Intel Security-branded hardware equipment as further specified in the Intel Technical Support and Maintenance Terms. “Updates” are related to content of the Software, including, without limitation, all DATs, signature sets, policy updates, and database updates for the Software, and that are made generally available to Intel’s customer base as a part of purchased Support and which are not separately priced or marketed by Intel. “Upgrade” means any and all improvements in the Software that are made generally available to Intel’s customer base as part of purchased Support and which are not separately priced or marketed by Intel. Subject to the terms and conditions of this Agreement, Intel hereby grants to you a non-exclusive, nontransferable right to use the Software (for the purpose of this Agreement, to use the Software includes to download, install, and access the Software) listed in the Grant Letter solely for your own internal business operations. You are not granted rights to Updates and Upgrades unless you have purchased Support (or a service subscription granting rights to Updates and Upgrades). The Software, including, without limitation, its object code and source code, whether or not provided to you, is strictly confidential to Intel. Intel (or its licensors) owns exclusively and reserves all – and you may not exercise any – right, title, and interest in and to the Software, including, without limitation, all intellectual property rights in and to the Software, except to the extent of the limited Software use license granted to you in this Agreement. This Agreement is not an agreement of sale, and no title, intellectual property rights, or ownership rights to the Software are transferred to you pursuant to this Agreement. You acknowledge and agree that the Software and all ideas, methods, algorithms, formulae, processes, and concepts used in developing or incorporated into the Software, all future Updates and Upgrades, and all other improvements, revisions, corrections, bug-fixes, hotfixes, patches, modifications, enhancements, releases, DATs, signature sets, upgrades, and policy and database updates and other updates in, of, or to the Software, all derivative works based upon any of the foregoing, and all copies of the foregoing are trade secrets and proprietary property of Intel, having great commercial value to Intel. Copy and Use Terms. a) b) c) d) e) f) Product Entitlement: The use of the Software depends on the licenses purchased (e.g. nodes) and is subject to the Product Entitlement Definitions set forth at http://www.mcafee.com/us/resources/legal/mcafee-productentitlement-definitions.pdf on the applicable date of your Grant Letter. Multiple Platforms/Bundles: If the Software supports multiple platforms or if you receive the Software bundled with other software, the total number of devices on which all versions of the Software is installed may not exceed your product entitlement. Certain Software licensed as part of a suite-based Intel product may also require the purchase of a separate Intel server license in order to use the Software on certain types of servers, in each case as specified in the Documentation. Term: The license is effective for a limited period of time (“Term”) in the event that such Term is set forth in the Grant Letter, otherwise the licenses shall be perpetual. Copies: You may copy the Software as reasonably necessary for back-up, archival or disaster recovery purposes. Subsidiaries; Managing Parties: You may permit use of the Software in accordance with the terms of this Agreement by a Subsidiary only for so long as such entity remains your Subsidiary. You also may permit a third party with which you enter into a contract to manage your information technology resources (“Managing Party”), provided that (i) the Managing Party only uses the Software for your internal operations and not for the benefit of another third party or the Managing Party, (ii) the Managing Party agrees to comply with the terms and conditions of this Agreement and (iii) you provide Intel with written notice that a Managing Party will be using the Software on your behalf. You shall be responsible and fully liable for each Subsidiary’s and Managing Party’s compliance with or breach of the terms of this Agreement. General Restrictions: You may not, and you may not cause or allow any third party to: (i) decompile, disassemble or reverse-engineer the Software; or create or recreate the source code for the Software; (ii) remove, erase, obscure, or tamper with any copyright or any other product identification or proprietary rights notices, seal, or instructional label printed or stamped on, affixed to, or encoded or recorded in or on any Software or Documentation; or fail to preserve all copyright and other proprietary notices in all copies of the Software and Documentation made by you; (iii) lease, lend or use the Software for timesharing or service bureau purposes; sell, market, license, sublicense, distribute, or otherwise grant to any person or entity any right to use the Software except to the extent expressly permitted in this Agreement; or use the Software to provide, alone or in combination with any other product or service, any product or service to any person or entity, whether on a fee basis or otherwise; (iv) modify, adapt, tamper with, translate, or create derivative works of the Software or the Documentation; combine or merge any part of the Software or Documentation with or into any other software or documentation; or refer to or otherwise use the Software as part of any effort to develop software (including, without limitation, any routine, script, code, or program) having any functional attributes, visual expressions, or other features similar to those of the Software or to compete with Intel; (v) except with Intel’s prior written permission, publish any performance or benchmark tests or analysis relating to the Software; or (vi) attempt to Corporate EULA Page 2 of 7 04/2016 �do any of the foregoing. You may not run or operate the Software in a cloud, Internet-based computing, or similar on-demand computing environment unless your Grant Letter specifically provides such. 4) Technical Support and Maintenance. The Intel Technical Support and Maintenance Terms and Conditions apply if you have purchased Support. The Intel Technical Support and Maintenance Terms and Conditions are incorporated by reference and can be found at https://support.mcafee.com/SPR/WebContent/ProgramsAndPolicies/Corporate_TechSupport_Terms.pdf. After the support or service subscription period specified in a Grant Letter has expired, you have no further rights to receive any Support including Upgrades, Updates and telephone support. You will secure any and all privacy-related rights and permissions from individual persons as may be required by regulation, statute, or other law or your internal policies or guidelines in order to disclose to Intel, in connection with Intel’s performance of Support or otherwise under this Agreement, applicable personally identifiable information, data, and material. 5) Limited Warranty and Disclaimer. a) b) c) d) e) 6) Limited Warranty: Intel warrants that, for a period of sixty (60) days from the purchase date (“Warranty Period”), the Software licensed hereunder will perform substantially in accordance with the Documentation (the “Limited Warranty”). Exclusive Remedy: In case of any breach of the above Limited Warranty, as your exclusive remedy and Intel’s entire obligation and liability Intel will (i) repair or replace the Software or (ii) if such repair or replacement would in Intel’s opinion be commercially unreasonable, upon Intel’s receipt of your written representation and promise that you have removed all instances of the Software and will not use the Software, refund the price paid by you for the applicable Software. Exclusion of Warranty: THE ABOVE LIMITED WARRANTY WILL NOT APPLY IF: (i) THE SOFTWARE IS NOT USED IN ACCORDANCE WITH THIS AGREEMENT OR THE DOCUMENTATION, (ii) THE SOFTWARE OR ANY PART THEREOF HAS BEEN MODIFIED BY ANY ENTITY OTHER THAN INTEL OR (iii) A MALFUNCTION IN THE SOFTWARE HAS BEEN CAUSED BY ANY EQUIPMENT OR SOFTWARE NOT SUPPLIED BY INTEL. Disclaimer: EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, THE SOFTWARE IS PROVIDED “AS IS” AND INTEL MAKES NO REPRESENTATIONS OR WARRANTIES, AND INTEL DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, ORAL OR WRITTEN, EXPRESS OR IMPLIED, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN TRADE, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR SYSTEMS INTEGRATION. WITHOUT LIMITING THE FOREGOING, INTEL MAKES NO WARRANTY, REPRESENTATION, OR GUARANTEE AS TO THE SOFTWARE’S USE OR PERFORMANCE AND DOES NOT WARRANT, REPRESENT, OR GUARANTEE THAT THE OPERATION OF THE SOFTWARE WILL BE FAILSAFE, UNINTERRUPTED, OR FREE FROM ERRORS OR DEFECTS OR THAT THE SOFTWARE WILL PROTECT AGAINST ALL POSSIBLE THREATS. High Risk Systems Terms: THE SOFTWARE MAY FAIL AND IS NOT DESIGNED, DEVELOPED, TESTED, OR INTENDED TO BE RELIABLE IN THE CONTEXT OF HIGH RISK SYSTEMS. WITHOUT LIMITING ANYTHING ELSE, INTEL HAS NO RESPONSIBILITY FOR, AND YOU WILL INDEMNIFY AND HOLD HARMLESS INTEL FROM, ALL CLAIMS, SUITS, DEMANDS, AND PROCEEDINGS ALLEGING, CLAIMING, SEEKING, OR ASSERTING, ANY LIABILITY, LOSS, OBLIGATION, RISK, COST, DAMAGE, AWARD, PENALTY, SETTLEMENT, JUDGMENT, FINE, OR EXPENSES (INCLUDING ATTORNEYS FEES) ARISING FROM OR IN CONNECTION WITH YOUR USE OF THE SOFTWARE ON OR IN A HIGH RISK SYSTEM, INCLUDING, WITHOUT LIMITATION, THOSE THAT (i) COULD HAVE BEEN PREVENTED BY DEPLOYMENT OF FAILSAFE OR FAULT-TOLERANT FEATURES TO THE HIGH RISK SYSTEM, (ii) ARE BASED ON A CLAIM, ALLEGATION, OR ASSERTION THAT THE FUNCTIONING OF THE HIGH RISK SYSTEM DEPENDS OR DEPENDED ON THE FUNCTIONING OF THE SOFTWARE OR THAT THE FAILURE OF THE SOFTWARE CAUSED A HIGH RISK SYSTEM TO FAIL. Limitation of Remedies and Damages. a) b) UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, NEGLIGENCE, CONTRACT OR OTHERWISE, SHALL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT OR IN CONNECTION WITH ITS SUBJECT MATTER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, OR EXTRA-CONTRACTUAL DAMAGES OF ANY KIND, LOSS OF GOODWILL, LOSS OF PERSONNEL SALARIES, LOST PROFITS OR REVENUE, DAMAGES DUE TO WORK STOPPAGE AND/OR COMPUTER FAILURE OR MALFUNCTION, AND/OR COSTS OF PROCURING SUBSTITUTE SOFTWARE OR SERVICES, WHETHER OR NOT FORESEEABLE, EVEN IF THE EXCLUSIVE REMEDIES PROVIDED BY THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE AND EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OR PROBABILITY OF SUCH DAMAGES. REGARDLESS OF WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED IN CONTRACT, TORT AND/OR ANY OTHER LEGAL THEORY, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY FOR DIRECT DAMAGES UNDER THIS AGREEMENT OR IN CONNECTION WITH ITS SUBJECT MATTER EXCEED THE AMOUNT OF TOTAL FEES PAID OR PAYABLE BY YOU FOR THE Corporate EULA Page 3 of 7 04/2016 �c) d) 7) Intellectual Property Indemnity. a) b) c) d) e) f) 8) SOFTWARE GIVING RISE TO SUCH CLAIM DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. No provision of this Agreement shall exclude or limit in any way (i) the liability of either party for death or personal injury caused by negligence or (ii) your liability for excess usage of and/or any breach of Intel’s intellectual property rights in the Software. THE LIMITATION OF LIABILITY IN THIS SECTION IS BASED ON THE FACT THAT END USERS USE THEIR COMPUTERS FOR DIFFERENT PURPOSES. THEREFORE, ONLY YOU CAN IMPLEMENT BACK-UP PLANS AND SAFEGUARDS APPROPRIATE TO YOUR NEEDS IN THE EVENT THAT AN ERROR IN THE SOFTWARE CAUSES COMPUTER PROBLEMS AND RELATED DATA LOSSES. FOR THESE BUSINESS REASONS, YOU AGREE TO THE LIMITATIONS OF LIABILITY IN THIS SECTION AND ACKNOWLEDGE THAT WITHOUT YOUR AGREEMENT TO THIS PROVISION, THE FEE CHARGED FOR THE SOFTWARE WOULD BE HIGHER. Indemnity: Intel will indemnify, and, at its election, defend, you against claims asserted against you in any suit or proceeding for direct patent or copyright infringement, or for Intel’s trade secret misappropriation, asserted against the Software, alone and not in combination with anything. Exclusions: Notwithstanding anything else in this Agreement, Intel has no obligation to indemnify or defend the following claims: i) those asserted against elements or features in, or operation of, the Software attributable in whole or in part to Intel’s inclusion of technology given by you to Intel, or in compliance with your designs, specifications or instructions, including inclusion of software supplied by you or included at your request; ii) those asserted against the Software attributable in whole or in part to the modification of the Software by anyone other than Intel, or against the use of the Software, where that use is contrary to its specification or instructions for use; iii) those asserted against the combination of the Software with anything; iv) those based on an allegation that the Software implements or complies with, in whole or in part, as shipped or when used, a Standard; v) those including an allegation that Intel, you, or the Software indirectly infringes, including by inducing or contributing to another’s infringement; vi) any claim (such as a counterclaim) that was made in response to a suit or proceeding first filed by you alleging patent infringement; vii) those including an allegation that the Software complies, in whole or in part, as shipped or when used, with any media decoding, encoding, or transcoding technology (such as, for example, through use of an audio or video codec); and viii) those asserting that you willfully infringed. Conditions: Intel’s obligations under this Section 7 are conditioned on your prompt written notice to Intel of a claim and on your giving to Intel the right to solely control and conduct the defense and any settlement of the claim. You must fully and timely cooperate with Intel and provide Intel with all reasonably requested authority, information and assistance. Intel will not be responsible for any costs, expenses or compromise incurred or made by you without Intel’s prior written consent. Defense, Settlement and Remedies: At its option, Intel will solely control and conduct the defense and any settlement of indemnified claims. Intel may, in its sole discretion and at its own expense: (i) procure for you the right to continue using the Software; (ii) replace the Software with a non-infringing Software; (iii) modify the Software so that it becomes non-infringing; or (iv) upon your return of the Software to Intel, refund the residual value of the purchase price paid by you for the infringing Software, depreciated using a straight-line method of depreciation over a three (3) year period from the date of delivery of the Software to you. Personal Indemnity: The foregoing indemnity is personal to you. You may not assign, transfer or pass through this indemnity to any third party. You will notify all third parties that they must look solely to you for any indemnity for claims of infringement asserted against Software purchased from you. Exclusive Remedy: The foregoing states Intel’s entire obligation and your exclusive remedy for claims of patent or copyright infringement, or trade secret misappropriation, by the Software. Termination. Without prejudice to your payment obligations, you may terminate your license at any time by uninstalling the Software. Intel may terminate your license in the event that you materially breach the terms of this Agreement and you fail to cure such breach within thirty (30) days of receiving notice of such breach. Upon such termination, you shall promptly return or destroy all copies of the Software and Documentation. 9) Additional Terms. a) Evaluation Software: If the Software has been identified by Intel as “Evaluation” Software, then the provisions of this section apply and shall supersede any other conflicting term of this Agreement. Your royalty-free, nontransferable, limited license to use the Evaluation Software, for evaluation purposes only, is limited to thirty (30) days unless otherwise agreed to in writing by Intel. The Evaluation Software may contain errors or other problems that could cause system or other failures and data loss. Consequently, Evaluation Software is provided to you Corporate EULA Page 4 of 7 04/2016 �b) c) 10) “AS IS” and Intel disclaims any warranty or liability obligations to you of any kind. Support is not available for Evaluation Software. Any information about the Evaluation Software gathered from its use shall be used solely for evaluation purposes and shall not be provided to any third parties. The restrictions described in Section 3(g) apply. If you fail to destroy the Evaluation Software after the evaluation period has expired, Intel may, at its discretion, invoice you in an amount equal to the Intel List Price for the Software and you shall pay such invoice upon receipt. WHERE LEGAL LIABILITY CANNOT BE EXCLUDED, BUT MAY BE LIMITED, INTEL’S LIABILITY AND THAT OF ITS SUPPLIERS AND AUTHORIZED PARTNERS UNDER THIS AGREEMENT RELATED TO EVALUATION SOFTWARE, OR IN CONNECTION WITH EVALUATION SOFTWARE, SHALL BE LIMITED TO THE SUM OF FIFTY (50) U.S. DOLLARS OR THE EQUIVALENT IN LOCAL CURRENCY IN TOTAL. Beta Software: If the Software that you have received has been identified by Intel as “Beta” Software, then the provisions of Section 9(a) above shall apply accordingly. Intel has no obligation to you to further develop or publicly release the Beta Software. Support is not available for Beta Software. If requested by Intel, you will provide feedback to Intel regarding testing and use of the Beta Software, including error or bug reports. You agree to grant Intel a perpetual, non-exclusive, royalty-free, worldwide license to use, copy, distribute and make derivative works and incorporate the feedback into any Intel product at Intel’s sole discretion. Upon receipt of a later unreleased version of the Beta Software or release by Intel of a publicly released commercial version of the Beta Software, you agree to return or destroy all earlier Beta Software received from Intel. “Free” or “Open-Source” Software: The Software may include components (including, without limitation, programs, applications, tools, utilities, libraries, and other programming code) that are made available from third parties under a free or open source software licensing model (“FOSS Code”). FOSS Code components included with the Software are redistributed by Intel under the terms of the applicable FOSS Code license for such component; your receipt of FOSS Code components from Intel under this Agreement neither enlarges nor curtails your rights or obligations defined by the FOSS Code license applicable to the FOSS Code component. Copies of the FOSS Code licenses for FOSS Code components included with Software are included with or referenced in the Software’s Documentation. Notice to U.S. Government End Users. The Software and accompanying Documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Software and accompanying Documentation by the United States Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement. 11) Privacy and Collection of Personal or System Information. a) b) c) 12) The Software, Support or service subscription may employ applications and tools to collect personally identifiable, sensitive or other information about you and users (e.g., including, without limitation, your and users’ name, address, e-mail address and payment details), their computers, files stored on their computers, or their computers’ interactions with other computers (e.g., including, without limitation, information regarding network, licenses used, hardware type, model, hard disk size, CPU type, disk type, RAM size, 32 or 64 bit architecture, operating system types, versions, locale, BIOS version, BIOS model, total scanners deployed, database size, system telemetry, device ID, IP address, location, content, Intel products installed, Intel components, processes and services information, frequency and details of update of Intel components, information about third party products installed, extracts of logs created by Intel, usage patterns of Intel products and specific features, etc.) (collectively, “Data”). The collection of this Data may be necessary to provide you and users with the relevant Software, Support or service subscription functionalities as ordered (e.g., including, without limitation, detecting and reporting threats and vulnerabilities on your and users’ computer network), to enable Intel to improve our Software, Support or service subscription (e.g., including, without limitation, content synchronization, device tracking, troubleshooting, etc.), and to further or improve overall security for you and users. You may be required to uninstall the Software or disable Support or its service subscription to stop further Data collection that supports these functions. By entering into this Agreement, or using the Software, Support or service subscription, you and users agree to the Intel Privacy Policy on the Intel Security web site (www.intelsecurity.com) and to the collection, processing, copying, backup, storage, transfer and use of this Data by Intel and its service providers, in, from and to the United States, Europe, or other countries or jurisdictions potentially outside of your or user’s own as part of the Software, Support or service subscription. Intel will only collect, process, copy, backup, store, transfer and use personally identifiable information in accordance with the Intel privacy policy on the Intel Security web site (www.intelsecurity.com). Audit. Upon thirty (30) days’ prior notice Intel may request, and you must provide, a Software-facilitated system-generated report (the “System Report”) verifying your Software deployment. You acknowledge that the System Report is based on technological features of the Software that provide Software deployment verification. If the Software does not contain technological features that provide Software deployment verification, you will prepare and provide to Intel within the thirty (30)-day period an accurate Software deployment verification report for the Software. Intel will only request the Corporate EULA Page 5 of 7 04/2016 �System Report (or your prepared Software deployment verification report) one time per year and will not unreasonably interfere with the conduct of your business. However, if a System Report or your prepared Software deployment verification report identifies that you are out of compliance with the license terms of this Agreement, you will be required to purchase the additional licenses and pay any reinstatement fees associated with the licenses and/or support and an out-of-compliance fee may also be assessed. 13) Export Controls. You acknowledge that the Software is subject to U.S. and when applicable, European Union export regulations. You shall comply with applicable export and import laws and regulations for the jurisdiction in which the Software will be imported and/or exported. You shall not export the Software to any individual, entity or country prohibited by applicable law or regulation. You are responsible, at your own expense, for any local government permits, licenses or approvals required for importing and/or exporting the Software. For additional information regarding exporting and importing the Software, see “Export Compliance” at http://www.mcafee.com/us/about-us.aspx. Intel reserves the right to update this website from time to time at its sole discretion. If Intel receives notice that you are or you become identified as a sanctioned or restricted party under applicable law, then Intel will not be obligated to perform any of its obligations under this license if such performance would result in violation of the sanctions or restrictions. 14) Governing Law. All disputes arising out of or relating to this Agreement or its subject matter will be governed by the substantive laws: (a) of the State of New York, if you purchased the license to the Software in the United States, Mexico, Central America, Canada, South America or the Caribbean, (b) of England and Wales, if you purchased the license to the Software in Europe, Middle East, Africa, Asia (other than Japan) or the region commonly referred to as Oceania and (c) of Japan, if you purchased the license to the Software in Japan, without giving effect to its rules relating to conflict of laws. If you purchased the license to the Software in any other country, then the substantive laws of the Republic of Ireland shall apply, unless another local law is required to be applied. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. The Uniform Computer Information Transactions Act as enacted shall not apply. The United States District Court for the Southern District of New York, when New York law applies, the courts in England, when the law of England and Wales applies, the courts in the Republic of Ireland, when the law of Ireland applies, and the courts in Japan, when the law of Japan applies, shall each have exclusive jurisdiction over all disputes arising out of or relating to this Agreement or its subject matter. 15) Confidentiality Each party hereto acknowledges that by reason of its relationship with the other party hereunder, it may have access to confidential information and materials concerning the other party’s business, technology, and/or products that is confidential to the other party (“Confidential Information”). Each party’s Confidential Information is of substantial value to the party, which value could be impaired if such information was disclosed to third parties or used in violation of this Agreement. Written or other tangible Confidential Information must at the time of disclosure be identified and labeled as Confidential Information belonging to the disclosing party. When disclosed orally or visually, Confidential Information must be identified as confidential at the time of the disclosure, with subsequent confirmation in writing within fifteen (15) days after disclosure. Each party agrees that it will not use in any way for its own account or the account of any third party, such Confidential Information, except as authorized under this Agreement, and will protect Confidential Information at least to the same extent as it protects its own Confidential Information and to the same extent that a reasonable person would protect such Confidential Information. Neither party may use the other party’s Confidential Information except to perform its duties or exercise its rights under this Agreement. The Confidential Information restrictions will not apply to Confidential Information that is (i) already known to the receiving party at the time of access hereunder, (ii) becomes publicly available through no wrongful act of the receiving party, (iii) independently developed by the receiving party without benefit of the disclosing party’s Confidential Information, (iv) has been rightfully received from a third party not under obligation of confidentiality or (v) is required to be disclosed by law, provided the party compelled to disclose the Confidential Information provides the party owning the Confidential Information with prior written notice of disclosure adequate for the owning party to take reasonable action to prevent such disclosure, where reasonably possible. Unless otherwise agreed to by both parties, upon termination of this Agreement or an applicable Addendum, each party will return the other party’s Confidential Information. 16) Miscellaneous. a) b) c) Except for actions for non-payment or breach of Intel’s proprietary rights in the Software and Documentation, no action, regardless of form, arising out of this Agreement may be brought by either party more than two (2) years after a party knew or should have known of the claim. Any terms of this Agreement which by their nature should survive the termination of this Agreement shall survive such termination. Intel may assign this Agreement, in whole, at any time subject to your prior written consent; provided, however, any assignment resulting from or as part of a merger, consolidation, acquisition of all or substantially all of the assets of Intel, or internal restructuring or reorganization does not require your consent. Corporate EULA Page 6 of 7 04/2016 �d) e) This Agreement, including all documents incorporated by reference, represents the entire agreement between the parties and expressly supersedes and cancels any other communication, representation or advertising whether oral or written, on the subjects herein. If you issue an order to an Authorized Partner or to Intel and the terms and conditions of the order conflict with the terms and conditions of (i) this Agreement or (ii) the Grant Letter, then the terms and conditions specified in this Agreement and in the Grant Letter shall control. No terms or conditions of any pre-printed or boilerplate purchase order of yours or other document of yours will govern the transactions contemplated by this Agreement. This Agreement may not be modified except by a written addendum issued by a duly authorized representative of Intel. No provision hereof shall be deemed waived unless such waiver shall be in writing and signed by Intel. If any provision of this Agreement is held invalid, unenforceable, invalid, or prohibited under law, then such provision will be deemed restated to reflect the original intention of the parties as nearly as possible in accordance with applicable law and the remainder of this Agreement shall continue in full force and effect. All notices, requests, demands and determinations for Intel under this Agreement (other than routine operational communications) shall be sent to: the applicable entity address in Section 1(f) of this Agreement addressed to “Attention: Legal Department”. Intel Security Corporate End User License Agreement (April 2016) Corporate EULA Page 7 of 7 04/2016 �
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END USER LICENSE AGREEMENT TERMS FOR MOBILE BANKING To be Agreed to by End User Prior to Use of the Mobile Banking Service 1. General. Access to your financial institution’s services via your mobile device is powered by the mobile technology solution owned by mFoundry, Inc. (the “Licensor”). The Licensor is not the provider of any of the services available to you through the Software (defined below), and the Licensor is not responsible for any of the materials, information, products or services made available to you through the Software. 2. Ownership. You acknowledge and agree that the Licensor is the owner of all right, title and interest in and to the mobile technology solution made available to you hereunder, including but not limited to any downloaded software and the computer programs contained therein, as well as any accompanying user documentation, and all subsequent copies, updates or versions thereof, regardless of the media or form in which they may exist (all of which is collectively referred to herein as the “Software”). You may not use the Software unless you have first accepted the terms of this Agreement. 3. License. Subject to the terms and conditions of this Agreement, you are hereby granted a personal, nonexclusive, nontransferable license to use the Software (in machine readable object code form only) in accordance with the terms of this Agreement and for the sole purpose of enabling you to use and enjoy the benefits of your financial institution’s services made available via the Software. This is not a sale of the Software. All rights not expressly granted to you by this Agreement are hereby reserved by the Licensor. Nothing in this license will entitle you to receive hard-copy documentation, technical support, telephone assistance, or updates to the Software. This license may be terminated at any time, for any reason or no reason, by you or the Licensor. Upon termination, you agree to immediately destroy all copies of any Software which had been downloaded to your mobile device or otherwise in your possession or control. 4. Restrictions. You shall not: (i) modify, revise or create any derivative works of the Software; (ii) decompile, reverse engineer or otherwise attempt to derive the source code for the Software; (iii) redistribute, sell, rent, lease, sublicense, or otherwise transfer rights to the Software; or (iv) remove or alter any proprietary notices, legends, symbols or labels in the Software, including, but not limited to, any trademark, logo or copyright. 5. Updates. The terms of this Agreement will govern any updates that replace and/or supplement the original Software, unless such update is accompanied by a separate license in which case the terms of that license will govern. 6. Text Messages. Text messaging services are provided by your financial institution and not by any other third party. You and your financial institution are solely responsible for the content transmitted through text messages sent between you and your financial institution. You must provide source indication in any text messages you send (e.g. mobile telephone number, “From” field in text message, etc.) You are responsible for any text message fees charged by your wireless carrier. 7. Consent to Use of Data. You agree that the Licensor may collect and use technical data and related information, including but not limited to technical information about your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services (if any) related to the Software. The Licensor may use this information, as long as it is in a form that does not personally identify you, to improve its products or to provide services or technologies. 8. Export Restrictions. You may not use or otherwise export or re-export the Software except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Software for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons. 9. U.S. Government Restricted Rights. The Software is commercial computer software subject to RESTRICTED RIGHTS. In accordance with 48 CFR 12.212 (Computer software) or DFARS 227.7202 (Commercial computer software and commercial computer software documentation), as applicable, the use, duplication, and disclosure of the Software by the United States of America, its agencies or instrumentalities is subject to the restrictions set forth in this Agreement. �10. Disclaimer of Warranty. THE SOFTWARE IS PROVIDED ON AN 'AS IS' AND ‘AS AVAILABLE’ BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NO WARRANTY IS PROVIDED THAT THE SOFTWARE WILL BE FREE FROM DEFECTS OR VIRUSES OR THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED. YOUR USE OF THE SOFTWARE AND ANY MATERIAL OR SERVICES OBTAINED OR ACCESSED VIA THE SOFTWARE IS AT YOUR OWN DISCRETION AND RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM THEIR USE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. 11. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MFOUNDRY OR ITS AFFILIATES OR LICENSORS BE LIABLE FOR ANY DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, INCLUDING BUT NOT LIMITED TO ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH ANY CLAIM IS BASED. IN ANY CASE, THE LICENSOR’S LIABILITY ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES PAID BY YOU FOR THIS LICENSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. 12. Miscellaneous. This Agreement constitutes the entire agreement between you and the Licensor concerning the subject matter hereof. This Agreement will be governed by and construed in accordance with the laws of the state of California, excluding that body of laws pertaining to conflict of laws. If any provision of this Agreement is determined by a court of law to be illegal or unenforceable, such provision will be enforced to the maximum extent possible and the other provisions will remain effective and enforceable. All disputes relating to this Agreement are subject to the exclusive jurisdiction of the courts of California and you expressly consent to jurisdiction and venue thereof and therein. This Agreement and all related documentation is and will be in the English language. The application of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly waived and excluded. END USER TERMS FOR SMS. The services are separate and apart from any other charges that may be assessed by your wireless carrier for text messages sent to or received from your financial institution. You are responsible for any fees or other charges that your wireless carrier may charge for any related data or message service, including without limitation for short message service. The services are provided by your financial institution and not by any other third party. You and your financial institution are solely responsible for the content transmitted through the text messages sent to and from your financial institution. You must provide source indication in any message you send (e.g., mobile telephone number, ‘From’ field in text message, etc.). �
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CITRIX LICENSE AGREEMENT This is a legal agreement ("AGREEMENT") between the end-user customer ("you"), and the providing Citrix entity (the applicable providing entity is hereinafter referred to as "CITRIX"). Your location of receipt of the Citrix product (hereinafter "PRODUCT") and maintenance (hereinafter "MAINTENANCE") determines the providing entity as identified at https://www.citrix.com/buy/licensing/citrix-providing-entities.html. BY INSTALLING AND/OR USING THE PRODUCT, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL AND/OR USE THE PRODUCT. Nothing contained in any purchase order or any other document submitted by you shall in any way modify or add to the terms and conditions contained in this AGREEMENT. 1. PRODUCT LICENSES. a. End User Licenses. The software in a software PRODUCT and the software installed in an appliance PRODUCT is made available by CITRIX under the license models identified at http://www.citrix.com/buy/licensing/product.html. Any experimental features delivered with such software will be identified and are licensed only for internal testing purposes. "Software" means a Citrix proprietary and/or open source software program in object code form licensed hereunder. "Appliance" means a hardware appliance with installed Software. Notwithstanding anything set forth in this AGREEMENT or at the referenced website, your use of Open Source Software shall in all ways be exclusively governed by the open source license indicated as applicable to the code at http://www.citrix.com/buy/licensing/open-source.html. "Open Source Software" means those portions of the PRODUCT that are provided under an open source license (e.g., a version of a GNU General Public License, BSD or a license similar to those approved by the Open Source Initiative (http://opensource.org)). Your license to software in a software or appliance PRODUCT will be activated by license keys that allow use of the PRODUCT in increments defined by the license model purchased ("License Keys"). License Keys for other CITRIX products or other editions of the same PRODUCT may not be used to increase the allowable use for your edition of the PRODUCT. 2. b. Partner Demo. If a software PRODUCT is labeled "Partner Demo," notwithstanding any term to the contrary in this AGREEMENT, your license permits use only if you are a current CITRIX authorized distributor or reseller, and then only for demonstration, test, or evaluation purposes in support of your end-user customers, and not for any other purpose, including without limitation customer training or production purposes. Note that a Partner Demo PRODUCT may disable itself upon the expiration of the License Key. In no event may a Partner Demo PRODUCT be used beyond expiration. c. Evaluation. If a software PRODUCT is labeled "Evaluation," notwithstanding any term to the contrary in this AGREEMENT, your license permits use only if you are an end-user customer and then only for your internal demonstration, test, or evaluation purposes, and not for any other purpose, including without limitation production purposes. Your license is for ninety (90) days with no right to MAINTENANCE, the Limited Warranty, or Infringement Indemnification. Note that an Evaluation PRODUCT may disable itself upon the expiration of the License Key. In no event may an Evaluation PRODUCT be used beyond expiration. d. Archive Copy. You may make one (1) copy of the software in a software or appliance PRODUCT in machinereadable form solely for back-up, provided that you reproduce all proprietary notices on the copy. MAINTENANCE. The MAINTENANCE plan applicable to this PRODUCT is identified at http://www.citrix.com/buy/licensing/product.html and plan entitlements and requirements are explained at https://www.citrix.com/support/programs.html. MAINTENANCE may be required at the time of PRODUCT purchase and may need to be purchased separately. MAINTENANCE is available for an initial (1) year term and may be extended by your purchase of available annual renewals (the "MAINTENANCE Term"). MAINTENANCE for a software or appliance PRODUCT begins upon delivery of the License Keys. During the initial or a renewal MAINTENANCE Term, CITRIX will make any Updates for the PRODUCT covered by the plan available to you. An "Update" shall mean a generally available release of the same edition of the software for the same PRODUCT which Citrix may make available from time to time. CITRIX is not obligated to make any Updates available. �Updates shall be subject to the terms of this AGREEMENT, except that Updates are not covered by the Limited Warranty applicable to the PRODUCT, to the extent permitted by applicable law. You acknowledge that CITRIX may develop and market new or different software or appliance offerings or editions of the PRODUCT that use portions of the PRODUCT and that perform all or part of the functions performed by the PRODUCT. Nothing contained in this AGREEMENT shall give you any rights with respect to such new or different offerings or editions. The MAINTENANCE plan may be purchased for the PRODUCT until it is no longer offered in accordance with the applicable CITRIX PRODUCT Lifecycle Support Policy posted at http://www.citrix.com/support/productlifecycle.html. Any deliveries of Updates shall be electronic. The MAINTENANCE plan may include technical support and, for hardware only, an extended hardware warranty, if stated at https://www.citrix.com/support/programs.html. The offering you purchase determines your entitlement. In addition to your MAINTENANCE plan, you may also purchase CITRIX consulting services as may be available (including installation services, remote monitoring services or technical consulting). CITRIX’ provision of technical support or consulting services is predicated upon the following responsibilities being fulfilled by you: (i) you will designate a Customer Support Manager ("CSM") who will be the primary administrative contact; (ii) you agree to perform reasonable problem determination activities and to perform reasonable problem resolution activities as suggested by CITRIX; (iii) you are responsible for implementing procedures necessary to safeguard the integrity and security of software and data from unauthorized access and for reconstructing any lost or altered files resulting from catastrophic failures; (iv) you are responsible for procuring, installing, and maintaining all equipment, telephone lines, communications interfaces, and other hardware at your site and providing CITRIX with access to your facilities as required to operate the PRODUCT and permitting CITRIX to perform the service; and (v) you are required to implement all currently available and applicable software hotfixes, hotfix rollup packs, and service packs or their equivalent for the PRODUCT in a timely manner. CITRIX is not required to provide any technical support for problems arising out of: (i) your or any third party’s alterations or additions to the PRODUCT, operating system or environment; (ii) CITRIX provided alterations or additions to the PRODUCT that do not address Errors or Defects; (ii) any functionality not defined in the user documentation published by CITRIX and included with the PRODUCT (hereinafter "Documentation"); (iii) use of a software PRODUCT on a processor or peripherals other than the processor and peripherals defined in the Documentation; (iv) any PRODUCT that has reached End-of-Life; and (v) any consulting deliverables from CITRIX, you or any third party. An "Error" is defined as a failure in the PRODUCT to materially conform to the functionality defined in the documentation. A "Defect" is defined as a failure in the PRODUCT to conform to the specifications in the Documentation. In situations where CITRIX cannot provide a satisfactory resolution to your critical problem through normal technical support methods, CITRIX may engage its product development team to create a private fix. Private fixes are designed to address your specific situation and may not be further distributed by you. CITRIX retains all right, title, and interest in and to all fixes, packs and their equivalent. Any private fixes are not provided as the PRODUCT under the terms of this AGREEMENT and they are not covered by the Limited Warranty or Infringement Indemnification applicable to the PRODUCT, to the extent permitted by applicable law. With respect to CITRIX consulting services, all intellectual property rights in all deliverables, pre-existing works and derivative works of such pre-existing works, as well as developments made, conceived, created, discovered, invented, or reduced to practice in the performance of the assessment are and shall remain the sole and absolute property of CITRIX, subject to a worldwide, non-exclusive license to you for internal use. Except for your payment obligations for provided PRODUCTS and services, nonperformance of either party shall be excused to the extent performance is rendered impossible by force majeure, but only for so long as such condition exists. 3. DESCRIPTION OF OTHER RIGHTS, LIMITATIONS, AND OBLIGATIONS. Except as expressly set forth in Section 13, you may not transfer, rent, timeshare, grant rights in or lease the PRODUCT except to the extent such foregoing restriction is prohibited by applicable mandatory law. If you purchased or otherwise received replacement License Keys as part of a PRODUCT upgrade or otherwise and such replacement is a condition of the transaction, you agree to destroy the original License Keys and retain no copies after installation of the new License Keys and PRODUCT. You shall provide the serial numbers of the original License Keys and corresponding replacement License Keys to the reseller and, upon request, directly to CITRIX, for tracking purposes. In the event you make a transfer of the PRODUCT in the EU or EER, to the extent permitted by law and notwithstanding the terms of this AGREEMENT, you must uninstall the PRODUCT and License Keys, cease your use, transfer them to the transferee and retain no copies. You are responsible for ensuring that the transferee accepts the terms of this AGREEMENT. You must provide evidence that the conditions for a lawful transfer of the PRODUCT are met. All warranty, MAINTENANCE and infringement indemnification rights will terminate automatically upon such transfer and will �not be available to the transferee. You must comply with applicable export laws with respect to such a transfer. You may not modify, translate, reverse engineer, decompile, disassemble, create derivative works based on or copy the PRODUCT, except as expressly licensed in this AGREEMENT or to the extent such foregoing restriction is expressly prohibited by applicable mandatory law. You may not remove any proprietary notices, labels, or marks on the PRODUCT. Notwithstanding the foregoing, this AGREEMENT shall not prevent or restrict you from exercising additional or different rights to any portions of the PRODUCT that are Open Source Software. To the extent permitted by applicable law, you agree to allow CITRIX to audit your compliance with the terms of this AGREEMENT upon prior written notice and during normal business hours, but no more than once per year. Any audit shall not unreasonably interfere with your business activities. You will reasonably cooperate with CITRIX and the auditor and will, without prejudice to other rights of CITRIX, address any non-compliance identified by the audit, including, but not limited to, promptly paying any fees owed. If the audit discloses an underpayment of ten percent (10%) or more of fees owed for the period audited or other material breach of this AGREEMENT, you agree to also reimburse CITRIX for the reasonable audit expenses. Note that a PRODUCT may be provided with identified experimental features which are not part of the PRODUCT and which are not covered by MAINTENANCE and the Limited Warranty. Such features are offered AS IS and may never become part of the PRODUCT or any CITRIX commercial product. Citrix makes no representations or certifications with respect to experimental features. ALL RIGHTS IN THE PRODUCT NOT EXPRESSLY GRANTED ARE RESERVED BY CITRIX OR ITS LICENSORS. CITRIX and/or its licensors own and retain all title and ownership of all intellectual property rights in and to the PRODUCT, including any adaptations, modifications, translations, derivative works or copies, and any relating to the design, manufacture, or operation of the same. 4. INFRINGEMENT INDEMNIFICATION. In the event of any claim, suit, or proceeding brought against you based on an allegation that a PRODUCT, experimental features or consulting deliverable hereunder (excluding Open Source Software unless noted at http://www.citrix.com/buy/licensing/product.html) infringes upon any patent, copyright or trade secret of any third party ("Infringement Claim"), CITRIX shall defend, or at its option, settle, such Infringement Claim, and shall pay all costs (including reasonable attorney’s fees) associated with the defense of such Infringement Claim, and all damages finally awarded or settlements undertaken by CITRIX in resolution of such Infringement Claim, provided you: (i) promptly notify CITRIX in writing of your notification or discovery of an Infringement Claim such that CITRIX is not prejudiced by any delay in such notification; (ii) give CITRIX sole control over the defense or settlement of the Infringement Claim; and (iii) provide reasonable assistance in the defense of the same. Following notice of an Infringement Claim, or if CITRIX believes such a claim is likely, CITRIX may at its sole expense and option: (i) procure for you the right to continue to use the alleged infringing PRODUCT, experimental feature or consulting deliverable; (ii) replace or modify the PRODUCT, experimental feature or consulting deliverable to make it non-infringing; or (iii) accept return of the PRODUCT, experimental feature or consulting deliverable and, for the PRODUCT, provide you with a prorated refund for the PRODUCT, using a three (3) year straight line depreciation basis for the PRODUCT, or, for the consulting deliverable, refund payments made for the deliverable. CITRIX assumes no liability, and shall have no liability, for any Infringement Claims or allegations of infringement based on: (i) your use of any PRODUCT, experimental feature or consulting deliverable after notice that you should cease use of such PRODUCT, experimental feature or consulting deliverable due to an Infringement Claim; (ii) any modification of the PRODUCT, experimental feature or consulting deliverable by you or at your direction; (iii) your combination of the PRODUCT, experimental feature or consulting deliverable with non-CITRIX hardware, software, services, data or other content or materials if such Infringement Claim would have been avoided by the use of the PRODUCT, experimental feature or consulting deliverable alone. THE FOREGOING STATES YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY INFRINGEMENT CLAIM OR ALLEGATION OF INFRINGEMENT. 5. LIMITED WARRANTY AND DISCLAIMER. CITRIX warrants that for a period of ninety (90) days from delivery of the License Keys, the software in a software or appliance PRODUCT will perform substantially in accordance with the PRODUCT’s documentation published by CITRIX and included with the PRODUCT. Citrix warrants that for a period of one (1) year from delivery of the License Keys, the hardware in an appliance PRODUCT, will be free from defects in material and workmanship in normal use. This hardware warranty does not cover any of the following: (1) improper installation, maintenance, adjustment, repair or modification by Customer or a third party; (2) misuse, neglect, or any other cause other than ordinary use, including without limitation, accidents or acts of �God; (3) improper environment, excessive or inadequate heating or air conditioning, electrical power failures, surges, other irregularities or water damage; (4) third party software or software drivers; or (5) damage to hardware during shipment of an appliance PRODUCT. CITRIX and its licensors’ and suppliers’ ("SUPPLIERS’") entire liability and your exclusive remedy under this software or hardware warranty (which is subject to your return of the PRODUCT to CITRIX or an authorized reseller) will be, at the sole option of CITRIX and subject to applicable law, to replace the PRODUCT or to refund the purchase price and terminate your license to any software on the PRODUCT. CITRIX will provide MAINTENANCE (including technical support and consulting services if purchased) in a professional and workmanlike manner, but CITRIX cannot guarantee that every question or problem raised by you will be resolved or resolved in a certain amount of time. Citrix does not warrant in any form the results or achievements of the PRODUCT, technical support, consulting services or related deliverables. With respect to technical support, CITRIX’ and its SUPPLIERS’ entire liability and your exclusive remedy under this warranty is re-performance of the services. With respect to consulting services, CITRIX’ and its SUPPLIERS’ entire liability and your exclusive remedy under this warranty is re-performance of the services or, if re-performance is not possible or conforming, refund of amounts paid for the non-conforming services. TO THE EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT FOR THE ABOVE LIMITED WARRANTY, CITRIX AND ITS SUPPLIERS MAKE AND YOU RECEIVE NO WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE; AND CITRIX AND ITS SUPPLIERS SPECIFICALLY DISCLAIM WITH RESPECT TO THE PRODUCT, ANY EXPERIMENTAL FEATURES, MAINTENANCE AND ANY OTHER SOFTWARE OR SERVICE DELIVERED HEREUNDER, ANY CONDITIONS OF QUALITY, AVAILABILITY, RELIABILITY, SECURITY, LACK OF VIRUSES, BUGS, OR ERRORS, AND ANY IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. THE PRODUCT AND MAINENANCE ARE NOT DESIGNED, MANUFACTURED, DELIVERED OR INTENDED FOR ANY USE WHERE FAILURE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. YOU ASSUME RESPONSIBILITY FOR THEIR SELECTION TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THEIR INSTALLATION, USE, AND RESULTS OBTAINED THEREFROM. 6. EXPORT RESTRICTION. You agree that you will not export, re-export, or import the PRODUCT, MAINTENANCE or any other software or service delivered hereunder in any form without the appropriate government licenses. You understand that under no circumstances may the PRODUCT, MAINTENANCE or any other software or service delivered hereunder be exported to any country subject to U.S. embargo or to U.S.designated denied persons or prohibited entities or U.S. specially designated nationals. 7. LIMITATION OF LIABILITY. EXCEPT FOR CITRIX’ INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN SECTION 4, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT NEITHER CITRIX NOR ITS AFFILIATES, SUPPLIERS, OR AUTHORIZED DISTRIBUTORS SHALL BE LIABLE FOR ANY LOSS OF DATA OR PRIVACY, LOSS OF INCOME, LOSS OF OPPORTUNITY OR PROFITS, COST OF RECOVERY, LOSS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING FROM YOUR USE OF THE PRODUCT, EXPERIMENTAL FEATURES, MAINTENANCE OR ANY OTHER SOFTWARE OR SERVICE DELIVERED HEREUNDER, OR DAMAGE ARISING FROM YOUR USE OF THIRD PARTY PRODUCTS OR HARDWARE, OR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR YOUR EXPORTATION, REEXPORTATION, OR IMPORTATION OF ANY OR ALL OF THE SAME. THIS LIMITATION WILL APPLY EVEN IF CITRIX, ITS AFFILIATES, SUPPLIERS, OR AUTHORIZED DISTRIBUTORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. EXCEPT FOR CITRIX’ INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH IN SECTION 4 (UNLESS NOTED AT http://www.citrix.com/buy/licensing/product.html), AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF CITRIX, ITS AFFILIATES, SUPPLIERS, OR AUTHORIZED DISTRIBUTORS EXCEED THE AMOUNT PAID FOR THE PRODUCT, EXPERIMENTAL FEATURES, MAINTENANCE TERM, CONSULTING DELIVERABLE OR ANY OTHER SOFTWARE OR SERVICE DELIVERED HEREUNDER AT ISSUE. YOU ACKNOWLEDGE THAT THE �PRODUCT AND MAINTENANCE FEES REFLECT THESE ALLOCATIONS OF RISK. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. For purposes of this AGREEMENT, the term "AFFILIATE" shall mean any entity that controls, is under common control with, or is controlled by CITRIX, where "control" means the ownership, direct or indirect, of a majority of CITRIX’ stock or other interest entitled allowing the owner to direct the affairs of CITRIX. AFFILIATES, suppliers, and authorized distributors are intended to be third party beneficiaries of this AGREEMENT. 8. TERMINATION AND SURVIVAL. This AGREEMENT is effective until terminated. You may terminate this AGREEMENT at any time by removing the software of your software PRODUCT(s) from your computers and destroying all copies, and by removing the software of your appliance PRODUCT(s) from the hardware, and then providing written notice to CITRIX with the serial numbers of your License Keys. CITRIX may terminate this AGREEMENT at any time for your breach of this AGREEMENT. Unauthorized copying of the software in a software or appliance PRODUCT or the Documentation or otherwise failing to comply with the license grant or restrictions of this AGREEMENT will result in automatic termination of this AGREEMENT and will make available to CITRIX all other legal remedies. You agree and acknowledge that your material breach of this AGREEMENT shall cause CITRIX irreparable harm for which monetary damages alone would be inadequate and that, to the extent permitted by applicable law, CITRIX shall be entitled to injunctive or equitable relief without the need for posting a bond. Upon termination of this AGREEMENT, the PRODUCT licenses granted hereunder will terminate and you must immediately destroy the software in a software or appliance PRODUCT and the Documentation, and all backup copies thereof. Any termination of consulting services is subject to the applicable scope definition, and you shall pay for services provided prior to the termination. All purchases are final with no right of return, and neither CITRIX nor any reseller or distributor will be obligated to pay, nor will you be due, any refund of amounts paid by you, other than under the Limited Warranty or Infringement Indemnification terms of this AGREEMENT. Those provisions of this AGREEMENT which are intended by the parties to survive shall survive termination of this AGREEMENT, including without limitation, the Limitation of Liability terms. 9. U.S. GOVERNMENT END-USERS. If you are a U.S. Government agency, you hereby acknowledge and agree that the software in a software or appliance PRODUCT constitutes "Commercial Computer Software" as defined in Section 2.101 of the Federal Acquisition Regulation ("FAR"), 48 CFR 2.101. Therefore, in accordance with Section 12.212 of the FAR (48 CFR 12.212), and Sections 227.7202-1 and 227.7202-3 of the Defense Federal Acquisition Regulation Supplement ("DFARS") (48 CFR 227.7202-1 and 227.7202-3), the use, duplication, and disclosure of the software and related Documentation by the U.S. Government or any of its agencies is governed by, and is subject to, all of the terms, conditions, restrictions, and limitations set forth in this standard commercial license AGREEMENT. If, for any reason, FAR 12.212 or DFARS 227.7202-1 or 227.7202-3 or these license terms are deemed not applicable, you hereby acknowledge that the Government’s right to use, duplicate, or disclose the software and related Documentation are "Restricted Rights" as defined in 48 CFR Section 52.227-14(a) (May 2014) or DFARS 252.227-7014(a)(15) (Feb 2014), as applicable. Manufacturer is Citrix Systems, Inc., 851 West Cypress Creek Road, Fort Lauderdale, Florida 33309. 10. CONSENT TO USE DATA. You agree that CITRIX may collect and use data and related information, including, but not limited to, technical information about devices, systems, related software, services, or peripherals associated with your use of the PRODUCT. Data collected may be used for purposes of facilitating the provision of Updates, license authentication, support, analytics and other purposes consistent with the Citrix Privacy Policy at http://www.citrix.com/about/legal/privacy.html. 11. AUTHORIZED DISTRIBUTORS AND RESELLERS. CITRIX authorized distributors and resellers do not have the right to make modifications to this AGREEMENT or to make any additional representations, commitments, or warranties binding on CITRIX. 12. CHOICE OF LAW AND VENUE. The location of your providing entity will determine the choice of law and venue as identified at https://www.citrix.com/buy/licensing/citrix-providing-entities.html. If any provision of this AGREEMENT is invalid or unenforceable under applicable law, it shall be to that extent deemed omitted and the remaining provisions will continue in full force and effect. To the extent a provision is deemed omitted, the parties agree to comply with the remaining terms of this AGREEMENT in a manner consistent with the original intent of the AGREEMENT. No waiver is effective unless signed by the party to be bound. �13. ASSIGNMENT AND SUBCONTRACTING. Neither party hereto may assign this AGREEMENT, or any rights or obligations under it except as permitted by law or as set forth below, without the prior written consent of the other party, unless assigned to a successor in interest, or pursuant to a merger, corporate reorganization, or a sale or transfer of all or substantially all of the party’s assets. You shall provide notice to CITRIX upon completion of any permitted assignment. In addition, you may assign this AGREEMENT to a majority-owned affiliate, and CITRIX may assign this AGREEMENT, or any rights or obligations under it to any AFFILIATE or any third party acquiring or otherwise assuming part of the business of CITRIX or any of its AFFILIATES. Subject to this restriction, this AGREEMENT will be binding upon and inure to the benefit of the parties hereto, their successors and assigns. CITRIX may use subcontractors to provide services to you under this AGREEMENT, but CITRIX shall remain responsible to you for the performance of the services. 14. HOW TO CONTACT CITRIX. Should you have any questions concerning this AGREEMENT or want to contact CITRIX for any reason, write to CITRIX Customer Service at the address identified at https://www.citrix.com/buy/licensing/citrix-providing-entities.html. 15. TRADEMARKS. This AGREEMENT does not grant you the right to use any CITRIX trade or service mark. For information about proper permitted usage of CITRIX trademarks please see: http://www.citrix.com/about/legal/brand-guidelines.html. CTX_code: ESP_P_A10090596 �
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END USER LICENSE AGREEMENT BY ACCESSING OR USING THE E-QUIPP WEBSITE, YOU AGREE TO ALL OF THE FOLLOWING PROVISIONS AND ENTER INTO A LEGALLY BINDING AGREEMENT WITH E-QUIPP (WHICH FOR PURPOSES OF THIS AGREEMENT INCLUDES THE PHARMACY QUALITY ALLIANCE, CECITY.COM, INC. (THE HOST OF E-QUIPP) AND THEIR RESPECTIVE AFFILIATES) TO ABIDE BY THE PROVISIONS OF THIS AGREEMENT. E-QUIPP RESERVES THE RIGHT TO MODIFY THIS AGREEMENT AT ANY TIME BY POSTING SUCH MODIFICATIONS TO THIS WEBSITE. YOUR CONTINUED ACCESS TO OR USE OF THIS WEBSITE AFTER SUCH POSTING WILL SIGNIFY YOUR AGREEMENT TO SUCH MODIFICATIONS, IF ANY. SCOPE OF LICENSE The information accessible on this Website (including, for example, the educational materials, scientific content, graphic designs, video, audio, photographic or literary content) is owned by E-QuIPP, its business associates, or third parties. You are authorized to use this information provided on the Website solely for your personal use. You may not access or use this information for commercial, competitive, or any other purposes. You may not modify, republish, post, transmit, or distribute any information without the express written consent of E-QuIPP. You may copy this information only to the extent necessary for your personal use. E-QuIPP expressly retains all right, title, and interest in and to any proprietary information. Failure to adhere to these provisions could subject you to serious penalties under federal copyright law. PRIVACY Your use of the Website is governed by our Privacy Policy, which is incorporated into this Agreement by reference. By using the Website, you indicate that you understand and agree to the practices described in the Privacy Policy. Our privacy policy may be accessed by clicking on the “Privacy Policy” link at the bottom of any page of the Website or by clicking here: http://www.EQuIPP.com/Privacy.aspx INFORMATIONAL NATURE OF THE SITE: NO MEDICAL ADVICE THE INFORMATION ON THE WEBSITE IS INTENDED FOR USE AS CONTINUING EDUCATION ONLY AND SHOULD NOT BE CONSTRUED AS MEDICAL ADVICE. THIS INFORMATION SHOULD NOT BE USED IN PLACE OF SEEKING PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT BY LICENSED PRACTITIONERS. E-QUIPP DOES NOT PRACTICE MEDICINE OR LAW, AND DOES NOT OFFER ANY OTHER PROFESSIONAL ADVICE OR SERVICES. YOU ASSUME FULL RESPONSIBILITY FOR APPROPRIATE USE OF THE INFORMATION AVAILABLE THROUGH THIS WEBSITE. If you think you may have a medical emergency, call your doctor or 911 immediately. E-QuIPP does not recommend or endorse any specific tests, physicians, products, procedures, opinions, or other information that may be mentioned on the Website. CHILDREN AND INTERNATIONAL USERS The E-QuIPP Website is designed for adults 18 years of age or older. Users under the age of 18 are not permitted to use the Website. By using the Website, you agree to provide E-QuIPP with accurate information concerning your age or identity as requested by E-QuIPP. You also agree not to assist children under the age of 18 in accessing the Website. -1- �If you are not a U.S. resident, you may access the Website solely at your own risk and are responsible for compliance with local laws and regulations, if applicable. By disclosing your personal information to the Website, you consent to the uses of such information described in the Privacy Policy, located at http://www.EQuIPP.com/Privacy.aspx, and acknowledge that such disclosure and use shall be governed by the applicable law of the United States and the State of Pennsylvania and not the law of your home country. Do not disclose any personal information to the Website if you do not agree to the foregoing. PASSWORD AND SECURITY You are solely responsible for maintaining the confidentiality of any user name and password you use to access the E-QuIPP Website and are fully responsible for all activities that occur under your password or account. You agree (i) to notify E-QuIPP immediately of any unauthorized use of your password or account or any other breach of security and (ii) to ensure that you exit from your account at the end of each session. E-QuIPP cannot and will not be liable for any loss or damage arising from your failure to comply with this provision. LINKED WEBSITES AND ADVERTISING E-QuIPP may provide links to the websites or services of third-party sites. Links to such third-party sites do not constitute an endorsement by E-QuIPP of such sites or the products, content, materials, or information presented or made available by such sites. You acknowledge and agree that E-QuIPP is not responsible for any damages or losses caused or alleged to have been caused by the use of any thirdparty sites or from the products, content, material, or information presented by or available through those sites. This Website and its content (but not the content of third-party sites) are hosted by CECity.com, Inc., an independent Pennsylvania corporation. You transmit data to a server located in Pennsylvania subject to United States and Pennsylvania law. ACCREDITATION E-QUIPP IS NOT RESPONSIBLE FOR ENSURING THE VALIDITY OF ANY CONTINUING EDUCATION OR MAINTENANCE OF CERTIFICATION CREDITS; ISSUING NOTIFICATION OF CREDITS OR CERTIFICATION; ENSURING THE SUFFICIENCY OF CREDITS FOR LICENSE RENEWAL, HOSPITAL BOARDS, MAINTENANCE OF CERTIFICATION, OR RECOGNITION PROGRAMS; ENSURING PROGRAM CONTENT IS SUFFICIENT TO EARN CONTINUING EDUCATION CREDIT; OR ENSURING THE ACCURACY OR COMPLETENESS OF PERSONAL TRANSCRIPTS. DISCLOSURE OF AFFILIATIONS E-QuIPP works with a variety of third parties to provide the services available on this Website and to provide links to other websites. These third parties include, for example, accrediting bodies, content providers, technology providers, and suppliers of medical products, information, and services. These entities may supply information that is posted on or accessible through this Website, and, solely in the case of accrediting bodies, may set standards applicable to certain content, but they do not control the content or the operation of this Website. -2- �DISCLAIMER OF WARRANTY THIS WEBSITE AND ALL SERVICES AND INFORMATION MADE AVAILABLE ON OR THROUGH THIS WEBSITE ARE PROVIDED ON AN "AS IS," "WHERE IS," AND "AS AVAILABLE" BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ACCURACY OF INFORMATIONAL CONTENT. Without limiting the foregoing, E-QuIPP makes no representations or warranties about the accuracy, reliability, completeness, correctness, or timeliness of the content, software, text, graphics, video, links, or communications provided on or through the use of the Website. When using the Website, information will be transmitted over a medium that may be beyond E-QuIPP’s control and jurisdiction. Accordingly, E-QuIPP does not assume any liability for or relating to the delay, failure, interruption, or corruption of any data or other information transmitted in connection with use of the Website. E-QUIPP DOES NOT WARRANT THAT THIS WEBSITE OR ANY SERVICES OR INFORMATION MADE AVAILABLE ON OR THROUGH THIS WEBSITE, INCLUDING WITHOUT LIMITATION ANY THIRD-PARTY SOFTWARE, PRODUCTS, ITEMS OR OTHER MATERIALS USED IN CONNECTION WITH THIS WEBSITE, WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. ANY INFORMATION DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THIS WEBSITE IS DONE AT YOUR OWN DISCRETION AND RISK. YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOADING OR USE OF THE INFORMATION AND FOR ANY RESULTS OR LACK OF RESULTS FROM THE USE OF SUCH INFORMATION. LIMITATION OF LIABILITY IN NO EVENT SHALL E-QUIPP BE LIABLE FOR ANY CLAIMS OR LOSSES WHATSOEVER OF ANY KIND, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE, AND WHETHER ARISING FROM AN ACTION IN CONTRACT, TORT, OR OTHERWISE, RELATED TO OR IN CONNECTION WITH THIS WEBSITE OR ANY SERVICES OR INFORMATION MADE AVAILABLE ON OR THROUGH THIS WEBSITE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, E-QUIPP SHALL NOT BE LIABLE FOR ANY CLAIMS OR LOSSES IN CONNECTION WITH ERRORS, OMISSIONS, OR INACCURACIES OF INFORMATIONAL CONTENT, OR ANY DECISION MADE IN RELIANCE ON THE INFORMATION CONTAINED ON OR ACCESSIBLE THROUGH THE WEBSITE. YOUR SOLE REMEDY FOR ANY CLAIMS IN CONNECTION WITH THIS WEBSITE IS TO DISCONTINUE USING THIS WEBSITE AND THE RELATED CONTENT AND SERVICES. THE FOREGOING LIMITATION SHALL APPLY AND SURVIVE NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. -3- �INDEMNIFICATION YOU AGREE TO INDEMNIFY, DEFEND AND HOLD E-QUIPP HARMLESS FROM ANY AND ALL CLAIMS OR LOSSES ARISING FROM YOUR USE OF OR RELIANCE ON THIS WEBSITE OR ANY SERVICES OR INFORMATION MADE AVAILABLE ON OR THROUGH THIS WEBSITE. CHOICE OF LAW; ENTIRE AGREEMENT; SEVERABILITY; NO WAIVER This Agreement shall be governed by and interpreted in accordance with laws of the Commonwealth of Pennsylvania, without giving effect to any conflict of laws provisions. The parties hereby consent to the exclusive jurisdiction of and agree that venue is proper and convenient in the state and federal courts situated in Allegheny County, Pennsylvania. This Agreement, along with the Privacy Policy incorporated within it by reference, constitutes the entire agreement between you and us with respect to the use of Website and the content. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be enforced to the maximum extent permissible so as to affect the intent of this Agreement, and the remainder of this Agreement shall continue in full force and effect. The failure of E-QuIPP to exercise or enforce any right or provision of this Agreement will not be deemed a waiver of such right or provision. SURVIVAL; CLAIMS The provisions of this Agreement which by their nature would continue beyond termination or expiration of this Agreement shall survive such termination or expiration. Any claims arising in connection with your use of the Website or any content must be brought within one (1) year of the date of the event giving rise to such action. Remedies under these Terms and Conditions are exclusive and are limited to those expressly provided for in these Terms and Conditions. -4- �
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1700 Hamner Ave Ste 204 Norco, CA 92860-2961 Tel: 800-876-0035 Fax: 951-284-6300 E-Series End User License Agreement (EULA) Definitions: Parties: Evohop, Inc and End-User Customer End-User Customer: Any consumer of product or software; business entity using or benefiting from the use of the product or service 1. General Indemnity; Warranty 1.1. Except as limited by any warranty supplied with a Product or Service, which warranty is transferred to any End-User Customer in connection with a sale of such Product or Service by Evohop, Inc. to such Customer, Evohop, Inc. warrants that the Products shall be free from any defects in material and workmanship and will perform in accordance with all specifications relating thereto. Evohop, Inc. shall use its commercially reasonable efforts to insure that the Products, at the time of delivery, shall be free of any virus or other program routine designed to erase or otherwise harm data or other programs of the end user. Evohop, Inc. further warrants that Evohop, Inc. owns the Products, including all rights associated with the holder of the intellectual property, or otherwise has the right to grant end-user customers the right and license provided in this Agreement, and that neither the Products nor the associated documentation infringe any patents, copyrights, trademarks, or other proprietary rights of any third parties. 1.2. Evohop, Inc. warrants that the Products, individually or configured together as a system, will correctly (i) recognize, accept, compare, sequence, store, retrieve, display, compute and process date-data relating to century and day-of-the-week recognition, including single century formulas and multi-century formulas, leap years; (ii) exchange date-data and interface with other software, firmware and computer hardware with which it interacts, provided, that such interacting software, firmware or computer hardware is itself capable of properly and correctly exchanging accurate date-data; and (iii) accept and respond to two-digit date-data input in a manner that resolves any ambiguities as to the century in a defined, predetermined and appropriate manner. 1.3. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR REVENUES, COSTS OF REPLACEMENT GOODS, LOSS OR DAMAGE TO DATA ARISING OUT OF THE USE OR INABILITY TO USE ANY PRODUCT OR SERVICE ARISING IN CONNECTION WITH OR FROM ANY PRODUCT OR SERVICE. 2. Software and Firmware 2.1. One or more components of equipment purchased may contain firmware programs built into their circuitry, unless product is software based. End-User customer has a right to use the firmware as part of the equipment and only under the following conditions: (a) Evohop, Inc. (or its partners) retains all title and ownership to the programs; (b) the firmware may not be copied, disassembled, decompiled or reverse engineered, directly or indirectly, under any circumstances. 3. Proprietary Information 3.1. Evohop, Inc. and End-User customer shall each exercise due diligence to maintain in confidence and not disclose to any third party any proprietary information furnished by the other to it on a confidential basis and identified as such when furnished. Except in accordance with this Agreement, neither Party shall use such information without permission of the Party that furnished it. As used in this paragraph, “due diligence” means the same precaution and standard of care which that Party uses to safeguard its own proprietary data, but in no event less than reasonable care. 3.2. Except as expressly provided for in this Agreement, this Agreement does not grant any license under any patents or other intellectual property rights owned or controlled by or licensed to Evohop, Inc. End-User Customer shall not have any right to manufacture, duplicate, backup, open, erase, flash, tamper, or repair Evohop, Inc. Products. Page 1 of 3 �1700 Hamner Ave Ste 204 Norco, CA 92860-2961 Tel: 800-876-0035 Fax: 951-284-6300 3.3. During the course of the relationship between the Parties, proprietary, confidential, or other forms of sensitive information may be transferred knowingly or unknowingly from one Party to the other. Both Parties shall protect the confidential, proprietary, and other forms of sensitive information from any form of public disclosure. Both Parties shall mark or disclose such information as confidential, proprietary, or sensitive whenever possible. Both Parties shall exercise reasonable judgment for any and all other forms of information that may not be marked or disclosed as confidential, proprietary, or sensitive and protect it in the same ways it would such information if it was marked. 3.4 All shipped Products are considered sealed. Any attempt to tamper with or open the casing is considered a breach of this Agreement. Legal proceeding will also be pursued if one or more of the Products are deemed by Evohop, Inc. to have been tampered with. 4. Limitation of Liability 4.1. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ANY OTHER LICENSE, WARRANTY OR OTHER DOCUMENT OR INSTRUMENT ASSOCIATED WITH ANY PRODUCT OR SERVICE, UNDER NO CIRCUMSTANCES, INCLUDING ANY INFRINGEMENT CLAIMS, SHALL EVOHOP, INC. BE LIABLE TO END-USER CUSTOMER OR ANY OTHER PERSON OR ENTITY FOR ANY RE-PROCUREMENT COSTS, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST REVENUE OR PROFITS, COSTS OF REPLACEMENT GOODS, LOSS OR DAMAGE TO DATA ARISING OUT OF THE USE OR INABILTY TO USE ANY PRODUCT OR SERVICE, EVEN IF EVOHOP, INC. HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. 4.2. Both Parties agree that any form of damages, claims, penalties, fees, and liabilities shall be aggregated as a single “loss” and shall not exceed the amount of completed commercial transactions between the Evohop, Inc. Reseller and Evohop, Inc. for the previous 90 days. 5. Compliance with Laws 5.1. The End-User Customer shall be responsible, as applicable, for its respective obligations to comply with the laws and regulations applicable in any territory, or any nation, or political subdivision thereof, in which the Party engages in business in performing its respective responsibilities hereunder. The End-User Customer will bear their applicable expenses and costs related to compliance with such laws and regulations. 6. Governing Law 6.1. This Agreement shall be governed by the laws of the State of California, without regard to its choice of law principles. 7. Cooperation 7.1 Each Party shall give its full cooperation to the other Party in achieving and fulfilling the terms of this Agreement and to that end, each Party shall give all consents and information reasonably requested to fulfill and achieve these purposes, including, but not limited to, as may be required by governmental laws or regulations. 8. Arbitration 8.1. All disputes concerning this Agreement and the performance of the Parties shall be subject to binding arbitration conducted in Norco, California under the commercial rules of the American Arbitration Association (“AAA”) applying California law. Arbitrators shall have the authority to issue temporary restraining orders and permanent injunctions in addition to all other authority granted by AAA rules. The Parties will advance the costs of the arbitration equally and costs and attorney fees recoverable under California law will be awarded to the prevailing Party. Page 2 of 3 �1700 Hamner Ave Ste 204 Norco, CA 92860-2961 Tel: 800-876-0035 Fax: 951-284-6300 10. Entire Agreement 10.1. This Agreement referred to herein, constitutes the entire understanding between the Parties with respect to the subject matter thereof, but shall be deemed to include the E-Series Standard Terms and Conditions of Service and the terms of any licenses and warranties, including limitations of liability therein, associated with any Product or Service. 11. Modifications 11.1 This Agreement shall not be modified except by an instrument in writing by Evohop, Inc. 12. Severability 12.1 If any provision of this Agreement is held to be unenforceable, invalid or illegal, that provision shall be deemed severed and that provision will not affect the other provisions of this Agreement. Page 3 of 3 �
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End User License Agreement IMPORTANT: PLEASE READ THIS END USER LICENSE AGREEMENT CAREFULLY. IT IS VERY IMPORTANT THAT YOU CHECK THAT YOU ARE PURCHASING CISCO SOFTWARE OR EQUIPMENT FROM AN APPROVED SOURCE AND THAT YOU, OR THE ENTITY YOU REPRESENT (COLLECTIVELY, THE "CUSTOMER") HAVE BEEN REGISTERED AS THE END USER FOR THE PURPOSES OF THIS CISCO END USER LICENSE AGREEMENT. IF YOU ARE NOT REGISTERED AS THE END USER YOU HAVE NO LICENSE TO USE THE SOFTWARE AND THE LIMITED WARRANTY IN THIS END USER LICENSE AGREEMENT DOES NOT APPLY. ASSUMING YOU HAVE PURCHASED FROM AN APPROVED SOURCE, DOWNLOADING, INSTALLING OR USING CISCO OR CISCO-SUPPLIED SOFTWARE CONSTITUTES ACCEPTANCE OF THIS AGREEMENT. CISCO SYSTEMS, INC. OR ITS AFFILIATE LICENSING THE SOFTWARE ("CISCO") IS WILLING TO LICENSE THIS SOFTWARE TO YOU ONLY UPON THE CONDITION THAT YOU PURCHASED THE SOFTWARE FROM AN APPROVED SOURCE AND THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS END USER LICENSE AGREEMENT PLUS ANY ADDITIONAL LIMITATIONS ON THE LICENSE SET FORTH IN A SUPPLEMENTAL LICENSE AGREEMENT ACCOMPANYING THE PRODUCT, MADE AVAILABLE AT THE TIME OF YOUR ORDER, OR POSTED ON THE CISCO WEBSITE AT www.cisco.com/go/terms (COLLECTIVELY THE "AGREEMENT"). TO THE EXTENT OF ANY CONFLICT BETWEEN THE TERMS OF THIS END USER LICENSE AGREEMENT AND ANY SUPPLEMENTAL LICENSE AGREEMENT, THE SUPPLEMENTAL LICENSE AGREEMENT SHALL APPLY. BY DOWNLOADING, INSTALLING, OR USING THE SOFTWARE, YOU ARE REPRESENTING THAT YOU PURCHASED THE SOFTWARE FROM AN APPROVED SOURCE AND BINDING YOURSELF TO THE AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THE AGREEMENT, THEN CISCO IS UNWILLING TO LICENSE THE SOFTWARE TO YOU AND (A) YOU MAY NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE, AND (B) YOU MAY RETURN THE SOFTWARE (INCLUDING ANY UNOPENED CD PACKAGE AND ANY WRITTEN MATERIALS) FOR A FULL REFUND, OR, IF THE SOFTWARE AND WRITTEN MATERIALS ARE SUPPLIED AS PART OF ANOTHER PRODUCT, YOU MAY RETURN THE ENTIRE PRODUCT FOR A FULL REFUND. YOUR RIGHT TO RETURN AND REFUND EXPIRES 30 DAYS AFTER PURCHASE FROM AN APPROVED SOURCE, AND APPLIES ONLY IF YOU ARE THE ORIGINAL AND REGISTERED END USER PURCHASER. FOR THE PURPOSES OF THIS END USER LICENSE AGREEMENT, AN "APPROVED SOURCE" MEANS (A) CISCO; OR (B) A DISTRIBUTOR OR SYSTEMS INTEGRATOR AUTHORIZED BY CISCO TO DISTRIBUTE / SELL CISCO EQUIPMENT, SOFTWARE AND SERVICES WITHIN YOUR TERRITORY TO END USERS; OR (C) A RESELLER AUTHORIZED BY ANY SUCH DISTRIBUTOR OR SYSTEMS INTEGRATOR IN ACCORDANCE WITH THE TERMS OF THE DISTRIBUTOR'S AGREEMENT WITH CISCO TO DISTRIBUTE / SELL THE CISCO EQUIPMENT, SOFTWARE AND SERVICES WITHIN YOUR TERRITORY TO END USERS. THE FOLLOWING TERMS OF THE AGREEMENT GOVERN CUSTOMER'S USE OF THE SOFTWARE (DEFINED BELOW), EXCEPT TO THE EXTENT: (A) THERE IS A SEPARATE SIGNED CONTRACT BETWEEN CUSTOMER AND CISCO GOVERNING CUSTOMER'S USE OF THE SOFTWARE, OR (B) THE SOFTWARE INCLUDES A SEPARATE "CLICK-ACCEPT" LICENSE AGREEMENT OR THIRD PARTY LICENSE AGREEMENT AS PART OF THE INSTALLATION OR DOWNLOAD PROCESS GOVERNING CUSTOMER'S USE OF THE SOFTWARE. TO THE EXTENT OF A CONFLICT BETWEEN THE PROVISIONS OF THE FOREGOING DOCUMENTS, THE ORDER OF PRECEDENCE SHALL BE (1)THE SIGNED CONTRACT, (2) THE CLICK-ACCEPT AGREEMENT OR THIRD PARTY LICENSE AGREEMENT, AND (3) THE AGREEMENT. FOR PURPOSES OF THE AGREEMENT, "SOFTWARE" SHALL MEAN COMPUTER PROGRAMS, INCLUDING FIRMWARE AND COMPUTER PROGRAMS EMBEDDED IN CISCO EQUIPMENT, AS PROVIDED TO CUSTOMER BY AN APPROVED SOURCE, AND ANY UPGRADES, UPDATES, BUG FIXES OR MODIFIED VERSIONS THERETO (COLLECTIVELY, "UPGRADES"), ANY OF THE SAME WHICH HAS BEEN RELICENSED UNDER THE CISCO SOFTWARE TRANSFER AND RE-LICENSING POLICY (AS MAY BE AMENDED BY CISCO FROM TIME TO TIME) OR BACKUP COPIES OF ANY OF THE FOREGOING. License. Conditioned upon compliance with the terms and conditions of the Agreement, Cisco grants to Customer a nonexclusive and nontransferable license to use for Customer's internal business purposes the Software and the Documentation for which Customer has paid the required license fees to an Approved Source. "Documentation" means written information (whether contained in user or technical manuals, training materials, specifications or otherwise) pertaining to the Software and made available by an Approved Source with the Software in any manner (including on CD-Rom, or on-line). In order to use the Software, Customer may be required to input a registration number or product authorization key and register Customer's copy of the Software online at Cisco's website to obtain the necessary license key or license file. Customer's license to use the Software shall be limited to, and Customer shall not use the Software in excess of, a single hardware chassis or card or such other limitations as are set forth in the applicable Supplemental License Agreement or in the applicable purchase order which has been accepted by an Approved Source and for which Customer has paid to an Approved Source the required license fee (the "Purchase Order"). Unless otherwise expressly provided in the Documentation or any applicable Supplemental License Agreement, Customer shall use the Software solely as embedded in, for execution on, or (where the applicable Documentation permits installation on non-Cisco equipment) for communication with Cisco equipment owned or leased by Customer and used for Customer's internal business purposes. No other licenses are granted by implication, estoppel or otherwise. For evaluation or beta copies for which Cisco does not charge a license fee, the above requirement to pay license fees does not apply. General Limitations. This is a license, not a transfer of title, to the Software and Documentation, and Cisco retains ownership of all copies of the Software and Documentation. Customer acknowledges that the Software and Documentation contain trade secrets of Cisco or its suppliers or licensors, including but not limited to the specific internal design and structure of individual programs and associated interface information. Except as otherwise expressly provided under the Agreement, Customer shall only use the Software in connection with the use of Cisco equipment purchased by the Customer from an Approved Source and Customer shall have no right, and Customer specifically agrees not to: (i) transfer, assign or sublicense its license rights to any other person or entity (other than in compliance with any Cisco relicensing/transfer policy then in force), or use the Software on Cisco equipment not purchased by the Customer from an Approved Source or on secondhand Cisco equipment, and Customer acknowledges that any attempted transfer, assignment, sublicense or use shall be void; (ii) make error corrections to or otherwise modify or adapt the Software or create derivative works based upon the Software, or permit third parties to do the same; (iii) reverse engineer or decompile, decrypt, disassemble or otherwise reduce the Software to human-readable form, except to the extent otherwise expressly permitted under applicable law notwithstanding this restriction or except to the extent that Cisco is legally required to permit such specific activity pursuant to any applicable open source license; (iv) publish any results of benchmark tests run on the Software; (v) use or permit the Software to be used to perform services for third parties, whether on a service bureau or time sharing basis or otherwise, without the express written authorization of Cisco; or (vi) disclose, provide, or otherwise make available trade secrets contained within the Software and Documentation in any form to any third party without the prior written consent of Cisco. Customer shall implement reasonable security measures to protect such trade secrets. To the extent required by applicable law, and at Customer's written request, Cisco shall provide Customer with the interface information needed to achieve interoperability between the Software and another independently created program, on payment of Cisco's applicable fee, if any. Customer shall observe strict obligations of confidentiality with respect to such information and shall use such information in compliance with any applicable terms and conditions upon which Cisco makes such information available. Software, Upgrades and Additional Copies. NOTWITHSTANDING ANY OTHER PROVISION OF THE AGREEMENT: (1) CUSTOMER HAS NO LICENSE OR RIGHT TO MAKE OR USE ANY ADDITIONAL COPIES OR UPGRADES UNLESS CUSTOMER, AT THE TIME OF MAKING OR ACQUIRING SUCH COPY OR UPGRADE, ALREADY HOLDS A VALID LICENSE TO THE ORIGINAL SOFTWARE AND HAS PAID THE APPLICABLE FEE TO AN APPROVED SOURCE FOR THE UPGRADE OR ADDITIONAL COPIES; (2) USE OF UPGRADES IS LIMITED TO CISCO EQUIPMENT SUPPLIED BY AN APPROVED SOURCE FOR WHICH CUSTOMER IS THE ORIGINAL END USER PURCHASER OR LESSEE OR OTHERWISE HOLDS A VALID LICENSE TO USE THE SOFTWARE WHICH IS BEING UPGRADED; AND (3) THE MAKING AND USE OF ADDITIONAL COPIES IS LIMITED TO NECESSARY BACKUP PURPOSES ONLY. Proprietary Notices. Customer agrees to maintain and reproduce all copyright, proprietary, and other notices on all copies, in any form, of the Software in the same form and manner that such copyright and other proprietary notices are included on the Software. Except as expressly authorized in the Agreement, Customer shall not make any copies or duplicates of any Software without the prior written permission of Cisco. Term and Termination. The Agreement and the license granted herein shall remain effective until terminated. Customer may terminate the Agreement and the license at any time by destroying all copies of Software and any Documentation. Customer's rights under the Agreement will terminate immediately without notice from Cisco if Customer fails to comply with any provision of the Agreement. Upon termination, Customer shall destroy all copies of Software and Documentation in its possession or control. All confidentiality obligations of Customer, all restrictions and limitations imposed on the Customer under the section titled "General Limitations" and all limitations of liability and disclaimers and restrictions of warranty shall survive termination of this Agreement. In addition, the provisions of the sections titled "U.S. Government End User Purchasers" and "General Terms Applicable to the Limited Warranty Statement and End User License Agreement" shall survive termination of the Agreement. Customer Records. Customer grants to Cisco and its independent accountants the right to examine Customer's books, records and accounts during Customer's normal business hours to verify compliance with this Agreement. In the event such audit discloses non-compliance with this Agreement, Customer shall promptly pay to Cisco the appropriate license fees, plus the reasonable cost of conducting the audit. Export, Re-Export, Transfer and Use Controls. The Software, Documentation and technology or direct products thereof (hereafter referred to as Software and Technology), supplied by Cisco under the Agreement are subject to export controls under the laws and regulations of the United States ("U.S.") and any other applicable countries' laws and regulations. Customer shall comply with such laws and regulations governing export, re-export, import, transfer and use of Cisco Software and Technology and will obtain all required U.S. and local authorizations, permits, or licenses. Cisco and Customer each agree to provide the other information, support documents, and assistance as may reasonably be required by the other in connection with securing authorizations or licenses. Information regarding compliance with export, re-export, transfer and use may be located at the following URL: www.cisco.com/web/about/doing_business/legal/global_export_trade/general_export/contract_compliance.html U.S. Government End User Purchasers. The Software and Documentation qualify as "commercial items," as that term is defined at Federal Acquisition Regulation ("FAR") (48 C.F.R.) 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in FAR 12.212. Consistent with FAR 12.212 and DoD FAR Supp. 227.7202-1 through 227.7202-4, Cisco Systems, Inc. www.cisco.com Cisco has more than 200 offices worldwide. Addresses, phone numbers, and fax numbers are listed on the Cisco website at www.cisco.com/go/offices. © 1998, 2001, 2003, 2008–2013 Cisco Systems, Inc. All rights reserved. 78-3621-01S0 �and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which the Agreement may be incorporated, Customer may provide to Government end user or, if the Agreement is direct, Government end user will acquire, the Software and Documentation with only those rights set forth in the Agreement. Use of either the Software or Documentation or both constitutes agreement by the Government that the Software and Documentation are "commercial computer software" and "commercial computer software documentation," and constitutes acceptance of the rights and restrictions herein. Identified Components; Additional Terms. The Software may contain or be delivered with one or more components, which may include third-party components, identified by Cisco in the Documentation, readme.txt file, third-party click-accept or elsewhere (e.g. on www.cisco.com) (the "Identified Component(s)") as being subject to different license agreement terms, disclaimers of warranties, limited warranties or other terms and conditions (collectively, "Additional Terms") than those set forth herein. You agree to the applicable Additional Terms for any such Identified Component(s). Limited Warranty Subject to the limitations and conditions set forth herein, Cisco warrants that commencing from the date of shipment to Customer (but in case of resale by an Approved Source other than Cisco, commencing not more than ninety (90) days after original shipment by Cisco), and continuing for a period of the longer of (a) ninety (90) days or (b) the warranty period (if any) expressly set forth as applicable specifically to software in the warranty card accompanying the product of which the Software is a part (the "Product") (if any): (a) the media on which the Software is furnished will be free of defects in materials and workmanship under normal use; and (b) the Software substantially conforms to the Documentation. The date of shipment of a Product by Cisco is set forth on the packaging material in which the Product is shipped. Except for the foregoing, the Software is provided "AS IS". This limited warranty extends only to the Software purchased from an Approved Source by a Customer who is the first registered end user. Customer's sole and exclusive remedy and the entire liability of Cisco and its suppliers under this limited warranty will be (i) replacement of defective media and/or (ii) at Cisco's option, repair, replacement, or refund of the purchase price of the Software, in both cases subject to the condition that any error or defect constituting a breach of this limited warranty is reported to the Approved Source supplying the Software to Customer, within the warranty period. Cisco or the Approved Source supplying the Software to Customer may, at its option, require return of the Software and/or Documentation as a condition to the remedy. In no event does Cisco warrant that the Software is error free or that Customer will be able to operate the Software without problems or interruptions. In addition, due to the continual development of new techniques for intruding upon and attacking networks, Cisco does not warrant that the Software or any equipment, system or network on which the Software is used will be free of vulnerability to intrusion or attack. Restrictions. This warranty does not apply if the Software, Product or any other equipment upon which the Software is authorized to be used (a) has been altered, except by Cisco or its authorized representative, (b) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by Cisco, (c) has been subjected to abnormal physical or electrical stress, abnormal environmental conditions, misuse, negligence, or accident; or (d) is licensed for beta, evaluation, testing or demonstration purposes. The Software warranty also does not apply to (e) any temporary Software modules; (f) any Software not posted on Cisco's Software Center; (g) any Software that Cisco expressly provides on an "AS IS" basis on Cisco's Software Center; (h) any Software for which an Approved Source does not receive a license fee; and (i) Software supplied by any third party which is not an Approved Source. DISCLAIMER OF WARRANTY EXCEPT AS SPECIFIED IN THIS WARRANTY SECTION, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY, NON-INTERFERENCE, ACCURACY OF INFORMATIONAL CONTENT, OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW AND ARE EXPRESSLY DISCLAIMED BY CISCO, ITS SUPPLIERS AND LICENSORS. TO THE EXTENT THAT ANY OF THE SAME CANNOT BE EXCLUDED, SUCH IMPLIED CONDITION, REPRESENTATION AND/OR WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD REFERRED TO IN THE "LIMITED WARRANTY" SECTION ABOVE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, THE ABOVE LIMITATION MAY NOT APPLY IN SUCH STATES. THIS WARRANTY GIVES CUSTOMER SPECIFIC LEGAL RIGHTS, AND CUSTOMER MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. This disclaimer and exclusion shall apply even if the express warranty set forth above fails of its essential purpose. Disclaimer of Liabilities-Limitation of Liability. IF YOU ACQUIRED THE SOFTWARE IN THE UNITED STATES, LATIN AMERICA, CANADA, JAPAN OR THE CARIBBEAN, NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, ALL LIABILITY OF CISCO, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS COLLECTIVELY, TO CUSTOMER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY OR OTHERWISE, SHALL NOT EXCEED THE PRICE PAID BY CUSTOMER TO ANY APPROVED SOURCE FOR THE SOFTWARE THAT GAVE RISE TO THE CLAIM OR IF THE SOFTWARE IS PART OF ANOTHER PRODUCT, THE PRICE PAID FOR SUCH OTHER PRODUCT. THIS LIMITATION OF LIABILITY FOR SOFTWARE IS CUMULATIVE AND NOT PER INCIDENT (I.E. THE EXISTENCE OF TWO OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT). IF YOU ACQUIRED THE SOFTWARE IN EUROPE, THE MIDDLE EAST, AFRICA, ASIA OR OCEANIA, NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, ALL LIABILITY OF CISCO, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS COLLECTIVELY, TO CUSTOMER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY OR OTHERWISE, SHALL NOT EXCEED THE PRICE PAID BY CUSTOMER TO CISCO FOR THE SOFTWARE THAT GAVE RISE TO THE CLAIM OR IF THE SOFTWARE IS PART OF ANOTHER PRODUCT, THE PRICE PAID FOR SUCH OTHER PRODUCT. THIS LIMITATION OF LIABILITY FOR SOFTWARE IS CUMULATIVE AND NOT PER INCIDENT (I.E. THE EXISTENCE OF TWO OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT). NOTHING IN THE AGREEMENT SHALL LIMIT (I) THE LIABILITY OF CISCO, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS TO CUSTOMER FOR PERSONAL INJURY OR DEATH CAUSED BY THEIR NEGLIGENCE, (II) CISCO'S LIABILITY FOR FRAUDULENT MISREPRESENTATION, OR (III) ANY LIABILITY OF CISCO WHICH CANNOT BE EXCLUDED UNDER APPLICABLE LAW. Disclaimer of Liabilities-Waiver of Consequential Damages and Other Losses. IF YOU ACQUIRED THE SOFTWARE IN THE UNITED STATES, LATIN AMERICA, THE CARIBBEAN OR CANADA, REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL CISCO OR ITS SUPPLIERS BE LIABLE FOR ANY LOST REVENUE, PROFIT, OR LOST OR DAMAGED DATA, BUSINESS INTERRUPTION, LOSS OF CAPITAL, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY OR WHETHER ARISING OUT OF THE USE OF OR INABILITY TO USE SOFTWARE OR OTHERWISE AND EVEN IF CISCO OR ITS SUPPLIERS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF YOU ACQUIRED THE SOFTWARE IN JAPAN, EXCEPT FOR LIABILITY ARISING OUT OF OR IN CONNECTION WITH DEATH OR PERSONAL INJURY, FRAUDULENT MISREPRESENTATION, AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL CISCO, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS BE LIABLE FOR ANY LOST REVENUE, PROFIT, OR LOST OR DAMAGED DATA, BUSINESS INTERRUPTION, LOSS OF CAPITAL, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY OR WHETHER ARISING OUT OF THE USE OF OR INABILITY TO USE SOFTWARE OR OTHERWISE AND EVEN IF CISCO OR ANY APPROVED SOURCE OR THEIR SUPPLIERS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOU ACQUIRED THE SOFTWARE IN EUROPE, THE MIDDLE EAST, AFRICA, ASIA OR OCEANIA, IN NO EVENT WILL CISCO, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS, BE LIABLE FOR ANY LOST REVENUE, LOST PROFIT, OR LOST OR DAMAGED DATA, BUSINESS INTERRUPTION, LOSS OF CAPITAL, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES, HOWSOEVER ARISING, INCLUDING, WITHOUT LIMITATION, IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR WHETHER ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF, IN EACH CASE, CISCO, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT FULLY APPLY TO YOU. THE FOREGOING EXCLUSION SHALL NOT APPLY TO ANY LIABILITY ARISING OUT OF OR IN CONNECTION WITH: (I) DEATH OR PERSONAL INJURY, (II) FRAUDULENT MISREPRESENTATION, OR (III) CISCO'S LIABILITY IN CONNECTION WITH ANY TERMS THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW. Customer acknowledges and agrees that Cisco has set its prices and entered into the Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties. Controlling Law, Jurisdiction. If you acquired, by reference to the address on the purchase order accepted by the Approved Source, the Software in the United States, Latin America, or the Caribbean, the Agreement and warranties ("Warranties") are controlled by and construed under the laws of the State of California, United States of America, notwithstanding any conflicts of law provisions; and the state and federal courts of California shall have exclusive jurisdiction over any claim arising under the Agreement or Warranties. If you acquired the Software in Canada, unless expressly prohibited by local law, the Agreement and Warranties are controlled by and construed under the laws of the Province of Ontario, Canada, notwithstanding any conflicts of law provisions; and the courts of the Province of Ontario shall have exclusive jurisdiction over any claim arising under the Agreement or Warranties. If you acquired the Software in Europe, the Middle East, Africa, Asia or Oceania (excluding Australia), unless expressly prohibited by local law, the Agreement and Warranties are controlled by and construed under the laws of England, notwithstanding any conflicts of law provisions; and the English courts shall have exclusive jurisdiction over any claim arising under the Agreement or Warranties. In addition, if the Agreement is controlled by the laws of England, no person who is not a party to the Agreement shall be entitled to enforce or take the benefit of any of its terms under the Contracts (Rights of Third Parties) Act 1999. If you acquired the Software in Japan, unless expressly prohibited by local law, the Agreement and Warranties are controlled by and construed under the laws of Japan, notwithstanding any conflicts of law provisions; and the Tokyo District Court of Japan shall have exclusive jurisdiction over any claim arising under the Agreement or Warranties. If you acquired the Software in Australia, unless expressly prohibited by local law, the Agreement and Warranties are controlled by and construed under the laws of the State of New South Wales, Australia, notwithstanding any conflicts of law provisions; and the State and federal courts of New South Wales shall have exclusive jurisdiction over any claim arising under the Agreement or Warranties. If you acquired the Software in any other country, unless expressly prohibited by local law, the Agreement and Warranties are controlled by and construed under the laws of the State of California, United States of America, notwithstanding any conflicts of law provisions; and the state and federal courts of California shall have exclusive jurisdiction over any claim arising under the Agreement or Warranties. For all countries referred to above, the parties specifically disclaim the application of the UN Convention on Contracts for the International Sale of Goods. Notwithstanding the foregoing, either party may seek interim injunctive relief in any court of appropriate jurisdiction with respect to any alleged breach of such party's intellectual property or proprietary rights. If any portion hereof is found to be void or unenforceable, the remaining provisions of the Agreement and Warranties shall remain in full force and effect. Except as expressly provided herein, the Agreement constitutes the entire agreement between the parties with respect to the license of the Software and Documentation and supersedes any conflicting or additional terms contained in any Purchase Order or elsewhere, all of which terms are excluded. The Agreement has been written in the English language, and the parties agree that the English version will govern. Product warranty terms and other information applicable to Cisco products are available at the following URL: www.cisco.com/go/warranty Cisco and the Cisco logo are trademarks or registered trademarks of Cisco and/or its affiliates in the U.S. and other countries. To view a list of Cisco trademarks, go to this URL: www.cisco.com/go/trademarks. Third-party trademarks mentioned are the property of their respective owners. The use of the word partner does not imply a partnership relationship between Cisco and any other company. (1110R) 78-3621-01S0 �
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End User License Agreement PLEASE READ THIS END USER LICENSE AGREEMENT (“EULA”) CAREFULLY BEFORE USING THE SOFTWARE SET FORTH ON THE ORDER FORM, STATEMENT OF WORK, IAPP REGISTRATION FORM OR ONETRUST COOKIE COMPLIANCE REGISTRATION FORM ACCOMPANYING THIS EULA (THE “SOFTWARE”). BY DOWNLOADING OR USING THE SOFTWARE IN ANY MANNER OR SIGNING AN ORDER FORM REFERENCING THIS EULA, YOU (“CUSTOMER” OR “YOU”) AGREE THAT YOU HAVE READ AND AGREE ON BEHALF OF YOURSELF AND YOUR COMPANY OR ORGANIZATION TO BE BOUND BY AND A PARTY TO THE TERMS AND CONDITIONS OF THIS EULA TO THE EXCLUSION OF ALL OTHER TERMS. IF A SEPARATE SIGNED WRITTEN AGREEMENT WITH RESPECT TO THE SERVICES EXISTS BETWEEN CUSTOMER AND ONETRUST (EACH A “PARTY”, COLLECTIVELY, THE “PARTIES”), THE TERMS OF THAT SIGNED WRITTEN AGREEMENT (EXCLUDING THE PRE-PRINTED TERMS OF ANY PURCHASE ORDER, CONFIRMATION OR SIMILAR DOCUMENT) SHALL TAKE PRECEDENCE OVER THIS EULA, AND YOU ACKNOWLEDGE THAT CUSTOMER IS BOUND BY THE TERMS OF THAT SIGNED WRITTEN SERVICES AGREEMENT. IF YOU ENTER INTO THIS EULA ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL THE TERMS AND CONDITIONS OF THIS EULA, YOU HAVE NO RIGHT TO USE THE SOFTWARE. USE OF THE SOFTWARE IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS EULA. 1. USE OF SOFTWARE AND LICENSE; RESTRICTIONS. Subject to the terms of this EULA and payment of all applicable fees set forth in the applicable quote or order form signed by both OneTrust and Customer (“Order Form”), OneTrust grants to Customer and its affiliates a nonsublicensable, nontransferable, nonexclusive license to use the Software solely in accordance with, and during the term of, this EULA and solely for Customer’s internal business purposes during the license period specified in the applicable Order Form. As specified in the Order Form, Customer’s license for use of the Software shall be in one of the following manners: (a) as part of a OneTrust-hosted offering (software-as-a-service) accessible by Customer via the internet (“SaaS Offering”), or (b) as part of an on-premise, Customer hosted Software offering (“On-Premise Offering”). For the SaaS Offering, Customer will not be provided with and shall have no right to any software code. With respect to the SaaS Offering only, OneTrust will undertake commercially reasonable efforts to make the SaaS Offering available twenty-four (24) hours a day, seven (7) days a week, but notwithstanding the foregoing, OneTrust reserves the right to suspend Customer’s access to the SaaS Offering for scheduled or emergency maintenance. With respect to the On-Premise Offering, only object code will be provided to Customer, Customer has no rights to any Software source code. Customer may only use the Software subject to the maximum number of users specified in the Order Form. OneTrust shall at all times retain all title to and ownership of the Software and all copies thereof. Customer shall not and shall not allow any third party to (a) reproduce or modify the Software, (b) provide, rent, sell, lease, disclose, use for time sharing or service bureau purposes, or otherwise transfer or distribute the Software or any part thereof or use it for the benefit of a third party, (c) reverse assemble, reverse compile or reverse engineer the Software, or otherwise attempt to discover any Software source code or underlying Proprietary Information (as that term is defined below) (except to the limited extent that applicable law prohibits reverse engineering restrictions), (d) without the express prior written consent of OneTrust, disclose to any third party the results of any benchmarking or comparative study or analysis involving the Software, or (e) possess or use the Software, or allow the transfer, transmission, export, or re-export of the Software or a portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, U.S. Treasury Department's Office of Foreign Assets Control, or any other government agency. Customer shall maintain the copyright notice and any other notices that appear on the Software on any copies (including backup copies) and any media. Customer is responsible for all activity occurring under Customer’s user accounts (including, without limitation, administrators, employees, contractors and/or any other third party users) and their compliance with the terms and conditions herein. OneTrust Copyright © 2016 OneTrust LLC. All rights reserved. Proprietary & Confidential. �is not responsible to Customer for unauthorized access to Customer’s data or the unauthorized use of the Software to the extent that such access is not due to OneTrust’s breach of its confidentiality or security obligations hereunder. 2. SUPPORT AND UPGRADES. Support, including basic assistance in connection with your use of the Software such as e-mail and phone assistance (“Support”), is included in the price of your subscription license. Support can be accessed via [email protected] or any one of the numbers listed on the OneTrust website. Additionally, OneTrust may, from time to time and in its sole discretion, issue new releases for the software including, but not limited to, upgrades, new features, patches, enhancements, or fixes (“Upgrades”) which will be included in the price of your subscription license. With respect to SaaS Offering, Upgrades will be immediately and automatically available as of the release date. With respect to OnPremise Offering, OneTrust will arrange assistance with Customer to guide and help them implement the Upgrades. Both Support and Upgrades are included and offered throughout the entire duration of Customer’s license period. 3. FEES AND PAYMENT. Fees and payments will be invoiced according to the Order Form. All payment obligations are non-cancelable and all amounts paid are nonrefundable. Customer will be billed in U.S. dollars and subject to U.S. payment terms. If payment has not occurred within 15 days after the Payment Due Date, a Late Fee will be charged (“Late Fee”) and will amount to 1.5% of the invoice amount per calendar month (if not invoiced monthly, the invoice amount excluding the applicable one-time fee for On-Premise deployment, prorated to one calendar month). Customer agrees to provide OneTrust with complete and accurate billing and contact information. All pricing terms are Confidential Information, and Customer agrees not to disclose them to any third party. 4. ONETRUST INDEMNITY. OneTrust shall indemnify, defend, and hold harmless Customer, its affiliates, and their respective officers, directors, employees, and representatives (each, including Customer, a “Customer Indemnitee”) from and against any and all losses incurred by the Customer Indemnitee arising out of or relating to any claim by a third party that the Software uses Third Party Software without authorization, provided Customer provides OneTrust with: (i) prompt written notice of any claim; (ii) the option to assume sole control over the defense and settlement of any claim; and (iii) reasonable information and assistance in connection with such defense and settlement. The foregoing obligation of OneTrust does not apply with respect to the Software or anything else to the extent (a) not created or provided by OneTrust (including without limitation any data provided by Customer), (b) made in whole or in part in accordance to Customer specifications, (c) modified after delivery by Customer, (d) combined with other products, processes or materials not provided by OneTrust (where the alleged liability arises from or relate to such combination), (e) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (f) Customer’s use of the Software is not strictly in accordance herewith. 5. CUSTOMER INDEMNITY. Customer shall indemnify, defend, and hold harmless OneTrust, its affiliates, and their respective officers, directors, employees, and representatives (each, including OneTrust, a “OneTrust Indemnitee”) from and against any and all losses incurred by the OneTrust Indemnitee arising out of or relating to (i) Customer’s use of the Software in an unauthorized manner or a manner not contemplated hereunder, (ii) the actual or alleged infringement of any proprietary or other rights of a third party in any materials provided by or on behalf of Customer to OneTrust in connection with this EULA, and (iii) Third party’s use of or reliance on any information generated by the Software. 6. LIMITATION OF COMPLIANCE. Customer acknowledges that use of OneTrust Software and/or materials does not guarantee compliance with any applicable laws and regulations in any jurisdiction. EULA 20161123 2 of 6 �7. FEEDBACK. Customer may, at its discretion, provide feedback to OneTrust with respect to its use of the Software (“Feedback”). Feedback may include, without limitation, errors or difficulties discovered in the Software and the characteristic conditions and symptoms of the errors and difficulties. Unless specifically agreed in writing, Feedback provided by Customer shall not create any confidentiality obligation for OneTrust, and OneTrust shall be free to use, disclose, reproduce, license or otherwise distribute, and exploit such Feedback as it sees fit. 8. SECURITY. Throughout the license term and at all times in connection with its actual or required performance of the services hereunder, OneTrust shall: (a) maintain and enforce an information security program including safety, physical and technical security policies and procedures with respect to its processing of Customer's Confidential Information that meets or exceeds industry practice and standards; (b) provide technical and organizational safeguards against accidental, unlawful or unauthorized access to or use, destruction, loss, alteration, disclosure, transfer, commingling or processing of such information that ensure a level of security appropriate to the risks presented by the processing of Customer's Confidential Information and the nature of such Confidential Information, consistent with best industry practice and standards; (c) report to Customer any breach of security or unauthorized access to Customer's Confidential Information within forty-eight (48) hours after OneTrust detects or becomes aware of it; (d) use diligent efforts to remedy such breach of security or unauthorized access in a timely manner and, upon Customer's written request, deliver to Customer a root cause assessment and future incident mitigation plan with regard to any breach of security or unauthorized access affecting any Confidential Information of Customer; 9. LIMITED WARRANTY AND DISCLAIMERS. ONETRUST DISCLAIMS ALL WARRANTIES RELATING TO THE SOFTWARE, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD-PARTY RIGHTS (EXCLUDING THE INDEMNIFICATION SPECIFIED IN SECTION 4 ABOVE), MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE SOFTWARE AND ALL ONETRUST SERVICES ARE PROVIDED “AS IS,” WITH ALL FAULTS. ONETRUST AND ITS LICENSORS DO NOT WARRANT THAT THE SOFTWARE OR DOCUMENTATION OR ANY RESULTS OF USE THEREOF WILL BE FREE OF DEFECTS, ERRORS OR VIRUSES, RELIABLE OR ABLE TO OPERATE ON AN UNINTERRUPTED BASIS OR IN A PARTICULAR ENVIRONMENT OR THAT ERRORS THEREIN, IF ANY, WILL BE CORRECTED. 10. LIMITATION OF LIABILITY AND DAMAGES. NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER RELATING TO OR ARISING OUT OF THIS EULA UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY FOR ANY AMOUNTS IN EXCESS OF ONE HUNDRED THOUSAND UNITED STATES DOLLARS ($100,000.00 USD) OR THE TOTAL OF THE AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO ONETRUST UNDER THIS EULA IN THE YEAR PRECEDING THE EVENT GIVING RISE TO THE CLAIM, WHICHEVER IS GREATER. FURTHERMORE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING WITHOUT LIMITATION LOSS OF REVENUES, LOSS OF PROFITS, LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY. THE LIMITATIONS CONTAINED IN THIS SECTION DO NOT APPLY TO EITHER PARTY’S INDEMNIFICATION, SECURITY, CONFIDENTIALITY OBLIGATIONS OR LIMITATION OF COMPLIANCE SET FORTH IN THIS EULA. EULA 20161123 3 of 6 �11. NONASSIGNABILITY. Although fully assignable and transferable by OneTrust, neither the rights nor the obligations arising under this EULA are assignable or transferable by Customer, and any such attempted assignment or transfer shall be void and without effect. 12. GOVERNMENT USE. If Customer is part of an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the Software is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Software is a “commercial item,” “commercial computer software” and “commercial computer software documentation.” In accordance with such provisions, any use of the Software by the Government shall be governed solely by the terms of this EULA. 13. CONFIDENTIALITY AND PROPRIETARY INFORMATION. A Party (the “Receiving Party”) may receive Confidential Information of the other Party (the “Disclosing Party”) and the Receiving Party shall keep such Confidential Information in confidence and protect such Confidential Information by using the same level of care and discretion that the Receiving Party uses with respect to its own confidential information, which will be in no case less than reasonable care and discretion. Each party shall not disclose Confidential Information to any person other than such party’s employees who have a need to know that Confidential Information. The parties shall not use Confidential Information for any purpose other than as necessary to exercise rights or fulfill obligations under this EULA. Without limiting the foregoing, either Party may disclose Confidential Information to a government authority if that disclosure is (i) required by law or (ii) necessary to exercise its rights or perform its obligations under and in accordance with this EULA. OneTrust may also disclose Confidential Information to its subcontractors that have a need to know that Confidential Information in order to perform the services. In the event of a disclosure of Confidential Information by a subcontractor, OneTrust remains responsible for the confidentiality of the information. As used herein, “Confidential Information” means information that is (i) disclosed or provided to OneTrust by or on behalf of Customer pursuant to this EULA; or (ii) disclosed or provided to Customer by or on behalf of OneTrust pursuant to this EULA, including, but not limited to, the Software and any underlying object and source code and related technical or business information provided by OneTrust (“Proprietary Information”); provided, however, that Confidential Information shall not include information that (w) is or becomes a part of the public domain through no act or omission of the Receiving Party; (x) was in the Receiving Party’s lawful possession prior to the disclosure and had not been obtained by the Receiving Party either directly or indirectly from the Disclosing Party; (y) is lawfully disclosed to the Receiving Party by a third party without restriction on disclosure; or (z) is independently developed by the Receiving Party. This section shall apply during the term of this EULA, and for three (3) years after the termination or expiration hereof. 14. EFFECTIVE DATE, CONTROLLING LAW, ATTORNEYS' FEES AND SEVERABILITY. Except as otherwise stated in the Order Form, this EULA shall become effective only upon date of the EULA or Customer’s download or first use of the Software, whichever is earlier, and it shall be governed by and construed in accordance with the laws of the State of Delaware without regard to the conflicts of laws provisions therein. The United Nations Convention on Contracts for the International Sale of Goods is expressly and entirely excluded and will not apply to this EULA. In any action to enforce this EULA, the prevailing party will be entitled to reasonable costs and attorneys' fees. Each provision of this EULA shall be considered severable such that if any provision or clause conflicts with any existing or future law or regulation, or is held unenforceable by a Court, the other provisions of this EULA shall not be affected thereby. 15. ENTIRE EULA; MODIFICATIONS; WAIVERS; COUNTERPARTS. This EULA, together with any agreement, policy or guideline referenced in this EULA (including without limitation any signed Order Form agreement between Customer and OneTrust), constitutes the complete and exclusive statement of all mutual understandings between the Parties with respect to the subject matter hereof and the Software, EULA 20161123 4 of 6 �superseding all prior or contemporaneous proposals, communications and understandings, oral or written. To the extent there is any conflict between this EULA and such mutually executed Order Form, the Order Form shall prevail. Except as expressly provided herein, any modifications of this EULA must be in writing and signed by both parties. Waiver by a party of a breach of any provision of this EULA by the other party will not operate as a waiver of any other or subsequent breach by such breaching party. This EULA may be signed in two counterparts, each of which shall be deemed an original, with the same force and effectiveness as though executed in a single document. 16. TERMINATION; SUSPENSION. Either Party may terminate this EULA by giving written notice to the other Party if the other Party breaches a material obligation under this EULA, including Customer’s failure to pay applicable uncontested fees, that has not been cured within thirty (30) business days of notice thereof. This EULA will also terminate automatically upon the expiration of any applicable license period specified in the Order Form or such other license period as have been expressly agreed to by OneTrust. Upon termination, the license granted hereunder will terminate and (i) Customer shall promptly destroy any and all documents, notes and other materials regarding the Software (including any physical copies made thereof), and an officer of Customer shall certify the same to OneTrust upon OneTrust’ request and (ii) OneTrust shall promptly destroy any and all Customer Proprietary Information (including any physical copies made thereof), and an officer of OneTrust shall certify the same to Customer on Customer’s request; otherwise, the terms of this EULA will remain in effect. Without limiting the foregoing, OneTrust may suspend or limit Customer’s access to or use of the Software if (i) Customer’s account is more than sixty (60) days past due, or (ii) Customer’s use of the Software results in (or is reasonably likely to result in) damage to or material degradation of the Software which interferes with OneTrust’s ability to provide access to the Software to other customers; provided that OneTrust will end such suspension when Customer cures the foregoing. 17. DATA PROCESSING. OneTrust is self-certified under the EU-U.S. Privacy Shield Framework. Data about an identified or identifiable individual received by OneTrust in the United States from the European Economic Area will be given the same level of privacy protection as provided for in the Privacy Shield Principles and Supplemental Principles. By accepting this EULA, Customer acknowledges and agrees that Customer Data may be transferred to, stored or processed in the United States, where OneTrust servers are located and OneTrust’s central database is operated. If you are using the Software or documentation outside the U.S.A., then the following shall apply: (a) You confirm that this EULA and all related documentation is and will be in the English language; (b) you are responsible for complying with any local laws in your jurisdiction which might impact your right to import, export or use the Software and documentation, and you represent that you have complied with any regulations or registration procedures required by applicable law to make this license enforceable. 18. THIRD PARTY SOFTWARE. You acknowledge that the Software may contain copyrighted software of OneTrust's suppliers which are obtained under a license from such suppliers ("Third Party Software"). All third party licensors and suppliers retain all right, title and interest in and to such Third Party Software and all copies thereof, including all copyright and other intellectual property rights. Your use of any Third Party Software shall be subject to, and you shall comply with, the terms and conditions of this EULA, and the applicable restrictions and other terms and conditions set forth in any Third Party Software documentation or printed materials provided to the Customer, including without limitation an end user license agreement. 19. BASIS OF BARGAIN. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS EULA ARE MATERIAL, BARGAINED FOR BASES OF THIS EULA AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS EULA AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS EULA. EULA 20161123 5 of 6 �20. AUDIT RIGHTS. OneTrust reserves the right to authorize a representative of OneTrust to audit Customer’s records relating to the Software and use thereof. Upon prior written notice, Customer shall provide reasonable access to such records during normal business hours or perform such actions reasonably requested by OneTrust to exercise their rights in this section. EULA 20161123 6 of 6 �
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END USER LICENSE AGREEMENT This End User License Agreement (“Agreement”) is between you (“Licensee”) and Bucher + Suter AG, a Swiss corporation with its principal place of business at Arastrasse 6, CH-3046 Worblaufen, Switzerland (“Bucher + Suter”). BY ELECTRONICALLY DOWNLOADING THE SOFTWARE, YOU ACKNLOLEDGE THAT YOU HAVE READ AND UNDERSTOOD THIS AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST NOT DOWNLOAD THE SOFTWARE. 1. Definitions For the purposes of this Agreement: “Documentation” means the Software documentation as displayed on Bucher + Suter’s website (www.bucher-suter.com). “Customer” means a sub-licensee of Licensee. “Licensee” means an entity purchasing Software licenses from Cisco Systems, Inc., a California corporation (“Cisco”), under the Cisco SolutionsPlus reselling program. “Software” means specific Bucher + Suter software products. 2. License Subject to compliance with the terms of this Agreement, Bucher + Suter hereby grants to Licensee a personal, non-exclusive, nontransferable, worldwide, revocable license to install and use the Software, in object code form only, solely for internal use within Licensee’s own business, and limited to the number of licenses purchased. Licensee may make one (1) back-up copy of the Software. Any other use of the Software shall be prohibited. Should Licensee be a Cisco channel partner, Licensee shall be permitted to grant a sub-license for the Software to Customer, subject to such Customer accepting license terms similar to those set out in this Agreement, such Customer not being entitled to make any direct claim against Bucher + Suter. Any further sublicensing shall be prohibited. 3. Restrictions Except as set out in clause 2 above, Licensee shall not, nor permit any Customer or third party, to sub-license, lease, rent, sell, copy, translate, adapt, modify, create derivative works, disassemble, decompile or reverse engineer the Software or attempt to discover any source code, underlying ideas or algorithms or otherwise engage in any activities designed to replicate its functionality, or create derivative works. 4. Intellectual Property Rights Bucher + Suter reserves all right, title, and interest in and to the Software and the Documentation, including without limitation all copyrights, patents, and other proprietary rights. Licensee shall not be permitted to remove or obscure any copyright or other proprietary notices contained within the Software. 5. No Support Nothing in this Agreement shall obligate Bucher + Suter to provide to Licensee any support for the Software including without limitation any obligation to correct any defects or provide any updates and upgrades. 6. Term and Termination The Software license may be terminated by Licensee at any time by destroying the Software, including any back-up copy. In addition, Licensee’s rights under this License shall terminate automatically without notice from Bucher + Suter if Licensee fails to comply with any terms of this License. Upon termination, Licensee shall destroy all copies of the Software in Licensee’s possession. 7. Warranty Bucher + Suter warrants that the Software shall substantially operate in compliance with the Documentation during a warranty period of ninety (90) days from download of the Software by Licensee. In any case, the warranty shall expire one hundred and twenty (120) days after Licensee was provided by Cisco or Bucher + Suter with the link to download the Software. In the event of a reproducible malfunction of the Software causing a measurable deviation from the Documentation (“Defect”), Bucher + Suter’s sole obligation and Licensee’s exclusive remedy under this warranty shall be limited to replacing or correcting the Software, using commercially reasonable efforts during the warranty period. Any part of the Software replaced or repaired shall only be warranted for the remainder of the original warranty period. The warranties provided in this clause shall not apply to deficiencies and faults due to any of the following: misuse, abuse, neglect or unauthorized modification of the Software by Licensee, Customer or third parties; integration, installation, maintenance or other work related to the Software, including attempts to repair it, performed by Licensee, Customer or third parties; failure of Licensee or Customer to use compatible hardware and software or other non-observance of instructions given by Bucher + Suter; any deficiency or error resulting from network issues, hardware, software and other material not supplied by Bucher + Suter; any other external factor for which Bucher + Suter does not bear any responsibility. This clause states the exclusive remedies of Licensee with respect to any Defect of the Software. EXCEPT AS SET FORTH IN THIS CLAUSE, SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” AND BUCHER + SUTER DISCLAIMS TO LICENSEE, CUSTOMER AND ANY OTHER THIRD PARTY ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, BY LAW OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY AND FITNESS FOR A PARTICULAR PURPOSE. SPECIFICALLY, BUCHER + SUTER DOES NOT WARRANT THAT THE SOFTWARE AND THE DOCUMENTATION WILL BE ERROR FREE OR PERFORM IN AN UNINTERRUPTED MANNER. 8. Limitation of Liability EXCEPT IN CASE OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR IN RELATION TO ANY OTHER LIABILITY THAT MAY NOT BY APPLICABLE LAW BE EXCLUDED OR LIMITED, IN NO EVENT SHALL BUCHER + SUTER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITY, LOSS OF DATA, LOSS OF USE, AND LOSS OF PRODUCTION, EVEN IF SUCH DA MAGES WERE FORESEEABLE AND WHETHER OR NOT BUCHER +SUTER HAS BEEN ADVISED OF THE POSSIBLITY THEREOF. IN ADDITION, THE TOTAL LIABILITY OF BUCHER + SUTER FOR ANY AND ALL CLAIMS RELATING TO OR ARISING UNDER THIS AGREEMENT SHALL BE LIMITED TO ONE (1) US DOLLAR. THIS LIMITATION OF LIABILITY SHALL APPLY TO ALL LEGAL THEORIES, INCLUDING BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT AND STRICT LIABILITY. 9. Non-Assignability Licensee may not assign this Agreement or any of its rights or obligations without the express written consent of Bucher + Suter. 10. Entire Agreement; Amendment This Agreement constitutes the entire agreement between Bucher + Suter and Licensee with respect to the Software license. Any amendment must be made in writing and signed by authorized representatives in order to be binding. 11. Governing law and Jurisdiction This Agreement is governed by the laws of Switzerland, excluding any conflict of law rules and the United Nations Convention on Contracts for the International Sale of Goods. Any dispute arising in connection with or out of the performance or interpretation of this Agreement shall be exclusively submitted to the courts at Bucher + Suter’s domicile in Switzerland. Any objection or defense based on lack of jurisdiction or venue is expressly waived. �
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End-User License Agreement This "Gold Lock Enterprise" End-User License (EULA) is a legal agreement between you (either an individual or a single entity) and Gold Line Group Ltd. (“GLG”) for the "Gold Lock Enterprise" which includes computer software, online services, "online" or electronic documentation, printed documentation, example files, and license files or hardware keys (collectively referred to as the “SOFTWARE”) and the data generated by the SOFTWARE (generated data is collectively referred to as the “OUTPUT”). The SOFTWARE also includes any updates and supplements to the original SOFTWARE that are provided to you by GLG. You may receive the SOFTWARE on physical media ("MEDIA"), such as CD-ROMs, floppy diskettes, and parallel port or USB adapters. By installing, copying, accessing, or using the SOFTWARE or its OUTPUT you agree to be bound by the terms of this EULA. If you do not agree to the terms of this EULA, then DO NOT install or use the SOFTWARE. THIS SOFTWARE IS NOT FOR SALE. The SOFTWARE is licensed to you as the end user, it is not sold. PAYMENT The license granted under this EULA is conditioned upon you payment of the applicable license fee. If you have elected to pay by credit card, you authorize GLG to charge your credit card for all amounts due to GLG plus any applicable taxes. Your license may not be cancelled prior to the end of the license period that you have selected. No fees will be refunded. Your license period will automatically renew and your credit card will be charged unless you cancel your license, which you may do by contacting us at [email protected]. All license fees are subject to change at the discretion of GLG. Your fees will not change in the middle of any license period for which you have already made payment, and any changes will be effective upon the next renewal of your license. Prior to charging you for any license renewal on an automated basis, GLG will notify you of any license fee changes by sending you an email to the email address you provided us when you registered for the license. �GLG may share the payment information that you provide, including your credit card information, with GLG’s partners and service providers for the purposes of processing payment and assisting GLG in the provision of services under this EULA. SOFTWARE LICENSE - GLG and/or its licensors own all copyright, trade secret, trademark, patent, and any other intellectual property or proprietary rights in and to the SOFTWARE. GLG grants you a non-exclusive, non-transferable license to use a single copy of the SOFTWARE on a single hard drive provided this copyright is not violated and provided the terms and conditions of the EULA are accepted and observed. - If you agree to all of the terms of this EULA, a license to use the SOFTWARE on a single hard drive is granted to you. OTHER RIGHTS AND LIMITATIONS - You may not decompile, disassemble, or otherwise reverse engineer the SOFTWARE. - You may not transmit any portion of the SOFTWARE over a network, by telephone, or electronically by any means except as necessary to install your licensed copy of the SOFTWARE. - You may not sell, transfer or convey the SOFTWARE or the MEDIA to any third party. WARRANTY DISCLAIMER Both parties to a communication must have installed the SOFTWARE in order for the SOFTWARE to function. GLG has no knowledge of available ways to decrypt the OUTPUT and has not included any means within the Software (such as “back doors”) that would enable GLG or anyone else to decrypt the OUTPUT. However, as with any security related product, there is always a chance of a successful attack on the security of the OUTPUT, and accordingly GLG does not assume responsibility for damages that might be caused by any unauthorized access to the OUTPUT. GLG makes no representation that the SOFTWARE, its OUTPUT or the MEDIA are appropriate, legal or available for use under the laws of any country. You are responsible for ensuring that use of the SOFTWARE is permitted under and compliant with the laws of your jurisdiction. THE SOFTWARE, ITS OUTPUT AND THE MEDIA ARE PROVIDED "AS-IS," WITHOUT WARRANTY OF ANY KIND. ANY USE OF THE SOFTWARE, ITS OUTPUT AND THE MEDIA IS AT YOUR OWN RISK. TO THE MAXIMUM �EXTENT PERMITTED BY APPLICABLE LAW, GLG AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, DISTRIBUTORS AND LICENSORS (TOGETHER, THE “GLG PARTIES”) DISCLAIM ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT WITH RESPECT TO THE SOFTWARE, ITS OUTPUT, AND THE MEDIA. If any jurisdiction does not allow the exclusion of implied warranties contained in this EULA, then implied warranties in those jurisdictions will be excluded to the maximum extent permitted by law. LIMITATION OF LIABILITY AND INDEMNIFICATION DISCLAIMER IN NO EVENT SHALL ANY GLG PARTY BE LIABLE TO YOU OR ANY THIRD PARTY, WHETHER UNDER FOR ANY DIRECT, SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SOFTWARE, ITS OUTPUT, OR THE MEDIA, INCLUDING POSSIBLE NONRANDOMNESS OF THE SOFTWARE, AND WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF ANY GLG PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. IN THE EVENT THAT ANY GLG PARTY IS FOUND LIABLE FOR ANY DAMAGES, THEN TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE GLG PARTIES EXCEED THE GREATER OF THE LICENSING FEES PAID BY YOU FOR THE SOFTWARE OR TWENTY (20) UNITED STATES DOLLARS. The GLG Parties will not indemnify you and will have no liability for any claim, action, or suit based on patent, trade secret, or copyright infringement arising from your use of the SOFTWARE, its OUTPUT or the MEDIA, including as a result of the customization of the SOFTWARE (e.g., integrating with other applications). You acknowledge that you are solely responsible for determining whether your use infringes on a third party's rights. If any jurisdiction does not allow any of the exclusions or limitations of liability for damages contained in this EULA, then the GLG Parties’ liability shall be limited in those jurisdictions to the extent permitted by law. INDEMNIFICATION OF GLG �You are solely responsible for ensuring that your use of the SOFTWARE and its OUTPUT are permissible under and in compliance with the laws of your jurisdiction. You agree to indemnify and hold harmless the GLG Parties for any and all liability, costs, expenses or damages arising out of your breach of this EULA and your use of the SOFTWARE, its OUTPUT or the MEDIA. EXPORT LAW You agree not to export the SOFTWARE, the OUTPUT or the MEDIA, either directly or indirectly, to any foreign country except when such export is authorized by, and in full compliance with, the laws and regulations of Israel. TERMINATION This EULA is effective until terminated. You may terminate it at any time by destroying the SOFTWARE and MEDIA and erasing any copies residing on computer and mobile equipment. This EULA will also terminate if you do not comply with any terms and conditions of this EULA or if you fail to pay the applicable license fee. In addition, GLG may terminate this EULA in the event that it ceases to offer the SOFTWARE or ceases to offer the SOFTWARE on the same terms as the license that you acquired. Your sole remedy for such termination will be a pro rata refund of any pre-paid license fees. GLG reserves the right to terminate this EULA if it deems, in its sole discretion, that you are unreasonable in your communications with GLG or other communications that pertain or relate to the SOFTWARE, its OUTPUT or the MEDIA. Upon any termination you agree to destroy any and all copies of the SOFTWARE and MEDIA and erase all copies residing on computer and mobile equipment. GOVERNING LAW This EULA shall be governed by and construed and interpreted in accordance with the laws of Israel and such laws will govern this EULA, without giving effect to any choice of law rules. In the event that you have allegations or claims against any GLG Party, they must be pursued in an Israeli court of law. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this EULA. GENERAL This EULA and GLG’s Privacy Policy, which is incorporated herein by reference, constitute the entire agreement of you and any GLG Party concerning your use of the �SOFTWARE, its OUTPUT and the MEDIA, and supersedes all discussions, proposals, bids, invitations, orders, and other communications, oral or written, on this subject. This EULA may not be waived, amended, or modified in any way except through a written agreement signed by GLG. If any one or more provisions of this EULA are found to be illegal or unenforceable, the remaining provisions will be enforced to the maximum extent possible. Gold Line Group Ltd. is an Israeli corporation with its mailing address at Meginei Hagalil 5, Rehovot 76200, Israel. �
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END-USER LICENSE AGREEMENT FOR “NaturalReader” NATURALSOFT LIMITED IMPORTANT - READ CAREFULLY. Please read the following license agreement. You must agree to its terms before using this speech software. This end-user license agreement ("EULA") is a legal agreement between you (either an individual or a single entity) and NaturalSoft Ltd for NaturalReader Software, which includes computer software, “online” or electronic documentation and printed materials ("SOFTWARE"). The SOFTWARE also includes any updates and supplements to the original SOFTWARE provided to you by NaturalSoft. By Downloading, installing, copying, or otherwise using the SOFTWARE, you agree to be bound by the terms of this agreement. If you do not agree to the terms of this EULA, do not install, run or otherwise use this SOFTWARE. The SOFTWARE is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The SOFTWARE is licensed, not sold. 1. GRANT OF LICENSE. NaturalSoft Ltd hereby grants you as an individual, a personal, nonexclusive license to use the Software on one (1) computer at a time upon the terms and conditions set forth in this Agreement. If you are an entity, NaturalSoft Ltd grants you the right to designate one individual within your organization to use the Software on one (1) computer at a time upon the terms and conditions set forth in this Agreement. NaturalSoft Ltd may have patents or pending patent applications, trademarks, copyrights, or other intellectual property rights covering the SOFTWARE. You are not granted any license to these patents, trademarks, copyrights, or other intellectual property rights except as expressly provided herein. NaturalSoft Ltd reserves all rights not expressly granted. NaturalSoft Ltd reserves the right to terminate this license at any time, at which time you must: (a) cease all use of the Software, (b) permanently delete all copies of the Software from the computer on which it has been installed, and (c) deliver the original Software to the transferee, You may not retain the original or any copies of the Software. 2. RESTRICTIONS ON USE. You may not: (a) use the Software on more than one computer at a time without purchasing additional licenses, (b) copy the Software (except for one (1) back-up copy), (c) sublicense, lend, lease or otherwise make the Software available to any third party (on the Internet or tangible media, by broadcast or in any other manner), (d) modify, adapt, or translate any part of the Software, (e) reverse engineer, decompile or disassemble the Software or otherwise attempt to obtain its source code, (f) remove or alter any copyright, trademark or other proprietary notice contained in the Software, or (g) use the Software in any manner not set forth in this Agreement or in the Software's documentation. 3. UPGRADES. If this copy of the Software is an upgrade from an earlier version of the Software, it is provided to you on a license exchange basis. You agree by your installation and use of such copy of the Software to voluntarily terminate your earlier �EULA and that you will not continue to use the earlier version of the Software or transfer it to another person or entity. 4. COPYRIGHT. All title and copyrights in and to the SOFTWARE (including, but not limited to, any images, photographs, animation, video, audio, music, text, and "applets," incorporated into the SOFTWARE), the accompanying printed materials, and any copies of the SOFTWARE, are owned by NaturalSoft Ltd and NeoSpeech Inc. The SOFTWARE is protected by copyright laws and international treaty provisions. Therefore, you must treat the SOFTWARE like any other copyrighted material except that you may either (a) make one copy of the SOFTWARE solely for backup or archival purposes, or (b) install the SOFTWARE on a single computer provided you keep the original solely for backup or archival purposes. You may not copy the printed materials accompanying the SOFTWARE. 5. LIMITED WARRANTY. NaturalSoft Ltd warrants for a period of 30 days from the date you purchase a license for the Software, that the Software will be free from material defects in normal use and will perform materially in accordance with its documentation. NaturalSoft Ltd's entire liability and your sole remedy for a breach of this warranty is that NaturalSoft Ltd will, at its option, either: (a) replace the Software or (b) refund the price you paid for the Software. 6. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE LIMITED WARRANTY PROVIDED ABOVE, THE SOFTWARE IS PROVIDED "AS IS." NATURALSOFT LTD AND THE THIRD PARTY PROVIDERS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITION OF THE FOREGOING, NATURALSOFT LTD AND THE THIRD PARTY PROVIDERS DO NOT WARRANT THAT: (a) THE SOFTWARE WILL BE ERROR-FREE, (b) YOUR USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, (c) THE SOFTWARE WILL MEET YOUR REQUIREMENTS, OR (d) THE SOFTWARE WILL OPERATE WITH THE HARDWARE OR SOFTWARE CONFIGURATION YOU CHOOSE. 7. YOUR SPECIFIC RIGHTS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF DAMAGES OR LIMITATIONS OF LIABILITY, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. YOUR SPECIFIC RIGHTS MAY VARY FROM JURISDICTION TO JURISDICTION. 8. CUSTOMER REMEDIES. NaturalSoft Ltd's entire liability and your exclusive remedy shall not exceed the price paid for the SOFTWARE. 9. NO LIABILITY FOR CONSEQUENTIAL DAMAGES. To the maximum extent permitted by applicable law, in no event shall NaturalSoft Ltd or its suppliers be liable for any damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss) �arising out of the use of or inability to use this product, even if NaturalSoft Ltd has been advised of the possibility of such damages. Because some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to you. 10. Third Party Agreement. The copyrighted material, trademarks and other intellectual property of NeoSpeech Voices are provided by and belong to NeoSpeech Inc. ("Third Party Providers"). The Third Party Provider owns and will retain all title, ownership rights and intellectual property rights in and to the Software. You must accept the agreement with NeoSpeech Inc. as following: By this License, NeoSpeech grants You a limited, non-exclusive, non-transferable right to (1) install and maintain the Software on only one computer at any time (the “Computer”); (2) make one copy of the Software solely for backup or archival purposes of the Software installed on the Computer, provided that You must reproduce on the copy NeoSpeech’s copyright notice and any other proprietary legends on the original copy supplied by NeoSpeech; (3) use the Software that You installed on such Computer solely for the Permitted Non-Commercial Purposes; and (4) modify only the exemplary client library interface program of the Software solely for the Permitted Non-Commercial Purposes. As used in this License, "Permitted Non-Commercial Purposes" means solely the purposes of (1) synthesizing into speech phrases of text from software applications installed on the Computer that the Software is installed on, (2) saving such synthesized speech in computer files, (3) distributing or transmitting such files of synthesized speech to others, provided the text for such speech was provided solely by You, and (4) developing any value added software application program (“Your Developed Program”) that uses the Software to synthesize into speech no more than one phrase of text at a time from software application programs installed on the Computer that the Software is installed on. “Non-Commercial Purpose” excludes, without limitation, any distribution or transmission of the Software, speech synthesized from text provided by someone other than You by the Software, or Your Developed Program. “Non-Commercial Purpose” also excludes, without limitation, any use of the Software, speech synthesized by the Software, or Your Developed Program, for, as part of, or in connection with a product or service which is sold, offered for sale, licensed, leased, loaned or rented or otherwise provided or distributed for free, for a fee or otherwise. “Non-Commercial Purpose” also excludes use of the Subject Software with a text-to-speech software or speech recognition software not provided by NeoSpeech. If you have any questions concerning this Agreement, please contact NaturalSoft Ltd. �
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End-User License Agreement for the CSUAC Art Collection LICENSE AGREEMENT AND LIMITED WARRANTY IMPORTANT - PLEASE READ THIS AGREEMENT CAREFULLY This End-User License Agreement (“EULA”) is a legal agreement between you and Cecil Solomon (“I” or “me”) for the digital art in the CSUAC Art Collection.. The Images and files in the CSUAC Art Collection are copyrighted and protected under the various laws of the United States, International treaties and other applicable laws. The Images and files shall remain the sole and exclusive property of me and/or my licensors. Use of the Images is licensed pursuant to the terms of this License Agreement. Use of the Images without agreeing to this License Agreement, or a breach of these License Agreement terms, is copyright infringement. I AM ONLY PREPARED TO LICENSE YOU TO USE THE CSUAC ART COLLECTION ON THE TERMS OF THIS EULA. PLEASE READ CAREFULLY THROUGH THE FOLLOWING LICENSE CONDITIONS. IF YOU KEEP ANY PART OF THE CSUAC ART COLLECTION, YOU ARE AGREEING TO THE TERMS OF THIS EULA. IF YOU DO NOT ACCEPT THE TERMS OF THIS EULA, PLEASE DELETE (OR UNINSTALL) THE CSUAC ART COLLECTION FROM YOUR COMPUTER. 1. Technical Support If you require technical assistance with the CSUAC Art Collection itself, please refer to www.gmsapprentice.com. 2. License Subject to the other requirements of this EULA, you are granted a non-exclusive and non-transferable license to use the art pack in the following manner: (a) you may load the CSUAC Art Collection into and use it on a computer which is in your custody and control for your own private and domestic use; (b) you may load the CSUAC Art Collection from one computer to another provided any computer on which it is used is under your custody and control at the time of use; (c) you may make a single copy of the CSUAC Art Collection in machine readable form for backup purposes only and provided that all copyright and any other proprietary legends or other notices on the original are reproduced in full; �(d) you may use the CSUAC Art Collection to create items for personal use or resale, including book covers, maps, calendars, interior artwork, adventures, modules, and consumer merchandise, provided such use is not intended to allow the re-distribution or re-use of the images themselves. (e) you may use images from the CSUAC Art Collection as décor or gaming props in office areas, lobbies, public areas, restaurants, or retail stores. The images may be used as design elements in video, film, or television broadcasts. (f) you may use the images in connection with your business or entity (ie, letterhead and/or identity documents, provided the restrictions in paragraph 3(b) are followed. (g) you may modify or alter images from the CSUAC Art Collection as necessary for your use, provided that if such modification or alteration constitutes a derivative work, the rights to all such derivative works shall belong exclusively to me or my licensors and that you shall only use such derivative work in accordance with this agreement. If requested by me, you agree to execute a written assignment of any such rights, including copyrights, at no cost to the original copyright holder. (h) you may transfer the CSUAC Art Collection (complete with all documentation) and the benefit of this EULA to another person provided such person has agreed to accept the terms and obligations of this EULA and you transfer any permitted copies of the Art Pack you may have made to that person or destroy all copies not transferred. If any transferee does not accept such terms then this EULA shall automatically terminate and all rights granted hereunder shall terminate as well. All rights not expressly granted as permitted hereunder are, to the extent permitted by law, reserved to me and my licensors, including without limitation, all right, title, and interest in the CSUAC Art Collection, in all languages, formats, and media anywhere throughout the world. . Your rights of use under this EULA are strictly conditional upon your observance of the terms and conditions contained in this Agreement. 3. Restrictions Notwithstanding anything to the contrary contained herein, you are not permitted under any circumstances: (a) to load the CSUAC Art Collection on to a network server for the purposes of distribution to one or more other computer(s) on that network or to effect such distribution. (b) to sublicense, distribute, or assign the images or rights to the images to another party except as outlined in paragraph 2(h). (c) to use any portion of the CSUAC Art Collection as part of a trademark, service mark, logo, or any other design in which you establish your own rights. I or my licensors retain full rights to the images in the art pack. (d) to use the CSUAC Art Collection or the images within the art pack to create a database or as material for a mapping program or application except for your own private use. (e) to use the CSUAC Art Collection in a product or service whereby the images from the CSUAC Art Collection can be used apart from the product or service. (f) to use the CSUAC Art Collection in any way that could be considered defamatory, pornographic, libelous, immoral, obscene or fraudulent, or illegal, either by making physical changes to it, in the juxtaposition to accompanying text or images, or otherwise. 4. Termination Without prejudice to any other rights, any breach terminates this EULA so I may terminate this EULA immediately and without notice if you fail to comply with the terms and conditions of this EULA. In the event of termination, you must destroy all copies of the CSUAC Art Collection and all of its component parts including any CSUAC Art Collection assets stored on the hard disk of any computer. All provisions of this EULA relating to disclaimers of warranties, limitations of liability, remedies, or damages, and my proprietary rights shall survive termination. 5. Ownership �You only own the media (if any) on which the CSUAC Art Collection is recorded. I and/or my licensors shall at all times retain ownership of the CSUAC Art Collection as recorded on the media and all subsequent copies regardless of form. 6. Warranty Disclaimer and Exclusions 6.1 THIS CSUAC ART COLLECTION IS PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND OR NATURE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, I AND MY LICENSORS DISCLAIM ALL OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS OR OTHER TERMS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES AND/OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO THE CSUAC ART COLLECTION AND EACH AND EVERY PART THEREOF. WITHOUT PREJUDICE TO THE GENERALITY OF THE FOREGOING, I DO NOT WARRANT THAT THE CSUAC ART COLLECTION IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION, NOR THAT I WILL REPAIR ANY ERRORS IN THE CSUAC ART COLLECTION. 6.2 IN ADDITION, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) IN NO EVENT SHALL I OR MY LICENSORS, LICENSEES, OR OTHER PARTNER OR AGENT BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES FOR PERSONAL INJURY, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION, OR ANY PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THIS CSUAC ART COLLECTION, EVEN IF I HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. (B) IN ANY CASE, THE MAXIMUM AGGREGATE LIABILITY OF ME AND MY LICENSORS UNDER OR IN RELATION TO THIS EULA OR THE USE OR ATTEMPTED USE OF THIS CSUAC ART COLLECTION SHALL BE LIMITED TO US $10.00. 6.3 SOME JURISDICTIONS DO NOT PERMIT THE WARRANTY DISCLAIMERS OR LIMITATIONS ON LIABILITY SET FORTH IN THIS PARAGRAPH. YOU MAY HAVE OTHER RIGHTS WHICH VARY BY JURISDICTION. 7. Miscellaneous 7.1 This EULA and any claim or dispute of whatever nature arising out of or relating to this EULA shall be governed by, and construed in accordance with the laws of the State of Virginia, USA, without regard to their choice of law provisions. Any dispute arising out of this EULA or the use or other disposition of the CSUAC Art Collection will be brought and resolved in the state or federal courts in Virginia. 7.2 The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this EULA. 7.3 If you acquired this CSUAC Art Collection in the United States of America, you will not export it except as authorized and permitted by the laws and regulations of that country. 7.4 This EULA constitutes the entire agreement between me and you with respect to the license and use of the CSUAC Art Collection and supersedes all prior or contemporaneous understandings. Without limiting the foregoing, this EULA supersedes any and all prior agreements in effect regarding the use of this CSUAC Art Collection (or any earlier version thereof), express or implied, as if you had entered into this EULA at the time you obtained a copy of the CSUAC Art Collection or earlier version thereof. No amendment or modification of this EULA will be binding unless made in writing and signed by a duly authorized representative of me. I may freely assign any or all of my rights and obligations under this EULA. 7.5 In the event this EULA is not deemed to cover a particular use or disposition of the CSUAC Art Collection, your rights are limited to those available under the fair use provision of the US Copyright Act. �
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END-USER LICENSE AGREEMENT IMPORTANT: PLEASE READ THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT CAREFULLY BEFORE INSTALLING ALL OR ANY PORTION OF THIS SOFTWARE: This End-User License Agreement ("EULA") is a legal agreement between you (either an individual or a single entity, referred to as LICENSEE) and ABB S.p.A. - ABB SACE Division (referred to as LICENSOR) for the LICENSE OF THE software product(s) which may include associated software components, media, printed materials, and "online" or electronic documentation. By installing, copying, or otherwise using the software, you agree to be bound by the terms of this EULA. This license agreement represents the entire agreement concerning the program between you and LICENSOR, and it supersedes any prior proposal, representation, or understanding between the parties. If you do not agree to the terms of this EULA, do not install or use the software. The software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The software is licensed, not sold. 1. GRANT OF LICENSE The software is licensed as follows: Installation and Use: LICENSOR grants you the right to install and use copies of the software on your computer running an operating system for which the software was designed. Backup Copies: You may also make copies of the software as may be necessary for backup and archival purposes. Subject to the terms and conditions of this AGREEMENT, LICENSOR agrees to grant a SOFTWARE license to LICENSEE, and LICENSEE agrees to take a license for using the SOFTWARE identified and described in this AGREEMENT. The SOFTWARE may be downloaded from specific web sites of LICENSOR or LICENSOR’s AFFILIATES, as more specifically laid down here below. “AFFILIATE” shall mean any one or more business entities, which in relation to a party is (are) directly or indirectly: (i) owned or controlled by the party, (ii) owning or controlling the party, or (iii) owned or controlled by the business entity owning or controlling the party, at the relevant time. For the purposes of this definition, a business entity shall be deemed to own and/or to control another entity if more than 50% (fifty per cent) of the voting stock of the latter business entity, ordinarily entitled to vote in the election of directors (or, if there is no such stock, more than 50% (fifty per cent) of the ownership of or control in the latter business entity) is held by the owning and/or controlling business entity. The SOFTWARE is exclusively designed to manage ABB products. 2. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS Maintenance of Copyright Notices: You must not remove or alter any copyright notices on any and all copies of the software. Distribution: Permission to copy and distribute this software and its documentation, without modification, for any purpose admitted by mandatory applicable law and without fee or royalty is hereby granted. In case of distribution, the present condition shall be distributed together with the software. Prohibition on Reverse Engineering, Decompilation and Disassembly: You may not reverse engineer, decompile, or disassemble the software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. � Rental: You may not rent, lease, or lend the software. Support Services: LICENSOR may provide you with support services related to the software. Any supplemental software code provided to you as part of the Support Services shall be considered part of the software and subject to the terms and conditions of this EULA. Compliance with Applicable Laws: You must comply with all applicable laws regarding use of the software. 3. COMING INTO FORCE; DURATION OF THE LICENSE; TERMINATION The LICENSE shall come into force upon downloading the SOFTWARE. Without prejudice to any other rights, LICENSOR may terminate without notice this EULA in case the LICENSEE fail to comply with the terms and conditions of this EULA. In such event, the LICENSEE must destroy all copies of the software in your possession. This AGREEMENT may be terminated at any time by one Party with fifteen (15) days previous written notice. In the event of expiration or termination of this AGREEMENT, however the reason, and subject to any express provisions set out in this AGREEMENT, all rights and licenses shall immediately cease. The SOFTWARE and the setup file and any copies thereof, including modified versions, shall be immediately and permanently removed from the hard drive which it was installed, and all copies of the SOFTWARE in LICENSEE’s control shall be destroyed. 4. COPYRIGHT All title, including but not limited to copyrights, in and to the software and any copies thereof are owned by LICENSOR or its suppliers. All title and intellectual property rights in and to the content which may be accessed through use of the software is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This EULA grants you no rights to use such content. All rights not expressly granted are reserved by LICENSOR. Except for the limited license rights explicitly provided herein, nothing in this AGREEMENT is intended to grant any right to LICENSEE under any software, component, patent, copyright, trademark, trade secret or other intellectual property right. The LICENSEE shall be obliged to attach the copyright notice of LICENSOR onto any backup copy and to incorporate it into the copy, respectively. LICENSEE shall refrain from removing or modifying an existing copyright notice or registration number from the SOFTWARE or the USER MANUAL. 5. DATA PROTECTION POLICY In accordance with clause 13 of the Italian Legislative Decree No. 196 of 30 June 2003 (Data Protection Code), the LICENSOR hereby informs the LICENSEE that data provided will be inserted into ABB’s electronic database and shall be treated in compliance with data protection legislation; processing will be carried out on paper and electronically to ensure security, protection and confidentiality and will be gathered for the following purposes: (a) to perform the EULA in compliance with the above-mentioned law, for the fulfilment of relevant legislative obligations, (b) to develop new software and/or upgrade the existing ones by using the information provided and/or gathered from the LICENSEE when installing, copying, or otherwise using the software and (c) to be �provided with information on ABB’s products and/or services and sales promotion initiatives, participating in sales promotion campaigns and/or advertisement campaigns, participating in prize competitions or games. In this respect, the LICENSEE is expressly required to provide LICENSEE’s consent for the purpose under letter a) above. However, LICENSEE’s consent is not mandatory for the treatment of LICENSEE’ data as per letter a) above. Moreover, the LICENSEE is expressly required to provide LICENSEE’s consent for the purposes set out under letter b) and/or c) above, i.e. to enable the LICENSOR (and/or its sub-suppliers) to develop new software and/or upgrade the existing ones, to be provided with information on ABB’s products and/or services and sales promotion initiatives, to participate in sales promotion campaigns and/or advertisement campaigns, to participate in prize competitions or games and to communicate LICENSEE’s personal data to third parties companies and to companies of the Group to which the LICENSOR belongs, abroad and also out of the European Union. The LICENSEE’s consent is not mandatory; however, failure to provide LICENSEE’s consent will prevent the LICENSEE from benefiting from any of the activities set out under letter b) and/or c) above. Data collected may be available to LICENSOR’s employees and/or non-LICENSOR external freelancers as data controller’s assistants for processing the data and may be communicated to third parties companies providing services, including marketing services and to companies of the Group to which the LICENSOR belongs, in Italy and abroad, also out of the European Union, for the purposes above mentioned as external data processors. Under no circumstances shall the data provided be disseminated. LICENSOR reserves the rights to avail itself of tracking system/use cookies and site referrals about software downloads, software features usage, upgrades and usage for statistical reasons and/or developing new software and/or upgrading the existing ones. LICENSOR does neither collect nor use information to develop and/or create a LICENSEE profile. The LICENSEE will be entitled to exercise any of the data subject’s rights provided under clause 7 of the Data Protection Code without formalities, or by sending an email to [email protected], asking for data confirmation, source, purposes and methods of processing as well as data update, rectification, integration, deletion, anonymisation provided by law. For blocking of processing, please follow the procedure below: From Control Panel, Open “Add Remove Programs” Uninstall e-Design suite Open Windows Explorer and navigate to %localappdata%\ABB\e-Design\ Delete the folder called Database 6. SPECIAL RESTRICTIONS The LICENSEE shall not (and shall not allow any third party to): a) transfer the SOFTWARE or any copy thereof to a third party without imposing the restrictions and obligations under this AGREEMENT to such third party, or making it otherwise accessible to a third party without prior written permission by LICENSOR; b) transfer, rent, lease, sale, sublicense, lend or authorize all or any portion of the SOFTWARE to be copied onto another user’s computer, except as may be expressly permitted herein. c) alter, merge, adapt, translate or modify, the SOFTWARE or create any derivative products; �d) decompile, reverse-engineer or disassemble, or otherwise reduce the SOFTWARE without prior written permission by LICENSOR, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation; and/or e) remove or alter any product identification, proprietary, trademark, copyright or any other notices on any copies of the SOFTWARE. LICENSEE must comply with all applicable laws regarding use of the SOFTWARE. Unless otherwise specifically required under applicable law, the LICENSEE shall not use any unauthorized thirdparty software that intercepts or otherwise collects information from or through the SOFTWARE or its related services including, without limitation, any software that reads area of random access memory. The LICENSEE shall not decrypt or modify any data transmitted between the installed SOFTWARE and a server, and not use, post, host or distribute macros, cheats, automation software, hacks modification or other programs which would allow modification in the SOFTWARE functioning. 7. THIRD PARTY SOFTWARE AND OPEN SOURCE SOFTWARE 7.1. To the extent that SOFTWARE is provided to the LICENSEE for which the LICENSOR has only derived rights to use or so-called open source software (collectively: THIRD PARTY SOFTWARE), the conditions of use of the THIRD PARTY SOFTWARE shall apply with priority. A list of the THIRD PARTY SOFTWARE components and of the respective conditions of use is set out in the User Manual and available on the web site http://www.abb.com/edesign-software. 7.2. LICENCEE shall indemnify and hold LICENSOR harmless from and against any claims, cost, expenses which LICENSOR might incur arising from LICENSEE’s or LICENSEE’s successor’s use of THIRD PARTY SOFTWARE. Any liability or warranty of the licensing authors of the open source software components shall be excluded. 8. SUPPORT SERVICES; AFFILIATES of LICENSOR 8.1. LICENSOR may, in its sole discretion, provide support services related to the SOFTWARE. The services may be provided by AFFILIATES or SUBCONTRACTORS of LICENSOR as well and, if LICENSOR provides such support services, it may decide content, extent, frequency and terms of such support services in its sole discretion. 8.2. LICENSEE shall implement without undue delay updates or upgrades provided by LICENSOR or AFFILIATES or SUBCONTRACTORS of LICENSOR in relation to the SOFTWARE. LICENSEE may be requested to accept amended terms and conditions in view of the update / upgrade, otherwise the terms of this AGREEMENT shall apply. 8.3. Any supplemental software code provided to LICENSEE as part of such support services (e.g. as upgrade) shall be considered part of the SOFTWARE and subject to the terms and conditions of this AGREEMENT unless amended terms and conditions are provided by LICENSOR. 8.4. In view of services by AFFILIATES of LICENSOR in relation to the SOFTWARE, the provisions of this AGREEMENT (as amended from time to time as provided herein) shall apply, i.e. in case of support by an �AFFILIATE or SUBCONTRACTORS of LICENSOR in relation to the SOFTWARE the limitations or exclusions of liability as provided herein shall apply in favor of such AFFILIATE/SUBCONTRACTOR. For the avoidance of doubt and in line with Section 3, the preceding sentence shall also apply in view of the SOFTWARE or parts thereof which is/are downloaded from a web site of any of LICENSOR’s AFFILIATES. 8.5. The development of any improvements, enhancements or modifications made or relevant to the SOFTWARE shall be LICENSOR’s sole right and responsibility. 9. NO WARRANTIES LICENSOR expressly disclaims any warranty or defect liability whatsoever for the software. The software is provided 'As Is' without any express or implied warranty of any kind, including but not limited to any warranties of merchantability, non-infringement, or fitness of a particular purpose. LICENSOR does not warrant or assume responsibility for the accuracy or completeness of any information, text, graphics, links or other items contained within the software. LICENSOR makes no warranties respecting any harm that may be caused by the transmission of a computer virus, worm, time bomb, logic bomb, or other such computer program. LICENSOR further expressly disclaims any warranty or representation to Authorized Users or to any third party. The LICENSOR will not grant that an interruption or error will be corrected in a timely manner. No oral or written information or advice given by LICENSOR or AFFILIATES of LICENSOR shall create any warranty of LICENSOR or AFFILIATES of LICENSOR. 10. LIMITATION OF LIABILITY In no event shall LICENSOR be liable for any damages (including, without limitation, lost profits, business interruption, or lost information) rising out of 'Authorized Users' use of, or inability to use the software, or program defects, even if LICENSOR has been advised of the possibility of such damages. Even in the case of program defects that have been detected and verified, LICENSOR shall only be responsible for repairing the program in a reasonable length of time. In no event will LICENSOR be liable for loss of data or for indirect, special, incidental, consequential (including lost profit), or other damages based in contract, tort or otherwise. LICENSOR shall have no liability with respect to the content of the software or any part thereof, including but not limited to errors or omissions contained therein, libel, infringements of rights of publicity, privacy, trademark rights, business interruption, personal injury, loss of privacy, moral rights or the disclosure of confidential information. LICENSOR declines all responsibility for either direct or indirect damages, however caused, to the LICENSEE or third parties by use or non-use or late availability of the program, magnetic support or documentation or telephone or e-mail support in view of the Software, including in case of re-sell of the product which contains the Software. This liability provision shall also apply in case an Affiliated Company of LICENSOR (according to the definition in art. 2359 of the Italian Civil Code) may provide assistance to LICENSEE in view of the Software (e.g. telephone or e-mail service to explain the Software etc.). LICENSEE shall indemnify and hold LICENSOR and its Affiliated Companies harmless from any claims by third parties against LICENSOR or LICENSOR's Affiliated Company/-ies arising from the use, or from support (by LICENSOR or its Affiliated Companies) in view of the Software. �11. DISPUTES RESOLUTION AND APPLICABLE LAW In case of dispute arising from or in connection with the interpretation or application of the Agreement shall be exclusively settled by the Milan Court. The present Agreement shall be governed by Italian Law. 12. ABB BUSINESS ETHICS ABB adopts an ethical code called "ABB Code of Conduct" which is available in the web site www.abb.com. Therefore Contractors, Clients, Suppliers, Consultants doing business with ABB are bound to look over it and to uphold and respect the highest ethical standards. Any violation of our policies will be considered a serious breach of contract/agreement and could result in appropriate actions including contract termination for default. 13. EXPORT CONTROL In order to comply with national and international foreign trade regulations/laws, the parties will support each other and provide all necessary documentation and information for export control purposes, such as relating to the registration of items to be exported in export control lists or to the final destination and end use of the items. LICENSOR shall not be obliged to perform its obligation under the AGREEMENT in violation of any statutory or internal export control regulations. LICENSOR shall have the right at any time to withdraw from the AGREEMENT, without incurring any liability for either party, if the LICENSEE, despite request, does not provide either any or sufficient enough information about the final destination and the end use of the goods; LICENSOR obtains knowledge of an unintended end use after tendering or knowledge of any previously unknown person involved in the business and cannot perform the AGREEMENT due to any export control or intra-group regulations; the items or services are intended for military end use, civil nuclear use or for use in connection with weapons of mass destruction or for missiles capable of delivering such weapons; substantive evidence shall be sufficient to prove this intent; or a possibly illegal or unlicensed export or an infringement of embargo rules cannot be fully ruled out. According to Articles 1341 – 1342 of the Italian Civil Code, we declare to specifically approve the clauses here below: 10 – Limitation of Liability; 11 – Dispute resolution and Applicable Law. �
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BaxEnergy GmbH (“BaxEnergy”) Software License and Services Agreement IF YOUR COMPANY HAS EXECUTED A LICENSE AGREEMENT WITH BAXENERGY, THIS AGREEMENT SHALL GOVERN AND SUPERSEDE ALL PRIOR AGREEMENTS. IMPORTANT – READ CAREFULLY: BaxEnergy is willing to license to your company ("Licensee") this software and documentation ("BaxEnergy Products") only on the condition that your company accepts all of the terms in this Agreement. Capitalized terms not defined herein shall have the meaning defined in BaxEnergy’s quotations or correspondence. PLEASE READ THE TERMS CAREFULLY BEFORE INSTALLING OR USING THE SOFTWARE, AS INSTALLATION OR USE OF THE SOFTWARE WILL INDICATE YOUR COMPANY’S ASSENT TO THEM. Capitalized terms used in this Agreement are defined Section 10 below. 1. License 1.1 License Grant: Subject to the terms and conditions of this Agreement, BaxEnergy grants to Licensee a perpetual nonexclusive, nontransferable (except as specified in Section 8.1) license to use the BaxEnergy Products in accordance with Section 9. Licensee may make a reasonable number of copies of any BaxEnergy Product documentation for internal business use. 1.2 License Restrictions: Except as expressly provided in Section 9, Licensee agrees that it has no right to: (i) modify the BaxEnergy Products or to permit any third party to do so; (ii) copy the BaxEnergy Products, except as strictly required to install the BaxEnergy Software and make a reasonable number of copies for archival or backup purposes, or (iii) use the BaxEnergy Products to provide service-bureau, software rental, time sharing or any data services to any third party. Any BaxEnergy Products ordered by Licensee and licensed by BaxEnergy as a bundled unit must be used by Licensee as a bundled unit. Licensee has no right to use or reference, for purposes of development, any library or any portion thereof contained in the BaxEnergy Product. Licensee acknowledges that BaxEnergy Products contain trade secrets of BaxEnergy, and in order to protect such trade secrets, Licensee agrees not to disassemble, decompile or reverse engineer the BaxEnergy Products, nor permit any third party to do so, except to the extent such restrictions are prohibited by applicable law. 1.3 Limited Rights: Licensee’s rights in the BaxEnergy Products will be limited to those expressly granted in this Section 1, and BaxEnergy reserves all other rights, title, interest and licenses, including, without limitation, all patent, copyright, trademark, service mark, trade secret, and trade name rights therein. All BaxEnergy Products are provided with the commercial license rights and restrictions described in this Agreement. 1.4. Audit Rights: Upon BaxEnergy’s written request, Licensee shall furnish BaxEnergy with a certification signed by an officer of Licensee verifying that the BaxEnergy Products are being used pursuant to the terms of this Agreement. In addition, upon prior written notice, BaxEnergy may audit Licensee’s use of the BaxEnergy Products to ensure that Licensee is in compliance with the terms of this Agreement. Any such audit shall be conducted during regular business hours at Licensee’s facilities and shall not unreasonably interfere with Licensee’s business activities. Licensee shall provide BaxEnergy access to the relevant Licensee records and facilities. If an audit reveals that Licensee has underpaid fees to BaxEnergy, Licensee shall be invoiced for such underpaid fees based on BaxEnergy’s fee structure in effect at the time the audit is completed. Licensee shall promptly deliver to BaxEnergy any unpaid fee for any errors or omissions disclosed by such audit. Licensee shall pay BaxEnergy an additional fee of twenty-five percent (25%) of the applicable unpaid fee disclosed by the audit as liquidated damages and not as a penalty, to compensate for Licensee's over �use of the BaxEnergy Products. If the underpaid fees exceed five percent (5%) of the license fees previously paid by Licensee, then Licensee shall also pay BaxEnergy’s reasonable costs of conducting the audit. 2. Total Care Plan. BaxEnergy may make available to Licensee a support and maintenance program ("Total Care Plan"). BaxEnergy’s current terms of Total Care Plan will be provided on request and are also available through BaxEnergy’s description of services section at http://www.BaxEnergy.com. Promptly following its use of any Updates, Bug Fixes and/or other software (“Replacement Software”) as designated by BaxEnergy and accepted by Licensee, Licensee will return or destroy the BaxEnergy Software replaced by the Replacement Software. Licensee will not receive any credit for software replaced by Replacement Software. If Licensee purchases BaxEnergy’s installation services, BaxEnergy will perform such work in a professional and workmanlike manner consistent with generally accepted standards in the enterprise software industry. Licensee agrees to supply BaxEnergy with access to and use of all information and facilities reasonably necessary for BaxEnergy to render any on-site services pursuant to this Agreement. BaxEnergy will comply with all reasonable safety rules and procedures provided by Licensee to BaxEnergy personnel in advance. All Replacement Software provided under the Total Care Plan shall be considered part of the BaxEnergy Products under this agreement and shall be subject to all the provisions of this agreement. 3. Warranties. 3.1 Limited Warranty: BaxEnergy warrants that, for a period of one (1) year after delivery of the BaxEnergy Products, the BaxEnergy Products will function in accordance with BaxEnergy’s accompanying documentation in all material respects. As Licensee's sole and exclusive remedy and BaxEnergy's entire liability for any breach of the foregoing warranty, BaxEnergy will repair or replace, at no additional charge to Licensee, any BaxEnergy Products that fail to meet this limited warranty. The limited warranty set forth herein shall automatically become null and void if a party other than BaxEnergy modifies the BaxEnergy Products in any way. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, BAXENERGY MAKES NO WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED, AND BAXENERGY EXPRESSLY DISCLAIMS ANY AND ALL SUCH OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NONINFRINGEMENT. 3.2 Insurance Requirements: During the term of this Agreement, BaxEnergy will obtain and maintain in force insurance for (a) Worker's Compensation and Employer's Liability Insurance (b) General Liability Insurance (c) Automobile Liability. All insurance will be in compliance with requirements from statutory regulations in the applicable state 3.3 Proof of Coverage: At Licensee's request, BaxEnergy will furnish Licensee with Certificates of Insurance evidencing the insurance described above, including a notice that no change in, or cancellation of, any such policy or policies shall be made without notice to Licensee at least ten (10) days prior to such change or cancellation. 4. Liability and indemnity exclusions BaxEnergy will have no liability for infringement claims of any kind arising from: (i) any use of the BaxEnergy Products beyond the scope of this Agreement; (ii) Licensee's use of the BaxEnergy Products in combination with any products not developed by BaxEnergy, if the basis for the claim is such combined use; (iii) Licensee's failure to use updated or modified versions of the BaxEnergy Products provided or made available by BaxEnergy without additional charge; or (iv) BaxEnergy's compliance with designs or specifications provided by Licensee. �THE PROVISIONS OF THIS SECTION 4 SET FORTH BAXENERGY SOLE AND EXCLUSIVE OBLIGATIONS AND LICENSEE'S SOLE AND EXCLUSIVE REMEDIES WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. 5. Limitations of Liability. EVEN IF ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE AND REGARDLESS OF WHETHER A CLAIM ARISES UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY, STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT BAXENERGY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES, IN NO EVENT SHALL BAXENERGY BE LIABLE FOR: (i) ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGES OF ANY KIND (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS); (ii) CLAIMS THAT ARE COVERED BY THE INSURANCE POLICIES SPECIFIED IN SECTION 3, AS CARRIED BY BAXENERGY, SHALL BAXENERGY’s TOTAL LIABILITY EXCEED THE COVERAGE AMOUNTS SPECIFIED THEREIN; NOR (iii) CLAIMS THAT ARE NOT COVERED BY THE INSURANCE POLICIES SPECIFIED IN SECTION 3, AS CARRIED BY BAXENERGY, SHOULD BAXENERGY’s TOTAL CUMULATIVE LIABILITY HEREUNDER EXCEED THE TOTAL LICENSE FEES PAID BY LICENSEE TO BAXENERGY UNDER THIS AGREEMENT OR ONE HUNDRED THOUSAND EUROS (€100,000), WHICHEVER IS LESS. The parties expressly agree that the allocation of risk contained in this Section is an essential basis of this Agreement. 6. Confidential Information. "Confidential Information" means the BaxEnergy Products and any business (including any pricing information provided by BaxEnergy) or technical information that is marked by a disclosing party as "confidential" or "proprietary" at the time of disclosure. Licensee’s Confidential Information shall also include information related to Licensee’s operations that Licensee discloses to BaxEnergy in connection with this Agreement in whatever form. BaxEnergy’s Confidential Information shall also include without liability any interfaces developed using BaxEnergy’s Software. The receiving party will not use or disclose any Confidential Information of the other party except as expressly permitted herein and will use all reasonable measures to maintain the confidence of all such Confidential Information, which measure will in no event be less than the measures that the receiving party takes to protect its own confidential information of similar importance. Confidential Information will not include information which: (i) is or becomes publicly available without fault of the receiving party; (ii) is independently developed by the receiving party without use or access to the Confidential Information; or (iii) was known to the receiving party prior to its receipt of the Confidential Information from the disclosing party and is not subject to other restrictions on disclosure or use. 7. Term and Termination. This Agreement will remain in effect perpetually unless and until terminated pursuant to this Section. Either party may terminate this Agreement if the other party breaches any material term, and such breach remains uncured for thirty (30) days after receiving notice thereof. In the event of any termination of this Agreement, the parties agree to return or at the other party’s request destroy all of the other party’s Confidential Information within three (3) business days, and without limiting the foregoing, Licensee will return or at BaxEnergy’s request destroy all copies of the BaxEnergy Products within its possession or control. Licensee may terminate its license to the BaxEnergy Products under this Agreement at any time by destroying all copies of the BaxEnergy Products and Confidential Information associated with the BaxEnergy Products within its possession or control. Termination of this Agreement by either party will be a nonexclusive remedy for breach without prejudice to any other right or remedy of such party. The rights and obligations of the parties contained in Sections 5, 6 and 8 will survive the termination of this Agreement. 8. General �8.1 Assignment, Independent Contractors, Notices and Force Majeure: Licensee may assign this Agreement provided that BaxEnergy consents in writing to such assignment which consent may be withheld at BaxEnergy’s sole discretion. Licensee hereby acknowledges that as a condition to such consent, BaxEnergy may require any assignee to update all BaxEnergy Products to the then-current version and purchase one year of Total Care Plan services at BaxEnergy’s then current rate. Except as otherwise specified in writing by BaxEnergy in its consent to assign this Agreement, orders submitted by the Assignee will be in accordance with BaxEnergy’s current fee structure. Any attempted assignment, whether by operation of law, as a result of any change in control of Licensee or otherwise without complying with this Section shall be null and void. The parties to this Agreement are independent contractors and neither party will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent. All notices required or permitted under this Agreement will be sent to the address specified above (or such other address specified by the receiving party) in writing and will be deemed effective upon receipt. BaxEnergy will not be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control. 8.2 Disputes and Governing Law: This Agreement is governed and construed by the laws of Germany. Place of performance and jurisdiction shall be in the court of Stadthagen, Germany. All notifications and declarations pursuant to this Agreement shall be in writing. Facsimile shall be considered as writing. E-mail shall be considered as writing. The parties agree that, in the event of a dispute or alleged breach of this Agreement or an individual contract, they will work together in good faith, first to try to resolve the matter internally by escalating it to higher levels of management and, then if necessary, to use a mutually agreed alternative dispute resolution technique prior to resorting to litigation. This provision shall not apply to disputes involving confidentiality or infringement of intellectual property in which case either party shall be free to seek available remedies. Nothing herein contained shall in any way create any association, partnership, joint venture or the relation of principal and agent between the Parties hereto or be construed to evidence the intention of the Parties to constitute such. If any provision of this Agreement shall be found to be invalid or unenforceable for legal or factual reasons the invalidity or unenforceability of such provisions shall not affect the other provisions of this Agreement and all provisions of this Agreement not affected by such invalidity or unenforceability shall remain in full force and effect. The Parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic and legal objective of the Agreement. This applies as well in case of an omission or invalidity of the whole Agreement. 8.3 Compliance with Laws; Government Approvals and Severability: Licensee’s use of the BaxEnergy Products will comply with all laws, rules, and regulations of the Germany and other countries that may be applicable to the BaxEnergy Products. Without limiting the generality of the foregoing, Licensee acknowledges that the distribution and use of BaxEnergy Products and any technical data related thereto (collectively "BaxEnergy Technology") may be subject to export control laws and regulations. Licensee will not export or re-export, directly or indirectly, any BaxEnergy Technology, to any destination for any use that is restricted by the applicable export control laws and regulations including, without limitation, to any party that is involved in sensitive or unguarded nuclear activities, or activities related to chemical or biological weapons or missiles. Licensee may not use the BaxEnergy Products to operate or control any inherently dangerous application. Notwithstanding the preceding sentence, Licensee may use the BaxEnergy Products in a commercial nuclear power facility so long as Licensee does not use the BaxEnergy Products: (i) in any manner where failure of the BaxEnergy Products would affect the operability of Licensee’s facility or affect Licensee’s �ability to safely cease all operations of the facility; (ii) to control any safety related system or in any safety related application; or (iii) in any manner that would violate applicable laws or regulations. Licensee shall indemnify and hold BaxEnergy harmless from any and all claims, liability, costs, damages and losses arising out of or related use of the BaxEnergy Products in violation of this section. BaxEnergy shall have no responsibility to test, certify, validate or to take any other action regarding the BaxEnergy Products with the Nuclear Regulatory Commission or any other governmental agency. Obtaining such approvals, if any, will be the sole responsibility of Licensee. Within ninety (90) days of the Effective Date, Licensee must, at Licensee’s expense, obtain and arrange for the maintenance of all government approvals, if any that may be necessary to make this Agreement effective in the locations where the BaxEnergy Products are used by Licensee. If for any reason any part of this Agreement is found unenforceable, the remainder of this Agreement will be enforced to the maximum extent permissible. 8.4 Use of Name in Customer List: Licensee consents to BaxEnergy’s use of Licensee’s non-stylized corporate name in its marketing literature and customer lists. Licensee may withdraw such consent at any time with reasonable notice. 8.5 Entire Agreement, Waiver and Language: This Agreement is the entire agreement between BaxEnergy and Licensee with respect to all BaxEnergy products and services and their use, superseding any prior agreements (except for agreements which pertain to trial or beta software) or understandings related to any BaxEnergy products or services. This Agreement cannot be amended except by a writing which specifically references this Agreement and is signed by both parties. In no event will any purported amendment or agreement be binding on BaxEnergy, unless executed by a BaxEnergy officer. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. The parties hereto have agreed that this Agreement and any documentation, agreements and/or correspondence ancillary thereto be written in English. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. 9. BaxEnergy Products Usage Terms The following usage terms will apply only to the extent that Licensee orders each type of BaxEnergy Product as specified by BaxEnergy in its then current fee structure or otherwise. 9.1 Client/Server Products (Currently includes the Data Engine and the Web Interface technologies): Licensee's use of Client Software cannot exceed the number of Individual Licenses specified in accepted orders and licensed pursuant to this Agreement. Licensee's use of Server Software cannot exceed the number of Data Points created in such Server Software (as measured by the BaxEnergy Software), Data Connections or Users as applicable and specified in accepted orders and licensed under this Agreement. Server Software modules and Data Points designated by Licensee in an order for use with one Server Software module cannot be moved to or otherwise used with any other Server Software module without BaxEnergy’s express consent. The Server Software may not be used to programmatically interoperate with third party applications or Licensee developed applications unless Licensee has purchased the Server Software for such usage. Additionally, except as otherwise expressly provided in this Agreement, once Data Points have been designated by Licensee in an order for use with a Server Software module, Licensee cannot return such Data Points to BaxEnergy for any credit or refund of any kind. Licensee’s use of Interfaces will not exceed the number of Data Connections specified in accepted orders and licensed pursuant to this Agreement. 9.2 Thin-Client Products (currently includes SCADA technology for Web, iOS and Android): �In using this type of BaxEnergy Software, Licensee will not exceed the number of Concurrent Users specified in accepted orders and licensed under this Agreement. 9.3 Development Systems (currently includes any BaxEnergy Software designated by BaxEnergy or Licensee for development, configuration or support purposes): This type of BaxEnergy Software is licensed solely for Licensee’s internal development and support purposes on a single computer. Such BaxEnergy Software cannot be used in production or otherwise used to process any data generated from Licensee’s business operations. 9.4 Third Party Software: Software designated by BaxEnergy as “Third Party Software” is not subject to this Agreement. BaxEnergy acts only as a distributor for Third Party Software and all licensing terms, support and warranty service, if any, will be provided by the third party vendor for this type of software. Except for BaxEnergy's failure to deliver the Third Party Software in accordance with Licensee’s accepted orders, notwithstanding any provision in this Agreement, in no event will BaxEnergy be liable to Licensee or to any third party for damages of any kind arising from or related to the Third Party Software. 10. Usage Definitions “BaxEnergy Software” means all those software products delivered to Licensee or licensee’s designee including without limitation, (i) those that are designed and designated by BaxEnergy to operate on a network server computer (“Server Software”), a client computer (“Client Software”), or as an interface with certain hardware monitoring devices, third party software and multiple copies of Server Software (“Interface”); and (ii) all related documentation, bug fixes and updates delivered to Licensee by BaxEnergy or its designee. “Concurrent Users” mean individuals who are accessing the same copy of Server Software at the same time. "Data Point" means a tag or module that is created and exists in certain Server Software modules that is used to setup, configure or store data-points or data structures. “Data Connection” means a link between the data generated from one copy of BaxEnergy Software and another copy of BaxEnergy Software or a third party data source. “Individual Licenses” means the number of client computers onto which Licensee may install Client Software. One Individual License may be used on up to two client computers to facilitate home office use or remote access so long as one Individual License is not used by two individuals at the same time. Individual Licensed Software cannot be used to export data from the BaxEnergy Software and serve such data directly or indirectly to another client or CPU computer. "Licensee Customers" means customers of Licensee for whom Licensee may generate, store or process Licensee Data. “Users” means the number of individuals who are authorized to access a copy of Server Software. 11. Notices All notices required under this Agreement are to be sent to [email protected]. �
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End User License Agreement (EULA) Please read the license agreement carefully before installing or using this product. You acknowledge that you have read this license agreement, have understood it and agree to be bound by its terms. If you do not agree to the terms and conditions of this agreement then do not install or use this product. 1. DEFINITIONS: (a) “Documentation” means the user manuals and documentation that LEPIDE provides with the Software, and all copies of the foregoing. (b) “LEPIDE” means Lepide Software Pvt. Ltd. (c) “License Type” means the model by which the Software is licensed (e.g. by server, by managed user, by number of installations) as may be indicated in the applicable Order. (d) “Partner” means a reseller or distributor that is under contract with LEPIDE or another Lepide Partner and is authorized via the contract to resell the Products and/or Maintenance Services. (e) “Product Terms” means the usage rights and other terms associated with each License Type or individual Product. (f) “Products” means the Software licenses purchased by Customer under this Agreement. (g) “Order” means the document by which Customer orders the Product(s) or, if Customer orders the Product(s) from LEPIDE website, the process by which Customer orders the Product(s). Orders executed by Customer and LEPIDE shall be governed solely by the terms of this Agreement and the applicable Order, and Orders placed with LEPIDE by Customer purchase order only and all Orders placed through a Partner shall be governed solely by the terms of this Agreement. Any conflicting or additional terms in or accompanying an Order will not be binding on LEPIDE unless LEPIDE accepts such terms in writing. Each Order shall be the Customer’s irrevocable commitment to purchase and pay for the Products and/or Maintenance Services stated in the Order. (h) “Software” means the executable program that is delivered pursuant to an Order as well as any corrections, enhancements, and upgrades to such software that LEPIDE may provide to Customer pursuant to this Agreement, and all copies of the foregoing. Copyright © 2016 Lepide Software Private Limited �2. INTERNAL USE LICENSE: Subject to the terms of this Agreement, LEPIDE grants to Customer, and Customer accepts from LEPIDE, a perpetual (unless otherwise set forth in an Order), non-exclusive, non-transferable (except as otherwise set forth herein) and non-sub licensable license (i) install, execute, access, run, or otherwise use the quantities of each item of Software identified in the applicable Order within the parameters of the Product Terms associated with the applicable Product and License Type, (ii) make a reasonable number of additional copies of the Software to be used solely for non-productive archival or passive disaster recovery purposes, so long as neither the original and a copy nor two copies of the same Software are used at the same time, and (iii) make and use copies of the Documentation as reasonably necessary to support Customer’s authorized users in their use of the Software (collectively, “License”). 3. EVALUATION LICENSE: LEPIDE grants to you a non-exclusive, non-transferable, Evaluation License for trial and evaluation of the Licensed Software, in binary object code form for internal business purpose only, for a period of fifteen (15) days (unless otherwise set forth in an Order) from the date of download or installation. This License begins upon downloading or installing the Licensed Software and ends fifteen (15) days thereafter (unless otherwise set forth in an Order). If you do not want to use the Software after the Evaluation Period, you agree to remove the software from your computer with immediate effect except for any automatically generated backup copies used for no purpose. You are forbidden from using the Licensed Software for any other use or otherwise offering it for resale under the terms of this Section 1. LEPIDE Software retains all rights not specifically granted to you herein. 4. FREEWARE: Where applicable, if you choose to use the Freeware Edition, LEPIDE grants you a non-exclusive, nontransferable license to use the Freeware Software for no cost and for unlimited time. 5. THIRD PARTY USAGE: If Customer contracts with a third party who performs Software implementation, configuration, consulting or outsourcing services (“Service Provider”), the Service Provider may use the Software and Documentation Licensed by Customer hereunder solely for purposes of providing such services to Copyright © 2016 Lepide Software Private Limited �Customer, provided that (i) Customer ensures that the Service Provider uses the Software and Documentation in accordance with the terms of this Agreement, (ii) the use of the Software and Documentation by the Service Provider will not violate the terms of the export restrictions set forth herein, and (iii) the Service Provider is not a LEPIDE competitor. Customer shall be jointly and severally liable to LEPIDE for the acts and omissions of its Service Providers in connection with their permitted use of the Software and Documentation. 6. RESTRICTIONS OF USE: In addition to all other terms and conditions of this Agreement, you shall not: (i)install copy of the Licensed Software on more than one computer (unless otherwise set forth in an Order); (ii) remove any copyright, trademark or other proprietary notices from the Licensed Software or its copies; (iii) make any copies except for one back-up or archival copy, for temporary emergency purpose; (iv) rent, lease, license, sublicense or distribute the Licensed Software or any portions of it on a standalone basis or as part of your application; (v) modify or enhance the Licensed Software; (vi) reverse engineer, decompile or disassemble the Licensed Software; (vii) allow any third parties to access, use or support the Licensed Software except employees, contractors, consultants or other third parties engaged by you to do any of the foregoing on behalf of or for your benefit. 7. NONDISCLOSURE: The Licensed Software contains proprietary information of LEPIDE that are protected and you hereby agree to take all reasonable efforts to maintain the confidentiality of the Licensed Software. You agree to reasonably communicate the terms and conditions of this Agreement to those persons employed by you who come into contact with or access the Licensed Software, and to use reasonable efforts to ensure their compliance with such terms and conditions, including but not limited to, not knowingly permitting such persons to use any portion of the Licensed Software for a purpose that is not allowed under this Agreement. 8. LIMITATION OF LIABILITY: In no event will LEPIDE be liable to you or any third party for any special, incidental, indirect, punitive or exemplary or consequential damages, or damages for loss of business, loss of profits, business interruption, or loss of business information arising out of the use or inability to use the program or for any claim by any other party even if LEPIDE has been advised of the possibility of such damages. LEPIDE's entire liability with respect to its obligations under this agreement or otherwise with respect to the Licensed Software shall not exceed the amount of license fee paid by you for the Licensed Software. Copyright © 2016 Lepide Software Private Limited �Because some jurisdictions do not allow the exclusion or limitation of liability for incidental or consequential damages, the above exclusions or limitations may not apply to you. 9. TERMINATION: This Agreement is effective until terminated by either party. You may terminate this Agreement at any time by destroying or returning to LEPIDE all copies of the Licensed Software in your possession. LEPIDE may terminate this Agreement for any reason, including but not limited to your breach of any of the terms of this Agreement. Upon termination, you shall destroy or return to LEPIDE all copies of the Licensed Software and certify in writing that all know copies have been destroyed. All provisions relating to confidentiality, proprietary rights, non-disclosure, and limitation of liability shall survive the termination of this Agreement. 10. GENERAL: The information contained herein is subject to change without notice. This Agreement shall be construed, interpreted and governed by the laws of the Govt. of India exclusive of its conflicts of law provisions. This Agreement constitutes the entire agreement between the parties, and supersedes all prior communications, understandings or agreements between the parties. Any waiver or modification of this Agreement shall only be effective if it is in writing and signed by both parties hereto. If any part of this Agreement is found invalid or unenforceable, the remainder shall be interpreted so as to reasonable effect the intention of the parties. You shall not export the Licensed Software or your application containing the Licensed Software except in compliance with Govt. of India export regulations and applicable laws and regulations. Exclusive jurisdiction and venue for all matters relating to this License shall be in courts and for a located in the State of Delhi, and you consent to such jurisdiction and venue. 11. TRADEMARKS: Windows 95®, Windows 98®, Windows ME®, Windows NT®, Windows 2000 Server®, Windows 2000 Advanced Server®, Windows 2003 Server®, Windows Server 2008®, Windows Server 2008 R2®, Windows Server 2012®, Windows Server 2012 R2®, Windows XP®, Windows Vista®, Windows 7®, Windows 8®, SQL Server®, SharePoint Server®, SharePoint Server 2010®, SharePoint Foundation 2010®, SharePoint Server 2013®, SharePoint Foundation 2013®, Microsoft Excel®, Microsoft Office®, Office 365®, Exchange 2000 Server®, Exchange Server 2003®, Exchange Server 2008®, Exchange Server 2010®, Exchange Server 2013®, Microsoft Outlook®, Outlook 2000®, Outlook 2003®, Outlook 2007®, Outlook 2010®, Outlook 2013®, Exchange Management Tools®, Exchange 2010 Management Tools®, Exchange 2013 Management Pack®, .NET ®, IIS®, Windows PowerShell®, Microsoft Management Console®, and Windows Management Framework® are registered trademarks of Microsoft Corporation. Any other product names mentioned herein are the trademarks of their respective owners. Copyright © 2016 Lepide Software Private Limited �
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Page 1 SOFTWARE & SERVICES Amazing Charts, LLC Software & Services END USER LICENSE AGREEMENT (“EULA”) A. The Core Concepts In line with the different way in which we, Amazing Charts, LLC (hereinafter “Amazing Charts”), provide our software and services, Amazing Charts is providing to you, the medical practice, clinician(s) or other entities licensing or using our software or services (hereinafter sometimes referred to as “user(s)”) an easy-to-understand End User License Agreement (EULA).We’ve summarized below in this Section A the key points you must understand if you wish to use our products or services. 1. Who can use Amazing Charts Products and Services? We provide software products and services for medical professionals who understand the risks, benefits, and limitations of our products as described in this EULA and on our websites. If you are not planning on using the software to generate clinical records in a professional health-care setting, and have not otherwise received our prior express written permission, you may NOT download, try, or use our software. 2. Third-Party Content. Our software products and services may include software and other content provided by third-party vendors. Your access to and use of such third-party products and services is governed by terms and conditions mandated by the third parties who provide them. The terms and conditions governing use of such third-party products and services are attached to this EULA as Appendix 1. 3. Your use Amazing Charts’ programs and services. We will take all commercially reasonable efforts to avoid and/or correct any programming or design errors that could adversely impact your use of our software and services, but ultimately by executing this EULA you are agreeing that the software and its associated services are provided “as is.” As such, we are not liable for any problems that may arise as a result of using our software or services, including but not limited to: lost or erroneous data; computer or network problems; or other issues which may interrupt or impact your ability to get your work done correctly or get paid. It is possible that from time to time that programming errors will happen and so YOU USE OUR PRODUCTS AND SERVICES AT YOUR OWN RISK 4. Expected Behavior. Amazing Charts encourages open discussion of issues and concerns regarding our software (and our company behavior) on our website at www.amazingcharts.com/board. In fact, we consider constructive criticism an invaluable means of improving our software and services. That said, users who act in a manner that is detrimental to our ability to provide software and services to clients equally, or those whose actions are at odds with the well-being of our company will not be allowed to continue to use our software or services. Examples of such unacceptable behavior include users who don’t pay the licensing or service fees, users who behave in a manner that our staff finds to be inappropriate or threatening, users who post comments about Amazing Charts or its services �Page 2 that are false, and users using our products in a manner other than that in which they are intended to be used. Treat us as you would like to be treated, and we’ll do the same. 5. Cost. The current pricing for our software and services is clearly published on our website and we do not charge “hidden fees.” Users who purchase services that have a recurring charge (e.g., our guardian angel support & maintenance service, offsite backup service, etc.) will have their credit card automatically rebilled for these charges as a convenience to them. If there is a pricing increase for users we will provide prior notice before charging a higher price to users with automatic rebilling. 6. What if you don’t abide by this EULA? If we discover that you are using the software or the services in a manner that is not consistent with the scope of your granted rights, or if you are otherwise in breach of this EULA, we have the right to terminate your license and the right to use our software and services after sending you written notice of your breach. If the nature of your breach is such that it can be cured within 20 days we will give you a chance to cure prior to terminating. We will also try to amicably resolve any disputes before we revoke the right to use our software and services, but we retain the right to immediately revoke your rights if that is appropriate in a particular instance. Even if your license is revoked, you maintain the right to export patient demographics and notes through the Administration section of the program. The clinical data in Amazing Charts is your data and we will take all commercially reasonable steps to ensure that you retain access to it for the benefit of your patients. 7. What if we don’t abide by this EULA? You have the right to stop using our products at any time. If you wish to pursue a more formalized complaint you must bring that action in the state courts of Delaware where our company is incorporated. Please NOTE to the extent that the Core Concepts located above are deemed inconsistent with the more formal articulation of Terms and Conditions which follows, the more formal language below controls. B. Terms and Conditions 1. Our Agreement By downloading, accessing and/or using Amazing Charts software products, or any of the applications, programs, installers, utilities, contained files, databases, or integrated third-party software provided by Company or its third-party vendors (herein collectively referred to as the “Program”), or by using services provided by Amazing Charts, or its third-party vendors, (herein collectively referred to as the “Services”) you agree that you have read, understood, agree to, and will abide by, all terms of this EULA, including Appendix 1, as it may be amended from time to time. You also agree to abide by any separate agreements required by our third-party vendors, if any, which will be provided to you through the purchase process and thereafter made available either through the user portal or by the third-party. Your access to and use of Third Party Content (as defined on Appendix 1) is governed by the terms and conditions contained in Appendix 1. We recommend you read this EULA, including all appendices, completely as you are agreeing to �Page 3 the terms of this EULA, including Appendix 1, as well as agreeing to our Website Terms of Use, and our Privacy and Ethics Policy found on our website, www.amazingcharts.com when you download, access, install, or use any portion of the Programs or Services. Further you agree that some Services offered by Amazing Charts may be subject to certain terms and conditions contained in Service Level Agreements (“SLAs”) provided to you through the purchase process and thereafter made available either through the user portal or on our website noted above. You agree that the Programs and Services are intended to serve as a rapidly accessible, concise initial resource and not as a complete reference resource. They do not include information concerning every therapeutic agent, diagnosis, laboratory or diagnostic test or procedure available. The Programs are clinically oriented and intended to be used only by medically licensed providers who are physicians and/or other competent and duly authorized/licensed healthcare professionals who will rely on their own discretion and judgment in medical diagnosis and treatment. Neither Amazing Charts, nor related interfaced third party providers, directly or indirectly practice medicine or dispense medical services and, as such, assume no liability for data or functions contained in the Programs or Services, or their use. You assume full responsibility for the appropriate use of medical information contained in the Programs and agree to hold Amazing Charts, LLC and its third party providers harmless from any and all third party claims or actions, arising from your use of the Programs or Services. 2. Trial Period The Programs and Services are intended for practicing Healthcare Practitioners and their staff only. Persons not intending to evaluate the Programs for use in a medical practice (e.g., patients, laymen, attorneys, insurance companies, or any of their agents) who wish to download or access the Programs must first receive written permission from Amazing Charts. FOR THESE PERSONS, NO TRIAL PERIOD IS PERMITTED AND LICENSING IS ONLY PROVIDED AFTER RECEIPT OF WRITTEN PERMISSION. Non-healthcare persons who download or access any of the Programs or use it before receiving a written license and authority from Amazing Charts AND paying any required license fee as dictated by Amazing Charts in its sole discretion will be subject to legal liability, and will be prosecuted to the full extent of the law. By agreeing to the terms of this EULA, users who are evaluating the Program for their medically-related healthcare practice, may download or access and use the Program for an initial trial period of approximately 28 days. The Program includes a time limit mechanism to prevent it from operating after a period of approximately 28 days from when it is installed or accessed on a computer. The Program MAY NOT provide reminders that operation will imminently cease. If you wish to use the Program beyond the initial trial period, you agree to pay the currently stated license and support fees. All Fees are non-refundable. Upon payment, you will receive a registration code (“Registration Code”) that must be entered into the Program to allow it to continue to operate. 3. Continuing Use Beyond The Trial Period At regular intervals, the Program will connect to the Amazing Charts servers via an Internet connection and automatically verify current services and verify that you are in Good Standing (see description below). Without this intermittent verification, the Programs may cease to operate. Use of the Programs without an Internet connection will limit the ability of the �Page 4 Programs to automatically verify itself and may require additional user intervention (i.e., calling into Amazing Charts to obtain a validation code required to continue to use the Programs). The downloaded version of the Program includes information that must be regularly updated to reflect the current standards-of-care of medicine and addresses identified programming errors in earlier versions of our Program or Services. Thus users are strongly advised to subscribe to our Update & Support services which provide the means to ensure the Programs and Services are upto-date. Although users are not required to subscribe to this service, failing to do so means that the Amazing Charts software, services, third-party interfaces, and databases will contain outdated and/or erroneous information which may put the user at increased risk of errors and potential loss or corruption of their data from programming errors fixed in subsequent updates. Users who do not subscribe to our Update & Support service do so at their own risk and agree to hold Amazing Charts harmless for any claims arising from such use of outdated Programs, Services, third-party interfaces, medication, codes, and other databases. Users who subscribe to Amazing Charts in The Cloud, our hosted software solution, will automatically receive the latest version of the Amazing Charts software as it becomes available. 4. Good Standing Amazing Charts provides software and services for medical professionals wishing to use our products and who understand the risks, benefits, and limitations of our products as described herein and on our websites. In addition, Amazing Charts encourages open discussion of issues and concerns regarding our software (or company behavior) at www.amazingcharts.com/board. In fact, constructive criticism is considered a critical means for improving our software and services and is not considered to be inappropriate. That said, users who act in a manner that is deemed by Amazing Charts to be detrimental to the ability of Amazing Charts to provide Programs and Services to all clients equally, or those whose actions are detrimental to the continuing well-being of the company will be considered to NOT be in Good Standing, and may have their license to use the Programs and Services revoked. Examples of such unacceptable behavior include users who don’t pay the required licensing fees, users who behave in a manner that our staff finds to be inappropriate or threatening, users who post comments about Amazing Charts or related services that are false, and users who use our software or services in a manner other than that in which they are intended to be used. Users acting in a way deemed to be inappropriate will be notified in writing that their behavior or action is considered disruptive and an attempt to correct such behavior shall be encouraged. If such disruptive behavior persists, Amazing Charts may terminate this EULA and the license granted to the user as described in the Termination section 16 below. 5. Patient-Related Data Through the use of the Programs, patient demographics and clinical encounter notes are generated and stored in the Programs. Much of this data is retrievable by you WITHOUT HAVING TO NOTIFY OR PAY ADDITIONAL FEES TO Amazing Charts. To retrieve this �Page 5 data, you may log into the Administration window of the Program and select the Import/Export tab, and then export the data in a number of different formats. 6. Optional Services In addition to the Programs, Amazing Charts is also offering certain maintenance and support, data backup, billing and other services to its licensees. These Services are described, and may be purchased on the Amazing Charts, LLC Web site. The terms of this Agreement will apply to the Services, in addition to any specific terms and conditions set forth on the Web site and/or agreements made directly with third-parties regarding such Services. Some of these Services may be provided by third parties as specified on the Amazing Charts Web site, and while we choose these Service providers carefully, we are not responsible for the Services they provide. 7. Service Fees You agree to pay Amazing Charts’s current service charges for any Services you choose to use. These service fees, which are subject to change, are posted on the Web site at www.Amazing Charts.com. Changes in service fees will be notified to you by posting on the Amazing Charts website. You agree that Amazing Charts may bill you for the Service fees as posted on the Web site. Should Amazing Charts raise the charge for these Services, you agree to be billed at the new rate, and that some of these fees will be recurring in nature and charged to you unless you notify Amazing Charts that you want to terminate a Service at least two weeks prior to billing for that Service. Service fees are non-refundable. 8. Support Support for the Programs after the first year is NOT included with the Programs. Any support provided, whether purchased or not, is done at the sole discretion of Amazing Charts and is covered by this EULA, including the No Warranty and Limitation of Liability sections below. 9. No Warranty THE PROGRAMS AND SERVICES ARE PROVIDED "AS IS." AMAZING CHARTS DOES NOT MAKE ANY WARRANTIES OR REPRESENTATIONS, EXPRESSED OR IMPLIED, CONCERNING THE MERCHANTABILITY, TITLE, AVAILABILITY, QUALITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROGRAMS OR SERVICES. YOU ASSUME ALL RISK OF USE. NO WARRANTY IS GIVEN THAT THE PROGRAMS OR SERVICES WILL BE ERROR-FREE, FREE OF VIRUSES, OR THAT THEY WILL NOT ADVERSELY AFFECT YOUR COMPUTER OR OTHER PROGRAMS ON YOUR COMPUTER. AMAZING CHARTS DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE PROGRAMS OR SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE PROGRAMS OR SERVICES WILL BE UNINTERRUPTED. 10. Limitation of Liability AMAZING CHARTS SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES INCURRED OR ARISING OUT OF THE USE OR THE INABILITY TO USE THE PROGRAMS OR SERVICES, OR OUT OF DATA PRODUCED BY THE PROGRAMS, ANY LOSS OF DATA, OR ARISING FROM ANY BREACH OF A REPRESENTATION OR �Page 6 WARRANTY, OR FOR ANY CLAIM BY ANY THIRD PARTY, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, EVEN IF AMAZING CHARTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. AMAZINGCHARTS MAXIMUM LIABILITY FOR ANY REASON WILL BE TO REFUND THE AMOUNT YOU PAID TO IT IN THE TWELVE MONTH PERIOD PRECEDING THE DATE OF THE CAUSE OF ACTION GIVING RISE TO THE CLAIM CONCERNED. THE FOREGOING LIMITATION OF LIABILITY IS AN AGREED ALLOCATION OF RISK THAT IS REFLECTED IN THE FEES FOR WHICH THE PROGRAMS, SERVICES, SITE AND/OR CONTENT IS MADE AVAILABLE BY AMAZING CHARTS WITHOUT WHICH THE AVAILABILITY AND/OR PRICE OF WHICH WOULD NECESSARILY DIFFER FROM THOSE OFFERED BY AMAZING CHARTS. 11. Confidentiality “Confidential Information” means any non-public information (without regard to the medium on which such information may be recorded, whether written, visual, audio, graphic, computerized or otherwise) concerning or relating to your property, business affairs and patients and specifically includes data transmitted from your computer(s) to Amazing Charts’ servers. Confidential Information shall be held in confidence by Amazing Charts and shall be used only for the purposes provided for in this Agreement. Amazing Charts shall use the same degree of care to safeguard your Confidential Information as it utilizes to safeguard its own Confidential Information. The terms of this provision shall apply to Amazing Charts’s confidential information which comes into your possession. 12. Clinical Data AMAZING CHARTS WILL KEEP YOUR CLINICAL DATA CONFIDENTIAL (including, but not limited to, medical care, prescribing habits, and other patient-care data in your medical records), in accordance with HIPAA (described below) and all other applicable regulations. Amazing Charts may share, transmit, disclose or provide clinical data as permitted or required by law. Amazing Charts may also use or disclose to third-parties data that has been de-identified in accordance with applicable law including 45 CFR § 164.514, in order to create comparative databases or to perform statistical analysis and for such other lawful purposes, except that Amazing Charts will make all reasonable efforts to exclude certain users’ de-identified data from such legally permissible disclosures if that user makes a written request to opt out at https://www.amazingcharts.net/optout. You understand that data accessed by certain third-parties such as Surescripts through its immunization registries and its electronic prescribing services may not be excluded even if a user’s written opt out request is duly made. Amazing Charts requires all its employees to review, understand, agree with, and comply with HIPAA regulations. The confidentiality of any and all personally identifiable clinical records is mandated at all times. �Page 7 Amazing Charts may comply with any subpoena or similar order related to data on its server, provided that Amazing Charts notifies you promptly upon receipt thereof, unless such notice is prohibited by law. Amazing Charts WILL NOT INTENTIONALLY USE AD-WARE, SPY-WARE, or other mechanisms that may compromise confidentiality of records or intentionally damage the integrity of the medical records or content on your computers. 13. HIPAA Requirements To the extent applicable in light of the Services you ultimately pay us to provide, Amazing Charts. will use its reasonable commercial efforts to comply with the Health Insurance Portability and Accountability Act of 1996, as codified at 42 U.S.C. 1320d (“HIPAA”) and any current and future regulations promulgated there under, including without limitation the federal privacy regulations contained in 45 C.F.R. Parts 160 and 164 (the “Federal Security Regulations”), the federal security standards contained in 45 C.F.R. Part 142 (“Federal Security Regulations”), and the federal standards for electronic transactions contained in 45 C.F.R. Parts 160 and 162, all collectively referred to herein as “HIPAA requirements”. Amazing Charts agrees not to use or further disclose any Protected Health Information (as defined in 45 C.F.R. Section 164.501) or Individually Identifiable Health Information (as defined in 42 U.S.C. Section 1320d), other than as permitted by HIPAA Requirements and the terms of this EULA. Amazing Charts will make its internal practices, books, and records relating to the use and disclosure of Protected Health Information available to the Secretary of Health and Human Services to the extent required for determining compliance with the Federal Privacy Regulations. Attached to this EULA is a form of Business Associate Agreement (“BAA”) which Amazing Charts, LLC enters into with you upon your accepting the terms of this EULA. A copy of the BAA may be down loaded for your files at www.amazingcharts.com/BAA.pdf . 14. Property The Programs and all related materials are the copyrighted property of Amazing Charts, or the parties which own the Programs concerned and except as noted below, the Programs and all intellectual property rights therein are owned by the holders of the copyrights for the Programs concerned. You are authorized to use the Programs for your own internal use only. You are prohibited from selling, leasing, or licensing the Programs or any portion thereof to any unauthorized party, or using it to process the work of any other party. You are prohibited from creating derivative works based on the Programs without written permission from Amazing Charts. You are prohibited from disassembling or reverse engineering the Programs, or removing any copyright notice from them. Only if you are using downloaded versions of the Programs, you may make copies of the Programs solely for backup or archival purposes. You must ensure the confidentiality of your corporate identification codes, user identification codes, and user passwords used in connection with the Programs or Services (“ID Codes”). You are responsible for activity entered through and under any ID Codes. In no event will Amazing Charts be liable for the foregoing obligations or the consequences of your failure to fulfill such obligations. �Page 8 The CPT five-digit codes and descriptions are the copyrighted property of the American Medical Association (“AMA”) and are subject to the restrictions set forth in the previous paragraph. The CPT codes are licensed to Amazing Charts by the AMA and continued use and updating within the Programs is dependent upon continuing contractual relations with the AMA. You may not use the Programs, or any of the Medications, ICD, or CPT information contained therein in any public electronic bulletin board, or public computer based information system (including the Internet and World Wide Web). 15. Export Controls and License Territory. The Programs may be licensed for use only in the United States, its territories and Canada (the “Territory”). If you want to use the Programs outside of the Territory, you must contact Amazing Charts, LLC via e-mail at [email protected], and request permission to do so. Such permission may only be granted in writing, and no attempt to download, access or use the Programs outside of the Territory shall be made until you have received such permission in writing. By accessing or downloading the Programs without such written permission you represent and agree that they will be used only in the Territory. If there is any use or attempted use of the Programs outside of the Territory without your having received such written permission, your right to continued use of the Programs will cease, and Amazing Charts will have the right to immediately terminate your license. You acknowledge that the Programs contain 128-bit, and higher, encryption algorithms and may be subject to restrictions and controls imposed under the export control laws and regulations of the Territory and may not be exported, acquired, shipped, transferred or re-exported, directly or indirectly, to (i) any country or region prohibited under such laws and regulations or (ii) any end user who has been prohibited from participating in the export transaction under such laws or regulations. 16. Termination. This license will be terminated if you fail to cure any breach of any term of this EULA within 20 days after we notify you of the breach, and you must cease to use the Program after the 20 day period. In the event the breach is not curable, then this license will terminate immediately upon your receipt of such notice of termination. We also retain the right to immediately terminate your license if that is appropriate in a particular instance In addition to termination for your breach of this EULA, Amazing Charts may terminate your license and ability to use the Programs and services if you are found NOT to be in Good Standing (as described in section 4 above). You may terminate this EULA and thereby your license at any time by sending notice of termination to Amazing Charts Be sure to export your patient-related data as described in the Patient-Related Data section 5 above before terminating your license. All notices required or permitted under this EULA shall be sent in writing, by a recognized courier service such as FedEx or UPS, and addressed to the other party as follows: Notices sent �Page 9 by you to Amazing Charts, shall be addressed to John Squire, President, at 111 Huntington Ave, Suite 4, Boston, MA 02199, Notices sent by Amazing Charts to you shall be addressed to the address you provided to Amazing Charts when you first purchased the Program and entered into the EULA. Either party may change the address to which notices shall be sent by sending a written notice by ordinary mail. Fees already paid are not refundable in the event of termination by Amazing Charts because of your breach of the Agreement or your termination for convenience. Amazing Charts has the ability to terminate access to most of the features of the Programs and Services. Even if this access is turned off, however, you will still maintain the ability to export your patient demographics and clinical encounters (see Patient-Related Data section 5 above). Other than terminating access to parts of the Amazing Charts software or services, after notice to you that Amazing Charts is terminating this EULA, Amazing Charts, LLC WILL NOT DELIBERATELY DISABLE, TAMPER WITH, or CRIPPLE YOUR COMPUTER or otherwise hamper your ability to use non-Amazing Charts software or services. Upon termination of the EULA for any reason, you agree that you will immediately delete all copies of the Programs from your computers and cease using Amazing Charts Programs or any Services. You agree that by terminating your license, you are authorizing Amazing Charts to immediately delete any and all backup files, billing information, and any other data you have provided us and to terminate your access to the Programs. 17. Miscellaneous This EULA is nontransferable by the user, is nonexclusive, and applies to all usage of the Programs, as well as to the Services. Amazing Charts may assign its rights in this EULA and it shall thereafter fully bind such successors and assigns. This EULA shall be governed in accordance with the laws of the State of Delaware, excluding its conflicts of laws principles. The state courts of Delaware have exclusive jurisdiction with regard to all actions relating to this EULA, and you agree that you will be subject to the jurisdiction of such courts. In the event that a provision of this EULA is determined to violate any law or is unenforceable, the remainder of this EULA shall remain in full force and effect. No failure or delay on the part of Amazing Charts in exercising any right hereunder will operate as a waiver of, or impair, any such right, or any other right of Amazing Charts. This EULA is updated from time to time and the most up-to-date version is posted at www.amazingcharts.com/EULA.pdf. Each time you use the Programs and Services you are agreeing to abide by the latest version of this EULA as posted at the link above, in perpetuity until terminated by you or Amazing Charts, LLC in accordance with the Termination provisions of this EULA. (EULA revised as of 12-4-2015) �Page 10 APPENDIX 1 THIRD PARTY CONTENT TERMS AND CONDITIONS 1. The following definitions are incorporated herein: 1.1.1 “Appendix” means this Appendix to the EULA between you and Amazing Charts, LLC. 1.1.2 “Prescriber” means an M.D., D.O., D.D.S., D.D.M., Physician’s Assistant (PA), R.N., LPN, or advanced practice nurse, licensed pharmacist, or other properly licensed professional clinician authorized to write or dispense prescriptions in the United States or its territories. 1.1.3 “Customer Authorized User” means a person permitted by you to access or use the Program, including, without limitation, Prescribers, and who is subject to the terms of this Appendix. 1.1.4 “Licensor” means Amazing Charts, LLC. 1.1.5 “Third Party Content Provider” means the licensor of any Third Party Content included within or accessible through the Program, including without limitation Wolters Kluwer Health, Inc., a Delaware corporation and Lexi-comp, Inc., an Ohio corporation d/b/a Lexicomp. 1.1.6 “Third Party Licensed Products” means certain data or software provided to Amazing Charts, LLC under separate license from Third Party Content Providers and provided by Amazing Charts, LLC to you through use of the Program. 1.1.7 All other capitalized terms used herein shall have the meanings ascribed to them in the EULA. 2. License Grant. During the term of this Appendix, Licensor grants to you a limited, nonexclusive, non-transferable license to access and use certain content from the Third Party Licensed Products which Licensor has previously and separately licensed from Third Party Content Provider and included within the Program. You and Customer Authorized Users may use the Third Party Licensed Products pursuant to a limited and restricted license in conformance with the terms of the license from Third Party Content Provider. You and your Customer Authorized Users may not provide data from the Third Party Licensed Products to third-parties for any other purpose. This is not a sale of the Third Party Licensed Products or of a copy of the Third Party Licensed Products. Any use or attempted use of the Third Party Licensed Products other than as expressly permitted herein is a material breach of this Appendix. Only Customer Authorized Users may access and use the Third Party Licensed Products through the Program. The Third Party Licensed Products were developed for use only in the United States and its territories. 3. Customer Authorized Users Compliance. You shall take commercially reasonable measures to ensure that Customer Authorized Users comply with the terms of this Appendix. You shall promptly report to Licensor any breach of this Appendix by a Customer Authorized User, but in no event later than five calendar days after becoming aware of a breach. 4. License Restrictions. You and Customer Authorized Users shall not: (a) print in whole or in substantial part the Third Party Licensed Products; (b) modify, translate, reverse engineer, �Page 11 decompile, disassemble, or attempt to derive or alter any source code of the Third Party Licensed Products or any underlying software; (c) use the Third Party Licensed Products to provide service bureau, time sharing, or similar services to third parties, including any parent, subsidiary, or other affiliate of yours unless such use by the parent, subsidiary, or other affiliate is explicitly permitted by Licensor and such parent, subsidiary or other affiliate is bound by the terms of this Appendix; (d) distribute, sublicense, sell, assign, transfer, rent, lease, pledge, or encumber the Third Party Licensed Products, or make any attempt to do so; (e) alter, remove, or hinder delivery of any copyright, disclaimer, or proprietary notice appearing in the Third Party Licensed Products; (f) take any action compromising the enjoyment and use of the Third Party Licensed Products by any other Third Party Content Provider or Licensor customer; or (g) take any action compromising Third Party Content Provider’s or Licensor’s rights in or to use of the Third Party Licensed Products. Redistribution of the Third Party Licensed Products in whole or substantial part for any purpose is not permitted. 5. Compliance with Laws. You shall use the Third Party Licensed Products and the information contained therein and results derived therefrom, in compliance with applicable federal, state or provincial, and local laws, rules, and regulations. 6. No Competitive Products. Under no circumstances shall you use the Third Party Licensed Products or information contained therein or results derived therefrom, to develop a product(s) or service(s) in any format similar to, or which could be competitive with, the Program or the Third Party Licensed Products. 7. Modifications. You shall not modify, or create a derivative work from, the Third Party Licensed Products without the explicit, prior written permission of Third Party Content Provider and Licensor. You assume all liability for any modification made by you, on your behalf, or by a Customer Authorized User. Third Party Content Provider and Licensor specifically disclaim all warranties of any nature, express and implied, regarding any Third Party Licensed Products modified by you, on your behalf, or by a Customer Authorized User. 8. Product Documentation, Training, Support. In the event that Third Party Content Provider provides Licensor with documentation or an alert that has the potential to affect patient safety or clinical practice, Licensor is obligated under its agreement with Third Party Content Provider to make such known to you. Upon notification of such an alert or documentation, you shall promptly provide Customer Authorized Users with access to a hard copy or instructions for obtaining an electronic copy of the alert or documentation as provided by Licensor to you. You have the sole responsibility for ensuring that Customer Authorized Users have sufficient training to use the Third Party Licensed Products in a reasonably competent manner before providing them with access to the Third Party Licensed Products. Third Party Content Provider will not provide support directly to you; rather all support regarding the Program or the Third Party Licensed Products will be provided to you by Licensor. 9. Professional Responsibility. You acknowledge that the professional duty to a patient in the provision of healthcare services (including but not limited to the dispensing of drug prescriptions, provision of drug information, substitution of one drug product for another, availability of generic substitutable alternative drug products, providing instruction, and answering questions a patient may have) lies solely with the healthcare professional providing direct patient care or pharmacy services. You acknowledge and agree that clinical �Page 12 information and screening functions in the Third Party Licensed Products are intended only as a limited supplement to, and not replacement for, the professional clinical judgment of a healthcare professional. you acknowledge and agree that neither Third Party Content Provider nor Licensor provides medical, pharmaceutical, or other professional advice or patient services in connection with this Appendix or as part of or as a result of the provision of the Third Party Licensed Products and have no ability to verify patients’ understanding of their medications and the effects of such medications. You acknowledge that content from the Third Party Licensed Products provided to patients: (a) is not a substitute for verbal medication counseling or physical demonstration of an administration technique by a healthcare professional, (b) may be confusing to certain patients when not interpreted by a healthcare professional, and (c) is designed solely to support the verbal information transfer by healthcare professionals and to serve as a non-comprehensive take home reference source for patients or caregivers. Accordingly, you, through your Customer Authorized Users, are required to, and will, independently apply your medical, pharmaceutical, or other professional knowledge, expertise, and judgment with respect to determining the correctness, completeness, timeliness, and suitability of the content or function of the Third Party Licensed Products for each patient for whom you or a Customer Authorized User provides any services or products and, where applicable and within the discretion of the healthcare professional, provide each patient with appropriate, individualized verbal counseling regarding potential relevant health care conditions and the use of, or potential adverse consequences associated with, a particular drug, drug combination, or course of therapy. Therefore, as between you, on the one hand, and Third Party Content Provider on the other hand, you take full responsibility for your and your Customer Authorized Users’ use of the content in, and function of, the Third Party Licensed Products in patient care. 10. Effect of Termination. Upon expiration or termination of this Appendix for any reason, the right to use the Third Party Licensed Products granted hereunder terminates. You shall (a) within 30 days cease all use of the Third Party Licensed Products; (b) take such steps as are necessary to prohibit further use of the Third Party Licensed Products; and (c) furnish a written description of the steps taken if so requested by Third Party Content Provider or Licensor. If so required by law or a regulatory agency, for archival purposes only, you may retain data from the Third Party Licensed Products if the data was derived in accordance with this Appendix. Data from the Third Party Licensed Products that have been included in a patient’s electronic health record prior to termination may be retained in that electronic health record after termination. 11. Title. You agree that all right, title, and interest in and to the Third Party Licensed Products and all information therein, including all copyrights and other intellectual property inherent therein or appurtenant thereto, are, and at all times shall remain, the sole and exclusive property of Third Party Content Provider. To the extent that you inadvertently or otherwise acquire any rights to the Third Party Licensed Products or any portion thereof in a manner not set forth herein, you agree to execute, and to cause your representatives to execute, any assignment agreements or other instruments assigning, transferring, and conveying to Third Party Content Provider all right, title, and interest in and to the Third Party Licensed Products, including copyrights and other intellectual property. 12. Disclosure. You shall treat the Third Party Licensed Products as confidential. You shall not share or disclose the Third Party Licensed Products to any individual or entity other than as set forth herein. If you receive a request to disclose the Third Party Licensed Products to a �Page 13 third-party, you shall promptly communicate such request to Third Party Content Provider and Licensor for approval, disapproval, or objection. 13. No Other Rights. Rights not expressly granted to you herein are reserved to Third Party Content Provider and/or Licensor as may be the case. Neither you nor your Customer Authorized Users have any implied rights in, or to use of, the Third Party Licensed Products; rather, all rights applicable to you and your Customer Authorized Users are expressly set forth in this Appendix. 14. Equitable Relief. You agree that money damages would not be a sufficient remedy for any actual or threatened breach of the provisions of this Appendix by you or any Customer Authorized User and that, in addition to all other remedies, Third Party Content Provider is entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach, and you further agree to waive, and to use your best efforts to cause its directors, officers, employees, and agents to waive, any requirement for the proving of actual money damages or securing or posting of any bond in connection with such remedy. 15. DISCLAIMER OF WARRANTIES. THIRD PARTY CONTENT PROVIDER RECEIVES DATA AND INFORMATION FROM MANY INDEPENDENT SOURCES, INCLUDING DRUG MANUFACTURERS AND GOVERNMENT AGENCIES. THIRD PARTY CONTENT PROVIDER CANNOT, AND DOES NOT, INDEPENDENTLY REVIEW, VERIFY, TEST, OR SUBSTANTIATE THE CONTENT FOR ACCURACY, TIMELINESS, OR COMPLETENESS AND DISCLAIMS ALL RESPONSIBILITY FOR ANY OMISSIONS OR ERRORS THEREIN AND FOR ANY ADVERSE CONSEQUENCES RESULTING THEREFROM. IN ADDITION, THE CONTENT MAY NOT NECESSARILY COVER ALL POSSIBLE USES, DIAGNOSES, TREATMENT OPTIONS, DIRECTIONS, PRECAUTIONS, DRUG INTERACTIONS, DOSAGE LIMITATIONS, LOCAL PRACTICES, OR ADVERSE EFFECTS APPLICABLE TO A PARTICULAR HEALTH CONDITION, DRUG OR TREATMENT OR A PARTICULAR PATIENT. ALTHOUGH THE CONTENT COVERS A WIDE RANGE OF HEALTH CONDITIONS, PRESCRIPTION AND NON-PRESCRIPTION DRUGS AND TREATMENT OPTIONS, IT DOES NOT INCLUDE ALL HEALTH CONDITIONS, DRUGS, VACCINES, DEVICES AND DIAGNOSTIC AGENTS. ACCORDINGLY, AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE ABSENCE OF A WARNING FOR A GIVEN HEALTH CONDITION, DRUG OR DRUG COMBINATION, OR TREATMENT OPTION IS NOT AN INDICATION THAT NO SUCH WARNING MAY BE RELEVANT TO A PARTICULAR PATIENT. MOREOVER, THE CONTENT THAT MAY BE PROVIDED TO CUSTOMER OR CUSTOMER AUTHORIZED USERS MAY PROVIDE USEFUL INFORMATION ABOUT HEALTH CONDITIONS, MEDICATIONS, AND TREATMENT OPTIONS, BUT THE CONTENT IS LIMITED AND MAY BE CONFUSING TO CERTAIN PATIENTS WHEN NOT INTERPRETED BY A HEALTHCARE PROFESSIONAL. THE CONTENT IS NOT INTENDED, AND YOU AGREE NOT TO RELY ON, AND AGREE TO INSTRUCT CUSTOMER AUTHORIZED USERS NOT TO RELY ON, THE CONTENT AS A SUBSTITUTE FOR THE KNOWLEDGE, EXPERTISE, SKILL, VERBAL COUNSELING, PHYSICAL DEMONSTRATION OF AN ADMINISTRATION TECHNIQUE, OR JUDGMENT OF PHARMACISTS, PHYSICIANS, OR OTHER HEALTHCARE PROFESSIONALS IN PATIENT CARE. IN LIGHT OF THE FOREGOING, THE THIRD PARTY LICENSED PRODUCTS ARE FURNISHED BY THIRD PARTY CONTENT PROVIDER “AS IS” AND THIRD PARTY CONTENT PROVIDER, ITS AFFILIATES, AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE THIRD PARTY LICENSED PRODUCTS OR ANY SERVICES HEREUNDER AND DISCLAIM ALL IMPLIED REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE �Page 14 ARISING OUT OF OR RELATED TO THIS APPENDIX, THE THIRD PARTY LICENSED PRODUCTS, OR RESULTS DERIVED THEREFROM INCLUDING, BUT NOT LIMITED TO, ANY REPRESENTATIONS AND WARRANTIES (i) REGARDING COMPREHENSIVENESS, SUITABILITY, AVAILABILITY, COMPATIBILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THE THIRD PARTY LICENSED PRODUCTS (IRRESPECTIVE OF ANY COURSE OF DEALING, CUSTOM, OR USAGE OF TRADE) OR ANY WARRANTY THAT THE CONTENT SATISFIES GOVERNMENT REGULATIONS. NO THIRD PARTY CONTENT PROVIDER OR LICENSOR EMPLOYEE, CONSULTANT, REPRESENTATIVE OR AGENT IS AUTHORIZED TO MAKE ANY STATEMENT THAT ADDS TO OR AMENDS THE WARRANTIES OR LIMITATIONS CONTAINED IN THIS APPENDIX. 16. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING IN THIS APPENDIX TO THE CONTRARY, IN NO EVENT SHALL THIRD PARTY CONTENT PROVIDER, ITS AFFILIATES OR ITS LICENSORS, OR ANY OF ITS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, BE LIABLE TO YOU, CUSTOMER AUTHORIZED USERS, YOUR OR THEIR PATIENTS OR ANY THIRD PARTY WHOSE CLAIM IS RELATED TO THIS APPENDIX OR USE OF THE THIRD PARTY LICENSED PRODUCTS, UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY, FOR: (A) DAMAGES OF ANY KIND ARISING OUT OF THE USE OF, ACCESS TO, RELIANCE ON, INABILITY TO USE, OR IMPROPER USE OF THE THIRD PARTY LICENSED PRODUCTS OR (B) FOR ANY CLAIMS, DAMAGES OR COSTS OF ANY NATURE IN AN AMOUNT EXCEEDING THE LICENSE FEES ATTRIBUTABLE TO THE THRID PARTY LICENSED PRODUCTS PAID BY YOU TO LICENSOR DURING THE TWELVE (12) MONTHS PRECEDING THE EARLIEST EVENT GIVING RISE TO SUCH SPECIFIC INSTANCE OF LIABILITY. IN NO EVENT WILL THIRD PARTY CONTENT PROVIDER, ITS SUBSIDIARIES OR AFFILIATES, OR ANY OF ITS OR THEIR SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU, CUSTOMER AUTHORIZED USERS, YOUR OR THEIR PATIENTS OR ANY THIRD PARTY WHOSE CLAIM IS RELATED TO THIS APPENDIX, UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, DATA, BUSINESS, OR GOODWILL), REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY AS WELL AS THE DISCLAIMERS SET FORTH HEREIN ARE INDEPENDENT OF ANY REMEDIES SET FORTH HEREIN AND WILL SURVIVE AND APPLY EVEN IF SUCH REMEDIES ARE FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. YOU ACKNOWLEDGE THAT THIS LIMITATION OF LIABILITY IS A MATERIAL PART OF THE CONSIDERATION PROVIDED BY YOU IN EXCHANGE FOR THE RIGHTS YOU HAVE BEEN GRANTED HEREUNDER. 17. Indemnification. You shall defend, indemnify and hold harmless Third Party Content Provider and its licensors and affiliates and their respective officers, directors, employees, contractors and agents, from all claims, damages, liabilities, and expenses (including reasonable attorneys’ fees and court costs) arising out of, connected with, or resulting in any way from any third party action, claim, or any other assertion of a legal right (including by a government entity), even if the claim is groundless, fraudulent, or false, in connection with, resulting from, arising out of, or relating to, your or your Customer Authorized Users’: (a) use of the Third Party Licensed Products; (b) provision of any content from the Third �Page 15 Party Licensed Products to patients or other third-parties by you or your Customer Authorized Users; or (c) modification made to the Third Party Licensed Products by you or your Customer Authorized Users. If you are a governmental entity subject to statutory limitations that apply to this section, you shall provide the indemnifications to the full extent permitted by the statutory limitations but not in violation of such limitations. In the event of an action subject to indemnification hereunder, you shall provide written notice to Third Party Content Provider in a timely manner after you receive actual notice of the existence of a claim. You shall have the right, at your expense, to employ counsel reasonably acceptable to Third Party Content Provider to defend the claim, and to compromise, settle or otherwise dispose of the claim; provided, however, that no compromise or settlement of any claim admitting liability of or imposing duties or restrictions upon Third Party Content Provider may be effected without the prior written consent of Third Party Content Provider. Third Party Content Provider will cooperate in such action by making available to you, at your expense, records reasonably necessary for the defense of the claim. �Page 16 Business Associate Agreement THIS BUSINESS ASSOCIATE AGREEMENT (“Agreement”) is entered into and is effective as of the same day the End User License Agreement (“EULA”) is agreed to (“Effective Date”), by and between Amazing Charts, LLC (“Business Associate”) having a business address of 111 Huntington Ave, Suite 4, Boston, MA 02199 and the User referenced in the EULA, on behalf of itself and its affiliates, if any (individually and collectively, “Medical Service Provider”). WHEREAS, Medical Service Provider is a Covered Entity and Business Associate, as a provider of electronic health record technology and other services and supplies pursuant to an Underlying Agreement, may perform certain administrative functions, services, or activities on behalf of Medical Service Provider involving the use and/or disclosure of Protected Health Information (“PHI”); and WHEREAS, Business Associate and Medical Service Provider intend to protect the privacy and provide for the security of PHI disclosed to Business Associate in compliance with the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191, and the regulations promulgated under 45 C.F.R. Parts 160 and 164, as amended (the “Privacy Rule” and “Security Rule”) (which are collectively referred to herein as “HIPAA”) and the Health Information Technology for Economic and Clinical Health Act, Public Law 111-005, and the final regulations promulgated thereunder (the “HITECH Act”), as amended. NOW, THEREFORE, in consideration of the mutual agreements, covenants, terms and conditions herein contained and as a condition precedent to Business Associate continuing to provide services to Medical Service Provider, Business Associate and Medical Service Provider hereby agree as follows: 1. Definitions. Capitalized terms used but not otherwise defined herein shall have the same meanings as set forth in HIPAA or the HITECH Act, as amended. 2. Obligations of Business Associate. a. Limitations on Uses and Disclosures of Protected Health Information. Business Associate shall not and shall ensure that its employees, contractors, and agents do not use or disclose PHI in any manner that would constitute a violation of HIPAA, the HITECH Act, or other applicable law or regulation governing the privacy of PHI. Business Associate may use or disclose PHI only as permitted under the terms of this Agreement, or a written services agreement between the parties, and as permitted by HIPAA, or as required by law. b. Permitted Uses and Disclosures. Except as otherwise limited in this Agreement, Business Associate may use PHI to the extent necessary to �Page 17 provide certain administrative functions, services, or activities on behalf of Medical Service Provider. Business Associate may, in the course of providing such functions, services, or activities disclose PHI to third parties such as subcontractors, agents, or other parties to the extent that such disclosures are necessary or advisable in furtherance of the provision of administrative services to Medical Service Provider, provided that disclosure of PHI to, and use of PHI by, such other parties are also subject to Section 2(c)(ii) below. Medical Service Provider shall be responsible for obtaining an individual’s authorization to the extent that such authorization would be required prior to a use or disclosure of PHI contemplated by this Agreement. c. Permitted Uses and Disclosures for Management and Administration of Business Associate. i. Permitted Use. Except as otherwise limited in this Agreement, Business Associate may use PHI for the proper management and administration of Business Associate or to carry out its legal responsibilities. ii. Permitted Disclosures. Except as otherwise limited in this Agreement, Business Associate may disclose PHI for the proper management and administration of Business Associate, provided that the disclosures are required by law, or Business Associate obtains reasonable assurances from the person to whom the information is disclosed that it will remain confidential and be used or further disclosed only as required by law or for the purpose for which it was disclosed to the person, and the person agrees to and notifies Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached. Business Associate shall obtain and maintain a written agreement with each person to whom information is disclosed pursuant to which such person agrees to be bound by the same restrictions and conditions that apply to Business Associate pursuant to this Agreement. iii. Reporting Violations of Law. Business Associate may use PHI to report violations of law to appropriate Federal and State authorities, consistent with 42 C.F.R. § 164.502(j)(1). iv. De-identified Information. Business Associate may use or disclose health information, which has been De-identified in accordance with 45 CFR § 164.514, in order to create comparative databases or to perform statistical analysis and for such other lawful purposes, except that Business Associate will not disclose such De-indentified health information in a manner inconsistent with its promises in the EULA. d. Minimum Necessary Information. Business Associate represents that, to the �Page 18 extent it requests or receives disclosure of PHI from Medical Service Provider, such request or receipt shall be limited to the Minimum Necessary PHI required by Business Associate to adequately provide Medical Service Provider with administrative functions, services, or activities. Business Associate shall limit, to the extent practicable, its use and disclosure of PHI to the information contained in the Limited Data Set under HIPAA, or, if more information is needed, to the Minimum Necessary to accomplish the intended purpose of such use or disclosure as defined under HIPAA. e. Safeguards against Misuse of Information. Business Associate shall use appropriate safeguards to prevent the use or disclosure of PHI other than as provided for by this Agreement or as otherwise required or permitted by law. In addition, Business Associate agrees to mitigate, to the extent practicable, any harmful effect that is known to Business Associate of a use or disclosure by Business Associate, or its employees, contractors, or agents in violation of this Agreement. Business Associate shall implement Administrative Safeguards, Physical Safeguards, and Technical Safeguards in accordance with the Security Rule that reasonably and appropriately protect the confidentiality, integrity and availability of ePHI that Business Associate creates, receives, maintains or transmits on behalf of Medical Service Provider and maintain appropriate documentation of such safeguards. In addition, Business Associate shall ensure that any agent or subcontractor to whom it provides ePHI agrees, in writing, to implement reasonable and appropriate safeguards to protect such ePHI. f. Prohibition on Remuneration. Business Associate shall not receive remuneration directly or indirectly in exchange for PHI, except with the prior written consent of Medical Service Provider and as permitted by the HITECH Act. Notwithstanding the foregoing, this provision shall not prohibit payment by Medical Service Provider for the administrative functions, services, or activities provided by Business Associate. g. Reporting of Disclosures of PHI. Business Associate shall promptly report to Medical Service Provider any unauthorized acquisition, access, use, or disclosure of PHI in violation of HIPAA, the HITECH Act, or other applicable law, or in violation of the terms of this Agreement. Such report shall be made without unreasonable delay but in no event later than sixty (60) calendar days after discovery by Business Associate of such Breach. Each report of a Breach shall include, to the extent possible, the following information: (i) a description of the facts pertaining to the Breach, including without limitation, the date of the Breach and the date of discovery of the Breach, (ii) identification of the individual whose PHI has been or is reasonably believed by Business Associate to have been disclosed during the Breach, (iii) a description of the PHI involved in the Breach, (iv) the names of the unauthorized individuals or entities to whom PHI has been disclosed, (v) a description of the action taken or proposed by the Business Associate to mitigate the financial, reputational or �Page 19 other harm to the individual who is the subject of the Breach, and (vi) provide such other information as Medical Service Provider may reasonably request including, without limitation, the information, data and documentation required by Medical Service Provider to timely comply with the HITECH Act. h. Incident Reports. Business Associate shall notify Medical Service Provider, in writing, of any security incident within sixty (60) calendar days of becoming aware of such Security Incident. i. Agents and Subcontractors. Business Associate shall ensure that any agent, subcontractor, or other representative to whom Business Associate discloses PHI agrees in writing to the same restrictions and conditions that apply to Business Associate pursuant to this Agreement. j. Access to Information. Business Associate shall make PHI maintained by Business Associate or its agents or subcontractors available to Medical Service Provider within sixty (60) calendar days of a request by Medical Service Provider to enable Medical Service Provider to fulfill its obligations under HIPAA. In the event any individual requests access to PHI directly from Business Associate, it shall forward such request to Medical Service Provider within five (5) calendar days. Medical Service Provider shall determine whether and to what extent access shall be granted or denied and shall notify the individual requesting access of its decision. Said determination shall be the sole responsibility of Medical Service Provider. If Business Associate maintains an Electronic Health Record, Business Associate shall provide such information in electronic format to enable Medical Service Provider to fulfill its obligations under the HITECH Act. k. Judicial and Administrative Proceedings. In the event Business Associate receives a subpoena, court or administrative order or other discovery request or mandate for release of PHI, Medical Service Provider shall have the right to control Business Associate's response to such request. Business Associate shall notify Medical Service Provider of the request as soon as reasonably practicable, but in any event within forty-eight (48) business hours of receipt of such request, unless otherwise prohibited by law. l. Availability of PHI for Amendment. Promptly upon receipt of a request from Medical Service Provider to amend an individual's PHI or a record regarding an individual, Business Associate shall either provide such information or record to Medical Service Provider for amendment and incorporate any such amendments in the PHI as required by 45 C.F.R. § 164.526 in the possession or under the control of Business Associate, or make such amendments to said PHI as may be directed, in writing, by Medical Service Provider. If any individual requests such amendment of PHI directly from Business Associate or its agents or subcontractors, Business Associate shall notify Medical Service �Page 20 Provider of the request in writing within ten (10) calendar days. m. Availability of Internal Practices, Books and Records. Business Associate agrees to make available to Medical Service Provider its internal practices, books and records relating to the use and disclosure of PHI received from, or created or received by Business Associate on behalf of Medical Service Provider or, at the request of Medical Service Provider, to the Secretary for the purpose of verifying Business Associate’s compliance with HIPAA and the HITECH Act. Business Associate agrees to cooperate with any HHS investigation of a privacy complaint. n. Documentation of Disclosures. Business Associate agrees to document disclosures by it and its subcontractors or agents, of PHI and other information related to such disclosures as would be required for Medical Service Provider to respond to a request by an individual for an accounting of disclosures of PHI in accordance with 45 C.F.R. § 164.528. If Business Associate disclosed PHI through an Electronic Health Record, Business Associate shall document disclosures by it and its subcontractors or agents of PHI for Treatment, Payment and Health Care Operations and maintain such information for a period of three (3) years from the date of the disclosure. o. Accounting of Disclosures. Withinsixty (60) calendar days of receipt of a notice from Medical Service Provider of a request for an accounting of disclosures of PHI, Business Associate and its subcontractors and agents shall make such information available to Medical Service Provider. If an individual requests such accounting directly from Business Associate or its subcontractors or agents, Business Associate shall forward such request to Medical Service Provider within five (5) calendar days. 3. Obligations of Medical Service Provider. a. Notice of Privacy Practices. Medical Service Provider agrees to provide individuals with notice of its privacy practices and obtain acknowledgment of receipt thereof in compliance with 45 C.F.R. § 164.520. In addition, upon request Medical Service Provider shall promptly provide Business Associate with a copy of its privacy practices in accordance with 45 C.F.R. § 164.520, as well as any modifications thereto. b. Changes In or Revocation of Permission by Individuals. Medical Service Provider shall promptly notify Business Associate, in writing, of any changes in, or revocation of, an individual's permission to use or disclose PHI, if such changes or revocation affects Business Associate's permitted or required uses and disclosures. c. Medical Service Provider’s Agreements to Restrict Use or Disclosure. In the event Medical Service Provider agrees to restrict the use and/or disclosure of �Page 21 PHI in accordance with 45 C.F.R. § 164.522, it shall promptly notify Business Associate, in writing, of the nature and extent of said restriction. d. Permissible Requests by Medical Service Provider. Medical Service Provider shall not request Business Associate to use or disclose protected health information in any manner that would not be permissible under HIPAA, the HITECH Act, or other applicable law or regulation governing the privacy of PHI. e. Consents and Authorizations. Medical Service Provider represents and warrants that any and all consents, authorizations, or other permissions required by HIPAA, the HITECH Act, or other applicable law (including state law) necessary to allow Business Associate to perform the administrative functions, services, or activities on behalf of Medical Service Provider consistent with the EULA have been properly secured. 4. Term and Termination. a. Term. The term of this Agreement shall commence on the Effective Date and shall terminate in accordance with the terminations provisions of this Agreement and the EULA. b. Termination without Cause. Either party may terminate this Agreement upon reasonable notice to the other party that Business Associate will no longer provide services to Medical Service Provider that require the use or disclosure of PHI. c. Termination for Cause. In compliance with HIPAA, including without limitation 45 C.F. R § 164.504(e)(2)(iii), Medical Service Provider may terminate this Agreement upon thirty (30) days advance written notice of Business Associate’s material breach of this Agreement, provided that no such termination notice shall be effective if Business Associate cures the breach within the thirty (30) day notice period. d. Return of PHI. Upon termination of the Agreement, Business Associate shall return all PHI or, at Business Associate’s option, destroy all PHI, including all copies, and provide Medical Service Provider with acceptable written confirmation of such destruction upon completion. In the event that the return or destruction of all PHI is not feasible, Business Associate shall notify Medical Service Provider in writing and such notification shall include: (i) a statement that Business Associate has determined that it is infeasible to return or destroy the PHI in its possession and (ii) the specific reasons for such determination. In such event, Business Associate shall make no further use or disclosure except for those purposes that make the return or destruction infeasible, and Business Associate shall continue to be bound by �Page 22 Sections 2 and 5 of this Agreement for as long as it maintains possession or control of any PHI, or copies thereof. 5. Miscellaneous. a. Compliance with Existing Law. Business Associate acknowledges and agrees that, as of the effective dates for such provisions, Business Associate shall comply with each provision of HIPAA, the HITECH Act, or other applicable law, that extends a HIPAA requirement to business associates. The parties shall comply with and take any further action, including amendment of this Agreement, required to ensure continued compliance with HIPAA, the HITECH Act, and any other applicable federal or state law as amended. b. Indemnification. Business Associate shall indemnify and hold Medical Service Provider, as well as its officers, trustees, employees, and agents, harmless from any and all claims, penalties, fines, costs, liabilities or damages, including but not limited to reasonable attorney fees, arising out of Business Associate’s violation of any obligations under this Agreement. Medical Service Provider shall indemnify and hold Business Associate, as well as its officers, trustees, employees, and agents, harmless from any and all claims, penalties, fines, costs, liabilities or damages, including but not limited to reasonable attorney fees, arising out of Medical Service Provider’s violation of any obligations under this Agreement. c. Independent Contractor. This Agreement is not intended to create a joint venture or partnership and the relationship of the parties is that of independent contractors. d. Notices. All notices pursuant to this Agreement must be given in writing and shall be effective when received if hand-delivered or when sent by overnight delivery service, facsimile or U.S. Mail to the appropriate address of the receiving party. e. Survival. The respective rights and obligations of the parties under this Agreement shall survive the expiration, cancellation or termination of all contracts, agreements, or other arrangements or dealings between Business Associates and Medical Service Provider pursuant to which PHI is disclosed to or used by Business Associate. Without limiting the generality of the preceding sentence, Business Associate's obligation to protect the privacy of PHI shall be continuous and shall survive any such expiration, cancellation or termination. �Page 23 f. Interpretation. Any ambiguity in this Agreement shall be interpreted to permit the parties to comply with HIPAA, the HITECH Act and the regulations thereunder, and other applicable law and regulation. This Agreement shall be interpreted as broadly as necessary to implement and comply with HIPAA and the HITECH Act. The parties agree that any ambiguity in this Agreement shall be resolved in favor of a meaning that complies with and is consistent with HIPAA and the HITECH Act. The parties agree that individuals who are the subject of PHI are not third-party beneficiaries of this Agreement. g. Prior Agreements. In the event any provision of this Agreement is inconsistent with the terms of any other agreement between Medical Service Provider and Business Associate, the terms of this Agreement shall cancel and supersede the inconsistent terms of such other agreement and such other agreement shall be considered to have been amended by the terms of this Agreement. h. Severability. In the event that any provision of this Agreement violates any applicable statute, regulation or rule of law in any jurisdiction that governs this Agreement, such provision shall be ineffective to the extent of such violation without invalidating any other provision of this Agreement. i. Parties. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. j. No Third Party Beneficiary. Nothing express or implied in this Agreement is intended to confer, nor shall anything herein confer, upon any person other than the parties, any rights, remedies, obligations, or liabilities whatsoever. AMAZING CHARTS, LLC MEDICAL SERVICE PROVIDER _____________________________ By: By: Print Name: David Sirois Print Name: Print Title: Vice President of Finance Print Title: 5479917 �
nw/53.txt
END-USER LICENSE AGREEMENT FOR Virtual Canada (www.vcanada2.com) IMPORTANT PLEASE READ THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT CAREFULLY BEFORE CONTINUING WITH THIS PROGRAM INSTALL: Virtual Canada's End-User License Agreement ("EULA") is a legal agreement between you (either an individual or a single entity) and the program's creator for the usage of the software product(s) identified above which may include associated software components, media, printed materials, and "online" or electronic documentation ("SOFTWARE PRODUCT"). By installing, copying, or otherwise using the SOFTWARE PRODUCT, you agree to be bound by the terms of this EULA. This license agreement represents the entire agreement concerning the program between you and Virtual Canada, (referred to as "licenser"), and it supersedes any prior proposal, representation, or understanding between the parties. If you do not agree to the terms of this EULA, do not install or use the SOFTWARE PRODUCT. The SOFTWARE PRODUCT is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The SOFTWARE PRODUCT is licensed to the user and not sold, e.g. Distributing ownership. 1. GRANT OF LICENSE. The SOFTWARE PRODUCT is licensed as follows: (a) Installation and Use. Virtual Canada grants you the right to install and use copies of the SOFTWARE PRODUCT on your computer IF: i). You are employed by the institution or entity that purchased the license or ii). You are a student attending the institution or entity that purchased the license. (b) Backup Copies. You may also make copies of the SOFTWARE PRODUCT as may be necessary for backup and archival purposes. 2. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS. (a) Maintenance of Copyright Notices. You must not remove or alter any copyright notices on any and all copies of the SOFTWARE PRODUCT. (b) Distribution. You may not distribute registered copies of the SOFTWARE PRODUCT to third parties. (c) Prohibition on Reverse Engineering, Decompilation, and Disassembly. You may not reverse engineer, decompile, or disassemble the SOFTWARE PRODUCT, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. (d) Rental. You may not rent, lease, or lend the SOFTWARE PRODUCT. (e) Support Services. Virtual Canada may provide you with support services related to the SOFTWARE PRODUCT ("Support Services"). Any supplemental software code provided to you as part of the Support Services shall be considered part of the SOFTWARE PRODUCT and subject to the terms and conditions of this EULA. (f) Compliance with Applicable Laws. You must comply with all applicable laws regarding use of the SOFTWARE PRODUCT. �3. TERMINATION Without prejudice to any other rights, Virtual Canada may terminate this EULA if you fail to comply with the terms and conditions of this EULA. In such event, you must destroy all copies of the SOFTWARE PRODUCT in your possession. 4. COPYRIGHT All title, including but not limited to copyrights, in and to the SOFTWARE PRODUCT and any copies thereof are owned by Virtual Canada or its suppliers. All title and intellectual property rights in and to the content which may be accessed through use of the SOFTWARE PRODUCT is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This EULA grants you no rights to use such content. All rights not expressly granted are reserved by Virtual Canada. 5. NO WARRANTIES Virtual Canada expressly disclaims any warranty for the SOFTWARE PRODUCT. The SOFTWARE PRODUCT is provided 'As Is' without any express or implied warranty of any kind, including but not limited to any warranties of merchantability, non-infringement, or fitness of a particular purpose. Virtual Canada does not warrant or assume responsibility for the accuracy or completeness of any information, text, graphics, links or other items contained within the SOFTWARE PRODUCT. Virtual Canada makes no warranties respecting any harm that may be caused by the transmission of a computer virus, worm, time bomb, logic bomb, or other such computer program. Virtual Canada further expressly disclaims any warranty or representation to Authorized Users or to any third party. 6. LIMITATION OF LIABILITY In no event shall Virtual Canada be liable for any damages (including, without limitation, lost profits, business interruption, or lost information) rising out of 'Authorized Users' use of or inability to use the SOFTWARE PRODUCT, even if Virtual Canada has been advised of the possibility of such damages. In no event will Virtual Canada be liable for loss of data or for indirect, special, incidental, consequential (including lost profit), or other damages based in contract, tort or otherwise. Virtual Canada shall have no liability with respect to the content of the SOFTWARE PRODUCT or any part thereof, including but not limited to errors or omissions contained therein, libel, infringements of rights of publicity, privacy, trademark rights, business interruption, personal injury, loss of privacy, moral rights or the disclosure of confidential information. �
nw/54.txt
Whyze Solutions Pte Ltd End-User License Agreement This End User License Agreement (“EULA”) is a legal agreement between You (“You” and “Your” includes a person and/or an individual entity) and Whyze Solutions Pte Ltd (“WHYZE”) concerning the software products(s) (“Software”). The Software, includes the object code component parts, all other component parts, the associated media, any printed materials, any updates, and any “online” or electronic documentation, as applicable. By accessing, installing, copying or otherwise using the Software, You agree to be bound by the terms of this EULA. If You do not agree to the terms of this EULA, WHYZE is unwilling to license the Software to You. In such event, You may not access, use or copy the Software, and You should promptly contact WHYZE for instructions on returning the Software. WRITTEN ASSENT IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS EULA. 1. License. a. License Grant. Subject to the payment of all applicable license fees, and the terms and conditions of this EULA, WHYZE hereby grants to you a limited, non-sublicensable, non-exclusive, non-transferable right to install and run one copy of the specified version of the Software and the accompanying documentation, solely for Your individual use. This EULA authorizes You to make one copy of the Software solely for backup or archival purposes, provided that the copy You make contains all of the proprietary notices set forth in or on the original version of the Software. The Software is licensed, not sold. Even though copies of the Software may be provided on media of different formats, copies of the Software on different media formats do not constitute multiple licenses to the Software. If the Software is licensed as a suite or bundle with more than one specified Software product, this EULA applies to all such specified Software products, subject to any restrictions or usage terms specified on the applicable product packaging or accompanying documentation that applies to any of such Software products individually. b. Single-User. If this Software is licensed as a single user product, You may use only one copy of the Software, by not more than one user at a time, on a total of one computer or workstation, or personal digital assistant, or pager, or “smart phone,” or one such other electronic device for which the Software was designed (“Client Device”), unless otherwise set forth herein. The component parts of the Software may not be used individually or jointly in full or in part on more than one Client Device, unless otherwise set forth herein. The Software is “in use” on a computer when it is loaded into the temporary memory (i.e., random-access memory or RAM) of that Client Device. c. Multi-User. If the Software is licensed with multi-user or networked license terms, You may use the Software on one server computer, or a greater number as specified in the applicable multi-user license, product packaging or accompanying documentation, within a multi-user or networked environment for connecting, directly or indirectly, to not more than the maximum number of Client Devices, concurrent users and/or seats, as specified in the applicable multi-user license, product packaging or accompanying documentation. Use of software, hardware or services that bypass any Software license restrictions and/or reduce the number of Client Devices, concurrent users and/or seats, as may be applicable, accessing or utilizing the Software (e.g., “multiplexing,” “pooling,” or third party add on software or hardware) expressly does not reduce the number of licenses required (i.e.,the required number of licenses would equal the number of distinct inputs to the multiplexing or pooling software or hardware “front end”). If the number of Client Devices, concurrent users and/or seats that can potentially connect to the Software exceeds or has the potential to exceed the number of licenses You have obtained, then You must have a reasonable self-enforcing automatic mechanism in place to ensure that Your use of the Software does not exceed the use limits specified for the license You have obtained. 2. Term. Regardless of the location of the Software, You are responsible for strict compliance with any and all of the terms and conditions of this EULA. This EULA will terminate automatically if You fail to comply with any of the limitations or other requirements described herein, and such termination shall be in addition to and not in lieu of any criminal, civil or other remedies available to WHYZE. When this EULA terminates, You must immediately cease using the Software and destroy all copies of the Software. You may terminate this EULA at any point by destroying all copies of the Software. This EULA is effective unless and until You or WHYZE terminates the EULA earlier, in accordance with the terms set forth herein. 3. Updates. WHYZE may, at its sole discretion, make bug fixes, updates and/or service packs available. WHYZE’s maintenance service, if applicable and offered, is available for Software at an additional cost to You, as Licensee, under a separate written agreement. 4. Ownership Rights. a. Ownership of Software. The Software is protected by Singapore patent, copyright laws and other intellectual property laws, and international treaty provisions. WHYZE and its third party licensors, if any, retain all title to and, except as expressly and unambiguously licensed herein, all rights and interest in (a) the Software, including, but not limited to all copies, versions, customizations, compilations and derivative works thereof (by whomever produced); (b) the WHYZE trademarks, service marks, trade names, icons and logos; (c) any and all copyright rights, patent rights, trade secret rights and other intellectual property and proprietary rights throughout the world in the foregoing; and (d) all Confidential Information (as defined in Section 14 below). You acknowledge that Your possession, installation, or use of the Software does not transfer to You any ownership, title, or registrable interest of any kind to the intellectual property in the Software, and that You will not acquire any rights to the Software except as expressly set forth in this EULA. You agree that all backup, archival, or any other type of copies of the Software will contain the same proprietary notices that appear on and in the Software. b. Submissions. Should You decide to submit any materials to WHYZE via electronic mail, through or to WHYZE website(s), or otherwise, whether as feedback, data, questions, comments, ideas, concepts, techniques, suggestions or the like, You agree that such submissions are unrestricted and shall be deemed non-confidential upon submission. You grant to WHYZE and its assigns a �non-exclusive, royalty-free, worldwide, perpetual, irrevocable license, with the right to sublicense, to use, copy, transmit, distribute, create derivative works of, commercialize, display and perform such submissions. 5. Restrictions. You may not rent, lease, sublicense, loan, sell, distribute, market or commercialize any portion of the Software. You may only use the Software on hardware that is under Your exclusive control. You may not permit any parent, affiliate, subsidiary or any other third parties to benefit from the use or functionality of the Software, either directly or via a facility management, timesharing, service bureau or any other arrangement; provided, however, that You may use the Software, as provided herein, to process the data of an affiliate or subsidiary of which You own more than fifty percent (50%); provided, however, You may not exceed the number of datasets specified on the applicable product packaging or accompanying documentation. You may not use the Software as part of a facility management, timesharing, or service bureau arrangement. You may not transfer any or all of the rights granted to You under this EULA. To the maximum extent this restriction is permitted under applicable law, except as expressly permitted in Section 1, You may not rename files of, modify, translate, localize, decompile, disassemble, decrypt, reverse engineer, attempt to derive source code from, remove any proprietary notices from, or create derivative works based upon the Software, in whole or in part. You may not duplicate or copy any portion of the Software, unless otherwise set forth herein. You may not remove any proprietary notices or labels on the Software, including, but not limited to, the WHYZE and product names wherever they may appear. All rights not expressly set forth hereunder are reserved by WHYZE. WHYZE reserves the right to periodically conduct audits upon advance written notice to verify compliance with the terms of this EULA. 6. Warranty and Disclaimer. a. Limited Warranty. WHYZE warrants that for ninety (90) days from the date of original purchase the media on which the Software is contained will be free from defects in materials and workmanship. b. Customer Remedies WHYZE’s entire liability and Your exclusive remedy shall be replacement of the defective media. To receive replacement of defective media, You must receive a return authorization number from WHYZE and return the defective media to WHYZE at Your expense with a copy of Your receipt. This limited warranty is void if the defect has resulted from accident, abuse, or misapplication. Any replacement media will be warranted for the remainder of the original warranty period. This remedy is not available to the extent it is prohibited under Singapore export control laws and regulations. c. Warranty Disclaimer. To the maximum extent permitted by applicable law, and except for the limited warranty set forth herein, THE SOFTWARE (AND ACCOMPANYING DOCUMENTATION) IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING PROVISIONS, YOU ASSUME SOLE RESPONSIBILITY FOR SELECTING THE SOFTWARE. TO ACHIEVE YOUR INTENDED RESULTS, AND SOLE RESPONSIBILITY FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SOFTWARE. WITHOUT LIMITING THE FOREGOING PROVISIONS, WHYZE MAKES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE, VIRUS FREE, OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SOFTWARE WILL SATISFY YOUR SPECIFIC REQUIREMENTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WHYZE DISCLAIMS ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY (IF ANY) IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF LACK OF VIRUSES, OF LACK OF ACCURACY OR COMPLETENESS OF RESPONSES, OF RESULTS, AND LACK OF NEGLIGENCE OR LACK OF WORKMANLIKE EFFORT, ALL WITH REGARD TO THE SOFTWARE AND ASSOCIATED DOCUMENTATION. THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIETPOSSESSION, CORRESPONDENCE TO DESCRIPTION, OR NON-INFRINGEMENT WITH REGARD TO THE SOFTWARE. THE ENTIRE RISK OFTHE QUALITY OF OR ARISING OUT OF USE OR PERFORMANCE OF THE SOFTWARE, IF ANY, REMAINS SOLELY WITH YOU. SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THE FOREGOING PROVISIONS SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. d. Indemnification. You agree to defend, indemnify and hold harmless WHYZE and its directors, officers, employees, affiliates, sublicensees, and agents from and against all claims, defence costs (including reasonable expert and attorneys' fees), judgments and other expenses arising out of or on account of: (i) alleged infringement or violation of any patent, trademark, copyright, trade secret or other proprietary rights with respect to the modification and customization performed by You or on Your behalf under Section 1 of this EULA; or (ii) any negligent act, omission, or wilful misconduct by You or on Your behalf in the performance of this EULA. e. Data. YOU ACKNOWLEDGE THAT ANY DATA ENTRY, CONVERSION OR STORAGE IS SUBJECT TO THE LIKELIHOOD OF HUMAN AND MACHINE ERRORS, MALICIOUS MANIPULATION, OMISSIONS, DELAYS, AND LOSSES, INCLUDING, BUT NOT LIMITED TO, INADVERTENT LOSS OF DATA OR DAMAGE TO MEDIA THAT MAY RESULT IN LOSS OR DAMAGE TO YOU AND/OR YOUR PROPERTY, AND/OR YOUR DETRIMENTAL RELIANCE ON MALICIOUSLY MANIPULATED DATA. WHYZE SHALL NOT BE LIABLE FOR ANY SUCH ERRORS, OMISSIONS, DELAYS, OR LOSSES. YOU ARE RESPONSIBLE FOR ADOPTING REASONABLE MEASURES TO LIMIT THE IMPACT OF SUCH PROBLEMS, INCLUDING BACKING UP DATA, ADOPTING PROCEDURES TO ENSURE THE ACCURACY OF INPUT DATA, EXAMINING AND CONFIRMING RESULTS PRIOR TO USE, ADOPTING PROCEDURES TO IDENTIFY AND CORRECT ERRORS AND OMISSIONS, REPLACING LOST OR DAMAGED MEDIA, AND RECONSTRUCTING DATA. YOU ARE ALSO RESPONSIBLE FOR COMPLYING WITH ALL LOCAL, STATE, AND FEDERAL LAWS PERTAINING TO THE USE AND DISCLOSURE OF ANY DATA. f. Authorized WHYZE Solution Providers and Certified Consultants. ANY AUTHORIZED WHYZE SOLUTION PROVIDER, CERTIFIED CONSULTANT, RESELLER, INSTALLER OR CONSULTANT IS NOT AFFILIATED WITH WHYZE IN ANY CAPACITY OTHER THAN AS A RESELLER, INSTALLER OR CONSULTANT OF WHYZE’S PRODUCTS AND HAS NO AUTHORITY TO BIND WHYZE OR MODIFY ANY LICENSE OR �WARRANTY. WHYZE MAKES NO REPRESENTATIONS, WARRANTY, ENDORSEMENT OR GUARANTEE WITH RESPECT TO THE SKILLS OR QUALIFICATIONS OF ANY AUTHORIZED WHYZE SOLUTION PROVIDER, CERTIFIED CONSULTANT, RESELLER, INSTALLER OR CONSULTANT AND YOU ARE ENCOURAGED TO INDEPENDENTLY INVESTIGATE THE SKILLS AND QUALIFICATIONS OF ANY AUTHORIZED WHYZE SOLUTION PROVIDER, CERTIFIED CONSULTANT, RESELLER, INSTALLER OR CONSULTANT WITH WHOM YOU ASSOCIATE. 7. Limitation of Liability. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL WHYZE BE LIABLE TO YOU OR TO ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, FOR PERSONAL INJURY, LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING A DUTY OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE (WHETHER ACTIVE OR PASSIVE), AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OR INABILITY TO USE THE SOFTWARE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN THE EVENT OF FAULT, TORT (INCLUDING NEGLIGENCE, AND GROSS NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT, OR BREACH OF WARRANTY BY WHYZE, AND EVEN IF WHYZE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL WHYZE BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE LIST PRICE WHYZE CHARGES FOR A LICENSE TO THE SOFTWARE. THIS LIMITATION OF LIABILITYSHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT THAT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU. THE FOREGOING PROVISIONS SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. 8. Entire Agreement. This EULA expressly supersedes and completely replaces any and all prior end user license agreements. WHYZE shall not be bound by or liable to You for any pre-existing or contemporaneous written or oral representations or warranties, made by anyone, with respect to the Software, including any authorized Solution Provider, Certified Consultant, distributor or reseller or their respective agents, employees, or representatives, nor shall You be deemed a third party beneficiary of any obligations of WHYZE to any such Solution Provider, Certified Consultant, distributor or reseller. 9. Attorneys’ Fees. If any party employs attorneys to enforce any rights arising out of or relating to this EULA, the prevailing party shall be entitled to recover its reasonable attorneys’ fees, costs, and other expenses. 10. Severability. If any provision of this EULA is held to be unenforceable, the enforceability of the remaining provisions shall in no way be affected or impaired thereby. 11. Copyright. The Software are deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to the Copyright Act (Chapter 63) as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Software and accompanying Documentation by the Singapore Government shall be governed solely by the terms of this EULA and shall be prohibited except to the extent expressly permitted by the terms of this EULA. 12. High Risk Activities. The Software is not fault-tolerant and is not designed or intended for use in hazardous environments requiring fail-safe performance, including without limitation, in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, direct life-support machines, or any other application in which the failure of the Software could lead directly to death, personal injury, or severe physical or property damage (collectively, “High Risk Activities”). WHYZE expressly disclaims any express or implied warranty of fitness for High Risk Activities. 13. Confidentiality. You agree that the Software, including, but not limited to, all source and object code components, screen shots and displays, graphical user interfaces, algorithms, formulae, data structures, scripts, application programming interfaces and protocols, and the Documentation (collectively the “Confidential Information”) are trade secrets of WHYZE and are owned by WHYZE or, where applicable, its third-party licensors. You agree to retain all Confidential Information in strict confidence at least with the same amount of diligence that You exercise in preserving the secrecy of Your most-valuable information, but in no event less than reasonable diligence. You agree to: (i) only disclose Confidential Information to Your employees and agents to the extent required to use the Software under the terms of this EULA and not to disclose or disseminate the Confidential Information to any third party without the prior written consent of WHYZE, (ii) use the Confidential Information solely for Your benefit as provided for herein and not to allow any third party to benefit from the Confidential Information, and (iii) bind Your employees and agents, by terms no less restrictive than those set forth herein, to maintain the confidentiality of such Confidential Information, and not use or disclose such information except as permitted under this EULA. Notwithstanding the disclosure of any Confidential Information for any reason, such Confidential Information shall continue to be owned by WHYZE or its licensors. Nothing contained herein shall be deemed to prevent you from disclosing or disseminating Your data, in any format or any report, to whomever You so choose. 14. Miscellaneous. This EULA is exclusively governed by the laws of the Singapore, without reference to conflicts of law principles. In the event of a dispute or legal action between the parties, they agree to waive any objections to personal jurisdiction, and agree to service of process and exclusive venue in the Courts of Singapore. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. This EULA sets forth all of Your �rights and is the entire agreement between the parties. This EULA supersedes any other communications with respect to the Software. This EULA may not be modified except by a written addendum issued by a duly authorized representative of WHYZE. No provision hereof shall be deemed waived unless such waiver shall be in writing and signed by a duly authorized representative of WHYZE. You hereby acknowledge a breach of this EULA would cause irreparable harm and significant injury to WHYZE that may be difficult to ascertain and that a remedy at law would be inadequate. You agree that WHYZE shall have the right to seek and obtain immediate injunctive relief to enforce the obligations under this EULA in addition to any other rights and remedies it may have. If any provision of this EULA is held invalid, the remainder of this EULA shall continue in full force and effect. The controlling language of this EULA is English. If You have received a translation into another language, it has been provided for Your convenience only. 16. WHYZE Customer Contact. If You have any questions concerning these terms and conditions, or if You would like to contact WHYZE for any other reason, please call +65-6838 0161, or write to us at: Whyze Solutions Pte Ltd – 315 Alexandra Road #05-01 Sime Darby Business Centre Singapore 159944. You may also find us on the Web at http://www.whyze.com.sg �
nw/55.txt
END-USER LICENSE AGREEMENT THIS END-USER LICENSE AGREEMENT ("EULA") is a legal agreement between you (“you,” “your,”) (either an individual or a single entity) and MUSIC Group IP Limited (“MG-IP”), for the software that accompanies this EULA, which includes associated media and MG-IP Internet-based services ("Software"). Any amendment or addendum to this EULA may accompany the Software. YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY INSTALLING, COPYING, OR USING THE SOFTWARE. IF YOU DO NOT AGREE, DO NOT INSTALL, COPY, OR USE THE SOFTWARE. YOU MAY RETURN IT TO YOUR PLACE OF PURCHASE FOR A FULL REFUND, IF APPLICABLE. 1. 2. GENERAL 1.1. The Software, documentation, interfaces, content, fonts and any data that accompanied your Product ("Original Software"), as may be updated or replaced by feature enhancements, software updates, supplements, add-on components, internet-based services components or system restore software provided by MG-IP ("Software Updates"), whether in read-only memory, on any other media or in any other form (the Original Software and Software Updates are collectively referred to as the “Software") are licensed, not sold, to you by MG-IP for use only under the terms of this EULA. MG-IP and its licensors retain ownership of the Software itself and reserve all rights not expressly granted to you. MG-IP or its suppliers own the title, copyright and other intellectual property rights in the Software. This EULA does not grant you any rights to trademarks or service marks of MG-IP. 1.2. MG-IP, at its discretion, may provide future Software Updates for your Product. The Software Updates, if any, may not necessarily include all existing software features or new features that MG-IP releases for newer or other models of the Product. The terms of this EULA will govern any Software Updates provided by MG-IP that replace and/or supplement the Original Software, unless a separate license accompanies the Software Update, in which case the terms of that license will govern. GRANT OF LICENSE 2.1. Subject to the terms and conditions of this EULA, MG-IP hereby grants you a limited, non-exclusive license to use the Software on a single Product that you own or control. Except as permitted in Section 2.2 below, and unless as provided in a separate agreement between you and MG-IP, this EULA does not allow the Software to exist on more than one Product at a time, and you may not distribute or make the Software available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the Software. 2.2. Subject to the terms and conditions of this EULA, MG-IP grants you a limited nonexclusive license to download any Software Updates that MG-IP makes available for your model of the Product to update or restore the Software on any such Product that you own or control. This EULA does not allow you to update or restore any Product that you do not Page 1 of 6 �control or own, and you may not distribute or make the Software Updates available over a network where they could be used by multiple devices at the same time. If you download a Software Update to your computer, you may make one copy of the Software Updates stored on your computer in machine-readable form for backup purposes only, provided that the backup copy must include all copyright or other proprietary notices contained on the original. 3. 2.3. You acknowledge and agree that you may not enable others to copy (except as expressly permitted by this EULA), decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify or create derivative works of the Software or any services provided by the Software, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by licensing terms governing use of open-sourced components included with the Software). Any attempt to do so is a violation of the rights of MG-IP. 2.4. By storing content on your Product, you make a digital copy. In some jurisdictions, it is unlawful to make digital copies without prior permission from the rights holder. You may use the Software to reproduce materials so long as such use is limited to reproduction of non-copyrighted materials, materials in which you own the copyright, or materials in which you have authorization or legal permission to reproduce. 2.5. You agree to use the Software in compliance with all applicable laws, including local laws of the country or region in which you reside or in which you download or use the Software. 2.6. Use of and access to certain features of the Software may require you to apply for a unique user name and password combination. 2.7. You may not be able to exercise your rights to the Software under this EULA after a finite number of product launches unless you activate your copy of the Software in the manner described during the launch sequence. You may also need to reactivate the Software if you modify your Product or alter the Software. MG-IP will use those measures to confirm you have a legally licensed copy of the Software. If you do not use a licensed copy of the Software, you may not install the Software or future Software Updates. MG-IP will not collect any personally identifiable information from your device during this process. 2.8. The documentation that accompanies the Software is licensed for internal, noncommercial reference purposes only. TRANSFER: You may not rent, lease, lend, sell, redistribute, sublicense or provide commercial hosting services with the Software. You may, however, make a one-time permanent transfer of all of your license rights to the Software to another end user in connection with the transfer of ownership of your Product, provided that: (i) the transfer must include your Product and all of the Software, including all its component parts, original media, printed materials and this EULA; (ii) you do not retain any copies of the Software, full or partial, including copies stored on a computer Page 2 of 6 �or other storage device; and (iii) the end user receiving the Software reads and agrees to accept the terms and conditions of this EULA. 4. CONSENT TO USE OF DATA: You agree that MG-IP and its affiliates may collect, maintain, process and use diagnostic, technical, usage and related information gathered as part of the product support services provided to you, if any, related to the Software, and to verify compliance with the terms of this EULA. MG-IP may use this information solely to improve its products or to provide customized services or technologies to you and will not disclose this information in a form that personally identifies you. 5. UPGRADES 5.1. To use Software identified as an upgrade, you must first be licensed for the Software identified by MG-IP as eligible for the upgrade. After installation of the upgrade, you may no longer use the Original Software that formed the basis for your upgrade eligibility, except as part of the upgraded Software. 5.2. MG-IP, at its discretion, may provide future Software Updates for your Product. The Software Updates, if any, may not include all existing software features or new features that MG-IP releases for newer or other models of Products. The terms of this EULA will govern any Software Updates provided by MG-IP that replace and/or supplement the Original Software, unless such Software Update is accompanied by a separate license in which case the terms of that license will govern. 6. SEPARATION OF COMPONENTS: MG-L licenses the Software as a single product. Its component parts may not be separated for use on more than one Product. 7. NOT FOR RESALE SOFTWARE: Software identified as "Not for Resale" or "NFR" may not be sold or otherwise transferred for value, or used for any purpose other than demonstration, test or evaluation. 8. SUPPORT SERVICES: MG-IP provides the Software “as is” and may not provide support services for it. 9. DIGITAL CERTIFICATES: The Software contains functionality that allows it to accept digital certificates issued from MG-IP or from third parties. YOU ARE SOLELY RESPONSIBLE FOR THE DECISION OF WHETHER OR NOT TO RELY ON A CERTIFICATE WHETHER ISSUED BY MG-IP OR A THIRD PARTY. YOUR USE OF DIGITAL CERTIFICATES IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MG-IP MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ACCURACY, SECURITY OR NONINFRINGEMENT OF THIRD PARTY RIGHTS WITH RESPECT TO DIGITAL CERTIFICATES. 10. EXPORT RESTRICTIONS: The Software is subject to export laws and regulations. You agree to comply with all applicable international and national laws that apply to the Software, including the Page 3 of 6 �export regulations, as well as end-user, end-use, and destination restrictions issued by the Grand Duchy of Luxembourg and other governments. 11. TERMINATION: This EULA is effective until terminated. Your rights under this EULA will terminate automatically or otherwise cease to be effective without notice from MG-IP if you fail to comply with any term(s) of this EULA. Upon the termination of this EULA, you shall cease all use of the Software and destroy all copies of the Software and all of its component parts. Sections 9, 11, 12, 13, 14, and 16 of this EULA shall survive any such termination. 12. DISCLAIMER OF WARRANTIES 12.1. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. 12.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND SERVICES PROVIDED BY THE SOFTWARE ARE PROVIDED "AS IS" AND "AS AVAILABLE", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND MG-IP AND MG-IP'S LICENSORS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. 12.3. MG-IP DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE, THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED BY THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY SERVICE WILL CONTINUE TO BE MADE AVAILABLE, THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED OR THAT THE SOFTWARE WILL BE COMPATIBLE OR WORK WITH ANY THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES. INSTALLATION OF THIS SOFTWARE MAY AFFECT THE USABILITY OF THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES. 12.4. YOU FURTHER ACKNOWLEDGE THAT THE SOFTWARE IS NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN, THE CONTENT, DATA OR INFORMATION PROVIDED BY THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE, INCLUDING WITHOUT LIMITATION THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT OR WEAPONS SYSTEMS. Page 4 of 6 �12.5. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY MG-IP OR AN AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER AND, THEREFORE, THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU. 13. LIMITATION OF LIABILITY: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MG-IP, ITS PARENT, AFFILIATES OR DISTRIBUTORS BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, CORRUPTION OR LOSS OF DATA, FAILURE TO TRANSMIT OR RECEIVE ANY DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE THE SOFTWARE OR ANY THIRD PARTY SOFTWARE OR APPLICATIONS IN CONJUNCTION WITH THE SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF MG-IP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES AND, THEREFORE, THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall MG-IP's total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of Fifty United States Dollars (USD50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose. 14. EXCLUSIVE REMEDIES: The entire liability of MG-IP, its parent, affiliates and/or distributors and your exclusive remedy for any breach of this EULA or for any other liability relating to the Software shall be, at MG-IP's option, (a) return of the amount paid (if any) for the Software, or (b) repair or replacement of the Software that is returned to MG-IP with a copy of your receipt. You will receive the remedy elected by MG-IP without charge, except that you are responsible for any expenses you may incur (e.g., cost of shipping the Software to MG-IP). However, this remedy is unavailable if failure of the Software resulted from accident, abuse, misapplication, abnormal use or a virus. 15. ENTIRE AGREEMENT: This EULA, and the terms for any supplements, updates, internet-based services and support services that you use, constitute the entire agreement for the Software. Page 5 of 6 �16. 17. APPLICABLE LAW 16.1. The laws of the Grand Duchy of Luxembourg, excluding its conflicts of law rules, govern this EULA and your use of the Software. Your use of the Software may also be subject to other local, state, national or international laws. The applicability of the Uniform Commercial Code (UCC) and any other laws that direct the application of the laws of any other jurisdiction are expressly excluded. Any dispute arising out of or in connection with this EULA shall be referred to and finally resolved by arbitration in Luxembourg by a sole arbitrator with the arbitration process as foreseen by the new code of civil procedure. 16.2. No amendment to or modification of this EULA will bind either party unless in writing and signed by MG-IP. Any translation of this EULA is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this EULA shall govern, to the extent not prohibited by local law in your jurisdiction. MISCELLANEOUS: If any provision(s) contained in this EULA is or becomes invalid, illegal or unenforceable, in whole or in part, such invalidity, illegality, or unenforceability shall not affect the remaining provisions and portions of thereof, and the invalid, illegal, or unenforceable provision(s) shall be deemed modified so as to have the most similar result that is valid and enforceable under applicable Luxembourg law and/or any other relevant applicable law as the case may be. Page 6 of 6 �
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INSITU END‐USER LICENSE AGREEMENT FOR INSITU ICOMC2 CORE AND INEXA: CONTROL SOFTWARE IMPORTANT: PLEASE READ THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (“EULA”) CAREFULLY BEFORE CONTINUING WITH THIS PROGRAM INSTALL, COPYING OR USING THIS SOFTWARE: have the requisite authority, You may not accept the EULA or use the SOFTWARE PRODUCT on behalf of Your employer or other entity, and in this case Your acceptance of the EULA terms shall bind You personally. Insitu is a wholly owned subsidiary of The Boeing Company. This Insitu End User License Agreement ("EULA") is a legal agreement between “You” (either an individual or a single entity user) (hereinafter “You” or “Your”) and Insitu for the Insitu SOFTWARE identified above which may include either of ICOMC2 Core or Inexa: CONTROL software and associated plug‐in software, software components, media, data, printed materials, and "online" or electronic documentation (hereinafter "SOFTWARE PRODUCT"). By installing, copying, or otherwise using the SOFTWARE PRODUCT, You agree to be bound by the terms of this EULA, and any applicable Insitu End User License Agreement for Unmanned Vehicle Plug‐In Software (“Insitu Plug‐In EULA”) the terms of which (i) may be modified by Insitu from time to time; and (ii) are wholly incorporated herein by this reference. This license agreement, and any applicable Insitu Plug‐In EULA, represents the entire agreement concerning the program between You and Insitu, and supersedes any prior proposal, representation, or understanding between You and Insitu. If You do not agree with the terms of this EULA, and/or the terms of any applicable Insitu Plug‐In EULA, do not install, copy or use the SOFTWARE PRODUCT. In order to use this SOFTWARE PRODUCT, You must first signify acceptance of these EULA terms and conditions, either on behalf of Your employer or by You personally. You may not use this SOFTWARE PRODUCT if You do not accept this EULA. The SOFTWARE PRODUCT is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. You can accept this EULA by: (a) Clicking on the on‐screen “I Accept”, “I Agree” or similar on‐screen button, where this option is made available to You during the installation process. (b) By reading and agreeing with the printed EULA found in the physical SOFTWARE PRODUCT Package. If You proceed to copy or install the SOFTWARE PRODUCT, You agree that You have read and accepted the terms of this EULA. (c) By using the SOFTWARE PRODUCT. In this case You agree that Your use of the SOFTWARE PRODUCT conclusively evidences Your acceptance of the EULA terms from that point onwards. 2. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS. 2.1 Maintenance of Copyright Notices. You must not remove or alter any copyright notices or other notices on any and all copies of the SOFTWARE PRODUCT. 1. GRANT OF LICENSE. Insitu grants You the following license rights provided that You remain in compliance with all terms and conditions of this EULA. 1.1 Installation and Use. Insitu grants You a "Single Use License" to install and use the SOFTWARE PRODUCT, on a single computer for use by an authorized user. Remote access is not permitted. 1.2 Backup Copy. You may make a second copy of the SOFTWARE PRODUCT on an additional computer for exclusive use as a backup system as long as only one (1) copy of the SOFTWARE PRODUCT is in use at any one (1) time. No other end user may use the SOFTWARE PRODUCT under the same license at the same time for any other purpose. 1.3 Acceptance of this EULA. If You are a person barred from receiving this SOFTWARE PRODUCT under the laws of the United States, You may not possess, copy, install nor use this SOFTWARE PRODUCT. If You nonetheless possess, copy, install or use this SOFTWARE PRODUCT, Your possession may be illegal under United States law, and Your acts to copy, install or use this SOFTWARE PRODUCT are not licensed by Insitu under this EULA and constitute a violation of Insitu intellectual property rights. If You are agreeing to be bound by this EULA on behalf of Your employer or other entity, You represent and warrant to Insitu that You have full legal authority to bind Your employer or such entity to this EULA. If You do not 2.2 Distribution. You may not distribute copies of the SOFTWARE PRODUCT to third parties. Evaluation versions of the SOFTWARE PRODUCT are available for evaluation by third parties by contacting Insitu directly. 2.3 Prohibition on Reverse Engineering, Decompilation, and Disassembly. You may not reverse engineer, decompile, reproduce, or disassemble the SOFTWARE PRODUCT or otherwise attempt to discover the source code, except and only to the extent that such activity is expressly authorized by mandatory legislation. 2.4 Separation of Components. The SOFTWARE PRODUCT is licensed as a single product. Its components may not be separated for use on more than one device. 2.5 Software Transfer, Internal Only. You may transfer Your copy of the SOFTWARE PRODUCT to a different device. After the transfer, You must completely remove the SOFTWARE PRODUCT from the former device. You may not transfer the SOFTWARE PRODUCT to any other individual or entity. Page 1 of 5 Revised 4.26.2016 �2.6 Successors and Assigns. You may not assign, sublicense, or transfer any rights or delegate Your obligations under the EULA without Insitu's prior written consent, and any attempt to do so without consent shall be void. The EULA shall be binding on the respective successors and assigns of the parties to this EULA. Notwithstanding, a government contractor under contract to the Government to deliver THE SOFTWARE PRODUCT may assign this EULA and THE SOFTWARE PRODUCT acquired for delivery to its Government customer upon written notice to Insitu, provided the Government customer assents to the terms of the EULA. 2.7 Rental. You may not rent, lease, or lend the SOFTWARE PRODUCT. 2.8 Support Services. Insitu may provide You with support services related to the SOFTWARE PRODUCT ("Support Services"). Any supplemental software code provided to You as part of the Support Services shall be considered part of the SOFTWARE PRODUCT and subject to the terms and conditions of this EULA. 2.9 Compliance with Applicable Laws. You must comply with all applicable laws regarding use of the SOFTWARE PRODUCT. 3. RESERVATION OF RIGHTS OF OWNERSHIP. Insitu reserves all rights not expressly granted to You in this EULA. The SOFTWARE PRODUCT is protected by copyright and other intellectual property laws and treaties. Unless otherwise stated, Insitu and its Licensors respectively retain all right, title and interest in the SOFTWARE PRODUCT including, but not limited to copyrights, trademarks, trade secrets, trade names, proprietary rights, patents, titles, computer code, and other intellectual property rights in the SOFTWARE PRODUCT. The SOFTWARE PRODUCT is licensed, not sold. This EULA does not grant You any rights to trademarks or service marks of Insitu. 4. U.S. GOVERNMENT RESTRICTED/LIMITED RIGHTS. The SOFTWARE PRODUCT is a "Commercial Item", as the term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202‐1 through 227.7202‐4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished Work, all rights reserved under the copyright laws of the United States. 5. ADDITIONAL SOFTWARE/SERVICES. This EULA applies to SOFTWARE PRODUCT updates, supplements, or Insitu provided plug‐in components for use with the SOFTWARE PRODUCT that Insitu may provide to You or make available to You after the date You obtain Your initial copy of the SOFTWARE PRODUCT, unless such updates, supplements or plug‐in components are accompanied by separate license terms that exclude this EULA. 6. UPGRADES. To use SOFTWARE PRODUCT identified as an upgrade, You must first be licensed for the SOFTWARE PRODUCT identified by Insitu as eligible for the upgrade. After installing the upgrade, You may no longer use the original SOFTWARE PRODUCT that formed the basis for Your upgrade, except as part of the upgraded SOFTWARE PRODUCT. 7. “Not For Resale” SOFTWARE. SOFTWARE PRODUCT identified as "Evaluation", "Not For Resale" or "NFR", may not be sold or otherwise transferred for value, or used for any purpose other than software development, demonstration, testing or evaluation. 8. FEEDBACK. Insitu may freely use and disclose without restriction any feedback, suggestions, or requests for product improvements that You provide to Insitu with respect to the SOFTWARE PRODUCT. 9. EXPORT CONTROL REGULATIONS. The SOFTWARE PRODUCT is a commercial software application identified under Export Control Classification Number (ECCN) EAR99. No Export License is required for the export/re‐export of this SOFTWARE PRODUCT to non‐US persons other than those from or in US Government imposed embargoed / sanctioned countries identified in the Supplement 1 to Part 740 (Country Group E) of the Export Administration Regulations (EAR). However, an export license is required for export/re‐export to non‐US persons from or in those embargoed / sanctioned countries. It is the responsibility of the individual in control of this SOFTWARE PRODUCT to abide by the U.S. export laws. You acknowledge that the SOFTWARE PRODUCT is subject to U.S. export jurisdiction and that the SOFTWARE PRODUCT may only be exported from the United States in accordance with United States export laws. You also acknowledge that any diversion contrary to United States law is prohibited, and also agree to comply with all applicable non‐U.S. export/import control laws that apply to the SOFTWARE PRODUCT. This includes end‐user, end‐use, and destination restrictions issued by the U.S. Government and other governments. You also agree not to export, reexport, import, transfer, or release the SOFTWARE PRODUCT to embargoed or sanctioned countries, in whole or in part to include: (a) Into (or to a national resident of) any country to which the U.S. maintains embargoes or other restrictions, (b) To any person on the US Treasury Department's list of Specially Designated nationals or, (c) To any person or entity on the US Commerce Department's Denied Persons List, Entity List or Unverified List or, Table of Deny Orders or, (d) To any person or entity subject to a General Order 3 to Part 736 of the U.S. Commerce Department’s Export Administration Regulations or, (e) The U.S. Department of State’s Parties Subject to Nonproliferation Sanctions List or, (f) To any person or entity or into any country where such export, reexport, or import violates any US, local, or other applicable import/export control laws or regulations. 10. NO IMPLIED WAIVERS. The failure of either Insitu or You to enforce any provision of the EULA shall not be deemed a waiver of the provisions or of the right of such party thereafter to enforce that or any other provision. 11. SEVERABILITY. Insitu and You agree that if any provision of the EULA is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make the intent of the language enforceable. 12. TERMINATION. Without prejudice to any other rights, Insitu may terminate this EULA if You fail to comply with the terms and conditions of this EULA. In such event, You must discontinue use and destroy or return to Insitu all copies of the Page 2 of 5 Revised 4.26.2016 �SOFTWARE PRODUCT and all of its component parts and certify in writing to Insitu that You have done so. 13. EQUITABLE RELIEF. Insitu has the right to seek an injunction, specific performance, or other equitable relief in any court of competent jurisdiction without the requirement of posting a bond or proving injury as a condition for relief if, in Insitu’s judgment, You breach or threaten to breach the EULA. 14. GOVERNING LAW. Any litigation or other dispute resolution between You and Insitu arising out of or relating to this Agreement, the SOFTWARE PRODUCT, or Your relationship with Insitu will take place in the Western District of Washington, and You and Insitu hereby consent to the personal jurisdiction of and exclusive venue in the District with respect any such litigation or dispute resolution. This Agreement will be governed by and construed in accordance with the laws of the United States and the State of Washington in that order of precedence. Notwithstanding the foregoing sentence, if You (as an entity entering into this Agreement) are a U.S. public and accredited educational institution, then this Agreement will be governed and construed in accordance with the laws of the state (within the U.S.) in which Your educational institution is domiciled, except that body of state law concerning conflicts of law. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. 15. NO WARRANTIES. Insitu expressly disclaims any warranty for the SOFTWARE PRODUCT. There are no warranties which extend beyond the description on the face hereof. The SOFTWARE PRODUCT is provided 'As Is' without any express or implied warranty of any kind, including but not limited to any warranties of merchantability, non‐infringement, or fitness for a particular purpose. Insitu does not warrant or assume responsibility for the accuracy or completeness of any information, text, graphics, maps, links or other items contained within the SOFTWARE PRODUCT. Insitu makes no warranties that the application will function error‐free or uninterrupted, or that any defects will be corrected. Insitu makes no warranties respecting any harm that may be caused by the use of the SOFTWARE PRODUCT, or that the SOFTWARE PRODUCT will be free of computer viruses, worms, time bombs, logic bombs, or other such computer programs. Insitu further expressly disclaims all warranties, expressed or implied, including any warranties of accuracy, non‐ infringement, merchantability and fitness for a particular purpose. Insitu disclaims any and all liability for the acts, omissions and conduct of any third parties in connection with or related to Your use of the SOFTWARE PRODUCT. This limitation of relief is a part of the bargain between the parties. You understand that Insitu is under no obligation to provide updates, enhancements, or corrections, or to notify You of any product or service changes that Insitu may make. Your sole remedy against Insitu for dissatisfaction with the SOFTWARE PRODUCT is to stop using the SOFTWARE PRODUCT. 16. DISCLAIMER AND RELEASE. 16.1 THE WARRANTIES, CONDITIONS, REPRESENTATIONS, OBLIGATIONS AND LIABILITIES OF INSITU AND YOUR REMEDIES SET FORTH IN THIS EULA, ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND YOU HEREBY WAIVE, RELEASE AND RENOUNCE ALL OTHER WARRANTIES AND OTHER OBLIGATIONS AND LIABILITIES OF INSITU, AND ANY OF YOUR OTHER RIGHTS, CLAIMS AND REMEDIES AGAINST INSITU, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY NONCONFORMANCE OR DEFECT IN THE SOFTWARE PRODUCT, INCLUDING BUT NOT LIMITED TO: A) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS; B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; C) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF INSITU; AND D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OF OR DAMAGE TO ANY OF YOUR PROPERTY. 16.2 EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES. INSITU SHALL HAVE NO OBLIGATION OR LIABILITY, WHETHER ARISING IN CONTRACT (INCLUDING WARRANTY), TORT WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF INSITU, OR OTHERWISE, FOR LOSS OF USE, REVENUE OR PROFIT OR FOR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES WITH RESPECT TO ANY NONCONFORMANCE OR DEFECT IN THE SOFTWARE PRODUCT. 16.3 DEFINITIONS. FOR THE PURPOSE OF THIS ARTICLE 16, “INSITU” INCLUDES INSITU, INC., ITS PARENT, THE BOEING COMPANY, AND THE DIVISIONS, SUBSIDIARIES, AND ASSIGNEES OF EACH, SUBCONTRACTORS, SUPPLIERS AND AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS. 17. NOTICE OF RISK AND LIMITATION OF LIABILITY. The SOFTWARE PRODUCT is intended for use in the operation of unmanned vehicles. You acknowledge and assume the inherent risks associated with the use and operation of unmanned vehicles including, but not limited to loss or damage to property, bodily injury and death. In no event shall Insitu or any of its Licensors be liable for any damages (including, without limitation, lost profits, business interruption, or lost information) rising out of 'Authorized Users' (Your) use of or inability to use the SOFTWARE PRODUCT, even if Insitu has been advised of the possibility of such damages. You assume total responsibility and all physical risks for Your use of the SOFTWARE PRODUCT, including, but not limited to, any damages, injuries, or even death incurred in the use therein. In no event will Insitu be liable for loss of data or for indirect, special, incidental, consequential (including lost profit), or other damages based in contract, tort or otherwise. Insitu shall have no liability with respect to the content of the SOFTWARE PRODUCT or any part thereof, including but not limited to errors or omissions contained therein, libel, infringements of rights of publicity, privacy, trademark rights, business interruption, personal injury, loss of privacy, moral rights or the disclosure of confidential information. 18. INDEMNIFICATION. You or your employer, will defend, indemnify and hold harmless Insitu, its licensors, its subsidiaries and affiliates, the assignees of each, and their respective directors, officers, employees, agents, and subcontractors from and against all claims and liabilities (including claims by third parties), and costs and expenses (including attorneys' fees), incident thereto or incident to successfully establishing the right to indemnification, arising out of or relating to any claims for injury to or death of any person or persons, including Your employees, or for loss of or damage to any property, including any unmanned aircraft, or otherwise arising out of or in any way relating to Your utilization of the SOFTWARE PRODUCT provided hereunder. Your obligations under this indemnity will survive the termination of this EULA. 18.1 If this SOFTWARE PRODUCT is licensed to the United States Government, the indemnification provisions of this EULA do not apply. Page 3 of 5 Revised 4.26.2016 �18.2 If this SOFTWARE PRODUCT is licensed to a university or other state or federally funded research institution, the indemnification provisions of this EULA do not apply. Where this SOFTWARE PRODUCT embodies university or other research institution code, Insitu reserves the right to flow any indemnity provisions imposed upon Insitu by such university or research institution, to end users of the SOFTWARE PRODUCT, and Insitu shall not be limited or restricted from seeking contribution from end users of this SOFTWARE PRODUCT for claims brought by third parties against the university or research institution where Insitu has granted an indemnification under its license agreement with the university or research institution. 18.3 Applicability of Disclaimers and Limitations. You agree that the limitations of liability and disclaimers set forth in this EULA will apply whether or not You have accepted any benefits delivered by Insitu under this EULA. You agree that Insitu has set its prices and entered into this EULA in reliance on the disclaimers and limitations set forth herein, and that the same reflect an allocation of risk between You and Insitu, and that the same form an essential basis of the bargain between You and Insitu. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 19. U.S. GOVERNMENT END USERS. The SOFTWARE PRODUCT qualifies as a "commercial item," as that term is defined at Federal Acquisition Regulation (“FAR”) 2.101, consisting of "commercial computer software" and “commercial computer software documentation" as such terms are used in FAR 12.212 and in Department of Defense FAR Supplement (“DFARS”) 227.7202 et al. Consistent with FAR 12.212 and DFARS 227.7202 et al., and notwithstanding any other FAR, DFARS, or other contractual clause to the contrary in any agreement into which the EULA may be incorporated, Government end user will acquire the SOFTWARE PRODUCT with only those rights set forth in the EULA. Any SOFTWARE PRODUCT use constitutes agreement by the Government that the SOFTWARE PRODUCT comprises "commercial computer software" and "commercial computer software documentation," and constitutes acceptance of the rights and restrictions herein. 20. REMEDIES. Notwithstanding any damages or judgments You might incur for any reason whatsoever, (including, without limitation, all damages referenced herein and all direct or general damages in contract or anything else), the entire liability of Insitu and any of its suppliers under any provision of this EULA and Your exclusive remedy hereunder (except for any remedy of repair or replacement of the SOFTWARE PRODUCT elected by Insitu) shall be US $100.00. The foregoing limitations, exclusions and disclaimers (including Sections 15‐17) shall apply to the maximum extent permitted by applicable law, even if any remedy fails of its essential purpose. 21. ENTIRE AGREEMENT; SEVERABILITY. This EULA (including any applicable Insitu Plug‐In EULA and/or addendum or amendment to this EULA which is included with the SOFTWARE PRODUCT) is the entire agreement between You and Insitu relating to the SOFTWARE PRODUCT and the support, or services accompanying or related to the SOFTWARE PRODUCT. 22. THIRD PARTY CODE SOFTWARE NOTICES AND OPEN SOURCE CODE LICENSING. This SOFTWARE PRODUCT contains certain third party components which are provided to you under terms and conditions that are different from this EULA, or that require Insitu or third parties that provide products to Insitu ("Third Parties"), to provide You with certain notices and/or information. The third party code software is set forth on Attachment A hereto. Your use of each Third Party component contains or is accompanied by its own license agreement, or for which Insitu or Third Parties have identified a license agreement in one of the "README" files therein (or in a file or files referenced therein), will be subject to the terms and conditions of such other license agreement, and not this Agreement. You must comply with applicable Third Party terms and conditions when using this SOFTWARE PRODUCT. Page 4 of 5 Revised 4.26.2016 �ATTACHMENT A THIRD PARTY CODE SOFTWARE NOTICES AND OPEN SOURCE CODE LICENSING The following third party software packages are currently used with Insitu’s ICOMC2 Core and INEXA: CONTROL. Licensor, Insitu reserves the right, at its sole discretion, to remove and replace or add additional open source software packages. THIRD PARTY CODE SOFTWARE NOTICES Agency (NGA). The software is provided "as is," and no warranty, express or implied, including but not limited to the implied warranties of merchantability and fitness for particular purpose or arising by statute or otherwise in law or from a course of dealing or usage in trade, is made by NGA as to the accuracy and functioning of the software. NGA and its personnel are not required to provide technical support or general assistance with respect to public use of the software. Government customers may contact NGA. 1. ESRI Mapping API provided by Esri ArcGIS Runtime SDK for .NET Copyright © 2009‐2012 Math.NET Team Neither NGA nor its personnel will be liable for any claims, losses, or damages arising from or connected with the use of the software. The user agrees to hold harmless the United States National Geospatial‐Intelligence Agency (NGA). The user's sole and exclusive remedy is to stop using the software. THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE. Please be advised that pursuant to the United States Code, 10 U.S.C. 425, the name of the National Geospatial‐Intelligence Agency, the initials "NGA", the seal of the National Geospatial‐ Intelligence Agency, or any colorable imitation thereof shall not be used to imply approval, endorsement, or authorization of a product without prior written permission from United States Secretary of Defense. Do not create the impression that NGA, the Secretary of Defense or the Director of National Intelligence has endorsed any product derived from GEOTRANS. 2. National Geospatial‐Intelligence Agency 3. Zlib Software OPEN SOURCE CODE LICENSING 1. Math.Net The product was developed using GEOTRANS, a product of the National Geospatial‐Intelligence Agency (NGA) and U.S. Army Engineering Research and Development Center. Warranty Disclaimer: The software was developed to meet only the internal requirements of the National Geospatial‐Intelligence Zlib data‐compression software is used in this software application. The license for Zlib software may be found at: http://www.zlib.net/zlib_license.html Page 5 of 5 Revised 4.26.2016 �
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Tumult Hype End User License Agreement By agreeing to have any of Tumult Inc. software products installed on to your computer equipment and by subsequent use of the Software, you agree to comply with the terms of this general End User Licence Agreement (“EULA”) where no specific agreement is in place between Tumult Inc. and the user of the software. If you do not agree to the terms of this EULA, do not install or use the Software but return it for a full refund. 1. General. The software, documentation and any fonts accompanying this License whether on disk, in read only memory, on any other media or in any other form (collectively the "Tumult Software") are licensed, not sold, to you by Tumult Inc. ("Tumult") for use only under the terms of this License, and Tumult reserves all rights not expressly granted to you. The rights granted herein are limited to Tumult's and its licensors' intellectual property rights in the Tumult Software and do not include any other patents or intellectual property rights. The rights granted under the terms of this License include any software upgrades that replace and/or supplement the original Tumult Software product, unless such upgrade contains a separate license. 2. Permitted License Uses and Restrictions. This License allows you to install and use one copy of the Tumult Software on a single computer at a time. This License does not allow the Tumult Software to exist on more than one computer at a time, and you may not make the Tumult Software available over a network where it could be used by multiple computers at the same time. You may make one copy of the Tumult Software in machine-readable form for backup purposes only; provided that the backup copy must include all copyright or other proprietary notices contained on the original. Except as and only to the extent expressly permitted in this License or by applicable law, you may not copy, decompile, reverse engineer, disassemble, modify, or create derivative works of the Tumult Software or any part thereof. 3. Termination. This License is effective until terminated. Your rights under this License will terminate automatically without notice from Tumult if you fail to comply with any term(s) of this License. Upon the termination of this License, you shall cease all use of the Tumult Software and destroy all copies, full or partial, of the Tumult Software. 4. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL TUMULT BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE TUMULT SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF TUMULT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall Tumult's total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose. 5. Export Control. You may not use or otherwise export or reexport the Tumult Software except as authorized by United States law and the laws of the jurisdiction in which the Tumult Software was obtained. In particular, but without limitation, the Tumult Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Tumult Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons. 6. Controlling Law and Severability. This License will be governed by and construed in accordance with the laws of the State of Delaware, as applied to agreements entered into and to be performed entirely within Delaware between Delaware residents. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this License shall continue in full force and effect. 7. Complete Agreement; Governing Language. This License constitutes the entire agreement between you and Tumult relating to the Tumult Software, and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this License will be binding unless in writing and signed by Tumult. Any translation of this License is done for local requirements and in the event of a dispute between the English and any non- English versions, the English version of this License shall govern, to the extent not prohibited by local law in your jurisdiction. �
nw/58.txt
MANAGEMENT TECHNOLOGY CONSULTING, LLC CRM MANAGED SOLUTION END USER LICENSE AGREEMENT (EULA) Important – Read Carefully. This End User License Agreement (“Agreement”) is a legal and binding contract between the End User and Management Technology Consulting, LLC (“MTC”) and its Original Equipment Manufacturer partner(s) (“OEM”) for the CRM Managed Solution software product purchased from MTC. (“Product”), which includes computer software and may include printed materials, and online or electronic documentation. By installing, copying, or otherwise using the Product, End User agrees to be bound by the terms of this Agreement. If End User does not agree to the terms of this Agreement, do not install or use this Product. This Agreement is for the purchase of a license for use of the Product. All title and copyright to the Product remain with MTC and its OEM partner(s). Unauthorized copying of Product or failure to comply with the provisions of this Agreement will result in automatic termination of this Agreement and will make available to MTC and its OEM partner(s) all legal remedies. IN THE EVENT OF LICENSE TERMINATION, ALL MATERIALS, DATABASES, AND DOCUMENTATION MUST BE IMMEDIATELY RETURNED TO MTC AT THE ADDRESS PROVIDED AT THE END OF THIS AGREEMENT. 1. End-User represents and warrants that it is authorized and empowered to enter into this Agreement. MTC represents and warrants that it is authorized and empowered to grant the rights hereinafter set forth. 2. MTC and its OEM partner(s) hereby grants End User a non-exclusive, non-transferable right to use the Product subject to the use restrictions and limitations set forth in Section 5 and Section 6 below. 3. MTC shall provide End User a downloadable Microsoft CRM Managed Solution of the Product for a test/lab environment, one for development, and one for production. 4. End-User acknowledges that the Product is confidential, proprietary material owned and copyrighted by MTC. End User agrees that MTC and its OEM partner(s) shall retain exclusive ownership of the Product including all literary property rights, patents, copyrights, trademarks, trade secrets, trade names, and service marks, including goodwill, and that MTC may enforce such rights in the event End User violates the terms of this Agreement. 5. The Product is intended for use solely by End User for their own internal purposes. This Agreement authorizes use of the Product on a single Production CRM Organizational Unit, which shall mean a single Organizational Unit licensed and paid for by End User. End User agrees not to copy, modify, sub-license, assign, transfer or resell the Product, in whole or in part. End User agrees not to translate, reverse engineer, decompile, disassemble, or make any attempt to discover the source code of the Product (except and only to the extent applicable law prohibits such restrictions). End User further agrees not to download/upload the Product, in whole or in part, to another company, individual, or CRM Organizational Unit or to establish a network, place data on the Internet, or offer a service bureau utilizing the Product. End User agrees to restrict access to the Product to designated employees and to use its reasonable efforts to prevent violation of these restrictions by agents, employees and others, taking such steps and reasonable security precautions as may be necessary. 6. End User agrees to pay MTC an annual maintenance and support fee (“Annual Fee”). The terms of this Agreement renew with the payment of the Annual Fee. If End User fails to pay the Annual Fee, End User’s license for use of the Product shall terminate immediately. End User or MTC may terminate this Agreement at any time with written thirty (30) days’ notice. Such notice shall be delivered to the party at the address provided in this Agreement. Within thirty (30) days after termination of the Agreement, End-User shall verify in writing via email that they have removed the managed solution product from the Microsoft Dynamics CRM instance. Continued use of the Product or any information contained therein or supplied under this Agreement after termination of this Agreement is expressly prohibited. �7. This Agreement entitles End User to one (1) year of maintenance and support (“Annual Maintenance”) of the Product at no cost to End User. Maintenance includes the latest version and any updates to the Product at no charge during the first year of the Agreement. Future years of Annual Maintenance must be purchased at a fee equal to 25% of the original purchase price of the Product. MTC will notify End User by email of the Annual Maintenance renewal time, facilitate collection of fee, and assure the latest version and updates of Product are provided to End User. All updates provided by MTC to End User shall be considered part of the Product and subject to the terms and conditions of this Agreement. Additional license terms may accompany updates. By installing, copying, or otherwise using any update, End-User agrees to be bound by this Agreement and any terms accompanying each such update. If End User does not agree to the additional license terms accompanying such updates, End User shall notify MTC immediately in writing, and not install, copy, or otherwise use such updates. 8. End User agrees that MTC may collect and use technical information End User provides solely as a part of support services related to the Product. 9. End-User acknowledges that the Product is of U.S. origin and agrees to comply with all applicable international and national laws that apply to the Product, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. 10. MTC REPRESENTS THAT THE PRODUCT DOES NOT VIOLATE OR INFRINGE ANY PATENT, TRADEMARK, TRADE SECRET, COPYRIGHT, OR SIMILAR RIGHT. IN THE EVENT THE PRODUCT IS HELD TO INFRINGE THE RIGHTS OF ANY THIRD PARTY, MTC SHALL HAVE THE OPTION EITHER TO PROCURE THE RIGHT FOR THE END USER TO CONTINUE USING THE PRODUCT OR, AT MTC'S EXPENSE, TO REPLACE OR MODIFY THE PRODUCT SO THAT IT BECOMES NON-INFRINGING. MTC WARRANTS THAT THE PRODUCT WILL CONFORM TO THE DESCRIPTION THEREOF IN THE DOCUMENTATION ACCOMPANYING THE PRODUCT. EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, MTC AND ITS OEM PARTNER(S) MAKE NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE ACCURACY OF THE PRODUCT, THE MERCHANTABILITY AND FITNESS OF THE PRODUCT FOR A PARTICULAR PURPOSE. FURTHER, MTC DOES NOT WARRANT THE COMPATIBILITY OF THE PRODUCT WITH END USER'S COMPUTER HARDWARE AND/OR SOFTWARE SYSTEM. 11. MTC will indemnify, defend, and hold harmless End User and End User’s directors, officers, employees, stockholders, and agents against any claim or demand made by any third party alleging that the Product infringes or misappropriates any patent, copyright, trademark, trade secret, or other proprietary right belonging to such third party ("Third Party Claim") and MTC will pay any and all liabilities, losses, costs, damages, expenses, and reasonable attorney's fees that result from any such Third Party Claim. 12. Under no circumstances shall End User, MTC or its OEM Partner(s) be liable for any indirect, special or consequential damages of any kind, including, without limitation, damages for loss of goodwill, work stoppage, computer failure or malfunction or any and all other commercial damages or losses. 13. MTC may terminate this Agreement at any time if End User fails to comply with the terms and conditions of this Agreement, and MTC may obtain injunctive relief and may enforce any other rights and remedies to which it may be entitled in order to protect and preserve its proprietary rights. CONFIDENTIALITY NOTICE - The information contained in this document is confidential and proprietary. This document is to be used with the understanding that it will be held in strict confidence and not used for reasons unrelated directly to the specific purpose of this document. No part of the document may be circulated or reproduced for distribution outside the Client organization without prior written permission from MTC 14. This Agreement is the complete and exclusive statement of the understanding between the parties, with respect to the subject matter, superseding all prior agreements, representations, statements and proposals, oral or written. �15. No term or provision hereof shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach. 16. Limitation of Liability. IN NO EVENT WILL MTC OR ITS OEM PARTNER(S) BE LIABLE FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF DATA, LOST PROFITS, COST OF COVER, OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES ARISING FROM THE USE OF THE PROGRAM OR ACCOMPANYING DOCUMENTATION, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY. THIS LIMITATION WILL APPLY EVEN IF MTC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. END USER ACKNOWLEDGES THAT THIS AGREEMENT REFLECTS THIS ALLOCATION OF RISK. 17. The laws of the State of California shall govern this Agreement. This Agreement is the entire agreement between MTC and End User concerning the Product and supersedes any other communications or advertising with respect to the program and accompanying documentation. If any provision of the Agreement is held invalid, the remainder of the Agreement shall continue in full force and effect. 18. MTC is always open to the global community of Microsoft Dynamics CRM platform Software Users. Request and receive support online at www.MTCCRM.com or call: Monday through Friday (323) 851-5008 - 9:00 AM to 5:00 PM (PST) (323) 863-0077 - 8:30 PM to 8:30 AM (PST) Send all notices to MTC at: Management Technology Consulting, LLC 7738 Skyhill Drive Los Angeles, CA 90068 Tel: (323) 851-5008 Management Technology Consulting, LLC End User By: _______________________________ By: _______________________________ Name: Name: Title: Title: Date: Date: Address: �
nw/59.txt
END USER LICENSE AGREEMENT COMODO ONE IMPORTANT—PLEASE READ THIS AGREEMENT CAREFULLY BEFORE SUBSCRIBING TO OR USING THE COMODO ONE PRODUCT (“COMODO ONE” or the “PRODUCT”). BY SUBSCRIBING TO OR USING THE PRODUCT OR BY CLICKING ON “I ACCEPT” BELOW, YOU ACKNOWLEDGE THAT 1) YOU HAVE READ THIS AGREEMENT, 2) YOU UNDERSTAND IT, AND 3) YOU AGREE TO THE TERMS HEREIN. IF YOU DO NOT AGREE TO THE TERMS HEREIN, DO NOT SUBSCRIBE TO OR USE THE PRODUCT AND CLICK “DECLINE” BELOW. This end-user license agreement is a legal contract between you, as either an individual or as a business entity, and Comodo Security Solutions, Inc., a Delaware company with offices at 1255 Broad Street, Clifton, NJ 07013, United States, hereinafter referred to as “Comodo”. In exchange for use of the Product, you agree as follows: 1. 2. General 1.1. Grant of License. Comodo grants you a limited, non-exclusive, non-transferable, and revocable license to download, install, and use on one (1) computer network the Product, including any documentation and files accompanying the Product. You shall not resell, lease, sell, modify, reverse engineer, decompile, or create derivative works of any software provided together with this Product. All rights not expressly granted herein are reserved to Comodo. 1.2. Scope. The Product is consists of remote monitoring and management, service desk, end point security, and patch management modules and includes chat-based product for enterprises as described on the Comodo websites. The specific scope of the Product is in Comodo’s sole discretion and may change without notice. 1.3. Access. The Product is provided only via your enterprise internal network and remote desktop sharing. You are responsible for providing and maintaining your network connections. You warrant that use of the Product complies with all applicable computer and network policies. Prior to receiving the Product, you must have administrator rights to the computer, have a back-up of all data on the computer, and provide Comodo with correct and accurate information if any is requested. Limitations 2.1. Scope. The scope and extent of the Product are limited to the options selected by you when registering for the Product. Comodo provides the Product in any manner it sees fit. Comodo may modify the scope, type, and access to the Product without notice. The Product does not cover restoration of the Product, repair the Product, lost or expected profits, lost or corrupted data, lost or deleted work, or lost or damaged personal files. Comodo does not guarantee against the loss of any file, information, or data. Unless your subscription to the Product states otherwise, you are solely responsible for backing up and safely storing its data, information, and files. You shall (1) obtain and pay for all equipment and third-party product required to use and receive the Product and (2) be responsible for all content on both your computer and network. 2.2. Quality of Product. Comodo provides the Product using commercially reasonable efforts. Comodo does not represent that commercially reasonable efforts will optimally configure a network or provide you with any significant energy or cost savings. 2.3. Compliance with Laws. You shall comply with all laws, regulations, and other restrictions when using the Product, including any applicable data collection, privacy, and export control laws or regulations. You may not use the Product to 1) engage in conduct that is Comodo ONE EULA 060102015 �offensive, abusive, contrary to public morality, indecent, defamatory, obscene, or menacing, 2) cause Comodo or a third party distress, annoyance, denial of any service, disruption or inconvenience, or 3) send or receive unsolicited bulk correspondence. 3. Ownership. Comodo retains ownership at all times over the Product, including all ownership in any software or intellectual property accompanying the Product. You shall not use Comodo’s trademarks except with Comodo’s prior written consent. 4. Promotions 5. 4.1. Terms. Comodo occasionally offers promotions and special offers ("Promotion") such as free trials. Comodo may terminate a Promotion at any time. If you subscribe to the Product during a Promotion, you shall be bound by the terms of the Promotion as set forth on the advertisement or web page of the Promotion. 4.2. Payment Information Required. When subscribing to Promotions, including free trials, Comodo may require you to enter payment information, such as a credit card or account number. At the end of a trial period, Comodo may automatically charge the entered payment information for the Product unless Comodo is notified by email, through the email address provided during your registration for the Product, of your cancellation of the Product. Annual subscriptions expire one year from the end if the trial period. Comodo is not obligated to provide notice to you of a trial period’s expiration or before your credit card is billed for the Product. You are solely responsible for ensuring that you unsubscribe from any unwanted Product prior the end of the Promotion. No refunds shall be given for a failure to cancel the Product. All Promotions are limited to one per customer. Comodo reserves the right to deny or revoke a subscription to a Promotion for any reason. Term and Termination 5.1. Term. This agreement is effective until terminated by you or by Comodo. If this is a paid Product, you may only use paid Products during the period for which you have paid the subscription fee or as indicated on any applicable purchase order. The subscription may be renewed by paying an additional license fee as set forth on the Comodo website. 5.2. Termination by You. For free software, you may terminate this agreement at any time by removing all copies of the software in your possession or under your control. All paid Products may be terminated by removing all copies of any related software and notifying Comodo of your intent to terminate this agreement. Notification of termination must be sent by email to [email protected]. Your termination will be effective upon Comodo’s receipt and processing of the email. Processing may take up to 24 hours. 5.3. Termination by Comodo. Comodo may terminate this agreement at any time by posting notice of the termination on its website or sending an email to the address provided during your registration for the Products. Comodo may monitor its systems for excessive consumption of network resources and may take technical or other remedies deemed necessary to prevent or eliminate any excessive consumption. If Comodo deems your use to be excessive, Comodo may, with email notice, terminate your account or adjust the price of the Products. 5.4. Events Upon Termination. Upon termination, you must immediately cease using the Products and delete all copies of any related software found on your computer and any backup copies made. Upon termination, Comodo may disable further use of the Products without further notice and may delete, remove, and erase any account information, any backup data stored by Comodo, and any other information stored or collected by Comodo. Such deletions are in Comodo’s sole discretion and may occur without notice to you. No refunds shall be given for any reason. Comodo ONE EULA 060102015 �6. 7. 8. Warranty Disclaimers and Limitations on Liability 6.1. Internet. You acknowledge that the Product is subject to the operation and telecommunications infrastructures of the Internet and your network and that the operation of the Internet and your network connections are all beyond Comodo’s control. 6.2. Warranty Disclaimer; Assumption of Risk. YOU ACKNOWLEDGE THAT COMODO PROVIDES THE PRODUCT “AS IS” AND “AS AVAILABLE”. COMODO EXPRESSLY DISCLAIMS ALL IMPLIED AND EXPRESS WARRANTIES IN THE PRODUCT AND RELATED SOFTWARE. THIS DISCLAIMER INCLUDES ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT AND IS EFFECTIVE TO THE MAXIMUM EXTENT ALLOWED BY LAW. COMODO DOES NOT GUARANTEE THAT 1) THE PRODUCT WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS OR 2) THAT ACCESS TO THE PRODUCT WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. YOU BEAR THE ENTIRE RISK AS TO THE QUALITY OF THE PRODUCT. 6.3. Damage Limitation. YOU WAIVE ALL LIABILITY OF COMODO AND ITS AFFILIATES, AND EACH OF THEIR OFFICERS, DIRECTORS, PARTNERS, EMPLOYEES, AND CONTRACTORS, RESULTING FROM OR CONNECTED TO THIS AGREEMENT. YOU WAIVE ALL LIABILITY FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES. THIS WAIVER INCLUDES ALL DAMAGES FOR LOST PROFITS, REVENUE, USE, OR DATA AND APPLIES EVEN IF COMODO IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. These limitations apply to the maximum extent permitted by law regardless of 1) the reason for or nature of the liability, including tort claims, 2) the number of claims, 3) the extent or nature of the damages, and 4) whether any other provisions of this agreement have been breached or proven ineffective. 6.4. Data Transfer. ALL MATERIAL AND/OR DATA DOWNLOADED OR OBTAINED THROUGH THE SERVICES IS AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR THE USE OR YOUR POSSESSION OF SUCH DATA OR MATERIAL. COMODO DOES NOT ACTIVELY MONITOR ANY INFORMATION OR MATERIAL TRANSFERRED THROUGH ITS SERVICES AND CANNOT WARRANT THE CONTENT OF SUCH MATERIAL OR DATA. COMMUNICATIONS AND DATA RETURNED TO YOU FROM COMODO’S SERVERS IS SENT TO RECIPIENT IN ITS ORIGINAL STATE AND NOT NECESSARILY ENCRYPTED. COMODO EXPRESSLY DISCLAIMS ANY ENCRYPTION OF COMMUNICATIONS AND DATA DURING TRANSFER. 6.5. Exceptions. If any legal right disallows an exclusion of warranties or disallows limiting certain damages, then the disclaimers of warranty and limitations on liability herein apply only to the maximum extent allowed by law. Remedy 7.1. Limitation on Actions. Except for actions and claims related to a party’s indemnification and confidentiality obligations, all claims and actions arising from this agreement must be brought within one (1) year from the date when the cause of action occurred. 7.2. Remedy. Your sole remedy for a defect in the Product is to have Comodo attempt to cure the defect. Comodo is not obligated to correct a defect if (i) the Product was misused, damaged, or modified, (ii) you did not promptly report the defect to Comodo, or (iii) you have breached any provision of this agreement. Support. 8.1 If Comodo support is included with the Product and you request support from Comodo in your operation or use of the Product, the following provisions apply: Comodo ONE EULA 060102015 �9. a. You authorize Comodo to access your computer and delete the files that Comodo deems unnecessary to your computers’ operation of this program. b. You grant Comodo express permission to alter the registry of any computer receiving the Product and to install, configure, and use additional software on your computers as Comodo sees fit for use of this Product. c. You shall assist Comodo as reasonably requested by Comodo in diagnosing the computer and providing the Product. d. The Comodo support representative has sole discretion over any instructions and steps taken in providing the Product. e. The Comodo support representative may need to download, run, or use software on your computer to assist in diagnosing and resolving computer problems. Such software may include toolbars, utilities, and other tools that allow Comodo to improve computer performance and solve technical problems (collectively, the Diagnostic Software”). The use of all Diagnostic Software is subject to the license agreements associated with the Diagnostic Software. You shall accept and comply with all such license agreements. Privacy 9.1. Privacy Policy. Comodo shall follow the privacy policy posted at http://www.comodo.com/repository/privacy-policy.php when using collected personal information. Comodo may revise its privacy policy without notice by posting the amended privacy policy on the Comodo website. You shall periodically review the website to be aware of changes. 9.2. Communication. Comodo may send you communications regarding your account, the Product, or its other products. By accepting this agreement, you consent to receiving marketing material from Comodo and its affiliates. You may withdraw this consent later and opt-out of receiving communication not directly related to the Product by emailing [email protected]. 9.3. Data Collection. Comodo may collect any information necessary to ensure your compliance with this agreement. Comodo may also collect non-personally identifiable information about your use of the Product, which Comodo may use without restriction. Comodo may monitor and record the Product, including any online sessions. These recordings are primarily for improving customer service, internal training, and internal market research. Comodo may disclose these recordings and any other information to satisfy any law, regulation or other governmental request, to operate the Product properly, or to protect ourselves and/or Comodo’s customers. Specific Product functions and Data Collection include: screen capture and recording (vnc remote desktop) of client's computer; obtaining system information from a client's computer, including hardware temperature and fan speed; retrieving a list of installed software, browser addons, and active tcp/udp connections from a client's computer; supporting bidirectional file transfer with a client's computer; directory/file browsing of client's computer, including running processes, services, drivers and startup applications; and recording of chat logs, intervention details logs and uploading these logs into Comodo cloud storage. Comodo ONE EULA 060102015 �9.4 Permissions. The Product includes a Lead Management Module and upon acceptance of this Agreement, YOU ARE EXPRESSLY AUTHORIZING CONTACT INFORMATION ABOUT YOU TO BE PROVIDED TO COMODO’S THIRD PARTY AFFILIATES AND PARTNERS. Information collected will include: company and contact name, phone, email, geo-location, such as zip code, and industry for the purpose of providing offers and promotions regarding other Comodo products and services. If you desire to opt-out of this module, please write to: [email protected] to disable access to any module. 10. Arbitration. The laws of the state of New Jersey, USA, govern the interpretation, construction, and enforcement of this Agreement and all proceedings arising out of it, including tort claims, without regard to any conflicts of law principles. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the International Chamber of Commerce in accordance with its Arbitration Rules, with the venue in Clifton, NJ, USA and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Either party may appear before the panel by telephone. 11. Miscellaneous 11.1. Independent Contractors. No party shall have any authority to act or bind the other party in any way, or to represent that it has such authority. The parties are acting as independent contractors and not as agents, partners, or employees of each other. Nether party has the power to bind or obligate the other, and each party is responsible for its own expenses and employees. 11.2. Notices. You shall send all notices to Comodo by first class mail, return receipt requested, in English writing to Comodo Security Solutions, Inc.,1255 Broad Street, Clifton, NJ 07013, United States. Comodo shall send all notices to the email address listed in your account. 11.3. Entire Agreement. With respect to the Product, this agreement is the entire understanding of the parties and supersedes all other agreements that may exist between the parties. The parties may execute one or more counterparts of the agreement, each of which will be deemed an original copy of the agreement. Section headings in this agreement are for reference and convenience only and are not part of the interpretation of the agreement. 11.4. Modifications. Comodo may modify this agreement by posting an updated copy of the agreement on its website. Comodo may also amend its website and pricing without notice. You may not modify this agreement unless the modification is signed by Comodo. Comodo may modify, supplement, or discontinue the Product, in whole or in part, without notice. 11.5. Waiver. A party’s failure to enforce a provision of this agreement will not waive the party’s right to enforce the same provision later or right to enforce any other provision of this agreement. To be effective, all waivers must be both in writing and signed by the party benefiting form the waived provision. 11.6. Force Majeure and Internet Frailties. Neither party will be liable for a delay or failure to perform an obligation to the extent that the delay or failure is caused by an occurrence beyond the party's reasonable control. Each party acknowledges that the operation of the Internet is beyond the other party’s reasonable control, and neither party will be liable for a delay or failure caused by an interruption or failure of telecommunication or digital transmission links, Internet slow-downs or failures, or other such transmission failure. 11.7. Governing Law. The laws of the state of New Jersey, USA, govern the interpretation, Comodo ONE EULA 060102015 �construction, and enforcement of this agreement and all proceedings arising out of it, including tort claims, without regard to any conflicts of law principles. 11.8. Assignment. You may not assign any of your rights or obligations under this agreement. Any transfer without Comodo’s consent is void. Comodo may assign its rights and obligations without your consent. 11.9. Severability. Any provision determined invalid or unenforceable by rule of law will be reformed to the minimum extent necessary to make the provision valid and enforceable. If reformation is not possible, the provision is deemed omitted and the balance of the agreement remains valid and enforceable. 11.10. Survival. All provisions of the agreement relating to confidentiality, proprietary rights, indemnification, and limitations of liability survive the termination of the agreement. 11.11. Rights of Third Parties. There are no third party beneficiaries under the agreement. 12. Included Software and Licenses The following third party software is distributed with, and is provided under, other licenses and/or has source available from other locations. Component osTicket Vfense OpenSSL Qt Framework Google Protocol Buffers zlib License GPLv2 LGPLv3 OpenSSL License SSLeay License GPLv3 3-Clause BSD License zlib License Copies of the licenses covering some of these components can be found at the following destinations: - GNU General Public License version 2 (June 1991) (“GPLv2”), which can be found here: http://www.gnu.org/licenses/gpl-2.0.html - GNU General Public License version 3 (29 June 2007) (“GPLv3”), which can be found here: http://www.gnu.org/copyleft/gpl.html - GNU Lesser General Public License version 3 (29 June 2007) (“LGPLv3”), which can be found here: https://www.gnu.org/licenses/lgpl.html - OpenSSL License, which can be found here: https://www.openssl.org/source/license.html - SSLeay License, which can be found here: https://www.openssl.org/source/license.html The following applies to components licensed under GPLv2: Comodo’s products include components that are licensed or sublicensed under GPLv2. GPLv2 permits the user to use, copy, modify, or redistribute modules. A copy of the GPLv2 license can be found in this Schedule 2. All open-source software components are licensed free of charge. Comodo does not provide a warranty for these components. For 3 years following your purchase of the Product, Comodo will provide, for a charge reflecting Comodo’s distribution costs, the complete machine-readable copy of the modified software modules that are covered by GPLv2. To obtain a complete machine-readable copy of the corresponding source code on a medium customarily used for software interchange, please send your written request to [email protected] and send a check in the amount of fifteen dollars ($15) US to: ATTN: Accounting Comodo Security Solutions, Inc. 1255 Broad Street Clifton, NJ 07012 United States In your email and along with your check please include your name, address, telephone number, email address, the Comodo product name, and the specific open-source software components. Your request will be processed once Comodo receives both your email and your check. Comodo ONE EULA 060102015 �You may copy and distribute verbatim copies of the source code as you receive it, in any medium, provided that you conspicuously and appropriately publish on each copy an appropriate copyright notice and disclaimer of warranty, keep intact all the notices that refer to GPLv2 and to the absence of any warranty, and give any other recipients of the program a copy of GPLv2 along with the program. The following applies to Google Protocol Buffers: Google Protocol Buffers - protobuf Copyright 2008, Google Inc. All rights reserved. Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met: * Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer. * Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution. * Neither the name of Google Inc. nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission. THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT OWNER OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. The following applies to zlib: Copyright © 1995-2004 Jean-loup Gailly and Mark Adler This software is provided 'as-is', without any express or implied warranty. In no event will the authors be held liable for any damages arising from the use of this software. Permission is granted to anyone to use this software for any purpose, including commercial applications, and to alter it and redistribute it freely, subject to the following restrictions: 1. The origin of this software must not be misrepresented; you must not claim that you wrote the original software. If you use this software in a product, an acknowledgment in the product documentation would be appreciated but is not required. 2. Altered source versions must be plainly marked as such, and must not be misrepresented as being the original software. 3. This notice may not be removed or altered from any source distribution. Jean-loup Gailly [email protected] Mark Adler [email protected] 13. Acceptance BY CLICKING “I ACCEPT”, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND ACCEPT THE PRODUCT’S FUNCTIONS. DO NOT CLICK THE “I ACCEPT” BUTTON IF YOU DO NOT ACCEPT THIS AGREEMENT AND THE PRODUCT’S FUNCTIONS. Comodo ONE EULA 060102015 �
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End User License Agreement IMPORTANT-READ CAREFULLY: THIS END USER LICENSE AGREEMENT ("AGREEMENT") IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR A SINGLE ENTITY), AND ACER INC. INCLUDING ITS SUBSIDIARIES ("ACER") FOR THE SOFTWARE (WHETHER PROVIDED BY ACER OR BY ACER’S LICENSORS OR SUPPLIERS) THAT ACCOMPANIES THIS AGREEMENT, INCLUDING ANY ASSOCIATED MEDIA, PRINTED MATERIALS AND RELATED USER ELECTRONIC DOCUMENTATION WHICH MAY BE BRANDED “ACER”, “GATEWAY”, “PACKARD BELL”, OR “E-MACHINES” ("SOFTWARE"). AGREEMENTS RELATING TO ANY OTHER PRODUCT OR TOPIC ARE NEITHER INTENDED NOR SHOULD THEY BE IMPLIED. BY INSTALLING THE ACCOMPANYING SOFTWARE OR ANY PORTION THEREOF, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT CONTINUE THE INSTALLATION PROCESS AND IMMEDIATELY DELETE ALL INSTALLED FILES, IF ANY, OF THE ACCOMPANYING SOFTWARE FROM YOUR COMPUTER SYSTEM. IF YOU DO NOT HAVE A VALIDLY-LICENSED COPY OF THE APPLICABLE SOFTWARE, YOU ARE NOT AUTHORIZED TO INSTALL, COPY OR OTHERWISE USE THE SOFTWARE, AND HAVE NO RIGHTS UNDER THIS AGREEMENT. The Software is protected by U.S. and international copyright laws and conventions as well as other intellectual property laws and treaties. The Software is licensed, not sold. GRANT OF LICENSE Acer grants to you the following non-exclusive and non-transferable rights with respect to the Software. Under this Agreement, you may: 1. Install and use the Software only on a single designated computer. A separate license is required for each computer on which the Software will be used; 2. Make one copy of the Software solely for backup or archival purposes; 3. Make one hardcopy of any electronic documents included in the Software, provided that you receive the documents electronically. RESTRICTIONS: You may NOT: 1. Use or copy the Software except as provided in this Agreement; 2. Rent or lease the Software to any third party; �3. Modify, adapt, or translate the Software in whole or in part; 4. Reverse engineer, decompile, or disassemble the Software or create derivative works based upon the Software; 5. Merge the Software with any other program or modify the Software, except for your personal use; and 6. Sublicense or otherwise make the Software available to third parties, except that you may, after prior written notification to Acer, transfer the Software as a whole to a third party so long as you do not retain any copies of the Software and such third party accepts the terms of this Agreement. 7. Transfer your rights under this Agreement to any third parties.8. Export the Software in contravention of applicable export laws and regulations, or (i) sell, export, re-export, transfer, divert, disclose technical data, or dispose of, any Software to any prohibited person, entity, or destination including, without limitation, Cuba, Iran, North Korea, Sudan and Syria; or (ii) use any Software for any use prohibited by the laws or regulations of the United States. SUPPORT SERVICES Acer is not obligated to provide technical or other support for the Software. ACER LIVE UPDATE Certain of the software contains elements that enable the use of the Acer Live Update service, which allows for updates for such software to be automatically downloaded and installed on your computer. By installing the software, you hereby agree and consent that Acer (or its licensors) may automatically check the version of such software that you are using on your computer and may provide upgrades to such software that may be automatically downloaded on to your computer. OWNERSHIP & COPYRIGHT Title, ownership rights and intellectual property rights in and to the Software and all copies thereof shall remain with Acer or Acer’s licensors or suppliers (as applicable). You do not have or shall not gain any proprietary interest in the Software (including any modifications or copies made by or for you) or any related intellectual property rights. Title and related rights in the content accessed through the Software is the property of the applicable content owner and may be protected by applicable law. This license gives you no rights to such contents. You hereby agree 1. Not to remove any copyright or other proprietary notices from the Software; 2. To reproduce all such notices on any authorized copies you make; and 3. To use best efforts to prevent any unauthorized copying of the Software. TRADEMARKS �This Agreement does not grant to you any rights in connection with any trademarks or service marks of Acer or of Acer’s licensors or suppliers. DISCLAIMER OF WARRANTIES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ACER, ITS SUPPLIERS, AND ITS LICENSORS, PROVIDE THE SOFTWARE "AS IS" AND WITH ALL FAULTS, AND HEREBY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY OR COMPLETENESS OF RESPONSES, OF RESULTS, OF WORKMANLIKE EFFORT, OF LACK OF VIRUSES, AND OF LACK OF NEGLIGENCE, ALL WITH REGARD TO THE SOFTWARE AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE SOFTWARE. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ACER, ACER’S SUPPLIERS, OR ACER’S LICENSORS, BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF ACER OR ITS SUPPLIERS OR LICENSORS, AND EVEN IF ACER AND ITS SUPPLIERS AND LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LIMITATION OF LIABILITY AND REMEDIES NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES �REFERENCED ABOVE AND ALL DIRECT OR GENERAL DAMAGES), THE ENTIRE LIABILITY OF ACER, ITS SUPPLIERS, AND ITS LICENSORS, UNDER ANY PROVISION OF THIS AGREEMENT, AND YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING, SHALL BE LIMITED TO THE AGGREGATE AMOUNT PAID BY YOU FOR THE SOFTWARE. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS (INCLUDING DISCLAIMER OF WARRANTIES AND EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES ABOVE) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE; PROVIDED, HOWEVER, THAT BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OR LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. TERMINATION Without prejudice to any other rights, Acer may immediately terminate this Agreement without notice if you fail to comply with any terms and conditions of this Agreement. In such event, you must: 1. Cease all use of the Software; 2. Destroy or return to Acer the original and all copies of the Software; and 3. Delete the Software from all computers on which it was resident. All disclaimers of warranties and limitation of liability set forth in this Agreement shall survive termination of this Agreement. GENERAL This Agreement represents the complete agreement between you and Acer relating to this license for the Software and supersedes all prior agreements, communications, proposals and representations between the parties and prevails over any conflicting or additional terms of any quote, order, acknowledgement or similar communication. This Agreement may only be modified by a written document signed by both parties. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law that provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect. ADDITIONAL PROVISIONS APPLICABLE TO THIRD PARTY SOFTWARE AND SERVICES Software provided hereunder by Acer’s licensors or suppliers (“Third Party Software”) is made available to you for your personal, non-commercial use only. You may not use the Third Party Software in any manner that could damage, disable, overburden, or impair the services provided by Acer’s licensors or suppliers hereunder (“Third Party Services”). �Furthermore, you may not use the Third Party Software in any manner that could interfere with any other party's use and enjoyment of the Third Party Services, or the services and products of Acer’s licensors’ or suppliers’ third party licensors. Your use of the Third Party Software and Third Party Services is also subject to additional terms and conditions and policies which can be accessed through our global website at http://www.acer.com/worldwide/support/swa.htm. �
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LICENSING END USER LICENSE AGREEMENT IMPORTANT—READ CAREFULLY: PLEASE CAREFULLY READ THIS AGREEMENT AS IT IS APPLICABLE WHETHER YOUR USE OF THE ACCOMPANYING SOFTWARE PRODUCT IS SUBJECT TO A TRIAL, PURCHASE, LICENSE OR ANY OTHER WAY IT HAS BEEN PROVIDED TO YOU. TO CONFIRM YOUR ACCEPTANCE OF THE TERMS OF THIS AGREEMENT AND YOUR AGREEMENT TO BE BOUND BY THIS AGREEMENT, CLICK THE APPROPRIATE BUTTON APPEARING ON YOUR SCREEN DURING THE INSTALLATION PROCESS. IF YOU DO NOT WISH TO BECOME A PARTY TO THIS AGREEMENT AND DO NOT AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS, CLICK THE CONVERSE APPROPRIATE BUTTON: THIS WILL AUTOMATICALLY ABORT INSTALLATION PROCESS: IN SUCH LATTER CASE, IF THE SOFTWARE PRODUCT HAS ALREADY BEEN PROVIDED TO YOU AS A PHYSICAL COPY, YOU MUST RETURN THE SOFTWARE PRODUCT WITHIN THIRTY (30) DAYS OF RECEIPT THEREOF (INCLUDING ALL ACCOMPANYING PRINTED MATERIALS, ALONG WITH THEIR CONTAINERS) TO THE PLACE FROM WHICH YOU OBTAINED IT. IF THE SOFTWARE PRODUCT HAS BEEN PROVIDED TO YOU AS A DOWNLOAD, YOU MUST IMMEDIATELY DELETE OR EXPUNGE THE SOFTWARE INCLUSIVE ALL RELATED FILES AND ANY OTHER ELECTRONIC MATERIAL. FROM YOUR COMPUTER, HARD DISKS, SERVERS OR OTHER DEVICE CONTAINING THE SOFTWARE PRODUCT. This End-User License Agreement (“EULA”) is a legal agreement between your corporation, company or other legal entity, to which the Software Product has been provided, (hereinafter referred to as “You”), and Schneider Electric (as defined hereunder). It is Your responsibility to ascertain that any person completing the installation of the Software Product has the mandate or legal authority to bind You and confirm Your acceptance of the terms of this EULA. The terms of this EULA shall apply to the software product that accompanies this EULA or to which this EULA relates, including any associated media containing any device that activates the program(s) contained in said software product, any printed, online or electronic documentation, information, specifications, instructions or material (hereinafter “Documentation”) related to said software product (the “Software Product”). The Software Product also includes any software updates, add-on components, web services and/or supplements that Schneider Electric may provide to You or make available to You after the date You obtain Your initial copy of the Software Product and after Your acceptance of this EULA, to the extent that such items are not accompanied by a separate license agreement or terms of use, in which case such separate license agreement shall prevail. As used in this EULA, “Schneider Electric” or the “Licensor” shall mean that company of the Schneider Electric Group which is registered in the country where You have issued Your Purchase Order (including but not limited to orders for purchase, license and/or trial or any expression of Your intent to do the same, hereinafter collectively referred to as “Purchase Order”) of the Software Product; Schneider Electric Group companies are listed under the drop-list of countries <<Select your country>> on the corporate web site of Schneider Electric Group. 1. GRANT OF LICENSE Schneider Electric grants to You a non-exclusive non-transferable, limited license right to use the Software Product subject to all terms and conditions of this EULA, Your Purchase Order and Documentation related to said Software Product. This EULA describes Your general rights to install, activate and use the Software Product, to the �exclusion of the terms and conditions relating to the purchase (if applicable) by You of the Software Product which terms and conditions shall be referred to under Your Purchase Order or be contained in a separate agreement between You and Schneider Electric or its sales representative or between You and the third-party supplying the Software Product with a third-party product. Depending upon the Software Product’s reference and its related description that is available from Schneider Electric’s website, the license right set forth under this EULA is granted to You as a perpetual license or for a limited period of time (3, 6 or 12 months). The period of Your license can be found in the About Box of the Software Product. Depending upon the Software Product’s reference and its related description that is available from Schneider Electric’s website, the license rights granted under this EULA may be limited to a trial period (in number of days) indicated by the Software Product upon its installation. During said trial period, You may use the Software Product for the purpose of evaluating whether to activate or not the license to use the Software Product under this EULA. Upon expiry of the trial period, the Software Product will automatically be de-installed and/or rendered unusable (with or without prior warning) and Your license to the Software Product will automatically and immediately terminate, unless You request Schneider Electric to provide You the activation code and You actually activate the license right granted to You hereunder in the manner described during the set-up sequence of the Software Product, and You pay to Schneider Electric the corresponding applicable fees (if any). You acknowledge that if You need to activate the Software Product through the use of internet or telephone, toll charges may apply. If technological measures are designed to prevent unlicensed or illegal use of the Software Product, You agree that Schneider Electric may use those measures and You agree to comply with any requirements regarding such technological measures. Unless You have acquired a Corporate License as expressly defined in this EULA, floating, concurrent or shared use of the Software Product is not permitted and Your use of the Software Product must be licensed under this EULA as a Single User License or a Multiple User License. The Single User License applies when a label affixed on the Software Product’s media itself states "Single User License". A Single User License can only be installed and used on a single personal computer at any given time and is prohibited from being installed and used on a network or any other multi-station computer system that allows simultaneous use by several users. The Multiple User License applies when a label affixed on the Software Product’s media itself states ”Multiple User License". A Multiple User License allows concurrent and unrestricted number of installations of the corresponding Software Product on several personal computers, on a network or any other multi-station computer system, but a Multiple User License restricts the number of users to the number defined for the corresponding purchased and registered Software Product. Where You would use a Multiple User License via a network or any other multi-station computer system, it shall be Your responsibility to put in place such means as necessary to guarantee that all restrictions set forth in this EULA are followed. 2. RESTRICTIONS You may only install, use, access and display the Software Product on a computer or other device, strictly in accordance with the accompanying Documentation, and only for the specific purposes stated in this Documentation or in this EULA. Furthermore, unless otherwise expressly required or authorized by statute or unless otherwise expressly �permitted under the terms of a valid Corporate License, You must not: a) copy the Software Product except for backup purposes only in support of Your permitted use of the Software Product. Any such copy must include all copyright notices and any other proprietary legends present on the original Software Product. You may not sell, lease, license, rent or in other ways transfer any copy of the Software Product. If this Software Product contains Documentation that is provided only in electronic form or online, You may print one copy of such electronic Documentation for each license acquired to the Software Product. If this Software Product contains Documentation that is provided in printed form, You may make one copy of such printed Documentation for each license acquired to the Software Product. b) modify, adapt, translate, reverse engineer, decompile, disassemble or otherwise seek to reconstitute the source code of the Software Product, nor create derivative works from the Software Product. c) sub-license, lease, outsource or rent the Software Product, or permit a third party to use the Software Product for its or anyone else's benefit. Nor may You use the Software Product as part of a facility management, timesharing, service provider or service bureau arrangement; d) other than as expressly permitted under this Agreement, including but not limited to section 3, distribute in whole or part, modify, or create derivatives of, the Software Product or distribute applications created with the Software Product; and e) directly or indirectly, export, re-export, download, or ship the Software Product in violation of the laws and regulations of the U.S.A. or the applicable jurisdiction in which You use or are downloading the Software Product. f) IF U.S. LAW GOVERNS: The Software Product is a “Commercial Item(s),” as that term is defined at 48 C.F.R. § 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. § 12.212 or 48 C.F.R. § 222.7202-1 through § 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. Government end users with only those rights as granted to all other end users, according to the terms and conditions contained in this EULA. Manufacturer is Schneider Electric. Should You not fully comply with the above provisions, You shall bear any and all consequences, including any damages whatsoever, resulting there from. The use of the Software Product is intended only for use with a content owned by the You, a public domain content or a properly licensed content. You may require a patent, copyright, or other license from a third party to create, copy, download, record or save content files for use with the Software Product or to serve or distribute such files to be used with the Software Product. You agree that You shall only use the Software Product in a manner that complies with all applicable laws in the jurisdictions in which You use or are downloading the Software Product, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights. You may not use the Software Product in an attempt to, or in conjunction with any device, program or service designed to, circumvent technological measures employed to control access to, or the rights in, a content file or other work protected by the copyright laws of any jurisdiction. 3. DESCRIPTION OF OTHER RIGHTS 3.1 Not for Resale Software. If the Software Product is labelled “Not For Resale”, then, notwithstanding other sections of this EULA, Your use of the Software Product is limited to use for demonstration, test or evaluation purposes and You may not sell, sub-license, loan or otherwise transfer, said Software Product. �3.2 Authorized Applications. For the purpose of this EULA, ‘Authorized Applications’ shall mean those applications that You create, develop or generate by using the Software Product (including its programming tool if any) or by loading in such applications, with or without modification, a library of the Software Product, provided that You have validly licensed said Software Product from Schneider Electric or its authorized resellers. Authorized Applications include, without this being limitative, applicable runtime engines for the Software Product and applicable driver interface that You may provide to Your own customers as part of or together with Your Authorized Applications. Notwithstanding the foregoing, any application created with the Software Product acquired under a Field-Test license (as defined in this EULA) or for demonstration, test or evaluation purposes, is not an Authorized Application. As an express deviation to the rights granted to You under a Single User License or a Multiple User License under this EULA, You are authorized to download on a dongle key the Software Product You have previously activated in Your own premises for the purpose of going to and using the Software Product at Your own customers’ premises provided You can evidence that no other mean is reasonably available to You to perform the installation or commissioning of Your Authorized Application at the premises of Your own customers. You may distribute or otherwise make available Authorized Applications provided You comply with each of the requirements set forth below: (i) You include Your own valid copyright notice on Your Authorized Applications; and (ii) You do not remove or obscure any notice of copyright, trademark, patent or other industrial or intellectual property rights that appear on the Software Product as delivered to You or as may appear concerning the Software Product in the Authorized Application's About Box and in any applicable printed Documentation distributed with each copy of Your Authorized Applications; and (iii) You do not use Schneider Electric’s name, logo or trademarks to market or identify Your Authorized Applications unless You are party to a separate agreement with Schneider Electric giving You such rights or Schneider Electric has given You its express prior written consent to do so; (iv) You indemnify, hold harmless, and defend Schneider Electric from and against any claims whether based in contract, warranty, tort (including negligence), strict liability, statute or otherwise, including, without limitation, damages for loss of business, loss of profits, business interruption, lawsuits, including attorneys' fees, loss of data, or for any other pecuniary or non pecuniary loss or damage that arise or result from the use or distribution of Your Authorized Applications, provided however that Your contractual obligation of indemnification shall not extend to the percentage of the claimant’s damages or injuries or the settlement amount attributable to Schneider Electric’s fault or to strict liability imposed upon Schneider Electric as a matter of law in any country (on either federal or state level, when applicable); the foregoing obligation of indemnification shall survive the expiry or termination of this EULA; and (v) You do not permit further redistribution of the Software Product (including Your modifications thereto) by third parties except as part of Your Authorized Applications; and (vi) You provide Your customer with Your own license agreement to grant the right to use Your Authorised Applications, said license agreement being substantially similar to, but no less restrictive in any way, than this EULA; and (vii) You otherwise comply with the terms of this EULA. 3.3 Embedding or integrating the Software Product. You may embed or otherwise integrate the Software Product within Your own product or a third party product, provided that: �(i) You have validly licensed the Software Product from Schneider Electric or its authorized resellers, and (ii) You perform such embedding or integration in a manner that complies with the Software Documentation to the extent said documentation contains any instructions or recommendations in relation therewith, and (iii) You comply - with respect to Your own products and said third party products - with each of the same requirements as set forth hereinabove concerning Authorized Applications; said foregoing requirements shall apply mutatis mutandis to any of Your own products or third party products within which You embed or otherwise integrate the Software Product, and any reference made to the term ‘Authorized Application’ in the foregoing provision shall be deemed for the purpose of this present section to be a reference to Your own products or third party products embedding or otherwise integrating the Software Product. (iv) You provide Your customer with Your own license agreement to grant the right to use Your own products or the third party products within which You embed or otherwise integrate the Software Product, said license agreement being substantially similar to, but no less restrictive in any way, than this EULA. (v) You indemnify, hold harmless, and defend Schneider Electric from and against any claims whether based in contract, warranty, tort (including negligence), strict liability, statute or otherwise, including, without limitation, damages for loss of business, loss of profits, business interruption, lawsuits, including attorneys' fees, loss of data, or for any other pecuniary or non pecuniary loss or damage that arise or result from You embedding the Software Product or otherwise integrate the Software Product within Your own product or a third party product, provided however that Your contractual obligation of indemnification shall not extend to the percentage of the claimant’s damages or injuries or the settlement amount attributable to Schneider Electric’s fault or to strict liability imposed upon Schneider Electric as a matter of law in any country (on either federal or state level, when applicable); the foregoing obligation of indemnification shall survive the expiry or termination of this EULA; and (vi) You otherwise comply with the terms of this EULA. 4. INSTALLATION, MAINTENANCE AND SUPPORT SERVICES You shall be responsible for the proper installation of the Software Product as per the terms of its Documentation and You shall bear all expenses and costs in connection therewith. Schneider Electric provides no maintenance or support services in connection with the Software Product, other than those which may be defined by way of separate agreement. 5. UPDATE POLICY 5.1 If Schneider Electric creates updated versions of the Software Product, it will not be obliged to supply those updates to You, unless You have a valid maintenance agreement with Schneider Electric or its authorised reseller. 5.2 If You are entitled to receive updated versions of the Software Product, the licence terms of that updated version are the terms of this EULA as such terms may have evolved at the time of supply of any updated version. 5.3 A reference to the Software Product in this EULA will include any updated version provided to You �by Schneider Electric or its authorised reseller. 6. LICENSE KEY 6.1 You acknowledge that, if the Software Product is protected by a lock, the Software Product cannot be used except in conjunction with a valid software key code or a hardware key (the ‘License Key’) provided to You or to another person on Your behalf by or on behalf of Schneider Electric or its authorised reseller. 6.2 You agree that such License Key is to be used solely with the Software Product for which it is provided. While Schneider Electric may, in its sole discretion, provide You with the License Key prior to receipt from You of the applicable license fees (if any), You will remain obligated to pay such fees to Schneider Electric. 6.3 Any and all risk in the media on which the Software Product and License Key are provided passes to You upon delivery. In the event that the Software Product or License Key is lost, stolen or destroyed after delivery, Schneider Electric will not be required to replace the Software Product or License Key. 6.4 In the event of a lost, stolen or destroyed License Key, and if Schneider Electric agrees to replace the License Key, prior to Schneider Electric providing a replacement License Key to You, You must: 6.5 (i) provide a statutory declaration signed by You to Schneider Electric that confirms You have permanently lost or destroyed the Software Product or License Key that is to be replaced and that You have not retained the Software Product or License Key in any form nor included it with any other software or system owned, operated or controlled by You; and (ii) comply with any other direction of Schneider Electric related to the replacement. If the License Key is faulty, and provided that such fault is attributable to an act or omission by Schneider Electric, Schneider Electric will replace the License Key if the faulty License Key is returned within the warranty period specified by Schneider Electric. Subject to section 9 “Warranties” below, if the faulty License Key is not returned within said warranty period, Schneider Electric will replace the License Key upon payment by You of an administration fee to be advised by Schneider Electric at the time. 7. TITLE The Software Product, as well as all rights, title, interest, technology and know-how, whether patented or not, embodied in the Software Product, as well as all industrial and/or intellectual property rights attached to the Software Product, including but not limited to copyright, shall remain the sole property of Schneider Electric, to the exclusion of any third-party software embedded in the Software Product or otherwise provided to You with the Software Product. Nothing in this EULA shall be deemed to convey to You any of Schneider Electric’s proprietary rights in the Software Product; all rights not specifically granted in this EULA are reserved by Schneider Electric. Schneider Electric does not sell the Software Product to You but only grants You the license rights defined in this EULA. All industrial and/or intellectual property rights pertaining to any third-party software embedded in the Software Product or otherwise provided to You with the Software Product shall remain vested in the relevant third-party and there will be no deemed or implied transfer of ownership to You of such third-party proprietary rights. �Should You become aware of any infringement to the proprietary rights of Schneider Electric on the Software Product, You shall immediately inform Schneider Electric of such infringement and provide all relevant information required by Schneider Electric to defend its interests. 8. TRADEMARKS Schneider Electric and other trademarks contained in the Software Product are registered trademarks of the Schneider Electric group. Except as otherwise expressly prescribed by statute, You may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Software Product. This EULA does not authorise You to use any names or trademarks of Schneider Electric or its authorised resellers. 9. WARRANTIES 9.1 Schneider Electric warrants that for a period of ninety (90) days from the date of its delivery to You by Schneider Electric or its authorised reseller (or any other warranty period depending upon the Software Product’s reference and its related description available from Schneider Electric website), (i) the Software Product will perform substantially in accordance with its Documentation, and (ii) the medium on which the Software Product is provided to You (if provided under a tangible form) and the License Key (if any) will be free from defects in materials and workmanship. Schneider Electric’s sole obligation and Your sole remedy with respect to the foregoing limited warranty shall be, at Schneider Electric's option, to either return the fees paid (if any) for the Software Product, or to fix the defect or non-compliance or to replace the defective Software Product, the medium or the License Key without charge to You, provided that (i) You give notice of the defect to Schneider Electric or its authorised reseller within the above mentioned warranty period, and (ii) the defect does not fall under the exclusions set under section 9.2 below. 9.2 Schneider Electric’s warranty shall be excluded if the Software Product, its medium or License Key has been altered or fails to perform in any way, as the result of any accident, abuse, omission or abnormal use such as for instance but not limited to the use of the Software Product with third party products (hardware, software, firmware or operating system) which are not intended by Schneider Electric for use with the Software Product, or the utilization of an improper hardware or software key (if applicable) with the Software Product, or the unauthorized maintenance of the Software Product. Any replacement Software Product, media or License Key supplied to You pursuant to section 9.1 hereinabove will be warranted for the remainder of the original ninety (90) warranty period or thirty (30) days, whichever is longer. Laws of some countries (either on federal or state level) do not allow limitations on duration of an express or implied warranty, so the above or any other limitation provided herein may not apply to You. In such event, such warranties are limited to the minimum warranty period legally allowed in said countries. 9.3 To the full extent permitted by law (on both federal and state level, when applicable) applicable in any country where You will install, copy, run or otherwise use the Software Product, Schneider Electric makes no other warranty than those contained in this section 9 and expressly disclaims all other warranties or representations, either express or implied, as to the Software Product, its updates and its Documentation, including without limitation any warranties of fitness for any particular purpose, merchantability, non-infringement, title or sample. Further, while Schneider Electric has taken reasonable steps to ensure the accuracy of the information contained in or shown by the Software Product, Schneider Electric makes no warranty or representation of any kind, whether express or implied, as to whether the Software Product or any information contained in or shown by the Software Product and its Documentation will meet Your requirements, �expectations or purposes. 9.4 No oral or written information, statement, opinion or advice allegedly given by Schneider Electric, its authorized resellers, agents or employees, or anyone else on its behalf, shall create any liability or in any way extend or vary the scope of the warranties expressed in this EULA. 10. LIABILITIES You expressly acknowledge and accept that use of the Software Product is at Your sole risk and that the entire risk as to satisfactory quality, performance, accuracy and effort is with You as licensee. To the maximum extent permitted by applicable law, the Software Product is provided “as is”, with all faults and without warranty of any kind not contained in section 9. In no event shall Schneider Electric be liable for any indirect, intangible, incidental, punitive or consequential damages, loss, expense or cause of action, whether based on contract, warranty, tort (including negligence), strict liability, statute or otherwise, including, without limitation, damages for loss of business, loss of profits, business interruption, loss of data or for any other pecuniary or non pecuniary loss or damage, arising out of or in connection with the use, inability to use or misuse of the Software Product, even if Schneider Electric has been advised of the possibility of such damages. Schneider Electric’s aggregate liability under this EULA shall in no case exceed the total amount paid by You to acquire the Software Product which caused the damage and/or, as the case may be, to be granted the license to use the same. You shall indemnify and hold Schneider Electric harmless from any and all claims, damages, demands or proceedings (including attorney’s fees) brought against Schneider Electric including those brought by any third party arising out of or in connection with the use, inability to use or misuse of the Software Product by You, and whether based in contract, warranty, tort (including negligence), strict liability, statute or otherwise. The license granted under this EULA does not cover any modification, update, translation or adaptation, whether authorized or not, that might have been made to the Software Product by any person other than Schneider Electric where the Software Product is supplied along with a third party product. Such modifications shall be governed by the terms of license issued by such third party. Schneider Electric shall in no case be liable, whether in contract, warranty, tort (including negligence), strict liability, statute or otherwise, for damages or consequences arising out of or in connection with said modification, update, translation or adaptation and makes no representation or warranty in connection therewith. Notwithstanding any other term of this EULA, Schneider Electric's liability arising out of this EULA is reduced proportionally to the extent to which the act or omission of You or any other person (other than Schneider Electric, its authorised resellers or their respective employees, agents or subcontractors) contributed to the loss or damage incurred. The above limitations or exclusions of liability shall apply only to the extent permitted by law applicable in any country (on either federal or state level, when applicable) where You will install, copy, run or otherwise use the Software Product. The limitations or exclusions of warranties and liability contained in this EULA do not affect or prejudice the statutory rights which, as the case may be, will benefit You under any mandatory or public order laws or regulation applicable in any such country (on either federal or state level, when applicable). 11. THIRD PARTY SOFTWARE �The Software Product may embed or be provided to You with third-party software(s), in unmodified or modified forms. By accepting this EULA, You are also accepting the terms and conditions of the software licenses from any third-party owning the intellectual property rights on said third-party software(s), and any use You will do of any such third-party software(s) being part of the Software Product is subject to the terms of those third-party licenses. Further, the Software Product may contain code, including third party code, for which Schneider Electric is required to provide attribution. Some of this code may be released under alternative license terms. Such code is not licensed under this EULA and shall be subject only to the alternative license which shall constitute the sole license for such code and shall govern the relation between You and the alternative licensor. This EULA does not alter any rights or obligations You may have under these alternative licenses. Schneider Electric provides no warranty what so ever in relation to code subject to such alternative licenses. Schneider Electric cannot and does not grant to You any license to any third party’s intellectual property rights held by a third party in respect of which You may need to hold a license in order to be able lawfully to use the Software Product for the purposes contemplated by You, including so as to be able lawfully to use the Software Product in such specific process, set-up or other context and in such specific combination with other software or devices as may be intended by You. You must at Your own expense acquire and maintain any such licenses from such third parties, and Schneider Electric cannot be held liable if a third party raises a claim for infringement of such third party's patent rights or other intellectual property rights. If You do not acquire and maintain such third party licenses as mentioned and if this somehow results in a third party raising a claim against Schneider Electric, You shall indemnify Schneider Electric against any such third party claim whereby the specific limitations of Schneider Electric’s warranty and liability defined in Section 9 and Section 10 of this EULA shall apply.. Further to the above, in relation to parts of the Software Product that are subject to alternative licenses, Schneider Electric's liability shall be further limited in accordance with the terms and conditions of such alternative license and Schneider Electric will in no event be subject to a wider or more substantial liability than what is evident from such alternative licenses. 12. COMPLIANCE You agree to make all applicable records available for review by Schneider Electric during Your normal business hours so as to permit Schneider Electric (upon reasonable written notice to You) to verify Your compliance with the terms and conditions of this EULA. Further, You agree that upon the request of Schneider Electric or Schneider Electric's authorized representative, You will promptly document and certify in writing to Schneider Electric that Your and Your employees' use of the Software Product complies with the terms and conditions of this EULA. Schneider Electric may (upon reasonable written notice) inspect Your use of the Software Product during Your normal business hours to ensure Your compliance with this EULA. If the results of any such review or inspection indicate Your unlicensed or non-compliant use of the Software Product or the underpayment by You of applicable fees (if any) contractually due and payable to Schneider Electric, You shall: (i) immediately pay sufficient fees to cover Your use of the Software Product, or such amounts of fees remaining due to Schneider Electric and (ii) reimburse Schneider Electric for the cost of such review or inspection. 13. EXPORT CONTROL �The export of products, software, technology or information may be subject to control or restriction by applicable laws or regulations on the control of export, notably the United States Export Administration Act and the regulations there under, and the European Union Regulation 428/2009 applicable to dual use and cryptographic products and technologies. You are solely responsible for determining the existence and application of any such law or regulation to any proposed export of the Software Product by You or Your representatives and for performing any declaration or obtaining any required authorisation in relation therewith. You agree not to export the Software Product from any country in violation of any applicable legal or regulatory obligations or restrictions on that export. In the event the aforementioned legal or regulatory obligations or restrictions are violated by You or any of Your representatives in relation with the export of the Software Product, You shall indemnify and hold Schneider Electric and its authorized resellers harmless from any claims and compensate the same against any damages which any third party (including but not limited to governmental and/or international authorities and/or organizations) will claim against Schneider Electric and/or its authorized resellers as the result of any such violation by You or Your representative(s). 14. ASSIGNMENT Your rights or obligations under this EULA may not be sold, sub-licensed, rented, assigned, delegated, transferred or otherwise conveyed by You or Your representatives without Schneider Electric’s prior express written consent. Licensor may assign this license to any company within the Schneider Electric Group of companies or to any company it may acquire control of or merge with. 15. DURATION AND TERMINATION 15.1 The license right granted to You under this EULA shall come into effect as of the date of Your acceptance of the terms hereof and shall remain effective unless such license right expires or terminates when (i) such license right was granted to You for a limited period of time in accordance with section 2 and such limited time period expires, or (ii) such license right was granted to You under a trial period in accordance with section 2 and You do not further activate it upon expiry of said trial period as per section 2, or (iii) this EULA is terminated by either Schneider Electric or You with immediate effect if, respectively, You or Schneider Electric fail to comply with any of its obligations under this EULA. 15.2 Upon expiration or termination of the license right granted to You hereunder, You undertake to immediately discontinue use of the Software Product and You must (i) if the Software Product has been provided to You as a physical copy, return the Software Product and related copies and data, including without limitation those stored on Your computer hard disks or servers, including all accompanying printed materials along with their containers to the place from which You obtained the Software Product, and (ii) if the Software Product has been provided to You as a download, delete or expunge the Software Product, inclusive all related files and any other electronic material, from Your computer, hard disks, servers or other device containing it. 15.3 Termination of the license granted to You hereunder does not affect any rights or remedies which may have accrued before said termination to the benefit of Schneider Electric under this EULA, at law or otherwise. 16. MISCELLANEOUS 16.1 This EULA, including its Schedule, constitutes the entire agreement between You and Schneider Electric in relation to Your right to use the Software Product and replaces any previous agreement or understanding, whether oral, electronic or written, in relation with the same subject matter. �Documentation forms an integral part of the license granted under this EULA. In case of a discrepancy between the terms of this EULA and the provisions of the Documentation, the terms of this EULA shall prevail. Should they differ, the terms of the printed version of this EULA, which may be supplied with the Software Product package, shall prevail over those that may be read on a computer screen. 16.2 Any change to the terms of this EULA shall only be valid and applicable to You if made in writing and signed by the respective authorized officer of each of Schneider Electric and You. 16.3 Should any of the provisions of this EULA be held invalid, illegal or unenforceable by a competent jurisdiction, You and Schneider Electric shall take all reasonable steps in order to modify such provision to render it valid and enforceable, bearing in mind their original intentions, and such provision as modified shall be fully enforced by You and Schneider Electric; all other provisions shall remain valid and unaffected by such declared invalidity, illegality or non-enforceability. 16.4 No failure or delay on the part of either You or Schneider Electric in the exercise of any power, right or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other right, power or privilege. 16.5 Headings in this EULA are just for ease of reference and will not affect its interpretation. 16.6 Words expressed in the singular include the plural and vice versa. 16.7 Section 7, 8, 9, 10, 11, 12 and 13 of this EULA shall survive termination of this EULA or expiration of the license right granted to You under this EULA in accordance with section 15.1. Furthermore, provisions that by their nature are intended to survive termination or expiration of this EULA and the license right granted to You hereunder, shall survive such termination or expiration. 17. APPLICABLE LAW & DISPUTES This EULA shall be exclusively governed by the laws of the country (on both federal and state level, when applicable) where Licensor has its registered office or principal place of business, to the exclusion of said country’s conflict of law rules. Any dispute between You and Schneider Electric arising out of or in connection with this EULA and/or the Software Product, whether based on contract, warranty, tort (including negligence), strict liability, statute or otherwise, which cannot be amicably settled, shall in all cases be finally settled according to the law governing this EULA as defined above, by the courts having jurisdiction in the city where Licensor has its registered office or principal place of business, to the exclusion of any other jurisdiction whatsoever, including in case of plurality of defendants, injunction-like or emergency proceedings and appeal in warranty. You acknowledge and accept that Schneider Electric will be irreparably damaged (and damages at law may be an inadequate remedy) if You breach any provision of this EULA and such provision is not specifically enforced. Therefore, in the event of a breach or threatened breach by You of this EULA, Schneider Electric shall be entitled, in addition to all other rights or remedies, to (a) an injunction restraining such breach, without being required to show any actual damage or to post an injunction or other bond; or (b) a decree for specific performance of the applicable provision of this Agreement; or (c) both to the extent permitted by applicable law in the country where Licensor has its registered office or principal place of business and/or, as relevant in the context, where You will install, copy, run or otherwise use the Software Product, on either federal or state level when applicable. �******************************************************************************************************************** SCHEDULE TO END-USER LICENSE AGREEMENT SPECIFIC TYPES OF LICENSE Specific other use rights may be granted to You depending upon the type of license You have acquired. Educational license. If You wish to acquire the Software Product for educational purpose only, please contact Schneider Electric’s organization or its authorized reseller serving Your country. In case the Software Product is identified as academic or educational software, You must be a qualified educational user to be entitled to use said Software Product; if You are not a qualified educational user, You have no rights under this EULA with respect to said academic or educational software. To determine whether You are a qualified educational user, please contact Schneider Electric’s organization or its authorized reseller serving Your country. Once licensed to use said academic or educational Software Product, You may not sell or transfer any such Software Product or sub-license Your license right to use the same to anyone except to another person who is qualified by Schneider Electric as a qualified educational user. As used in this section of EULA, the term ‘person’ shall be broadly interpreted to include without limitation any individual, any corporation, company or other legal entity. License for Field-Test. If You have acquired a license for field-test purposes, You acknowledge and agree that the Software Product licensed to You under a field-test license is a pre-release software only. As such, said Software Product may not be fully functional and You assume the entire risk as to the results and performance of the Software Product. You may install and use the Software Product licensed to You under a field-test license on computers in Your workplace only for the purpose of testing said Software Product before it is commercialized by Schneider Electric and potentially identifying any errors, bugs or defects in said Software Product. You also agree to use reasonable efforts to provide feedback to Schneider Electric regarding Your use of the Software Product, including a prompt report to Schneider Electric of errors, bugs or defects that You might find. Therefore, notwithstanding anything in this EULA to the contrary, You may not distribute or transfer any applications You create with the Software Product licensed to You under a field-test license. Schneider Electric will not update the Software Product licensed to You under a field-test license, nor provide support in relation thereto. The Software Product licensed to You under a field-test license may contain code that will, after a certain time period, deactivate the Software Product and render it unusable. Although said Software Product will attempt to warn You of the time frame in which it will be disabled, You acknowledge and agree that said Software Product may be deactivated or rendered unusable with or without warning. Upon such deactivation, this EULA will be considered terminated. Prior to deactivation of the Software Product, You may contact Schneider Electric to convert Your field-test license on the Software Product to a standard license governed by this EULA on the final release of said Software Product if and when available from Schneider Electric by paying to Schneider Electric the applicable license fee (if any) and obtaining from Schneider Electric the relevant activation code(s). Corporate license. You may not acquire a Corporate License unless You are a company or a corporation. If You acquire a Corporate License from Schneider Electric, the media on which the Software Product is provided to You shall be configured so that it can only be used to operate the Software Product under a Corporate License; said media shall expressly mention the name of Your company, corporation or Group of Companies as being the licensee of a Corporate License on said Software Product. The media containing the Software Product shall be provided to You separately from the license file �necessary to activate said Software Product; said license file shall be configured so that it can only activate said Software Product under a Corporate License. If and when acquiring a Corporate License, You acquire a concurrent use license under the following limits: - You may install the Software Product for use by Authorized Users from and to the Sites only; - Any use of a Software Product licensed to You under a Corporate License is strictly prohibited by any person who or which is not an Authorized User, and from or to a location which does not qualify as a Site as defined hereunder. If and when acquiring a Corporate License, it is agreed as an express deviation to section 2 a) of this EULA, that: - You acquire the right to copy or reproduce the Software Product including the right to duplicate the media on which the Software Product is provided to You and the related license file; and You acquire the right to permit the use of the Software Product by any company or corporation which is part of Your Group of Companies (as defined hereunder), in both cases, for the sole and restricted purpose of exercising the concurrent use license right granted to You under said Corporate License within the limits set forth hereinabove. This Schedule forms an integral part of this EULA, and all terms and conditions of this EULA which are not expressly deviated under this Schedule, shall apply to You in accordance with the foregoing in addition to the terms and conditions set forth in this Schedule. As used herein and for the purposes of Corporate Licenses only, the following terms shall have the following meaning: - the term ‘Group of Companies’ means any company or corporation: a) in which You directly or indirectly own or control the voting rights attached to more than 50% of the issued ordinary share capital, or (ii) control directly or indirectly the appointment of a majority of directors (or equivalent) of its board of directors (or equivalent body); or b) which directly or indirectly (i) owns or controls the voting rights attached to more than 50% of Your issued ordinary share capital, or (ii) controls the appointment of a majority of directors (or equivalent) of Your board of directors (or equivalent body); or c) which is directly or indirectly owned or controlled by the same company or corporation as You in accordance with sub-case b) above. - the term ‘Authorized Users’ means any end-users at the Sites who use the Software Product; - the term ‘Sites’ means Your facility to which Schneider Electric initially supplied the Software Product as well as all of Your facilities and the facilities of Your Group of Companies, irrespective whether said facilities are located within the same country or several countries. �
nw/61.txt
End-User License Agreement For Grapecity Software IMPORTANT: READ CAREFULLY This End User License Agreement (this “EULA”) contains the terms and conditions that govern your use of the SOFTWARE (as defined below) and imposes material limitations to your rights. You should read this EULA carefully and treat it as valuable property. I. THIS EULA 1 Software Covered by this EULA. This EULA governs your use of the GrapeCity, Inc. (“GC”) software product(s) enclosed or otherwise accompanied herewith (individually and collectively, the “SOFTWARE”). The term “SOFTWARE” includes, to the extent provided by GC: 1) any revisions, updates and/or upgrades thereto; 2) any data, image or executable files, databases, data engines, computer software, or similar items customarily used or distributed with computer software products; 3) anything in any form whatsoever intended to be used with or in conjunction with the SOFTWARE; and 4) any associated media, documentation (including physical, electronic and online) and printed materials (the “Documentation”). 2 This EULA is a Legally Binding Agreement Between You and GC. If you are acting as an agent of a company or another legal person, such as an officer or other employee acting for your employer, then “you” and “your” mean your principal, the entity or other legal person for whom you are acting. However, importantly, even if you are acting as an agent for another, you may still be personally liable for violation of federal and State laws, such as copyright infringement. By signifying your acceptance of the terms of this EULA, you intend to be, and hereby are, legally bound to this EULA to the same extent as if GC and you physically signed this EULA. By installing, copying, or otherwise using the SOFTWARE, you agree to be bound by all the terms and conditions of this EULA. If you do not agree to all of such terms and conditions, you may not install or use the SOFTWARE. If you do not agree with any of the terms herewith and, for whatever reason, installation has begun or has been completed, you should cancel installation or un-install the SOFTWARE, as the case may be. Furthermore, you should promptly return the SOFTWARE to the place of business from which you obtained it in accordance with any return policies of such place of business. Return policies may vary among resellers; therefore you must comply with the return policies of your supplier as you agreed at the point of purchase. If the END-USER LICENSE AGREEMENT FOR GRAPECITY SOFTWARE 1 �place of business from which you purchased the SOFTWARE does not honor a full refund for a period of thirty (30) days from the date of purchase, you may then return the SOFTWARE directly to GC for a refund provided that such returns is authorized within the same thirty (30) day time period. To return the product directly to GC, you must first obtain a Return Authorization Number by contacting GC, and you must forward to GC all items purchased, including the proof of purchase. The return must be postage-prepaid, and post-marked within thirty (30) days from the proof of purchase, time being of the essence. The return option to GC is only available to the original purchaser of an unopened factory packaged item. II. YOUR LICENSE TO DEVELOP AND TO DISTRIBUTE As provided in more detail below, this EULA grants you two licenses: 1) a license to use the SOFTWARE to develop other software products (the “Development License”); and 2) a license to use and/or distribute the Developed Software (the “Distribution License”). These licenses (including the Source Code license described below, individually and collectively, the “Licenses”) are explained and defined in more detail below. 1 Definitions. The following terms have the respective meanings as used in this EULA: • “Network Server” means a computer with one or more computer central processing units (CPU’s) that operates for the purpose of serving other computers logically or physically connected to it, including, but not limited to, other computers connected to it on an internal network, intranet or the Internet. • “Web Server” means a type of Network Server that serves other computers which, are specifically connected to it through either an intranet or the Internet. • “Developed Software” means those computer software products that are developed by or through the use of the SOFTWARE. • “Developed Web Server Software” means those Developed Software products that reside logically or physically on at least one Web Server and are operated (meaning the computer software instruction set is carried out) by the Web Server’s central processing unit(s) (CPU). • “Redistributable Files” means the SOFTWARE files or other portions of the SOFTWARE that are provided by GC and are identified as such in the Documentation for distribution by you with the Developed Software. • “Developer” means a human being or any other automated device using the SOFTWARE in accordance with the terms and conditions of this EULA. • “Developer Seat License” means that each Developer using or otherwise accessing the programmatic interface or the SOFTWARE must obtain the right to do so by purchasing a separate End User License. • “Site” means the single physical location that corresponds to a single physical mailing address, where Developers are licensed to use the licensed SOFTWARE. • “Site License” means the license to use the SOFTWARE granted to all Developers at a given Site under the terms of this EULA. • “Source Code” shall mean computer software code or programs in human readable format, END-USER LICENSE AGREEMENT FOR GRAPECITY SOFTWARE 2 �such as a printed listing of such a program written in a high-level computer language. The term “Source Code” includes, but is not limited to, documents and materials in support of the development effort of the SOFTWARE, such as flow charts, pseudo code and program notes. 2 Your Development License. You are hereby granted a limited, royalty-free, non-exclusive right to use the SOFTWARE to design, develop, and test Developed Software, on the express condition that, and only for so long as, you fully comply with all terms and conditions of this EULA. The SOFTWARE is licensed to you on a Developer Seat License basis. Developer Seat License basis means that you may perform an installation of the SOFTWARE for use in designing, testing and creating Developed Software by a single Developer on one or more computers, each with a single set of input devices, so long as 1) such computer/computers is/are used only by one single Developer at any given time and not concurrently and, 2) the user is the primary User to whom the license has been granted. Conversely, you may not install or use the SOFTWARE on a computer that is a network server or a computer at which the SOFTWARE is used by more than one Developer. You may not network the SOFTWARE or any component part of it, where it is or may be used by more than one Developer unless you purchase an additional Development License for each Developer. You must purchase another separate license to the SOFTWARE in order to add additional developer seats, whether the additional developers are accessing the SOFTWARE in a stand-alone environment or on a computer network. The license rights granted under this Agreement may be limited to a specified number of days after you first install the SOFTWARE unless you supply information required to license or activate your licensed copy, as the case may be, within the time and the manner described during the SOFTWARE setup sequence and/or in the dialog boxes appearing during use of the SOFTWARE. You may need to activate the SOFTWARE through the use of the Internet, email or telephone; toll charges may apply. You may need to re-activate the SOFTWARE if you modify your computer hardware or if you have installed it on a different computer; in some cases the number of activations allowed may be limited and you will have to contact GC for clearance. Product activation is based on the exchange of information between your computer and GC. None of this information contains personally identifiable information nor can they be used to identify any personal information about you or any information you store in your computer. YOU ACKNOWLEDGE AND UNDERSTAND THAT THERE ARE TECHNOLOGICAL MEASURES IN THE SOFTWARE THAT ARE DESIGNED TO PREVENT UNLICENSED OR ILLEGAL USE OF THE SOFTWARE. YOU AGREE THAT GC MAY USE SUCH MEASURES AND YOU AGREE TO FOLLOW ANY REQUIREMENTS REGARDING SUCH TECHNOLOGICAL MEASURES. YOU ACKNOWLEDGE AND AGREE THAT THE SOFTWARE WILL CEASE TO FUNCTION UNLESS AND UNTIL YOU ACTIVATE THE APPLICABLE SOFTWARE SERIAL NUMBER. You agree that GC may audit your use of the SOFTWARE for compliance with these terms at any time, upon reasonable notice. In the event that such audit reveals any use of the SOFTWARE other than in full compliance with the terms of this EULA, you shall reimburse GC for all reasonable expenses related to such audit in addition to any other liabilities you may incur as a result of such non-compliance. END-USER LICENSE AGREEMENT FOR GRAPECITY SOFTWARE 3 � In all cases, (a) you may not use GC’s name, logo, or trademarks to market your Developed Software without the express written consent of GC; (b) you must include the following GC copyright notice in your Developed Software documentation and/or in the “About Box” of your Developed Software, and wherever the copyright/rights notice is located in the Developed Software (“Portions Copyright © GrapeCity, Inc. 1987-2011. All Rights Reserved.”); (c) you agree to indemnify, hold harmless, and defend GC, its suppliers and resellers, from and against any claims or lawsuits, including attorney’s fees that may arise from the use or distribution of your Developed Software; (d) you may use the SOFTWARE only to create Developed Software that is significantly different than the SOFTWARE. 3 Your Distribution License. License to Distribute Developed Software. Subject to the terms and conditions in this EULA, you are granted the license to use and to distribute Developed Software on a royalty-free basis, provided that the Developed Software incorporates the SOFTWARE as an integral part of the Developed Software in machine-language compiled format (customarily an “.exe”, or “.dll”, etc.). You may not distribute, bundle, wrap or subclass the SOFTWARE as Developed Software which, when used in a “design-time” development environment, exposes the programmatic interface of the SOFTWARE. You may distribute, on a royalty-free basis, Redistributable Files with Developed Software only. You may not add or transfer the SOFTWARE serial number to the computer where the Developed Software is installed. Users of the Developed Software may not use the SOFTWARE or the Redistributable Files, directly or indirectly, for development purposes. In particular, if you create a control (or user control) using the SOFTWARE as a constituent control, you are not licensed to distribute the control you created with the SOFTWARE to users for development purposes. 4 Specific Product Limitations. Notwithstanding anything in this EULA to the contrary, if the license you have purchased includes any of the following products, then the following additional limitations will apply: a. ComponentOne Reports for .NET Designer Edition. ComponentOne Reports for .NET Designer Edition includes at least: 1) one dynamic link library file (c1.win.c1reportdesigner.dll) known as C1ReportDesigner Component, 2) one executable file (ReportDesigner.exe) known as C1ReportDesigner Application and, 3) the source code of the C1ReportDesigner Application (the “Report Designer Source Code”). The C1ReportDesigner Component is subject to the general terms and restrictions set forth in this EULA. The C1ReportDesigner Application is an executable file used to design and prepare reports; the C1ReportDesigner Application may be distributed, free of royalties, only in conjunction with the Developed Software. GC hereby also grants you the right to use and to modify the Report Designer Source Code to create derivative works that are based on the licensed Report Designer Source Code. You may distribute such derivative works, solely in object code format and exclusively in conjunction with and/or as a part of the Developed Software. You are expressly not granted the right to distribute, disclose or otherwise make available to any third party the licensed Report Designer Source Code, any portion, modified version or derivative work thereof, in source code format. END-USER LICENSE AGREEMENT FOR GRAPECITY SOFTWARE 4 � GC shall retain all right, title and interest in and to the licensed Report Designer Source Code, and all GC updates, modifications or enhancements thereof. Nothing herein shall be deemed to transfer any ownership or title rights in and to the licensed Report Designer Source Code from GC to you. THE REPORT DESIGNER SOURCE CODE IS LICENSED TO YOU AS IS. GC DOES NOT AND SHALL NOT PROVIDE YOU WITH ANY TECHNICAL SUPPORT FOR YOUR REPORT DESIGNER SOURCE CODE LICENSE. b. VSView Reporting Edition (ActiveX). VSView Reporting Edition includes at least one executable file listed as “VSRptX.exe” (where X indicates the version number i.e.7,8, etc.), known as “Designer.” The file “VSRptX.exe”, or any upgrade or future versions of the Designer, are subject to the restrictions set forth in this EULA and may not be distributed with your Developed Software or in any other way. c. Studio Products. You may not share the component parts of the Studio Products licensed to you with other Developers, nor may you allow the use and/or installation of such components by other Developers. d. Spread COM. Spread COM includes the following software components which you may use under the license to create Developed Software or Developed Web Server Software that are subject to the general terms and restrictions set forth in this EULA: (i) FPSPR80. OCX, (ii) FPSPRU80.OCX, (iii) SPR32D80.DLL, (iv) SPR32DU80.DLL, (v) SPR64D80.DLL, (vi) SPR64DU80.DLL, (vii) SPRIA64D80.DLL, (viii) SPRIA64DU80.DLL, (ix) FARPOINT. SPREAD8DLL32.EXCEL2007.DLL, (x) FARPOINT.SPREAD8UDLL32.EXCEL2007.DLL, (xi) FARPOINT.SPREAD8DLL64.EXCEL2007.DLL, (xii) FARPOINT.SPREAD8UDLL64.EXCEL2007. DLL, (xiii) FARPOINT.SPREAD8DLLIA64.EXCEL2007.DLL, (xiv) FARPOINT.SPREAD8UDLLIA64. EXCEL2007.DLL, (xv) FPIMAGE.DLL. e. Spread for Windows Forms. Spread for Windows Forms includes the following software components which you may use under the license to create Developed Software or Developed Web Server Software that are subject to the general terms and restrictions set forth in this EULA: (i) FarPoint.Win.Spread.FpSpread, (ii) FarPoint.Win.Spread.FormulaTextBox, (iii) FarPoint. Win.Chart.FpChart, (iv) FarPoint.Win.Spread.Design.FpSpreadDesigner, (v) FarPoint.Win. Spread.FormulaProvider, (vi) GrapeCity.Win.MultiRow.GcMultiRow. This product may be licensed as a Site License to you; in which case, Developers at the Site shall be licensed to re-distribute royalty-free, the run time version of the assemblies listed under the section titled Redistribution in the product’s documentation. f. Spread for ASP.NET. Spread for ASP.NET includes the software components listed under the preceding paragraph plus the following software components which are subject to the general terms and restrictions set forth in this EULA: (i) FarPoint.Web.Spread.FpSpread, (ii) FarPoint. Web.Spread.FpTemplateReplacement, (iii) FarPoint.Web. Spread.SpreadDataSource, (iv) FarPoint.Mvc.Spread.FpSpread, (v) FarPoint.Web.Chart.FpChart. This product may be licensed as a Site License to you; in which case, Developers at the Site shall be licensed to re-distribute royalty-free, the run time version of the assemblies listed under the section titled Redistribution in the product’s documentation. END-USER LICENSE AGREEMENT FOR GRAPECITY SOFTWARE 5 �g. Spread WPF-Silverlight. Spread WPF-Silverlight includes the following software components which you may use under the license to create Developed Software or Developed Web Server Software that are subject to the general terms and restrictions set forth in this EULA: (i) GrapeCity.WPF.CalcEngine.dll, (ii) GrapeCity.WPF.Excel.dll, (iii) GrapeCity.WPF.PDF.dll, (iv) GrapeCity.WPF.SpreadSheet.Data.dll, (v) GrapeCity.WPF.SpreadSheet.UI.dll,(vi) GrapeCity. Silverlight.CalcEngine.dll, (vii) GrapeCity.Silverlight.Excel.dll, (viii) GrapeCity.Silverlight.PDF.dll, (ix) GrapeCity.Silverlight.SpreadSheet.Data.dll, (x) GrapeCity.Silverlight.SpreadSheet.UI.dll, (xi) C1.WPF.SpreadSheet.4.dll, (xii) C1.WPF.SpreadSheet.C1Chart.4.dll, (xiii) C1.WPF.SpreadSheet. C1Chart3D.4.dll, (xiv) C1.WPF.SpreadSheet.Toolbar.4.dll, (xv) C1.Silverlight.SpreadSheet. Chart.dll, (xvi) C1.Silverlight.SpreadSheet.Chart3D.dll, (xvii) C1.Silverlight.SpreadSheet..dll, (xviii) C1.Silverlight.SpreadSheet.Imaging.dll, (xix) C1.Silverlight.SpreadSheet.Toolbar.dll, (xx) C1.Silverlight.SpreadSheet..Zip.dll. Spread WPF-Silverlight includes a file commonly known as “Designer” which has been developed with the Fluent Ribbon Control Suite which is subject to the terms of the Microsoft Public License (Ms-PL) (http://fluent.codeplex.com/license). Spread WPF-Silverlight may be licensed as a Site License to you; in which case, Developers at the Site shall be licensed to re-distribute royalty-free, the run time version of the assemblies listed under the section titled Redistribution in the product’s documentation. h. ActiveReports. This product may be licensed as a Site License to you; in which case, Developers at the Site shall be licensed to re-distribute royalty-free, the run time version of the assemblies listed under the section titled ActiveReports redistributable files in the product’s documentation. i. ActiveReports Professional edition. This product may be licensed as a Site License to you; in which case, Developers at the Site shall be licensed to re-distribute royalty-free, the run time version of the assemblies listed under the section titled Active reports Professional redistributable files in the product’s documentation. j. ActiveAnalysis. This product may be licensed as a Site License to you; in which case, Developers at the Site shall be licensed to re-distribute royalty-free, the run time version of the assemblies listed under the section titled ActiveAnalysis redistributable files in the product’s documentation. k. Spread WinRT. Spread WinRT includes the following software components which you may use under the license to create Developed Software or Developed Web Server Software that are subject to the general terms and re-strictions set forth in this EULA: (i) GrapeCity.Xaml. CalcEngine.dll, (ii) GrapeCity.Xaml.Excel.dll, (iii) GrapeCity.Xaml.PDF.dll, (iv) GrapeCity.Xaml. SpreadSheet.Data.dll, (v) GrapeCity.Xaml.SpreadSheet.UI.dll, (vi) C1.Xaml.SpreadSheet.Chart.dll, (vii) C1.Xaml.SpreadSheet.dll, (viii) C1.Xaml.SpreadSheet.Imaging.dll, (ix) C1.Xaml.SpreadSheet. Zip.dll, (x) SharpDX.Direct2D1.dll, (xi) SharpDX.Direct3D11.dll, (xii) SharpDX.dll, (xiii) SharpDX. DXGI.dll. Spread WinRT includes a file commonly known as “Designer” which has been developed with the Fluent Ribbon Control Suite which is subject to the terms of the Microsoft Public License (Ms-PL) (http://fluent.codeplex.com/llicense). END-USER LICENSE AGREEMENT FOR GRAPECITY SOFTWARE 6 �l. Spread Studio. Spread Studio includes the software components found in Spread for Windows Forms, Spread for ASP.NET, Spread WinRT, and Spread WPF-Silverlight and is subject to the terms of use and license specified thereunder. 5 Updates/Upgrades; Studio Subscription. Subject to the terms and conditions of this EULA, the Licenses are perpetual. Updates and upgrades to the SOFTWARE may be provided by GC from time-to-time, and, if so provided by GC, are provided upon the terms and conditions offered at that time by GC in its sole discretion. GC may provide updates and upgrades to the SOFTWARE for free or for any charge, at any time or never, and through its chosen manner of access and distribution, all in GC’s sole discretion. GC licenses certain of its separately-licensed products bundled together in a product suite, called the GC “Studio” product line (the “Studio Products”). The exact separately-licensed products that are bundled into the Studio Products may change from time-to-time in GC’s sole discretion. If the SOFTWARE is identified as a GC “Studio” product, then the SOFTWARE is one of the Studio Products. The SOFTWARE and the Studio Products are revised from time-to-time (meaning, for example, revised with updates, upgrades and, in the case of Studio products, sometimes changes to the mix of products included in the bundle). To receive any such revisions to the SOFTWARE or the Studio Products, as the case may be, you must have a valid SOFTWARE license or a valid Studio subscription. Together with the Licenses, the original purchaser is granted a one-year subscription from the date of purchase. Upon expiration, you must renew your license subscription to continue to be entitled to receive SOFTWARE and/or the Studio Products revisions as the case may be. 6 Serial Number. With your license, you will be issued a unique serial number (the “Serial Number”) used for the activation of the SOFTWARE. The Serial Number is subject to the restrictions set forth in this EULA and may not be disclosed or distributed either with your Developed Software or in any other way. The disclosure or distribution of the Serial Number constitutes a breach of this EULA, the effect of which shall be the immediate termination and revocation of all the rights granted herein. 7 Evaluation Copy. If you are using an “evaluation copy”, “Beta” or “Preview”, specifically designated as such by GC on its website or elsewhere, then the Licenses are limited as follows: a) you are granted a license to use the SOFTWARE for a period of thirty (30) days counted from the day of installation (the “Evaluation Period”); b) upon completion of the Evaluation Period, you shall either i) delete the SOFTWARE from the computer containing the installation, or you may ii) obtain a paid license of the SOFTWARE from GC or any of its resellers; and c) any Developed Software developed with the Evaluation Copy may not be distributed or used for any commercial purpose. III. SOURCE CODE LICENSE As provided in more detail herein, if you separately acquire a license to the SOFTWARE’S Source Code, this EULA grants you a license to use the SOFTWARE’s source code ( the “Source Code”) for purposes END-USER LICENSE AGREEMENT FOR GRAPECITY SOFTWARE 7 �of education and as supplementary documentation of the SOFTWARE (the “Source Code License”). For avoidance of doubt, the Source Code is not routinely delivered with the SOFTWARE and its license must be purchased separately. 1 Your Source Code License. License to Use Source Code of SOFTWARE for purposes of supplementing the documentation provided with the SOFTWARE and education. You acknowledge and agree that the Source Code is confidential property of GC and that it contains valuable and proprietary trade secrets of GC. You agree to make any and all commercially reasonable efforts to warrant the confidentiality of the Source Code; and that such Source Code will only be disclosed to those within your organization with a clear and definitive need to know, and that such individuals will be bound by terms of confidentiality that are no less in scope than those applicable to your own confidential materials. By disclosing the Source Code to an individual within your organization, you assume any and all civil, financial and/or criminal responsibilities for all uses, or misuses of Source Code by any such employee, officer, representative, contractor or other third party. You may only view, and use the Source Code subject to the terms and conditions below: • The Source Code is provided to you and your Developers for the sole purposes of supplementing the documentation of the SOFTWARE and for your education, so as to enable you to understand the operation of the SOFTWARE at a source code level. You expressly do not have, and are not granted the right to use the Source Code to create any derivative works or to modify the SOFTWARE or its Source Code in any way. • Under no circumstances may the Source Code or any portion thereof be distributed, disclosed or otherwise made available to any third party outside of your organization. • GC shall retain all right, title and interest in and to the licensed Source Code, and all GC updates, modifications or enhancements thereof. Nothing herein shall be deemed to transfer any ownership or title rights in and to the licensed Source Code from GC to you. • THE SOURCE CODE IS LICENSED TO YOU AS IS. GC DOES NOT AND SHALL NOT PROVIDE YOU WITH ANY TECHNICAL SUPPORT, OR ANY AUTOMATIC UPDATES OR UPGRADES FOR YOUR SOURCE CODE LICENSE. IV. INTELLECTUAL PROPERTY 1 Copyright. You agree that all right, title, and interest in and to the SOFTWARE (including, but not limited to, any images, photographs, animations, video, audio, music, text, and “applets” incorporated into the SOFTWARE), and any copies of the SOFTWARE, and any copyrights and other intellectual properties therein or related thereto are owned exclusively by GC, except to the limited extent that GC may be the rightful license holder of certain third-party technologies incorporated into the SOFTWARE. The SOFTWARE is protected by copyright laws and international treaty provisions. The SOFTWARE is licensed to you, not sold to you. GC reserves all rights not otherwise expressly and specifically granted to you in this EULA. 2 Backups. You may make a copy of the SOFTWARE solely for backup or archival purposes. Notwithstanding the foregoing, you may not copy the printed Documentation. END-USER LICENSE AGREEMENT FOR GRAPECITY SOFTWARE 8 �3 General Limitations. You may not reverse engineer, decompile, or disassemble the SOFTWARE or any of its constituents, except and only to the extent that applicable law expressly permits such activity notwithstanding this limitation. 4 Software Transfers. You may not rent or lease the SOFTWARE. You may permanently transfer all of your rights under the EULA, provided that you retain no copies, that you transfer all the SOFTWARE (including all component parts, the media and printed materials, any updates, upgrades, this EULA and, if applicable, the Certificate of Authenticity), and that the transferee agrees to be bound by the terms of this EULA. If the SOFTWARE is an update or upgrade, any transfer must include all prior versions of the SOFTWARE. 5 Termination. Without prejudice to any other rights it may have, GC may terminate this EULA and the Licenses if you fail to comply with the terms and conditions contained herein. In such an event, you must destroy all copies of the SOFTWARE and all of its component parts. 6 Export Restrictions. You acknowledge that the SOFTWARE is of U.S. origin. You acknowledge that the license and distribution of the SOFTWARE is subject to the export control laws and regulations of the United States of America, and any amendments thereof, which restrict exports and re-exports of software, technical data, and direct products of technical data, including services and Developed Software. You agree that you will not export or re-export the SOFTWARE or any Developed Software, or any information, documentation and/or printed materials related thereto, directly or indirectly, without first obtaining permission to do so as required from the United States of America Department of Commerce’s Bureau of Industry and Security (“BIS”), or other appropriate governmental agencies, to any countries, end-users, or for any end-uses that are restricted by U.S. export laws and regulations, and any amendments thereof, which include, but are not limited to: Restricted Countries, Restricted End-Users, and Restricted End-Uses. These restrictions change from time to time. You represent and warrant that neither the BIS nor any other United States federal agency has suspended, revoked or denied your export privileges. GC acknowledges that it shall use reasonable efforts to supply you with all reasonably necessary information regarding the SOFTWARE and its business to enable you to fully comply with the provisions of this Section. If you have any questions regarding your obligations under United States of America export regulations, you should contact the Bureau of Industry and Security, United States Department of Commerce, Exporter Counseling Division, Washington DC. U.S.A. (202) 482-4811,http://www.bis.doc.gov. 7 U.S. Government Restricted Rights. The SOFTWARE and documentation are provided with RESTRICTED RIGHTS. You will comply with any requirements of the Government to obtain such RESTRICTED RIGHTS protection, including without limitation, the placement of any restrictive legends on the SOFTWARE, and any license agreement used in connection with the distribution of the SOFTWARE. Manufacturer is GrapeCity, Inc., 201 South Highland Avenue, 3rd Floor, Pittsburgh, Pennsylvania 15206 USA. For solicitations issued by the Government on or after December 1, 1995 and the Department of Defense on or after September 29, 1995, the only rights provided in the software and documentation provided herein shall be those contained in this EULA. Under no circumstances shall GC be obligated to comply with any Governmental requirements regarding the submission of or the request for exemption from submission of cost or pricing data or cost END-USER LICENSE AGREEMENT FOR GRAPECITY SOFTWARE 9 �accounting requirements. For any distribution of the SOFTWARE that would require compliance by GC with the Government’s requirements relating to cost or pricing data or cost accounting requirements, you must obtain an appropriate waiver or exemption from such requirements for the benefit of GC from the appropriate Government authority before the distribution and/or license of the SOFTWARE to the Government. V. WARRANTIES AND REMEDIES 1 Limited Warranty. GC warrants that the original media, if any, are free from defects for ninety (90) days from the date of delivery of the SOFTWARE and that the SOFTWARE shall perform substantially as described in its documentation. GC also warrants that: (i) it has the full power to enter into this Agreement and grant the license rights set forth herein; (ii) it has not granted and will not grant any rights in the Software to any third party which grant is inconsistent with the rights granted to you in this Agreement; and (iii) the Software does not and will not infringe any trade secret, copyright, trademark or other proprietary right held by any third party and does not infringe any patent held by any third party. EXCEPT AS OTHERWISE PROVIDED IN THE PRECEDING SENTENCE, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GC EXPRESSLY DISCLAIMS ANY WARRANTY FOR THE SOFTWARE, DOCUMENTATION AND ANYTHING ELSE PROVIDED BY GC HEREBY AND GC PROVIDES THE SAME IN “AS IS” CONDITION WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SOFTWARE AND DOCUMENTATION REMAINS WITH YOU. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHERS WHICH VARY FROM STATE TO STATE. GC HEREBY REPRESENTS THAT THE SOFTWARE LICENSED HEREWITH IS ONLY INTENDED TO RUN AND OPERATE IN ACCORDANCE WITH ITS DOCUMENTATION, IN THE MICROSOFT VISUAL STUDIO DEVELOPMENT ENVIRONMENT, WHICH IS THE DEVELOPMENT ENVIRONMENT FOR WHICH GC PROVIDES TECHNICAL SUPPORT. NOTWITHSTANDING THE FOREGOING, WHILE THE SOFTWARE MAY RUN AND OPERATE CONSISTENTLY WITH ITS DOCUMENTATION IN OTHER CONTAINERS OR DEVELOPMENT ENVIRONMENTS, WHETHER AS A STAND ALONE SOFTWARE LIBRARY OR AS A NESTED CONSTITUENT OF A CONTROL OR APPLICATION, GC EXPRESSLY MAKES NO SUCH REPRESENTATION. DEVELOPMENT ENVIRONMENTS, APPLICATIONS AND/OR CONTAINERS OTHER THAN MICROSOFT VISUAL STUDIO ARE DEEMED TO BE NON-STANDARD CONTAINERS FOR WHICH DIFFERENT LICENSING TERMS MAY APPLY. SUCH LICENSING TERMS ARE NOT INCLUDED IN THIS EULA AND MAY BE OBTAINED BY CONTACTING GC DIRECTLY. THIS LIMITED WARRANTY SHALL BE VOID AND NULL IF FAILURE OF THE SOFTWARE TO PERFORM SUBSTANTIALLY AS DESCRIBED IN ITS DOCUMENTATION HAS RESULTED FROM AN ACCIDENT, OR THE ABUSE OR MISAPPLCATION OF THE SOFTWARE. 2 Limited Remedy. GC PROVIDES NO REMEDIES OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, FOR ANY SAMPLE APPLICATION CODE, REDISTRIBUTABLE FILES, TRIAL VERSION END-USER LICENSE AGREEMENT FOR GRAPECITY SOFTWARE 10 �AND THE NOT FOR RESALE VERSION OF THE SOFTWARE. ANY SAMPLE APPLICATION CODE, TRIAL VERSION AND THE NOT FOR RESALE VERSION OF THE SOFTWARE ARE PROVIDED “AS IS”. GC’s entire liability and your exclusive remedy under this EULA shall be, at GC’s sole option, either (a) return of the price paid for the SOFTWARE; (b) repair the SOFTWARE through updates distributed online or otherwise in GC’s discretion; or (c) replace the SOFTWARE with SOFTWARE that substantially performs as described in the SOFTWARE documentation, provided that you return the SOFTWARE in the same manner as provided in Section I.2 for return of the SOFTWARE for non-acceptance of this EULA. Any media for any repaired or replacement SOFTWARE will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. THESE REMEDIES ARE NOT AVAILABLE OUTSIDE OF THE UNITED STATES OF AMERICA. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL GC BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFIT, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF GC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IN CERTAIN CASES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. VI. MISCELLANEOUS 1 This is the Entire Agreement. This EULA (including any addendum to this EULA included with the SOFTWARE) is the final, complete and exclusive statement of the entire agreement between you and GC relating to the SOFTWARE. This EULA supersedes any prior and contemporaneous proposals, purchase orders, advertisements, and all other communications in relation to the subject matter of this EULA, whether oral or written. No terms or conditions, other than those contained herein, and no other understanding or agreement which in any way modifies these terms and conditions, shall be binding upon the parties unless entered into in writing executed between the parties, or by other non-oral manner of agreement whereby the parties objectively and definitively act in a manner to be bound (such as by continuing with an installation of the SOFTWARE, etc.). Employees, agents and other representatives of GC are not permitted to orally modify this EULA. 2 You Indemnify GC. You agree to indemnify, hold harmless, and defend GC and its suppliers and resellers from and against any and all claims or lawsuits, including attorney’s fees, which arise out of or result from your distribution of your Developed Software, your Developed Web Server Software or from your breach of any of the terms and conditions of this EULA. 3 Interpretation of this EULA. If for any reason a court of competent jurisdiction finds any provision of this EULA, or any portion thereof, to be unenforceable, that provision of this EULA will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this EULA will continue in full force and effect. Formatives of defined terms shall have the same meaning of the defined term. Failure by either party to enforce any provision END-USER LICENSE AGREEMENT FOR GRAPECITY SOFTWARE 11 �of this EULA will not be deemed a waiver of future enforcement of that or any other provision. Except as otherwise required or superseded by law, this EULA is governed by the laws of the Commonwealth of Pennsylvania, without regard to its conflict of laws principles. The parties consent to the personal jurisdiction and venue of the Commonwealth of Pennsylvania, in the County of Allegheny, and agree that any legal proceedings arising out of this EULA shall be conducted solely in such State. If the SOFTWARE was acquired outside the United States, then local law may apply. However, the application of the U.N. Convention of Contracts for the International Sale of Goods is expressly excluded. The original version of this EULA is the English language version. Any discrepancy or conflict that may arise between the English version of this EULA and those written in any other language shall be resolved and interpreted with reference to the English version, which will always control. END-USER LICENSE AGREEMENT FOR GRAPECITY SOFTWARE 12 �
nw/62.txt
FLEXERA SOFTWARE END-USER LICENSE AGREEMENT Installation IMPORTANT-READ CAREFULLY: This End-User License Agreement (“Agreement”) is a legal contract between you, either (a) an individual user or (b) a business organization (in either case the “Licensee”), and Flexera Software for the Software. As used herein, for users in Japan, “Flexera Software” means Flexera Software GK, a Godo Kaisha organized under the laws of Japan; for users in Europe, Middle East, Africa, or India, “Flexera Software” means Flexera Software Limited, a private company limited by shares and incorporated in England and Wales with company number 6524874; for users in Australia and New Zealand, “Flexera Software” means Flexera Software Pty Ltd. and for users outside of the countries listed above, “Flexera Software” means Flexera Software LLC. By clicking on the “I ACCEPT” button, by opening the package that contains the Software, or by copying, downloading, accessing or otherwise using the Software, Licensee agree to be bound by the terms of this Agreement and Licensee represent that Licensee are authorized to enter into this Agreement on behalf of Licensee’s corporate entity (if applicable). If Licensee does not wish to be bound by the terms of this Agreement, click the “I DO NOT ACCEPT” button, and/or do not install, access or use the Software. DEFINITIONS “Contractor” means any third party employed by Licensee to perform services on behalf of Licensee. “Documentation” means the technical specification documentation generally made available by Flexera Software to its licensees with regard to the Software. “License Level” means the quantitative limitations and unit of measure applicable to the license purchased by Licensee as specified on the applicable invoice. “Licensee Site” means any location owned or leased solely by Licensee or that portion of any shared space, such as a shared data center, attributable solely to Licensee, or in the instance of an employee working remotely, that location from which such employee is working while using Licensee-provided equipment on which the Software may be installed. “Software” means the object code form of the InstallShield software products, as further identified on an invoice. Such products may include InstallShield Express, InstallShield Professional, InstallShield Premier, InstallShield Limited Edition for Visual Studio, Standalone Build, InstallShield Collaboration, Virtualization Pack, MSI Tools, InstallAnywhere Standard, InstallAnywhere Enterprise, InstallAnywhere Collaboration, and InstallAnywhere Cloud Pack. The Software may include features that will limit use of the Software in excess of the License Level. “Standalone Build Licenses” means the Software on the "build server" that is used by automated processes, rather than by an individual user. “Upgrades” means maintenance releases, additions, modifications, and new versions of the Software incorporating such additions and modifications that are either (i) made available to Licensee as part of Support and Maintenance without additional charge (except for Support and Maintenance Fees) or (ii) otherwise provided by Flexera Software. Upgrades provided as a part of Support and Maintenance do not include maintenance releases, additions, or modifications that Flexera Software considers to be a separate product or for which Flexera Software charges all of its customers extra or separately. Installation EULA - 4Jun13 1 �I. EVALUATION AND FREE SOFTWARE The use of Evaluation Software or any Software provided at no charge will be governed by the terms set forth in this Article I, in addition to the General Terms set forth in Article IV. If Licensee has received the Software for purposes of evaluation, regardless of how labeled, the use of the Software is limited to a specified period of time, as detailed in the email accompanying the download instructions, or if not specified in such email, twenty-one (21) days (the “Evaluation Period”). 1. Grant of License. Subject to all of the terms and conditions of this Agreement, Flexera Software grants Licensee: a. For Evaluation Software: during the Evaluation Period, a limited, internal use, non-exclusive, non-transferable license to use the Software solely to evaluate its suitability for Licensee’s internal business requirements at Licensee’s site(s) only. Without limiting the foregoing, Licensee may not use the Software during the Evaluation Period to create publicly distributed computer software or for any other purpose. This license may be terminated by Flexera Software at any time upon notice to Licensee and will automatically terminate, without notice, upon the first to occur of the following: (a) the completion of Licensee’s evaluation of the Software or (b) the expiration of the Evaluation Period. b. For Free Software: a limited, internal use, non-exclusive, non-transferable license to use the Software for Licensee’s internal business requirements at Licensee’s site(s) only. 2. Limited Use Software. Portions of the full-use version of the Software may be withheld or unusable. Full use of the Software may be restricted by technological protections. 3. No Maintenance. Flexera Software will have no Support and Maintenance obligation to Licensee for Evaluation Software or for Software provided at no charge, unless otherwise agreed by the parties. 4. Disclaimer of Warranty. THE SOFTWARE IS PROVIDED ONLY FOR EVALUATION PURPOSES ON AN "AS IS" BASIS. NEITHER FLEXERA SOFTWARE NOR ITS SUPPLIERS MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. LICENSEE MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE LIMITED WARRANTY PERIOD. 5. Limitation of Liability. IN NO EVENT WILL FLEXERA SOFTWARE BE LIABLE FOR ANY DAMAGES, INCLUDING LOST PROFITS OR DATA, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR ANY DATA SUPPLIED THEREWITH, EVEN IF FLEXERA SOFTWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. IN NO CASE WILL FLEXERA SOFTWARE’S LIABILITY FOR ANY DAMAGES HEREUNDER EXCEED FIFTY DOLLARS (US $50). Installation EULA - 4Jun13 2 �II. LIMITED EDITION SOFTWARE FOR VISUAL STUDIO The use of InstallShield Limited Edition for Visual Studio will be governed by the terms set forth in this Article II, in addition to the General Terms set forth in Article IV. Each individual user may only register for a single instance of the Limited Edition Software. 1. Grant of License. InstallShield Limited Edition for Visual Studio is a functionally limited version of the InstallShield software and is intended specifically for use with Visual Studio. Subject to all of the terms and conditions of this Agreement, Flexera Software grants Licensee a limited, internal use, non-exclusive, nontransferable license to use the Software solely for Licensee’s internal business requirements at Licensee’s site(s) only. Flexera Software grants Licensee the right to install and use the software on a single computer to be used exclusively with Visual Studio and the right to install and use up to two (2) additional instances for use within a Team Foundation Server environment. For the purposes of this Section, Software shall also include any Documentation of the Software product provided to Licensee under this Agreement. 2. Disclaimer of Warranty. THE SOFTWARE IS PROVIDED ON AN "AS IS" BASIS. NEITHER FLEXERA SOFTWARE NOR ITS SUPPLIERS MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. LICENSEE MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE LIMITED WARRANTY PERIOD. 3. Limitation of Liability. IN NO EVENT WILL FLEXERA SOFTWARE BE LIABLE FOR ANY DAMAGES, INCLUDING LOST PROFITS OR DATA, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR ANY DATA SUPPLIED THEREWITH, EVEN IF FLEXERA SOFTWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. IN NO CASE WILL FLEXERA SOFTWARE’S LIABILITY FOR ANY DAMAGES HEREUNDER EXCEED FIFTY DOLLARS (US $50). Installation EULA - 4Jun13 3 �III. ALL OTHER EDITIONS OF THE SOFTWARE The use of all other editions of the Software will be governed by the terms set forth in this Article III, in addition to the General Terms set forth in Article IV. 1. License. a. Grant of License. Subject to all of the terms and conditions of this Agreement and upon Licensee’s payment of the fees shown on the invoice and acceptance of this Agreement, Flexera Software grants Licensee a non-transferable, non-sublicensable, non-exclusive license to use Software for internal purposes at Licensee’s site(s) only, but only in accordance with (a) the Documentation, (b) this Agreement and (c) the License Level. For the purposes of this Section, Software shall also include any Documentation and any Upgrades provided to Licensee under this Agreement. For Software that will be used in a service provider role, the terms of Addendum 1 shall apply; licenses not identified as service provider licenses on an invoice may not be used in a service provider capacity. i. ii. b. If Licensee has a license to the InstallAnywhere Collaboration or InstallAnywhere Enterprise, it may use the Software for the purposes of creating unit test installations for its own exclusive use. Licensee may use the Software as a plug-in to the Eclipse Open Source IDE. Flexera Software is not licensing to Licensee any right, title, and interest with respect to the Eclipse Open Source IDE; Licensee’s use of the Eclipse Open Source IDE is subject to Licensee’s acceptance of the terms and conditions of the end-user license agreement from Eclipse Foundation for that product. If Licensee has licensed the InstallAnywhere Standalone Build Node-Lock Software, Licensee may install and use one copy of the Software on a single computer residing on Licensee’s premises only for Licensee’s internal business purposes. License Models. Licensee may purchase either a node-locked or concurrent license, which will be identified on the applicable order confirmation. i. Node-Locked Licenses. If Licensee has licensed Software on a node-locked basis, Licensee may install and use one instance of the Software on a single computer either physically installed or on a virtual image on that computer only at Licensee’s site(s) for Licensee’s internal business purposes only in accordance with the License Level. A node-locked license is limited to use by a single individual on a single computer or virtual image; Licensee may not install the Software on a shared computer. Copying a virtual image for the purposes of using the image either simultaneously or as a replacement on another machine is strictly prohibited. ii. Concurrent Licenses. If Licensee has licensed on a concurrent basis, Licensee may install the Software on any machine at Licensee’s site(s) for Licensee’s internal business purposes only in accordance with the License Level. All machines using the Software must have the ability to communicate with a license server to be authorized to use the Software. The InstallShield Integrated Development Environment and the InstallAnywhere IDE shall not be used in automated build processes on a separate machine. c. Standalone Build Licenses: The copy of the Software on the "build server" is used by automated processes, rather than by an individual user. d. Installation and Copies. Licensee may install on Licensee's computers for use only by Licensee's employees and Contractors as many instances of the Software as is designated in the applicable invoice. Licensee may not make copies of the Software unless otherwise set forth in an applicable invoice. Notwithstanding the foregoing, Licensee may make a copy of the Software for back-up purposes. e. Use by Contractors. Subject to the terms and conditions of this Agreement, Licensee’s Contractors may use the licenses at a Licensee site only, provided that (a) such use is only for Licensee’s benefit, (b) Licensee agrees to remain responsible for each such Contractor’s compliance with the terms and conditions of this Agreement and (c) upon request Licensee will identify each such Contractor to Flexera Software. Use of Installation EULA - 4Jun13 4 �the Software by the Contractors and Licensee in the aggregate must be within the License Level set forth in the applicable invoice. f. License Restrictions. Licensee shall not (and shall not allow any third party to): i. use or apply the Try and Die or Try and Buy functionality for the benefit of any software products that are not owned by Licensee; ii. decompile, disassemble, or otherwise reverse engineer the Software or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Software by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions, and then only with prior written notice to Flexera Software); iii. except as expressly permitted in this Agreement, distribute, sell, sublicense, rent, lease or use the Software (or any portion thereof) for time sharing, service bureau, hosting, service provider or like purposes; iv. remove any product identification, proprietary, copyright or other notices contained in the Software, including but not limited to any such notices contained in the physical and/or electronic media or Documentation, in the Setup Wizard dialog or “about” boxes, in any of the runtime resources and/or in any web-presence or web-enabled notices, code or other embodiments originally contained in or otherwise created by the Software, or in any archival or back-up copies, if applicable; v. modify any part of the Software, create a derivative work of any part of the Software, or incorporate the Software into or with other software, except to the extent outlined in the Documentation or expressly authorized in writing by Flexera Software; or vi. publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software. 2. Upgrades. Upgrades, if provided to Licensee, may be licensed to Licensee by Flexera Software with additional or different terms and conditions. Upgrades may be used only by the Licensee of the original version of the Software that is being upgraded. After installation of an Upgrade, Licensee may continue to use the prior version(s) of the Software in accordance with the terms and conditions applicable to such version, provided that (i) the prior version(s) may only be used by the Licensee of the Upgrade; (ii) Licensee acknowledges that any obligation Flexera Software may have to support the prior version(s) may be ended upon the availability of the Upgrade. 3. Ownership. Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided herein, Flexera Software and its suppliers have and will retain all rights, title and interest (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Software (including the Documentation) and all copies, modifications to, and derivative works based upon, the Software. Licensee acknowledges that it is obtaining only a limited license right to the Software and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to Licensee under this Agreement or otherwise. 4. Payment Terms/Shipments. For users in Japan, all fees are in non-refundable Japanese Yen. For users in Europe, Middle East, Africa, or India, all fees are in the currency outlined in the quote/invoice and are nonrefundable. For Licensees in New Zealand or Australia, all fees are in non-refundable Australian Dollars. For users in any region not outlined, all fees are in non-refundable US Dollars. Fees are due within thirty (30) days Installation EULA - 4Jun13 5 �of the date of the invoice. Licensee shall be responsible for all taxes, withholdings, duties and levies arising from the order (excluding taxes based on the net income of Flexera Software). Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less. All Software and Documentation shall be delivered by electronic means unless otherwise specified on the applicable invoice. All shipments of any media will be FOB Origin. 5. Taxes. Fees do not include taxes. If Flexera Software is required to pay any sales, use, GST, VAT, or other taxes in connection with Licensee’s order, other than taxes based on Flexera Software’s income, such taxes will be billed to and paid by Licensee. Licensee will make all payments of fees to Flexera Software free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of fees to Flexera Software will be Licensee’s sole responsibility and consequently the amount of such fees will be increased such that the net fee received by Flexera Software will be the same as if such withholding taxes were not imposed, and Licensee will provide Flexera Software with official receipts issued by the appropriate taxing authority, or such other evidence as the Flexera Software may reasonably request, to establish that such taxes have been paid. 6. Support and Maintenance. a. Support and Maintenance. Flexera Software shall provide the level of support and maintenance services (“Support and Maintenance”) set forth on the applicable invoice, if any, during such period as Licensee has paid the applicable fee. Support and Maintenance will be provided in accordance with Flexera Software’s then-current Support and Maintenance terms. b. Supported Versions. Support and Maintenance is available in accordance with Flexera Software’s Life Cycle and End of Life Policy, which may be found at http://www.flexerasoftware.com/support/eol/end-oflife-policy.htm. c. Exclusions. Flexera Software will have no Support and Maintenance obligation to Licensee: (a) at the end of any annual Support and Maintenance period unless Licensee elects to obtain additional Support and Maintenance by paying an annual Support and Maintenance renewal fee; (b) where Licensee is using a version of the Software that is not the then-current or previous major release or an otherwise unsupported version in accordance with Flexera Software’s End of Life policy; (c) where the Software has been modified by Licensee or any third party or by Flexera Software at Licensee’s request; or (d) for any evaluation, beta or other Software provided at no charge. Renewals. In the event Licensee elects not to obtain or renew Support and Maintenance, Licensee may retain the Software and Documentation but will have no further right to Support and Maintenance for the Software. If Licensee wishes to reinstate lapsed Support and Maintenance, Licensee may do so only within ninety (90) days from expiration of the Support and Maintenance term and by paying Flexera Software an amount equal to the then-applicable annual fee plus one-hundred fifty percent (150%) of the fees that would have been due had Licensee remained enrolled during the lapse period. Support and Maintenance may be renewed for the first annual renewal period for the same amount paid in the first year. d. 7. Warranty. a. Limited Software Performance Warranty. Flexera Software warrants to Licensee that for a period of ninety (90) days from initial delivery of the Software to Licensee (the “Warranty Period”) the Software shall operate in substantial conformity with the Documentation. Flexera Software does not warrant that Licensee’s use of the Software will be uninterrupted or error-free or that any security mechanisms implemented by the Software will not have inherent limitations. Flexera Software’s sole liability (and Licensee’s exclusive remedy) for any breach of this warranty shall be, in Flexera Software’s sole discretion, to use commercially reasonable efforts to provide Licensee with an error-correction or workaround which corrects the reported non-conformity, to replace the non-conforming Software with conforming Software, or if Flexera Software determines such remedies to be impracticable within a reasonable period of time, to terminate the Agreement and refund the license fee paid for the Software. Installation EULA - 4Jun13 6 �Flexera Software shall have no obligation with respect to a warranty claim unless notified of such claim within the Warranty Period. 8. 9. b. Exclusions. The limited warranties set forth in this Section 7 shall not apply: (a) if the Software is used with hardware or software not specified in the Documentation; (b) if any modifications are made to the Software by Licensee or any third party or by Flexera Software at Licensee’s request; (c) to defects in the Software due to accident, abuse or improper use by Licensee; or (d) to items provided on a no charge or evaluation basis. c. Disclaimer. THE WARRANTIES IN THIS SECTION 7 ARE LIMITED WARRANTIES AND EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7, THE SOFTWARE IS PROVIDED “AS IS”. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7, NEITHER FLEXERA SOFTWARE NOR ITS SUPPLIERS MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. LICENSEE MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE LIMITED WARRANTY PERIOD. Limitation of Liability. a. NEITHER FLEXERA SOFTWARE NOR ITS SUPPLIERS, IF ANY, SHALL BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR FOR DAMAGE TO SYSTEMS OR DATA, EVEN IF FLEXERA SOFTWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FLEXERA SOFTWARE'S LIABILITY FOR ANY DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED THE AMOUNT OF LICENSE FEES THAT LICENSEE HAS PAID TO FLEXERA SOFTWARE. b. FOR USERS WITHIN EUROPE, THE MIDDLE EAST, AFRICA, OR INDIA, NO PERSON WHO IS NOT A PARTY TO THIS AGREEMENT SHALL BE ENTITLED TO ENFORCE ANY TERMS OF THE SAME UNDER THE CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999. c. FLEXERA SOFTWARE DOES NOT LIMIT OR EXCLUDE ITS LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE. Termination. Licensee’s license may be terminated by Flexera Software if (a) Licensee fails to make payment and/or (b) Licensee fails to comply with the terms of this Agreement within ten (10) days after receipt of written notice of such failure. In the event of termination, Licensee must cease using the Software, destroy all copies of the Software (including copies in storage media), if applicable, and certify such destruction to Flexera Software. This requirement applies to all copies in any form, partial or complete. Upon the effective date of any termination, Licensee relinquishes all rights granted under this Agreement. If Licensee continues to use the Software after any termination of the applicable license under this Agreement, Flexera Software reserves the right to all remedies at law, including, but not limited to, reporting of such prohibited use to applicable law enforcement agencies and report of such prohibited use to anti-piracy agencies. 10. Verification/Audits. On Flexera Software’s reasonable request, Licensee will furnish Flexera Software with a signed statement confirming whether the Software is being used by Licensee in accordance with this Agreement. Further, during the term of this Agreement and for a period of one (1) year thereafter, with prior reasonable notice of at least five (5) days, Flexera Software may audit Licensee for the purpose of verifying the information provided by Licensee under this Agreement, and for the purpose of verifying that Licensee is Installation EULA - 4Jun13 7 �conforming to the terms of this Agreement. Any such audit shall be conducted during regular business hours at Licensee’s facilities and shall not unreasonably interfere with Licensee’s business activities. If an audit reveals an underpayment or that the Licensee’s usage is greater than the License Level, then the Licensee shall immediately pay the difference in License fees and, if applicable, Support and Maintenance fees to bring the License Level into compliance. If an audit reveals that (i) Licensee has intentionally misrepresented its usage of the Software, (ii) Licensee materially breached this Agreement, or (iii) the Usage Level is more than 5% over the License Level, then Licensee shall pay Flexera Software’s reasonable costs of conducting the audit in addition to any fees due to Licensee’s misrepresentation or material breach. Audits shall be conducted no more than once annually. 11. Use of Try and Die Functionality. If Licensee has licensed the Premier edition of the Software, Licensee may internally access and use the functionality labeled “Try and Die” solely for the purposes of applying the Try and Die functionality processes and/or restrictions to Licensee’s products and distributing such products to Licensee’s end users for their trial purposes for a pre-determined period of time. Notwithstanding the foregoing, Licensee agrees that the total revenue from Licensee’s products utilizing the Try and Die functionality will not exceed US$10,000,000. Each product that is managed by a unique product version key/packaging license is considered to be a separate product hereunder. A product version key/packaging license identifies a protected trial product and allows the end user to unprotect, unpack and use a protected product. 12. Activation Capabilities. For existing users of the InstallShield Activation Service, should Licensee elect to access and use the InstallShield Activation Service (which can only be used in conjunction with the Try and Buy functionality of the product), the terms and conditions at http://www.installshield.com/products/installshield/activationservice/info/agreement.asp will apply to Licensee’s use of the service and will supplement Licensee’s use of the Software hereunder. 13. Dual-Media Software. Licensee may receive the Software in more than one medium (electronic and on a DVD, for example). Receipt of the Software in more than a single manner (electronic or on a DVD, for example) does not expand the license rights granted to Licensee hereunder. Licensee’s use of the Software is limited to the number of licenses (instances) that Licensee has acquired overall, regardless of number or type of media on which it has been provided. Installation EULA - 4Jun13 8 �IV. GENERAL TERMS The terms set forth in this Article IV shall apply to all Software licensed under this Agreement. 1. Assignment/Transfer of Software. Licensee may not, by operation of law or otherwise, transfer any license rights or other interests in Evaluation Software, Limited Edition Software, or Software labeled “Not for Resale” or “NFR.” Licensee may transfer a license granted hereunder, on a permanent basis, provided (i) that such transfer is the result of a merger, acquisition or other corporate action (such as a divestiture), (ii) Licensee permanently and wholly transfers all Licensee’s rights and obligations under this Agreement; (iii) Licensee retains no instances or copies (whole or partial); (iv) Licensee permanently and wholly transfers all of the Software (including component parts, media, printed materials, upgrades, prior versions, and authenticity certificates); and (v) the transferee agrees to abide by all the terms of this Agreement. Licensee may not transfer this license or the Software directly or indirectly for any other reason without Flexera Software’s prior written consent, which may be withheld for any reason. Transfers that are the result of employee turnover or reassignment are allowed, provided that such transfers do not occur more frequently than annually. 2. Usage Data. Licensee understand that Flexera Software may utilize technology that gathers information about Licensee’s computer system, however, such data is used solely for the purpose of understanding machine types and other system-oriented information and does not contain any personally identifiable information of Licensee. 3. Unauthorized Use and Validation of Use. IN ORDER TO PROTECT THE SOFTWARE FROM UNAUTHORIZED USE AND IN ORDER TO CONFIRM LICENSEE’S COMPLIANCE WITH THE LICENSE GRANTS AND RESTRICTIONS SET FORTH IN THIS AGREEMENT, THE SOFTWARE CONTAINS A VALIDATION PROCEDURE THAT MAY TRANSMIT LICENSEE’S IP ADDRESS AND/OR APPLICABLE LICENSE KEY RELATING TO THE SOFTWARE TO FLEXERA SOFTWARE. IF THE SOFTWARE DETECTS ANY VIOLATION OF THE TERMS OF THIS AGREEMENT, LICENSEE MAY BE CONTACTED BY FLEXERA SOFTWARE REGARDING LICENSEE’S USE OF THE SOFTWARE AND/OR LICENSEE MAY BE UNABLE TO USE THE SOFTWARE AND/OR CREATE UNRESTRICTED INSTALLER PRODUCTS UNTIL THE PROBLEM IS CORRECTED. IF LICENSEE IS UNABLE TO USE THE SOFTWARE AND/OR CREATE UNRESTRICTED INSTALLER PRODUCTS, LICENSEE SHOULD IMMEDIATELY CONTACT FLEXERA SOFTWARE. 4. Redistributable Files. The Software component parts may not be separated for use on more than one computer, except as set forth in this Agreement. Licensee may copy the files specifically identified in the documentation as “redistributables” and redistribute such files to Licensee’s end users of Licensee’s products, provided that: (a) such products add primary and substantial functionality to the redistributables, (b) all copies of the redistributables must be exact and unmodified; and (c) Licensee grants Licensee’s end users a limited, personal, non-exclusive and non-transferable license to use the redistributables only to the extent required for the permitted operation of Licensee’s products and not to distribute them further. Licensee will reproduce with the redistributables all applicable trademarks and copyright notices that accompany the Software, but Licensee may not use Flexera Software’s name, logos or trademarks to market Licensee’s products. 5. Third-Party Code. The Software may contain or be provided with components subject to the terms and conditions of third party software licenses (“Third Party Software”). Third Party Software may be identified in the Documentation, or Flexera Software may provide a list of the Third Party Software for a particular version of the Software to Licensee upon Licensee’s written request. To the extent required by the license that accompanies the Third Party Software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Third Party Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering. Licensee is solely responsible for complying with the terms and conditions of such Third Party Software. Installation EULA - 4Jun13 9 �6. Controlling Law. For users in Japan, this Agreement will be governed by the laws of Japan; for users in Europe, Middle East, Africa, or India, this Agreement will be governed by the laws of England and Wales and Licensee submit to the jurisdiction of the courts of England and Wales; for Licensees in New Zealand or Australia this Agreement will be governed by the laws of the State of Victoria, Australia; for users outside the countries listed above, this Agreement will be governed by the laws of California, USA, excluding conflicts of law. This Agreement is not subject to the United Nations Convention on Contracts for the Sale of Goods. 7. Survival. Sections I.4 (Disclaimer), I.5 (Limitation of Liability), II.2 (Disclaimer), II.3 (Limitation of Liability), III.1.e (License Restrictions), III.3 (Ownership), III.4 (Payment and Delivery), III.7.c (Disclaimer), III.8 (Limitation Liability), III.9 (Termination), and all of this Article IV (General Terms), as well as any provision that by the very nature of which should survive shall survive any termination or expiration of this Agreement. 8. Confidential Information. Each party agrees that all business and/or technical information that is received by a party (“Receiving Party”) from the disclosing party (“Disclosing Party”) that a) is in written, recorded, graphical or other tangible form and is marked "Confidential" or “Trade Secret” or similar designation; b) is in oral form and identified by the Discloser as "Confidential" or “Trade Secret” or similar designation at the time of disclosure, with subsequent confirmation in writing within thirty (30) days of such disclosure; or c) the nature of which could reasonably be construed to be confidential shall be considered the confidential property of the Disclosing Party (“Confidential Information”). Any software, documentation or technical information provided by Flexera Software (or its agents), performance information relating to the Software, and the terms of this Agreement shall be deemed Confidential Information of Flexera Software without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information that: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (d) is independently developed by employees of the Receiving Party who had no access to such information; or (e) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law. 9. Company Name and Logo. Flexera Software may include Licensee’s company name and logo in a list of Flexera Software customers and/or partners. 10. Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect. 11. Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Licensee will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect. 12. Choice of Language. The original of this Agreement has been written in English. Licensee waives any rights it may have under the law of its country to have this Agreement written in the language of that country. Installation EULA - 4Jun13 10 �13. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent. 14. U.S. Government End-Users. The Software is commercial computer software. If the user or licensee of the Software is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Software, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Software was developed fully at private expense. All other use is prohibited. Licensee shall flow-down this provision to any of its authorized sublicensees (including but not limited to any Licensee Products, as applicable). 15. Export Compliance. Licensee acknowledges that the Software is subject to export restrictions by the United States government and import restrictions by certain foreign governments. Licensee shall not and shall not allow any third-party to remove or export from the United States or allow the export or re-export of any part of the Software or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terroristsupporting country; (b) any end user who has been prohibited from participating in United States export transactions by any federal agency of the United States government; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. Licensee agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Software is further restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology, or for terrorist activity, without the prior permission of the United States government. 16. Third-Party Code. The Software may contain or be provided with components subject to the terms and conditions of “open source” software licenses (“Open Source Software”). Open Source Software may be identified in the Documentation, or Flexera Software shall provide a list of the Open Source Software for a particular version of the Software to Licensee upon Licensee’s written request. To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Open Source Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering. 17. Equal Opportunity. Flexera Software agrees that it does not and will not discriminate against any employee or applicant for employment because of race, color, religion, age, sex, handicap, national origin, or sexual orientation. 18. Ambiguities. Each party and its counsel have participated fully in the review and revision of this Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in interpreting this Agreement. 19. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Installation EULA - 4Jun13 11 �Addendum 1 Service Provider Addendum This addendum applies to licenses of Software that Licensee purchases to use in the provision of services to its Customers, as defined below. Any terms not defined in this Addendum shall have the meanings ascribed to them in the Agreement. Unless otherwise set forth herein, the provisions of this Addendum shall be in addition to, and not in lieu of, the terms included in the main body of the Agreement. 1. Definitions. “Customers” means the customers of Licensee for which Licensee has purchased a license to use the Software to provide Software Engineering Services. Licensee shall be solely responsible for the Customer relationship; Flexera Software shall have no obligations whatsoever to Customers. “Software Engineering Services” means those services which Licensee provides to Customers utilizing the Software. “User” means the individuals within Licensee’s organization who access the Software for the purposes of designing and developing software installations. 2. Software License. Subject to all of the terms and conditions of this Agreement and notwithstanding the license grant in Section III.1.a. of the Agreement, during the term specified on the applicable invoice, Flexera Software grants Licensee a nonexclusive, nontransferable license to use the Software and any related Documentation and Updates in accordance with the scope of the license defined herein, for the purpose of providing Software Engineering Services to Licensee’s Customers (a “License”). Unless otherwise set forth in an Order Schedule, Licensee may install and operate the Software and Updates only on computers owned or leased by Licensee, located at (i) a Licensee Site or (ii) at a Customer location. 3. Licensee Obligations. 4. 3.1. Representations. Licensee shall not make any representations, guarantees or warranties of any type with respect to the specifications, features, capabilities or otherwise concerning the Products which are in addition to or inconsistent with those set forth in the product descriptions or promotional materials delivered by Flexera Software to Licensee hereunder. In no event shall Licensee make any representation, warranty or guarantee by or on behalf of Flexera Software. Licensee is not to re-brand or otherwise represent the software as anything other than the product name specified by Flexera Software LLC without express written approval from Flexera Software. This shall include, but not be limited to, reports, splash screens, documentation and all other intellectual property. 3.2. Business Practices. Licensee agrees not to engage in any deceptive, misleading, illegal or unethical practices that may be detrimental to Flexera Software or its Products and agrees to comply with all applicable federal, state and local laws and regulations (including, without limitation, data protection, privacy and import and export compliance laws and regulations) in connection with its performance under this Agreement. 3.3. Licensee Indemnity. Licensee will defend, indemnify and hold harmless Flexera Software from and against any loss, cost, liability or damage, including attorneys’ fees, for which Flexera Software becomes liable arising from or relating to: (a) any breach by Licensee of any term of this Agreement, (b) the issuance by Licensee of any warranty or representation not authorized in writing by Flexera Software or (c) any other act or omission of Licensee in connection with the marketing or distribution of the Software under this Agreement. 3.4. Software Engineering Services Site. Upon request, Licensee shall identify the site of the performance of the Software Engineering Services. Trademarks. Licensee may use Flexera Software’s trademarks in connection with the Software. All displays of Flexera Software’s trademarks that Licensee intends to use will conform to reasonable guidelines provided Installation EULA - 4Jun13 12 �from time to time by Flexera Software. Flexera Software will have the right to approve all usage by Licensee of its trademarks. Licensee will not use any of Flexera Software's trademarks in conjunction with another trademark. Installation EULA - 4Jun13 13 �
nw/63.txt
END-USER LICENSE AGREEMENT CUSTOMER DATA: THE PRIVACY OF CUSTOMER DATA IS PROTECTED AND SECURE WITH THIS LICENSED PRODUCT THROUGH THE AUTHORIZATION OF THIS END USER LICENSE AGREEMENT. ALL DEALER DATA ACCESSED WILL BE SAFEGUARDED AS REQUIRED UNDER ALL APPLICABLE PRIVACY AND DATA SECURITY LAWS, INCLUDING IMPLEMENTING AND MAINTAINING ADMINISTRATIVE, TECHNICAL, AND PHYSICAL SAFEGUARDS AND SUCH SAFEGUARDS SHALL, AT A MINIMUM, COMPLY WITH APPLICABLE FEDERAL, STATE, AND LOCAL LAWS AND REGULATIONS. LICENSED PRODUCT WILL NOT ENHANCE, STORE, SHARE, DISCLOSE, SELL, DISTRIBUTE, CREATE DERIVATIVE WORKS FROM, OR USE NONPUBLIC PERSONAL INFORMATION (AS THAT TERM IS DEFINED UNDER THE GLB ACT) OR ANY OTHER DEALER DATA FOR ANY REASON, EXCEPT AS NECESSARY, AND FOR THE TIME NECESSARY, TO PROVIDE THOSE SERVICES DEALER HAS SEPARATELY AGREED TO. NOTICE: READ THIS END-USER LICENSE AGREEMENT CAREFULLY BEFORE INSTALLING, ACESSING, COPYING OR USING THE LICENSED PRODUCT ACCOMPANYING THIS AGREEMENT. CLICKING ON THE “I ACCEPT” BUTTON BELOW, OR IN ANY OTHER WAY INSTALLING, ACCESSING, COPING OR USING THE LICENSED PRODUCT, CREATES A LEGALLY ENFORCEABLE CONTRACT AND CONSTITUTES ACCEPTANCE OF ALL TERMS AND CONDICITIONS OF THIS AGREEMENT WITH MODIFICATION. RETURN: IF YOU ARE NOT AUTHORIZED TO ENTER INTO THIS AGREEMENT, OR IF YOU DO NOT AGREE TO ALL OF THE TERMS AGREEMENT, THEN YOU MUST CLICK ON THE “CANCEL” BUTTON BELOW, AND YOU MUST NOT INSTALL, ACCESS, COPY OF USE THE LICENSED PRODUCT. This End-User License Agreement (the “Agreement”), effective as of the date you accept the terms hereof (the “Effective Date”), is entered into between Superior Integrated Solutions, Inc., a New Jersey corporation located at 517 US Route 1 South Suite 2210, Iselin, NJ 08830, (“Licensor”) and Licensee. The parties agree as follows: 1. Definitions Licensee means the User, together with the business or other entity for which the Licensed Products are obtained. Software means Licensor computer program (in object code) accompanying this Agreement. �Updates means, if applicable, any patch, update or new version of the Software delivered to Licensee pursuant to the Support Services. Licensed Products means, collectively, the Software, Content, and Updates, and all related Documentation. User means either Licensee (if Licensee is an individual) or any Licensee employee or contractor who is authorized by Licensee to use the Licensed Products. Licensee agrees to be responsible for the acts and omissions of its Users. 2. LICENSE 2.1 Licensed Products. Subject to all terms and conditions in this Agreement, Licensor grants Licensee a nonexclusive, nontransferable, nonsublicensable right and license to have the User use the Licensed Products without modification. 2.2 Limitations. Licensed Products may only be used for Licensee’s internal business purposes, but not by more than the number of authorized Users for which all fees have been paid by or on behalf of Licensee. Use of any copy of the Licensed Products shall otherwise comply with the terms and conditions in this Agreement. 2.3 License Control. License acknowledges that the Licensed Products may contain code or require devices that detect or prevent unauthorized use or, or disable, the Licensed Products, and Licensee agrees not to circumvent or disable such code or devices. 2.4 Payments. Licensee shall pay (or cause to be paid to) Licensor any and all initial and recurring fees for the Licensed Products, in the amounts and at the times agreed by Licensor during the purchase process. 3. SUPPORT SERVICES 3.1 Support. Licensor will use commercially reasonable efforts to provide Licensee with maintenance and support for the Licensed Products in accordance with its standard practices (as amended form time to time, Support Services). 3.2 Updates. Licensor will provide Licensee with any Update that it makes generally available to its other licensees that have purchased the same level of support. 4. CONFIDENTIALITY 4.1 Scope. The term Confidential Information means all trade secrets, know-how, software and other financial, business or technical information of Licensor or any of its suppliers that is disclosed by or for Licensor in relation to this Agreement, but not including any information Licensee can demonstrate is (a) rightfully furnished to it without restriction by a third party without breach of any obligation to the Licensor, (b) generally available to the public without breach of this Agreement or (c) independently developed by it without reliance on such information. The Licensed Products are Licensor’s Confidential Information. Licensing Agreement 2 �4.2 Confidentiality. Except for the specific rights granted by this Agreement, Licensee shall not possess, use or disclose any Confidential Information without Licensor’s prior written consent, and shall use reasonable care to protect the Confidential Information. Licensee shall be responsible for any breach of confidentiality by its employees. 5. PROPRIETARY RIGHTS 5.1 Restrictions. Except and only to the extent expressly specified in this Agreement, Licensee shall not (a) use any Confidential Information to create any software, content or documentation that is similar to any Licensed Product, (b) disassemble, decompile, reverse engineer or otherwise try to discover any source code or underlying structures, ideas or algorithms of the Licensed Products or encryption for the Content (except and only to the extent these restrictions are expressly prohibited by applicable statutory law), (c) encumber, lease, rent, loan, sublicense, transfer or distribute any Licensed Product, (d) copy, adapt, merge, create derivative works of, translate, localize, port or otherwise modify any Licensed Product, (e) use the Licensed Products in an automated process, (f) use the Licensed Products, or allow the transfer, transmission, export or re-export of all or any part of the Licensed Products or any product thereof, in violation of any export control laws or regulations of the United States or any other relevant jurisdiction or (g) permit any third party to engage in any of the foregoing proscribed acts. Licensee shall not use the Licensed Products for the benefit of any third party (e.g., time-share or service bureau arrangement) without Licensor’s prior written consent, at its discretion. 5.2 No Implied License. Except for the limited rights and license expressly granted hereunder no other license is granted, no other use is permitted and Licensor (and its suppliers) shall retain all right, title and interest in and to the Licensed Products ( and all patent rights, copyright rights, trade secret rights and all other intellectual property and proprietary rights embodied therein). 5.3 Third Party Software. The Licensed Products may operate or interface with software or other technology (In-Licensed Code) that is in-licensed form, and owned by, third parties (Third Party Licensors). Licensee agrees that (a) it will use In-Licensed Code in accordance with this Agreement and any other restrictions specified in the applicable license set forth or referenced in the Documentation, (b) no Third Party Licensor makes any representation or warranty to Licensee concerning the In-Licensed Code or Licensed Products and (c) no Third Party Licensor will have any obligation or liability to Licensee as a result of this Agreement or Licensee’s use of the In-Licensed Code or Licensed Products. 6. WARRANTY DISCLAIMERS THE LICENSED PRODUCTS AND SUPPORT SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. LICENSOR DOES NOT WARRANT THAT THE LICENSED PRODUCTS OR SUPPORT SERVICES WILL MEET LICENSE’S REQUIREMENTS OR THAT THEY WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTEN PERMITTED BY LAW, LICENSOR HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR Licensing Agreement 3 �IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE LICENSED PRODUCTS AND SUPPORT SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. 7. INFRINGEMENT If a third party initiates a formal lawsuit against Licensee, claiming that the Licensed Products directly infringe any U.S. copyrights or misappropriate any trade secrets, Licensor will pay the costs and damages that a court (having final jurisdiction) awards against Licensee in the lawsuit, to the extent that the costs and damages directly relate to the claim. Alternatively, Licensor will pay the costs and damages that Licensor agrees to in a written settlement of the lawsuit. Licensor’s obligations under this Section apply only if Licensee (a) promptly notifies Licensor of the lawsuit in writing, (b) allows Licensor to control the defense of the lawsuit and any related settlement negotiations and (c) cooperates with Licensor and, at Licensor’s request and expense, assists Licensor in the defense or settlement of the lawsuit. Also, Licensor’s obligations under this Section do not apply to any infringement claim based upon: (i) any use of the Licensed Products not in accordance with this Agreement; (ii) any use of the Licensed Products in combination with other products, equipment, software, or date that Licensor does not supply; (iii) any use of any release of the Licensed Products other than the most current release made available to Licensee or (iv) any modification of the Licensed Products by any person other than Licensor. This Section states Licensor’s entire liability and Licensee’s sole and exclusive remedy for infringement claims and actions. 8. LIMITATION OF LIABILITY IN NO EVENT SHALL LICENSOR (OR ITS SUPPLIERS) BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL, (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFTIS OR GOODWILL OR (D) AGGREGATE DAMAGES, IN EXCESS OF THE AMOUNT PAID TO LICENSOR FOR THE LICENSED PRODUCT OR SUPPORT SERCIE THAT GAVE RISE TO THE CLAIM DURING THE PRIOR 12-MONTH PERIOD, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN. 9. TERM AND TERMINATION Licensing Agreement 4 �9.1 Term. This Agreement shall commence on the Effective Date and continue in effect until terminated as provided herein. 9.2 Termination. Licensee may terminate this Agreement at any time for its convenience upon written notice to Licensor. This Agreement shall automatically terminate without further action by any party, immediately upon material breach by Licensee of any limitation or restriction set forth in Section 2.3, 4.2 or 5.1. 9.3 Effects of Termination. Upon termination of this Agreement for any reason, all rights, obligations and licenses of the parties hereunder shall cease, except that (a) all obligations that accrued prior to the effective date of termination (including without limitation, any payment obligation) and any remedies for breach of this Agreement shall survive any termination, (b) Licensee shall promptly return of destroy all of the Licensed Products and other tangible Confidential Information, and permanently erase all Confidential Information from any computer and storage media and (c) the provisions of Sections 2.2 (Limitations), 2.4 (Payments), 4 (Confidentiality), 5 (Proprietary Rights), 6 (Warranty Disclaimers), 8 (Limitation of Liability), 9.3 (Effects of Termination), and 10 (General Provisions) shall survive. 10. GENERAL PROVISIONS 10.1 Entire Agreement. This Agreement constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of this Agreement. Terms set forth in Licensee’s Purchase Order (or any similar document) that are in addition to or at variance with the terms of this Agreement are specifically waived by Licensee. All such terms are considered to be proposed material alterations of this Agreement and are hereby rejected. No waiver, consent or modification of this Agreement shall bind either party unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. If any provisions of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. 10.2 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey, without regard to its conflicts of law provisions. 10.3 Remedies. Unless specifically provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Licensee agrees that, in the event of any breach or threatened breach of Section 4 or 5, Licensor will suffer irreparable damage for which there is no adequate remedy at law. Accordingly, Licensor shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of proving actual damages or posting any bond. 10.4 Notices. Any notice or communication hereunder shall be in writing and either personally delivered or sent via confirmed facsimile, recognized express delivery courier or certified or registered mail, prepaid and return receipt requested. Notices shall be delivered to the address Licensing Agreement 5 �specified by Licensee when the Licensed Product was ordered, or the address above for Licensor, as the case may be, or at such other address designated in a subsequent notice. Consents and approvals required under this Agreement may be provided electronically, if they are provided in a jurisdiction that recognizes electronic signatures as enforceable under the particular circumstances. All notices shall be in English, effective upon receipt or, if refused, three (3) business days after being sent as set forth above. 10.5 Assignment. This Agreement and the rights and obligations hereunder are personal to Licensee, and may not be assigned or otherwise transferred, in whole or in part, without Licensor’s prior written consent. Any attempt to do otherwise shall be void and of no effect. Without Licensee’s consent, Licensor may assign this Agreement to any third party. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties. 10.6 Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint ventures or partners for any purpose. 10.7 License to the Government. If any user of the Licensed Products is a department, agency or other entity of the United States Government, the use, duplication, reproduction, modification, release, disclosure or transfer of the Licensed Products is restricted in accordance with FAR 12.212 for civilian agencies and DFAR 227.7202 for military agencies. The Licensed products are comprised of commercial computer software and commercial computer software documentation, and their use is further restricted in accordance with the terms of this Agreement. 10.8 Basis of Bargain. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS ARE MATERIAL BARGAINED-FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT BY EACH PARTY AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY HEREUNDER AND IN THE DECISION TO ENTER INTO THIS AGREEMENT. 10.9 Acknowledgment. Licensee acknowledges that (a) Licensee has read and understands this Agreement, (b) it has had an opportunity to have its legal counsel review this Agreement, (c) this Agreement has the same force and effect as a signed agreement, (d) Licensor requires identification of the User and Licensee before issuing this license and (e) issuance of this license does not constitute general publication of the Licensed Products or any other Confidential Information. IN WITNESS WHEREOF, Licensee and Licensor have duly executed this Agreement as of the day and year first above written. Licensing Agreement 6 �LICENSOR LICENSEE SUPERIOR INTEGRATED SOLUTIONS ______________________________ By: ______________________________ (Name) By: __________________________ (Name) Its: _______________________________ Its: __________________________ Licensing Agreement 7 �
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ELECTRONIC ARTS SOFTWARE END USER LICENSE AGREEMENT NEED FOR SPEED HOT PURSUIT This End User License Agreement (“License”) is an agreement between you and Electronic Arts Inc., its subsidiaries and affiliates (“EA”). This License governs your use of this software product and all related documentation, and updates and upgrades that replace or supplement the software in any respect and which are not distributed with a separate license (collectively, the "Software"). This Software is licensed to you, not sold. By installing or using the Software, you agree to the terms of this License and agree to be bound by it. Section 3 below describes the data EA may use to provide services and support to you in connection with the Software. If you do not agree to this use of data, do not install or use the Software. IF YOU INSTALL the Software, the terms and conditions of this License are fully accepted by you. If you do not agree to the terms of this License, then do not install or use the Software. Right to Return (Applicable To Those Who Purchased Packaged Software From Physical Retail Stores In the United States). If you do not agree to the terms of this License and you have not installed or used the Software, you may return the Software for a refund or exchange within thirty (30) days from the date of purchase to the original place of purchase by following the instructions for return available at http://warrantyinfo.ea.com. 1. Limited License Grant and Terms of Use. A. Grant. Through this purchase, you are acquiring and EA grants you a personal, limited, non-exclusive license to install and use the Software for your non-commercial use solely as set forth in this License and the accompanying documentation. Your acquired rights are subject to your compliance with this Agreement. Any commercial use is prohibited. You are expressly prohibited from sub-licensing, renting, leasing or otherwise distributing the Software or rights to use the Software, except by transfer as expressly set forth in paragraph 2 below. The term of your License shall commence on the date that you install or otherwise use the Software, and shall end on the earlier of the date that you dispose of or transfer the Software; or EA's termination of this License. Your license will terminate immediately if you attempt to circumvent the technical protection measures for the Software. A separate Terms of Service agreement governs your use of online services in connection with the Software. You may view the Terms of Service agreement at http://terms.ea.com. �B. Technical Protection Measures. This Software uses Solidshield digital rights management technology. This Solidshield technology does not require a separate installation. For more information about Solidshield, visit www.solidshield.com. An Internet connection is required to authenticate the Software and verify your license (“Online Authentication”) using the serial code enclosed with the Software. EA reserves the right to validate your license through subsequent Online Authentications. If EA determines your license is not valid, you may not be able to use the Software. EA does not recommend that you attempt to disable Solidshield. If you disable or otherwise tamper with the technical protection measures, the Software may not function properly and you will have materially breached this License. Each computer must be authorized before you can play the game. Authorization automatically occurs after authentication and license validation by EA (i.e., Online Authentication), described above. The first end user of this License may authorize up to five machines on which s/he may play the offline features of this game at any one time. Access to online features and/or services is addressed in Section 1.C, below. When you install the Software on a machine, the machine is automatically authorized (provided you have authorizations available). When you uninstall the Software from a machine, that machine is automatically deauthorized. You may manage your authorizations yourself by following the de-authorization instructions found at http://activate.ea.com/deauthorize. EA also suggests that you deauthorize all machines if you decide to transfer your rights to the Software pursuant to Section 2, below. An Internet connection is required for deauthorization. Upon uninstallation of the Software and successful machine deauthorization, the Solidshield technology associated with this Software will be removed from your machine. C. Access to Online Features And/Or Services. Additional fees and/or payment(s), an EA Account, including the acceptance of EA’s online Privacy Policy and Terms of Service (www.ea.com), the installation of EA Download Manager as well as acceptance of the EA Download Manager End User License Agreement and registration with the serial code enclosed with the Software may be required to access the Software, online services and/or features and to download and apply Software updates and patches (if any). Registration for online services and/or features is limited to one EA Account per serial code and is nontransferable. Only licensed software can be used to access online services, download content and apply updates and patches. If the Software permits access to additional online features, content and/or �services, only one user account may be able to access those features at one time. D. Further Restrictions. Your right to use the Software is limited to the license grant above, and you may not otherwise copy, display, seek to disable, distribute, perform, publish, modify, create works from, or use the Software or any component of it, except as expressly authorized by EA. Unless expressly authorized by EA, you are prohibited from making a copy of the Software available on a network where it could be used by multiple users. You are prohibited from making the Software available over a network where it could be downloaded by multiple users. You may not remove or alter EA’s trademarks or logos, or legal notices included in the Software or related assets. E. Reservation of Rights. You have obtained a license to the Software and your rights are subject to this License. Except as expressly licensed to you herein, EA reserves all right, title and interest in the Software (including all characters, storyline, images, photographs, animations, video, music, text), and all associated copyrights, trademarks, and other intellectual property rights therein. This License is limited to the intellectual property rights of EA and its licensors in the Software and does not include any rights to other patents or intellectual property. Except to the extent permitted under applicable law, you may not decompile, disassemble, or reverse engineer the Software, or any component thereof, by any means whatsoever. You may not remove, alter, or obscure any product identification, copyright, or other intellectual property notices in the Software. All rights not expressly granted herein are reserved by EA. F. Your Contributions. In exchange for use of the Software, and to the extent that your contributions through use of the Software give rise to any copyright interest, you hereby grant EA an exclusive, perpetual, irrevocable, fully transferable and sub-licensable worldwide right and license to use your contributions in any way and for any purpose in connection with the Software and related goods and services including the rights to reproduce, copy, adapt, modify, perform, display, publish, broadcast, transmit, or otherwise communicate to the public by any means whether now known or unknown and distribute your contributions without any further notice or compensation to you of any kind for the whole duration of protection granted to intellectual property rights by applicable laws and international conventions. You hereby waive any moral rights of paternity, publication, reputation, or attribution with respect to EA’s and other players’ use and enjoyment of such assets in connection with the Software and related goods and services under applicable law. The license grant to EA, and the above waiver of any applicable moral rights, survives any termination of this License. �2. Transfer. You may make a one-time permanent transfer of all your rights to install and use the Software to another individual or legal entity provided that: (a) the Technical Protection Measures used by the Software supports such transfers; (b) you also transfer this License and all copies of the Software; (c) you retain no copies of the Software, upgrades, updates or prior versions; and (d) the receiving party accepts the terms and conditions of this License. Such transfer may not include access to any online feature, service or functionality, or right thereto, unlocked or downloadable content, dynamically served content and other online features and/or services that require registration with the enclosed access code, that are limited to one user account and/or that are otherwise non-transferable. EA may require that any end user of the Software register the Software online as a condition of use and/or purchase additional Licenses. NOTWITHSTANDING THE FOREGOING, YOU MAY NOT TRANSFER PRE-RELEASE COPIES OF THE SOFTWARE. 3. Consent to Use of Data. When you play this game offline and/or when you Authenticate your Software, EA and its affiliates may collect, use, store and transmit technical and related information that identifies your computer including your Internet Protocol Address, hardware identification, operating system, application software and peripheral hardware as well as game play and software usage statistics. If and when you Authenticate your Software and/or access online features and/or services, this data may be transmitted to EA. EA may use this information to facilitate Technical Protection Measures, the provision of software updates and dynamically served content (if any) as well as for marketing purposes and to improve our products and services. We may share anonymous aggregate data with third parties. Other types of data collected as well as how data is collected, used, stored and transmitted is set forth in EA’s Privacy Policy located at http://privacy.ea.com. To the extent that anything in this section conflicts with the terms of EA’s Privacy Policy, the terms of the Privacy Policy shall control. 4. Consent to Public Display of Data. If you participate in online services, such as online play or the downloading and uploading of content, EA and its affiliates may also collect, use, store, transmit and publicly display statistical data regarding game play (including scores, rankings and achievements), or publicly identify content that is created and shared by you with other players. 5. Termination. This License is effective until terminated. Your rights under this License will terminate immediately and automatically without any notice from EA if you fail to comply with any of the terms and conditions of this License. Promptly upon termination, you must cease all use of the Software and destroy all copies of the Software in your possession or control. Termination will not limit any of EA’s other rights or remedies at law or in equity. Sections 5 - 12 of this License shall survive termination or expiration of this License for any reason. �6. Limited Warranty on Recording Media. The LIMITED WARRANTY ON RECORDING MEDIA THAT ACCOMPANIES YOUR SOFTWARE IS FOUND IN THE PRODUCT MANUAL THAT WAS DISTRIBUTED WITH YOUR SOFTWARE AND IS INCORPORATED HEREIN BY REFERENCE. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY ALSO HAVE ADDITIONAL RIGHTS UNDER APPLICABLE LOCAL LAW, WHICH VARY FROM JURISDICTION TO JURISDICTION. 7. Disclaimer of Warranties. EXCEPT FOR THE LIMITED WARRANTY ON RECORDING MEDIA FOUND IN THE PRODUCT MANUAL, AND TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE SOFTWARE IS PROVIDED TO YOU “AS IS,” WITH ALL FAULTS, WITHOUT WARRANTY OF ANY KIND, WITHOUT PERFORMANCE ASSURANCES OR GUARANTEES OF ANY KIND, AND YOUR USE IS AT YOUR SOLE RISK. THE ENTIRE RISK OF SATISFACTORY QUALITY AND PERFORMANCE RESIDES WITH YOU. EA AND EA’S LICENSORS (COLLECTIVELY “EA” FOR PURPOSES OF THIS SECTION AND SECTION 8) DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING IMPLIED WARRANTIES OF CONDITION, UNINTERRUPTED USE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, AND WARRANTIES (IF ANY) ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EA DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE; THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS; THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE SOFTWARE WILL INTEROPERATE OR BE COMPATIBLE WITH ANY OTHER SOFTWARE OR THAT ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN ADVICE PROVIDED BY EA OR ANY AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. 8. Limitation of Liability. TO THE FULLEST EXTENT PERMISSIBLE BYAPPLICABLE LAW, IN NO EVENT SHALL EA, ITS SUBSIDIARIES OR ITS AFFILIATES BE LIABLE TO YOU FOR ANY PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER FORM OF DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES FROM ANY CAUSES OF �ACTION ARISING OUT OF OR RELATED TO THIS LICENSE OR THE SOFTWARE, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR OTHERWISE, WHETHER OR NOT EA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. SOME JURISDICTIONS DO NOT ALLOW A LIMITATION OF LIABILITY FOR DEATH, PERSONAL INJURY, FRAUDULENT MISREPRESENTATIONS OR CERTAIN INTENTIONAL OR NEGLIGENT ACTS, OR VIOLATION OF SPECIFIC STATUTES, OR THE LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. In no event shall EA’s total liability to you for all damages (except as required by applicable law) exceed the amount actually paid by you for the Software. 9. Limitation of Liability and Disclaimer of Warranties are Material Terms of this License. You agree that the provisions in this License that limit liability are essential terms of this License. The foregoing limitations of liability apply even if the above stated remedy under the Limited Warranty for Recording Media fails in its essential purpose. 10. Severability and Survival. If any provision of this License is illegal or unenforceable under applicable law, the remainder of the provision shall be amended to achieve as closely as possible the effect of the original term and all other provisions of this License shall continue in full force and effect. 11. U.S. Government Restricted Rights. If you are a government end user, then this provision applies to you. The Software provided in connection with this License has been developed entirely at private expense, as defined in FAR section 2.101, DFARS section 252.227-7014(a)(1) and DFARS section 252.227-7015 (or any equivalent or subsequent agency regulation thereof), and is provided as “commercial items,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFARS section 227.7202 and FAR section 12.212, and to the extent required under U.S. federal law, the minimum restricted rights as set forth in FAR section 52.227-19 (or any equivalent or subsequent agency regulation thereof), any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by this License and shall be prohibited except to the extent expressly permitted by this License. 12. Injunctive Relief. You agree that a breach of this License will cause irreparable injury to EA for which monetary damages would not be an adequate remedy and EA shall be entitled to seek equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages. �13. Governing Law. If you reside in a Member State of the European Union: (i) the laws of England, excluding its conflicts-of-law rules, govern this License and your use of the Application; and (ii) you expressly agree that exclusive jurisdiction for any claim or action arising out of or relating to this License and/or your use of the Application shall be the Courts of England, and you expressly consent to the exercise of personal jurisdiction of such courts. If you reside elsewhere: (i) the laws of the State of California, excluding its conflicts-of-law rules, govern this License and/or your use of the Application; and (ii) you expressly agree that exclusive jurisdiction for any claim or action arising out of or relating to this License and/or your use of the Application shall be the federal or state courts that govern San Mateo County, California, and you expressly consent to the exercise of personal jurisdiction of such courts. Please note that your conduct may also be subject to other local, state, national, and international laws. The parties agree that the UN Convention on Contracts for the International Sale of Goods (Vienna, 1980) shall not apply to this License or to any dispute or transaction arising out of this License. 14. Export. You agree to abide by U.S. and other applicable export control laws and agree not to transfer the Software to a foreign national, or national destination, which is prohibited by such laws, without first obtaining, and then complying with, any requisite government authorization. You certify that you are not a person with whom EA is prohibited from transacting business under applicable law. 15. Entire Agreement. This License constitutes the entire agreement between you and EA with respect to the Software and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this License will be binding unless made in writing and signed by EA. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of any other right hereunder. In the event of a conflict between this License and any applicable purchase or other terms, the terms of this License shall govern. �
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Last updated: March 1, 2016 END USER LICENSE AGREEMENT Thank you for your interest in this application for your mobile device (the “App”) provided to you by FieldWireLabs, Inc. (“Fieldwire”), which enables you to use certain features of the Fieldwire’s online service (the “Service”) from your mobile device. This End User License Agreement (“EULA”), together with the Fieldwire Support Services Terms and Conditions, Terms of Service and related policies (the “Terms”) (available at http://www.fieldwire.com/terms), which Terms are hereby incorporated by reference into this EULA, govern your use of the App, the Service and any support services provided to you. You may request a copy of this EULA by emailing us at [email protected]. BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE APP, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE EULA. IF YOU DO NOT AGREE, YOU MAY NOT USE THE APP. You acknowledge and agree that, as provided in greater detail in this EULA: • the App is licensed, not sold to you, and that you may use the Service only as set forth in this EULA and the Agreements; • the use of the Service may be subject to separate third party terms of service and fees, including without limitation the terms of service and data, SMS, MMS, and other fees of your mobile network operator (the “Carrier”), which are your sole responsibility; • you consent to the collection and use of your personally identifiable information and information about your location in accordance with Fieldwire’s Privacy Policy, including without limitation the collection of location information; • the Service is provided “as is” without warranties of any kind and Fieldwire’s liability to you is limited; • disputes arising hereunder will be resolved by binding arbitration as set forth in the Term, and BY ACCEPTING THIS EULA, AS PROVIDED IN GREATER DETAIL IN SECTION 13 BELOW, YOU AND FIELDWIRE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. You agree to give up your right to go to court to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury and your claims cannot be brought as a class action. Please review the arbitration agreement in Section 13 below for the details regarding your agreement to arbitrate any disputes with Fieldwire; • the App may require access to the following services on your mobile device: an applicable device identifier, phone state and identity, internet, SMS/MMS messaging, location and phone contacts and photographs, in each case, using the applicable permissions provided by the mobile operating system or by you; and • if you are using the App on an iOS-based device, you agree to and acknowledge the “Notice Regarding Apple”, below. 1. LIMITED LICENSE. Subject to your complete and ongoing compliance with all the terms and conditions set forth in this EULA and the Agreements (including without limitation payment of any applicable fees and compliance with all license restrictions), Fieldwire grants you (1) a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use one copy of the App downloaded directly from Fieldwire or from a legitimate marketplace (such as Apple’s iTunes store), solely in object code format and solely for your use for lawful purposes, on a compatible mobile device that you own or control, and (2) permission to access and use the Service and Support Services, solely through the use of a licensed copy of the App. �2. RESTRICTIONS. Except as expressly permitted in this EULA, you may not reproduce, distribute, modify, publicly display, or publicly perform the App or any part of the Service. Except if, and solely to the extent that, such a restriction is impermissible under applicable law, you may not (a) decompile, reverse engineer, or otherwise access or attempt to access the source code for the App, or make or attempt to make any modification to the App; or (b) interfere with or circumvent any feature of the App, including without limitation any security or access control mechanism. You may not use the App or the Service for any purpose other than a purpose for which the App and the Service are expressly designed. The term App, as used herein, includes any update or modification to the App made available to you by Fieldwire (unless provided with separate terms). If you are prohibited under applicable law from using the App or the Service, you may not use them. 3. USE OF THE APP AND THE SERVICE – THIRD PARTY TERMS AND FEES. You are solely responsible for your use of the Service on your mobile device, including without limitation compliance with these and any applicable third party terms, and payment of any applicable third party fees. Without limiting the foregoing, you are solely responsible for the payment of all applicable fees associated with any Carrier service plan you use in connection with your use of the App and the Service (such as voice, data, SMS, MMS, roaming, other applicable fees charged by the Carrier). Accordingly, you should use care in selecting a service plan offered by your Carrier. If your device is lost or stolen, you must notify Fieldwire immediately to suspend services. 4. LOCATION-BASED SERVICES. Some of the features of the Service may enable Fieldwire to access your location in order to tailor your experience with the Service based on your location (“Location-based Services”). In order to use certain Location-based Services, you must enable certain features of your mobile phone, such as GPS, Wi-Fi, and Bluetooth, which enable Fieldwire to identify your location through a variety of means, including GPS location, IP address, cell tower location, geo-fencing technology, or detection by physical on-location Wi-Fi or Bluetooth sensors, as available. To the extent your location is collected through Wi-Fi or Bluetooth sensors, such sensors, and the associated data services, may be provided by a third party, and you agree and acknowledge that such third party may access such information for the purpose of providing such data services to Fieldwire. You may be given the option to automatically enable the provision of some Location-based Services through the App, and to enable or disable such Location-based Services at any time through the App’s Settings menu. If you choose to disable any Location-based Services on your device and/or opt out of any Location-based Services through the App’s Settings menu, you will not be able to utilize certain features of the Service. By enabling Location-based Services on your device, you agree and acknowledge that (i) device data we collect from you is directly relevant to your use of the Service, (ii) Fieldwire may provide Location-based Services related to and based on your then-current location, and (iii) Fieldwire may use any such information collected in connection with the provision of Location-based Services in connection with its provision of the Service. PLEASE NOTE THAT LOCATION DATA MAY NOT ALWAYS BE ACCURATE, AND FIELDWIRE DISCLAIMS ANY AND ALL WARRANTIES RELATED TO LOCATION-BASED SERVICES. 5. RESERVATION OF RIGHTS. The Service, including the App, is owned and operated by Fieldwire. The App, content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, services, and all other elements of the Service (the “Fieldwire Materials”), are protected by copyright, trade dress, patent, and trademark laws of the United States and other jurisdictions, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. As between you and Fieldwire, all Fieldwire Materials, including intellectual property rights therein and thereto, are the sole and exclusive property of Fieldwire or its subsidiaries or affiliated companies and/or its third-party licensors. You may not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or make any use of the Fieldwire Materials except as expressly authorized hereunder. Fieldwire reserves all rights not expressly granted in the Agreements. You shall not acquire any right, title or interest to the Fieldwire Materials, whether by implication, estoppel, or otherwise, except for the limited rights set forth in the Agreements. -2- �6. USER POSTINGS. As further set forth in the Terms, the App and Services may allow you to submit User Postings (as defined in the Terms) and you acknowledge and agree to grant certain rights to Fieldwire and others users of the Service with respect to your User Postings, in accordance with the terms and conditions set forth in the Terms. . 7. TERM AND TERMINATION. This EULA will remain in effect until terminated. The EULA, and your rights and licenses hereunder, will terminate immediately upon your breach of the EULA. You may terminate the EULA by uninstalling the App and ceasing all use of the Service. Fieldwire may terminate the Service and/or this EULA at any time for any reason, including without limitation any actual or suspected misuse or abuse by you of the App or the Service. Sections 2, 3, 4, 5, 6, 10, 10, 12, and 13 shall survive any termination of this EULA. 8. SUPPORT SERVICES. While this EULA remains effective and the applicable Support Services Fee, if any, has been paid, Fieldwire will use reasonable commercial efforts to provide the support and maintenance services for the App as provided in the Support Services Terms and Conditions. 9. MODIFICATIONS. Fieldwire reserves the right, in its sole discretion, to change, modify, add, or remove portions of the App, or to change, modify, add, or remove portions of this EULA at any time by making such modified EULA available to you through the App. The EULA will be identified as of the most recent date of revision and will be effective immediately upon being made available through the App, except as follows: a) in the event any such modification materially alters your rights hereunder, we will attempt to notify you directly through a message sent to the email address you have provided to Fieldwire, if any, or through a pop-up window or other notification when you access or use the App or the Service, b) such materially modified EULA will be effective upon the earlier of your use of the Service with actual knowledge of the changes or thirty days after the changes are made available to you, and c) no modifications to this EULA will apply to any dispute between you and Fieldwire that arose prior to the date of such modification. Your use of the Service after modifications to the EULA become effective constitutes your binding acceptance of such changes. If you are dissatisfied with the terms of the EULA or any modifications thereof, then you agree that your sole and exclusive remedy is to discontinue any use of the Service. 10. WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY. THE APP AND THE SERVICE ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FIELDWIRE DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, QUALITY, AND NONINFRINGEMENT. FIELDWIRE EXPRESSLY DISCLAIMS ANY WARRANTIES OF ANY KIND WITH RESPECT TO THE ACCURACY OR FUNCTIONALITY OF LOCATION BASED SERVICES, AND WITH RESPCT TO THE ACCURACY, VALIDITY, OR COMPLETENESS OF ANY INFORMATION OR FEATURES AVAILABLE THROUGH THE SERVICE, OR THE QUALITY OR CONSISTENCY OF THE SERVICE. FIELDWIRE FURTHER DISCLAIMS ANY WARRANTY OR LIABILITY RELATED TO YOUR CARRIER’S NETWORK OR SERVICE. UNDER NO CIRCUMSTANCES WILL FIELDWIRE BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES WHATSOEVER ARISING OUT OF ANY INTERRUPTION OF USE OF THE APP OR SERVICE, ANY LOSS OR CORRUPTION OF DATA, OR FOR ANY MATTER BEYOND ITS REASONABLE CONTROL, EVEN IF FIELDWIRE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT WILL FIELDWIRE’S AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF THIS EULA EXCEED THE GREATER OF AMOUNTS PAID BY YOU FOR THE APP OR FIFTY DOLLARS ($50 USD). SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH AN EVENT THE ABOVE LIMITATIONS WILL BE ENFORCED TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. -3- �11. INDEMNITY. You agree to indemnify, defend and hold Fieldwire and its affiliates, officers, directors, suppliers, licensors, and other customers harmless from and against any and all liability and costs, including reasonable attorneys’ fees incurred by such parties, in connection with or arising out of your use or misuse of the App and the Service, and your violation of this EULA, any applicable law or regulation, or the rights of any third parties related to the use of the Service. 12. THIRD PARTY SOFTWARE. The App may be distributed alongside certain third party software ("Third Party Software") provided under separate license terms (the "Third Party Terms"), as set forth in more detail via the App’s Help menu; should third party terms be used. Your use of such Third Party Software in conjunction with the App in a manner consistent with the terms of this EULA is permitted; however, you may have broader rights under the applicable Third Party Terms and nothing in this Agreement is intended to impose further restrictions on your use of the Third Party Software. 13. GOVERNING LAW; VENUE; ARBITRATION. THIS EULA, WHETHER INTERPRETED IN A COURT OF LAW OR IN ARBITRATION, SHALL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES. To the extent that any lawsuit or court proceeding is permitted hereunder, you and Fieldwire agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara County, California for the purpose of litigating all such disputes. As further detailed in the Terms, you agree that all disputes brought under this EULA shall be resolved by binding arbitration. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE GIVING UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS UNDER THIS CONTRACT (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT). YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY AND YOUR CLAIMS CANNOT BE BROUGHT AS A CLASS ACTION. The Section titled “DISPUTE RESOLUTION AND ARBITRATION” in the Terms sets forth the further details of the dispute resolution and arbitration procedures under this EULA. 14. MISCELLANEOUS. This EULA, the Terms and the other Agreements are the entire agreement between you and Fieldwire, and supersede any and all prior agreements, negotiations, or other communications between you and Fieldwire, whether oral or written, with respect to the subject matter hereof, and, except as expressly provided herein, cannot be modified except in writing signed by both parties. You may not export or re-export the App without (a) the prior written consent of Fieldwire; and (b) complying with applicable export control laws and obtaining any necessary permits and licenses. In the event that any provision of this EULA is held to be invalid or unenforceable, then: (a) such provision shall be deemed reformed to the extent strictly necessary to render such provision valid and enforceable, or if not capable of such reformation shall be deemed severed from this EULA; and (b) the validity and enforceability of all of the other provisions hereof, shall in no way be affected or impaired thereby. You may not assign this EULA without the prior written consent of Fieldwire, whether expressly or by operation of law, including in connection with a merger or change of control, and any such attempted assignment shall be void and of no effect. Fieldwire may assign this EULA without restriction and without any notice to you or consent from you. Subject to the foregoing, this EULA shall be binding on the parties and their respective successors and permitted assigns. The failure to exercise, or delay in exercising, a right, power or remedy provided in this EULA or by law shall not constitute a waiver of that right, power or remedy. Fieldwire’s waiver of any obligation or breach of this EULA shall not operate as a waiver of any other obligation or subsequent breach of the EULA. 15. NOTICE REGARDING APPLE. You acknowledge that this EULA is between you and Fieldwire only, not with Apple, and Apple is not responsible for the Service and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty, then you may notify Apple and Apple will refund any applicable purchase price for the App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including, but not limited to: (i) product liability claims; (ii) any claim -4- �that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the App infringe that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the Service. Apple, and Apple’s subsidiaries, are third party beneficiaries of this EULA, and upon your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third party beneficiary of this EULA. You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. 16. CONTACTING FIELDWIRE. The App and the Service are offered by FieldWireLabs, Inc.: 459 Geary Street, Suite 500, San Francisco, CA 94102; [email protected]. -5- �
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End User License Agreement End User License Agreement (EULA) 1. DEFINITIONS 1.1. "Licensee" shall mean a physical person or legal entity that has acquired a license to the Software. 1.2. "EULA" shall mean this standard End User License Agreement. 1.3. "ForNAV" shall mean ForNAV ApS, CVR number DK37045160. 1.4. "Initial Update Term" shall have the meaning set out in clause 5.3 below. 1.5. "Partner" shall mean the authorized reseller or distributor of ForNAV from whom the Licensee has purchased the license to the Software. 1.6. "Software" shall mean any software, tool, utility, documentation or alike delivered by ForNAV including the license file, and any revision, update or upgrade hereto which are made available by ForNAV to the End User under the terms and conditions set out in this EULA. 1.7. "Working day" shall mean Monday to Friday, except from national holidays in Denmark, and 5th of June, 24th of December and 31st of December. 2. SCOPE OF THE END USER LICENSE 2.1. ForNAV hereby grants to the Licensee a non-assignable and non-exclusive right to use the Software in accordance with the terms and conditions set out in this EULA solely for Licensee’s own internal business operations. The license is effective upon installation by the Licensee and remains in force until termination by either party. 2.2. The Software can be licensed as (i) a perpetual license or (ii) a subscription license that needs to be renewed every year (12 months). 2.2.1. A perpetual license gives the Licensee a right to use the licensed version of the Software perpetual. 2.2.2. A subscription license gives the Licensee a right to use the Software (current or at any time latest version) one (1) year from the date of purchase. If the subscription license is not renewed, the Licensee no longer has any right to use the Software. 2.3. The Software is a standard product. It shall be the sole responsibility of the Licensee to ensure that the functions of the Software fulfill the requirements and expectations of Licensee. 2.4. The Licensee’s right to use the Software requires that the Licensee has accepted the terms and conditions in this EULA. One license (perpetual or subscription) gives the Licensee the right to use the Software for one physical person or one legal entity. 2.5. Licensee agrees that ForNAV may audit Licensee's use of the Software for compliance with this EULA at any time, upon reasonable notice. In the event that such audit reveals any use of the Software by Licensee other than in full compliance with the terms of this EULA, Rev. August 2015 © ForNAV ApS Page 1 of 5 �End User License Agreement Licensee shall reimburse ForNAV for all reasonable expenses related to such audit in addition to any other liabilities Licensee may incur as a result of such non-compliance. 2.6. In case of termination of the agreement with the Partner, ForNAV may with regard to ForNAV’s Software take over or reassign Licensee of the Partner to another partner. 2.7. In case Licensee wants to reassign to another partner than the Partner, Licensee must inform ForNAV hereof in writing no later than two (2) months before the end of an update term, cf. clause 5 below. 3. INTELLECTUAL PROPERTY RIGHTS 3.1. Licensee shall obtain no rights to the Software. ForNAV retains all intellectual property rights to the Software, updates, documentation and all data enclosed in it, including, but not limited to, copyright, trademarks and other rights, titles and interests in the Software. 3.2. The Licensee is not permitted to publish the Software without the explicit, written consent of ForNAV. This applies also to any documentation delivered by ForNAV. 3.3. The Licensee may not reverse engineer, decompile or disassemble the Software except when otherwise allowed by mandatory statutory provisions. The Licensee shall always notify ForNAV in writing in advance of such acts. 3.4. Upon an infringement of ForNAV’s intellectual property rights ForNAV shall be entitled to terminate this Agreement for cause with immediate effect, as per clause 8.2. 4. USE OF THE SOFTWARE 4.1. By installing, copying, or otherwise using the Software, the Licensee agrees to be bound by the terms of this EULA. 4.2. The Licensee acknowledges that the use of some parts of the Software and licensing may require connection to the Internet. 4.3. Should the Licensee use the Software, including any documentation, for another physical person or legal entity than Licensee, ForNAV is entitled to a penalty amounting to two times ForNAV’s list price for the unpaid End User license. The penalty shall be calculated in accordance with the list price of the End User license valid at the time ForNAV becomes aware of the unauthorized use of the Software. 4.4. The Licensee alone is responsible for back up of all data, configurations and settings stored in the Software. 5. UPDATES 5.1. ForNAV will use its best endeavor to ensure on-going development of the Software, including correction of errors and inexpediency and, at the discretion of ForNAV, to change the Software with the aim of making the Software compatible with new versions of third party’s standard software. 5.2. Subscription license: 5.2.1. When purchasing a subscription license to the Software an update fee is included in the yearly subscription license, thus the Licensee will automatically receive relevant updates. Rev. August 2015 © ForNAV ApS Page 2 of 5 �End User License Agreement 5.3. Perpetual license: 5.3.1. When purchasing a perpetual license to the Software, the purchase of relevant updates is mandatory the first year (the "Initial Update Term"). The Initial Update Term runs from the date of purchase and the following 12 months. The Licensee must pay an update fee for the Initial Update Term corresponding to 16% of the license fee paid by the Licensee to the Partner for the Software. 5.3.2. After the expiry of the Initial Update Term, the Licensee will automatically receive relevant updates, unless the Licensee has informed the Partner otherwise by giving three months' written notice to the end of an update term (a 12 months' period). The Licensee must pay an update fee for these updates corresponding to 16% of the license fee paid by the Licensee to the Partner for the Software. 5.4. In the event that the Licensee has terminated this Agreement with or without cause in accordance with the provision in clause 9 and wants to reactivate it, the Licensee must pay for both the updates that have been released in the inactive term and any new updates. The update fee for the inactive term (the retroactive fee) shall be calculated on basis of the license fee paid by the Licensee to the Partner at the time of the acquisition of the license. The retroactive fee is calculated yearly with the percentage rate stipulated in clause 5.3.1 plus 3 percentage points. 5.5. The Licensee acknowledges that updates to the Software may not work with the Licensee’s hardware, add-on, third party software or custom fit adjustments or modifications. 5.6. The use of updates is the sole responsibility of the Licensee, and ForNAV can under no circumstances be held liable for any problems or inexpediency that updates may cause. 6. ASSIGNMENT 6.1. The Licensee is not entitled to lend, lease, sublicense, transfer or otherwise assign its rights and obligations given under this Agreement without ForNAV’s prior written consent. Any assignment shall not be legal without ForNAV’s prior written consent. Assignment also includes transfer or adoption in connection with a merger, demerger, outsourcing and similar events or activities within and outside the group of companies to which the Licensee belongs. 6.2. If the Licensee assigns the Software in conflict with the provisions above, ForNAV may terminate this Agreement with immediate effect, as described in clause 9. 6.3. ForNAV may at any time in full or in part assign its rights and obligations under this Agreement to any third party. 7. INFRINGEMENTS OF THIRD PARTY RIGHTS 7.1. ForNAV represents and warrants that it has the right to license the Software, including any documentation, to the Licensee, and that ForNAV holds the necessary rights, titles and licenses to allow the Licensee to perform all rights contemplated by this Agreement, and that the Software does not infringe any third party's right that is valid within and enforceable in Denmark. 7.2. The above representations and warranties do not apply to infringements or misappropriations resulting from modifications of the Software, including any Rev. August 2015 © ForNAV ApS Page 3 of 5 �End User License Agreement documentation, by the Licensee, or the Licensee's operation or use of the Software with devices, data or software furnished by the Licensee. 7.3. If a third party towards the Licensee claims that the Software infringes third party rights, the Licensee shall immediately inform ForNAV in writing and ForNAV shall take over the defence of the claim. ForNAV shall at its cost have full control of any proceedings arising out of any infringement of third party rights. 7.4. If the Licensee becomes aware of any infringement or potential infringement of the Software it shall promptly notify ForNAV in writing. 8. PROVIDED "AS IS" 8.1. The Software and any related documentation is provided “as is” without warranty of any kind, either express or implied, including, without limitation, the implied warranties or merchantability, fitness for a particular purpose. The entire risk arising out of use or performance of the Software remains with Licensee. 8.2. The Software delivered under this Agreement is a standard product, and the Licensee is aware that no software product is faultless in all situations and combinations. 8.3. ForNAV shall not be liable for any defects. This Agreement includes neither warranty against defects, nor any warranty of fitness or suitability for a particular purpose. 8.4. Immediately after a reproducible error or defect is discovered or should be discovered the Licensee must give notice to ForNAV’s Partner, with which the Licensee is cooperating at the time of the notification. Upon notification the Licensee must specify the error or defect. 8.5. ForNAV will use its best endeavors to remedy errors and defects which are reproducible in the most recent version of the Software and in the most recent version of the Microsoft Dynamics NAV standard database. 8.6. The actual scope and procedure for remedy of any errors or defects is at the free and independent discretion of ForNAV, who may remedy essential errors and defects by releasing an update of the Software. ForNAV will remedy non-essential errors and defects to the extent ForNAV finds it necessary. 9. TERMINATION 9.1. The Licensee may terminate this EULA for the future at any time by ceasing the use of the Software and promptly destroying and deleting all copies, including any documentation. The Licensee shall not be entitled to any refund of the license fee. 9.2. In the event that the Licensee fails to comply with any of the terms or conditions of this Agreement, ForNAV may terminate for cause the Licensee's right to use the Software, including any documentation, at any time upon a written notice of 30 days. Upon such termination the Licensee must destroy and delete all copies of the Software, including any documentation. The Licensee shall not be entitled to any refund of the license fee upon such termination. 10. LIABILITY OF THE LICENSEE Rev. August 2015 © ForNAV ApS Page 4 of 5 �End User License Agreement 10.1. General rules of Danish law are applicable to the Licensee’s breach of contract. In the event of Licensee's breach of any of its obligations set out in this EULA, ForNAV shall be entitled to terminate this EULA with immediate effect. 11. LIMITATION OF LIABILITY 11.1. ForNAV expressly disclaims any liability, whether expressed or implied with regard to (i) defects and errors, which are not related to the Software, but which are related to external factors, including other software products of the Licensee, (ii) acts or omissions of the Partners of ForNAV (iii) the interaction between the Software and any other hardware and/or software environment and organization at the Licensee’s location or at any remote location, including but not limited to hosting or data centers (iv) errors, defects and inexpediency of third party’s standard products, delivered by ForNAV (v) the Licensee’s changes and/or modifications in or with the Software, and (vi) compatibility between the Software and any new version, update etc. of third party’s software. 11.2. ForNAV shall not in any way be liable for circumstances related to the non-fulfilment of the Licensee’s duties in respect of this Agreement. In no event shall ForNAV be held liable for any damage resulting from loss of data, loss of profits or goodwill or other consequential damages. ForNAV's liability can under no circumstances exceed the license fee paid by Licensee under the Agreement excluding any update fee paid in accordance with clause 5 above. 12. CHANGES OF THIS AGREEMENT 12.1. ForNAV’s Partner or distributor of the Software may not under any circumstances deviate from or make changes to these terms and conditions without ForNAV’s explicit consent in writing, which must be made in accordance with the provisions in ForNAV’s articles of association relating to the power to bind ForNAV. 13. VALIDITY 13.1. If any provision in this Agreement is held to be illegal, invalid or unenforceable, such provision(s) shall nonetheless be enforced to the fullest extent permitted by applicable law, so as to reflect the original intent of the parties. Such provision(s) shall not affect the legality and validity of the other provisions in this Agreement. 14. GOVERNING LAW AND DISPUTE RESOLUTION 14.1. This EULA shall be governed and construed by Danish law, and supersedes all prior and contemporaneous oral and written proposals and communications respecting the subject matter hereof. 14.2. The Parties will use all reasonable efforts to solve any controversy that may arise from this EULA amicably at senior management levels of both parties. Disputes that cannot be settled amicably shall be settled at the the Copenhagen City Court. 15. INTERPRETATION 15.1. If any provision of this EULA is held illegal or unenforceable by any court of competent jurisdiction, such provision shall be deemed separable from the remaining provisions of this agreement and shall not effect or impair the validity or enforceability of the remaining provisions of this agreement. Rev. August 2015 © ForNAV ApS Page 5 of 5 �
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END-USER LICENSE AGREEMENT TheBikeShieldApp & TDG COMPANY, LLC. PLEASE READ CAREFULLY BEFORE USING THIS PRODUCT: This EndUser License Agreement ("EULA") is a legal agreement between (a) you (either an individual or a single entity) and (b) TDG Company, LLC (hereinafter “TDG”). An amendment or addendum to this EULA may accompany TheBikeShieldApp. BY CLICKING "I AGREE," THEREBY BREAKING THE SEAL ON THEBIKESHIELDAPP, OR OTHERWISE TAKING ANY STEP TO INSTALL OR USE THEBIKESHIELDAPP, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MAY NOT INSTALL OR USE THE MOBILE APPLICATION. RIDE AND DRIVE CAREFULLY! THE SERVICES OFFERED BY THE WEB SITE AND/OR APP ARE NOT TO BE USED AS SUBSTITUTES FOR GOOD, COMMON SENSE. WE expressly DISCLAIM LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES for bodily injury, death, or damage of personal property arising from or related to the use of this Web site and/or App. SECTION 1: DEFINITIONS 1.1. "You" or "Your" shall mean the entity or individual that installs and/or uses the Mobile Application. 1.2. "Mobile Application" shall mean mobile application software and may include associated media, printed materials and "online" or electronic documentation delivered with TheBikeShieldApp. SECTION 2: GRANT OF LICENSE TDG grants you the following nonexclusive license provided you agree to and comply with all terms and conditions of this EULA: 2.1. Installation and Use. You may install and use the Mobile Application only as integrated with TheBikeShieldApp on only one (1) personal smartphone or tablet (collectively “devices”). You may not alter in any manner or fashion of any nature whatsoever or otherwise separate component parts of the Mobile Application from TheBikeShieldApp. You do not have the right to distribute the Mobile Application to any other individuals or entities. You may load the Mobile Application into your device’s temporary memory (RAM) only for purposes of using TheBikeShieldApp. This license does not allow you to use the Mobile Application on any device that you do not own or control, and you may not distribute or make the Mobile Application available over a network where it could be used by multiple devices at the same time. 2.2. Storage. The Mobile Application may only be stored or copied into TheBikeShieldApp and may not be separated from TheBikeShieldApp. 2.3. Reproduction and Redistribution Prohibited. Reproduction and redistribution of the Mobile Application is strictly prohibited for any and all reasons except as provided for in Section 2.4, below. Unauthorized reproduction and/or redistribution of the Mobile Application or failure to comply with the above restrictions will result in automatic termination of this Agreement and will constitute immediate, irreparable harm to TDG for which monetary damages would be an inadequate remedy, in which case injunctive relief will be an appropriate remedy for such breach. 2.4. Open-Source Software Components. Notwithstanding the terms and conditions of this EULA, all or any portion of the Mobile Application which constitutes nonproprietary software or software provided under public license by third parties ("Free and Open-Source Software,") is licensed to you subject to the terms and conditions of the software license agreement accompanying such Freeware whether in the form of a discrete agreement, shrink wrap license or �electronic license terms accepted at time of download. Use of the Freeware by you shall be governed entirely by the terms and conditions of such license. 2.5. Reservation of Rights. The Mobile Application is licensed, not sold, to you by TDG. TDG and its suppliers own all rights, title and interest in and to the Mobile Application and reserve all rights not expressly granted to you in this EULA. You agree to refrain from any action that would diminish such rights or would call them into question. 2.6. Additional Licensing Obligations. You acknowledge and agree that your use of certain third party components included with the Mobile Application may be subject to additional licensing terms and conditions. SECTION 3: LIMITATIONS 3.1. No Reverse Engineering. You may not reverse engineer, decompile, disassemble or create derivative works of the Mobile Application, except and only to the extent that the right to do so is mandated under applicable law. 3.2. No Separation of Components. The Mobile Application is licensed as a single product. Except as authorized in this Agreement, Software component parts of the Mobile Application may not be separated for use on more than one device, nor otherwise used separately from the other parts. 3.3. No Rental. You may not rent or lease the Mobile Application to any other individual or entity for any reason. 3.4. No Sale or Resell. You may not sell or resell the Mobile Application to any other individual or entity for any reason. 3.5. No Redistribution. You may not redistribute the Mobile Application to any other individual or entity for any reason. 3.6. No Sublicensing. You may not sublicense the Mobile Application to any other individual or entity for any reason. SECTION 4: TERM & TERMINATION 4.1. Term. This EULA is effective unless terminated or rejected. 4.2. Termination. This EULA will terminate upon conditions set forth elsewhere in this EULA or at the exclusive right of TDG. This Agreement will automatically terminate if you fail to comply with any of the terms and conditions hereof. 4.3. Effect of Termination. In the event of termination, you must destroy all copies of the Mobile Application and all of its component parts. SECTION 5: UPGRADES & ADDITIONAL SOFTWARE 5.1. Upgrades. To use a Mobile Application identified as an upgrade, you must first be licensed for the original Mobile Application identified by TDG as eligible for the upgrade. After upgrading, you may no longer use the original Mobile Application that formed the basis for your upgrade eligibility. 5.2. Additional Software. This EULA applies to updates or supplements to the original Mobile Application provided by TDG unless TDG provides other terms along with the update or supplement. In case of a conflict between such terms, the other terms will prevail. SECTION 6: PROPRIETARY RIGHTS & INTELLECTUAL PROPERTY All intellectual property rights in the Mobile Application and user documentation are owned by TDG or its suppliers and are protected by law, including but not limited to U.S. copyright, trade secret, and trademark law, as well as other applicable laws and international treaty provisions. The structure, organization and code of the Mobile Application are the valuable trade secrets and confidential information of TDG and its suppliers. You shall not remove any product identification, copyright notices or proprietary restrictions from the Mobile Application. �SECTION 7: DISCLAIMER OF WARRANTIES AND LIMITATIONS ON LIABILITY 7.1. NO WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TDG AND ITS SUPPLIERS PROVIDE THE MOBILE APPLICATION "AS IS" AND WITH ALL FAULTS, AND HEREBY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE AND NONINFRINGEMENT, ANY IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, AND OF LACK OF VIRUSES ALL WITH REGARD TO THE MOBILE APPLICATION. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TDG OR A TDG AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. 7.2. NO WARRANTIES AS TO THIRD-PARTY COMPONENTS. IN NO EVENT DOES TDG PROVIDE ANY WARRANTY OR REPRESENTATIONS WITH RESPECT TO ANY THIRD PARTY HARDWARE OR SOFTWARE WITH WHICH THEBIKESHIELDAPP IS DESIGNED TO BE USED, AND TDG DISCLAIMS ALL LIABILITY WITH RESPECT TO ANY FAILURES THEREOF. 7.3. NO LIABILITY FOR DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL TDG OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, FOR LOSS OF DATA OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE MOBILE APPLICATION, OR OTHERWISE IN CONNECTION WITH ANY PROVISION OF THIS EULA), EVEN IF TDG OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF THE REMEDY FAILS OF ITS ESSENTIAL PURPOSE. 7.4. NO SUPPORT. TDG HAS NO OBLIGATION TO SUPPORT OR TO PROVIDE ANY UPDATES OF THE MOBILE APPLICATION. Mobile applications are inherently subject to bugs and potential incompatibility with other applications, software and hardware. You should not use the Mobile Application for any applications in which failure could cause any significant damage or injury to persons or tangible or intangible property. Some states/jurisdictions do not allow exclusion of implied warranties or limitations on the duration of implied warranties, so the above disclaimer may not apply to you in its entirety. Some states/jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. SECTION 8: FEEDBACK 8.1. Feedback. Notwithstanding any Non-Disclosure Agreement executed by and between the parties, the parties agree that in the event you or TDG provides Feedback (as defined below) to the other party on how to design, implement, or improve the Mobile Application or your product(s) for use with the Mobile Application, the following terms and conditions apply the Feedback: 8.2. Exchange of Feedback. Both parties agree that neither party has an obligation to give the other party any suggestions, comments or other feedback, whether verbally or in written or source code form, relating to (i) the Mobile Application; (ii) your products; (iii) your use of the Mobile Application; or (iv) optimization/interoperability of you product with the Mobile Application (collectively defined as "Feedback"). In the event either party provides Feedback to the other party, the party receiving the Feedback may use any Feedback that the other party voluntarily provides to improve the (i) Mobile Application or other related TDG technologies, respectively for the benefit of TDG; or (ii) your product or other related technologies, respectively for the benefit of you. Accordingly, if either party provides Feedback to the other party, both parties agree that the other party and its respective licensees may freely use, reproduce, license, distribute, and otherwise commercialize the Feedback in the (i) Mobile Application or other related technologies; or (ii) you products or other related technologies, �respectively, without the payment of any royalties or fees. 8.3. Residual Rights. You agree that TDG shall be free to use any general knowledge, skills and experience, (including, but not limited to, ideas, concepts, know-how, or techniques) ("Residuals"), contained in the (i) Feedback provided by you to TDG; (ii) your products shared or disclosed to TDG in connection with the Feedback; or (c) your confidential information voluntarily provided to TDG in connection with the Feedback, which are retained in the memories of TDG employees, agents, or contractors who have had access to such Residuals. Subject to the terms and conditions of this Agreement, TDG employees, agents, or contractors shall not be prevented from using Residuals as part of such employee's, agent's or contractor's general knowledge, skills, experience, talent, and/or expertise. TDG shall not have any obligation to limit or restrict the assignment of such employees, agents or contractors or to pay royalties for any work resulting from the use of Residuals. 8.4. DISCLAIMER OF WARRANTY. FEEDBACK FROM EITHER PARTY IS PROVIDED FOR THE OTHER PARTY'S USE "AS IS" AND BOTH PARTIES DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. BOTH PARTIES DO NOT REPRESENT OR WARRANT THAT THE FEEDBACK WILL MEET THE OTHER PARTY'S REQUIREMENTS OR THAT THE OPERATION OR IMPLEMENTATION OF THE FEEDBACK WILL BE UNINTERRUPTED OR ERROR-FREE. Some states/jurisdictions do not allow exclusion of implied warranties or limitations on the duration of implied warranties, so the above disclaimer may not apply to you in its entirety. 8.5. NO LIABILITY FOR CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE FEEDBACK, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some states/jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. SECTION 9: MISCELLANEOUS AND GENERAL PROVISIONS 9.1. Consent to Use of Data. You agree that TDG and its affiliates or suppliers may collect and use technical information you provide, such as your GPS location, in relation to support services related to the Mobile Application. TDG and its suppliers agree not to use this information in a form that personally identifies you except to the extent necessary to provide such services. 9.2. No Implied Licenses. Under no circumstances should anything in this Agreement be construed as TDG granting by implication, estoppel or otherwise, (i) a license to any TDG product or technology other than the Mobile Application; or (ii) any additional license rights for the Mobile Application other than the licenses expressly granted in this Agreement. 9.3. U.S. Government Customers. The Mobile Application is “commercial computer software” or “commercial computer software documentation” as those terms are defined in 48 C.F.R. 252.2277014(a)(1) (2007) and 252.227-7014(a)(5) (2007). The U.S. Government’s rights with respect to the Software and Documentation are limited by this Agreement pursuant to FAR § 12.212 (Computer Software) (1995) and 12.211 (Technical Data) (1995) and/or DFAR 227.7202-3, as applicable. As such, App is being licensed to the U.S. Government end users: (i) only as “Commercial Items” as that term is defined in FAR 2.101 generally and as incorporated in DFAR 212.102; and (ii) with only those limited rights as are granted to the public pursuant to this Agreement. Under no circumstance will the U.S. Government or its end users be granted any greater rights than we grant to other users, as provided for in this Agreement. 9.4. Compliance with Export Laws. You shall comply with all laws and regulations of the United States and other countries ("Export Laws") to ensure that the Mobile Application is not (1) �exported, directly or indirectly, in violation of Export Laws, or (2) used for any purpose prohibited by Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation. 9.5. Capacity and Authority to Contract. You represent that you are of the legal age of majority in your state, province jurisdiction of residence and, if applicable, you are duly authorized by your employer to enter into this contract. 9.6. Applicable Law. This EULA is governed by the laws of the State of California, exclusive of conflict of law provisions and you consent to the jurisdiction of the courts of the County of Los Angeles, State of California, with respect to any proceedings arising from this EULA. TDG shall be entitled to collect all attorneys’ fees and costs as well as statutory interest for the enforcement of this Agreement. 9.7. Recovery of Fees and Costs. TDG shall be entitled to collect all attorneys’ fees and costs as well as statutory interest for the enforcement of this Agreement as well as any and all damages suffered by TDG. 9.8. Entire Agreement. This EULA (including any addendum or amendment to this EULA which is included with TheBikeShieldApp) is the entire agreement between you and TDG relating to the Mobile Application, and it supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Mobile Application or any other subject matter covered by this EULA. To the extent the terms of any TDG policies or programs for support services conflict with the terms of this EULA, the terms of this EULA shall control. In the event of a conflict between the English and any nonEnglish versions of this EULA, the English version shall govern. If any provision of this EULA is held by a court of competent jurisdiction to be contrary to law, such provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provision of the EULA will remain in force and effect. �
nw/68.txt
END USER LICENSE AGREEMENT WHEREAS, Licensor has developed a proprietary loan grading web application system and supporting documentation relating thereto; and WHEREAS, Licensee desires to obtain a license to use Licensor’s loan grading web application system for its own internal business purposes; and WHEREAS, subject to the terms and conditions set forth below, Licensor is willing to grant a limited license to Licensee and Licensee desires to obtain such license, all upon the terms and conditions set forth in this Agreement. NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, Licensor and Licensee agree as follows: I. DEFINITIONS 1.1 "Licensed Documentation" shall mean all of the written, printed, electronic, or other format materials published or otherwise made available by Licensor that relate to the functional, operational, and/or performance capabilities of the Licensed Web Application. 1.2 "Licensed Web Application" shall mean the proprietary loan grading web application created and designed by Licensor, as well as any updates, technical revisions or enhancements thereto as may be provided by Licensor from time to time. Other terms shall have the meanings given to them herein. II. LICENSE 2.1 License. Subject to the provisions of this Agreement as well as the payment of all applicable license fees, Licensor hereby grants to Licensee and Licensee hereby accepts from Licensor, a limited, personal, revocable, nonexclusive, nontransferable, nonassignable right and license to use the Licensed Web Application solely in connection with the Licensee’s own internal business purposes (the “License”). Except as explicitly provided in this Section 2.1, no license under any patents, copyrights, trademarks, trade secrets, or any other intellectual property rights, express or implied, are granted by Licensor to Licensee under this Agreement. 2.2 Access. Upon payment of all applicable fees, Licensor shall provide Licensee with access to the Licensed Web Application and the Licensed Documentation (collectively, the “Content”). Licensee may establish one user account to access the Content, which access will be limited by the use of an identifying username and password. Licensee is solely responsible for all activity occurring under Licensee’s user account and agrees to notify Licensor immediately if Licensee becomes aware of any loss, theft or unauthorized use Licensee’s username or password. Except where Licensor has actual notice of loss, theft or unauthorized use of Licensee’s username or password, Licensor shall have the right to rely, without further inquiry, on provision of the username and password as sufficient to authenticate use of the Content by Licensee. 2.3 Restrictions on Use. Licensee shall not, nor shall it allow any of its affiliates or any third party to, make any alterations, modifications or revisions to the Content. Licensee shall not �conduct, cause or permit: (i) the use, copying, modification, rental, lease, sublease, sublicense, or transfer of the Content except as expressly provided in this Agreement; (ii) the creation of any derivative works based on the Content, or any component thereof; or (iii) the reverse engineering, disassembly, decompiling or recompiling of the Content. 2.4 Ownership of Materials. All patents, copyrights, circuit layouts, source code, object code, microcode, mask works, trade secrets, and other proprietary rights in or related to the Content are and will remain the sole and exclusive property of Licensor, whether or not specifically recognized or perfected under the laws of the jurisdiction in which the Content is used or licensed. Licensee will not take any action that infringes or otherwise jeopardizes Licensor’s proprietary rights or acquire any right in the Content or any other Confidential Information (as defined below) of Licensor. Licensor will own all rights in any copy, translation, modification, adaptation, or derivation of the Licensed Web Application or other items of Licensor’s Confidential Information, including any improvement or development thereof. Licensee will obtain, at Licensor’s request, the execution of any instrument that may be appropriate to assign these rights to Licensor or perfect these rights in Licensor's name. 2.5 Licensor Obligations. Except as otherwise expressly set forth herein, Licensor’s sole obligation with respect to the Content shall be to provide access to the Content in accordance with, and subject to, the provisions of this Agreement. 2.6 Third-Party Software and Hardware. Licensee shall have sole responsibility to obtain and pay for any third-party software or hardware necessary or desirable to access the Content or operate the Licensed Web Application. III. FEES 3 .1 Fees. To obtain the License granted hereunder, Licensee shall pay the fee set forth on Schedule 1 hereto and incorporated herein by this reference (the “License Fee”). Licensor may modify the License Fee upon thirty (30) days prior notice to Licensee. 3.2 Taxes. All governmental taxes (including, without limitation, sales and use taxes), tariffs, assessments, duties or levies of any kind or nature relating to or arising from this Agreement or Licensee’s use of the Licensed Web Application (other than taxes based on Licensor’s income) shall be the sole liability and responsibility of Licensee. IV. TERMINATION 4.1 Termination For Cause. Licensor may terminate this Agreement immediately upon notice to Licensee for: (i) Licensee's breach of any representation, warranty or covenant set forth in this Agreement; (ii) Licensee’s misuse of the Content in contravention of this Agreement; or (iii) the failure of Licensee to perform any of its obligations under this Agreement. 4.2 Termination Without Cause. This Agreement may be terminated by Licensor or by Licensee at any time following the date that is ninety (90) days from the date of this Agreement, with or without cause, for any reason or no reason, effective thirty (30) days following the giving of written notice thereof by the terminating party. �4.3 Termination for Bankruptcy or Insolvency of Licensee. This Agreement shall immediately terminate and be of no further force or effect, without notice or any other action by Licensor, upon: (i) the institution of bankruptcy, receivership, insolvency, reorganization, or other similar proceedings by or against Licensee under any section or chapter of the United States Bankruptcy Code, as amended, or under any similar laws or statutes of the United States or any state thereof; (ii) the insolvency or making of an assignment for the benefit of creditors or the admittance by Licensee of any involuntary debts as they mature or the institution of any reorganization arrangement or other readjustment of debt plan of Licensee not involving the United States Bankruptcy Code; (iii) the appointment of a receiver for all or substantially all of Licensee’s assets; or (iv) the taking of any corporate (or other entity) action by the board of directors (or other managers) of Licensee in furtherance of any of the above actions. 4.4 Remedies; Effect of Termination. Upon termination of this Agreement, Licensee shall return to Licensor all Content and any other Confidential Information of Licensor, in whatever form such materials are held by Licensee and including all copies thereof. Licensee acknowledges that all such materials are the property of Licensor and Licensee agrees not to retain any copies of such materials after the termination or cancellation of this Agreement. Upon Licensor’s written request, Licensee agrees to provide a written certification to Licensor that Licensee has complied with the Licensor’s demand in a form acceptable to Licensor. In addition to the remedies set forth above or otherwise under this Agreement, Licensor may electronically disable access to the Licensed Web Application upon the termination or cancellation of this Agreement. 4.5 Licensor’s Cure Right. If there is a material breach by Licensor of this Agreement, Licensor may, in its sole discretion: (i) procure for Licensee the right to continue using the Content or any portion thereof; (ii) replace or modify the Content, or any portion thereof, to cure the breach; or (iii) terminate Licensee’s right to use the Content and provide Licensee a partial refund or credit, in an amount determined to be equitable by Licensor, in Licensor’s sole discretion, for a portion of the License Fee actually paid by Licensee to Licensor hereunder. 4.6 Survival. The termination of this Agreement, for whatever reason or for no reason, shall not affect any liability or obligation of either party hereunder which shall have accrued prior to or as a result of such termination, including, but not limited to, any liability for loss or damage on account of breach, nor shall the termination of this Agreement (by either party, for whatever reason or for no reason) affect the terms or provisions hereof which contemplate performance by or continuing obligations of a party beyond the termination hereof, including, without limitation, the obligations of Licensee under Sections 2.3, 2.4, 4.4, Article VI, Article VII, Article VIII, Article IX, Article X, and Sections 11.6, 11.15, 11.17 and 11.18 of this Agreement. V. LICENSEE WARRANTIES Licensee hereby represents and warrants that: (i) if Licensee is an entity, it is a legal entity duly organized, validly existing and in good standing in the jurisdiction of its organization; (ii) it has all requisite power and authority to execute, deliver and perform its obligations hereunder; (iii) the Agreement has been duly and validly executed and delivered by Licensee, and constitutes a valid and binding obligation of Licensee, enforceable against Licensee in accordance with its terms; and (iv) it will comply with all laws and regulations applicable to the performance of its obligations hereunder, including, without limitation, the United States Export Administration Regulations, and will obtain all applicable permits and licenses required of it in connection with its obligations hereunder. �VI. DISCLAIMER OF WARRANTIES LICENSEE HEREBY ACKNOWLEDGES AND AGREES THAT THE CONTENT IS PROVIDED “AS IS” WITH ALL FAULTS, AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH THE LICENSEE. LICENSOR DISCLAIMS ANY AND ALL EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE CONTENT OR ITS CONDITION, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING, LICENSOR DOES NOT WARRANT THAT THE CONTENT WILL MEET LICENSEE’S NEEDS OR REQUIREMENTS, OR THAT THE OPERATION OF THE LICENSED WEB APPLICATION OR OTHER USE OF THE CONTENT WILL BE UNINTERRUPTED, DEFECT-FREE, VIRUS-FREE, ERROR-FREE, OR OTHERWISE PROBLEM-FREE. VII. LIMITATION OF LIABILITY LICENSOR SHALL NOT BE LIABLE FOR ANY (i) SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, ARISING FROM OR RELATED TO A BREACH OF THIS AGREEMENT OR THE OPERATION OF THE LICENSED WEB APPLICATION OR OTHER USE OF THE CONTENT, INCLUDING SUCH DAMAGES, WITHOUT LIMITATION, AS DAMAGES ARISING FROM LOSS OF DATA OR PROGRAMMING, LOSS OF REVENUE, PROFITS OR GOODWILL, FAILURE TO REALIZE SAVINGS OR OTHER BENEFITS, DAMAGE TO EQUIPMENT, AND CLAIMS AGAINST LICENSEE BY ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, CLAIMS, FINES OR PENALTIES BROUGHT OR OTHERWISE IMPOSED BY ANY GOVERNMENTAL AUTHORITY, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (ii) DAMAGES (REGARDLESS OF THEIR NATURE) FOR ANY DELAY OR FAILURE BY LICENSOR TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT DUE TO ANY CAUSE BEYOND LICENSOR’S REASONABLE CONTROL; OR (iii) CLAIMS MADE SUBJECT OF A LEGAL PROCEEDING AGAINST LICENSOR MORE THAN ONE (1) YEAR AFTER ANY SUCH CAUSE OF ACTION FIRST AROSE. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, LICENSOR’S LIABILITY UNDER THIS AGREEMENT, WHETHER UNDER CONTRACT LAW, TORT LAW, WARRANTY, OR OTHERWISE SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE LESSER OF (i) THE LICENSE FEE ACTUALLY RECEIVED BY LICENSOR FROM LICENSEE UNDER THIS AGREEMENT OR (ii) THE ACTUAL AMOUNT OF MONEY DAMAGES INCURRED BY LICENSEE. VIII. CONFIDENTIALITY 8.1 Confidential Information. Each party acknowledges that, pursuant to this Agreement, the parties may receive confidential information regarding the business of the other, and agrees that either party (the "Discloser") may at its option make available to the other party (the "Recipient") non-public information relating to all forms and types of financial, business, marketing, operations, scientific, technical, economic and engineering information, whether tangible or intangible, including without limitation, patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, codes, know-how, computer software, databases, product names or marks, marketing materials or programs, plans, specifications, shoppractices, customer lists, marketing lists, supplier lists, engineering and manufacturing information, �price lists, costing information, employee, independent contractor and consulting relationship information, accounting and financial data, profit margin, marketing and sales data, strategic plans, resumes of consultant(s), trade secrets and all other proprietary information of Discloser, its affiliates, subsidiaries or parent (including all originals, copies, digests and summaries in any form) (collectively, "Confidential Information"). The term "Confidential Information" shall not include any information which: (i) is or becomes publicly known through no wrongful act or failure to act on the part of the Recipient; (ii) is known to the Recipient without proprietary restrictions at the time of disclosure by the Discloser or becomes rightfully known to the Recipient without proprietary restrictions from a source other than the Discloser; (iii) is independently developed by the Recipient without reference to the Confidential Information disclosed by the Discloser with appropriate written documentary evidence; or (iv) is disclosed by order of law, provided, however, that in such event the Recipient shall, if permitted, first give written notice thereof to the Discloser and shall fully cooperate (but at the Discloser’s sole cost and expense) in the Discloser’s attempting to obtain a protective order or other waiver or exclusion from the court or other applicable governmental or other authority. 8.2 Licensor’s Confidential Information. Licensee acknowledges that the Content is confidential and proprietary property of the Licensor, the development of which required the expenditure of considerable time and money by Licensor, and is Confidential Information subject to the restrictions stated above. 8.3 Due Care and Disclosure. The Recipient agrees to receive the Confidential Information in confidence and to keep the Confidential Information confidential using the same degree of care used by the Recipient to protect its own Confidential Information of like nature, but in no event less than a reasonable level of care. The Recipient shall not use, copy, or disclose, nor permit any of its personnel to use, copy, or disclose the same for any purpose that is not specifically authorized under this Agreement. 8.4 Notification Obligation. If Licensee becomes aware of any unauthorized use or disclosure of the Confidential Information of Licensor, Licensee shall promptly and fully notify Licensor of all facts known to it concerning such unauthorized use or disclosure. Notwithstanding the foregoing, Licensee shall exercise its best efforts to preserve the confidentiality of the Confidential Information including, without limitation, by cooperating with Licensor to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information by such tribunal. 8.5 Use. The Recipient shall use such Confidential Information only in connection with the furtherance of the business relationship between the parties, and for no other purpose. Nothing in this Agreement, however, shall restrict either party from using, disclosing or disseminating its own Confidential Information in any way. Licensee shall not permit any personnel of Licensee to remove any proprietary or other legend or restrictive notice contained or included in any material provided by Licensor. Licensee shall ensure that prior to the use of and access to Licensor’s Confidential Information each employee is apprised of the confidential and proprietary nature of the same. �8.6 Third-Party Access. Licensee shall not allow, and shall take all reasonable precautions to prevent, any third party to have access to Licensor’s Confidential Information. If Licensee wishes to disclose any of Licensor’s Confidential Information to contractors engaged by Licensee to provide technical support services in connection with the Licensed Web Application, Licensee must obtain Licensor's prior written approval for such disclosure, which may be withheld in Licensor’s sole discretion, and Licensee shall ensure that such contractors understand the confidential and proprietary nature of Licensor’s Confidential Information and agree to abide by the terms of this Agreement. 8.7 Irreparable Harm. Each party acknowledges that any violation of the provisions of this Article by either party may cause the other party immediate and irreparable damage for which the non-breaching party cannot be adequately compensated by monetary damages. Therefore, in the event of any such breach, the non-breaching party shall be entitled to seek preliminary or other injunctive relief, an order for specific performance, and any other equitable relief that a court may determine to be appropriate, and the non-breaching party shall not be required to post a bond or any other form of surety upon obtaining such equitable relief. The parties agree that such equitable relief will be in addition to any damages or other remedies provided by law and otherwise available to the non-breaching party by reason of the other party’s breach. IX. INDEMNIFICATION 9.1 Indemnification. Licensee shall indemnify and defend Licensor, its managers, members, employees and affiliates, and shall hold such parties harmless from and against any and all losses, claims, liabilities, damages or expenses, including fines, penalties, attorneys’ fees and court costs, arising out of or in connection with: (i) any breach of warranty, misrepresentation, or nonfulfillment of any obligation on the part of Licensee (or any employee, agent or other personnel of Licensee) under this Agreement; (ii) any use of the Content not in accordance with this Agreement or for purposes not intended by Licensor; (iii) any modification of the Licensed Web Application made by any person other than Licensor; (vi) any interpretation of the output generated by the Licensed Web Application, regardless of who interpreted such output; (v) any governmental filing made, or any document subject to governmental regulation created, whether submitted to a governmental authority or otherwise, that was based, in whole or in part, on the output generated by the Content; and (vi) the malfunctioning of any Content while in the possession of Licensee. 9.2 Assumption of Defense. If Licensee fails to assume the defense of any actual or threatened action covered by this Article within the earlier of (i) any deadline established by a third party in a written demand or by a court or (ii) thirty (30) days of notice of the claim, Licensor may follow such course of action as it reasonably deems necessary to protect its interest, including, without limitation, settlement of the claim, and shall be indemnified for all costs reasonably incurred in such course of action, including without limitation reasonable attorneys’ fees and all costs associated with settlement. X. ARBITRATION Any unresolved dispute, controversy or claim arising out of or relating to this Agreement shall be settled by binding arbitration. The expedited procedures of the Commercial Arbitration Rules of the American Arbitration Association in effect on the date that the arbitration is initiated as provided herein shall govern the procedure for the �arbitration. The arbitration shall be conducted by a single arbitrator selected by the Licensor. In making an award, the arbitrator shall apply and follow the substantive laws of the State of Iowa applicable to contracts and agreements made entirely in Iowa, without regard to conflicts of law principles, as they exist on the date the arbitration demand is filed, and to the extent applicable, the Federal Arbitration Act found at 9 U.S.C. § 1, et. seq. The arbitration, including the rendering of the awared, shall take place in Des Moines,Iowa. Any award rendered by the arbitrator may be entered as a judgment or order and confirmed or enforced by either party in Des Moines, Iowa. If either party brings or appeals any judicial action to vacate or modify any award rendered pursuant to arbitration or opposes the confirmation of such award and the party bringing or appealing such action or apposing confirmation of such award does not prevail, such party will pay all of the costs and expenses (including, without limitation, court costs and attorneys’ fees) incurred by the other party in defending such action. The arbitrator may only grant a remedy or relief that is within the scope of this Agreement. The arbitrator shall not award punitive or exemplary damages, and each party to this Agreement waives their respective right to recover such damages under any circumstances. XI. MISCELLANEOUS PROVISIONS 11.1 Notice. Any notice or demand hereunder shall be in writing and shall be sent by registered or certified United States mail, postage prepaid, to the address set forth below or to such other addresses as the parties may designate in writing and shall be effective upon receipt. Legosys Solutions 2600 Grand Ave, Suite 400 Des Moines , Iowa 50312 Attn: President 11.2 Use of Licensee's Name. Licensor shall be entitled to use Licensee's name in a client list at Licensor's discretion. 11.3 Attribution and Press Releases. Licensee shall not issue any press release, promotional material, advertisements, or similar materials discussing the attribution of the Content or the parties' relationship before obtaining Licensor's written approval to the content and issuance of any such material. 11.4 Construction. The parties agree that any principle of construction or rule of law that provides that an agreement shall be construed against the drafter of the agreement in the event of any inconsistency or ambiguity in such agreement shall not apply to the terms and conditions of this Agreement. 11.5 Modifications. This Agreement may not be amended or modified except by written instrument signed by the parties; provided, that a change in the License Fee shall not be deemed to be an amendment or modification of this Agreement. 11.6 Assignment. Licensor shall have the right to assign this Agreement. Licensee shall not assign this Agreement without the prior written consent of Licensor, which consent may be withheld in Licensor’s sole discretion. Any prohibited assignment or sublicense shall be null and void. �11.7 Binding Effect on Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors, legal representatives and assigns. Nothing in this Agreement, express or implied, is intended to confer upon any person other than the parties hereto (and their respective successors, legal representatives and assigns) any rights, remedies, liabilities or obligations under or by reason of this Agreement. 11.8 Waiver. No delay or omission on the part of Licensor in exercising any right hereunder shall operate as a waiver of such right or any other right under this Agreement. 11.9 Headings. The article, section and paragraph headings used herein are for reference only and shall not limit or control any term or provision of this Agreement or the interpretation or construction thereof. 11.10 Schedules. All schedules referred to, in, or attached to this Agreement are integral parts of this Agreement as if fully set forth herein and are incorporated herein by this reference. 11.11 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, or otherwise unenforceable for any reason, the remaining provisions of this Agreement shall remain in full force and effect. 11.12 Entire Agreement. This Agreement and the schedules referred to herein constitute the entire contract between the parties hereto pertaining to the subject matter hereof and supersede all prior proposals, agreements, understandings, negotiations, and discussions, whether written or oral, of the parties in connection with the subject matter hereof. 11.13 Nature of Relationship; Authority of Parties. Nothing contained in this Agreement and no action taken or omitted to be taken by Licensor or Licensee pursuant hereto shall be deemed to constitute the parties a partnership, an association, a joint venture or other entity whatsoever. This Agreement is not intended and shall not be construed to constitute Licensor or Licensee to be an agent of the other or cause Licensor or Licensee to be responsible in any way for the acts, omissions, debts, liabilities or obligations of the other. Neither Licensor nor Licensee has the authority to bind the other in any respect whatsoever. 11.14 Attorneys' Fees. In the event of an alleged breach of this Agreement by Licensee, Licensor shall be entitled to reimbursement of all of its costs and expenses, including reasonable attorneys' fees, incurred in connection with such dispute, claim, or litigation, including any appeal therefrom. 11.15 Force Majeure. In the event that either party is prevented from performing or is unable to perform any of its obligations under this Agreement due to any cause beyond its reasonable control, then that party's performance shall be excused and the time for performance shall be extended for the period of delay or inability to perform due to such occurrence. �
nw/69.txt
FedEx Confidential FRENCH LANGUAGE VERSION OF THIS FEDEX END-USER LICENSE AGREEMENT FOLLOWS ENGLISH VERSION FEDEX SHIP MANAGER® SOFTWARE END-USER LICENSE AGREEMENT Software version 2900 (United States, Canada, Puerto Rico, Mexico, Barbados, Bermuda, Costa Rica and Dominican Republic Use Only) To use the Product (as defined below), you must agree to abide by this Agreement (as defined below). This Agreement gives each of us certain rights and responsibilities. You will be assuming full and sole responsibility for all use of the Product occurring under your FedEx account number (“Account Number”) and registration information (e.g., meter number(s), credentials, etc); you will be limiting your remedies. Please read this Agreement carefully. You will be required to accept this Agreement in order to complete the registration process. By clicking the "I accept the terms of the license agreement" button, you accept and agree to be bound by all of the provisions of this Agreement, including those incorporated by reference, without modification, limitation or qualification. You will be binding yourself or your company to this Agreement. You represent that you have the authority to bind your company, if done on behalf of a company, to this Agreement. If you do not have such authority, you must click the "I do not accept the terms of the license agreement" button. You must also click the "I do not accept the terms of the license agreement" button if you do not agree with this Agreement. If you do not accept the terms of the license agreement, you will not be authorized to access or use the Product and/or the FedEx services available through such Product. Your use of the Product, including the collection, storage and use of shipping data and related information is subject to the FedEx privacy policy, a copy of which is available at http://www.fedex.com/us/security/privacy-policy.html and for Canadian users, a copy of which is available at http://www.fedex.com/ca_english/privacycode.html. FedEx End-User License Agreement If you use this Product within the United States (with the exception of Puerto Rico), this license agreement (“Agreement”) is entered by and between FedEx Corporate Services, Inc., an entity located at 30 FedEx Parkway, Collierville, TN 38017 (“FedEx”) and you (“Licensee”). If you use this Product outside of the United States, this Agreement is between you and Federal Express Corporation or the applicable Federal Express Corporation operating company, branch or subsidiary in your jurisdiction (also referred to as “FedEx”). In consideration of the mutual promises and obligations set out below, the sufficiency of which the parties acknowledge, FedEx and Licensee acknowledge and agree as follows: Section 1. (a) Grant. Subject to the terms and conditions of this Agreement, FedEx grants Licensee a personal, non-exclusive, royalty-free, non-assignable, non-transferable, limited, revocable license, without the right to grant sublicenses, to: (i) access and use, within the United States, Canada ,Puerto Rico, Mexico, Barbados, Bermuda, Costa Rica and Dominican Republic only the FedEx shipping services application, currently known as FedEx Ship Manager Software, (“Product”) solely for the purposes of accessing and using those shipping and shipping related services offered, from time to time, by FedEx or its affiliates as made available 1 �FedEx Confidential through the Product (“FedEx Services”); and, (ii) access and use Documentation (as defined below) solely for the purposes of accessing and using the Product and obtaining FedEx Services. (b) Restrictions. (i) The license does not permit, and Licensee will not (and will not permit any employee or other third party to): 1. Reverse engineer, decompile, disassemble, or translate the Product except as expressly permitted by law; 2. Work around any technical limitation in the Product; 3. Use the Product to provide service bureau, time-sharing, software as a service or other computer software or database services to or for the benefit of third parties; 4. Apply any procedure or process to the Product in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings for the Product or any trade secret or confidential information or process contained in the Product; 5. Remove, obscure, modify or otherwise change any product identification, copyright or other notices or legends contained in or on, or available through, the Product or Documentation; 6. Transfer the Product, Documentation or the license, all whether in whole or in part, or grant any rights in the Product, Documentation, or the license, all whether in whole or in part by sublicense or otherwise; 7. Except as expressly permitted under Section 1(a) herein, provide, rent, lease, lend, or otherwise use or allow others to use or have access to the Product or any portion thereof; 8. Disseminate or disclose performance information or analysis (including, without limitation, benchmarks) relating to the Product without the prior written consent of FedEx; 9. Use or display the Product or Documentation or any portion of either except as expressly authorized in and in accordance with Section 1(a) above; 10. Reproduce or distribute the Product or Documentation; 11. Modify or create derivative works of the Product or Documentation; or, 12. Use the Product to perform or order FedEx Services by or for the benefit of third parties. For the avoidance of doubt, the functionality available through the Product (e.g., that which enables Licensee to label, rate, route, record, track and invoice) may only be used by Licensee for shipments tendered to FedEx for carriage on behalf of Licensee unless expressly permitted by a separate written agreement between FedEx and Licensee. (ii) Licensee shall promptly notify FedEx in writing upon its discovery of any unauthorized use of the Product or Documentation. FedEx may prevent access to or use of the Product or FedEx’s systems if FedEx has reason to believe that (a) Licensee or third party using the Product licensed to Licensee may be involved in potential unauthorized use of or other infringement of FedEx’s proprietary rights or (b) Licensee or its use of the Product is in violation of this Agreement. (iii) Licensee acknowledges and agrees that the Product and Documentation are subject to export restrictions and controls imposed by various statutes and regulations, (collectively, "the Acts") including the Export Administration Act and the Export Administration Regulations. Licensee shall not use, export or re-export the Product or Documentation except as authorized by and in compliance with the Acts and all laws and regulations of the jurisdiction in which FedEx made the Product available to Licensee. Without limiting the foregoing, Licensee shall not export or re-export the Product or Documentation (i) into or to a national or resident of any embargoed countries under the Acts (ii) to a Denied Party listed on U.S. Department of Commerce's list of U.S. Denied Persons or a Special Designated National on the U.S. Treasury Department's list of Specially Designated Nationals or on any similar lists in any country where Licensee uses the Product. By entering into this Agreement, Licensee represents and warrants 2 �FedEx Confidential that Licensee is not located in, under control of, or a national or resident of any such country or on any such list. (iv) The Product utilizes software provided subject to an open source license agreement(s) (each such software is an “Open Source Component”). A list of Open Source Components included with this Product, and the applicable license(s) can be found at fedex.com/us/opensource/OSS.html. BY INSTALLING AND USING THIS PRODUCT AND AN OPEN SOURCE COMPONENT YOU ARE ALSO AGREEING TO THE TERMS AND CONDITIONS OF THE APPLICABLE OPEN SOURCE LICENSE AGREEMENTS AND NOTICES GOVERNING SUCH OPEN SOURCE COMPONENT. Any Open Source Component utilized by the Product is provided to you under the terms of the applicable open source license agreement or copyright notice. FedEx, and the licensors of the Open Source Components, hereby disclaims any and all liability to Licensee or any third party arising from or related to any Open Source Component or Licensee’s use, or inability to use, an Open Source Component. All Open Source Components are provided "AS IS" and without warranty or support of any kind from FedEx or its licensors. (v) In addition to the provisions of this Agreement, if Licensee is an agency, department, or other entity of the United States Government (“Government”), pursuant to 48 C.F.R. 12.212 or 48 C.F.R. 227.7202, as applicable, the (a) Product and (b) any related materials, specifications, technical data, and documentation (collectively, “Documentation”) are Commercial Items as defined in 48 C.F.R. 2.101 and are licensed to Government end users only as Commercial Items and only with the rights granted to all other end users as provided in this Agreement. Manufacturer is FedEx Corporate Services, Inc., 30 FedEx Parkway, Collierville, TN 38017. (c) Modifications. To the extent FedEx makes available to Licensee any updates, upgrades, enhancements, bug-fixes or other modifications to the Product (collectively, “Modifications”), such Modifications shall be considered a part of the Product and subject to the terms and conditions of this Agreement; provided, however, a Modification may come with its own imbedded license agreement and in the event of a conflict between this Agreement and any imbedded license agreement, the terms of the imbedded license agreement control. For the avoidance of doubt, except as otherwise stated, “Product” includes “Modification.” (d) Ownership and Reservation of Rights. All right, title and interest, including all intellectual property rights, in and to the Product, Modifications (if any), and Documentation, are owned exclusively by FedEx and/or its licensors. The Product, Modifications and Documentation are licensed, not sold, and are and shall at all times remain the property of FedEx and/or its licensors. Except for the limited, revocable license granted in Section 1(a), Licensee shall have no right, title or interest in any of the Product, Modifications or Documentation, and shall not allow any lien or encumbrance to exist on any of the foregoing. Except for the express license granted in Section 1(a), all rights in and to the Product, Modifications and Documentation are reserved. (e) FedEx affiliates. Licensee hereby acknowledges that, unless otherwise specified, when used in this Agreement, the name “FedEx” shall include FedEx Corporate Services, Inc., its parent company and any and all of its affiliate companies, including without limitation Federal Express Corporation (and its applicable operating company, branch or subsidiary in your jurisdiction) and FedEx Ground Package System, Inc.; provided, however, Licensee acknowledges that the sole obligor under this Agreement is FedEx Corporate Services, Inc. alone. Licensee further acknowledges that the contract of carriage for shipments made by Licensee using the Product (and not the terms governing use of such Product) is between Licensee and the FedEx company, subsidiary or branch to which Licensee tenders the package 3 �FedEx Confidential within the United States, Canada, Puerto Rico, Mexico, Barbados, Bermuda, Costa Rica and Dominican Republic. Section 2. Licensee Obligations. (a) Systems and Access. This Agreement governs Licensee’s access and use of the Product as provided above and under the Account Number(s) and/or registration information (e.g., meter numbers, credentials, etc) provided to Licensee by FedEx. Licensee will follow FedEx's instructions, including those provided in the Product and/or Documentation, provided from time to time, for access and use of the Product. Licensee is solely responsible for providing and maintaining all hardware necessary to access and use the Product. In addition, Licensee acknowledges from time to time to cooperate with and accept any upgrade made by FedEx and that Licensee will make such upgrade at its expense pursuant to the instructions provided by FedEx. Unless otherwise instructed by FedEx, Licensee shall always use and run the latest version of the Product as made available for Licensee by FedEx from time to time. Licensee is solely responsible for obtaining access to the Internet or World Wide Web. Such access is required to utilize the Product. In addition to such access, Licensee shall provide FedEx with on-demand remote access to the Product (whether via Internet or dedicated communication line (e.g., telephone)) so that FedEx may access the Product, from time to time, in order to: configure the Product, make modifications to the Product, provide Limited Support Services (if any), as defined below, obtain, use and modify data and information, rating and routing information to the Product, and/or disable the Product. FedEx may modify the Product at any time for any reason and Licensee hereby consents to all such modifications. In case Licensee does not agree to the modifications, Licensee may terminate this Agreement in accordance with Section 3. In the event FedEx is unable to establish communication with Licensee’s systems for reasons not attributable to FedEx, Licensee will assist FedEx within a commercially reasonable time to initiate such communication. If required, when instructed by FedEx (and on an ongoing basis thereafter), Licensee will complete an End of Day Close Process as required by FedEx to ensure FedEx shipping transactions are uploaded to FedEx at the close of each business day. (b) Maintenance. FedEx in its sole discretion may (i) repair, modify, replace, disable, monitor, or remove the Product; and (ii) provide installation and integration assistance or technical support with respect to Licensee’s access to and use of the Product (collectively (i) and (ii) referred to herein “Limited Support Services”). Notwithstanding the foregoing, FedEx is under no obligation to provide Limited Support Services, or any other services, or Modifications hereunder. (c) Information and Data. Licensee is advised and encouraged to maintain back-up copies of any data or information (including, names, addresses, reports, etc.) that it uses or stores with, through or in the Services or the Product (collectively, “Data”). FedEx is not and will not be responsible for the loss of or damage to any Data. Licensee will not load, process or store Data on or through the Product not required or related to the conduct of business with FedEx. FedEx shall have access to and use of the Data used or processed on, through, in or with the Product. FedEx reserves the right to access, use, delete or remove any Data in connection with the provision of any FedEx Services or in connection with this Agreement. In addition, Licensee consents to the collection, storage, use and disclosure by FedEx or its designee (including affiliates and services providers) of the following non-shipping related data and information including, without limitation: (i) Your user configurations and computer system settings and specifications such as operating system type and version, device name, workgroup name, machine name, available memory or hard drive size; (ii) IP address; (iii) Product information, including version; and (iv) other general system information, which FedEx and/or its designees may use for responding to Licensee’s requests, processing transactions, product support, and product development, excluding any direct marketing purposes. You acknowledge that the 4 �FedEx Confidential collection of such information may be necessary for FedEx to provide some or all of the FedEx Services, and that if Licensee refuses such collection FedEx may not be able to provide some or all of the FedEx Services. In addition, Licensee consents to the transfer of such information to FedEx and/or its designees (including affiliates and services providers) in jurisdictions outside of Licensee’s home jurisdiction, which may not provide an equivalent level of protection to such data, including to the United States. In accordance with applicable data protection law, Licensee may have the right to access personal data FedEx holds about you and to request the rectification of any inaccurate data. Please see http://www.fedex.com/us/security/privacypolicy.html for more information and for Canadian users, a copy of which is available at http://www.fedex.com/ca_english/privacypolicy.html. A list of FedEx affiliates may be found at http://about.van.fedex.com/our-story/company-structure (d) Supplies. Licensee acknowledges that it is responsible for the purchase of any supplies necessary to use the Product or Service and will contact the applicable third party that provides such supplies to determine what, if any, supplies it must purchase for use of any Product or FedEx Service. Section 3. Termination. This Agreement is effective until terminated by either party. This Agreement will terminate independently without notice if Licensee fails to comply with any provision of this Agreement or any instructions regarding the Product provided by FedEx. Upon termination for any reason, Licensee must cease all use of the Product. FedEx reserves the right to unilaterally terminate this Agreement and the use of the Product at any time, for any reason, and by whatever means. Section 4. Payment. With respect to FedEx Services, Licensee will follow all of FedEx’s payment terms and instructions. Licensee will remit payment, in accordance with the terms and conditions contained in the applicable FedEx transportation agreement, FedEx Service Guide ("Service Guide"), or as otherwise instructed by FedEx. Licensee is responsible for payment of all charges generated through use of the Product under the Account Number(s) and registration information (e.g., meter numbers, credentials, etc). Any rates reflected in or published by the Product, if shown, are offered for information purposes only and may be different from the actual charges for FedEx Services incurred by Licensee Section 5. Adjustments and Refunds. With respect to FedEx Services, Licensee may bill shipping charges for transactions conducted through the Product only to valid FedEx account numbers (e.g., bill sender, bill recipient or bill third party). Shipments tendered to FedEx with incorrect or incomplete routing, labeling, commitment date, service designation or other errors will not be eligible for refunds under FedEx's money-back guarantees. Refunds requested by Licensee with respect to any shipment must be made in accordance with the applicable Service Guide or Licensee’s transportation agreement with FedEx. Licensee will not be entitled to any refund or credit under FedEx's money-back guarantees if FedEx determines that the claim resulted from improper use of the Product. FedEx, in its sole discretion, may suspend its money-back guarantees in the event Product fails or is inoperable for any reason. Section 6. Disclaimer of Warranty. LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES THAT FEDEX, ITS AFFILIATES AND ITS LICENSORS ARE NEITHER PROVIDING ANY SUPPLIES OR TOOLS NECESSARY TO USE THE PRODUCT NOR CHARGING LICENSEE A FEE FOR USE OF THE PRODUCT OR FOR PROVIDING THE LIMITED SUPPORT SERVICES, IF ANY. THE PRODUCT AND LIMITED SUPPORT SERVICES ARE PROVIDED “AS-IS” WITHOUT REPRESENTATION OR WARRANTY OF KIND. 5 �FedEx Confidential TO THE EXTENT PERMITTED BY APPLICABLE LAW, FEDEX, ITS AFFILIATES, ITS LICENSORS AND ITS REPRESENTATIVES (AS DEFINED IN SECTION 8 BELOW), DISCLAIM AND EXCLUDE ALL WARRANTIES, WHETHER, EXPRESS, STATUTORY, OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND THE WARRANTIES OF NONINFRINGEMENT OR QUIET ENJOYMENT. FEDEX, ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT THE PRODUCT WILL MEET ANY OR ALL OF LICENSEE’S REQUIREMENTS OR THAT THE PRODUCT’S OPERATIONS WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ANY DEFECT WITHIN THE PRODUCT WILL BE CORRECTED. FEDEX, ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT THE LIMITED SUPPORT SERVICES WILL MEET ANY OR ALL OF LICENSEE’S REQUIREMENTS OR THAT THEY WILL CORRECT ANY DEFECT WITHIN THE PRODUCT. FEDEX, ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT THE PRODUCT, LIMITED SUPPORT SERVICES OR ANY OTHER RELATED SERVICES OR CONTENT IS FREE FROM BUGS, VIRUSES, ERRORS OR OTHER PROGRAM LIMITATIONS. FEDEX, ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT ACCESS TO THE INTERNET OR TO ANY OTHER SERVICE OR CONTENT THROUGH THE PRODUCT. FURTHERMORE, FEDEX, ITS AFFILIATES AND ITS LICENSORS DO NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE RESULTS OF LICENSEE’S INSTALLATION OR USE OF THE PRODUCT OR THE LIMITED SUPPORT SERVICES IN TERMS OF CAPABILITY, CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION, REPRESENTATION OR ADVICE GIVEN BY FEDEX, ITS AFFILIATES OR AN AUTHORIZED REPRESENTATIVE OF EITHER SHALL CREATE ANY WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO LICENSEE. IN THAT EVENT, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO SIXTY (60) DAYS FROM THE DATE OF RECEIPT OF THE APPLICATION. HOWEVER, SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE. THIS WARRANTY GIVES LICENSEE SPECIFIC LEGAL RIGHTS AND LICENSEE MAY HAVE OTHER RIGHTS AS WELL WHICH VARY FROM JURISDICTIONS TO JURISDICTIONS AND FROM COUNTRY TO COUNTRY. Section 7. Remedies. TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR SOLE REMEDY FOR ANY DISSATISFACTION WITH THE PRODUCT OR LIMITED SUPPORT SERVICES IS TO STOP USING THE PRODUCT. LICENSEE AGREES THAT THE REMEDY SET FORTH IN THIS SECTION IS LICENSEE’S EXCLUSIVE REMEDY UNDER THIS AGREEMENT FOR ANY DISSATISFACTION WITH ITS ACCESS TO OR USE OF (OR INABILITY TO DO EITHER) THE PRODUCT OR LIMITED SUPPORT SERVICES. Section 8. LIMITATION OF LIABILITY. LICENSEE ACKNOWLEDGES THAT FEDEX IS PROVIDING THE PRODUCT AND LIMITED SUPPORT SERVICES, IF ANY, TO LICENSEE FREE OF CHARGE. THE ENTIRE LIABILITY OF FEDEX, ITS AFFILIATES, ITS LICENSORS AND ITS REPRESENTATIVES (AS DEFINED BELOW) FOR ANY REASON SHALL BE LIMITED TO US $100.00 WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STATUTORY OR STRICT LIABILITY OR OTHERWISE EVEN IF FEDEX OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FEDEX, ITS LICENSORS AND ITS PARENT COMPANY AND SUBSIDIARIES AND AFFILIATES, DIRECT AND INDIRECT, OF ITS PARENT COMPANY, LICENSORS, SUPPLIERS, OR ANY OF THE FOREGOING’S RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS AND/OR AGENTS (COLLECTIVELY, “REPRESENTATIVES”) ARE NOT AND SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES (INCLUDING: DAMAGES FOR LOSS OF BUSINESS, LOSS OF DATA, LOSS OF PROFITS, DAMAGES TO LICENSEE’S COMPUTER SYSTEMS OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, 6 �FedEx Confidential STATUTORY OR STRICT LIABILITY OR OTHERWISE EVEN IF FEDEX, ITS LICENSORS OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION AND/OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN FEDEX AND LICENSEE. FEDEX WOULD NOT BE ABLE TO PROVIDE THE PRODUCT WITHOUT SUCH LIMITATIONS. Section 9. Controlling Law and Severability. This Agreement and the FedEx Services shall be governed by and construed in accordance with the laws of the United States and the State of Tennessee, excluding its conflicts of law provisions. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or a portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties and the remainder of this Agreement shall remain in full force and effect. Any cause of action with respect to the Product must be instituted within one (1) year after the claim or cause of action has arisen in and must be brought in a court of competent jurisdiction in Shelby County, Tennessee or be barred. Section 10. Terms and Conditions of Carriage. (a) It is understood and agreed by Licensee that the Product may contain functionality which may be used by Licensee to make shipments through carriers other than FedEx.. If so, Licensee agrees that it will look solely to such third party carriers for the terms under which Licensee may tender shipments to and have its shipments carried by such third party carriers and that, as between FedEx and Licensee, Licensee is solely responsible for its compliance with such third party carriers' terms of shipping and will look solely to such third party carriers for all remedies attributable to claims arising out of the third party carriers’ carriage of Licensee’s shipments. LICENSEE WILL DEFEND, INDEMNIFY AND HOLD HARMLESS FEDEX, ITS AFFILIATES, AND ITS AND THEIR OFFICERS, AGENTS, SUBCONTRACTORS, EMPLOYEES AND LICENSORS FROM ALL CLAIMS, DEMANDS AND JUDGMENTS, INCLUDING THE PAYMENT OF ATTORNEYS FEES, FROM THIRD PARTY CARRIERS ARISING OUT OF LICENSEE’S USE OF THE PRODUCT TO PROCESS SHIPMENTS TENDERED TO SUCH CARRIERS. (b) With respect to FedEx Services, Licensee agrees that domestic and international carriage by FedEx of any shipments tendered to FedEx pursuant to this Agreement or using the Product shall be in accordance with the terms, conditions and limitations of liability set out on the NONNEGOTIABLE Air Waybill, Label, Manifest, or Pick-Up Record (collectively “Shipping Documentation”) and as appropriate any transportation agreement between Licensee and FedEx covering such shipment and in any applicable tariff, Service Guide or Standard Conditions of Carriage, copies of which are available upon request, and which are incorporated into this Agreement by reference. If there is a conflict between the Shipping Documentation and any such document then in effect or this Agreement, the transportation agreement, tariff, Service Guide, Standard Conditions of Carriage, or this Agreement will control, in that order of priority. If a shipment originates outside the United States, the contract of carriage is with the FedEx subsidiary, branch, or independent contractor who originally accepts the shipment. (c) In the event Licensee uses the Product to process shipments tendered to FedEx for delivery to locations outside the United States or country of shipment origin, Licensee will, at Licensee’s sole expense, assure that the terms and conditions of international carriage supplied by FedEx from time to time (and which may be amended or modified from time to time at FedEx's sole 7 �FedEx Confidential discretion) are placed on the Shipping Documentation, as instructed by FedEx, for all such international shipments. LICENSEE WILL DEFEND, INDEMNIFY AND HOLD HARMLESS FEDEX, ITS LICENSORS AND ITS REPRESENTATIVES FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES, CLAIMS AND OTHER ITEMS OF COST AND EXPENSE ARISING OUT OF LICENSEE’S FAILURE TO APPLY THE INTERNATIONAL CARRIAGE TERMS TO THE SHIPPING DOCUMENTATION FOR SUCH INTERNATIONAL SHIPMENTS, INCLUDING WITHOUT LIMITATION CLAIMS FROM THE RECIPIENT OF ANY SHIPMENT, AND LICENSEE’S FAILURE TO FOLLOW FEDEX'S INSTRUCTIONS IN REGARD TO THE PLACEMENT OF THE TERMS ON THE SHIPPING DOCUMENTATION FOR SUCH INTERNATIONAL SHIPMENTS. (d) Licensee acknowledges that if the Product is used to process shipments to locations outside the United States or country of shipment origin, Licensee must enter the name of the person completing the Shipping Documentation to print in lieu of its manual signature on the Shipping Documentation, as applicable, for all shipments tendered by Licensee to FedEx using the Product. Licensee further acknowledges that such printed name shall be sufficient to constitute the Licensee’s signature, and Licensee’s acceptance of FedEx's terms and conditions of carriage contained in the applicable transportation agreement, tariff, Service Guide, Standard Conditions, or Shipping Documentation, under which the shipment is accepted by FedEx, or its independent contractor. (e) Unless otherwise indicated, the shipper's address indicated on the face of any Shipping Documentation is the place of execution and the place of departure and the recipient's address listed on the face of the Shipping Documentation is the place of destination. Unless otherwise indicated on the face of the Shipping Documentation the first carrier of all shipments is Federal Express Corporation, 3610 Hacks Cross Road, Memphis, TN, 38125. In the event another carrier is listed on any such document, that carrier is the first carrier of the shipment. The address for FedEx Ground is P.O. Box 108, Coraopolis, PA 15230. Section 11. INDEMNITY. LICENSEE SHALL, AT LICENSEE’S SOLE COST AND EXPENSE, DEFEND, INDEMNIFY AND HOLD FEDEX, ITS LICENSORS AND ITS REPRESENTATIVES FROM AND AGAINST ALL CLAIMS, DEMANDS, SUITS, DAMAGES, LOSSES, LIABILITIES, COSTS, EXPENSES, FINES AND JUDGMENTS, INCLUDING REASONABLE ATTORNEY’S FEES, (HEREINAFTER, COLLECTIVELY, “CLAIMS”) ARISING OUT OF OR RELATING TO (A) LICENSEE’S INSTALLATION, USE (OR INABILITY TO USE) AND/OR REMOVAL (OR INABILITY TO REMOVE) OF THE PRODUCT OR ANY OTHER MATERIALS OR SERVICES PROVIDED TO LICENSEE BY OR ON BEHALF OF FEDEX OR ITS REPRESENTATIVES(B) THE INTENTIONAL ACTS, WILFULL MISCONDUCT OR NEGLIGENCE (ACTS OR OMISSIONS) OF LICENSEE, ITS EMPLOYEES, OFFICERS, DIRECTORS, SUPPLIERS, CUSTOMER, AGENTS, USERS, OR REPRESENTATIVES (COLLECTIVELY, FOR PURPOSES OF SECTIONS 11(B) AND 11(C), “LICENSEE”); OR, (C) LICENSEE’S BREACH OF THIS AGREEMENT. FEDEX MAY INTERVENE AND ASSUME ITS DEFENSE IN ANY SUCH CLAIMS, AT ITS EXPENSE AND IN ITS SOLE DISCRETION. LICENSEE WILL NOT SETTLE ANY CLAIMS INVOLVING FEDEX OR THE PRODUCT WITHOUT THE PRIOR WRITTEN CONSENT OF FEDEX. Section 12. Complete Agreement. This Agreement constitutes the entire agreement between Licensee and FedEx with respect to the Product, and supersedes any prior or contemporaneous understandings, representations, statements or agreements, written or oral, regarding the Product. Notwithstanding the foregoing, any Product or Modification may come with its own imbedded license agreement and in the event of a conflict between this Agreement and any imbedded license agreement, the terms of the imbedded license agreement control. As used in this Agreement, “including” means “including, without limitation” and is illustrative rather than exhaustive. No amendment to or modification of this Agreement will be binding on FedEx without FedEx's written consent. Licensee may not assign or otherwise transfer this Agreement or the licenses granted herein, including by operation of law without the prior written consent of FedEx. Any assignment or transfer in violation of the foregoing is void and of no effect. In 8 �FedEx Confidential addition, except for FedEx Representatives, Licensee and FedEx acknowledge and agree that there are no third party beneficiaries to this Agreement. The provisions of Sections 1(b), 1(c), 1(d), 1(e), 2(c), 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12 will survive the termination of this Agreement. Any translation of this Agreement is done for local requirements and in the event of a dispute between the English and non-English version, the English version of this Agreement shall govern. Nothing in this Agreement shall limit or exclude the rights afforded under applicable mandatory legislation to Licensee being a consumer. FedEx Doc. No. 1081305 4/2015 9 �
nw/7.txt
PROMETHEAN ACTIVINSPIRE PROFESSIONAL END USER LICENSE AGREEMENT (“EULA”) V-1.8 This is the End User License Agreement for Promethean’s ActivInspire Professional Edition Software (“the Software”). PLEASE NOTE THAT FOR USE IN CERTAIN COUNTRIES THERE MAY BE COUNTRY SPECIFIC RESTRICTIONS OR COUNTRY SPECIFIC ALLOWANCES OR WAIVERS WHICH APPLY TO THIS EULA FROM TIME TO TIME. PLEASE CHECK THE WEBSITE AT www.prometheanplanet.com/activinspirelicensing TO SEE IF THERE ARE ANY RESTRICTIONS WHICH MAY APPLY TO THE COUNTRY IN WHICH YOU INTEND TO USE THE SOFTWARE. This EULA is entered into between the End-User (“You” or "Licensee") and Promethean Limited (“Promethean”). By agreeing to the terms of this EULA in the manner set forth below, You have agreed to install and use the Software on the terms and conditions set forth herein. PLEASE READ THIS EULA CAREFULLY BEFORE USING THE SOFTWARE. BY INSTALLING THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT INSTALL THE SOFTWARE. 1. Definitions. 1.1 “End-User “(or alternatively referred to as “You”) means the Licensee and, where applicable, any employees (including, without limitation, administrators, teachers, and instructors), consultants, and students who are authorized by the Licensee to Use the Software at the Licensee’s Site. 1.2 “Interactive Display Device” for purposes of this EULA means interactive white boards, interactive projectors, interactive panels or other such interactive technology intended for large group instruction. 1.3 “Licensee” means the entity (or individual if individually acquired) that purchased the Software on its own behalf and, where applicable, on behalf of the End Users. 1.4 “Licensee’s Site” means the location(s) set forth in the order documentation under the jurisdiction or control of the Licensee where the Software is intended to be used in conjunction with an Interactive Display Device. 1.5 “Maintenance Agreement” means a valid current paid up subsisting agreement for the provision of maintenance and support for the Software by Promethean. 1.6 “Promethean Certified Equipment” means those 3rd party Interactive Display Devices which have been approved by Promethean for use with the Software. A list of Promethean Certified Equipment can be found on the ActivInspire Professional specification found on www.prometheanworld.com. 1.7 “Promethean Equipment” means Promethean’s ActivBoard, ActivPanel, ActivTable, 25/32 set kits of ActivExpression, ActiVote devices and ActivEngage software and any other Promethean Equipment as determined by Promethean from time to time. �1.8 “Promethean Partner” means an entity that is authorized to sell or distribute the Software on Promethean’s behalf. 1.9 “Related Purchase” any purchase of Promethean Equipment or Promethean Certified Equipment which comes with a Software license at no additional cost to the purchaser. 1.10 “Territory” means the country in which your residence (in the case of an individual) or your principal place of business (in all other cases), as applicable, is located. 1.11 “Update” means a Software release that increments the revision number of the Software and corrects bugs, defects and or deficiencies or provides minor modification in the existing operation of the Software in accordance with the published specifications but does not substantially change the basic character or structure of the Software. Updates will be provided to those Licensees with a then current Maintenance Agreement. Promethean may, in its sole discretion, provide Updates to Licensees who do not have a then current Maintenance Agreement. 1.12 “Upgrade” means a Software release that increments the Major or Minor version number and which contains enhancements improving functionality or capabilities of the Software thus changing the basic character or structure of the Software. Upgrades will only be provided to those Licensees with a then current Maintenance Agreement. Promethean may, in its sole discretion provide Upgrades to Licensees who do not have a current Maintenance Agreement 1.13 “Use” or “Used” means to directly or indirectly install, load, execute access, employ, utilize, store, or display the Software. 2. General. 2.1 This EULA is a legal agreement between the End–User (whether an individual or the Licensee) and Promethean for the Use of the Software. In the event a Licensee’s systems or technical administrator or other representative is accepting these terms on behalf of all intended End-Users, it is the responsibility of that Licensee to ensure that the terms of this EULA are understood and complied with by each End-User. The Software is protected by copyright laws and international copyright treaties as well as other intellectual property laws and treaties. The Software will be delivered in one of the following manners: contained or installed on Promethean Equipment or Promethean Certified Equipment, downloaded from Promethean’s web-site, or downloaded from a Promethean supplied CD or DVD or other form of physical media. In each case, the Software is licensed, not sold and is subject to the terms and restrictions of this EULA. In the event the Software is delivered by Promethean to an End User on a CD, DVD, or other form of physical media, the Licensee (or End User where applicable) owns the media on which the Software is recorded, but Promethean and/or Promethean’s licensor(s) retain ownership of the Software itself. Under no circumstances will title to or ownership of the Software and any intellectual property rights in and to the Software transfer to the Licensee or any End User. 2.2 For each Software license purchased separately or obtained as part of a Related Purchase, this EULA grants to You a non-transferable, non-exclusive, non-sublicensable, right and license to use the �Software, together with any related materials or documents provided by or on behalf of Promethean to You as part of the Software, during the Term in the Territory only subject to the terms, conditions, and limitations herein. For purposes of clarity, “Software” includes all such related materials and documents. The terms of this EULA will also govern any Software Updates and Upgrades provided by Promethean (including those provided through a Maintenance Agreement) that replace and/or supplement the original Software, unless such Upgrade is accompanied by a separate EULA in which case the terms of that EULA will prevail 3. Intellectual Property Rights. Title to, ownership of the Software, and any patent, copyright, underlying trade secret and other intellectual property rights in and to the Software or any of its parts shall not transfer to You but shall remain with Promethean or its third party licensors. The Software is confidential and proprietary to Promethean and/or its third party licensors and You shall hold the same in confidence. You will not disclose, provide or otherwise make available the Software or any part thereof (including database structures and message formats) or copies thereof to any third party without the prior written consent of Promethean. You will not remove, obscure, or alter any notice of patent, copyright, trademark or other proprietary notice on the Software. You will keep the Software secure, and prevent unauthorized access thereto and copying or use thereof. You will notify Promethean immediately if You become aware of any unauthorized possession or use of the Software by any person or entity without a license. 4. Permitted Use and Restrictions. Whether You have purchased the Software (or received it as part of a Related Purchase) from a Promethean Partner or where You have purchased the Software (or received it as part of a Related Purchase) directly from Promethean, the Software will be used by You in accordance with the terms of this EULA based on the type and number of Licenses specified in the order documentation agreed between You and Promethean or a Promethean Partner as the case may be. To the extent there is a conflict between the terms of this EULA and the terms in any order documentation, the terms of the EULA will prevail. 4.1 Single User License: The License granted hereunder permits the Software to be installed for use by You in accordance with the terms of this EULA on a single computer at the Licensee’s site. The Software will not be used on or transferred to another computer except that the Software may be transferred to an alternate computer if the original computer is not working. Installation of the Software for the purpose of preparatory work only, on one other computer outside the Licensee’s site is permitted. You will not sub-license, lend, lease, rent or transfer or otherwise make the Software available to any third party without the prior written consent of Promethean. In the case of an End User, upon cessation of employment with the Licensee, the Software must be removed from the End User’s personal computer and any copies of the Software should either be destroyed or returned to the Licensee. You will not sub-license, lend, lease, rent or transfer or otherwise make the Software available to any third party without the prior written consent of Promethean. 4.2 Multi-User License: Subject to the concurrent use restrictions set forth in Section 4.3 below, the Software license granted hereunder permits the Software to be installed on up to five (5) computers all of which may be located at the Licensee’s Site or one or more of the five computers may be located �outside of the Licensee’s Site for the purposes of preparatory work for the benefit of the Licensee only. The Software will not be used on or transferred to another computer except that the Software may be transferred to a replacement computer if one of the original five (5) computers is not working. For example where there is a purchase of ten (10) Multi-User Licenses purchased for a Licensee’s Site, subject to the concurrent use restrictions in Section 4.3 below, the Software may be downloaded on up to five (5) computers per License for a total of fifty (50) computers. The fifty (50) computers may all be located at the Licensee’s Site or some of the fifty (50) computers may be located off-site for preparatory work for the benefit of the Licensee only. In the case of an End-User, upon cessation of employment with the Licensee, the Software must be removed from the End-User’s off-site computer and any copies of the Software should either be destroyed or returned to the Licensee. You will not sub-license, lend, lease, rent or transfer or otherwise make the Software available to any third party without the prior written consent of Promethean. 4.3 No Concurrent Use: While each Multi-Use License granted hereunder allows for the Software to be downloaded onto five (5) computers, the license does not allow the Software to be running concurrently on more than one Interactive Display Device per License at any one time. For example, where there is a purchase of ten (10) licenses, the Software may be downloaded on up to fifty (50) computers but the Software shall not be operated concurrently at any given time on more than ten (10) Interactive Display Devices. 4.4 Related Purchase: A “Related Purchase” as used in this EULA means a purchase of Promethean Equipment or Promethean Certified Equipment which comes together with a Software license at no additional cost. The type of Software License (whether it is a Single User or a Multi-User license) that comes with a Related Purchase of Promethean Equipment or Promethean Certified Equipment is specified in the order documentation agreed between You and Promethean or a Promethean Partner as the case may be. Except as otherwise set forth in this Section 4.4, the Software received as part of a Related Purchase is only permitted to be operated with the Promethean Equipment or the Promethean Certified Equipment with which it was purchased. The Software is not permitted to be operated with any other 3rd party Interactive Display Devices. However, in the case of a Related Purchase of ActivEngage Software, ActivExpression and ActiVote kits, subject to the warranty exclusions set forth in Section 9, the Software may be operated on any Interactive Display Device (whether Promethean branded or Promethean certified or a 3rd party’s) so long as the Software is used in conjunction with Promethean’s ActivEngage Software, ActivExpression and ActiVote kits. 4.5 Use with Other Equipment: Except for the restrictions set forth in Section 4.4 (Related Purchases), the Software is permitted to be displayed on any 3rd party manufacturer’s non-interactive or Interactive Display Devices without connection to Promethean Equipment or Promethean Certified Equipment. However, the Software has been specifically designed for optimum performance with Promethean Equipment and Promethean Certified Equipment and no warranty, guarantee or assurance is made or given by Promethean in relation to the performance of the Software with any other equipment. PLEASE NOTE THAT THE WARRANTY SET OUT IN SECTION 9 SHALL NOT APPLY WHERE THE SOFTWARE IS USED IN CONJUNCTION WITH EQUIPMENT OR SOFTWARE THAT IS NOT PROMETHEAN EQUIPMENT OR PROMETHEAN CERTIFIED EQUIPMENT. �4.6 No Transfer or Sub-License: Once the Software has been downloaded on up to five (5) computers per License, it cannot be transferred to another computer except to replace one of the previously loaded computers. In the case of an End-User, upon cessation of employment with the Licensee, the Software must be removed from the End-User’s computer located outside of the Licensee’s Site and any copies of the Software should either be destroyed or returned to the Licensee. 4.7 Back-up Restrictions: You will not copy nor permit any third party to copy the Software, except to make a reasonable number of copies solely for testing, backup or archival purposes provided all copyright and proprietary notices contained on the original are included on the permitted copies. 4.8 Decompilation: You will not modify, decompile, disassemble or otherwise reverse engineer the Software or create derivative works based on the Software. If the Territory is the United Kingdom, You may only exercise rights under s50 of the United Kingdom Copyright Designs and Patents Act 1988 if you have first asked Promethean to disclose the required information and Promethean has declined to do so. 4.9 Proper Use of Software: You acknowledge that the continued integrity of the Software and Promethean’s performance of its obligations described in this License relies upon the proper Use and maintenance of the Software by the End User. Proper Use and maintenance means that the End User will: (i) install all Updates and Upgrades made available to the End User by Promethean; (ii) Use the Software in accordance with the documentation supplied by Promethean and the terms and conditions of this EULA; and (iii) follow Promethean’s instructions for installing new Updates and for correcting and circumventing bugs and fixes to the Software. 4.10 Applicable Laws: You agree to comply with all applicable laws regarding the use of the Software and any component thereof. All title and intellectual property rights in and to content which may be incorporated through use of the Software is the property of the respective content owner and may be protected by applicable copyright or other intellectual property 5. Maintenance of Records. You will maintain accurate and up-to-date records of the number and location of all copies of the Software including but not limited to Software installed on computers located outside of the Licensee’s Site as outlined in Section 4. 6. NFR (Not for Release) and Evaluation Copies. Notwithstanding other sections of this License, Software labeled or otherwise provided to You on a promotional basis may only be used for demonstration, testing and evaluation purposes and may not be resold or transferred. 7. Consent to Use of Data. You agree that Promethean and its affiliates may collect and use technical and related information, including but not limited to technical information about your computer, system and application software, and peripherals, that is gathered periodically to facilitate the provision of Software updates and Upgrades, product support and other services to You (if any) related to the Software, and to verify compliance with the terms of this EULA. Promethean may use this information, as long as it is in a form that does not personally identify You or your End-users, to improve our products or to provide services or technologies to You. �8. Export and U.S. Government Restricted Rights. You agree not to export the Software, or reexport or resell the Software from the Territory, directly or indirectly, or otherwise take any actions which would result in the deemed export of the Software, without first complying with all applicable export laws and regulations. You are responsible for complying with any local laws in your jurisdiction which may impact your right to import, export or use the Software. If you are the U.S. Government or one of its agencies or end users, the Software is a “Commercial Item(s)” as that term is defined at 48 C.F.R. Section 2.101, consisting of “Commercial Computer Software” and “Computer Software Documentation” as such terms are used in 48 C.F.R. Section 12.212 or 48 C.F.R. Section 227.7202 as applicable. Consistent with 48 C.F.R. Section 21.212 or 48 C.F.R. Sections 227.7202-1 through 227.72024, as applicable, the Commercial Computer Software and Computer Software Documentation are being licensed to the U.S. Government, its agencies or end users: (a) only as Commercial Items and (b) only with those rights that are granted to all other end users pursuant to the terms and conditions herein. Unpublished rights reserved under the copyright laws of the United States. 9. Limited Warranty and Disclaimers. 9.1 Limited Warranty: Promethean warrants that the Software when used with Promethean Equipment or Promethean Certified Equipment only will operate in substantial accordance with the Promethean’s published specifications for a period of ninety (90) days beginning on the date it is downloaded by You (the “Warranty Period”). After the Warranty Period, any maintenance and support for the Software will be based on Your entitlements under a current Maintenance Agreement. PROMETHEAN’S SOLE OBLIGATION AND LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY UNDER THIS EXPRESS LIMITED WARRANTY SHALL BE, AT PROMETHEAN’S OPTION AND EXPENSE, TO EITHER (i) USE REASONABLE EFFORTS TO REPAIR THE NON-CONFORMITY OR, (ii) TO PROVIDE A CORRECTED VERSION OF THE SOFTWARE TO YOU SO LONG AS YOU REPORT ANY SUCH NON-CONFORMITY TO PROMETHEAN PRIOR TO EXPIRATION OF THE FOREGOING WARRANTY PERIOD. 9.2 WARRANTY EXCLUSIONS: YOU AGREE THAT PROMETHEAN SHALL NOT BE LIABLE FOR ANY ALLEGED DEFECT OR NONCONFORMITY IF SUCH DEFECT OR NONCONFORMITY RESULTS FROM: (I) YOUR USE OF THE SOFTWARE OTHER THAN IN ACCORDANCE WITH THESE TERMS; OR (II) MODIFICATIONS TO THE SOFTWARE MADE BY PARTIES OTHER THAN PROMETHEAN; OR (III) DAMAGE DUE TO IMPROPER USE, ABUSE, OR NEGLECT. PROMETHEAN DOES NOT WARRANT THAT (A) THE OPERATION OF SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, (B) ALL ERRORS WILL BE REMEDIED, OR (C) THE SOFTWARE WILL MEET YOUR SPECIFIC REQUIREMENTS OR OPERATE WITH ANY HARDWARE, EQUIPMENT OR SOFTWARE OTHER THAN AS SPECIFIED BY PROMETHEAN. ADDITIONALLY, PROMETHEAN DOES NOT WARRANT THE PERFORMANCE OR OPERATION OF THE SOFTWARE, OR ANY PORTION THEREOF, WITH THIRD PARTY INTERACTIVE DISPLAY DEVICES, OTHER THIRD PARTY TECHNOLOGIES OR THIRD PARTY SOFTWARE PRODUCTS THAT ARE NOT DEFINED BY PROMETHEAN AS PROMETHEAN CERTIFIED EQUIPMENT. 9.3 WARRANTY DISCLAIMER: NEITHER PROMETHEAN NOR ANY OF ITS THIRD PARTY LICENSORS OR SUPPLIERS MAKES ANY OTHER REPRESENTATION OR WARRANTY REGARDING THE SOFTWARE, INCLUDING EXPRESS OR IMPLIED WARRANTIES OF SATISFACTORY QUALITY, �MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD PARTY RIGHTS AND ALL OTHER WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. CERTAIN JURISDICTIONS OUTSIDE OF THE UNITED STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM JURISDICTION TO JURISDICTION. 9.4 Nothing in this EULA prevents or restricts any rights which You may have in relation to any maintenance and support for the Software to which you may be entitled under a separate Maintenance Agreement. 10. LIMITATION OF LIABILITY. TO THE EXTENT ALLOWED BY APPLICABLE LAW, NEITHER PROMETHEAN NOR ITS THIRD PARTY LICENSORS OR PROMETHEAN PARTNERS WILL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR ANY INJURY TO ANY PERSON OR PROPERTY, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF PRIVACY, DAMAGES FOR PROCURMENT OF SUBSITUTE GOODS AND SERVICES, DMAGES FOR LOSS OF USE, LOSS OF DATA, DAMAGES FOR FAILURE TO MEET ANY DUTY INCLUDING THE DUTIES OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF OR IN CONNECTION WITH THIS EULA OR THE USE OR PERFORMANCE OF SOFTWARE, EVEN IF NOTICE HAS BEEN GIVEN OF THE POSSIBILITY OF SUCH DAMAGES. THE LIABILITY OF PROMETHEAN AND ITS THIRD PARTY LICENSORS AND PROMETHEAN PARTNERS FOR DIRECT DAMAGES WILL BE LIMITED TO THE FEES ACTUALLY PAID BY YOU FOR THE AFFECTED SOFTWARE; PROVIDED, HOWEVER, IF THE SOFTWARE WAS PROVIDED AT NO CHARGE TO YOU, THE LIABILITY OF PROMETHEAN AND ITS THIRD PARTY LICENSORS AND PROMETHEAN PARTNERS FOR DIRECT DAMAGES SHALL BE LIMITED TO: (i) the sum of £10.00 (ten pounds sterling) if the Software is provided to You in the United Kingdom; or (ii) the sum of $10.00 (ten US Dollars) if the Software is provided to You in the United States or Canada or any United States territory or possession; or (iii) the sum equivalent to $10.00 (ten US Dollars) in the country in which the Software was provided to You, in the case of any other country. 11. Term and Termination. 11.1 This EULA is effective upon acceptance by You in accordance with the terms set forth herein and will terminate along with the license granted hereunder upon the earlier of: (i) such time as You permanently discontinue use of the Software; or (ii) the date of any breach of the terms of this EULA by the Licensee or an End User which is not remedied (if capable of remedy) within thirty (30) days of having received written notice from Promethean specifying such breach (in which case the License granted hereunder will automatically terminate). 11.2 You agree, within seven (7) days of termination, to stop using the Software, destroy all copies of the Software within your possession or control, and upon request, provide an affidavit certifying End User’s compliance with the foregoing. �12. Third Party Software and Open Source Software. 12.1 The Software has been created using source code available through various open source projects and specific third party proprietary software. Open source software is available under the terms of the GNU Lesser General Public License Agreement, a copy of which can be found at www.gnu.org/licences. The below parties have contributed to the creation of portions of the Software and in the case of Adobe, such software is made available subject to the current license terms for the relevant software from time to time. Promethean is not liable for your use of any such open source software. To obtain the source code for the library, please write to:Product Management Promethean Limited Promethean House Lower Philips Road Blackburn, BB1 5TH United Kingdom Promethean Limited has endeavored to identify and credit all contributors to this Software. Portions of this application: ©Trolltech Inc. ©xlslib library under LGPL ©Beman Dawes, Daniel Frey and David Abrahams (software and boost libraries) ©Gilles Vollant software ©Vision Objects S.A All rights reserved Portions of ActivInspire Copyright © Design Science, Inc., 1990 – 2011. All rights reserved. Unauthorized reproduction prohibited. This product contains Adobe (R) Shockwave (R) Player and Adobe (R) Flash (R) Player software by Adobe Systems Inc., (C) 1995-2009 Adobe Systems Inc. All rights reserved. Adobe, Shockwave, Player and Adobe, and Flash are trademarks of Adobe Systems, Inc. 12.2 The Software may also include and/or be accompanied by other third party software and content (collectively, “Third Party Materials”) that may require a separate end-user license agreement from the third party. Some of the Third Party Materials are made available subject to the terms of their respective licenses, which terms may be different from or additional to those contained in this EULA. To the extent that the terms of such license agreements are in conflict with any of the rights or obligations granted to You under this EULA, the terms of the Third Party Materials license agreement will prevail. Acceptance of this EULA also confirms Your acceptance of such freeware license terms. Promethean does not endorse or promote any products or services provided by third parties providing the Third Party Materials. You acknowledge that it is Your responsibility to read, accept and comply with the terms and conditions of all such Third Party Materials. �13. Assignment. 13.1 You will not transfer or assign this EULA or Your right to use the Software without Promethean’s prior written consent, and any attempt to do so without such consent will be void and of no effect. 13.2 Promethean may assign this EULA to any affiliate of Promethean at any time during the term. 13.3 Subject to the foregoing, this EULA will bind and inure to the benefit of the parties and their respective successors and permitted assigns. 14. Complete Agreement. This EULA constitutes the entire agreement between the parties with respect to the use of the Software licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this EULA will be binding unless expressly in writing and signed by Promethean. The parties hereto confirm that they have requested that this EULA and all related documents be drafted in English. 15. Survival. Any provision in this EULA, which expressly or by implication is intended to come into or continue in force and effect on or after termination of this EULA, including but not limited to the provisions regarding Warranties and Limitation of Liability, shall remain in full force and effect. 16. Governing Law. 16.1 If the Territory is the United States or Canada or any United States territory or possession, this Agreement, any dispute arising under or which is related to this Agreement (whether in contract, tort or otherwise), and the validity, performance and interpretation of this Agreement will be governed by and construed in all respects under the laws of the State of Georgia, USA, without giving effect to its conflicts of law principles. 16.2 If the Territory is in any other country, this Agreement shall be governed by English law and all disputes shall be subject to the exclusive jurisdiction of the English courts. 16.3 The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed. 17. Severability. If any of the provisions in this EULA are held to be in violation of applicable law, then such provisions are hereby waived or amended to the extent necessary to achieve the same economic effect for this Agreement to be enforceable in such jurisdiction and the rest of the agreement shall remain in full force and effect. 18. Headings. The section headings appearing in this EULA are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect this EULA. 19. Questions. Should you have any questions about the terms of this EULA, or your rights hereunder, please contact the Promethean Partner from whom you purchased the Software or Related Purchase as the case may be. �20. Feedback. Should a Licensee or End User provide Promethean with any suggestions, comments, or feedback (including modifications or suggested modifications to any component of the Software or other Promethean product, Promethean shall treat it as non-confidential and be free to use it for any and all purposes, without any compensation, acknowledgment or other obligation of any kind to the Licensee or End User. 21. Notices. A Licensee or End User may provide Promethean notice hereunder by sending it to the address set out in Section 12, or such other address Promethean shall have most recently notified End User, and shall be marked with “Attention: Legal Department.” Notice to the End User, including without limitation, of Upgrades or Updates to the Software or this EULA, may be provided by Promethean either by (a) sending it to the Licensee’s e-mail or business address on record or such email or business address as the Licensee may have most recently notified Promethean or; (b) providing notification on one or both of the Promethean websites www.prometheanworld.com and www.prometheanplanet.com. ©Promethean 2013. Promethean and Promethean related brands are trademarks of Promethean Limited. �
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Software End User License Agreement For FireMon Operating System Security Manager Policy Planner Policy Optimizer Risk Analyzer Copyright 2000-2015 FireMon, LLC. All Rights reserved. FireMon® is a registered trademark of FireMon, LLC. This Software and any related Documentation are protected by copyright and distributed under licensing restricting their use, copying, distribution, and decompilation. No part of this product or related documentation may be reproduced in any form or by any means without the written authorization of FireMon. All right, title, and interest in the Software and Documentation shall remain with FireMon and its licensors. FireMon’s Operating System software, Security Manager software and the Policy Planner, Policy Optimizer, and Risk Analyzer software modules together with any updates, upgrades, and modified versions (collectively “Software”) from FireMon, LLC (“FireMon”) are licensed as set forth in this End User License Agreement (“Agreement”). The term “You” in this Agreement means the entity that purchases, installs, or uses the Software furnished with this Agreement as well as any individual user of the Software. The term “Your Software Supplier” means the authorized entity from which You purchased the Software. NOTICE: THIS AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU AND FIREMON. THE TERMS AND CONDITIONS OF THIS AGREEMENT APPLY TO THE SOFTWARE CONTAINED ON THE ACCOMPANYING MEDIA OR DOWNLOADED FROM FIREMON’S WEBSITE. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY RETURN THE SOFTWARE PRODUCT UNUSED TO YOUR SOFTWARE SUPPLIER FOR A FULL REFUND WITHIN TEN (10) DAYS OF PURCHASE. BY CLICKING THE “I AGREE” BUTTON OR BY INSTALLING, DOWNLOADING, ACCESSING OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THIS AGREEMENT AND ACCEPT ALL OF THESE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT IS ENFORCEABLE AGAINST ANY PERSON OR ENTITY THAT USES THE SOFTWARE AND ANY PERSON OR ENTITY THAT USES THE SOFTWARE ON ANOTHER PERSON’S OR ENTITY’S BEHALF. YOU AGREE THAT THIS AGREEMENT IS EQUIVALENT TO ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU AGREE TO THESE TERMS ON BEHALF OF A BUSINESS OR A GOVERNMENT AGENCY, DEPARTMENT OR INSTRUMENTALITY, YOU REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY TO BIND THAT BUSINESS TO THIS AGREEMENT, AND YOUR AGREEMENT TO THESE TERMS WILL BE TREATED AS THE AGREEMENT OF THE BUSINESS. THE TERMS OF THIS AGREEMENT WILL GOVERN ANY UPGRADES PROVIDED BY FIREMON THAT UPDATE OR REPLACE THE ORIGINAL SOFTWARE, UNLESS SUCH UPGRADE IS ACCOMPANIED BY A SEPARATE LICENSE IN WHICH CASE THE TERMS OF THAT LICENSE WILL GOVERN. THIS SOFTWARE IS BEING LICENSED AND NOT SOLD TO YOU. FIREMON PERMITS YOU TO DOWNLOAD, INSTALL, AND USE THE FUNCTIONALITY OR FEATURES OF THE SOFTWARE ONLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT. 7_2015v.1 1 �1. GRANT OF RIGHTS. The Software and any related documentation (“Documentation”) furnished under this Agreement are licensed, not sold, to You. FireMon, a Missouri limited liability company, having offices at 8400 W. 110th St., Suite 500, Overland Park, Kansas, 66210 (“FireMon”), grants You a limited, non-exclusive and nontransferable right and license to install and use the Software, subject to the terms and restrictions of this Agreement. You agree that you have no right, power or authority to make any modifications to or unauthorized copies of the Software. You may only install and use the Software at the designated site and/or in conjunction with the same number and type of computers, servers and/or devices as identified in Your valid purchase order for the Software from Your Software Supplier, if any. You shall use the Software solely for Your own internal business purposes and shall not use the Software for the benefit of any other person or entity other than You; provided that, You may use the Software in conjunction with Your processing of information for Your clients as part of Your normal business in accordance with the terms of this Agreement. Any use by You of the Software in violation of this Agreement or in excess of the rights and licenses granted herein shall automatically terminate these rights and licenses. Some third party materials, if any, included with the Software may be subject to other terms and conditions distributed with the Software. 1.1 1.2 1.3 2. Additional Limitations on Use. You agree: (i) to use Your best efforts to ensure that any user of the Software licensed hereunder complies with the terms and conditions of this Agreement; (ii) to refrain from taking any steps, including, without limitation, copying, decompiling, reverse engineering, reverse assembly or reverse compilation, to derive or to seek to derive a source code equivalent of the Software provided by FireMon in object code format; (iii) to reproduce, and not remove or obscure, all identifying marks, copyright, trademark and other proprietary notices, if any, on all permitted copies that You make of the Software; (iv) not to redistribute, rent, lease, license, sublicense, assign, lend, or otherwise transfer the Software or your rights under this Agreement to any party; (v) to only create a single copy of the Software solely for archival or disaster recovery purposes; and (vi) to use Your best efforts prevent and protect the contents of the Software from unauthorized disclosure or use. Support Services. Subject to your payment of the applicable annual maintenance and support fees set forth in your purchase order, FireMon will provide its standard support for the Software in accordance with FireMon’s then current support policy, as may be amended from time to time. FireMon is not obligated to support, update or upgrade any Evaluation Software described herein. Audit Rights. You agree that upon request from FireMon or its authorized representative, You will within thirty (30) days fully document Your use of the Software at the time of the request in order for FireMon to determine if Your use is in conformity with your valid licenses to the Software. FireMon reserves the right to audit Your deployment and use of the Software to ensure conformance with this Agreement during normal business hours and upon reasonable notice to You. OWNERSHIP. As between You and FireMon, FireMon shall have and retain all right, title and interest in and to: all Intellectual Property (defined below); the Documentation; and the Software as well as any modifications, upgrades, updates, or enhancements made thereto whether permitted or not under this Agreement. For purposes of this Agreement, “Intellectual Property” includes, without limitation, all intangible legal rights or interests evidenced by or embodied in: (i) any idea, design, concept, technique, invention, discovery or improvement, regardless of patentability, but including patents, patent applications, trade secrets, and knowhow; (ii) any work of authorship, regardless of copyrightability, but including copyrights and any moral rights recognized by law; (iii) any trademark, trade name or service mark; and (iv) any other intellectual property, proprietary or similar rights, including all goodwill pertaining thereto and in each case, on a worldwide basis. You shall not, by virtue of this Agreement or otherwise, acquire any rights whatsoever in the Software aside from the limited licenses granted herein. Any rights not expressly granted to You by this Agreement are hereby expressly reserved by FireMon. You further agree that the licensing of the Software does not constitute a royalty for any tax purposes as You acknowledges that You have no right to misappropriate or exploit the Intellectual Property rights of FireMon as set forth in this Section. 7_2015v.1 2 �3. APIs & EXTENSIONS. The copy of the Software provided to You may include access to the Software API for You to utilize to develop extensions, checks, audits and/or custom reports for certain features of the Software (collectively, “Extensions”). You may utilize the API solely to develop Extensions for the Software for Your internal business use and in conjunction with Your licensed use of the Software. You may not utilize the API for any other purposes and use the API in a manner that fails to comply or is inconsistent with any part of the API documentation. Additionally, You may have access to certain Extensions developed by FireMon or other parties that may have been distributed with the Software or separately from the Software. Your use of any of these Extensions may be subject to separate terms and conditions distributed with such Extensions. Your right to use the API or any Extensions that You develop or that are otherwise provided to You shall terminate immediately upon termination of this Agreement or Your right to use the Software. In the event that You wish to develop or distribute any Extension to a third party, You must develop such Extensions in accordance with and comply with the terms of FireMon’s Security Manager Extension Distribution License Agreement located at http://www.firemon.com /legal/Extension_DLA.pdf. 4. WARRANTIES; DISCLAIMER. FireMon warrants that: (i) it owns or otherwise has the right to license the Software (excluding any Extensions) as described in this Agreement; (ii) for a period of thirty (30) days following the delivery date (the “Warranty Period”), the operation of the Software (excluding any Extensions) shall be free from defects in material and workmanship under normal use and materially perform in accordance with the written documentation provided by FireMon with the Software, provided that no party has altered any portion of the Software without the prior written approval of FireMon and that any non-conformities in the Software as compared with the written documentation are not caused by the products or services of any third party, and (iii) the Software as delivered by FireMon (excluding any Extensions) does not contain any type of software routine or other element which is intentionally designed to permit unauthorized (a) access to or intrusion upon, (b) disabling of, or (c) erasure of any hardware, software, data or peripheral equipment. FireMon’s sole obligation or liability under this warranty shall be to use reasonable efforts to correct the Software, in a reasonable time, to perform in accordance with the written documentation, upon receipt of written notice of its failure to so perform from You. In the event FireMon fails to remedy material defects in the Software under this warranty, Your sole remedy (and FireMon’s sole liability) shall be to receive a refund of any fees paid for the portion of the Software, if any, which does not conform to the written documentation. THE FOREGOING WARRANTIES ARE LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES MADE BY FIREMON. WITH THE EXCEPTION OF THE FOREGOING WARRANTIES, THE SOFTWARE IS PROVIDED “AS IS.” FIREMON EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, QUIET ENJOYMENT, INTEGRATION AND WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. FIREMON DOES NOT WARRANT AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE AND/OR ITS USE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS IN THE SOFTWARE, IF ANY, WILL BE CORRECTED. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH HEREIN, THE SOFTWARE API IS PROVIDED “AS IS” WITH NO WARRANTY, EXPRESS OR IMPLIED, OR ANY KIND. YOUR USE OF THE SOFTWARE API AND ANY EXTENSIONS THAT YOU MAY DEVELOP USING THE API IS AT YOUR OWN DISCRETION AND RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM YOUR USE OF THE SOFTWARE API. FIREMON MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AS TO THE QUALITY, CAPABILITIES, OPERATIONS, PERFORMANCE OR SUITABILITY OF ANY THIRD PARTY HARDWARE OR SOFTWARE. ANY THIRD PARTY HARDWARE OR SOFTWARE PROVIDED BY FIREMON IS EXPRESSLY PROVIDED "AS IS.” 5. LIMITATION OF LIABILITY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, FIREMON’S TOTAL CUMULATIVE LIABILITY TO YOU, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID BY YOU TO FIREMON UNDER THE APPLICABLE ORDER DOCUMENT GIVING RISE TO SUCH LIABILITY IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT. IN NO EVENT WILL 7_2015v.1 3 �FIREMON BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING LOSS OF USE, DATA, OR PROFITS, BUSINESS INTERRUPTION, OR COSTS OF PROCURING SUBSTITUTE SOFTWARE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SOFTWARE, THE API, OR ANY EXTENSIONS YOU MAY DEVELOP, WHETHER SUCH LIABILITY ARISES FROM CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT FIREMON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY REMEDY IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. WITHOUT LIMITING THE FOREGOING, FIREMON WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY BUSINESS INTERRUPTION OR LOSS OF DATA ARISING FROM THE AUTOMATIC TERMINATION OF THE LICENSE RIGHTS GRANTED HEREIN AND ANY ASSOCIATED CESSATION OF THE FUNCTIONS OF THE SOFTWARE. FIREMON IS ACTING ON BEHALF OF ITS AFFILIATES, LICENSORS AND SUPPLIERS FOR THE PURPOSE OF DISCLAIMING, EXCLUDING AND LIMITING OBLIGATIONS, WARRANTIES AND LIABILITY, BUT IN NO OTHER RESPECTS AND FOR NO OTHER PURPOSES. Some States and other jurisdictions do not allow for the exclusion of implied warranties or the limitation or exclusion of liability in certain circumstances, so some of the above exclusions or limitations in Sections 4 and 5 may not apply to You. 6. INDEMNIFICATION. Provided Your use of Software was in accordance with the terms of this Agreement, FireMon will, at its own expense, indemnify and hold You harmless from and against any and all claims, actions, liabilities, losses, damages, judgments, grants, costs and expenses (including reasonable attorneys’ fees) to the extent that such action is based on a claim by a third party that any aspect of the Software used within the scope of this Agreement infringes any United States Intellectual Property rights, provided You promptly notify FireMon in writing of any such claim and, provided further that FireMon shall have the exclusive right to control such defense. The indemnity set forth in the immediately preceding sentence shall not apply to any action based on a claim relating to: (i) any customization or modification made by You to the Software; (ii) infringement caused by a combination of the Software with third party hardware or software not provided by FireMon; and/or (iii) any Extension. In the event of any loss, damage, liability or cost for which FireMon is obligated to indemnify you hereunder, FireMon shall have sole control of the defense and all related settlement negotiations, and you shall reasonably cooperate with FireMon in the defense and/or settlement thereof FireMon’s expense; provided that you may participate in such defense using your own counsel, at your own expense. In no event shall You settle any such claim, lawsuit or proceeding without FireMon’s prior written approval. In the event any infringement claim, action or allegation is brought or threatened, FireMon may, at its sole option and expense (i) procure for you the right to continue use of the applicable Software or infringing part thereof; (ii) modify or amend the Software or infringing part thereof, or replace the Software or infringing part thereof; or, (iii) if neither of the preceding is commercially practicable, terminate the Agreement and the licenses granted herein. You will, at Your own expense, indemnify and hold FireMon and its affiliates, shareholders, members, directors, officers, employees and agents harmless from and against any and all claims, actions, liabilities, losses, damages, judgments, grants, costs and expenses (including reasonable attorneys’ fees) resulting from or pertaining to Your use, misuse or operation of the Software or any gross negligence or willful misconduct of You or Your employees and agents. 7. TERMINATION. This Agreement is effective until terminated. You may terminate this Agreement at any time by destroying the Software, Extensions and all derivatives and copies thereof in Your possession or control. This Agreement shall automatically terminate if You fail to comply with any of its terms and conditions. Upon termination for any reason, You agree to destroy all copies of the Software, Extensions and derivatives thereof in Your possession or control. No refunds will be provided to you as a result of termination. 7_2015v.1 4 �8. EXPORT CONTROL. You agree that the Software will not be shipped, transferred, or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations, including without limitation the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List (collectively the "Export Laws"). In addition, you represent and warrant that you are not a citizen, or otherwise located within an embargoed nation (including without limitation Iran, Syria, Sudan, Cuba, and North Korea) and that you are not otherwise prohibited under the Export Laws from receiving the Software. All rights to Use the Software are granted on condition that such rights are forfeited if you fail to comply with the terms of this agreement. 9. PROPRIETARY NOTICES. No right is granted herein to use any identifying mark (such as, but not limited to, trade names, trademarks, trade devices, service marks or symbols, and abbreviations, contractions or simulations thereof) owned by, or used to identify any product or service of, FireMon or a corporate affiliate thereof. Absent prior written permission of FireMon, You agree that You will not: (i) use any such identifying mark in advertising, publicity, packaging, labeling or in any other manner to identify any of Your products or services; (ii) remove or obscure any copyright, trademark, and/or any other intellectual property or proprietary notices; or (iii) represent, directly or indirectly, that any product or service of Yours is a product or service of FireMon or such an affiliate or is made in accordance with or utilizes any information or documentation of FireMon or such an affiliate. You agree not to use FireMon's name or refer to FireMon directly or indirectly in any way whatsoever without the prior written approval of FireMon. 10. CONFIDENTIALITY. You agree that You shall hold all parts of the Software subject to this Agreement in confidence for FireMon. You further agree that You shall not make any disclosure of any or all of the Software (including methods or concepts utilized therein) to anyone, except to Your employees to whom such disclosure is necessary to the use for which rights are granted hereunder. You shall appropriately notify each employee to whom any such disclosure is made that such disclosure is made in confidence and shall be kept in confidence by such employee. If information relating to the Software subject to this Agreement at any time becomes available without restriction to the general public by acts not attributable to You or Your employees, Your obligations under this Section 10 shall not apply to such information after such time. You acknowledge that disclosure of information in violation of this Section 10 will cause irreparable harm to FireMon and that in such case FireMon shall have the right to injunctive or other preliminary relief without necessity of posting any bond. All obligations of You and Your employees under this Agreement which relate to confidentiality or which limit use of the Software shall survive and continue after any termination of rights under this Agreement. 11. GOVERNING LAW; VENUE. This Agreement shall be deemed executed in, and shall be governed by and construed in accordance with, the laws of the State of Kansas, United States of America, excluding its conflict of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods. The sole and exclusive venue and jurisdiction for any and all claims or disputes arising under this Agreement or in connection with the Software shall be in Johnson County, Kansas. You hereby irrevocably submit and consent to personal jurisdiction in the foregoing location. Notwithstanding the foregoing, if you are the U.S. Government as a party to this Agreement, this Agreement shall be governed by and interpreted in accordance with the Contract Disputes Act of 1978, as amended (41 U.S.C. 601-613). Failure of the parties to reach agreement on any request for equitable adjustment, claim, appeal, or action arising under or relating to this Agreement shall be a dispute to be resolved in accordance with the clause at 48 C.F.R 52.233-1, which is incorporated in this Agreement by reference. 12. GOVERNMENT END USER RIGHTS. You acknowledge that all Software was developed entirely at private expense and that no part of the Software was first produced in the performance of a Government contract. You agree that all Software and any derivatives thereof are "commercial items" as defined in 48 C.F.R. 2.101, and if You are a U.S. Government agency or instrumentality or if You are providing all or any part of the Software or any derivatives thereof to the U.S. Government, such use, duplication, reproduction, release, modification, disclosure or transfer of this commercial product and data, is restricted in accordance with 48 C.F.R. §12.211, 48 C.F.R. §12.212, 48 C.F.R. §227.7102-2, and 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.211, 48 C.F.R. §12.212, 48 C.F.R. §227.7102-1 through 48 C.F.R. §227.7102-3, and 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Software is licensed to U.S. Government end users (i) only as Commercial Items 7_2015v.1 5 �and (ii) with only those rights as are granted to all other users pursuant to this Agreement and any related agreement(s), as applicable. Accordingly, you will have no rights in the Software except as expressly agreed to in writing by you and FireMon. 13. PUBLICITY. In consideration of the license(s) granted hereunder, FireMon may publicly identify You as a FireMon customer, issue a press release announcing the execution of this Agreement, and reference the licensed products and purchased services. Any additional publicity by either party shall require prior written approval. 14. EVALUATION SOFTWARE LICENSES. FireMon may provide You with Software licensed for internal evaluation purposes and not for productive business use (“Evaluation Software”). You may install and use the Evaluation Software solely for the purpose of determining whether to purchase a commercial license to the Software and not for any revenue generation, commercial activity or other productive business or developmental purpose. Any license keys provided for a free trial will automatically expire and may cause the Evaluation Software to become non-operational at the end of the free trial period. FireMon reserves the right to exercise its audit rights under Section 1.3 of this Agreement to ensure compliance with this Section 14. Upon expiration of your free trial period of the Evaluation Software, you will have the option to purchase a license to the Software. Provisions in this Agreement regarding Grant of Rights, Support Services, Warranty and FireMon’s Indemnification obligation will not apply to Evaluation Software 15. MISCELLANEOUS. This Agreement (including any documents expressly referenced herein, the terms of which are hereby incorporated by reference) sets forth the entire agreement and understanding between the parties pertaining to the subject matter hereof and merges all prior written or oral discussions between them. Except as otherwise provided herein, no amendment or modification of this Agreement shall be effective unless in writing and signed by both parties. No use of trade or other regular practice or method of dealing between the parties shall be used to modify, interpret, supplement or alter in any manner the terms of this Agreement. Any terms and conditions in any contrary purchase order submitted by You or other correspondence between the parties relating to the Software which attempt to differ or vary from the terms herein are null and void, and shall have no force or effect whatsoever notwithstanding acceptance of such purchase order by FireMon or Your Software Supplier. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable. In the event such provision cannot be reformed to make it enforceable, the remaining terms and provisions of this Agreement shall remain in full force and effect, and such unenforceable provision shall be deemed not to be part of this Agreement. The provisions of Sections 2 through 14 shall survive the termination or expiration of this Agreement and shall remain in full force and effect. FireMon may assign this Agreement in connection with the sale, merger or disposition of its assets and/or business operations relating to the Software. Except as specifically provided in a written waiver signed by a duly authorized representative of the party seeking enforcement, the failure to enforce or the waiver of any term of this Agreement shall not constitute the waiver of such term at any time or in any circumstances and shall not give rise to any restriction on or condition to the prompt, full and strict enforcement of the terms of this Agreement. FireMon will not be liable to You for failure to fulfill obligations hereunder if such failure is due to causes beyond its control, including, without limitation, acts of God, earthquake, fire, flood, embargo, catastrophe, sabotage, utility or transmission failures, governmental prohibitions or regulations, national emergencies, insurrections, riots or wars, or viruses which did not result from the acts or omissions of such Party, its employees or agents, strikes, work stoppages or other labor difficulties. 7_2015v.1 6 �
nw/71.txt
END-USER LICENSE AGREEMENT IMPORTANT-READ CAREFULLY: This End-User License Agreement (“EULA”) is a legal contract between you (either (a) an individual user or (b) a business organization (“you”) and Licensor (as designated below) for the Licensor software that accompanies this EULA, including any associated media, printed materials and electronic documentation (the “Software”). By clicking on the “I ACCEPT” button, by opening the package that contains the Software, or by copying, downloading, accessing or otherwise using the Software, you agree to be bound by the terms of this EULA and you represent that you are authorized to enter into this EULA on behalf of your corporate entity (if applicable). If you do not wish to be bound by the terms of this EULA, click the “I DO NOT ACCEPT” button, and do not install, access or use the Software. An original purchaser who has not accepted the terms of this EULA may return the Software to the place of purchase, within 30 days of the date of purchase, for a full refund. As used herein, for users in Japan, “Licensor” means Flexera Software GK, a Godo Kaisha organized under the laws of Japan; for users in Europe, Middle East, or Africa, “Licensor” means Flexera Software Ltd., a private company limited by shares and incorporated in England and Wales with company number 6524874; for users outside of the countries listed above, “Licensor” means Flexera Software LLC. EVALUATION SOFTWARE If you have received the Software for purposes of evaluation, regardless of how labeled, the use of the Software is limited to 21-days (the “Evaluation Period”) and all use will be governed by the terms set forth below. 1. Grant of License. Licensor grants you a limited, personal, internal use, non-exclusive, non-transferable license to use the Software solely to evaluate its suitability for your internal business requirements during the Evaluation Period. Without limiting the foregoing, you may not use the Software during the Evaluation Period to create publicly distributed computer software or for any other commercial purpose. This license may be terminated by Licensor at any time upon notice to you and will automatically terminate, without notice, upon the first to occur of the following: (a) the completion of your evaluation of the Software or (b) the expiration of the Evaluation Period. 3. Disclaimer of Warranty. THE SOFTWARE IS PROVIDED ONLY FOR EVALUATION PURPOSES ON AN "AS IS" BASIS. LICENSOR EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. 4. Limitation of Liability. IN NO EVENT WILL LICENSOR BE LIABLE FOR ANY DAMAGES, INCLUDING LOST PROFITS OR DATA, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR ANY DATA SUPPLIED THEREWITH, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. In no case will Licensor‟s liability for damages hereunder exceed fifty dollars (US $50). 2. Limited Use Software. Portions of the full-use version of the Software may be withheld or unusable and use of the Software may require accessing portions of the Software remotely through the Internet. Full use of the Software may be restricted by technological protections. SOFTWARE LICENSE 1. Grant of License. Upon your payment of the fees shown on the invoice and acceptance of this EULA, Licensor grants you a limited, personal, nonexclusive license to install and use the Software on the terms and conditions set forth herein. language(s) which you select during installation or for which you acquire rights pursuant to a Language Pack. You may not share the Software, except as set forth below. 2. Restrictions on Use of Software. You may not (a) use or make the Software available for use by others in any service bureau or similar arrangement; (b) distribute, sublicense, transfer, or lend the Software to You may install and use one copy of the Software on a single computer only for your internal business purposes. You may use the Software only in the AdminStudio EULA Sept2011 1 �services, including any enhancements or modifications made to the Software, shall at all times remain the property of Licensor or its licensor. You acknowledge and agree that the Software is licensed, not sold. You shall not permit the Software to be accessed or used by anyone other than your employees whose duties require such access or use. any third party; or (c) disassemble or reverse engineer (except in European Union countries, to the extent allowed by law) the Software. You may copy the Software for backup/archival purposes, provided that you include all copyright and similar rights notices. Licensor (or its licensor) retains all right, title, and interest in the Software (and in all copies). Unauthorized copying and modification of the Software is not permitted. You may not remove, modify or alter any Licensor copyright or trademark notice from any part of the Software, including but not limited to any such notices contained in the physical and/or electronic media or documentation or „about‟ boxes, in any of the runtime resources and/or in any web-presence or web-enabled notices, code or other embodiments originally contained in or otherwise created by the Software. You will not remove or modify Licensor‟s proprietary rights notices from any copies of the Software, including archival and back-up copies, if applicable. 3. Shared Use on a Single Computer. Subject to the exceptions set forth herein, a copy of the Software installed on a single common machine may be shared for internal use by employees and contractors of your business only, provided that a license has been purchased for each individual user. 4. Redistributable Files. The Software component parts may not be separated for use on more than one computer, except as set forth in this EULA. You may copy the files specifically identified in the printed or electronic documentation as “redistributables” and redistribute such files to your end users (“End Users”) of your Works, provided that: (a) such Works add primary and substantial functionality to the redistributables, (b) all copies of the redistributables must be exact and unmodified; and (c) you grant your End Users a limited, personal, non-exclusive and non-transferable license to use the Redistributables only to the extent required for the permitted operation of the Works and not to distribute them further. You will reproduce with the redistributables all applicable trademark and copyright notices that accompany the Software, but you may not use Licensor‟s name, logos or trademarks to market the Works. 7. Transfer of Software. You may not, by operation of law or otherwise, transfer any license rights or other interests in Evaluation Software, or Software labeled “Not for Resale” or “NFR.” You may not, by operation of law or otherwise, transfer any license rights or other interests in any other Software, unless (a) you permanently and wholly transfer all your rights under this EULA; (b) you retain no copies (whole or partial); (c) you permanently and wholly transfer all of the Software (including component parts, media, printed materials, upgrades, prior versions, and authenticity certificates); and (d) the transferee agrees to abide by all the terms of this EULA. Any purported transfer not in accordance with this EULA will be void. 8. Limitation of Remedy and Liability. In the event of any breach of the warranty outlined herein or any other duty owed by Licensor, the entire liability of Licensor and its suppliers, and your exclusive remedy shall be, at Licensor‟s option, either, (a) repair or replacement of the defective Software, (b) re-performance of the Maintenance Services or (c) return of the license fees paid for the Software, less depreciation calculated on a straight-line basis over five years. 5. Limited Warranty and Disclaimer of Warranty. Licensor warrants that the Software, as provided, will substantially perform the functions described in the documentation when operated in the intended environment for a period of ninety (90) days from the date of delivery (the “Warranty Period”). THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. LICENSOR EXPRESSLY DISCLAIMS ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Licensor does not warrant that the Software will (a) achieve specific results, (b) operate without interruption, or (c) be error free. NEITHER LICENSOR NOR ITS LICENSOR, IF ANY, SHALL BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR FOR DAMAGE TO SYSTEMS OR DATA, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSOR'S LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED THE AMOUNT OF LICENSE FEES THAT YOU HAVE PAID. 6. Ownership. This Agreement does not convey to you any rights of ownership in the Software. All right, title, and interest in the Software and in any ideas, know-how, and programs which are developed by Licensor in the course of providing any technical AdminStudio EULA Sept2011 For Users within Europe, the Middle East or Africa, No person who is not a party to this Agreement shall be entitled to enforce any terms of the same under the Contracts (Rights of Third Parties) Act 1999. 2 �13. U. S. Export Restrictions. You will fully comply with all relevant export laws and regulations, including but not limited to the U.S. Export Administration Regulations and Executive Orders (“Export Controls”). You warrant that you are not a person, company or destination restricted or prohibited by Export Controls (“Restricted Person”). You will not, directly or indirectly, export, re-export, divert, or transfer the Software, any portion thereof or any materials, items or technology relating to Licensor‟s business or related technical data or any direct product thereof to any Restricted Person. LICENSOR DOES NOT LIMIT OR EXCLUDE ITS LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE. 9. Maintenance Services. If ordered by you and upon payment of the applicable fee, you are entitled to receive technical support services, including corrections, fixes and enhancements to the Software as such are made generally available (the “Maintenance Services”) from Licensor in accordance with Licensor‟s then-current maintenance terms for the applicable maintenance level purchased by you. 14. Termination. Your license may be terminated by Licensor if (a) you fail to make payment and/or (b) you fail to comply with the terms of this Agreement within ten (10) days after receipt of written notice of such failure. In the event of termination, you must cease using the Software, destroy all copies of the Software (including copies in storage media) and certify such destruction to Licensor. This requirement applies to all copies in any form, partial or complete. Upon the effective date of any termination, you relinquish all rights granted under this Agreement. Maintenance Services will not include any releases of the Software which Licensor determines to be a separate product or for which Licensor charges its customers extra or separately. 10. Upgrades and Subscription. If the Software is labeled or otherwise identified by Licensor as an “upgrade” or “subscription,” you must be properly licensed to use a product identified by Licensor as being eligible for the upgrade in order to use the Software. Any Software labeled or otherwise identified by Licensor as an upgrade replaces and/or supplements the product that formed the basis for your eligibility for such upgrade. You may use the resulting upgraded product only in accordance with the terms of this EULA. If the Software is an upgrade of a component of a package of software programs that you licensed as a single product, the Software may be used and transferred only as part of that single product package and may not be separated for use on more than one computer. 15. Relationship of Parties. You and Licensor are independent parties. Nothing in this EULA shall be construed as making you an employee, agent or legal representative of Licensor. 16. No Third-Party Beneficiaries. There are no thirdparty beneficiaries of this EULA. 17. Controlling Law. For users in Japan, this Agreement will be governed by the laws of Japan; for users in Europe, Middle East, or Africa, this Agreement will be governed by the laws of England and Wales and you submit to the jurisdiction of the courts of England and Wales; for users outside the countries listed above, this Agreement will be governed by the laws of California, USA, excluding conflicts of law. This Agreement is not subject to the United Nations Convention on Contracts for the Sale of Goods. 11. Dual-Media Software. You may receive the Software in more than one medium. Regardless of the type or size of the medium you receive, you may use only that one medium that is appropriate for your single computer. You may not use or install from the other medium on another computer, including but not limited to portable computers under the exclusive control of the registered developer. You may not loan, rent, lease, or otherwise transfer the other medium to another user, except as part of the permanent transfer (as provided above) of the Software. 18. Company Name. Licensor may include your company name in a list of Licensor customers. 19. Payment Terms/Shipments. For users in Japan, all fees are in non-refundable Japanese Yen. For users in Europe, Middle East or Africa, all fees are in the currency outlined in the quote/invoice and are nonrefundable. For users in any region not outlined, all fees are in non-refundable US Dollars. Fees are due within 30-days of the date of the invoice. 12. U.S. Government Restricted Rights. The Software and Documentation are provided as “Commercial Computer Software” or “restricted computer software”. Use, duplication, or disclosure by the U.S. Government or a U.S. Government subcontractor is subject to the restrictions set forth in 48.C.F.R. Section 12.212 or 48 C.F.R 227.2702, as applicable or successor provisions. The manufacturer is Flexera Software LLC, 1000 E Woodfield Road, Suite 400, Schaumburg, IL 60173 USA. AdminStudio EULA Sept2011 If you have ordered Maintenance Services you may renew the applicable services for the Software for the next annual period for the amount specified on the 3 �original invoice for the Software. All shipments of any media will be FOB Origin. that such taxes have been paid. 21. Entire Agreement. This Agreement constitutes the complete and entire understanding and agreement of all terms, conditions and representations between you and Licensor with respect to the Software and may be modified only in writing by both parties. No term or condition contained in your purchase order will apply unless expressly accepted by Licensor in writing. Failure to prosecute a party's rights will not constitute a waiver of any other breach. 20. Taxes. All fees do not include taxes. If Licensor is required to pay any sales, use, GST, VAT, or other taxes in connection with your order, other than taxes based on Licensor‟s income, such taxes will be billed to and paid by you. You will make all payments of fees to Licensor free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of fees to Licensor will be your sole responsibility and consequently the amount of such fees will be increased such that the net fee received by Licensor will be the same as if such withholding taxes were not imposed, and you will provide Licensor with official receipts issued by the appropriate taxing authority, or such other evidence as the Licensor may reasonably request, to establish AdminStudio EULA Sept2011 If any provision of this Agreement is found to be invalid, it will be enforced to the extent permissible and the remainder of this Agreement will remain in full effect. This Agreement has been written in the English language and you waive any rights you may have under the law of your country or province to have this Agreement written in any other language. 4 �
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END-USER LICENSE AGREEMENT LI-COR FLUXSUITE™ SOFTWARE This End-User License Agreement (“EULA”) governs the rights granted by LI-COR, Inc. (“LI-COR” or the “Licensor”) to the person, entity, university, governmental agency or government anywhere in the world (“Licensee” or “You” or “Your”) that owns and or controls the equipment or computers and or the computer servers that network such computers on which FluxSuite™ software (SOFTWARE) is installed to run. Such SOFTWARE includes computer software in object code, associated media, printed materials and online or electronic documentation. The SOFTWARE includes, without limitation, other LI-COR software that is installed to run in connection with FluxSuite™ software including the Smartflux® System, LICOR’s GHG Version 7 and other LI-COR Monitoring and Data Management software and updates and enhancements thereto. By clicking on the “I agree” ICON at download or installation of the SOFTWARE, or by installing, copying, or otherwise using the SOFTWARE, You agree on Your behalf and on behalf of Your affiliates and any of Your officers, directors, employees, agents or representatives to be legally bound by the terms of this EULA effective from the date thereof. THIRD PARTY SOFTWARE: THE SOFTWARE MAY CONTAIN AND INCLUDE THIRD PARTY SOFTWARE ("THIRD PARTY SOFTWARE") THE USE OF WHICH IS SUBJECT TO ADDITIONAL TERMS AND CONDITIONS IMPOSED BY SUCH THIRD PARTIES. NOTICES RELATING TO THE USE OF THIRD PARTY SOFTWARE AND TERMS AND CONDITIONS FOR ITS USE ARE AVAILABLE UPON REQUEST. SUCH NOTICES AND TERMS AND CONDITIONS ARE MADE A PART OF AND INCORPORATED BY REFERENCE INTO THIS EULA. BY ACCEPTING THIS EULA, YOU ARE ALSO ACCEPTING THE ADDITIONAL TERMS AND CONDITIONS IMPOSED BY THE THIRD PARTIES SET FORTH THEREIN. WARRANTIES FOR THE THIRD PARTY SOFTWARE ARE PROVIDED SOLELY BY THE THIRD PARTIES. 1. GRANT AND SCOPE OF LICENSE. This Agreement grants You the following nonexclusive and nontransferable limited rights: 1.1.1 Applications Software. You may install the SOFTWARE, only on a single server and one backup server, unless You have licensed the SOFTWARE under a multiple user license for use with multiple computers. 1.1.2 Storage/Network Use. You may install and run the SOFTWARE from a network server used to install or run the SOFTWARE on multiple computers over Your internal computer network; however if You install and run the SOFTWARE on Your internal network, You must acquire and dedicate a license for each separate computer that will access and use the SOFTWARE from the network server. 1.1.3 Multiple Users License. If Your purchase order for the SOFTWARE is for a license for use on multiple computers, You may copy and install and or use the SOFTWARE on the number of computers indicated. 2. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS. Notwithstanding the license granted above, LI-CORLI-COR retains all rights in and to the SOFTWARE and Confidential Information, as defined herein, not expressly granted to You in this Agreement and there are no implied licenses granted �hereunder. 2.1 Not for Resale. The SOFTWARE is licensed and not sold to You. You may not sell or otherwise assign Your rights under this EULA or transfer the SOFTWARE to any other person with or without value. The SOFTWARE is only licensed to be used on computers and with LI-COR Instruments owned or leased by you or provided to you by LI-COR. In event that the SOFTWARE is installed on a computer that is to be sold or transferred by You to a third party, You agree to remove the SOFTWARE from the computer before delivering it to the third party even if You also sell or transfer the LI-COR Instrument with which the SOFTWARE is associated. In the event that SOFTWARE is not removed, the license granted under this EULA shall automatically terminate. 2.2 Limitations on Reverse Engineering, Decompilation, and Disassembly. You may not reverse engineer, decompile, adapt, translate, disassemble, or create derivative works based up any portion of the SOFTWARE, except and only to the extent that such activity is expressly permitted under a Third Party Software license, by applicable law or by LI-COR’s express written consent. You do not have the right to obtain or use any source code for the SOFTWARE. 2.3 Separation of Components. The SOFTWARE is licensed as a single product for use only with LI-COR instrument products Its component parts may not be separated for use on more than one computer. 2.4 Rental. You may not rent, lease or lend the SOFTWARE to any third party, even if You rent, lease or lend the LI-COR Instrument to a third party with which the SOFTWARE is associated. 2.5 Support Services. LI-COR may provide You with support services related to the SOFTWARE ("Support Services"). Use of Support Services is governed by LI-COR policies and programs described in the user manual, in "online" documentation, and/or in other LI-CORprovided materials. Any supplemental software code provided to You as part of the Support Services shall be considered part of the SOFTWARE and is subject to the terms and conditions of this Agreement. With respect to technical information You provide to LI-COR as part of the Support Services, LI-COR may use such information for its business purposes, including for product support and development. LI-COR will not utilize such technical information in a form that personally identifies You. 2.6 Treatment of Licensor Confidential Information. You shall maintain all proprietary and confidential information embodied in the SOFTWARE, including, without limitation the source and object code, all information regarding LI-COR’s operations and business systems contained in the SOFTWARE or provided separately by LI-COR and any Intellectual Property, as defined herein, related thereto ("Confidential Information"), in trust and confidence and shall not use such Confidential Information for any purpose other the use of the SOFTWARE and the purposes contemplated by this Agreement. As used in this Agreement, the term “Intellectual Property” means all copyrights, trade secrets, patents, patent applications, moral rights, contract rights, trademarks, service marks, and other proprietary rights owned or licensed to LI-COR. You shall not disclose such Confidential information to any person, and You shall require all of Your employees, vendors and agents that legally obtain access to such Confidential Information to be subject to policies, procedures or agreements that run to LI-COR’s benefit and which are reasonably designed to protect the confidentiality of such Confidential Information. The obligation to not use and maintain the confidentiality of Confidential Information as set forth in this paragraph shall survive the expiration and termination of this Agreement. �2.7 Return of Confidential Information. Upon expiration or termination of this Agreement, You shall deliver to LI-COR Confidential Information that is in Your possession and not otherwise destroyed. 2.8 Irreparable Harm. You acknowledge and agree that money damages would be both incalculable and an insufficient remedy for any breach of Section 2.6 and that any such breach would cause LI-COR irreparable harm. Accordingly, You agree that in the event of any breach or threatened breach of Section 2.6 of this Agreement by You or any of Your affiliates or any of Your or their officers, directors, employees, agents or representatives, LI-COR, in addition to any other remedies it may have at law or in equity, shall also be entitled, without the requirement of posting a bond or other security, to equitable relief, including injunctive relief and specific performance. 3. UPGRADES/ENHANCEMENTS. If the SOFTWARE is labeled as an upgrade, You must be properly licensed to use a product identified by LI-COR as being eligible for the upgrade in order to use the SOFTWARE. SOFTWARE labeled as an upgrade replaces and/or supplements the product that formed the basis for Your eligibility for the upgrade. You may use the resulting upgraded product only in accordance with the terms of this Agreement. If the SOFTWARE is an upgrade component of a package of software programs that You licensed as a single product, the SOFTWARE may be used and transferred only as part of that single product package and may not be separated for use on more than one computer. 4. COPYRIGHT. All right, title to and copyrights in the SOFTWARE (including but not limited to any source and object code, images, photographs, animations, video, audio, and text incorporated into the SOFTWARE) are owned by LI-COR or licensed to LI-COR by its suppliers. The SOFTWARE is protected by copyright laws and international treaty provisions. 5. RSS FEED FUNCTIONALITY. The SOFTWARE contains an RSS Feed functionality that allows SOFTWARE to automatically obtain new content from the LI-COR website. In order to make the RSS Feed function of the SOFTWARE operational, the SOFTWARE stores certain data relating to updates and automatically communicates with the LI-COR website to determine if there is new content available for the SOFTWARE. This automatic communication is used only to determine if new content is available from the LI-COR website. A small amount of data necessary to perform this function is transmitted as part of said automatic communication, including without limitation, dates and descriptions of new content, but the full new content will not be downloaded or delivered from the LI-COR website to the SOFTWARE or your computer without Your affirmative action to click on the RSS Feed button. Additionally, the SOFTWARE will not upload, transfer, or provide any of Your data to the LI-COR website. By agreeing to this license, you understand and acknowledge that the storage of data in the SOFTWARE relating to the most recent update and the automatic communication is necessary for the RSS Feed functionality of the SOFTWARE and you consent to the said operations solely for the limited purposes described herein. 6. U.S. GOVERNMENT RESTRICTED RIGHTS. The SOFTWARE and documentation are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48 CFR 52.227- 19, as applicable. Manufacturer is LI-COR, Inc./4647 Superior Street/Lincoln, NE 68504. 7. REPRESENTATIONS AND WARRANTIES 7.1 Warranty. Licensor warrants that (a) the SOFTWARE will perform substantially in accordance with the accompanying written materials for a period of ninety (90) days from the date of installation. �7.2 Limitations: SUBJECT TO SECTION 7.1, LICENSOR DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL LI-COR OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF LI-COR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, LI-COR'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO THE GREATER AMOUNT OF ACTUALLY PAID BY YOU FOR THE SOFTWARE OR U.S. $5.00; PROVIDED, HOWEVER, IF YOU HAVE ENTERED INTO A LI-COR SUPPORT SERVICES AGREEMENT, LI-COR'S ENTIRE LIABILITY REGARDING SUPPORT SERVICES SHALL BE GOVERNED BY THE TERMS OF THAT AGREEMENT. 7.3 EXCLUSIVE REMEDY: TO THE EXTENT THAT THE LICENSOR IS LIABLE, THE EXCLUSIVE REMEDY, AT LI-COR'S OPTION SHALL BE EITHER (A) RETURN OF THE GREATER OF AMOUNT ACTUALLY PAID, IF ANY, BY YOU FOR THE SOFTWARE OR U.S. $5.00, OR (B) REPAIR OR REPLACEMENT OF THE LICENSED PROGRAM. This Limited Warranty is void if failure of the SOFTWARE has resulted from accident, abuse, or misapplication. Any replacement SOFTWARE will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. Outside of the United States, neither of these remedies nor any product support services offered by LI-COR are available without proof of purchase from an authorized international source. 8. DISPUTE RESOLUTION In the event of a dispute involving the interpretation or application of any provision of this Agreement, the parties agree not to commence litigation until they have first notified each other of their intent to implement the terms of this Section after first having employed their best efforts to jointly resolve such dispute. If the parties cannot resolve their differences in such fashion within thirty (30) days of either party's receipt of such notice of the intent of the other party to implement the terms of this Section, the following alternative dispute resolution process (the venue of which shall be Lincoln, Nebraska) shall be immediately implemented: Upon written request of either party, the dispute will be referred for negotiation to representatives of the parties who have no direct operational responsibility for the matters involved in the dispute and who have authority to resolve the dispute. If these representatives have not agreed on a resolution of such dispute within ten (10) Business Days of its referral to them, the dispute shall be promptly submitted to a neutral adviser (the "Adviser") who shall be chosen from the list of arbitrators registered with the American Arbitration Association. For purposes of this Section, "Business Day" shall mean each weekday and the hours of such weekday in which You are open for business. The Adviser shall, within fourteen (14) days of the submission, recommend, in writing, a procedure for resolving the dispute and shall specify in such writing whether such procedure shall be binding, non-binding or involve a combination of binding and non-binding procedures. If the parties do not mutually agree upon the process recommended b the Adviser within �ten (10) Business Days of their receipt of the Adviser's written recommendation, they shall promptly convene a non-binding hearing (the "Mediation"). The rules for Mediation will be established by the Adviser, after consultation with the parties. If the dispute cannot be resolved, either through the procedure recommended by the Adviser or through the Mediation, within such period as the Adviser shall deem reasonable, the Adviser shall, at the request of either party, certify to the parties that the matter is incapable of resolution. No litigation may be commenced concerning the dispute until the Adviser has certified in writing that the dispute is incapable of resolution, provided that any party may commence litigation: (a) on any date after which such litigation could be barred by an applicable statute of limitations; or (b) if litigation is otherwise necessary to prevent irreparable harm to the moving party. Each party shall bear its own expenses in connection with the alternative dispute resolution procedures set forth in this Section, except that the parties shall split equally the fees and expenses of the Adviser, including the costs associated with any Mediation, and the fees and expenses of any other person designated by the Adviser to assist the parties. All communications made in connection with the alternative dispute resolution procedure set forth in this Section shall he treated as communications for the purpose of settlement and as such shall be deemed to be confidential and inadmissible in any subsequent litigation by virtue of Rule 408 of the Federal Rules of Evidence, as the same may be amended from time-to-time. 9. TERMINATION 9.1 Termination: This agreement shall be effective from the date that the “I agree” ICON is clicked at download or installation of the SOFTWARE, or by installing, copying, or otherwise using the SOFTWARE and shall terminate as follows: 9.1.1 Automatically: If the SOFTWARE is installed in connection with a trial and or demonstration of its use by You, this Agreement shall terminate automatically when the trial or demonstration shall end, unless You agree further agree to accept and use the SOFTWARE after such date, in which case the terms and conditions of this Agreement shall continue. 9.1.2. By Licensor: Licensor may terminate this Agreement immediately with written notice to You upon Your uncured breach of any the terms and conditions of this Agreement or any other agreement between You and Licensor. 9.1.3. By Licensee: You may terminate this Agreement upon thirty (30) days prior written notice thereof to Licensor. 9.1.4 Effect of Termination: Upon termination for any reason, all rights granted to You by this agreement shall cease and You shall immediately cease using the SOFTWARE. In addition, without further demand You shall remove the SOFTWARE from any computer or network server on which it has been installed or copied and You shall otherwise destroy any and all copies of the SOFTWARE and any related materials in Your possession. �10. MISCELLANEOUS 10.1 Headings: Unless otherwise stated, all references to Articles and Sections refer to the articles and sections of this Agreement. The headings of the Articles and Sections of this Agreement are for convenience only and in no way limit or affect the terms or conditions of this Agreement. 10.2 Governing Law: This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Nebraska, USA (without regard to the principles of conflicts of laws embodied therein) applicable to contracts executed and performable in such state if the product was acquired in the United States. 10.3 Severability: If any provision or any portion of any provision of this Agreement is construed to be illegal, invalid or unenforceable, such provision or portion thereof shall be deemed stricken and deleted from this Agreement to the same extent and effect as if it were never incorporated herein, but all other provisions of this Agreement and the remaining portion of any provision that is construed to be illegal, invalid or unenforceable in part shall continue in full force and effect; provided that the resulting construction of the Agreement does not frustrate the main purpose of the Agreement. 10.4 Entire Agreement: This Agreement constitutes the entire agreement between the parties and supersedes all previous agreements, promises, representations, understandings and negotiations, whether written or oral, between the parties with respect to the subject matter hereof. Any modification and/or amendment to this Agreement must be in writing and executed by both parties. 10.5 Survival: The provisions of Sections 2, 4, 6, 7, 8, 9, and 10 shall survive termination or expiration of the Agreement. 10.6 Successors and Assigns; All the terms and conditions of this Agreement are binding upon and inure to the benefit of the parties hereto, their successors, legal representatives, and permitted assigns. 10.7 No Relationship Between the Parties: Neither party shall represent itself as the agent or legal representative of the other or joint venture for any purposes whatsoever, and neither shall have any right to create or assume any obligations of any kind, express or implied, for or on behalf of the other in any way whatsoever. 10.8 Non-Waiver: A failure of either party to enforce at any time any term, provision, or condition of this Agreement, or to exercise any right or option herein, shall in no way operate as a waiver thereof, nor shall any single or partial exercise preclude any other right or option herein, in no way whatsoever shall a waiver of any term, provision or condition of this Agreement be valid unless in writing, signed by the waiving party, and only to the extent set forth in such writing. 10.9 Notices: Unless expressly stated otherwise, all notices required herein shall be given in writing and shall be delivered (and notice shall be deemed effective upon delivery) in person, by courier, or sent by certified United States mail, postage prepaid, return receipt requested, to the following address: LI-COR, Inc. 4647 Superior Street P.O. Box 4000 �Lincoln, Nebraska 68504 USA LI-COR is an ISO9001 registered company. ©2013 LI-COR, Inc. All rights reserved. Specifications subject to change. 4822-7325-9796, v. 2 �
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4-464-451-11 (1) END USER LICENSE AGREEMENT FOR CERTAIN SOFTWARE AND SERVICE TO BE USED WITH YOUR SONY PRODUCT IMPORTANT – READ THIS AGREEMENT BEFORE USING YOUR SONY PRODUCT. USING YOUR PRODUCT INDICATES YOUR ACCEPTANCE OF THIS AGREEMENT. This End User License Agreement (“EULA”) is a legal agreement between you and Sony Electronics Inc. (“Sony”), the licensor of the software (other than the software which is governed by other licenses as indicated below, the “Excluded Software”) included in this Sony Product and related materials which shall be collectively referred to as the “Sony Software.” This EULA covers the Sony Software and that of Sony’s third party licensors (“Third Party Licensors”) and accompanying printed or online documentation. The Sony Software includes software in your Sony Product, other software, including updates or modified software, provided to you by Sony, whether stored on media or downloaded to the Sony Product via any method. This Sony Product also includes the BRAVIA® Internet Video feature which provides access to selected content services (“Services”) from third party content providers including Sony entities other than Sony Electronics Inc. (“Third Party Providers”) as a courtesy to you. The BRAVIA® Internet Video feature also provides you access to selected Sony content services (“Sony Content Services”), which services and related content (“Sony Content”) shall both be considered Sony Software under this EULA. The BRAVIA® Internet Video feature requires an Internet connection. Your ability to access the Services, and the quality of the Services presented, are subject to your Internet provider’s service and terms as well as the broadband Internet connection speed you use. Your ability to access the Services, and the quality of the Services presented, are subject to your Internet provider’s service and terms. Video quality and picture size varies and is dependent upon the speed of your broadband service from your Internet provider and delivery by the Third Party Providers. The content, including but not limited to data, music, sound, audio, photographs, images, graphics, likenesses, software, text, video, messages, tags, or other materials, provided by Third Party Providers (“Content”) and the availability of the Services are at the sole discretion and under the control of the Third Party Providers. The Content and Services of each Third Party Provider are provided pursuant to the terms and conditions of that Third Party Provider. Premium Content may require additional fees and/or registration with the Third Party Provider through a computer. The Services and the Content may only be used for your own personal, private viewing, and shall not be used for nontheatrical exhibition, or any viewing or exhibition for which (or in a venue in which) an admission, access, or viewing fee is charged, or for any public exhibition or viewing. The Services may be changed at any time and may be unavailable from time to time. THE SONY SOFTWARE AND THE SERVICES MAY ALLOW SONY, THE THIRD PARTY PROVIDERS, AND/OR OTHER THIRD PARTIES TO COLLECT DATA FROM, CONTROL, AND/OR MONITOR THE SONY PRODUCT AND OTHER DEVICES RUNNING OR INTERACTING WITH THE SONY SOFTWARE. YOU HEREBY CONSENT TO SUCH ACTIVITIES. YOU ALSO AGREE TO SONY’S CURRENT PRIVACY POLICY THAT IS AVAILABLE AT HTTP://PRODUCTS.SEL.SONY.COM/SEL/ LEGAL/PRIVACY.HTML. SUCH PRIVACY POLICY MAY CHANGE FROM TIME TO TIME; PLEASE CONSULT THE ABOVEMENTIONED LINK FOR ANY UPDATES TO THE POLICY. PLEASE CONTACT APPLICABLE THIRD PARTY PROVIDERS OR OTHER THIRD PARTIES FOR PRIVACY POLICIES RELATED TO THEIR SERVICES. BY USING YOUR SONY PRODUCT, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA AND SONY’S PRIVACY POLICY. If you do not agree to the terms of this EULA or Sony’s privacy policy, as amended from time to time by Sony in its discretion, Sony is unwilling to license the Sony Software to you and unwilling to allow you to access the Services, and you should promptly contact Sony for instructions on the return of the entire Sony Product and included Sony Software for a refund of the purchase price of the Sony Product. � �SOFTWARE LICENSE You cannot use the Sony Software except as specified herein. The Sony Software is licensed, not sold. Sony and its Third Party Licensors grant you a limited license to use the Sony Software only on the Sony Product. The Sony Software may create data files automatically for use with the Sony Software, and you agree that any such data files are deemed to be a part of the Sony Software. The Sony Software is licensed as a single product, and you may not separate its component parts for use on more than one device unless expressly authorized by Sony. You agree not to modify, reverse engineer, decompile or disassemble the Sony Software in whole or in part or to use the Sony Software in whole or in part for any purpose other than allowed under this EULA. In addition, you may not rent, lease, sublicense, or sell the Sony Software, but you may transfer all of your rights under this EULA only as part of a sale or transfer of the Sony Product provided you retain no copies, transfer all of the Sony Software (including all copies, component parts, any media, printed materials, all versions and any upgrades of the Sony Software, and this EULA), and the recipient agrees to the terms of this EULA. Sony and its Third Party Licensors retain all rights that this EULA does not expressly grant to you. You shall not (a) bypass, modify, defeat, or circumvent any of the functions or protections of the Sony Software or any mechanisms operatively linked to the Sony Software; or (b) remove, alter, cover, or deface any trademarks or notices on the Sony Software. You understand, acknowledge, and agree that the software, network services, or other products other than the Sony Software upon which the Sony Software’s performance may depend might be interrupted or discontinued at the discretion of the suppliers (software suppliers, service providers, Third Party Providers, etc.) or Sony. USER ACCOUNT As part of the agreement to allow you to access, browse, or use the Services and the Content, Third Party Providers and/or other third parties may require that you establish a user account (”Account”) for which you must provide them with true, accurate, current, and complete information about yourself and maintain/promptly update such information. You are responsible for maintaining the confidentiality of any and all of your passwords associated with any such Account. � SONY’S RIGHTS TO USER’S MATERIAL If you send any communications or materials to Sony by electronic mail or otherwise (“Materials”), including any selections, comments, data, questions, suggestions, or the like, all such Materials are, and will be treated as, non-confidential and non-proprietary. Thus, you give up any claim that use of such Materials violates any of your rights including moral rights, privacy rights, proprietary or other property rights, rights of publicity, rights to credit for material or ideas, or any other right, including the right to approve the way Sony uses such Materials. Any Material may be adapted, broadcast, changed, copied, disclosed, licensed, performed, posted, published, sold, transmitted, or used by Sony anywhere in the world, in any medium, forever and without attribution or compensation to you. Furthermore, you hereby assign all right, title, and interest in, and Sony is free to use, without any compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Materials, whether or not patentable, for any purpose whatsoever, including but not limited to developing, manufacturing, having manufactured, licensing, marketing, and selling products using such Materials. However, you agree and understand that Sony is not obligated to use any such ideas, know-how, concepts, or techniques or Materials, and you have no right to compel such use. TRANSMITTED MATERIAL Internet transmissions are never completely private or secure. You understand that any message or information you send to Sony may be read or intercepted by others, unless there is a special notice that a particular message (for example, credit card information) is encrypted (sent in code). Sending a message to Sony does not cause Sony to have any special responsibility to you. DIGITAL RIGHTS MANAGEMENT Content owners use Windows Media digital rights management technology (“WMDRM”) to protect their intellectual property, including copyrights. This Sony Product uses WMDRM software to access WMDRM-protected Content. If the WMDRM software fails to protect the Content, Content owners may ask Microsoft Corporation (“Microsoft”) to revoke the Service’s ability to use WMDRM to play or copy protected Content. �Revocation does not affect unprotected Content. If you download licenses for protected Content, you agree that Microsoft may include a revocation list with the licenses. Content owners may require you to upgrade WMDRM to access their Content. If you decline an upgrade, you will not be able to access Content that requires the upgrade. ADVERTISEMENTS, SERVICE COMMUNICATIONS Inclusion of the Service of a Third Party Provider does not mean that Sony approves of, or endorses, or recommends that Third Party Provider or its Content. You understand and agree that the Services and/or Content may include advertisements (“Advertisements”), and that these Advertisements are necessary in order for the Services to be provided. You also understand and agree that the use of the BRAVIA® Internet Video feature may include certain communications from Sony or Third Party Providers such as service announcements, administrative messages, newsletters, and the like (“Service Communications”), and that you will not be able to opt out of receiving such Service Communications. SONY, ITS AFFILIATES, AND ITS THIRD PARTY PROVIDERS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, AS TO THE ACCURACY, LEGALITY, RELIABILITY, OR VALIDITY OF ANY ADVERTISMENT, SERVICE COMMUNICATIONS, OR CONTENT, AS WELL AS ANY LIABILITY ARISING UNDER ANY THEORY OF LAW FOR THE ADVERTISEMENTS, SERVICE COMMUNICATIONS, AND CONTENT. OBJECTIONABLE CONTENT AND RULES FOR MINORS (UNDER AGE 16) Certain Content may not be suitable for minors or other users. Such Content may or may not be rated or identified as having explicit language, or otherwise being for a mature audience. Therefore, you acknowledge that you are using the Services at your own risk and that Sony has no liability to you for the Content, including any Content that may be offensive. You are responsible for supervising the use of the Sony Product, the Sony Software, Excluded Software, the Services, and the Content by any minor. If you are under the age of 16, you should ask your parent(s) or a guardian before you: (i) e-mail Sony via the Service; (ii) send in any information; (iii) enter any contest or game that requires information about you or offers a prize; (iv) join any club or group; (v) post any information on any bulletin board or enter any chatroom; or (vi) buy anything online. EXCLUSION OF WARRANTY YOU UNDERSTAND, ACKNOWLEDGE, AND AGREE THAT THE CONTENT AND SERVICES ARE PROVIDED BY THIRD PARTY PROVIDERS AND/OR SOFTWARE IS PROVIDED BY THIRD PARTIES OVER WHICH SONY HAS NO CONTROL. THE SELECTION, PROVISION, QUALITY, PICTURE SIZE, AND AVAILABILITY OF SUCH CONTENT AND/OR SOFTWARE ARE THE SOLE RESPONSIBILITY OF SUCH THIRD PARTY PROVIDER OR OTHER THIRD PARTY. YOU AGREE TO COMPLY WITH ANY AND ALL TERMS AND CONDITIONS THAT THE THIRD PARTY PROVIDERS MAY SET FOR ITS SERVICE, CONTENT AND/OR SOFTWARE. YOU FURTHER UNDERSTAND, ACKNOWLEDGE, AND AGREE THAT ACCESS, BROWSING, AND USAGE OF THE SERVICES REQUIRES INTERNET SERVICE PROVIDED BY YOU, AND FOR WHICH YOU ARE SOLELY RESPONSIBLE, INCLUDING BUT NOT LIMITED TO THE PAYMENT OF ANY THIRD PARTY FEES (SUCH AS INTERNET SERVICE PROVIDER OR AIRTIME CHARGES) FOR SUCH ACCESS AND FOR DISPLAY OR DELIVERY OF ADVERTISEMENTS INCLUDED WITH THE SERVICES. OPERATION OF THE BRAVIA® INTERNET VIDEO FEATURE AND THE SERVICE MAY BE LIMITED OR RESTRICTED DEPENDING ON THE CAPABILITIES, BANDWIDTH OR TECHNICAL LIMITATIONS OF YOUR INTERNET SERVICE. SONY, ITS AFFILIATES, AND ITS THIRD PARTY PROVIDERS SHALL HAVE NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY, OR FAILURE TO STORE ANY USER COMMUNICATIONS OR PERSONALIZED SETTINGS. THE SONY SOFTWARE AND ACCOMPANYING DOCUMENTATION, THE SERVICES, AND THE CONTENT ARE FURNISHED TO YOU “AS IS” AND WITHOUT WARRANTIES OR CONDITIONS, STATUTORY OR OTHERWISE, OF ANY KIND. SONY, ITS AFFILIATES, ITS THIRD PARTY LICENSORS, AND ITS THIRD PARTY PROVIDERS EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDNG BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. SONY, ITS AFFILIATES, ITS THIRD PARTY LICENSORS, AND ITS THIRD PARTY PROVIDERS DO NOT WARRANT THAT THE SONY SOFTWARE OR ACCOMPANYING � �DOCUMENTATION, THE SERVICES, OR THE CONTENT WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SONY SOFTWARE, THE SERVICES, OR THE CONTENT WILL BE UNINTERRUPTED OR ERROR FREE. FURTHERMORE, SONY, ITS AFFILIATES, ITS THIRD PARTY LICENSORS, AND ITS THIRD PARTY PROVIDERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS OR CONDITIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SONY SOFTWARE, THE SERVICES OR THE CONTENT IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SONY, ITS AFFILIATES, OR A SONY AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR CONDITION, OR IN ANY WAY CHANGE THIS EXCLUSION OF WARRANTY AND CONDITION. SHOULD THE SOFTWARE, MEDIA ON WHICH THE SOFTWARE IS FURNISHED, DOCUMENTATION, THE SERVICES, OR THE CONTENT PROVE DEFECTIVE, YOU (AND NOT SONY OR A SONY AUTHORIZED REPRESENTATIVE) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. LIMITATION OF LIABILITY IN NO EVENT WILL SONY (INCLUDING BUT NOT LIMITED TO ANY NEGLIGENCE ISSUES RELATED TO THIRD PARTY LICENSORS OR THIRD PARTY PROVIDERS), ITS AFFILIATES, ITS THIRD PARTY LICENSORS OR ITS THIRD PARTY PROVIDERS BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO COMPENSATION, REIMBURSEMENT OR DAMAGES IN CONNECTION WITH, ARISING OUT OF OR RELATING TO THIS EULA, ON ACCOUNT OF THE LOSS OF USE OF THE SONY PRODUCT, DOCUMENTATION, THE SERVICES, THE CONTENT, DOWN TIME AND YOUR TIME, LOSS OF PRESENT OR PROSPECTIVE PROFITS, LOSS OF DATA, INFORMATION OF ANY KIND, BUSINESS PROFITS, OR OTHER COMMERCIAL LOSS, OR FOR ANY OTHER REASON WHATSOEVER, EVEN IF SONY, ITS AFFILIATES, ITS THIRD PARTY LICENSORS, OR ITS THIRD PARTY PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE SONY SOFTWARE AND ACCOMPANYING DOCUMENTATION, THE SERVICES, AND THE � CONTENT ARE FURNISHED TO YOU FOR USE AT YOUR OWN RISK. SONY, ITS AFFILIATES, ITS THIRD PARTY LICENSORS, AND ITS THIRD PARTY PROVIDERS WILL NOT BE LIABLE FOR DAMAGES FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY RELATED TO THE SONY SOFTWARE, THE SERVICES, THE CONTENT, OR THIS EULA. Some jurisdictions may not allow exclusions or limitations of incidental or consequential damages, exclusions or limitations of implied warranties or conditions, or allow limitations on how long an implied warranty lasts, so the above limitations or exclusions may not apply to you. LIMITED WARRANTY ON MEDIA In situations where the Sony Software or any part thereof is furnished on media, Sony warrants that for a period of ninety (90) days from the date of its delivery to you, the media on which the Sony Software is furnished to you will be free from defects in materials and workmanship under normal use. This limited warranty extends only to you as the original licensee. Sony’s entire liability and your exclusive remedy will be replacement of the media not meeting Sony’s limited warranty. ANY IMPLIED WARRANTIES OR CONDITIONS ON THE MEDIA, INCLUDING THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND/OR FITNESS FOR A PARTICULAR PURPOSE, ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY OR CONDITION LASTS, SO THESE LIMITATIONS MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. FEES Sony and its Third Party Providers reserve the right at any time to charge fees for access to new Content or new Services or to portions of the existing Content or Services, or the Services as a whole. In addition, Third Party Providers may charge fees for access to their Content. In no event will you be charged for access to any portion or all of the Content and/or the Services unless Sony and/or a Third Party Provider obtain �your prior agreement to pay such charges. If you do not consent to such charges, however, you may not have access to paid Content or Services for which such charges apply. INTELLECTUAL PROPERTY / NOTICE FOR CLAIMS OF INTELLECTUAL PROPERTY VIOLATIONS AND AGENT FOR NOTICE Sony respects the intellectual property rights of others, and we ask you to do the same. It is Sony’s policy, at its discretion as appropriate, (a) to terminate and/or disable the Content of Third Party Providers or users of the Services who may infringe or repeatedly infringe the copyrights or other intellectual property rights of Sony, its Third Party Providers or others; and/or (b) to forward reports of intellectual property rights violations to Third Party Providers and others for review and action per the terms of such Third Party Provider’s procedures for protection of intellectual property rights. The Sony Software and Content are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. There may be proprietary logos, service marks, trademarks, likenesses, and trade names found in the Sony Software, the Content, or on the Services. By making the Sony Software and Content available on the Services, Sony and the Third Party Providers are not granting you any license to utilize those proprietary logos, service marks, trademarks, likenesses, or trade names. Any unauthorized use of the Sony Software, the Services, or the Content may violate copyright laws, trademark laws, the laws of privacy and publicity, and civil and criminal statutes. All right, title, and interest in and to the Sony Software and the Content, and any and all copies or portions thereof, are owned by Sony, its licensors, Third Party Licensors, suppliers and/or Third Party Providers. All rights not specifically granted under this EULA are reserved by Sony, its licensors, Third Party Licensors, suppliers and/or Third Party Providers. You are responsible for all your activities hereunder, including all legal liability incurred from access, browsing, or use of the Services by you or by others who use the Services via your Sony Product or Account (as defined in the User Account section). You may use the Sony Software, the Services, and the Content for lawful purposes only. You may not distribute, exchange, modify, sell, or transmit anything you may copy from the Sony Software, the Services, or the Content, including but not limited to any data, text, software, likenesses, photographs, images, graphics, audio, music, sound, video, messages, and tags, for any business, commercial, or public purpose. As long as you comply with the terms of this EULA, Sony grants you a nonexclusive, nontransferable, limited right to use the BRAVIA® Internet Video feature to access the Services and the Content as set forth in this EULA. You further agree not to interrupt/disrupt or attempt to interrupt/disrupt the operation of the Sony Software, the Service or the Content in any way. If you believe your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have otherwise been violated, please first contact the Third Party Provider for the particular Service. If you are unable to contact such Third Party Provider, or the content at issue is Sony’s, you may contact Sony’s Intellectual Property Agent (listed below) with the following information in a written notice: (a) an electronic or physical signature of the person authorized to act on behalf of the copyright or other intellectual property interest; (b) a description of the copyrighted work or other intellectual property that you claim has been infringed; (c) a description of the particular Service and where the material that you claim is infringing is located on such Service, with enough detail that we may find the material; (d) your address, telephone number, and e-mail address; (e) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf. Sony’s agent for notice of copyright or other intellectual property right infringement is as follows: Intellectual Property Agent, c/o Sony Electronics Inc., 16530 Via Esprillo, San Diego, CA 92127; Facsimile (858) 942-9123; E-Mail [email protected] INDEMNIFICATION You agree to indemnify, defend, and hold harmless Sony and all of its agents, directors, officers, employees, information providers, licensors and licensees, affiliates, content providers, and direct and indirect parent(s) � �(collectively, “Indemnified Parties”) from and against any and all liability and costs (including, without limitation, attorneys’ fees and costs) incurred by the Indemnified Parties in connection with any claim arising out of (i) any breach or alleged breach by you of this EULA in any manner, (ii) any information you submit to Sony hereunder, (iii) any breach or alleged breach by you of a third party’s rights, (iv) any damage caused by or alleged to have been caused by you to the Sony Software, the Services, or the Content. Counsel you select for defense or settlement of a claim must be consented to by Sony and/or Indemnified Party(s) prior to counsel being engaged to represent you and Sony and/or Indemnified Party(s). You and your counsel will cooperate as fully as reasonably required by the Indemnified Party(s) in defense or settlement of any claim. Sony and/or Indemnified Party(s) reserve the right, at its own expense, to assume the exclusive defense or settlement, and control of any matter otherwise subject to indemnification by you. You shall not in any event consent to any judgment, settlement, attachment, or lien, or any other act adverse to the interest of Sony or any Indemnified Party without the prior written consent of Sony and/or Indemnified Party(s). AUTOMATIC UPDATE FEATURE / MODIFICATION OF EULA AS TO SERVICES From time to time, Sony or third parties may automatically update or otherwise modify the Sony Software, for example, but not limited to, for purposes of error correction, improvement of features, and enhancement of security features. Such updates or modifications may change or delete the nature of features or other aspects of the Sony Software, including features you may rely upon. You hereby agree that such activities may occur at Sony’s sole discretion and that Sony may condition continued use of the Sony Software upon your complete installation or acceptance of such update or modifications. Sony may add to, change, or remove any part, term, or condition of the EULA as it applies to the Sony Software, the Services, and/or the Content at any time without prior notice to you. Any such additions, changes, or removals or any terms posted in the BRAVIA® Internet Video feature shall apply as soon as they are posted. By continuing to access the Services, the Sony Content Services, the Content, and/or the Sony Content after so posted, you are indicating your acceptance thereto. SONY � MAY ADD, CHANGE, DISCONTINUE, REMOVE, OR SUSPEND ANY OF THE SERVICES OR THE SONY CONTENT SERVICES, TEMPORARILY OR PERMANENTLY, AT ANY TIME, WITHOUT NOTICE AND WITHOUT LIABILITY. WITHOUT PREJUDICE TO ANY OTHER RIGHTS, SONY MAY SUSPEND OR TERMINATE THIS EULA AS TO THE SERVICES, THE SONY CONTENT SERVICES, THE CONTENT, AND/OR THE SONY CONTENT IMMEDIATELY UPON NOTICE IF YOU FAIL TO COMPLY WITH THE TERMS AND CONDITIONS OF THIS EULA. Sony may take any legal and technical remedies to prevent violation of and/or to enforce this EULA, including, without limitation, immediate termination of your access to the Services, if Sony believes in its discretion that you are violating this EULA. HIGH RISK ACTIVITIES The Sony Software is not fault-tolerant and is not designed, manufactured or intended for use or resale as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Sony Software could lead to death, personal injury, or severe physical or environmental damage (“High Risk Activities”). SONY, EACH OF THE THIRD PARTY LICENSORS, AND EACH OF THEIR RESPECTIVE AFFILIATES SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION OF FITNESS FOR HIGH RISK ACTIVITIES. RESTRICTIONS ON EXPORT OF ENCRYPTION TECHNOLOGY The Sony Software and the Content may contain encryption technology. You acknowledge that any export of Sony Software or the Content containing encryption technology from the United States or subsequent re-export of such software by a person located outside of the United States requires a license or other authorization from the U.S. Department of Commerce’s Bureau of Industry and Security. You further acknowledge that the Sony Software or the Content containing encryption technology and acquired from Sony is not intended for use by a foreign government end user. By accepting this license agreement, you agree to abide by all relevant U.S. export laws and regulations in the purchase and use of the Sony product being acquired, including but not limited �to those regulations relating to the export control of cryptographic items and not to transfer, or authorize the transfer, of the Sony Software or the Content to a prohibited country or otherwise in violation of any such restrictions or regulations. US GOVERNMENT RESTRICTED RIGHTS The Sony Software is provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the United States Government is subject to restrictions as set forth in subparagraphs (c)(1) and (c)(2) of the Commercial Computer Software clause at FAR 52.227 19, and subparagraph (c)(i)(ii) of the Rights in Technical Data and Computer Software clause at DOD FAR 252.2277013 and any comparable federal, state or local law or regulation. Manufacturer is Sony Electronics Inc., 16530 Via Esprillo, San Diego, CA 92127. JURY TRIAL WAIVER THE PARTIES HERETO WAIVE TRIAL BY JURY WITH RESPECT TO ANY MATTERS ARISING UNDER OR RELATING TO THIS EULA. Any cause of action you may have with respect to the Services must be commenced within one (1) year after the claim or cause of action arises. EXCLUDED SOFTWARE Excluded Software included in the Sony Product is not subject to this EULA. Please refer to the section of this booklet entitled “NOTICES AND LICENSES FOR SOFTWARE USED IN THIS PRODUCT” for a list of the applicable software and terms and conditions governing the use of such Excluded Software. TERM This EULA is effective until terminated. Sony may terminate this EULA immediately if you fail to comply with its terms by giving you notice. In such event, you must destroy the Sony Software and accompanying documentation, and all copies you have made of them. In addition, upon termination you will have no recourse against Sony, its affiliates, its Third Party Licensors, or its Third Party Providers for your inability to use the Sony Software or the accompanying documentation, the Services, or the Content. Should you have any questions concerning this EULA, you may contact Sony by writing to Sony Electronics Inc. 16530 Via Esprillo, San Diego, California 92127 U.S.A. ENTIRE AGREEMENT, NOTICE, WAIVER, SEVERABILITY This EULA, the limited warranty accompanying the Sony Product, Sony’s then-current privacy policy, and any additional terms and conditions posted on the Services, together constitute the entire agreement between you and Sony with respect to the Sony Product, the Sony Software, the Services, and the Content. Any notice by Sony hereunder may be made by letter, e-mail, or posting on the Services. The failure of Sony to exercise or enforce any right or provision of this EULA shall not constitute a waiver of such right or provision. If any part of this EULA is held invalid, illegal, or unenforceable, that provision shall be enforced to the maximum extent permissible so as to maintain the intent of this EULA, and the other parts will remain in full force and effect. THIRD PARTY BENEFICIARIES Each Third Party Licensor and each Third Party Provider is an express intended third-party beneficiary of, and shall have the right to enforce, each provision of this EULA with respect to the software, service, and content, as applicable, of such party. � �NOTICES AND LICENSES FOR SOFTWARE USED IN THIS PRODUCT GPL/LGPL LICENSED SOFTWARE The following GPL executables and LGPL libraries are used in this product and are subject to the GPL/ LGPL License Agreements included as part of this documentation: Package list: SAWMAN u-Boot loader fusion SysvInit Linux kernel Busybox SquashFS Qt/Webkit libiconv glibc gcc Ffmpeg LibAV Bison DirectFB Mozilla SpiderMonkey NTFS-3G ALSA dibbler e2fsprogs ffmpeg fuse gcc libgcc gcc libstdc++ iconv libavcodec libavformat libavutil libmtp libusb libusb-compat NTFS-3G Read/Write Driver ntfsprogs samba zziplib ================================================= GNU GENERAL PUBLIC LICENSE Version 2, June 1991 Copyright (C) 1989, 1991 Free Software Foundation, Inc., 51 Franklin Street, Fifth Floor, Boston, MA 02110-1301, USA. Everyone is permitted to copy and distribute verbatim copies of this license document, but changing it is not allowed. Preamble The licenses for most software are designed to take away your freedom to share and change it. By contrast, the GNU General Public License is intended to guarantee your freedom to share and change free software--to make sure the software is free for all its users. This General Public License applies to most of the Free Software Foundation’s software and to any other program whose authors commit to using it. (Some other Free Software Foundation software is covered by the GNU Library General Public License instead.) You can apply it to your programs, too. When we speak of free software, we are referring to freedom, � not price. Our General Public Licenses are designed to make sure that you have the freedom to distribute copies of free software (and charge for this service if you wish), that you receive source code or can get it if you want it, that you can change the software or use pieces of it in new free programs; and that you know you can do these things. To protect your rights, we need to make restrictions that forbid anyone to deny you these rights or to ask you to surrender the rights. These restrictions translate to certain responsibilities for you if you distribute copies of the software, or if you modify it. For example, if you distribute copies of such a program, whether gratis or for a fee, you must give the recipients all the rights that you have. You must make sure that they, too, receive or can get the source code. And you must show them these terms so they know their rights. We protect your rights with two steps: (1) copyright the software, and (2) offer you this license which gives you legal permission to copy, distribute and/or modify the software. Also, for each author’s protection and ours, we want to make certain that everyone understands that there is no warranty for this free software. If the software is modified by someone else and passed on, we want its recipients to know that what they have is not the original, so that any problems introduced by others will not reflect on the original authors’ reputations. Finally, any free program is threatened constantly by software patents. We wish to avoid the danger that redistributors of a free program will individually obtain patent licenses, in effect making the program proprietary. To prevent this, we have made it clear that any patent must be licensed for everyone’s free use or not licensed at all. The precise terms and conditions for copying, distribution and modification follow. GNU GENERAL PUBLIC LICENSE TERMS AND CONDITIONS FOR COPYING, DISTRIBUTION AND MODIFICATION 0. This License applies to any program or other work which contains a notice placed by the copyright holder saying it may be distributed under the terms of this General Public License. The “Program”, below, refers to any such program or work, and a “work based on the Program” means either the Program or any derivative work under copyright law: that is to say, a work containing the Program or a portion of it, either verbatim or with modifications and/or translated into another language. (Hereinafter, translation is included without limitation in the term “modification”.) Each licensee is addressed as “you”. Activities other than copying, distribution and modification are not covered by this License; they are outside its scope. The act of running the Program is not restricted, and the output from the Program is covered only if its contents constitute a work based on the Program (independent of having been made by running the Program). Whether that is true depends on what the Program does. 1. You may copy and distribute verbatim copies of the Program’s source code as you receive it, in any medium, provided that you conspicuously and appropriately publish on �each copy an appropriate copyright notice and disclaimer of warranty; keep intact all the notices that refer to this License and to the absence of any warranty; and give any other recipients of the Program a copy of this License along with the Program. You may charge a fee for the physical act of transferring a copy, and you may at your option offer warranty protection in exchange for a fee. 2. You may modify your copy or copies of the Program or any portion of it, thus forming a work based on the Program, and copy and distribute such modifications or work under the terms of Section 1 above, provided that you also meet all of these conditions: a) You must cause the modified files to carry prominent notices stating that you changed the files and the date of any change. b) You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License. c) If the modified program normally reads commands interactively when run, you must cause it, when started running for such interactive use in the most ordinary way, to print or display an announcement including an appropriate copyright notice and a notice that there is no warranty (or else, saying that you provide a warranty) and that users may redistribute the program under these conditions, and telling the user how to view a copy of this License. (Exception: if the Program itself is interactive but does not normally print such an announcement, your work based on the Program is not required to print an announcement.) These requirements apply to the modified work as a whole. If identifiable sections of that work are not derived from the Program, and can be reasonably considered independent and separate works in themselves, then this License, and its terms, do not apply to those sections when you distribute them as separate works. But when you distribute the same sections as part of a whole which is a work based on the Program, the distribution of the whole must be on the terms of this License, whose permissions for other licensees extend to the entire whole, and thus to each and every part regardless of who wrote it. Thus, it is not the intent of this section to claim rights or contest your rights to work written entirely by you; rather, the intent is to exercise the right to control the distribution of derivative or collective works based on the Program. In addition, mere aggregation of another work not based on the Program with the Program (or with a work based on the Program) on a volume of a storage or distribution medium does not bring the other work under the scope of this License. 3. You may copy and distribute the Program (or a work based on it, under Section 2) in object code or executable form under the terms of Sections 1 and 2 above provided that you also do one of the following: a) Accompany it with the complete corresponding machinereadable source code, which must be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or, b) Accompany it with a written offer, valid for at least three years, to give any third party, for a charge no more than your cost of physically performing source distribution, a complete machine-readable copy of the corresponding source code, to be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or, c) Accompany it with the information you received as to the offer to distribute corresponding source code. (This alternative is allowed only for noncommercial distribution and only if you received the program in object code or executable form with such an offer, in accord with Subsection b above.) The source code for a work means the preferred form of the work for making modifications to it. For an executable work, complete source code means all the source code for all modules it contains, plus any associated interface definition files, plus the scripts used to control compilation and installation of the executable. However, as a special exception, the source code distributed need not include anything that is normally distributed (in either source or binary form) with the major components (compiler, kernel, and so on) of the operating system on which the executable runs, unless that component itself accompanies the executable. If distribution of executable or object code is made by offering access to copy from a designated place, then offering equivalent access to copy the source code from the same place counts as distribution of the source code, even though third parties are not compelled to copy the source along with the object code. 4. You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License. However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance. 5. You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it. 6. Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose any further restrictions on the recipients’ exercise of the rights granted herein. You are not responsible for enforcing compliance by third parties to this License. 7. If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and � �any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program. If any portion of this section is held invalid or unenforceable under any particular circumstance, the balance of the section is intended to apply and the section as a whole is intended to apply in other circumstances. It is not the purpose of this section to induce you to infringe any patents or other property right claims or to contest validity of any such claims; this section has the sole purpose of protecting the integrity of the free software distribution system, which is implemented by public license practices. Many people have made generous contributions to the wide range of software distributed through that system in reliance on consistent application of that system; it is up to the author/donor to decide if he or she is willing to distribute software through any other system and a licensee cannot impose that choice. This section is intended to make thoroughly clear what is believed to be a consequence of the rest of this License. 8. If the distribution and/or use of the Program is restricted in certain countries either by patents or by copyrighted interfaces, the original copyright holder who places the Program under this License may add an explicit geographical distribution limitation excluding those countries, so that distribution is permitted only in or among countries not thus excluded. In such case, this License incorporates the limitation as if written in the body of this License. 9. The Free Software Foundation may publish revised and/or new versions of the General Public License from time to time. Such new versions will be similar in spirit to the present version, but may differ in detail to address new problems or concerns. Each version is given a distinguishing version number. If the Program specifies a version number of this License which applies to it and “any later version”, you have the option of following the terms and conditions either of that version or of any later version published by the Free Software Foundation. If the Program does not specify a version number of this License, you may choose any version ever published by the Free Software Foundation. 10. If you wish to incorporate parts of the Program into other free programs whose distribution conditions are different, write to the author to ask for permission. For software which is copyrighted by the Free Software Foundation, write to the Free Software Foundation; we sometimes make exceptions for this. Our decision will be guided by the two goals of preserving the free status of all derivatives of our free software and of promoting the sharing and reuse of software generally. NO WARRANTY BECAUSE THE PROGRAM IS LICENSED FREE OF CHARGE, THERE IS NO WARRANTY FOR THE PROGRAM, TO THE EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT WHEN OTHERWISE STATED IN WRITING THE COPYRIGHT HOLDERS AND/OR OTHER PARTIES PROVIDE THE PROGRAM “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR 10 IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PROGRAM IS WITH YOU. SHOULD THE PROGRAM PROVE DEFECTIVE, YOU ASSUME THE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. IN NO EVENT UNLESS REQUIRED BY APPLICABLE LAW OR AGREED TO IN WRITING WILL ANY COPYRIGHT HOLDER, OR ANY OTHER PARTY WHO MAY MODIFY AND/OR REDISTRIBUTE THE PROGRAM AS PERMITTED ABOVE, BE LIABLE TO YOU FOR DAMAGES, INCLUDING ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE PROGRAM (INCLUDING BUT NOT LIMITED TO LOSS OF DATA OR DATA BEING RENDERED INACCURATE OR LOSSES SUSTAINED BY YOU OR THIRD PARTIES OR A FAILURE OF THE PROGRAM TO OPERATE WITH ANY OTHER PROGRAMS), EVEN IF SUCH HOLDER OR OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. END OF TERMS AND CONDITIONS How to Apply These Terms to Your New Programs If you develop a new program, and you want it to be of the greatest possible use to the public, the best way to achieve this is to make it free software which everyone can redistribute and change under these terms. To do so, attach the following notices to the program. It is safest to attach them to the start of each source file to most effectively convey the exclusion of warranty; and each file should have at least the “copyright” line and a pointer to where the full notice is found. <one line to give the program’s name and a brief idea of what it does.> Copyright (C) <year> <name of author> This program is free software; you can redistribute it and/or modify it under the terms of the GNU General Public License as published by the Free Software Foundation; either version 2 of the License, or (at your option) any later version. This program is distributed in the hope that it will be useful, but WITHOUT ANY WARRANTY; without even the implied warranty of MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. See the GNU General Public License for more details. You should have received a copy of the GNU General Public License along with this program; if not, write to the Free Software Foundation, Inc., 51 Franklin Street, Fifth Floor, Boston, MA 02110-1301, USA. Also add information on how to contact you by electronic and paper mail. If the program is interactive, make it output a short notice like this when it starts in an interactive mode: Gnomovision version 69, Copyright (C) year name of author Gnomovision comes with ABSOLUTELY NO WARRANTY; for details type ‘show w’. This is free software, and you are welcome to redistribute it under certain conditions; type ‘show c’ for details. The hypothetical commands ‘show w’ and ‘show c’ should show the appropriate parts of the General Public License. Of course, the commands you use may be called something other than ‘show w’ and ‘show c’; they could even be mouse-clicks or menu items--whatever suits your program. �You should also get your employer (if you work as a programmer) or your school, if any, to sign a “copyright disclaimer” for the program, if necessary. Here is a sample; alter the names: We protect your rights with a two-step method: (1) we copyright the library, and (2) we offer you this license, which gives you legal permission to copy, distribute and/or modify the library. Yoyodyne, Inc., hereby disclaims all copyright interest in the program ‘Gnomovision’ (which makes passes at compilers) written by James Hacker. <signature of Ty Coon>, 1 April 1989 Ty Coon, President of Vice To protect each distributor, we want to make it very clear that there is no warranty for the free library. Also, if the library is modified by someone else and passed on, the recipients should know that what they have is not the original version, so that the original author’s reputation will not be affected by problems that might be introduced by others. This General Public License does not permit incorporating your program into proprietary programs. If your program is a subroutine library, you may consider it more useful to permit linking proprietary applications with the library. If this is what you want to do, use the GNU Library General Public License instead of this License. ================================================= GNU LESSER GENERAL PUBLIC LICENSE Version 2.1, February 1999 Copyright (C) 1991, 1999 Free Software Foundation, Inc. 51 Franklin Street, Fifth Floor, Boston, MA 02110-1301, USA. Everyone is permitted to copy and distribute verbatim copies of this license document, but changing it is not allowed. [This is the first released version of the Lesser GPL. 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This product includes cryptographic software written by Eric Young ([email protected]). This product includes software written by Tim Hudson ([email protected]). Original SSLeay License ---------------------Copyright (C) 1995-1998 Eric Young ([email protected]) All rights reserved. This package is an SSL implementation written by Eric Young ([email protected]). The implementation was written so as to conform with Netscapes SSL. This library is free for commercial and non-commercial use as long as the following conditions are adhered to. The following conditions apply to all code found in this distribution, be it the RC4, RSA, lhash, DES, etc., code; not just the SSL code. The SSL documentation included with this distribution is covered by the same copyright terms except that the holder is Tim Hudson ([email protected]). Copyright remains Eric Young’s, and as such any Copyright notices in the code are not to be removed. If this package is used in a product, Eric Young should be given attribution as the author of the parts of the library used. This can be in the form of a textual message at program startup or in documentation (online or textual) provided with the package. Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met: 1. Redistributions of source code must retain the copyright notice, this list of conditions and the following disclaimer. 2. Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution. 3. All advertising materials mentioning features or use of this software must display the following acknowledgement: “This product includes cryptographic software written by Eric Young ([email protected])”. The word ‘cryptographic’ can be left out if the routines from the library being used are not cryptographic related:-). 4. If you include any Windows specific code (or a derivative thereof) from the apps directory (application code) you must include an acknowledgement: “This product includes software written by Tim Hudson ([email protected])”. THIS SOFTWARE IS PROVIDED BY ERIC YOUNG “AS IS’’ AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. 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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. Copyright [yyyy] [name of copyright owner] Licensed under the Apache License, Version 2.0 (the “License”); you may not use this file except in compliance with the License. You may obtain a copy of the License at http://www.apache.org/licenses/LICENSE-2.0 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. libic Copyright © 2001 Keith Packard. 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If you improve the emx libraries, please send your enhancements to the emx author (you should copyright your enhancements similar to the existing emx libraries)”. License and license exceptions: http://web.lemoyne.edu/ courseinformation/emtex/emx/doc/COPYING.EMX (c) disclaim or limit, to the extent permitted by applicable law, Opera’s liability for any direct, indirect, consequential and similar damages, costs or expenses of any kind; ================================================= dtoa and strtod (d) disclaim or limit, to the extent permitted by applicable law, any warranties in relation to or by Opera and/or Opera Browser , including without limitation warranties of functionality, fitness for a particular purpose or non-infringement; The author of this software is David M. Gay. Opera® Browser from Opera Software ASA. Copyright 19952012 Opera Software ASA. All rights reserved. The Opera® Browser uses the following third party code: This product includes software developed by the OpenSSL Project for use in the OpenSSL Toolkit. This product includes cryptographic software written by Eric Young. Eberhard Mattes. Doug Lea. David M. Gay. Portions of this software are copyright © 1996-2004 The FreeType Project. All rights reserved. The OpenSSL Toolkit is covered by the OpenSSL licenses: Number-to-string and string-to-number conversions are covered by the following license: The author of this software is David M. Gay. Copyright © 1991, 1996, 2000, 2001 by Lucent Technologies. Permission to use, copy, modify, and distribute this software for any purpose without fee is hereby granted, provided that this entire notice is included in all copies of David Gay’s binary/decimal conversion code (dtoa and strtod) Copyright (c) 1991, 2000, 2001 by Lucent Technologies. 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THE SOFTWARE IS PROVIDED “AS IS” AND THE AUTHOR DISCLAIMS ALL WARRANTIES WITH REGARD TO THIS SOFTWARE INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS. IN NO EVENT SHALL THE AUTHOR BE LIABLE FOR ANY SPECIAL, DIRECT, INDIRECT, OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THIS SOFTWARE. ================================================= WLAN driver ccmp SW encryption/decryption Host AP crypt: host-based CCMP encryption implementation for Host AP driver Copyright (c) 2003-2004, Jouni Malinen <[email protected]> This program is free software; you can redistribute it and/or modify it under the terms of the GNU General Public License version 2 as published by the Free Software Foundation. See README and COPYING for more details. 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Permission to use, copy, modify, distribute, and sell this software and its documentation for any purpose is hereby granted without fee, provided that the above copyright notice appear in all copies and that both that copyright notice and this permission notice appear in supporting documentation. The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software. THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE OPEN GROUP BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE. Except as contained in this notice, the name of The Open Group shall not be used in advertising or otherwise to promote the sale, use or other dealings in this Software without prior written authorization from The Open Group. Copyright 1987 by Digital Equipment Corporation, Maynard, Massachusetts. All Rights Reserved. Permission to use, copy, modify, and distribute this software and its documentation for any purpose and without fee is hereby granted, provided that the above copyright notice appear in all copies and that both that copyright notice and this permission notice appear in supporting documentation, and that the name of Digital not be used in advertising or publicity pertaining to distribution of the software without specific, written prior permission. 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Disclaimers 23 �THIS SOFTWARE AND DOCUMENTATION IS PROVIDED “AS IS,” AND COPYRIGHT HOLDERS MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR THAT THE USE OF THE SOFTWARE OR DOCUMENTATION WILL NOT INFRINGE ANY THIRD PARTY PATENTS, COPYRIGHTS, TRADEMARKS OR OTHER RIGHTS. COPYRIGHT HOLDERS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF ANY USE OF THE SOFTWARE OR DOCUMENTATION. The name and trademarks of copyright holders may NOT be used in advertising or publicity pertaining to the software without specific, written prior permission. Title to copyright in this software and any associated documentation will at all times remain with copyright holders. Notes This version: http://www.w3.org/Consortium/Legal/2002/ copyright-software-20021231 This formulation of W3C’s notice and license became active on December 31 2002. This version removes the copyright ownership notice such that this license can be used with materials other than those owned by the W3C, reflects that ERCIM is now a host of the W3C, includes references to this specific dated version of the license, and removes the ambiguous grant of “use”. Otherwise, this version is the same as the previous version and is written so as to preserve the Free Software Foundation’s assessment of GPL compatibility and OSI’s certification under the Open Source Definition. WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE REGENTS OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. The DNS resolver code, taken from BIND 4.9.5, is copyrighted both by UC Berkeley and by Digital Equipment Corporation. The DEC portions are under the following license: Portions Copyright (C) 1993 by Digital Equipment Corporation. Permission to use, copy, modify, and distribute this software for any purpose with or without fee is hereby granted, provided that the above copyright notice and this permission notice appear in all copies, and that the name of Digital Equipment Corporation not be used in advertising or publicity pertaining to distribution of the document or software without specific, written prior permission. ================================================= glibc (other licenses) THE SOFTWARE IS PROVIDED ``AS IS'' AND DIGITAL EQUIPMENT CORP. DISCLAIMS ALL WARRANTIES WITH REGARD TO THIS SOFTWARE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS. IN NO EVENT SHALL DIGITAL EQUIPMENT CORPORATION BE LIABLE FOR ANY SPECIAL, DIRECT, INDIRECT, OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THIS SOFTWARE. Copyright (C) 1991 Regents of the University of California. All rights reserved. The Sun RPC support (from rpcsrc-4.0) is covered by the following license: Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met: Copyright (C) 1984, Sun Microsystems, Inc. ================================================= Fdlibm Copyright (C) 2004 by Sun Microsystems, Inc. All rights reserved. Permission to use, copy, modify, and distribute this software is freely granted, provided that this notice is preserved. 1. Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer. 2. Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution. 3. [This condition was removed.] 4. Neither the name of the University nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission. THIS SOFTWARE IS PROVIDED BY THE REGENTS AND CONTRIBUTORS “AS IS” AND ANY EXPRESS OR IMPLIED 24 Sun RPC is a product of Sun Microsystems, Inc. and is provided for unrestricted use provided that this legend is included on all tape media and as a part of the software program in whole or part. Users may copy or modify Sun RPC without charge, but are not authorized to license or distribute it to anyone else except as part of a product or program developed by the user. SUN RPC IS PROVIDED AS IS WITH NO WARRANTIES OF ANY KIND INCLUDING THE WARRANTIES OF DESIGN, MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. Sun RPC is provided with no support and without any obligation on the part of Sun Microsystems, Inc. to assist in its use, correction, modification or enhancement. �SUN MICROSYSTEMS, INC. SHALL HAVE NO LIABILITY WITH RESPECT TO THE INFRINGEMENT OF COPYRIGHTS, TRADE SECRETS OR ANY PATENTS BY SUN RPC OR ANY PART THEREOF. In no event will Sun Microsystems, Inc. be liable for any lost revenue or profits or other special, indirect and consequential damages, even if Sun has been advised of the possibility of such damages. The following CMU license covers some of the support code for Mach, derived from Mach 3.0: Mach Operating System Copyright (C) 1991,1990,1989 Carnegie Mellon University All Rights Reserved. SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. The following license covers the files from Intel's "Highly Optimized Mathematical Functions for Itanium" collection: Intel License Agreement Copyright (c) 2000, Intel Corporation All rights reserved. Permission to use, copy, modify and distribute this software and its documentation is hereby granted, provided that both the copyright notice and this permission notice appear in all copies of the software, derivative works or modified versions, and any portions thereof, and that both notices appear in supporting documentation. Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met: CARNEGIE MELLON ALLOWS FREE USE OF THIS SOFTWARE IN ITS ``AS IS'' CONDITION. CARNEGIE MELLON DISCLAIMS ANY LIABILITY OF ANY KIND FOR ANY DAMAGES WHATSOEVER RESULTING FROM THE USE OF THIS SOFTWARE. * Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution. Carnegie Mellon requests users of this software to return to Software Distribution Coordinator School of Computer Science Carnegie Mellon University Pittsburgh PA 15213-3890 or [email protected] any improvements or extensions that they make and grant Carnegie Mellon the rights to redistribute these changes. The file if_ppp.h is under the following CMU license: Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met: 1. Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer. 2. Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution. 3. Neither the name of the University nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission. THIS SOFTWARE IS PROVIDED BY CARNEGIE MELLON UNIVERSITY AND CONTRIBUTORS ``AS IS'' AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE UNIVERSITY OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF * Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer. * The name of Intel Corporation may not be used to endorse or promote products derived from this software without specific prior written permission. THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL INTEL OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. The files inet/getnameinfo.c and sysdeps/posix/getaddrinfo.c are copyright (C) by Craig Metz and are distributed under the following license: /* The Inner Net License, Version 2.00 The author(s) grant permission for redistribution and use in source and binary forms, with or without modification, of the software and documentation provided that the following conditions are met: 0. If you receive a version of the software that is specifically labelled as not being for redistribution (check the version message and/or README), you are not permitted to redistribute that version of the software in any way or form. 1. All terms of the all other applicable copyrights and licenses must be followed. 25 �2. Redistributions of source code must retain the authors' copyright notice(s), this list of conditions, and the following disclaimer. purposes or needs. This library is provided with all faults, and the entire risk of satisfactory quality, performance, accuracy, and effort is with the user. 3. Redistributions in binary form must reproduce the authors' copyright notice(s), this list of conditions, and the following disclaimer in the documentation and/or other materials provided with the distribution. libpng versions 0.97, January 1998, through 1.0.6, March 20, 2000, are Copyright (c) 1998, 1999 Glenn Randers-Pehrson, and are distributed according to the same disclaimer and license as libpng-0.96, with the following individuals added to the list of Contributing Authors: 4. [The copyright holder has authorized the removal of this clause.] 5. Neither the name(s) of the author(s) nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission. THIS SOFTWARE IS PROVIDED BY ITS AUTHORS AND CONTRIBUTORS ``AS IS'' AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE AUTHORS OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. ================================================= libpng This copy of the libpng notices is provided for your convenience. In case of any discrepancy between this copy and the notices in the file png.h that is included in the libpng distribution, the latter shall prevail. COPYRIGHT NOTICE, DISCLAIMER, and LICENSE: If you modify libpng you may insert additional notices immediately following this sentence. libpng versions 1.2.6, August 15, 2004, through 1.2.32, September 18, 2008, are Copyright (c) 2004, 2006-2008 Glenn Randers-Pehrson, and are distributed according to the same disclaimer and license as libpng-1.2.5 with the following individual added to the list of Contributing Authors Cosmin Truta libpng versions 1.0.7, July 1, 2000, through 1.2.5 - October 3, 2002, are Copyright (c) 2000-2002 Glenn Randers-Pehrson, and are distributed according to the same disclaimer and license as libpng-1.0.6 with the following individuals added to the list of Contributing Authors Simon-Pierre Cadieux Eric S. Raymond Gilles Vollant and with the following additions to the disclaimer: There is no warranty against interference with your enjoyment of the library or against infringement. There is no warranty that our efforts or the library will fulfill any of your particular 26 Tom Lane Glenn Randers-Pehrson Willem van Schaik libpng versions 0.89, June 1996, through 0.96, May 1997, are Copyright (c) 1996, 1997 Andreas Dilger Distributed according to the same disclaimer and license as libpng-0.88, with the following individuals added to the list of Contributing Authors: John Bowler Kevin Bracey Sam Bushell Magnus Holmgren Greg Roelofs Tom Tanner libpng versions 0.5, May 1995, through 0.88, January 1996, are Copyright (c) 1995, 1996 Guy Eric Schalnat, Group 42, Inc. For the purposes of this copyright and license, "Contributing Authors" is defined as the following set of individuals: Andreas Dilger Dave Martindale Guy Eric Schalnat Paul Schmidt Tim Wegner The PNG Reference Library is supplied "AS IS". The Contributing Authors and Group 42, Inc. disclaim all warranties, expressed or implied, including, without limitation, the warranties of merchantability and of fitness for any purpose. The Contributing Authors and Group 42, Inc. assume no liability for direct, indirect, incidental, special, exemplary, or consequential damages, which may result from the use of the PNG Reference Library, even if advised of the possibility of such damage. Permission is hereby granted to use, copy, modify, and distribute this source code, or portions hereof, for any purpose, without fee, subject to the following restrictions: 1. The origin of this source code must not be misrepresented. 2. Altered versions must be plainly marked as such and must not be misrepresented as being the original source. 3. This Copyright notice may not be removed or altered from any source or altered source distribution. The Contributing Authors and Group 42, Inc. specifically permit, without fee, and encourage the use of this source code as a component to supporting the PNG file format in commercial products. If you use this source code in a product, acknowledgment is not required but would be appreciated. A "png_get_copyright" function is available, for convenient use in "about" boxes and the like: printf("%s",png_get_copyright(NULL)); �Also, the PNG logo (in PNG format, of course) is supplied in the files "pngbar.png" and "pngbar.jpg (88x31) and "pngnow. png" (98x31). Libpng is OSI Certified Open Source Software. OSI Certified Open Source is a certification mark of the Open Source Initiative. Glenn Randers-Pehrson glennrp at users.sourceforge.net September 18, 2008 ================================================= Libsqlite3 This file is an amalgamation of many separate C source files from SQLite version 3.7.7.1. By combining all the individual C code files into this single large file, the entire code can be compiled as a single translation unit. This allows many compilers to do optimizations that would not be possible if the files were compiled separately. Performance improvements of 5% or more are commonly seen when SQLite is compiled as a single translation unit. This file is all you need to compile SQLite. To use SQLite in other programs, you need this file and the "sqlite3.h" header file that defines the programming interface to the SQLite library. (If you do not have the "sqlite3.h" header file at hand, you will find a copy embedded within the text of this file. Search for "Begin file sqlite3.h" to find the start of the embedded sqlite3.h header file.) Additional code files may be needed if you want a wrapper to interface SQLite with your choice of programming language. The code for the "sqlite3" command-line shell is also in a separate file. This file contains only code for the core SQLite library. ================================================= libtomcrypt LibTomCrypt is public domain. As should all quality software be. Tom St Denis ================================================= libtommath LibTomMath is hereby released into the Public Domain. -- Tom St Denis ================================================= Lua interpreter Copyright (C) 1994-2008 Lua.org, PUC-Rio. Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the "Software"), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/ or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions: The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software. THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE. ================================================= tinyxml www.sourceforge.net/projects/tinyxml This software is provided 'as-is', without any express or implied warranty. In no event will the authors be held liable for any damages arising from the use of this software. Permission is granted to anyone to use this software for any purpose, including commercial applications, and to alter it and redistribute it freely, subject to the following restrictions: 1. The origin of this software must not be misrepresented; you must not claim that you wrote the original software. If you use this software in a product, an acknowledgment in the product documentation would be appreciated but is not required. 2. Altered source versions must be plainly marked as such, and must not be misrepresented as being the original software. 3. This notice may not be removed or altered from any source distribution. ================================================= Zilb compression http://www.zlib.net/zlib_license.html Copyright notice: (C) 1995-2012 Jean-loup Gailly and Mark Adler This software is provided 'as-is', without any express or implied warranty. In no event will the authors be held liable for any damages arising from the use of this software. Permission is granted to anyone to use this software for any purpose, including commercial applications, and to alter it and redistribute it freely, subject to the following restrictions: 1. The origin of this software must not be misrepresented; you must not claim that you wrote the original software. If you use this software in a product, an acknowledgment in the product documentation would be appreciated but is not required. 2. Altered source versions must be plainly marked as such, and must not be misrepresented as being the original software. 3. This notice may not be removed or altered from any source distribution. Jean-loup Gailly [email protected] Mark Adler [email protected] If you use the zlib library in a product, we would appreciate *not* receiving lengthy legal documents to sign. The sources are provided for free but without warranty of any kind. The library has been entirely written by Jean-loup Gailly and Mark Adler; it does not include third-party code. If you redistribute modified sources, we would appreciate that you include in the file ChangeLog history information 27 �documenting your changes. Please read the FAQ for more information on the distribution of modified source versions. ================================================= GDLIB Portions copyright 1994, 1995, 1996, 1997, 1998, 1999, 2000, 2001, 2002 by Cold Spring Harbor Laboratory. Funded under Grant P41-RR02188 by the National Institutes of Health. Portions copyright 1996, 1997, 1998, 1999, 2000, 2001, 2002 by Boutell.Com, Inc. Portions relating to GD2 format copyright 1999, 2000, 2001, 2002 Philip Warner. Portions relating to PNG copyright 1999, 2000, 2001, 2002 Greg Roelofs. Portions relating to gdttf.c copyright 1999, 2000, 2001, 2002 John Ellson ([email protected]). Portions relating to gdft.c copyright 2001, 2002 John Ellson ([email protected]). Portions relating to JPEG and to color quantization copyright 2000, 2001, 2002, Doug Becker and copyright (C) 1994, 1995, 1996, 1997, 1998, 1999, 2000, 2001, 2002, Thomas G. Lane. This software is based in part on the work of the Independent JPEG Group. See the file README-JPEG.TXT for more information. Portions relating to WBMP copyright 2000, 2001, 2002 Maurice Szmurlo and Johan Van den Brande. Permission has been granted to copy, distribute and modify gd in any context without fee, including a commercial application, provided that this notice is present in user-accessible supporting documentation. This does not affect your ownership of the derived work itself, and the intent is to assure proper credit for the authors of gd, not to interfere with your productive use of gd. If you have questions, ask. "Derived works" includes all programs that utilize the library. Credit must be given in user-accessible documentation. This software is provided "AS IS." The copyright holders disclaim all warranties, either express or implied, including but not limited to implied warranties of merchantability and fitness for a particular purpose, with respect to this code and accompanying documentation. In general we follow the recommendations of "Recommended C Style and Coding Standards" revision 6.1 (Cannon et al. as modified by Spencer, Keppel and Brader). This document is available in the IJG FTP archive (see jpeg/doc/cstyle.ms.tbl.Z, or cstyle.txt.Z for those without nroff/tbl). ================================================= SSDP Copyright (c) 2000-2003 Intel Corporation All rights reserved. Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met: * Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer. * Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution. * Neither name of Intel Corporation nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission. THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS ``AS IS'' AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL INTEL OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. ================================================= WebP Copyright (c) 2010, Google Inc. All rights reserved. Although their code does not appear in gd, the authors wish to thank David Koblas, David Rowley, and Hutchison Avenue Software Corporation for their prior contributions. Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met: ================================================= IJG JPEG LIBRARY: CODING RULES * Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer. Copyright (C) 1991-1996, Thomas G. Lane. This file is part of the Independent JPEG Group's software. For conditions of distribution and use, see the accompanying README file. Since numerous people will be contributing code and bug fixes, it's important to establish a common coding style. The goal of using similar coding styles is much more important than the details of just what that style is. 28 * Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution. * Neither the name of Google nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission. �THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT HOLDER OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. This file explains how to configure and install the IJG software. We have tried to make this software extremely portable and flexible, so that it can be adapted to almost any environment. The downside of this decision is that the installation process is complicated. We have provided shortcuts to simplify the task on common systems. But in any case, you will need at least a little familiarity with C programming and program build procedures for your system. ================================================= NPAPI ================================================= Arial Regular Latin 1 and Arial Bold Latin 1 ("Font Software") Copyright (c) 2008 Mozilla Corporation Ascender Corporation End User License Agreement Note: Click here for more information on various font license options, including multi-workstation licenses, enterprise-wide licenses, and application server licenses. This Ascender Corporation End User Agreement (the "Agreement") becomes a binding contract between you and Ascender Corporation when you click on the area marked "OK" or "I Accept." If you do not wish to be bound by the Agreement, you cannot access, use or download the Font Software. Please read all of the Agreement before you agree to be bound by its terms and conditions. You hereby agree to the following: Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met: - Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer. - Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution. - Neither the name of the Mozilla Corporation nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission. THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS ``AS IS'' AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE FOUNDATION OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. ================================================= JPEG If you are only using this software as part of a larger program, the larger program's installation procedure may take care of configuring the IJG code. For example, Ghostscript's installation script will configure the IJG code. You don't need to read this file if you just want to compile Ghostscript. If you are on a Unix machine, you may not need to read this file at all. 1. You are bound by the Agreement and you acknowledge that all Use (as defined herein) of the Font Software (as defined herein) supplied to you by Ascender is governed by the Agreement. 2. "Ascender" as used herein shall mean collectively Ascender Corporation, its authorized distributors and suppliers. 3. "Font Software" as used herein shall mean software which, when used on an appropriate device, generates the typefaces. Font Software includes all bitmap representations of the typeface designs. Font Software includes permitted copies, and related documentation. 4. "Licensed Computers" as used herein shall mean five (5) personal computers, unless you specifically purchased the right from Ascender to use the Font Software on more than five (5) personal computers. If you intend to use the Font Software on more than five (5) personal computers, you may obtain a license from Ascender (or its authorized distributor) for an additional fee. Your receipt will serve as your record of the number of personal computers for which you are licensed to use the Font Software. INSTALLATION INSTRUCTIONS for the Independent JPEG Group's JPEG software 5. "Use" of the Font Software shall occur when an individual is able to give commands (whether by keyboard or otherwise) that are followed by the Font Software, regardless of the location in which the Font Software resides. Copyright (C) 1991-2012, Thomas G. Lane, Guido Vollbeding. This file is part of the Independent JPEG Group's software. For conditions of distribution and use, see the accompanying README file. 6. "Personal or Internal Business Use" shall mean Use of the Font Software for your customary personal or internal business purposes and shall not mean any distribution whatsoever of the Font Software. "Personal or Internal 29 �Business Use" shall not include any Use of the Font Software by persons that are not members of your immediate household, your authorized employees, or your authorized agents. 7. "Commercial Product" as used herein shall mean an electronic document or data file created by Use of the Font Software which is offered for distribution as a commercial product in exchange for a separate fee or other consideration. By way of illustration and not by way of limitation, an electronic book or magazine distributed for a fee shall be considered a Commercial Product; a document distributed in connection with a commercial transaction in which the consideration is unrelated to such document (for example, a business letter, a ticket for an event, or a receipt for purchase of tangible goods such as clothing) shall not be considered a Commercial Product. 8. You are hereby granted a non-exclusive, non-assignable, non-transferable (except as expressly permitted herein) license to access the Font Software (i) only in a Licensed Computer, (ii) only for your Personal or Internal Business Use, and (iii) only subject to all of the terms and conditions of the Agreement. You have no rights to the Font Software other than as expressly set forth in the Agreement. You agree that Ascender owns all right, title and interest in and to the Font Software, its structure, organization, code, and related files, including all property rights therein such as copyright, design and trademarks rights. You agree that the Font Software, its structure, organization, code, and related files are valuable property of Ascender and that any intentional Use of the Font Software not expressly permitted by the Agreement constitutes a theft of valuable property. All rights not expressly granted in the Agreement are expressly reserved to Ascender. You may not use or include the Font Software as part of a Commercial Product, or any other hardware or software product, without a separate license from Ascender authorizing you to do so. 9. You may install and Use the Font Software on a single file server for Use on a single local area network ("LAN") only when the Use of such Font Software is limited to the number of Licensed Computers for which you have a license. The Font Software may not be installed or Used on a server that can be accessed via the Internet or other external network system (a system other than a LAN) by personal computers which are not Licensed Computers, unless you acquire a license from Ascender granting you this specific right. 10. You may electronically distribute Font Software embedded in a "Personal or Internal Business Use" document (that is, a document other than a "Commercial Product" as defined herein) only when the Font Software embedded in such document is distributed in a secure format that permits only the viewing, printing and editing (and not the installing) of such Font Software. You may not embed Font Software in a Commercial Product without a separate written license from Ascender, for an additional fee. You may not alter or modify the embedding permission contained within the Font Software. 11. You acknowledge that the Font Software is protected by the copyright and other intellectual property law of the United States and its various States, by the copyright and design laws of other nations, and by international treaties. You agree to treat the Font Software as you would any other copyrighted material, such as a book. You may not copy 30 the Font Software, except as expressly provided herein and you agree not to copy the design embodied within the Font Software. Any copies that you are expressly permitted to make pursuant to the Agreement must contain the same copyright, trademark, and other proprietary notices that appear on or in the Font Software. You agree not to adapt, modify, alter, translate, convert, or otherwise change the Font Software, or to create any derivative works from Font Software or any portion thereof. You further agree not to use Font Software in connection with software and/or hardware which creates any derivative works of such Font Software. You agree not to reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Font Software, provided, however, that if you are located in a European Community member country or any other country which provides rights materially similar to the rights set forth in this proviso, you may reverse engineer or decompile the Font Software only to the extent that sufficient information is not available for the purpose of creating an interoperable software program (but only for such purpose and only to the extent that sufficient information is not provided by Ascender upon written request). You agree to use trademarks associated with the Font Software according to accepted trademark practice, including identification of the trademark owner's name. Trademarks can only be used to identify printed output produced by the Font Software. The use of any trademark as herein authorized does not give you any rights of ownership in that trademark and all use of any trademark shall inure to the sole benefit of the trademark owner. You may not change any trademark or trade name designation for the Font Software. 12. You may not rent, lease, sublicense, give, lend, or further distribute the Font Software, or any copy thereof, except as expressly provided herein. You may transfer all your rights to use the Font Software to another person or legal entity provided that (i) the transferee accepts and agrees to be bound by all the terms and conditions of this Agreement, and (ii) you destroy all copies of the Font Software, including all copies stored in the memory of a hardware device. If you are a business or organization, you agree that upon request from Ascender or Ascender's authorized representative, you will with thirty (30) days fully document and certify that use of any and all Ascender Font Software at the time of the request is in conformity with your valid licenses from Ascender. 13. You may make one back-up copy of Font Software for archival purposes only, and you shall retain exclusive custody and control over such copy. Upon termination of the Agreement, you must destroy the original and any and all copies of the Font Software. 14. Ascender warrants to you that the Font Software will perform substantially in accordance with its documentation for the ninety (90) day period following delivery of the Font Software. To make a warranty claim, you must, within the ninety (90) day warranty period, return the Font Software to the location from which you obtained it along with a copy of your receipt or, if such Font Software is acquired on-line, contact the on-line provider with sufficient information regarding your acquisition of the Font Software so as to enable Ascender to verify the existence and date of the transaction. If the Font Software does not perform substantially in accordance with its documentation, the entire, exclusive, and �cumulative liability and remedy shall be limited to the refund of the license fee you paid to Ascender to obtain delivery of the Font Software. ASCENDER DOES NOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE FONT SOFTWARE. THE FOREGOING STATES THE SOLE AND EXCLUSIVE REMEDIES FOR ASCENDER'S BREACH OF WARRANTY. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, Ascender MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE. IN NO EVENT WILL ASCENDER BE LIABLE TO YOU OR ANYONE ELSE (I) FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, LOST DATA, LOST BUSINESS OPPORTUNITIES, OR LOST SAVINGS, EVEN IF ASCENDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (II) FOR ANY CLAIM AGAINST YOU BY ANY THIRD PARTY SEEKING SUCH DAMAGES EVEN IF ASCENDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some states or jurisdictions do not allow the exclusions of limitations of incidental, consequential or special damages, so the above exclusion may not apply to you. Also, some states or jurisdictions do not allow the exclusions of implied warranties or limitations on how long an implied warranty may last, so the above limitations may not apply to you. To the greatest extent permitted by law, any implied warranties not effectively excluded by the Agreement are limited to ninety (90) days. Some jurisdictions do not permit a limitation of implied warranties where the product results in physical injury or death so that such limitations may not apply to you. In those jurisdictions, you agree that Ascender's liability for such physical injury or death shall not exceed One Hundred Thousand Dollars (U.S. $100,000), provided that such jurisdictions permit a limitation of such liability. This warranty gives you specific legal rights. You may have other rights that vary from state to state or jurisdiction to jurisdiction. The Font Software is nonreturnable and nonrefundable. Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration or any applicable export laws, restrictions or regulations. 15. The Agreement will be governed by the laws of Illinois applicable to contracts wholly entered and performable within such state. All disputes related to the Agreement shall be heard in the Circuit Court of Cook County, Illinois, U.S.A. or the United States District Court for the Northern District of Illinois, Chicago, Illinois U.S.A. Both you and Ascender agree to the personal jurisdiction and venue of these courts in any action related to the Agreement. The Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is expressly excluded. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. ================================================= iType 16. The Agreement shall automatically terminate upon failure by you (or any authorized person or member of your immediate household to whom you have given permission to Use the Font Software) to comply with its terms. The termination of the Agreement shall not preclude Ascender from suing you for damages of any breach of the Agreement. The Agreement may only be modified in writing signed by an authorized officer of Ascender. You agree that the Font 17. You have the rights expressly set forth in the Agreement and no other. All rights in and to the Font Software, including unpublished rights, are reserved under the copyright laws of the United States and other jurisdictions. All rights reserved. Notwithstanding the foregoing, to the extent that any law, statute, treaty, or governmental regulation shall be deemed by a court of competent jurisdiction to provide you with any additional or different rights from those provided herein and such rights shall be deemed non-waiveable as a matter of law and to supersede the rights specifically provided herein, then such law, statute, treaty, or governmental regulation shall be deemed to be made a part of the Agreement. To the extent that any such rights created by any law, statute, treaty or governmental regulation are waiveable, you agree that your acceptance of the Agreement shall constitute an effective and irrevocable waiver of such rights. The Agreement may be enforced by Ascender or by an authorized dealer acting on behalf of Ascender. 18. If this product is acquired under the terms of a (i) GSA contract: use, reproduction or disclosure is subject to the restrictions set forth in the applicable ADP Schedule contract, (ii) DOD contract: use, duplication or disclosure by the Government is subject to the applicable restrictions set forth in DFARS 252.277-7013; (iii) Civilian agency contract: use, reproduction, or disclosure is subject to FAR 52.277-19(a) through (d) and restrictions set forth in the Agreement. Monotype Imaging Inc. (USA) 25 Northwest Point Blvd, Suite 525 Elk Grove Village, IL 60007 United States Phone: +1 (847) 631-1100 For Font Licensing Inquiries - Option 2 Office Hours: 9AM – 5PM Monday - Friday The FreeType Project LICENSE 2006-Jan-27 Copyright 1996-2002, 2006 by David Turner, Robert Wilhelm, and Werner Lemberg Introduction ================================================= The FreeType Project is distributed in several archive packages; some of them may contain, in addition to the FreeType font engine, various tools and contributions which rely on, or relate to, the FreeType Project. This license applies to all files found in such packages, and which do not fall under their own explicit license. The license affects thus the FreeType font engine, the test programs, documentation and makefiles, at the very least. This license was inspired by the BSD, Artistic, and IJG (Independent JPEG Group) licenses, which all encourage inclusion and use of free software in commercial and freeware 31 �products alike. As a consequence, its main points are that: 2. Redistribution We don't promise that this software works. However, we will be interested in any kind of bug reports. (`as is' distribution) You can use this software for whatever you want, in parts or full form, without having to pay us. (`royalty-free' usage) You may not pretend that you wrote this software. If you use it, or only parts of it, in a program, you must acknowledge somewhere in your documentation that you have used the FreeType code. (`credits') This license grants a worldwide, royalty-free, perpetual and irrevocable right and license to use, execute, perform, compile, display, copy, create derivative works of, distribute and sublicense the FreeType Project (in both source and object code forms) and derivative works thereof for any purpose; and to authorize others to exercise some or all of the rights granted herein, subject to the following conditions: We specifically permit and encourage the inclusion of this software, with or without modifications, in commercial products. We disclaim all warranties covering The FreeType Project and assume no liability related to The FreeType Project. Finally, many people asked us for a preferred form for a credit/disclaimer to use in compliance with this license. We thus encourage you to use the following text: """ Portions of this software are copyright c <year> The FreeType Project (www.freetype.org). All rights reserved. """ Please replace <year> with the value from the FreeType version you actually use. Legal Terms ================================================= 0. Definitions Throughout this license, the terms `package', `FreeType Project', and `FreeType archive' refer to the set of files originally distributed by the authors (David Turner, Robert Wilhelm, and Werner Lemberg) as the `FreeType Project', be they named as alpha, beta or final release. `You' refers to the licensee, or person using the project, where `using' is a generic term including compiling the project's source code as well as linking it to form a `program' or `executable'. This program is referred to as `a program using the FreeType engine'. This license applies to all files distributed in the original FreeType Project, including all source code, binaries and documentation, unless otherwise stated in the file in its original, unmodified form as distributed in the original archive. If you are unsure whether or not a particular file is covered by this license, you must contact us to verify this. The FreeType Project is copyright (C) 1996-2000 by David Turner, Robert Wilhelm, and Werner Lemberg. All rights reserved except as specified below. 1. No Warranty THE FREETYPE PROJECT IS PROVIDED `AS IS' WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL ANY OF THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY DAMAGES CAUSED BY THE USE OR THE INABILITY TO USE, OF THE FREETYPE PROJECT. 32 Redistribution of source code must retain this license file (`FTL.TXT') unaltered; any additions, deletions or changes to the original files must be clearly indicated in accompanying documentation. The copyright notices of the unaltered, original files must be preserved in all copies of source files. Redistribution in binary form must provide a disclaimer that states that the software is based in part of the work of the FreeType Team, in the distribution documentation. We also encourage you to put an URL to the FreeType web page in your documentation, though this isn't mandatory. These conditions apply to any software derived from or based on the FreeType Project, not just the unmodified files. If you use our work, you must acknowledge us. However, no fee need be paid to us. 3. Advertising Neither the FreeType authors and contributors nor you shall use the name of the other for commercial, advertising, or promotional purposes without specific prior written permission. We suggest, but do not require, that you use one or more of the following phrases to refer to this software in your documentation or advertising materials: `FreeType Project', `FreeType Engine', `FreeType library', or `FreeType Distribution'. As you have not signed this license, you are not required to accept it. However, as the FreeType Project is copyrighted material, only this license, or another one contracted with the authors, grants you the right to use, distribute, and modify it. Therefore, by using, distributing, or modifying the FreeType Project, you indicate that you understand and accept all the terms of this license. 4. Contacts There are two mailing lists related to FreeType: [email protected] Discusses general use and applications of FreeType, as well as future and wanted additions to the library and distribution. If you are looking for support, start in this list if you haven't found anything to help you in the documentation. [email protected] Discusses bugs, as well as engine internals, design issues, specific licenses, porting, etc. Our home page can be found at http://www.freetype.org ================================================= ����© 2013 Sony Corporation Printed in Mexico �
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An Apple Subsidiary Site License Agreement The Site License Agreement software programs FileMaker Pro, FileMaker Pro Advanced and FileMaker Server and any other software programs listed on the software download page (“Software”) are licensed, not sold, to the Licensee listed on the software download page by FileMaker, Inc. and/or FileMaker International (collectively referred to as “FMI”) for use only under the terms and conditions of this Site License Agreement (“Agreement”). If Licensee does not agree to the terms of this Agreement, Licensee must not install, copy, download, access or use the Software, and Licensee must promptly notify FMI in writing. 1. License. (a) License Grant. Licensee represents that the Initial Number of Seats stated on the software download page is Licensee's current total headcount for Licensee’s entire entity as identified by the Tax ID#, site address or other identification set forth on the software download page (“License Count”). Upon payment of all applicable fees and subject to the terms of this Agreement, FMI grants to Licensee a non-exclusive, perpetual (unless terminated under Section 6), non-transferable license to make exact object code copies of FileMaker Pro, FileMaker Pro Advanced, FileMaker Server software programs and any other software programs listed on the software download page (“Software”), and install and use such copies of the Software on computers owned or leased by Licensee or located at Licensee's site address, as applicable. FMI has provided Licensee with a unique License Key identified on the software download page, and such License Key must be kept confidential and used solely for the purpose of enabling Licensee to use the Software in accordance with the terms and conditions of this Agreement. Licensee shall be solely responsible for all expenses incurred in the copying and installation of the Software by Licensee. (b) Authorized Users. The Software may be used by all employees of Licensee at facilities governed by Licensee as identified by the Tax ID# or other identification set forth on the software download page. If Licensee is an educational institution, the Software may only be used by Licensee's enrolled students, faculty, teaching assistants, administrators and staff on Licensee's computers. Licensee will use commercially reasonable efforts to restrict network or any other access to the Software by anyone outside of Licensee's facilities who is not authorized to use the Software. Temporary employees, contractors, and consultants of Licensee who work on-site at Licensee's facilities may also use the Software in connection with the operation of the business of Licensee so long as such temporary employees, contractors and consultants were included in the Initial Number of Seats. Any copies of the Software used by temporary employees, contractors and consultants must be removed from such individual's computers once they cease working at Licensee's facilities. �(c) Ownership. Licensee owns the media on which the Software is recorded or fixed, but Licensee acknowledges that FMI and its licensors retain ownership of the Software itself. FMI reserves any rights not expressly granted to Licensee. The rights granted are limited to FMI's and its licensors' intellectual property rights in the Software and do not include any other patents or intellectual property rights. (d) Increased License Count. The parties acknowledge that License Count may increase during the term of this Agreement. Licensee is not obligated to pay FMI for increased License Count during the Maintenance Period (as defined in Section 3(b)) so long as the total License Count does not exceed an amount greater than 10% above the Initial Number of Seats. At the end of the Maintenance Period, if the Agreement is renewed then Licensee will pay the new licensee fees for the increased License Count and Licensee will pay the renewal maintenance fees for the remaining License Count. If the total License Count has increased by more than 10% during the Maintenance Period, then Licensee will pay FMI the new license fees before such Software is used and based on FMI's then-current license fees. If Licensee fails to pay the new license fees, then Licensee's rights to use any Maintenance Software under Section 3 shall terminate and Licensee shall only use a quantity of Software that does not exceed the Initial Number of Seats. (e) End User License Agreement. The terms and conditions stated in the end user license agreement ("EULA") provided with the Software will govern the use of each respective copy of the Software used under this Agreement, except that the EULA does not constitute the granting of any additional license to the Software. (f) FileMaker Clients. FileMaker Server Software includes the rights to access data stored in the database server using FileMaker WebDirect web browser clients, FileMaker Pro (for User Connections) clients, and FileMaker Go clients (collectively “Client(s)”). Each authorized user may connect to the FileMaker Server using only one Client at a time. In the case of FileMaker WebDirect each web browser tab open and connected to FileMaker Server counts as a separate Client. If one user accesses multiple FileMaker Servers using a single Client, a user connection is required for each FileMaker Server accessed by that user. FileMaker WebDirect, FileMaker Pro (for User Connections) and FileMaker Go clients are not restricted for use by authorized users (as defined in Section 1(b)). 2. Restrictions. In addition to the restrictions stated in the respective EULA, the following restrictions apply. (a) Other Limitations. LICENSEE MAY NOT REVERSE ENGINEER, DECOMPILE OR DISASSEMBLE THE SOFTWARE, EXCEPT AND ONLY TO THE EXTENT EXPRESSLY PERMITTED BY APPLICABLE LAW. LICENSEE MAY NOT MODIFY, ADAPT, TRANSLATE, RENT, LEASE, LOAN OR CREATE DERIVATIVE WORKS BASED UPON THE SOFTWARE OR ANY PART THEREOF. �(b) Restricted Uses. THE SOFTWARE IS NOT INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, LIFE SUPPORT MACHINES OR OTHER EQUIPMENT IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. (c) Transfer Restriction. LICENSEE MAY NOT TRANSFER OR ASSIGN ITS RIGHTS UNDER THIS AGREEMENT TO ANOTHER PARTY WITHOUT FMI'S PRIOR WRITTEN CONSENT. (d) No Hosting for Third Parties. Licensee may only use the Software to host applications owned by Licensee. Licensee may not use the Software to host applications owned by third parties, notwithstanding any other terms in this Agreement. 3. Maintenance Software (a) Definitions. (i) “Maintenance Software” includes both Upgrades and Updates. (ii) “Upgrade” means an improvement to an existing product through added functionality and/or enhanced performance. Upgrades are identified by a change in the number to the left or right of the decimal point in the product version number (e.g., an upgrade from FileMaker Pro 7.0 to 8.0, or an upgrade from version 5.0 to 5.5). (iii) “Update” means bug fix updates containing fixes, compatibility updates to maintain compliance with specifications, and standards compatibility updates to interoperate with specific standards. Updates are identified by a change in the number to the right of the “v” (e.g., FileMaker Pro 8.0v2). Updates are generally made available only through electronic download. (b) Maintenance License. As part of this Agreement, Licensee's rights to use the Software will extend to the Maintenance Software that is commercially released during the period between the License Date and the Expiration Date set forth on the software download page (“Maintenance Period”). FMI will provide or make available to Licensee a master copy of such Maintenance Software commercially released during this period. (c) Restrictions and Disclaimers. Licensee's rights to Maintenance Software does not grant Licensee the right to acquire products bearing different names or special versions of the Maintenance Software created for certain customers or market segments, even though they may contain similar features or perform similar functions. From time to time products will be offered in the retail or other channels in different configurations as special promotions, which will not be made available as Maintenance Software, except in FMI's sole discretion. MAINTENANCE SOFTWARE WILL BE DEVELOPED AND RELEASED BY FMI AND ITS LICENSORS IN THEIR SOLE DISCRETION. FMI AND ITS LICENSORS DO NOT WARRANT OR REPRESENT THAT THEY WILL DEVELOP OR RELEASE ANY MAINTENANCE SOFTWARE DURING THE TERM �OF THESE MAINTENANCE TERMS. FMI AND ITS LICENSORS DO NOT WARRANT THAT THE MAINTENANCE SOFTWARE WILL BE PROVIDED TO LICENSEE OR MADE AVAILABLE WITHIN ANY SPECIFIED TIME PERIOD FOLLOWING THE COMMERCIAL RELEASE OF SUCH MAINTENANCE SOFTWARE. 4. Limited Warranty. FMI warrants for a period of ninety (90) days from the effective date of this Agreement that the Software as provided by FMI will perform substantially in accordance with the accompanying documentation. FMI's entire liability and Licensee's sole and exclusive remedy for any breach of the foregoing limited warranty will be, at FMI's option, replacement of the Software, refund of the purchase price or repair or replacement of the Software which is returned to FMI or an FMI authorized representative with a copy of the receipt. THIS LIMITED WARRANTY IS THE ONLY WARRANTY PROVIDED BY FMI AND FMI AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, CONDITIONS OR OTHER TERMS, EITHER EXPRESS OR IMPLIED (WHETHER COLLATERALLY, BY STATUTE OR OTHERWISE), INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES, CONDITIONS OR OTHER TERMS OF MERCHANTABILITY, SATISFACTORY QUALITY AND/OR FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO THE SOFTWARE AND ACCOMPANYING WRITTEN MATERIALS. FURTHERMORE, THERE IS NO WARRANTY AGAINST INTERFERENCE WITH LICENSEE'S ENJOYMENT OF THE SOFTWARE OR AGAINST INFRINGEMENT OF THIRD PARTY PROPRIETARY RIGHTS BY THE SOFTWARE. FMI DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY FMI OR AN FMI AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, CONDITIONS OR OTHER TERMS THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE. THE TERMS OF THIS DISCLAIMER AND THE LIMITED WARRANTY UNDER THIS SECTION 4 DO NOT AFFECT OR PREJUDICE THE STATUTORY RIGHTS OF A CONSUMER ACQUIRING THE SOFTWARE OTHERWISE THAN IN THE COURSE OF A BUSINESS, NEITHER DO THEY LIMIT OR EXCLUDE ANY LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY FMI'S NEGLIGENCE. 5. Exclusion and Limitation of Remedies and Damages. (a) Exclusion. IN NO EVENT WILL FMI, ITS PARENT, SUBSIDIARIES, OR ANY OF ITS LICENSORS, DIRECTORS, OFFICERS, EMPLOYEES OR AFFILIATES OF ANY OF THE FOREGOING BE LIABLE TO LICENSEE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES �WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE) OR DIRECT LOSS OF BUSINESS, BUSINESS PROFITS OR REVENUE, WHETHER FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR ACCOMPANYING WRITTEN MATERIALS, REGARDLESS OF THE BASIS OF THE CLAIM (WHETHER UNDER CONTRACT, NEGLIGENCE OR OTHER TORT OR UNDER STATUTE OR OTHERWISE HOWSOEVER ARISING) AND EVEN IF FMI OR A FMI REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. (b) Limitation. FMI'S TOTAL LIABILITY TO LICENSEE FOR DAMAGES FOR ANY CAUSE WHATSOEVER NOT EXCLUDED BY SECTION 5(a) ABOVE HOWSOEVER CAUSED (WHETHER IN CONTRACT, NEGLIGENCE OR OTHER TORT, UNDER STATUTE OR OTHERWISE HOWSOEVER ARISING) WILL BE LIMITED TO THE MONEY PAID FOR THE SOFTWARE THAT CAUSED THE DAMAGES. THE PARTIES AGREE THAT THIS LIMITATION OF REMEDIES AND DAMAGES PROVISION SHALL BE ENFORCED INDEPENDENTLY OF AND SURVIVE THE FAILURE OF ESSENTIAL PURPOSE OF ANY WARRANTY REMEDY. THIS LIMITATION WILL NOT APPLY IN CASE OF DEATH OR PERSONAL INJURY CAUSED BY FMI'S NEGLIGENCE ONLY WHERE AND TO THE EXTENT THAT APPLICABLE LAW REQUIRES SUCH LIABILITY. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE LIMITATION OF LIABILITY IN THIS SECTION 5 MAY NOT APPLY TO LICENSEE. NOTHING IN THIS AGREEMENT AFFECTS OR PREJUDICES THE STATUTORY RIGHTS OF A CONSUMER ACQUIRING THE SOFTWARE OTHERWISE THAN IN THE COURSE OF A BUSINESS. 6. Termination. If any breach of this Agreement by Licensee continues for more than thirty (30) days after receipt of written notice of such breach by FMI, FMI may terminate this Agreement by written notice to Licensee, whereupon this Agreement and all rights granted to Licensee herein shall immediately cease. Licensee may terminate this Agreement at any time by providing written notice to FMI. In the event of any termination of this Agreement, Licensee shall promptly return to FMI all copies of the Software or verify in writing that all copies of the Software have been destroyed. Sections 2 through 8 shall survive termination or cancellation of this Agreement. 7. Audit. No more than once per year and during ordinary business hours (after giving reasonable advance notice) FMI, or at either party’s option, an independent third party reasonably acceptable to both parties, may audit Licensee and its records relating to its payment obligations under this Agreement for the purpose of confirming Licensee’s compliance with this Agreement. At FMI’s request, Licensee will provide a knowledgeable employee to assist in such audit. If such audit reveals that Licensee has �underpaid amounts owing to FMI under this Agreement, Licensee will promptly pay FMI such past due amounts. If the amount which Licensee has underpaid in any period exceeds ten percent (10%) or more of the amounts actually owed to FMI for such period, Licensee will promptly reimburse FMI for the direct out-of-pocket expenses incurred in conducting such audit. 8. Support. FMI is not obligated to provide Licensee any technical support services for Licensee's use of the Software under this Agreement. Licensee may order additional support services currently offered by FMI during the term of this Agreement. 9. Export Control. You may not use or otherwise export or re-export the Software except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Software for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. 10. General Terms. If there is a local subsidiary of FMI in the country in which this agreement was purchased, then the local law in which the subsidiary sits shall govern this Agreement. Otherwise, this agreement shall be governed by the laws of the United States and the State of California. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods (1980), as amended, is specifically excluded from application to this Agreement. This agreement constitutes the entire agreement between the parties with respect to the Software licensed under these terms, and it supersedes all prior or contemporaneous agreement, arrangement and understanding regarding such subject matter. This agreement prevails over any other terms or conditions contained in or referred to in Licensee’s purchase order or elsewhere or implied by trade custom or course of dealing, unless those other terms or conditions are specifically agreed to in writing by a duly authorized representative of FMI. Any purported provisions to the contrary are hereby excluded or extinguished. Licensee acknowledges and agrees that it has not relied on any representations made by FMI, however, nothing in this agreement shall limit or exclude liability for any representation made fraudulently. No amendment to or modification of this agreement will be binding unless in writing and signed by FMI. If any provision of this agreement shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this agreement will remain in full force and effect. No failure or delay by FMI in exercising its rights or remedies shall operate as a waiver unless made by specific written notice. No single or partial exercise of any right or remedy of FMI shall operate as a waiver or preclude any other or further exercise of that or any other right or remedy. All Software provided to the U.S. Government pursuant to solicitations issued on or after December 1, 1995 is provided with the commercial license rights and restrictions described in this Agreement. All Software provided to the U.S. Government �pursuant to solicitations issued prior to December 1, 1995 is provided with RESTRICTED RIGHTS as provided for in FAR, 48 CFR 52.227-14 (JUNE 1987) or DFAR, 48 CFR 252-227-7013 (OCT 1988), as applicable. WWE SLA 041916 �
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Fortinet Product License Agreement / EULA and Warranty Terms Agreement. Notwithstanding anything to the contrary, distributors, resellers and other Fortinet partners (a) are not agents of Fortinet and (b) are not authorized to bind Fortinet in any way. Trademarks and Copyright Statement 6. Limited Warranty. Fortinet®, FortiGate®, and FortiGuard® are registered trademarks of Fortinet, Inc., and other Fortinet names may also be trademarks, registered or otherwise, of Fortinet. All other product or company names may be trademarks of their respective owners. Copyright © 2016 Fortinet, Inc., All Rights reserved. Contents and terms are subject to change by Fortinet without prior notice. No part of this publication may be reproduced in any form or by any means or used to make any derivative such as translation, transformation, or adaptation without permission from Fortinet, Inc., as stipulated by the United States Copyright Act of 1976. Product License Agreement The parties to this agreement are you, the end customer, and either (i) where you have purchased your Product within the Americas, Fortinet, Inc., or (ii) where you have purchased your Product outside of the Americas, Fortinet Singapore Private Limited (each referred to herein as "Fortinet"). CAREFULLY READ THE FOLLOWING LEGAL AGREEMENT (THE OR THIS “AGREEMENT” OR “EULA”). USE OR INSTALLATION OF FORTINET PRODUCT(S) AND ANY UPDATES THERETO, INCLUDING HARDWARE APPLIANCE PRODUCTS, SOFTWARE AND FIRMWARE INCLUDED THEREIN BY FORTINET, AND STAND-ALONE SOFTWARE PRODUCTS SOLD BY FORTINET (TOGETHER, THE "PRODUCTS") CONSTITUTES ACCEPTANCE BY YOU OF THE TERMS IN THIS AGREEMENT, AS AMENDED OR UPDATED FROM TIME TO TIME IN FORTINET’S DISCRETION BY FORTINET PUBLISHING AN AMENDED OR UPDATED VERSION. FORTINET SHALL NOT BE BOUND BY ANY ADDITIONAL AND/OR CONFLICTING PROVISIONS IN ANY ORDER, RELEASE, ACCEPTANCE OR OTHER WRITTEN CORRESPONDENCE OR OTHER WRITTEN OR VERBAL COMMUNICATION UNLESS EXPRESSLY AGREED TO IN A WRITING SIGNED BY THE GENERAL COUNSEL OF FORTINET. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT START THE INSTALLATION PROCESS OR USE THE PRODUCTS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU SHOULD IMMEDIATELY, AND IN NO EVENT LATER THAN FIVE (5) CALENDAR DAYS AFTER YOUR RECEIPT OF THE PRODUCT IMMEDIATELY NOTIFY THE FORTINET LEGAL TEAM IN WRITING AT [email protected] OF REQUESTED CHANGES TO THIS AGREEMENT. 1. License Grant. This is a license, not a sales agreement, between you and Fortinet. The term "Software", as used throughout this Agreement, includes all Fortinet and third party firmware and software provided to you with, or incorporated into, Fortinet appliances and any stand-alone software provided to you by Fortinet, with the exception of any open source software contained in Fortinet’s Products which is discussed in detail in section 15 below, and the term “Software” includes any accompanying documentation, any updates and enhancements of the software or firmware provided to you by Fortinet, at its option. Fortinet grants to you a non-transferable (except as provided in section 5 ("Transfer") and section 15 ("Open Source Software") below), non-exclusive, revocable (in the event of your failure to comply with these terms or in the event Fortinet is not properly paid for the applicable Product) license to use the Software solely for your internal business purposes (provided, if a substantial portion of your business is to provide managed service provider services to your end-customers, you may use the Software embedded in FortiGate and supporting hardware appliances to provide those services, subject to the other restrictions in this Agreement), in accordance with the terms set forth in this Agreement and subject to any further restrictions in Fortinet documentation, and solely on the Fortinet appliance, or, in the case of blades, CPUs or databases, on the single blade, CPU or database on which Fortinet installed the Software or, for stand-alone Software, solely on a single computer running a validly licensed copy of the operating system for which the Software was designed unless and except set forth in the published documentation otherwise, or, in the case of blades, CPUs or databases, on a single blade, CPU or database. For clarity, notwithstanding anything to the contrary, all licenses of Software to be installed on blades, CPUs or databases are licensed on a per single blade, solely for one blade and not for multiple blades that may be installed in a chassis, per single CPU or per single database basis, as applicable. The Software is "in use" on any Fortinet appliances when it is loaded into temporary memory (i.e. RAM). You agree that, except for the limited, specific license rights granted in this section 1, you receive no license rights to the Software. 2. Limitation on Use. You may not attempt to, and, if you are a corporation, you are responsible to prevent your employees and contractors from attempting to, (a) modify, translate, reverse engineer, decompile, disassemble, create derivative works based on, sublicense, or distribute the Software; (b) rent or lease any rights in the Software in any form to any third party or make the Software available or accessible to third parties in any other manner; (c) except as provided in section 5, transfer assign or sublicense right to any other person or entity, (d) remove any proprietary notice, labels, or marks on the Software, Products, and containers, or (e) use the Software for third-party training, commercial time-sharing or service bureau use or use the Software to provide services to third parties except as expressly set forth in this Agreement. 3. Proprietary Rights. All rights, title, interest, and all copyrights to the Software and any copy made thereof by you and to any Product remain with Fortinet. You acknowledge that no title to the intellectual property in the Software or other Products is transferred to you and you will not acquire any rights to the Software or other Products except for the specific license as expressly set forth in section 1 (“License Grant”) above. You expressly agree and acknowledge that Fortinet owns and shall retain all intellectual property rights in and to, and you have no intellectual property rights in and to, the Products and the Software other than the License Grant. You agree to keep confidential all Fortinet confidential information and only to use such information for the purposes for which Fortinet disclosed it. 4. Term and Termination. Except for evaluation and beta licenses or other licenses, such as subscription licenses, where the term of the license is limited per the evaluation/beta or other agreement, in the ordering documents or otherwise, the term of the license is for the duration of Fortinet's copyright in the Software. Fortinet may terminate this Agreement, and the licenses and other rights herein, immediately without notice if you breach or fail to comply with any of the terms and conditions of this Agreement or for other reasons as stated in Fortinet’s other documentation. You agree that, upon such termination, you will cease using the Software and any Product and either destroy all copies of the Fortinet documentation or return all materials to Fortinet. 5. Transfer. If you are a Fortinet contracted and authorized reseller or distributor of Products, you may transfer (not rent or lease unless specifically agreed to in writing by Fortinet) the Software to one end user on a permanent basis, provided that: (i) you ensure that your customer and the end user receives a copy of this Agreement, is bound by its terms and conditions, and, by selling the Product or Software, you hereby agree to enforce the terms in this Agreement against such end user, (ii) you at all times comply with all applicable United States export control laws and regulations, and (iii) you agree to refund any fees paid to you by an end user who purchased Product(s) from you but does not agree to the terms contained in this Agreement and therefore wishes to return the Product(s) as provided for in this Agreement. Further, if you are a non-authorized reseller of Products, you are not authorized to sell Product(s) or Software, but, regardless, by selling Product(s) or Software, you hereby agree you are bound by the restrictions and obligations herein and are bound to: (i) ensure that your customer and the end user receive a copy of this Agreement and are bound in full by all restrictions and obligations herein (ii) enforce the restrictions and obligations in this Agreement against such customer and/or end user, (iii) comply with all applicable United States export control laws and regulations and all other applicable laws, and (iv) refund any fees paid to you by a customer and/or end user who purchased Product(s) from you but does not agree to the restrictions and obligations contained in this Agreement and therefore wishes to return the Product(s) as provided for in this Fortinet, Inc. - EULA v17 - July 2016 Fortinet provides this limited warranty for its product only to the single end-user person or entity that originally purchased the Product from Fortinet or its authorized reseller or distributor and paid for such Product. The warranty is only valid for Products which are properly registered on Fortinet’s Support Website, https://support.fortinet.com, or such other website as provided by Fortinet, or for which the warranty otherwise starts according to Fortinet’s policies. The warranty periods discussed below will start according to Fortinet’s policies posted at http://www.fortinet.com/aboutus/legal.html or such other website as provided by Fortinet. It is the Fortinet distributor’s and reseller’s responsibility to make clear to the end user the date the product was originally shipped from Fortinet, and it is the end user’s responsibility to understand the original ship date from the party from which the end user purchased the product. All warranty claims must be submitted in writing to Fortinet before the expiration of the warranty term or such claims are waived in full. Fortinet provides no warranty for any beta, donation or evaluation Products, for any spare parts not purchased directly from Fortinet by the end-user, for any accessories, or for any stand-alone software. Fortinet warrants that the hardware portion of the Products, including spare parts unless noted otherwise ("Hardware") will be free from material defects in workmanship as compared to the functional specifications for the period set forth as follows and applicable to the Product type ("Hardware Warranty Period"): a three hundred sixty-five (365) day limited warranty for the Hardware excluding spare parts, power supplies, and accessories (provided, solely with respect to FortiAP and Meru AP indoor Wi-Fi access point Hardware appliance products and FortiSwitch Hardware appliance products other than the FortiSwitch-5000 series (for both excluding spare parts, power supplies, and accessories), the warranty herein shall last from the start of the warranty period as discussed above until five (5) years following the product announced end-of-life date), and, for spare parts, power supplies, and accessories, solely a ninety (90) days limited warranty. Fortinet's sole obligation shall be to repair or offer replacement Hardware for the defective Hardware at no charge to the original owner. This obligation is exclusive of transport fees, labor, de-installation, installation, reconfiguration, or return shipment and handling fees and costs, and Fortinet shall have no obligation related thereto. Such repair or replacement will be rendered by Fortinet at an authorized Fortinet service facility as determined by Fortinet. The replacement Hardware need not be new or of an identical make, model, or part; Fortinet may, in its discretion, replace the defective Hardware (or any part thereof) with any reconditioned Product that Fortinet reasonably determines is substantially equivalent (or superior) in all material respects to the defective Hardware. The Hardware Warranty Period for the repaired or replacement Hardware shall be for the greater of the remaining Hardware Warranty Period or ninety days from the delivery of the repaired or replacement Hardware. If Fortinet determines in its reasonable discretion that a material defect is incapable of correction or that it is not practical to repair or replace defective Hardware, the price paid by the original purchaser for the defective Hardware will be refunded by Fortinet upon return to Fortinet of the defective Hardware. All Hardware (or part thereof) that is replaced by Fortinet, or for which the purchase price is refunded, shall become the property of Fortinet upon replacement or refund. Fortinet warrants that the software as initially shipped with the Hardware Products will substantially conform to Fortinet's then current functional specifications for the Software, as set forth in the applicable documentation for a period of ninety (90) days ("Software Warranty Period"), if the Software is properly installed on approved Hardware and operated as contemplated in its documentation. Fortinet's sole obligation shall be to repair or offer replacement Software for the non-conforming Software with software that substantially conforms to Fortinet's functional specifications. This obligation is exclusive of transport fees, labor, de-installation, installation, reconfiguration, or return shipment and handling fees and costs, and Fortinet shall have no obligation related thereto. Except as otherwise agreed by Fortinet in writing, the warranty replacement Software is provided only to the original licensee, and is subject to the terms and conditions of the license granted by Fortinet for the Software. The Software Warranty Period shall extend for an additional ninety (90) days after any warranty replacement software is delivered. If Fortinet determines in its reasonable discretion that a material non-conformance is incapable of correction or that it is not practical to repair or replace the non-conforming Software, the price paid by the original licensee for the non-conforming Software will be refunded by Fortinet; provided that the non-conforming Software (and all copies thereof) is first returned to Fortinet. The license granted respecting any Software for which a refund is given automatically terminates immediately upon refund. For purpose of the above hardware and software warranties, the term “functional specifications” means solely those specifications authorized and published by Fortinet that expressly state in such specifications that they are the functional specifications referred to in this section 6 of this Agreement, and, in the event no such specifications are provided to you with the Software or Hardware, there shall be no warranty on such Software. 7. Disclaimer of Other Warranties and Restrictions. EXCEPT FOR THE LIMITED WARRANTY SPECIFIED IN SECTION 6 ABOVE, THE PRODUCT AND SOFTWARE ARE PROVIDED "AS-IS" WITHOUT ANY WARRANTY OF ANY KIND INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY, IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, OR WARRANTY FOR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IF ANY IMPLIED WARRANTY CANNOT BE DISCLAIMED IN ANY TERRITORY WHERE A PRODUCT IS SOLD, THE DURATION OF SUCH IMPLIED WARRANTY SHALL BE LIMITED TO NINETY (90) DAYS FROM THE DATE OF ORIGINAL SHIPMENT FROM FORTINET. EXCEPT AS EXPRESSLY COVERED UNDER THE LIMITED WARRANTY PROVIDED HEREIN, THE ENTIRE RISK AS TO THE QUALITY, SELECTION AND PERFORMANCE OF THE PRODUCT IS WITH THE PURCHASER OF THE PRODUCT. NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE HARDWARE WARRANTY PERIOD DISCUSSED ABOVE DOES NOT APPLY TO CERTAIN FORTINET PRODUCTS, INCLUDING FORTITOKEN WHICH HAS A 365 DAY WARRANTY FROM THE DATE OF SHIPMENT FROM FORTINET’S FACILITIES, AND THE SOFTWARE WARRANTY DOES NOT APPLY TO CERTAIN FORTINET PRODUCTS, INCLUDING FORTIGATE-ONE AND VDOM SOFTWARE. YOU HEREBY ACKNOWLEDGE AND AGREE THAT NO VENDOR CAN ASSURE COMPLETE SECURITY AND NOTHING HEREIN OR ELSEWHERE SHALL BE DEEMED TO IMPLY A SECURITY GUARANTEE OR ASSURANCE. The warranty in Section 6 above does not apply if the Software, Product or any other equipment upon which the Software is authorized to be used (a) has been altered, except by Fortinet or its authorized representative, (b) has not been installed, operated, repaired, updated to the latest version, or maintained in accordance with instructions supplied by Fortinet, (c) has been subjected to abnormal physical or electrical stress, misuse, negligence, or accident; (d) is licensed for beta, evaluation, donation, testing or demonstration purposes or for which Fortinet does not charge a purchase price or license fee. In the case of beta, testing, evaluation, donation or free Software or Product, the end user acknowledges and agrees that such Software or Product may contain bugs or errors and could cause system failures, data loss and other issues, and the end user agrees that such Software or Product is provided “as-is” without any warranty whatsoever, and Fortinet disclaims any warranty or liability whatsoever. An end user’s use of evaluation or beta Software or Product is limited to thirty (30) days from original shipment unless otherwise agreed in writing by Fortinet. 8. Governing Law. Any disputes arising out of this Agreement or Fortinet’s limited warranty shall be governed by the laws of the state of California, without regard to the conflict of laws principles. In the event of any disputes arising out of this Agreement or Fortinet’s limited warranty, the parties submit to the jurisdiction of the federal and state courts located in Santa Clara County, California, as applicable. INCIDENTAL OR CONSEQUENTIAL (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, LOSS OF PROFIT, LOSS OF OPPORTUNITY, LOSS OR DAMAGE RELATED TO USE OF THE PRODUCT OR SERVICE IN CONNECTION WITH HIGH RISK ACTIVITIES, DE-INSTALLATION AND INSTALLATION FEES AND COSTS, DAMAGE TO PERSONAL OR REAL PROPERTY, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, COMPUTER SECURITY BREACH, COMPUTER VIRUS INFECTION, LOSS OF INFORMATION OR DATA CONTAINED IN, STORED ON, OR INTEGRATED WITH ANY PRODUCT INCLUDING ANY PRODUCT RETURNED TO FORTINET FOR WARRANTY SERVICE) RESULTING FROM THE USE OF THE PRODUCT, RELATING TO WARRANTY SERVICE, OR ARISING OUT OF ANY BREACH OF THE LIMITED WARRANTY IN SECTION 6 ABOVE, EVEN IF FORTINET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE SOLE REMEDY FOR A BREACH OF THE LIMITED WARRANTY IS REPAIR, REPLACEMENT OR REFUND OF THE DEFECTIVE OR NONCONFORMING PRODUCT AS SPECIFICALLY STATED IN SECTION 6 ABOVE. 10. Import / Export Requirements; FCPA Compliance. You are advised that the Products may be subject to the United States Export Administration Regulations and other import and export laws; diversion contrary to United States law and regulation is prohibited. You agree to comply with all applicable international and national laws that apply to the Products as well as end user, end-use, and destination restrictions issued by U.S. and other governments. For additional information on U.S. export controls see www.bis.doc.gov. Fortinet assumes no responsibility or liability for your failure to obtain any necessary import and export approvals, and Fortinet reserves the right to terminate or suspend shipments, services and support in the event Fortinet has a reasonable basis to suspect any import or export violation. You represent that neither the United States Bureau of Industry and Security nor any other governmental agency has issued sanctions against you or otherwise suspended, revoked or denied your export privileges. You agree not to use or transfer the Products for any use relating to nuclear, chemical or biological weapons, or missile technology, unless authorized by the United States Government by regulation or specific written license. Additionally, you agree not to directly or indirectly export, import or transmit the Products contrary to the laws or regulations of any other governmental entity that has jurisdiction over such export, import, transmission or use. Furthermore, you represent that you understand, and you hereby agree to comply with, all requirements of the U.S. Foreign Corrupt Practices Act and all other applicable laws. For beta, testing, evaluation, donation or free Products and/or related services, you hereby agree, represent and warrant to Fortinet that (a) receipt of the Products and/or services comply with all policies and you have obtained all necessary approvals for such Products and/or services, (b) the Products and/or services are not provided in exchange for Fortinet maintaining current business or for new business opportunities, and (c) the Products and/or services are not being received for the benefit of, and are not being transferred to, any government entity, representative or affiliate. 11. U.S. Government End Users. The Software and accompanying documentation are deemed to be "commercial computer software" and "commercial computer software documentation," respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Software and accompanying documentation by the United States Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement and its successors. 12. Tax Liability. You agree to be responsible for payment of any sales or use taxes imposed at any time on this transaction. 13. General Provisions. Except as specifically permitted and required in section 5 (“Transfer”) above, you agree not to assign this Agreement or transfer any of the rights or obligations under this Agreement without the prior written consent of Fortinet. This Agreement shall be binding upon, and inure to the benefit of, the successors and permitted assigns of the parties. The United Nations Convention on Contracts for the International Sales of Goods is expressly excluded. This Agreement and other Fortinet agreements may be amended or supplemented only by a writing that refers explicitly to the agreement signed on behalf of both parties, or, for this Agreement, as otherwise expressly provided in the lead-in above Section 1 above, provided, notwithstanding anything to the contrary and except for this Agreement which may be amended or updated as expressly provided in the lead-in above Section 1 above, for any amendment or other agreement to be binding on Fortinet, such amendment or other agreement must be signed by Fortinet’s General Counsel. No waiver will be implied from conduct or failure to enforce rights nor effective unless in a writing signed on behalf of the party against whom the waiver is asserted. If any part of this Agreement is found unenforceable, that part will be enforced to the maximum extent permitted and the remainder shall continue in full force and effect. You acknowledge that you have read this Agreement, understand it, and agree to be bound by its terms and conditions. 14. Privacy. Fortinet’s collection, use, protection and transfer of your personal information is governed by the Fortinet privacy policy on the Fortinet web site (http://www.fortinet.com/aboutus/privacy.html). 15. Open Source Software. Fortinet’s products may include software modules that are licensed (or sublicensed) to the user under the GNU General Public License, Version 2, of June 1991 (“GPL”) or GNU Lesser General Public License, Version 2.1, of February 1999 (“LGPL”) or other open source software licenses which, among other rights, permit the user touse, copy, modify and redistribute modules, or portions thereof, and may also require attribution disclosures and access to the source code ("Open Source Software"). The GPL requires that for any Open Source Software covered under the GPL, which is distributed to someone in an executable binary format, that the source code also be made available to those users. For any Open Source Software covered under the GPL, the source code is made available on this CD or download package. If any Open Source Software licenses require that Fortinet provide rights to use, copy or modify a Open Source Software program that are broader than the rights granted in this agreement, then such rights shall take precedence over the rights and restrictions herein. Fortinet will provide, for a charge reflecting our standard distribution costs, the complete machine-readable copy of the modified software modules. To obtain a complete machine-readable copy, please send your written request, along with a check in the amount of US $25.00, to General Public License Source Code Request, Fortinet, Inc., 899 Kifer Rd, Sunnyvale, CA 94086 USA. In order to receive the modified software modules, you must also include the following information: (a) Name, (b) Address, (c) Telephone number, (d) E-mail Address, (e) Product purchased (if applicable), (f) Product Serial Number (if applicable). All open source software modules are licensed free of charge. There is no warranty for these modules, to the extent permitted by applicable law. The copyright holders provide these software modules “AS-IS” without warranty of any kind, either expressed or implied. In no event will the copyright holder for the open source software be liable to you for damages, including any special, incidental or consequential damages arising out of the use or inability to use the software modules, even if such holder has been advised of the possibility of such damages. A full copy of this license, including additional open source software license disclosures and third party license disclosures applicable to certain Fortinet products, may obtained by contacting Fortinet’s Legal Department at [email protected]. 9. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY, FORTINET IS NOT LIABLE UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, INFRINGEMENT OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY LOSS OF USE OF THE PRODUCT OR SERVICE OR ANY DAMAGES OF ANY KIND WHATSOEVER, WHETHER DIRECT, SPECIAL, Page 1 of 2 �GNU GENERAL PUBLIC LICENSE GNU GENERAL PUBLIC LICENSE Version 2, June 1991 Copyright (C) 1989, 1991 Free Software Foundation, Inc. 59 Temple Place, Suite 330, Boston, MA 02111-1307 USA TERMS AND CONDITIONS FOR COPYING, DISTRIBUTION AND MODIFICATION This License applies to any program or other work which contains a notice placed by the copyright holder saying it may be distributed under the terms of this General Public License. The "Program", below, refers to any such program or work, and a "work based on the Program" means either the Program or any derivative work under copyright law: that is to say, a work containing the Program or a portion of it, either verbatim or with modifications and/or translated into another language. (Hereinafter, translation is included without limitation in the term "modification".) Each licensee is addressed as "you". Activities other than copying, distribution and modification are not covered by this License; they are outside its scope. The act of running the Program is not restricted, and the output from the Program is covered only if its contents constitute a work based on the Program (independent of having been made by running the Program). Whether that is true depends on what the Program does. 1. You may copy and distribute verbatim copies of the Program's source code as you receive it, in any medium, provided that you conspicuously and appropriately publish on each copy an appropriate copyright notice and disclaimer of warranty; keep intact all the notices that refer to this License and to the absence of any warranty; and give any other recipients of the Program a copy of this License along with the Program. You may charge a fee for the physical act of transferring a copy, and you may at your option offer warranty protection in exchange for a fee. 2. You may modify your copy or copies of the Program or any portion of it, thus forming a work based on the Program, and copy and distribute such modifications or work under the terms of Section 1 above, provided that you also meet all of these conditions: a) You must cause the modified files to carry prominent notices stating that you changed the files and the date of any change. b) You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License. c) If the modified program normally reads commands interactively when run, you must cause it, when started running for such interactive use in the most ordinary way, to print or display an announcement including an appropriate copyright notice and a notice that there is no warranty (or else, saying that you provide a warranty) and that users may redistribute the program under these conditions, and telling the user how to view a copy of this License. (Exception: if the Program itself is interactive but does not normally print such an announcement, your work based on the Program is not required to print an announcement.) These requirements apply to the modified work as a whole. If identifiable sections of that work are not derived from the Program, and can be reasonably considered independent and separate works in themselves, then this License, and its terms, do not apply to those sections when you distribute them as separate works. But when you distribute the same sections as part of a whole which is a work based on the Program, the distribution of the whole must be on the terms of this License, whose permissions for other licensees extend to the entire whole, and thus to each and every part regardless of who wrote it.. Thus, it is not the intent of this section to claim rights or contest your rights to work written entirely by you; rather, the intent is to exercise the right to control the distribution of derivative or collective works based on the Program. In addition, mere aggregation of another work not based on the Program with the Program (or with a work based on the Program) on a volume of a storage or distribution medium does not bring the other work under the scope of this License. 3. You may copy and distribute the Program (or a work based on it, under Section 2) in object code or executable form under the terms of Sections 1 and 2 above provided that you also do one of the following: a) Accompany it with the complete corresponding machine-readable source code, which must be distributed under the terms of Sections1 and 2 above on a medium customarily used for software interchange; or, b) Accompany it with a written offer, valid for at least three years, to give any third party, for a charge no more than your cost of physically performing source distribution, a complete machine-readable copy of the corresponding source code, to be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or, c) Accompany it with the information you received as to the offer to distribute corresponding source code. (This alternative is allowed only for noncommercial distribution and only if you received the program in object code or executable form with such an offer, in accord with Subsection b above.) Source code for a work means the preferred form of the work for making modifications to it. For an executable work, complete source code means all the source code for all modules it contains, plus any associated interface definition files, plus the scripts used to control compilation and installation of the executable. However, as a special exception, the source code distributed need not include anything that is normally distributed (in either source or binary form) with the major components (compiler, kernel, and so on) of the operating system on which the executable runs, unless that component itself accompanies the executable. If distribution of executable or object code is made by offering access to copy from a designated place, then offering equivalent access to copy the source code from the same place counts as distribution of the source code, even though third parties are not compelled to copy the source along with the object code. 4. You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License. However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance. 5. You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it. 6. Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose any further restrictions on the recipients' exercise of the rights granted herein. You are not responsible for enforcing compliance by third parties to this License. 7. If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program. If any portion of this section is held invalid or unenforceable under any particular circumstance, the balance of the section is intended to apply and the section as a whole is intended to apply in other circumstances. It is not the purpose of this section to induce you to infringe any patents or other property right claims or to contest validity of any such claims; this section has the sole purpose of protecting the integrity of the free software distribution system, which is implemented by public license practices. Many people have made generous contributions to the wide range of software distributed through that system in reliance on consistent application of that system; it is up to the author/donor to decide if he or she is willing to distribute software through any other system and a licensee cannot impose that choice. This section is intended to make thoroughly clear what is believed to be a consequence of the rest of this License. 8. If the distribution and/or use of the Program is restricted in certain countries either by patents or by copyrighted interfaces, the original copyright holder who places the Program under this License may add an explicit geographical distribution limitation excluding those countries, so that distribution is permitted only in or among countries not thus excluded. In such case, this License incorporates the limitation as if written in the body of this License. 9. The Free Software Foundation may publish revised and/or new versions of the General Public License from time to time. Such new versions will be similar in spirit to the present version, but may differ in detail to address new problems or concerns. Each version is given a distinguishing version number. If the Program specifies a version number of this License which applies to it and "any later version", you have the option of following the terms and conditions either of that version or of any later version published by the Free Software Foundation. If the Program does not specify a version number of this License, you may choose any version ever published by the Free Software Foundation. 10. If you wish to incorporate parts of the Program into other free programs whose distribution conditions are different, write to the author to ask for permission. For software which is copyrighted by the Free Software Foundation, write to the Free Software Foundation; we sometimes make exceptions for this. Our decision will be guided by the two goals of preserving the free status of all derivatives of our free software and of promoting the sharing and reuse of software generally. Fortinet, Inc. - EULA v17 – July 2016 NO WARRANTY 11. BECAUSE THE PROGRAM IS LICENSED FREE OF CHARGE, THERE IS NO WARRANTY FOR THE PROGRAM, TO THE EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT WHEN OTHERWISE STATED IN WRITING THE COPYRIGHT HOLDERS AND/OR OTHER PARTIES PROVIDE THE PROGRAM "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PROGRAM IS WITH YOU. SHOULD THE PROGRAM PROVE DEFECTIVE, YOU ASSUME THE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. 12. IN NO EVENT UNLESS REQUIRED BY APPLICABLE LAW OR AGREED TO IN WRITING WILL ANY COPYRIGHT HOLDER, OR ANY OTHER PARTY WHO MAY MODIFY AND/OR REDISTRIBUTE THE PROGRAM AS PERMITTED ABOVE, BE LIABLE TO YOU FOR DAMAGES, INCLUDING ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE PROGRAM (INCLUDING BUT NOT LIMITED TO LOSS OF DATA OR DATA BEING RENDERED INACCURATE OR LOSSES SUSTAINED BY YOU OR THIRD PARTIES OR A FAILURE OF THE PROGRAM TO OPERATE WITH ANY OTHER PROGRAMS), EVEN IF SUCH HOLDER OR OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. GNU LESSER GENERAL PUBLIC LICENSE Version 2.1, February 1999 Copyright (C) 1991, 1999 Free Software Foundation, Inc. 59 Temple Place, Suite 330, Boston, MA 02111-1307 USA TERMS AND CONDITIONS FOR COPYING, DISTRIBUTION AND MODIFICATION 0. This License Agreement applies to any software library or other program which contains a notice placed by the copyright holder or other authorized party saying it may be distributed under the terms of this Lesser General Public License (also called "this License"). Each licensee is addressed as "you". A "library" means a collection of software functions and/or data prepared so as to be conveniently linked with application programs (which use some of those functions and data) to form executables. The "Library", below, refers to any such software library or work which has been distributed under these terms. A "work based on the Library" means either the Library or any derivative work under copyright law: that is to say, a work containing the Library or a portion of it, either verbatim or with modifications and/or translated straightforwardly into another language. (Hereinafter, translation is included without limitation in the term "modification".) "Source code" for a work means the preferred form of the work for making modifications to it. For a library, complete source code means all the source code for all modules it contains, plus any associated interface definition files, plus the scripts used to control compilation and installation of the library. Activities other than copying, distribution and modification are not covered by this License; they are outside its scope. The act of running a program using the Library is not restricted, and output from such a program is covered only if its contents constitute a work based on the Library (independent of the use of the Library in a tool for writing it). Whether that is true depends on what the Library does and what the program that uses the Library does. 1. You may copy and distribute verbatim copies of the Library's complete source code as you receive it, in any medium, provided that you conspicuously and appropriately publish on each copy an appropriate copyright notice and disclaimer of warranty; keep intact all the notices that refer to this License and to the absence of any warranty; and distribute a copy of this License along with the Library. You may charge a fee for the physical act of transferring a copy, and you may at your option offer warranty protection in exchange for a fee. 2. You may modify your copy or copies of the Library or any portion of it, thus forming a work based on the Library, and copy and distribute such modifications or work under the terms of Section 1 above, provided that you also meet all of these conditions: a) The modified work must itself be a software library. b) You must cause the files modified to carry prominent notices stating that you changed the files and the date of any change. c) You must cause the whole of the work to be licensed at no charge to all third parties under the terms of this License. d) If a facility in the modified Library refers to a function or a table of data to be supplied by an application program that uses the facility, other than as an argument passed when the facility is invoked, then you must make a good faith effort to ensure that, in the event an application does not supply such function or table, the facility still operates, and performs whatever part of its purpose remains meaningful. 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End User License Agreement (EULA) BY INSTALLING THIS SOFTWARE YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL, COPY OR USE THE SOFTWARE. This END USER LICENSE AGREEMENT ("Agreement") is made by and between QuadSpinner, an internal division of Nukeation Studios, a company registered in India at 380 Aiya Nagar, Bhuj, Gujarat 370 001, ("QuadSpinner"), and you, as either an individual or a single entity ("Licensee"). Both parties agree to the terms and conditions below: 1. GRANT OF LICENSE Subject to the limitations of Section 2, QuadSpinner hereby grants to Licensee a limited, nontransferable and non-exclusive license to install and use a machine-readable, object code version of this software program (the "Software") and accompanying user guide and other documentation (collectively, the "Documentation") solely for Licensee's own internal business purposes (collectively , the "License"); provided, however, Licensee's right to install and use the Software and the Documentation is limited to those rights expressly set out in this Agreement. 2. RESTRICTIONS ON USE Licensee is authorized to use the Software in machine-readable, object code form only, and Licensee shall not: (1) assign, sub-license, sell, distribute, transfer, pledge, lease, rent, share, or export the Software, the Documentation or Licensee's rights hereunder; (2) alter or circumvent the copy protection mechanisms in the Software or reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Software; (3) modify, adapt, translate, or create derivativ e works based on the Software or Documentation; (4) use, or allow the use of, the Software or Documentation on any project other than a project produced by Licensee (an "Authorized Project"); (5) allow or permit anyone (other than Licensee and Licensee's authorized employees to the extent they are working on an Authorized Project) to use or have access to the Software or Documentation; (6) copy or install the Software or Documentation other than as expressly provided for herein; or (7) take any action, or fail to take action, that could adversely affect the trademarks, service marks, patents, trade secrets, copyrights, or other intellectual property rights of QuadSpinner or any third party with intellectual property rights in the Software (each, a "Third Party Licensor"). Furthermore, for purposes of this Section 2, the term "Software" shall include any derivatives of the Software. Licensee shall install and use only a single copy of the Software on one computer (“Original Installation”), unless the Software is installed in a "floating license" environment, in which case Licensee may install the Software on more than one computer; provided, however, Licensee shall not at any one time use more copies of the Software than the total number of valid Software licenses purchased by Licensee. �Licensee is allowed to install a copy on a second computer (“Auxiliary Installation”), if the Licensee requests a second license code from QuadSpinner. The Auxiliary Installation is bound to all the terms and conditions as presented in this Agreement. In addition, the Auxiliary Installation cannot be used simultaneously with the Original Installation, and may only be used by Licensee. In order to prevent unlicensed use of the Software, a license code is required to access and enable the Software. The issuing of replacement or substituted license codes if the Software is moved from one computer to another is subject to QuadSpinner’s discretion, which is available on QuadSpinner’s website and which requires a fee to be paid in certain circumstances. QuadSpinner may choose, at its sole discretion, to replace the license code at no additional cost, up to three (3) times in a calendar year. QuadSpinner will take all reasonable measures to provide license codes to the Licensee with a grace period of at least thirty (30) calendar days. Licensee agrees to take all reasonable measures to replace the license code as instructed within the grace period following the delivery of the license code by electronic mail. QuadSpinner shall not be held liable if Licensee cannot be reached by the electronic mail address supplied during purchase. QuadSpinner will make a reasonable number of attempts to re-send the information in case of delivery failure. Licensee shall be responsible for keeping QuadSpinner appraised of any changes to Licensee’s contact information. In an effort to facilitate such license code replacements, QuadSpinner may, from time to time, provide notifications inside the software to inform Licensee of the expiration of the existing license code. 3. BACK-UP COPY Notwithstanding Section 2, Licensee may store one copy of the Software and Documentation offline and offsite in a secured location owned or leased by Licensee in order to provide a back-up in the event of destruction by fire, flood, acts of war, acts of nature, vandalism, or other incident. In no event may Licensee use the back-up copy of the Software or Documentation to circumvent the usage or other limitations set forth in this Agreement. 4. OWNERSHIP Licensee acknowledges that the Software (including, for the avoidance of doubt, any Source Code that is licensed to Licensee) and Documentation and all intellectual property rights and other proprietary rights relating thereto are and shall remain the sole property of QuadSpinner and the Third Party Licensors. Licensee shall not remove, or allow the removal of, any copyright or other proprietary rights notices included in and on the Software or Documentation or take any other action that could adversely affect the property rights of QuadSpinner or any Third Party Licensor. To the extent that Licensee is authorized to make copies of the Software or Documentation under this Agreement , Licensee shall reproduce in and on all such copies any copyright and/or other proprietary rights notices provided in and on the materials supplied by QuadSpinner hereunder. 5. LICENSE FEE Licensee understands that the benefits granted to Licensee hereunder are contingent upon Licensee's payment in full of the license fee payable in connection herewith (the "License Fee"). �6. LIMITED WARRANTY AND LIABILITY QUADSPINNER CAN EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ANY WARRANTY FOR THE SOFTWARE PRODUCT. THE SOFTWARE PRODUCT AND ANY RELATED DOCUMENTATION IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. QUADSPINNER CAN DISCLAIM ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SOFTWARE PRODUCT. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SOFTWARE PRODUCT REMAINS WITH LICENSEE. IN NO EVENT SHALL QUADSPINNER BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THIS PRODUCT, EVEN IF QUADSPINNER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL QUADSPINNER BE LIABLE TO ANY LICENSEE ON ACCOUNT OF THAT USER'S USE OR MISUSE OF THE SOFTWARE PRODUCT. SUCH LIMITATION OF LIABILITY SHALL APPLY TO PREVENT RECOVERY OF DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTI AL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES WHETHER SUCH CLAIM IS BASED ON WARRANT Y, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE (EVEN IF QUADSPINNER HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE SOFTWARE PRODUCT, FROM INABILITY TO USE THE SOFTWARE PRODUCT, OR FROM THE INTERRUPTION, SUSPENSION OR TERMINATION OF THE SOFTWARE PRODUCT (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW. 7. LIMITED REMEDY The exclusive remedy available to the Licensee in the event of a breach of the foregoing limited warranty, TO THE EXCLUSION OF ALL OTHER REMEDIES, is for Licensee to destroy all copies of the Software, send QuadSpinner a written certification of such destruction and, upon QuadSpinner's receipt of such certification, QuadSpinner will make a replacement copy of the Software available to Licensee. 8. 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In the event the License is terminat ed, Licensee will either return to QuadSpinner all copies of the Software and Documentation in Licensee's possession or, if QuadSpinner directs in writing, destroy all such copies. In the latter case, if requested by QuadSpinner, Licensee shall provide QuadSpinner with a certificate signed by an officer of Licensee confirming that the foregoing destruction has been completed. 10. CONFIDENTIALITY Licensee agrees that the Software (including, for the avoidance of doubt, any Source Code that is licensed to Licensee) and Documentation are proprietary and confidential information of QuadSpinner or, as the case may be, the Third Party Licensors, and that all such information and any communications relating thereto (collectively, "Confidential Information") are confidential and a fundamental and important trade secret of QuadSpinner or the Third Party Licensors. 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QuadSpinner may request, in which case Licensee agrees to comply with, certain reasonable security measures as part of the use of the Software and Documentation. Licensee acknowledges that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information, and that QuadSpinner shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction. 11. SURVIVAL AND GOVERNING LAW Sections 2, 4, 5, 6, 7, 8, 9, 10, 11 shall survive any termination or expiration of this Agreement. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in effect. The laws of Gujarat, INDIA, shall govern this EULA. Each party agrees to submit to the personal and exclusive jurisdiction of the courts located in Gujarat, India. Copyright © 2013 QuadSpinner/Nukeation Studios. All Rights Reserved. �
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Gracenote End User License Agreement The use of the electronic television program information data transmission service and related data ("Data") that is made available as part of the Service (the "Service") provided by Gracenote, Inc. of Emeryville, California ("Gracenote") and is provided solely in accordance with the terms and conditions set out in this End User License Agreement ("EULA"). BY USING THE SERVICE YOU ACCEPT THE EULA SET OUT BELOW. IN SO FAR AS YOU DO NOT ACCEPT THIS EULA YOU ARE NOT PERMITTED TO USE THE SERVICE. Gracenote reserves the right to block or suspend access to the Service or to the Data, in case you are in breach of this EULA or any part of them. 1. Description of the Service a. Gracenote makes the Service available to you on this end user device ("End User Device") purchased by you. b. The Service consists of the aggregation, arrangement and the delivery of the Data, in particular in the form of texts and images. 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The download or any other receipt of content, in particular the download of Data in connection with the Service, is also at your own risk and you are solely responsible for any damage to this End User Device or for any other damages, including loss of data, arising out of such actions. b. Gracenote shall not be liable for the functioning of the Service or part of it without interruptions or defects, for Data being available at all times or for the Service being fit for a specific purpose. Gracenote shall not be liable for the accuracy, completeness and/or correctness of the Data made available by Gracenote. In particular spelling mistakes and software errors can occur. c. 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EULA.fm Page 1 Monday, May 30, 2016 2:59 PM Matrox Software License Agreement (Hereafter referred to as License) 20237-401-0100 2016.05.30 THIS IS A LEGAL AGREEMENT BETWEEN THE LICENSEE AND MATROX GRAPHICS INC. (“MATROX”) CONCERNING THE USAGE OF THE MATROX SOFTWARE. BY DOWNLOADING, INSTALLING, COPYING, ACCESSING, CLICKING ON AN “ACCEPT” BUTTON, OR OTHERWISE USING THE SOFTWARE, THE LICENSEE AGREES TO THE TERMS OF THIS LICENSE. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF YOUR COMPANY, ORGANIZATION, EDUCATIONAL INSTITUTION, OR AGENCY, INSTRUMENTALITY, OR DEPARTMENT OF THE FEDERAL GOVERNMENT AS ITS AUTHORIZED LEGAL REPRESENTATIVE, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND LICENSEE TO THESE TERMS. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, PLEASE RETURN YOUR MATROX PRODUCT. IF THE SOFTWARE WAS DOWNLOADED, DESTROY ALL COPIES OF THE SOFTWARE. In this License “Software” refers to: any firmware, software, associated software components, media, printed materials, and “online” or electronic documentation related to Matrox products. The Software is not sold, and instead is only licensed for use, strictly in accordance with this document. This License does not cover the sale of hardware, since it may not necessarily be sold as a package with the Software. This License sets forth the terms and conditions of the Software license only. Any Software provided to Licensee is the copyrighted work of Matrox and/or third party software suppliers (if any). The present License does not give Licensee any intellectual property rights to the Software or its derivatives. The downloading and/or the use of any Software are subject to the following restrictions and limitations: LICENSES: If you are an end user, the “End User License” shall apply to you. If you are an original equipment manufacturer (OEM), the “OEM License” shall apply to you. END USER LICENSE 1. Licensee may install the Software on an unlimited number of computers owned or leased by Licensee in any location. The Software is subject to a restricted license therefore Licensee must use the Software on a single computer owned or leased by Licensee at a time, in conjunction with and for the purpose of, operating the Matrox hardware product. Use of the Software in conjunction with non-Matrox products is prohibited and not licensed hereunder. Licensee shall also have the right to make one copy of the Software in any computer-readable or printed form for back-up or archival purposes; 2. No right to recopy, publish, display, network, rent, loan, lend, assign, sell, distribute, license, sub-license, alter, modify, disassemble, de-compile, create derivative works or reverse engineer any Software in any manner whatsoever is hereby given, except as provided in this License. Violation may result in severe civil and/or criminal penalties, as violators will be prosecuted to the maximum extent possible; 3. Licensee agrees to treat the Software as confidential information, and shall protect said information by using the same degree of care Licensee uses to protect Licensee’s own confidential information, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination, disclosure or publication of such, or to use this Software to: (i) develop inventions directly derived from confidential information to seek patent protection; (ii) assist in the analysis of Licensee’s patents and patent applications; or (iii) modify Licensee’s existing patents or patent applications; 4. Licensee may only provide and disclose parts of the Software to third parties who have a need-to-know for the purpose of installation, service integration and/or support of said Software within Licensee’s product. In such event, Licensee may only disclose the relevant and necessary parts ofthe Software to permit the third party to accomplish his work provided that all such disclosures shall be subject to the terms and conditions of this License; 5. Licensee may not grant any sublicense, lease or other right in the Software to others; 6. Notwithstanding any other provision in this License, if Licensee provides any ideas, suggestions or recommendations to Matrox regarding the Licensed Software and/or Licensee’s product (“Feedback”), Matrox is free to use and incorporate such Feedback in Matrox’s products, without payment of royalties or other consideration to Licensee; 7. Licensee shall not have the right to alter or remove any Matrox or third party copyright, trademark or patent notices in the Software. OEM LICENSE Licensee may reproduce and distribute the Software only as an integral part of or incorporated in Licensee’s product or as a standalone Software maintenance update for existing end users of Licensee’s products, excluding any other standalone products, subject to these conditions: 1/4 �EULA.fm Page 2 Monday, May 30, 2016 2:59 PM 1. This Software is subject to a restrictive license therefore it is licensed for use only in conjunction with the Matrox hardware product. Use of the Software in conjunction with non-Matrox products is prohibited and not licensed hereunder; 2. No right to recopy, publish, display, sell, network, rent, loan, lend, distribute, license, sublicense, alter, modify, disassemble, decompile, create derivative works or reverse engineer any Software in any manner whatsoever is hereby given, except as provided in this License. Violation may result in severe civil and/or criminal penalties, as violators will be prosecuted to the maximum extent possible; 3. Licensee agrees to treat the Software as confidential information, and shall protect said information by using the same degree of care Licensee uses to protect Licensee’s own confidential information, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination, disclosure or publication of such, or to use this Software to: (i) develop inventions directly derived from confidential information to seek patent protection; (ii) assist in the analysis of Licensee’s patents and patent applications; or (iii) modify Licensee’s existing patents or patent applications; 4. Licensee may only distribute the Software to Licensee’s customers pursuant to a written license agreement. At a minimum such license shall safeguard Matrox’s ownership rights to the Software and such agreement shall contain similar terms and obligations; 5. Licensee may only provide and disclose parts of the Software to third parties who have a need-to-know for the purpose of installation, service integration and/or support of said Software within Licensee’s product. In such event, Licensee may only disclose the relevant and necessary parts of the Software to permit the third party to accomplish his work provided that all such disclosures shall be subject to the terms and conditions of this License; 6. Notwithstanding any other provision in this License, if Licensee provides any ideas, suggestions or recommendations to Matrox regarding the Licensed Software and/or Licensee’s product (“Feedback”), Matrox is free to use and incorporate such Feedback in Matrox’s products, without payment of royalties or other consideration to Licensee; 7. Licensee shall not have the right to alter or remove any Matrox or third party copyright, trademark or patent notices in the Software. GENERAL LICENSE TERMS: (APPLICABLE TO BOTH END-USERS & OEMs) There are inherent dangers in the use of any software available for downloading on the Internet and Matrox cautions Licensee to ensure that Licensee completely understands the potential risks before downloading any of the Software. Licensee is solely responsible for adequate protection and backup of the data and equipment used in connection with any of the Software, and Matrox will not be liable for any damages that may be suffered in connection with use of the Software. Licensee hereby acknowledges and agrees that this License, and all its terms and conditions, automatically applies, without other notice, to future updates of the Software, firmware, BIOS, drivers and associated utilities. In addition, certain third party intellectual property may be provided with or included in the Software. Matrox does not warrant and is not liable for such third party intellectual property. Licensee acknowledges and agrees to comply with the terms of all applicable third party software licenses if any. PRE-RELEASE LICENSE EXCLUSION: If you are using a version of the licensed Software that is designated as an alpha, beta, engineering sample, preliminary or early access version of the Software, then; (a) the Software is deemed to be pre-release code (e.g. alpha or beta, engineering sample, preliminary, early access, etc.), which may not be fully functional and which Matrox may substantially modify in development of a commercial version, and for which Matrox makes no assurances that it will ever develop or make generally available in a commercial version, and (b) Licensee shall have the right to use the Software only for the duration of the pre-release term or until the commercial release, if any, of the Software, whichever is shorter. For clarity, a remedy to any bug, defect, error or fault in any pre-release version of the Software will absolutely require upgrading to a new version of the Software. Matrox reserves the right to change any content of this new version of the Software at its sole discretion. COPYRIGHT All title, including but not limited to copyrights, in and to the Software and any copies thereof are owned by Matrox or its suppliers. All title and intellectual property rights in and to the content which may be accessed through use of the Software is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This License grants you no rights to use such content. All rights not expressly granted are reserved by Matrox. DISCLAIMER OF WARRANTIES LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE SOFTWARE IS AT LICENSEE’S SOLE RISK. THE SOFTWARE IS PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND AND MATROX EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF ITS SOFTWARE AND ANY THIRD PARTY INTELLECTUAL PROPERTY. MATROX DOES NOT WARRANT THAT THE CONTENTS OF THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. THE ENTIRE RISK ASSOCIATED WITH THE USE OF THE SOFTWARE IS ASSUMED BY LICENSEE. FURTHERMORE, MATROX DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE, OF THE SOFTWARE OR ANY THIRD PARTY INTELLECTUAL PROPERTY IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR 2/4 �EULA.fm Page 3 Monday, May 30, 2016 2:59 PM OTHERWISE. SHOULD THE CONTENTS OF THE SOFTWARE PROVE DEFECTIVE, LICENSEE ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO LICENSEE. LICENSEE ACKNOWLEDGES AND AGREES THAT LICENSEE IS SOLELY RESPONSIBLE FOR DETERMINING WHETHER ANY THIRD PARTY PATENT OR COPYRIGHT LICENSES, INCLUDING BUT NOT LIMITED TO VARIOUS AUDIO AND VISUAL STANDARDS, ARE NECESSARY TO USE, IMPLEMENT OR DISTRIBUTE THIS PRODUCT, WHICH INCLUDES ANY OR ALL SOFTWARE OR HARDWARE. LICENSEE IS RESPONSIBLE TO ADVISE LICENSEE’S CUSTOMERS OF THE LIMITATIONS PROVIDED HEREIN. LIMITATION OF LIABILITY UNDER NO CIRCUMSTANCES SHALL MATROX, ITS SISTER COMPANIES, ITS SUBSIDIARIES BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SOFTWARE. THIS LIMITATION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF MATROX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, MATROX’S LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE MINIMUM REQUIRED BY LAW. UNAUTHORIZED USE. THIS SOFTWARE RELATED THERETO ARE NOT DESIGNED, INTENDED, AUTHORIZED OR WARRANTED TO BE SUITABLE FOR USE OR RESALE IN ANY TYPE OF SYSTEM OR OTHER APPLICATIONS RELATED TO, HAZARDOUS OR POTENTIALLY HAZARDOUS ENVIRONMENTS OR APPLICATIONS REQUIRING HIGHAVAILABILITY OR FAIL-SAFE PERFORMANCE, WHERE PERSONAL INJURY OR DEATH MAY OCCUR, SUCH AS MEDICAL SYSTEMS, LIFE SUSTAINING, LIFE SAVING SYSTEMS, OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, PUBLIC WORKS, WEAPONS SYSTEMS, OR ANY OTHER APPLICATION IN WHICH THE FAILURE OF A PRODUCT COULD LEAD TO PROPERTY DAMAGE, ENVIRONMENTAL DAMAGE, OR PERSONAL INJURY. LICENSEE WILL NOT USE, OR PERMIT TO BE USED, THE PRODUCTS FOR SUCH HIGH-AVAILABILITY, FAIL-SAFE OR CRITICAL APPLICATIONS AND FURTHER, LICENSEE AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS MATROX AND ITS MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AFFILIATES, SUCCESSORS, ASSIGNS AND ITS 3RD PARTY SUPPLIERS FROM AND AGAINST ANY ACTION, SUIT, PROCEEDING, COST, EXPENSE, DAMAGES, AND LIABILITY (INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS’ FEES) ARISING OUT OF , OR RELATED TO, THE BREACH OF LICENSEE’S OBLIGATIONS RELATED HERETO, EVEN IF SUCH CLAIM ALLEGES THAT MATROX WAS NEGLIGENT REGARDING THE DESIGN OR MANUFACTURE OF THE SOFTWARE. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITIES FOR THIRD PARTY SOFTWARE INCLUDED WITH OR IN THE SOFTWARE. ALL THIRD PARTY SOFTWARE INCLUDED WITH THE SOFTWARE IS PROVIDED ON AN “AS IS” BASIS. MATROX AND ITS 3RD PARTY SUPPLIERS MAKE NO WARRANTY TO LICENSEE, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, REGARDING ANY THIRD PARTY SOFTWARE, OR ITS USE AND OPERATION ALONE OR IN COMBINATION WITH LICENSEE PRODUCTS. NEITHER LICENSEE, NOR ITS EMPLOYEES, AGENTS, OR DISTRIBUTORS HAVE ANY RIGHT TO MAKE ANY OTHER REPRESENTATION, WARRANTY OR PROMISE WITH RESPECT TO ALL THIRD PARTY SOFTWARE INCLUDED WITH THE SOFTWARE. MATROX HAS NO OBLIGATION TO INDEMNIFY, DEFEND OR HOLD LICENSEE HARMLESS FROM AND AGAINST ANY CLAIM THAT ANY THIRD PARTY SOFTWARE INFRINGES ANY THIRD PARTY PATENT, COPYRIGHT, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHT. LICENSEE WILL PROMPTLY NOTIFY MATROX IN WRITING OF ANY SUCH CLAIM. MATROX HAS NO OBLIGATION TO INDEMNIFY, DEFEND OR HOLD LICENSEE HARMLESS FROM AND AGAINST ANY CLAIMS OF INFRINGEMENT OF INTELLECTUAL PROPERTY THAT READS UPON OR IS INFRINGED BY A GENERALLY RECOGNIZED AUDIO, VIDEO, TECHNOLOGY OR PATENT STANDARD OR RECOMMENDATIONS, INCLUDING WITHOUT LIMITATION AVC/H.264, IEEE 1394, JPEG, JPEG2000 AND MPEG-4. TERMINATION This License will automatically terminate if Licensee fails to comply with any of the terms and conditions hereof. In such event, Licensee must destroy all copies of the Software and all of its component parts. Matrox reserves the right to terminate this License without prejudice to any additional recourses Matrox may have against Licensee if Licensee violates any of this License’s terms and conditions. Matrox will not, by reason of the termination of this License, be liable for compensation, reimbursement or damages on account of the loss of prospective profits on anticipated sales, or on account of expenditures, investments, leases, or commitments in connection with the Licensee’s business or goodwill or otherwise. If Licensee commences or participates in any legal proceeding against Matrox then Matrox may, in its sole discretion, suspend or terminate all license grants and any other rights provided under this License during the pendency of such legal proceedings. 3/4 �EULA.fm Page 4 Monday, May 30, 2016 2:59 PM MISCELLANEOUS If any provision of this License is inconsistent with, or cannot be fully enforced under, the law, such provision will be construed as limited to the extent necessary to be consistent with and fully enforceable under the law. This License is the final, complete and exclusive agreement between the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous understandings and agreements relating to such subject matter, whether oral or written. This License may only be modified in writing signed by an authorized officer of Matrox. Licensee agrees that it will not ship, transfer or export the Software into any country, or use the Software in any manner, prohibited by the United States Bureau of Industry and Security and shall fully comply with all United States relevant export laws, restrictions or regulations and any other applicable export and import laws. Controlling Law. The validity, performance and construction hereof shall be governed by and interpreted in accordance with the laws of the Province of Quebec. Both parties hereby irrevocably submit to the exclusive jurisdiction of the Courts of the district of Montreal, Province of Quebec, Canada with regard to any dispute arising out of or in connection with this License. Additional information may be available on the Matrox website. If used, this site may contain other proprietary notices and copyright information, the terms of which must also be observed and followed. The failure of Matrox to enforce at any time any of the provisions of this License, or the failure to require at any time performance by the Licensee of any of the provisions of this License, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the right of Matrox to enforce each and every such provision thereafter. Any and all articles and/or sections which by their nature are required to survive termination of this License shall survive. IF YOU HAVE READ, UNDERSTOOD, AND AGREE TO ALL OF THE ABOVE TERMS AND CONDITIONS, YOU MAY USE THIS SOFTWARE. IF YOU DO NOT AGREE WITH ALL OF THE ABOVE TERMS AND CONDITIONS, THEN DO NOT ENABLE OR USE THE SOFTWARE. ANY INTERPRETATION OF THE CONTENTS, RIGHTS AND OBLIGATIONS OF THE CONTENTS OF THIS NOTICE AND/OR MATROX WEB SITE SHALL BE INTERPRETED IN ACCORDANCE WITH THE LAWS OF QUEBEC. All rights reserved by Matrox. Matrox reserves the right to change Software specification without notice. All intellectual property, including without limitation, trademarks and copyrights are the property of their respective owners and any unauthorized use thereof is strictly prohibited. COPYRIGHT © 2016 Matrox is a trademark of Matrox Electronic Systems Ltd. 4/4 �
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END USER LICENSE AGREEMENT This End User License Agreement (this “EULA”) is a legal contract between Customer’s Business name (“you”) as either an individual or a single business entity, and Gemalto Pte Ltd and its affiliates (collectively, “Gemalto”). READ THE TERMS AND CONDITIONS OF THIS EULA CAREFULLY BEFORE DOWNLOADING GEMALTO’S PROPRIETARY SOFTWARE (the “Software”) OR OBTAINING A LICENSE KEY TO THE SOFTWARE OR USING THE SOFTWARE AND THE HARDWARE (the “Hardware”) THAT IT RUNS ON. THE SOFTWARE IS COPYRIGHTED AND IT IS LICENSED TO YOU UNDER THIS EULA, NOT SOLD TO YOU. BY DOWNLOADING THE SOFTWARE, OBTAINING A LICENSE KEY TO THE SOFTWARE AND/OR USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS EULA, THAT YOU UNDERSTAND IT, AND THAT YOU ACCEPT AND AGREE TO BE BOUND BY ITS TERMS. IF YOU ARE NOT WILLING TO BE BOUND BY THE TERMS OF THIS EULA, YOU SHOULD REFRAIN FROM ACCESSING OR USING THE SOFTWARE. THIS EULA REPRESENTS THE ENTIRE AGREEMENT BETWEEN YOU AND GEMALTO CONCERNING THE SOFTWARE, AND THIS EULA SUPERSEDES AND REPLACES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING YOU MAY HAVE HAD WITH GEMALTO RELATING TO THE SOFTWARE. 1. LICENSE 1.1. Grant of License. Gemalto hereby grants to you, and you accept for use by you, your affiliates and your third party service providers (including consultants and contractors), a limited, nonexclusive license to use the Software in machine-readable, object code form only, and the user manuals accompanying the Software (the “Documentation”), only as authorized in this EULA. For purposes of this EULA, the “Software” includes any updates, enhancements, modifications, revisions, or additions to the Software made by Gemalto and made available to end-users through Gemalto’s web site. Notwithstanding the foregoing, Gemalto shall be under no obligation to provide any updates, enhancements, modifications, revisions, or additions to the Software. 1.2. Scope of Use. You, your affiliates and your third party service providers (including consultants and contractors) may use the Software activated by a license key/file in accordance with the number of servers and user licenses identified in the applicable Schedule between you and Gemalto or the authorized Gemalto reseller. For purposes of this EULA, “use” of the software means loading the Software into the temporary or permanent memory of a computer. Installation of the Software on a network server solely for distribution to other computers is not “use” of the Software, and is permitted, as long as you have a license key/file for each server (virtual or physical) to which the Software is distributed. The Software may not be used on or distributed to a greater number of computers than you have license keys. If you use or distribute the Software to multiple �users, you must ensure that the number of users does not exceed the number of license keys you have obtained, or you will be in breach of this EULA. 1.3. Copies and Modifications. You may not reverse engineer, decompile, disassemble, or otherwise translate the Software or any license keys you have obtained. You may not modify or adapt the Software or any license keys that you have obtained in any way. You may make one copy of the Software, the Documentation, and any license keys that you have obtained, solely for backup or archival purposes. Any such copies of the Software, Documentation, or license keys shall include any copyright or other proprietary notices that were included on such materials when you first received them. Except as authorized in this Section, no copies of the Software, Documentation, or license keys, or any portions thereof, may be made by you or any person under your authority or control. 1.4. Assignment of Rights. You will not sublicense, lease, rent, or lend your rights in the Software, Documentation, or license keys, as granted by this EULA, with any third party without prior written consent of Gemalto. For clarification, this provision is not intended to, nor does it, restrict any use of the Software by your affiliates and third party service providers for the applicable Schedule and purpose set forth in Section 1.2. 2. WARRANTY AND DISCLAIMERS 2.1. Limited Hardware Warranty. Gemalto warrants to you for a period of one (1) year commencing from the date of original shipment by Gemalto, the Hardware portion of the product(s) purchased from Gemalto or its authorized resellers (and fully paid for) shall be materially free of defects in material and workmanship under normal use and will materially conform to Gemalto’s published specifications applicable to the product release purchased. This warranty applies to you only as the purchaser and end user of the Product. In the event the Hardware fails to comply with the foregoing warranty during the applicable warranty period, (a “Defect”), Gemalto, at its sole discretion, shall repair or replace the Hardware that is determined to be defective and provide a workaround for the non-conforming Hardware. The Hardware may include some used, refurbished or remanufactured components which are warranted the equivalent of new. 2.2. Limited Software Warranty. Gemalto warrants to you for a period of one (1) year commencing from the date of original shipment by Gemalto, the software portion of products purchased from Gemalto or its authorized resellers (and fully paid for) will perform substantially in accordance with the Gemalto’s published specifications applicable to the software portion of Product. This limited warranty extends only to you as the licensee. Gemalto does not warrant or guarantee that the Software is free from errors or “bugs” or that you will be able to operate the Software without interruption or problems or that the functions in the Software will operate in all combinations of hardware or software which may be selected by you or will meet your requirements. 2.3. DISCLAIMERS. THE FOREGOING WARRANTIES DO NOT APPLY IF THE PRODUCT (i) HAS NOT BEEN INSTALLED, OPERATED, REPAIRED, OR MAINTAINED IN ACCORDANCE WITH GEMALTO’S REASONABLE �INSTRUCTIONS, (ii) HAS BEEN MISHANDLED, MISTREATED, USED OR MAINTAINED OR STORED OTHER THAN IN CONFORMITY WITH GEMALTO’S APPLICABLE PRODUCT SPECIFICATIONS, (iii) HAS BEEN SUBJECTED TO ABNORMAL PHYSICAL OR ELECTRICAL STRESS, ENVIRONMENT, NEGLIGENCE, ACT OF GOD, OR ACCIDENT. ANY PRODUCT SOLD OR, IN THE CASE OF SOFTWARE, LICENSED, FOR BETA, EVALUATION, TESTING, OR DEMOSTRATION PURPOSES FOR WHICH GEMALTO DOES NOT RECEIVE A PAYMENT OF PURCHASE PRICE OR LICENSE FEE IS PROVIDED “AS IS” WITH NO WARRANTY AND SHALL ONLY BE USED FOR TESTING OR EVALUATION, AS AUTHORIZED BY GEMALTO, AND NOT USED FOR PRODUCTION ENVIRONMENTS OR USE. THE WARRANTIES AND DISCLAIMERS ABOVE CONSTITUTE GEMALTO AND ITS AUTHORIZED RESELLERS, SUPPLIERS AND LICENSORS SOLE AND EXCLUSIVE LIABILITY HEREUNDER AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR DEFECTIVE OR NONCONFORMING ITEMS AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED, IMPLIED OR STATUTORY INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, PERFORMANCE, OR NON-INFRINGEMENT. IN NO EVENT SHALL GEMALTO’S LIABILITY UNDER THIS WARRANTY EXCEED THE COST OF REPAIR OR REPLACEMENT OF SUCH DEFECTIVE ITEM. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE. 3. INTELLECT PROPERTY & CONFIDENTIALITY 3.1. Use Reporting, License Violations and Remedies. Gemalto reserves the right to gather data on key usage including license key numbers, server IP addresses, domain counts and other information deemed relevant, to ensure that our products are being used in accordance with the terms of this End-User License EULA. Gemalto expressly prohibits simultaneous, multiple installations of our licensed products and domain count overrides without prior written approval. Any unauthorized use shall be considered by Gemalto to be a violation of the EULA. Gemalto reserves the right to remedy violations immediately upon discovery, by charging the then current list price of unauthorized keys to the credit card used to make the original, authorized purchase, or by any other means necessary. You agree not to block, electronically or otherwise, the transmission of data required for compliance with this EULA. Any blocking of data required for compliance under this EULA is considered to be violation of this EULA and will result in immediate termination of this EULA pursuant to Section 4. 3.2. License Automatic Update and Expiration. Your license may include an expiration date that can result in the termination of the license. For permanent (non-lease) license keys, the license updates automatically except if Gemalto determines that a license is used in violation of the terms of this EULA. If your license key is stolen, or if you suspect any improper or illegal usage of your license outside of your control you should promptly notify Gemalto of such occurrence. A replacement license will be issued to you �and the suspect license will be allowed to expire or superseded. For lease licenses, your monthly payment for each month must be processed prior to the expiration date in order for the license updates to be performed. It is your responsibility to contact Gemalto regarding any potential expiration that you deem inappropriate. Gemalto is not liable for any damages or costs incurred in connection with the expiring or expired licenses. 3.3. Proprietary Rights to Software and Trademarks. You acknowledge that the Software and the Documentation are proprietary to Gemalto, and the Software and Documentation are protected under standard copyright law and international treaties. You further acknowledge and agree that, as between you and Gemalto, Gemalto owns and shall continue to own all right, title, and interest in and to the Software and Documentation, including associated intellectual property rights under copyright, trade secret, patent, or trademark laws. This EULA does not grant you any ownership interest in or to the Software or the Documentation, but only a limited right of use that is revocable in accordance with the terms of this EULA. Any and all trademarks or service marks that Gemalto uses in connection with the Software or with services rendered by Gemalto are marks owned by Gemalto. This EULA does not grant you any right, license, or interest in such marks, and you shall not assert any right, license, or interest in such marks or any words or designs that are confusingly similar to such marks. 3.4. Confidentiality. You shall permit only authorized users, who possess rightfully, obtained license keys, to use the Software or to view the Documentation. Except as expressly authorized by this EULA, you shall not make available the Software, Documentation, or any license key to any third party. You will use your best efforts to cooperate with and assist Gemalto in identifying and preventing any unauthorized use, copying, or disclosure of the Software, Documentation, or any portion thereof. 4. LICENSE FEES The Software will be available to you for use upon your receipt of one or more license keys. Upon acceptance of this EULA, you may obtain one or more license keys. The license fees paid by you or an authorized reseller are paid in consideration of the license granted under this EULA. Except as otherwise set forth herein, Gemalto does not refund license fees. 5. TERM & TERMINATION This EULA is effective upon your acceptance of the EULA, or upon your downloading, accessing, and using the Software, even if you have not expressly accepted this EULA. This EULA shall continue in effect until terminated. Without prejudice to any other rights, this EULA will terminate automatically if you fail to comply with any of the limitations or other requirements described herein. If you are leasing the Software, and fail to pay the applicable license fees, Gemalto shall have the right to shut down your server. Gemalto may terminate this License EULA if you breach any term of the EULA by giving you written notice of your breach and Gemalto’s decision to terminate the EULA. Upon termination of the EULA by Gemalto, you agree to either return to Gemalto �the Software, Documentation, all copies thereof, and all license keys that you have obtained, or to destroy all such materials and provide written verification of such destruction to Gemalto. 6. REMEDIES & INDEMNIFICATION 6.1. If you learn of any actual or threatened infringement or piracy of the Software, or if any infringement or piracy claim is made against you by a party other than Gemalto in connection with your use of the Software, you shall notify Gemalto in writing of the infringement, piracy or claim as soon as is reasonably possible. Gemalto shall in its sole discretion determine what action if any to take with respect to the foregoing and shall assume the defense or and bear the expenses of any such action (except to the extent, if any, to which such dispute or costs arise from your negligence, willful misconduct or modification of the Software). In the event that the use of the Software in accordance with the provisions of this EULA is declared by a court of competent jurisdiction to infringe the rights of any third party, as your sole remedy, Gemalto at its option shall (i) procure for you the right to use the Software, or (ii) modify the Software to render it noninfringing. 6.2. You will, at your own expense, indemnify and hold Gemalto, and its subsidiaries and affiliates, and all officers, directors, and employees thereof, harmless from and against any and all claims, actions, liabilities, losses, damages, judgments, grants, costs, and expenses, including reasonable attorneys’ fees (collectively, “Claims”), arising out of any use of the Software by you, any party related to you, or any party acting upon your authorization in a manner that is not expressly authorized by this EULA. 6.3. Gemalto will have no obligation to indemnify you for claims that the Product infringe the intellect property rights of a third party to the extent such claims arise as a result of (1) your combination of the Product with other products or services not reasonably foreseeable by Gemalto where the Product would not have been infringing without such combined use, (2) Gemalto’s implementation of your originated design where the Product would not have been infringing without such implementation of your originated design, (3) your modification of the Product where the Product would not have been infringing without such modification. 7. LIMITATION OF LIABILITY GEMALTO’S CUMULATIVE LIABILITY TO YOU OR ANY PARTY RELATED TO YOU FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS EULA, INCLUDING WITHOUT LIMITATION GEMALTO’S INTELLECTUAL PROPERTY INDEMNIFICATION OBLIGATIONS, SHALL BE LIMITED TO THE AMOUNT OF FEES PAID TO GEMALTO BY YOU UNDER THE RELEVANT AGREEMENT. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, �MISREPRESENTATION, AND OTHER TORTS. IN NO EVENT SHALL GEMALTO BE LIABLE TO YOU OR ANY PARTY RELATED TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OR LOST PROFITS, EVEN IF GEMALTO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 8. GENERAL TERMS 8.1. Governing Law and Choice of Forum. This EULA shall be governed by and interpreted in accordance with the laws of the Republic of Singapore, without regard to the conflicts of law rules thereof. Any claim or dispute arising in connection with this EULA shall be resolved in the federal or state courts situated within Singapore. To the maximum extent permitted by law, you hereby consent to the jurisdiction and venue of such courts and waive any objections to the jurisdiction or venue of such courts. 8.2. Severability. If any term or provision of this EULA is declared void or unenforceable in a particular situation, by any judicial or administrative authority, this declaration shall not affect the validity of enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation. 8.3. Survival. Articles 2, 5, 6, 7, and 8 of this EULA and all Sections thereof, shall survive the termination of this EULA, regardless of the cause for termination, and shall remain valid and binding indefinitely. 8.4. Headings. The Article and Section headings contained in this EULA are incorporated for reference purposes only and shall not affect the meaning or interpretation of this EULA. 8.5. No Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. 8.6. Amendment. Gemalto reserves the right, in its sole discretion, to amend this EULA from time to time. If you do not accept amendments made to this EULA, then this license will be immediately terminated pursuant to Section 4. 8.7. Taxes. You shall, in addition to the license fees required under this EULA, pay all applicable sales, use, transfer, or other taxes and all duties, however designated, that are levied or imposed by reason of the transaction contemplated under this EULA, excluding income taxes on the net profits of Gemalto. You shall reimburse Gemalto for the amount of any such taxes or duties paid or incurred directly by Gemalto as a result of this transaction. �
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eBreviary End User License Agreement This is a contract between you and eBreviary for use of the eBreviary Liturgy of the Hours PDF documents (“PDF Documents”). We are eBreviary, located at PO Box 1407, New York, New York, 10009, USA. The PDF documents are made available to you subject to your acceptance of the following terms and conditions. You accept and agree to be bound by this License Agreement by signing our subscription form or by clicking the web page icon labeled “I accept.” If you do not agree to this License Agreement, you should not sign our subscription form or you should click the web page icon labeled “I do not accept.” BY DOWNLOADING AND USING ALL OR ANY PORTION OF THE PDF DOCUMENTS YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING, IN PARTICULAR THE LIMITATIONS ON USE, WARRANTY, AND LIABILITY SET FORTH BELOW. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE AGREEMENT, DO NOT USE THE PDF DOCUMENTS. eBreviary and the licensors of its copyrighted texts own all intellectual property in the PDF Documents. The PDF Documents are licensed, not sold. eBreviary permits you to download, use, distribute, or otherwise benefit from the PDF Documents only in accordance with the terms of this agreement. Permitted Uses Provided that you obtained the PDF Documents from eBreviary and provided that you comply with the terms of this agreement, eBreviary grants you a non-exclusive, non-transferable right to view, print and photocopy the PDF Documents. You may not use the PDF Documents in violation of copyright restrictions. You may not extract the text from the PDF Documents. All the text of the PDF Documents is subject to copyright restrictions. You may not distribute the PDF Documents, or post the PDF Documents online. You may not maintain and you must destroy the PDF Documents, files, printouts and photocopies, after the calendar date printed on each PDF Document. You may not cache the website other than in normal internet usage and you may not use any of the files or their derivatives for commercial purposes. You may not transfer any of your rights under this agreement. No Warranty EBREVIARY PROVIDES THE PDF DOCUMENTS “AS IS” AND “WITH ALL FAULTS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, EBREVIARY MAKES NO WARRANTY THAT THE PDF DOCUMENTS WILL MEET YOUR REQUIREMENTS, THAT THE PDF DOCUMENTS WILL BE FREE OF MISTAKES, INACCURACIES OR TYPOGRAPHICAL ERRORS, THAT THE QUALITY OF THE PDF DOCUMENTS WILL MEET YOUR EXPECTATIONS, AND THAT ANY ERRORS OR ANY DEFECTS IN THE PDF DOCUMENTS WILL BE CORRECTED. March 2008 Page 1 of 2 �USE OF THE PDF DOCUMENTS IS MADE AT YOUR OWN DISCRETION AND RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, LOSS OF DATA, OR OTHER HARM THAT RESULTS FROM SUCH ACTIVITIES. EBREVIARY ASSUMES NO LIABILITY FOR ANY COMPUTER VIRUS OR OTHER SIMILAR SOFTWARE CODE THAT IS DOWNLOADED TO YOUR COMPUTER IN CONNECTION WITH THE PDF DOCUMENTS. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. Limitation of Liability IN NO EVENT, INCLUDING WITHOUT LIMITATION, NEGLIGENCE, WILL EBREVIARY BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATIONS, SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR THOSE RESULTING FROM LOSS OF USE OR DATA, WHETHER OR NOT EBREVIARY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR THE INABILITY TO USE THE PDF DOCUMENTS. IF YOU ARE DISSATISFIED WITH THE PDF DOCUMENTS, YOU DO NOT AGREE WITH ANY PART OF THIS CONTRACT, OR YOU HAVE ANY OTHER DISPUTE OR CLAIM WITH OR AGAINST EBREVIARY WITH RESPECT TO THIS AGREEMENT OR THE PDF DOCUMENTS, THEN YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE PDF DOCUMENTS AND TO RECEIVE A PRO-RATA REFUND OF THE UNUSED PORTION OF YOUR SUBSCRIPTION FEE. SOME STATES OR JURISDICTIONS PROHIBIT THE EXCLUSION OF LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE LIMITATIONS AND EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. Termination If you breach any provision of the eBreviary End-User License Agreement, your authorization to use the PDF Documents automatically terminates, and any Acrobat PDF documents downloaded or printed from the eBreviary site, including any copies, must be immediately destroyed. Miscellaneous eBreviary reserves the right to change this End-User License Agreement without notice to you. You are responsible for reviewing the End-User License Agreement each time you access the PDF Documents. Your continued use of the PDF Documents constitutes your agreement to the then current End-User License Agreement. This written End-User License Agreement is the exclusive agreement between you and us concerning the PDF Documents and supersedes any prior purchase order, communication, advertising or representation concerning the PDF Documents. This End-User License Agreement is governed by the laws of the State of New York. March 2008 Page 2 of 2 �
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Hanna‐Barbera & Turner Sound Effects End User License Agreement TERMS AND CONDITIONS Your use of any Hanna‐Barbera or Turner royalty free product acknowledges your acceptance of the following terms, conditions and limitations of use. In the event of a breach of this License Agreement, action may be taken against you directly by the owner of the copyright. Hanna‐Barbera or Turner royalty free products are sold to you with a lifetime non‐transferable license for synchronization rights only. RIGHTS GRANTED You have the right to synchronize the audio content from any Hanna‐Barbera or Turner royalty free product with audio and/or visual productions or applications such as • film & video productions • training and marketing presentations • corporate videos • radio presentations or commercials • television presentations or commercials (hereinafter referred to as "the Production"). You may create copies of the Production. If you sell, lease, give away or otherwise distribute copies of the Production, the rights and limitations to the synchronized audio content as outlined in this End User License Agreement are in effect for the life of the Production and pass automatically to the End User of the Production. All rights not expressly granted herein are reserved. LIMITATIONS Copyright infringement is a serious offence. You are not authorized to: • Make copies of any of the unsynchronized recordings contained within Hanna‐Barbera or Turner royalty free products, except as may be designated to a single stand alone workstation for the sole purpose of specific audio and / or visual synchronization at your own facility. You are only licensed to keep one copy of the audio content on one stand alone workstation at any given time. • Copy, duplicate, provide access to, sell, lease, loan or give away unsynchronized sounds from any Hanna‐ Barbera or Turner royalty free product by any means including the World Wide Web, streaming audio or any delivery method now known or which shall become known. • Transfer, re‐record, copy or duplicate any Hanna‐Barbera or Turner royalty free product, in whole or in part, for any purpose not authorized under this End User License Agreement. • Provide remote access to unsynchronized sounds from any Hanna‐Barbera or Turner royalty free product to any location remote from your licensed address. • Provide sounds from any Hanna‐Barbera or Turner royalty free product in whole or in part as mobile telecom audio content such as ring tones, soundscapes, multimedia messaging services (MMS), voice messaging, audio enhancements, greeting mail services, or other content applications now known or which shall become known. • Sell or otherwise dispose of computers, hard drives or discs or any other electronic storage media which contains Hanna‐Barbera or Turner proprietary sounds or music (Sounds) unless all the Sounds have been deleted. All Sounds maintained on any computers, hard drives, discs or any other electronic storage media must be deleted immediately upon any return of Hanna‐Barbera or Turner product to the vendor. • Change or alter in any way an original music composition owned or represented by Hanna‐Barbera or Turner (for example adding instruments or lyrics) without the prior written consent of the owner. LIABILITY Sound Ideas accepts no responsibility for any loss of business or business profits resulting directly or indirectly from the performance of any Hanna‐Barbera or Turner royalty free product. If Sound Ideas was the direct vendor, it’s liability is limited and restricted solely to replacement at no charge of the royalty free product in question. June 2013 Sound Ideas 105 West Beaver Creek Road, Suite 4, Richmond Hill, Ontario Canada L4B 1C6 Telephone: (905) 886 5000 Fax: (905) 886‐6800 Toll Free: US 1‐800‐387‐3030 Canada 1‐800‐665‐3000 Email: info@sound‐ideas.com http://www.sound‐ideas.com �
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Hauptwerk Virtual Pipe Organ End User License Agreement Software License Agreement Contents End-User License Agreement for Hauptwerk Software ................................................................................ 2 2. GRANT OF LICENSE................................................................................................................................ 2 3. OWNERSHIP / PROPRIETARY RIGHTS .................................................................................................... 4 4. PRICE AND PAYMENT ............................................................................................................................ 4 5. REPRESENTATIONS................................................................................................................................ 5 6. DISCLAIMER OF WARRANTIES............................................................................................................... 5 7. LIMITATION OF LIABILITY ...................................................................................................................... 5 8. INDEMNIFICATION ................................................................................................................................ 5 9. TERMINATION ....................................................................................................................................... 6 10. GENERAL ............................................................................................................................................. 6 11. SUPPORT ............................................................................................................................................. 7 12. EXPORT CONTROLS ............................................................................................................................. 7 13. HAUPTWERK FREE EDITION ................................................................................................................ 7 14. PUBLIC INSTALLATION LICENSE........................................................................................................... 8 15. OTHER ACKNOWLEDGEMENTS AND THIRD-PARTY LICENSES ............................................................ 8 1 �Hauptwerk Virtual Pipe Organ End User License Agreement End-User License Agreement for Hauptwerk Software IMPORTANT! READ CAREFULLY: This is a legal agreement. By using or installing the software, you are agreeing to be bound by the terms of this agreement. By choosing to accept this agreement, you and any entity with which you may be affiliated (collectively, "You" or "Your") are consenting to be bound by this agreement ("Agreement"). If You do not agree with all of the terms of this Agreement, do not accept the Agreement then do not install this software. If You have any questions, please contact Milan Digital Audio as detailed at http://www.hauptwerk.com/. 1. DEFINITIONS 1.1. "Milan Digital Audio" means Milan Digital Audio LLC, United States Federal employer identification number 47-2914328. Milan Digital Audio's website is www.hauptwerk.com. 1.2. "Software" means all software provided to You by Milan Digital Audio in executable format, and all associated files, including, without limitation, any Documentation and audio or other media files and, in any and all versions which Milan Digital Audio at its sole discretion elects to provide to You, unless such subsequent version(s) are governed by a different license agreement. 1.3. "Documentation" means the written or on-line instructions, help information, and other reference materials related to the Software, provided to You by Milan Digital Audio. 1.4. "Registered" Software means a copy of the Software for which You have paid all applicable fees and received a license file from Milan Digital Audio or from an authorized reseller or distributor of the Software. 1.5. "Unregistered" Software means a copy of the Software for which You have not paid all of the applicable fees. 2. GRANT OF LICENSE 2.1. Grant of license. Upon Your acceptance and subject to all of the terms and conditions of this Agreement, Milan Digital Audio hereby grants You a non-exclusive, non-transferable, perpetual license (unless terminated as provided herein) to: (a) save and use any number of copies of the Software on the hard disk(s) of any number of computers, within the country identified as Your country of residence when You obtained or registered the Software, but not more than one copy being used at any one time, and at most one individual at a time using any one copy; (b) make any number of copies of the Software for archival purposes; (c) use Unregistered Software only for evaluation purposes or in accordance with the terms of use of the Free Edition set forth in section 13; 2 �Hauptwerk Virtual Pipe Organ End User License Agreement (d) evaluate Unregistered Software only for a reasonable evaluation period. 2.2. Limitations On License. Except as expressly authorized above, You and/or any person(s) acting with or for You may not: (a) directly or indirectly sell, lease, rent, license, sub-license, redistribute, lend, give, transfer or otherwise distribute or use the Software without written consent from Milan Digital Audio; (b) modify, translate, or create derivative works from the Software, assign or otherwise transfer rights to the Software or use the Software for timesharing or service bureau purposes; (c) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Software or any subsequent version thereof or any part thereof; (d) attempt to modify any file or folder installed as part of the Software, except using functionality provided for the purpose within the Software, or when specifically advised to do so within the Documentation, or when specifically advised to do so by Milan Digital Audio. (In particular, we reserve the right not to provide support if you have attempted to edit any of Hauptwerk’s settings files directly, or to edit, move or rename any of Hauptwerk’s files or folders manually, unless we advised you to do so); (e) use any license file, dongle, or other registration information or software or hardware, that was not supplied to You by Milan Digital Audio or its resellers or distributors, and for which written consent for use was not given to you from Milan Digital Audio, for registration of the Software, or use any means whatsoever to attempt to enable the functionality of a Registered copy of the Software, other than by paying for and registering it with Milan Digital Audio or its resellers or distributors, and using the registered copy in accordance with this Agreement; (f) install and run the Software from a network server, or run the Software on more than one computer simultaneously, unless You acquire a license for each simultaneous user of the Software; (g) use any part of the Software or any media or other materials supplied with the Software for any purpose other than that for which it was supplied within the Software, without written consent from Milan Digital Audio, unless such use is allowed by a separate agreement. In particular, audio samples and other media supplied as part of the Software may not be used with any other program unless separately licensed; (h) install or use the Software within any country other the country identified as Your country of residence when You obtained or registered the Software, without first applying for a new license from Milan Digital Audio, which will replace any current license You may hold; (i) use Unregistered Software in evaluation mode for any purpose other than evaluation; (j) use Unregistered Software in Free Edition mode except as provided in the terms of use of the Free Edition set forth in section 13; 3 �Hauptwerk Virtual Pipe Organ End User License Agreement (k) evaluate Unregistered Software for an unreasonably-long evaluation period. 2.3. Source. Nothing in this Agreement grants You, and/or any person(s) acting with or for You any rights, license or interest with respect to the source code of the Software. 2.4. Software Updates. Nothing in this Agreement grants You, Your Distributors, and/or any person(s) acting with or for You the right to receive any upgrades, modifications or other enhancements to the Software at any time. 3. OWNERSHIP / PROPRIETARY RIGHTS 3.1. Ownership. Your rights in and to the Software are solely as set forth in the 'Grant of License' section, and do not include any rights of ownership. You agree that Milan Digital Audio owns all rights, title and interest (including, but not limited to, ideas, know-how, copyright, patent, trademarks, trade secret and other intellectual property rights) to the Software, including any and all modifications, enhancements, derivative works and other alterations by any person or entity. 3.2. Intellectual Property Rights. The Software, the structure, organization and code embodied in the Software are the valuable and confidential trade secrets of Milan Digital Audio and are protected by intellectual property laws and treaties. You agree to take all reasonable measures to protect Milan Digital Audio's intellectual property rights and to abide by all applicable laws. 3.3. Copyright Notices. You agree not to remove, alter, or destroy any proprietary, trademark or copyright markings or notices placed upon or contained within the Software or any related materials. 3.4. Modifications. Milan Digital Audio reserves the right to modify or discontinue the Software at any time without prior notice to or consent by You. 3.5. Trademarks. 'Hauptwerk', 'Hauptwerk Virtual Pipe Organ', 'Milan Digital Audio', the Milan Digital Audio logo and the Hauptwerk logo are all trademarks of Milan Digital Audio. 3.6. You will make all reasonable attempts to safeguard the Software from unauthorized reproduction or use by third parties. 3.7. You agree to take all reasonable steps to ensure that the terms and conditions of this Agreement are made known to anyone who uses the Software. You agree to ensure that all materials that could lead to the use of the Software in a manner that violates this Agreement will be erased or destroyed, when they are no longer needed. 4. PRICE AND PAYMENT 4.1 You agree to pay all Software fees as set forth by Milan Digital Audio, or its resellers or distributors as appropriate, as of the date You register the then-available version of the Software. Milan Digital Audio reserves the right to change its prices at any time or from time to time solely at its discretion. 4 �Hauptwerk Virtual Pipe Organ End User License Agreement 5. REPRESENTATIONS 5.1. You represent and warrant that: (a) You have the right to enter into this Agreement; (b) Your use of the Software will not violate any applicable local, state, national or international law. 6. DISCLAIMER OF WARRANTIES 6.1. The Software is provided as is and Milan Digital Audio makes no representations or warranties (written or oral). To the maximum extent permitted by applicable law, Milan Digital Audio disclaims all warranties and conditions, express or implied, as to any matter whatsoever and to any person or entity, including, but not limited to, all implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement of third party rights and those arising from a course of dealing or usage in trade. No warranty is made that any errors or defects in the Software will be corrected, or that the Software will meet Your requirements. 7. LIMITATION OF LIABILITY 7.1. Except as expressly stated above, in no event shall Milan Digital Audio or its resellers or distributors be liable for damages to or through You, or any other person or entity for breach of, arising under, or related to this agreement or the Software or service provided hereunder, under any theory including, but not limited to, direct, special, incidental, indirect, consequential, or similar damages (including without limitation, damages for loss of business profits, business interruption, loss of business information or data, or any other loss) whether foreseeable or not, regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise. 7.2. With respect to infringement or misappropriation, Your sole and exclusive remedy shall be as provided in Section 8.3 hereof. 7.3. In any case other than infringement or misappropriation, Milan Digital Audio's entire liability under any provision of this agreement shall be limited to the amount actually paid by You for the software. 8. INDEMNIFICATION 8.1. As an express condition to the use of the Software, You agree to indemnify and hold Milan Digital Audio and its resellers and distributors harmless from all claims by third parties rising out of Your use of or modifications to the Software. 8.2. Neither Milan Digital Audio nor its resellers nor distributors shall have any liability for any claim of infringement based on: (a) use of superseded or altered releases of the Software if such infringement would have been avoided by the use of a current unaltered release previously made available to You by Milan Digital Audio; 5 �Hauptwerk Virtual Pipe Organ End User License Agreement (b) the combination of operations or use of any Software furnished under this Agreement with software or other components not supplied by Milan Digital Audio if such infringement would have been avoided by the use of such Software without such other components; (c) use of the Software in breach of this Agreement, including but not limited to use of the Software in a country other than that declared as Your country of residence when You registered the Software. 8.3. In the event that the Software is held to violate the proprietary rights of third parties, or Milan Digital Audio reasonably believes such a holding is possible, Milan Digital Audio shall have the option, at its expense either to: (a) modify the Software to be non-infringing; (b) obtain for You a license to continue using the Software; (c) refund any license fee paid to Milan Digital Audio for the Software, at which point this agreement will terminate. 8.4. Section 8.3 states Milan Digital Audio's entire liability for infringement or other violations of proprietary rights. 9. TERMINATION 9.1. This Agreement (and any licenses granted herein to You) will terminate immediately if You provide any false information to Milan Digital Audio or if You fail to comply with the terms and conditions of this Agreement. You may terminate this Agreement at any time by notifying Milan Digital Audio. Upon the termination of this Agreement, You must delete all copies of the Software from Your computer and archives. 9.2. Survival of certain terms: The following Sections shall survive any expiration or termination: DEFINITIONS, OWNERSHIP/PROPRIETARY RIGHTS, LIMITATION OF LIABILITY, INDEMNIFICATION, GENERAL, EXPORT CONTROLS and any claims or causes of action then in existence, and any payment obligations hereunder. 10. GENERAL 10.1. This Agreement constitutes the entire understanding and agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, representations and understandings between the parties regarding the subject matter hereof. 10.2. Any term or provision of this Agreement may be amended, and the observance of any term of this Agreement may be waived, only by a writing signed by the party to be bound. 10.3. If any provision of this Agreement is found to be invalid or unenforceable, such provision shall be severed from the Agreement and the remainder of this Agreement shall be interpreted so as best to effect reasonably the intent of the parties hereto. 6 �Hauptwerk Virtual Pipe Organ End User License Agreement 10.4. All headings herein are not to be considered in the construction or interpretation of any provision of this Agreement. 10.5. Milan Digital Audio and You are independent contractors. Failure of either Milan Digital Audio or You to insist on performance of any term or condition of this Agreement or to exercise any right or privilege there under shall not be construed as a continuing or future waiver of such term, condition, right or privilege. 10.6. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Indiana, United States of America. 10.7. All notices hereunder shall be in writing and shall be deemed given on the fifth business day after being sent by certified or registered mail or on the date of delivery if sent by other means. 11. SUPPORT 11.1. Support services are usually provided at no additional cost via e-mail for Registered users of the Software for a period of one year after purchase, or until the next major version of the Software is released, whichever is the longer period (*). Milan Digital Audio will make its best efforts to answer reasonable support requests promptly but does not guarantee that such requests will be serviced within a particular time frame, or that any given request will be answered. (*) The Free Edition of Hauptwerk does not include support. You must purchase a license if you require official support. 12. EXPORT CONTROLS 12.1. You may not export or re-export the Software or any underlying information or technology. 13. HAUPTWERK FREE EDITION 13.1. The Hauptwerk Free Edition may be used for non-commercial, home personal use only. (In particular, you may not use the Free Edition for public performances or for any type of public installation, whether permanent or temporary.) 13.2. The Hauptwerk Free Edition comes with no support. You must buy a Registered copy of the Software if you need help or advice from us. 13.3. You may use the Free Edition on only one computer at a time. 7 �Hauptwerk Virtual Pipe Organ End User License Agreement 14. PUBLIC INSTALLATION LICENSE 14.1. A public installation license is required for all permanent (or semi-permanent) public installations of Hauptwerk. (Occasional, temporary use of a Registered portable home Hauptwerk system for performance or demonstration in a public venue does not require a public installation license.) 14.2. Public installations include, but are not limited to, the following types of venues: (a) Houses of worship; (b) Concert halls; (c) Theaters; (d) Educational institutions (music schools, colleges, academies, etc.). If you are unsure whether or not your situation requires a public installation license please contact us for clarification. 14.3. A public installation license may be purchased through the Hauptwerk store at http://www.hauptwerk.com/store/ EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS. 15. OTHER ACKNOWLEDGEMENTS AND THIRD-PARTY LICENSES Hauptwerk uses parts of code from Brian Gladman's AES implementation, which is licensed under the following conditions: Copyright (c) 2008, Dr Brian Gladman, Worcester, UK. All rights reserved. LICENSE TERMS The free distribution and use of this software in both source and binary form is allowed (with or without changes) provided that: 1. distributions of this source code include the above copyright notice, this list of conditions and the following disclaimer; 2. distributions in binary form include the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other associated materials; 3. the copyright holder's name is not used to endorse products built using this software without specific written permission. ALTERNATIVELY, provided that this notice is retained in full, this product may be distributed under the terms of the GNU General Public License (GPL), in which case the provisions of the GPL apply INSTEAD OF those given above. 8 �Hauptwerk Virtual Pipe Organ End User License Agreement DISCLAIMER This software is provided 'as is' with no explicit or implied warranties in respect of its properties, including, but not limited to, correctness and/or fitness for purpose. Source code of this package is available on Brian Gladman's web site. 9 �
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End User License Agreement IMPORTANT: PLEASE READ THIS END USER LICENSE AGREEMENT CAREFULLY. DOWNLOADING, INSTALLING OR USING THE ACCOMPANYING SOFTWARE CONSTITUTES ACCEPTANCE OF THIS END USER LICENSE AGREEMENT. HGST, INC. AND ITS AFFILIATES (COLLECTIVELY, “HGST”) IS WILLING TO LICENSE THE SOFTWARE ONLY IF YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS END USER LICENSE AGREEMENT (THE “EULA”). 1. BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE OR OTHERWISE EXPRESSING YOUR AGREEMENT TO THE TERMS CONTAINED IN THIS END USER LICENSE AGREEMENT AND THE BROADER THE AGREEMENT (AS DEFINED BELOW), YOU INDIVIDUALLY AND ON BEHALF OF THE ENTITY THAT YOU REPRESENT (COLLECTIVELY, “LICENSEE”) CONSENT TO BE BOUND BY THIS EULA AND THE AGREEMENT. IF YOU DO NOT OR CANNOT AGREE TO THE TERMS CONTAINED IN THIS AGREEMENT, THEN YOU WILL NOT HAVE ACCESS TO THE SOFTWARE. Capitalized terms used, but not defined, herein shall have the meanings given such terms in the Agreement. 2. Overview. 2.1. No Sale. This EULA governs Licensee’s use of and access to the Software (as defined below) for any Software first placed in use on or after the release date of this EULA (the “Release Date”). Licensee agrees and acknowledges that all Software is licensed and not sold, and that all use of “purchase” or “sell” in connection with any Software shall be deemed to mean “license.” Any term in Licensee’s purchase order or other document purporting to require the sale of Software instead of the license thereof is hereby rejected by HGST and is not part of the Agreement. 2.2. No Implied Licenses; Licensed Material. Nothing in this EULA shall be deemed to provide to Customer any right, title or interest in (i) any product sold by HGST or an authorized reseller of HGST (a “Product”); (ii) any instance of a program, module, feature, function, service, application, operation or capability of the software HGST intentionally delivers under this EULA (“Software”); or (iii) any documentation related to any Software (the “Documentation”), other than the express license rights set forth in Section 4 hereof. All rights not expressly granted to Licensee are reserved by HGST and its licensors. 2.3. Delivery. Unless otherwise stated by HGST, Software will be delivered electronically. Delivery is considered complete when HGST provides access to the Software download. For Users who purchase, or obtain, multiple licenses, delivery for all licenses is complete when HGST provides access to the first copy of the Software. 2.4. 3. Fees. Any and all fees paid are non-refundable. Definitions. In this EULA, the following capitalized terms shall have the meaning set forth below: 3.1. “Agreement” shall have the meaning set forth in Section 10.7. 3.2. “Affiliate” of a Party means such Party’s parent corporation, an entity under the control of such Party’s parent corporation at any tier or an entity controlled by such Party at any tier. For these purposes, “control” shall mean the power to direct or cause the direction of the management and policies of the entity, whether through the ownership of more than 50% of the outstanding voting interests in such entity or otherwise. 3.3. “Commercial Software” means software that HGST intends to be used by businesses. Version July 2014 1 © 2015 HGST, Inc. and its affiliates. All rights reserved. �3.4. “Feature” means an activity or class of activities that can be undertaken by the 3.5. “Party” means either Licensee or HGST and “Parties” means both Licensee and 3.6. “Software” has the meaning set forth in Section 2.2. Software. HGST. 3.7. “Software Key” means a code or key that is supplied by HGST allowing for the use of Commercial Software, which may provide capacity, device or other usage restraints consistent with the applicable order. For the avoidance of doubt, the term “Software” includes the applicable “Software Key”. 3.8. “Third Party” means an individual or entity other than Licensee, Licensee’s Affiliates, HGST and HGST’s Affiliates. 3.9. “Territory” means the country in which Licensee received the Software, unless otherwise specified in a purchase order agreed to by HGST. 3.10. “Update” means an update to the Software that is supplied by HGST and that may incorporate (i) corrections of any substantial defects; (ii) fixes of any minor bugs; and/or (iii) at the sole discretion of HGST, minor enhancements to the Software; provided, however, that Updates shall not include Upgrades. Updates are generally identified by HGST by a change to the version number to the right of the first decimal point (e.g., version 3.1 to 3.2). 3.11. “Upgrade” means a new release of the Software that incorporates substantial changes or additions that (i) provide additional value and utility; (ii) may be priced and offered separately as optional additions to the Software; and/or (iii) are not generally made available to HGST’s customers without a separate charge. Upgrades are generally identified by HGST by a change to the version number to the left of the first decimal point (e.g., version 3.2 to 4.0). 3.12. “User” means an individual able to use or gain access to any Software functionality. 4. License Grant. 4.1. Grant. Subject to the terms and conditions of this Agreement, HGST hereby grants to Licensee, and Licensee accepts, upon delivery of the Software, a nonexclusive, nontransferable license to install and use (subject to the limitations in Sections 4.5 and 4.6) each copy of the Software, in executable form only, supplied by HGST, and to use the accompanying Documentation, only for Licensee’s internal use and only as authorized in the Agreement. Licensee may make a reasonable number of copies of the Software for inactive backup and archival purposes. 4.2. Trial Period. If Licensee receives the Software for a trial period, Licensee will be licensed to use the Software during the trial period. Subject to Section 7 below, if Licensee does not pay the applicable License fee and activate the Software, Licensee’s right to use the Software will end at the end of the trial period. The trial period will end either after the expiration of the trial period or when Licensee activates the Software, whichever occurs first. 4.3. Software Keys. HGST may provide Licensee with a Software Key to unlock the Software or certain Software Features agreed to by the Parties as part of the Agreement. Licensee’s license to the Software Key is limited to a license to use the Software Key to activate the Software only for the Features that HGST has agreed to activate. Any contractual limitations on the scope of Licensee’s license to Software shall apply regardless of whether a Software Key enforces such limitations. Version July 2014 2 © 2015 HGST, Inc. and its affiliates. All rights reserved. �4.4. Network Usage. Licensee understands and agrees that HGST may use Licensee’s internal network and Internet connection for the limited purpose of transmitting license-related data at the time of installation, registration, use or update of Software to a HGST-operated license server. At such time, HGST may validate the license-related data in order to protect HGST against unlicensed or illegal use of the Software. HGST may, at its option, only permit activation of the Software upon exchange of license related data between Licensee’s computer and the HGST license server. Some Software may have license verification mechanisms that do not require the use of Licensee’s internal network and Internet connection, and HGST shall not use Licensee’s network or Internet connection for such Software. 4.5. Support, Updates and Upgrades. (a) For select Software products, HGST may offer support. Any offered support must be purchased separately and requires the payment of a separate fee. The description, terms, and conditions of support are available via HGST’s support portal. (b) Updates. Updates or Upgrades to the Software may be made available to Licensee pursuant to a separate agreement. Any Update or Upgrade provided by HGST shall be licensed under the terms of the Software that is being updated by such Update or Upgrade, as the case may be. (c) No Obligation. Nothing in this EULA requires HGST to provide Updates or Upgrades to Licensee or Licensee to accept such Updates or Upgrades. The provision of any Updates or Upgrades shall be governed by a separate agreement, or by a purchase order issued by Licensee and accepted by HGST, in HGST’s sole discretion, and may require the payment of additional fees. 4.6. No Right to Sublicense or Assign. Except to the extent otherwise required by applicable law or expressly provided for assignment generally in the Agreement, including without limitation in this EULA, no license provided in this Section 4 is sublicensable, transferable or assignable by Licensee, including by operation of law, change of control, merger, purchase or otherwise, without the prior written consent of HGST in each instance. Other than as expressly permitted by the foregoing, any attempted sublicense, transfer or assignment by Licensee shall be null and void. 4.7. License Prohibitions. Notwithstanding anything to the contrary in this EULA, Licensee shall not, alone, through a User, an Affiliate or a Third Party (or allow a User, an Affiliate or a Third Party to): (a) sell, transfer, license, lease pledge, loan or otherwise make available to Third Parties any Software; (b) modify any Software; (c) reverse compile, reverse assemble, reverse engineer or otherwise translate all or any portion of any Software; (d) pledge, rent, lease, share, distribute, sell or create derivative works of any Software; (e) use any Software on a time sharing, service bureau, application service provider (ASP), rental or other similar basis; (f) make copies of any Software, except as provided for in the license grant above; (g) remove, alter or deface (or attempt any of the foregoing) proprietary notices, labels or marks in any Software; Version July 2014 3 © 2015 HGST, Inc. and its affiliates. All rights reserved. �(h) distribute any copy of any Software to any Third Party, including without limitation selling any Product with Software in a secondhand market; (i) disclose the results of testing or benchmarking of any Software to any Third Party without the prior written consent of HGST; (j) use any Update or Upgrade beyond those to which Licensee is entitled or with any Software to which Licensee does not have a valid, current license; (k) circumvent or disable HGST’s copyright protection mechanisms or license management mechanisms; (l) use the Software in violation of any applicable law or to support any (m) attempt any of the foregoing. illegal activity; or HGST expressly reserves the right to seek all available legal and equitable remedies to prevent any of the foregoing and to recover any lost profits, damages or costs resulting from any of the foregoing. 4.8. Maximum Usage. Licensee shall not use Software in excess of the amount licensed to Licensee, as specified in the Agreement, which may be on a per user, per concurrent active device, capacity or other metric as established under the Agreement. 4.9. Legal Exception. Licensee agrees that, to the extent that any applicable laws (including without limitation national laws implementing EC Directive 91/250 on the Legal Protection of Computer Programs) give Licensee the right to reverse engineer any Software to make it interoperable without HGST’s consent, before Licensee exercises any such rights, Licensee shall notify HGST of such desire and, no later than sixty (60) days following receipt of such request, HGST may decide either: (a) to perform the work to achieve such interoperability and charge its then-standard rates for such work to Licensee; or (b) to permit Licensee to reverse engineer parts of the Software only to the extent necessary to achieve such interoperability. Only if and after HGST, at its sole discretion, partly or completely denies Licensee’s request, shall Licensee exercise its statutory rights. 4.10. Third Party Software. Portions of the Software may be owned by one or more Third Parties and licensed to HGST. HGST and Licensee intend and agree that Software owned by Third Parties and supplied hereunder is being sublicensed to Licensee, that such Third Parties retain ownership of and title to such Software, network and that such Third Parties may directly enforce Licensee’s obligations hereunder to protect their respective interests in such Software. The warranty and indemnification provisions set forth herein shall not apply to Software owned by Third Parties and supplied hereunder. If portions of the Software are owned by one or more Third Parties, the licenses/terms applicable to such Third Party licenses are set forth in Exhibit A. UNLESS OTHERWISE AGEED TO BY THE THIRD PARTY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THIRD PARTY SOFTWARE COMPONENTS AND DOCUMENTATION ARE PROVIDED “AS IS”. NEITHER HGST NOR THE THIRD PARTY PROVIDER MAKES ANY WARRANTY RELATED TO THE THIRD PARTY SOFTWARE COMPONENT, STATUTORY, EXPRESS OR IMPLIED, AND EACH SPECIFICALLY DISCLAIMS THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT WITH RESPECT TO THE SOFTWARE AND THE DOCUMENTATION. 4.11. Product-Specific Terms. (a) Commercial Software Audit. Licensee hereby grants to HGST, itself or using an independent third party auditor, the right to audit Licensee’s books, records and systems during normal business hours upon seven (7) days’ prior written notice, no more often than once per annum Version July 2014 4 © 2015 HGST, Inc. and its affiliates. All rights reserved. �regarding the usage of Commercial Software under the Agreement. In the event such audit identifies material non-compliance with this EULA or the Agreement between Licensee and HGST, Licensee shall pay HGST’s costs of such audit. 5. Confidentiality. Subject to any other confidentiality restrictions set forth in the Agreement, Licensee agrees the Software and Documentation are the confidential information of HGST. Licensee shall maintain the Software and Documentation in confidence, using the same degree of care it uses for its own confidential information of a similar nature, which shall be no less than reasonable and customary efforts in the software industry. 6. Software Warranty. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT AS PROVIDED FOR IN THE AGREEMENT, THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS”. HGST MAKES NO OTHER WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT WITH RESPECT TO THE SOFTWARE AND THE DOCUMENTATION. IN ADDITION, HGST DOES NOT WARRANT THAT THE SOFTWARE’S OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL DEFECTS WILL BE CORRECTED. 7. Disabling Code. 7.1. Disabling Code. Software may be provided to Licensee with disabling code that allows HGST to disable such Software. Any Updates or Upgrades to the Software may include disabling code. HGST agrees not to invoke such disabling code except as provided for in Section 7.2, without Licensee’s prior consent, which may be given by telephone or email. 7.2. Invocation of Disabling Code. In addition to the invocation of disabling code when HGST has received Licensee’s consent described in Section 7.1, HGST may, at its option, invoke disabling code in HGST’s Software without receiving Licensee’s consent (i) if in HGST’s sole, reasonable discretion, HGST believes that such Software has been, is being or will be used in violation of laws; (ii) if HGST is required to do so, because of a court or regulatory order; (iii) if Licensee has not paid the applicable License Fee by the expiration of the Software trial period; or (iv) if Licensee has used the Software other than as authorized by Licensee’s license. HGST shall have no liability to Licensee for any good faith invocation of any such disabling code. 8. Exclusive Remedies and Limitation of Liability. 8.1. Definitions. For purposes of the exclusive remedies and limitations of liability set forth in this Section 8, HGST shall be deemed to include its directors, officers, employees, agents, representatives, shareholders, subcontractors, licensors and suppliers; and “damages” shall be deemed to refer collectively to all injury, damage, loss or expense incurred. 8.2. Maximum Liability. Except as may otherwise be provided in the Agreement, HGST’s maximum aggregate liability arising from or relating to this EULA or the use of the Software and Products shall not to exceed the total amount paid by Licensee to HGST for the applicable Software during the twelve (12) month period that immediately preceded the event that gave rise to the applicable claim. 8.3. Limitation of Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS EULA BUT SUBJECT IN ALL RESPECTS TO THE AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, HGST SHALL NOT BE LIABLE FOR INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OR INTERRUPTION OF USE, LOST PROFITS, SAVINGS OR REVENUES OF ANY KIND, WHETHER OR NOT HGST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS PROVISION SHALL APPLY EVEN IN THE EVENT OF THE FAILURE OF AN EXCLUSIVE REMEDY. Version July 2014 5 © 2015 HGST, Inc. and its affiliates. All rights reserved. �9. Term and Termination. 9.1. Term. The term of this EULA is while any Software is under Licensee’s control or possession, unless terminated earlier (the “License Term”). 9.2. Termination. HGST shall have the right to terminate this EULA (a) upon thirty (30) days’ prior written notice to Licensee if Licensee has not cured any material breach of this EULA by the end of such thirty (30) day notice period; (b) if Licensee has not paid an invoice to HGST regarding such Software sixty (60) days after such invoice is due, at any time thereafter upon written notice to Licensee; (c) if the Software is found to infringe or misappropriate any Third Party’s intellectual property or proprietary rights, or becomes subject to an injunction prohibiting its use, or HGST reasonably believes either of the foregoing conditions is likely to occur; or (d) as otherwise provided for in the Agreement. Upon termination of this EULA for any reason, (i) Licensee shall be responsible for payment for all purchase orders delivered to Licensee by HGST before the effective date of termination; and (ii) Licensee shall destroy all copies of the Software under Licensee’s control or possession, and provide HGST with reasonably requested evidence of the destruction of copies of the Software. 9.3. Survival. The provisions of Sections 1, 2, 4.5, 4.6, 4.8, 4.9, 5, 6, 7, 8, 9.3, and 10 of this EULA shall survive any termination in accordance with their terms, in addition to any accrued obligations. 10. Miscellaneous. 10.1. Choice of Law; Jurisdiction. The Agreement shall be governed by the laws of the State of California, excluding (a) its conflicts of law rules that would result in the application of the law of any other jurisdiction; and (b) the United Nations Convention for the International Sale of Goods. The federal and state courts located in San Jose, California shall have exclusive jurisdiction with respect to any dispute arising under this Agreement. 10.2. Assignment. Neither Party may assign its rights and obligations hereunder without the prior written consent of the other Party. Notwithstanding the foregoing, either Party may assign this EULA to any Affiliate of the other or to an acquirer (by purchase, merger or otherwise) of all or substantially all of such Party’s business or assets relating to this EULA, provided that (i) the assignee agrees in writing to be bound by the terms and conditions of this EULA, (ii) neither the assignor nor assignee are in default hereunder. Any attempted assignment other than as permitted shall be null and void. 10.3. Non-Waiver. No course of dealing or failure of either party to strictly enforce any term, right or condition of this Agreement shall be construed as a waiver of such term, right or condition. In the event of any breach or threatened breach of Section 4, Licensee agrees that HGST will suffer irreparable damage for which HGST will have no adequate remedy at law. Accordingly, in addition to any other remedy, HGST shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of proving actual damages or posting any bond. 10.4. Export Regulations. Licensee understands that HGST is subject to regulation by the U.S. government and its agencies, which prohibit export or diversion of certain technical products and information to certain countries and individuals. Licensee warrants to HGST that Licensee will comply in all respects with all export and re-export restrictions applicable to the technology and documentation provided hereunder. 10.5. Restricted Party. Licensee represents to HGST that Licensee is not a Restricted Party, which shall be deemed to include any person or entity: (1) located in or a national of Cuba, Iran, Libya, North Korea, Sudan, Syria, or any other countries that may, from time to time, become subject to U.S. export controls for anti-terrorism reasons or with which U.S. persons are generally prohibited from engaging in financial transactions; (2) on the U.S. Department of Commerce Denied Person’s List, Entity List, or Unverified List; U.S. Department of the Treasury list of Specially Designated Nationals and Version July 2014 6 © 2015 HGST, Inc. and its affiliates. All rights reserved. �Blocked Persons; or U.S. Department of State List of Debarred Parties; (3) engaged in activities involving nuclear materials or weapons, missile or rocket technologies, or proliferation of chemical or biological weapons; or (4) affiliated with or a part of any non-U.S. military organization. Licensee shall not sell, resell, loan, disclose, or otherwise transfer any Software, Product or Documentation to any Restricted Person without prior, express written authorization from HGST and the appropriate U.S. Government agency. If Licensee becomes a Restricted Person during the Term, this EULA shall automatically terminate and Licensee shall immediately cease all use of the Software. 10.6. United States Government Restricted Rights. The Software and Documentation is provided with restricted rights and qualifies as “commercial items” consisting of “commercial computer software” and “computer software documentation” as such terms are defined and used at FAR (48 C.F.R.) 2.101 and FAR 12.212. Use, duplication, or disclosure by the government is subject to restrictions as set forth in subparagraph (c)(f)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c) (1) and (2) of the Commercial Computer SoftwareRestricted Rights at 48 C.F.R. S:52.227-19, as applicable. For clarity, this Section 9.6 shall also be construed to apply to the state or local government counterparts, or the foreign counterpart specified as the Territory, as applicable. 10.7. Order of Precedence; Entire Agreement. To the extent of any conflict among this EULA, any additional terms in an agreement signed by Licensee and HGST, any HGST “click-accept” agreement, any terms on a purchase order and HGST’s terms and conditions of sale, the order of precedence shall be (a) an agreement signed by Licensee and HGST; (b) this EULA; (c) a “click-accept” agreement, including any agreement regarding the Features to be included as part of the Software; (d) HGST’s terms and conditions of sale; and (e) HGST’s purchase order acceptance (collectively, (a)-(e), after applying the order of precedence, the “Agreement”). The terms and conditions contained in the Agreement supersede all prior oral or written understandings between the Parties and shall constitute the entire agreement between the Parties with respect to the subject matter of the Agreement. This Agreement shall not be modified or amended except by a writing signed by Licensee and HGST. 10.8. Construction; Severability. The headings used in this Agreement are for reference purposes only and will not be deemed to limit, expand or in any way affect the interpretation of any term or provision hereof. If any provision or part hereof shall be held to be invalid or unenforceable for any reason, then the meaning of such provision or part hereof shall be construed so as to render it enforceable to the extent feasible. If no feasible interpretation would save such provision or part hereof, it shall be severed herefrom, but without in any way affecting the remainder of such provision or any other provision contained herein, all of which shall continue in full force and effect unless such severance effects such a material change as to render the Agreement unreasonable. Version July 2014 7 © 2015 HGST, Inc. and its affiliates. All rights reserved. �
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Zend Technologies Ltd. End-User License Agreement This End-User License Agreement (this "Agreement") is a legal contract between you, as either an individual or a single business entity, and Zend Technologies Ltd. and its affiliates ("Zend"). READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE USING ZEND’S PROPRIETARY SOFTWARE (THE "SOFTWARE") IN THE IBM CLOUD ENVIRONMENT. THE SOFTWARE IS FURTHER DEFINED IN AN AGREEMENT (AN “ORDER”), ENTERED INTO BETWEEN YOU AND IBM FOR YOUR USAGE OF THE SOFTWARE, WHICH SETS FORTH COMMERCIAL TERMS APPLICABLE TO YOUR USE OF THE SOFTWARE IN THE IBM CLOUD ENVIRONMENT. THE SOFTWARE IS COPYRIGHTED AND IT IS LICENSED TO YOU UNDER THIS AGREEMENT AND IS NOT SOLD TO YOU. BY USING THE SOFTWARE OR BY ENTERING INTO AN ORDER WHICH REFERENCES AND PROVIDES SOURCE INFORMATION NECESSARY FOR ACCESSING AND REVIEWING THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU ACCEPT AND AGREE TO BE BOUND BY ITS TERMS. IF YOU ARE NOT WILLING TO BE BOUND BY THE TERMS OF THIS AGREEMENT, YOU SHOULD TERMINATE THE DEPLOYMENT PROCESS, AND REFRAIN FROM ACCESSING OR USING THE SOFTWARE. THIS AGREEMENT, INCLUDING ANY ORDERS, REPRESENTS THE ENTIRE AGREEMENT BETWEEN YOU AND ZEND CONCERNING THE SOFTWARE, AND THIS AGREEMENT SUPERSEDES AND REPLACES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING YOU MAY HAVE HAD WITH ZEND RELATING TO THE SOFTWARE UNLESS YOU HAVE ENTERED INTO A SEPARATE WRITTEN AGREEMENT SIGNED BY ZEND OR IBM THAT EXPRESSLY AMENDS THIS AGREEMENT. 1. License 1.1. Grant of License. Zend hereby grants to you, and you accept, a limited, nonexclusive, non-transferable license to use the Software in machine-readable, form only, and the user manuals accompanying the Software (the “Documentation”), only as authorized in this Agreement, and subject to compliance with the terms of this Agreement, and payment of all applicable license fees. For purposes of this Agreement, the “Software” includes any updates, enhancements, modifications, revisions, or additions to the Software made available to you by Zend. Notwithstanding the foregoing, Zend shall be under no obligation to provide any updates, enhancements, modifications, revisions, or additions to the Software. The term of your license is as set forth in the Order. �1.2. Scope of Use. You may use the Software within the IBM Cloud Environment controlled by you, at rates specified for metered usage or for the number of servers, as specified in an Order. An Order may also specify other applicable license scope definitions. For purposes of this Agreement, “use” of the Software means loading the Software into the temporary or permanent memory of a computer and executing the Software. If the Order does not state a scope of license, then the scope shall be metered at the applicable rate. Licenses provided as “Development”, “Staging” or “Disaster Recovery” may not be used for any production workloads. 1.3. Restrictions, Copies and Modifications. You may not reverse engineer, decompile, disassemble, or otherwise translate the Software or any license keys you have obtained. You may not modify or adapt the Software or any license keys that you have obtained in any way. No copies of the Software, Documentation, or license keys, or any portions thereof, may be made or distributed by you or any person under your authority or control. You may not allow third party use of the Software or use of the Software as a service bureau. 1.4. Assignment of Rights. You will not sublicense, lease, rent, or lend your rights in the Software, Documentation, or license keys, as granted by this Agreement, to any party without prior written consent of Zend. 2. Intellectual Property Protection and Confidentiality 2.1. Use Reporting, License Violations and Remedies. Zend (and IBM on Zend’s behalf) reserve the right to gather data on usage including server hours, server IP addresses, and other information deemed relevant, to ensure that our products are being used in accordance with the terms of this Agreement. Any unauthorized use shall be considered to be a violation of this Agreement. Zend reserves the right to remedy violations immediately upon discovery, by charging the then-current list price of unauthorized use. This is not a sole remedy for a violation of this Agreement and Zend may exercise any other remedies available at equity or law. 2.2. Proprietary Rights to Software and Trademarks. You acknowledge that the Software and the Documentation are proprietary to Zend, and the Software and Documentation are protected under United States copyright law and international treaties. You further acknowledge and agree that, as between you and Zend, Zend owns and shall continue to own all right, title, and interest in and to the Software and Documentation, including associated intellectual property rights under copyright, trade secret, patent, or trademark laws. This Agreement does not grant you any ownership interest in or to the Software or the Documentation, but only a limited right of use that is revocable in accordance with the terms of this Agreement. Any and all trademarks or service marks that Zend uses in connection with the Software or with services rendered by Zend are marks owned by Zend. This Agreement does not grant you any right, license, or �interest in such marks, and you shall not assert any right, license, or interest in such marks or any words or designs that are confusingly similar to such marks. 2.3. Confidentiality. You shall permit only authorized users, who possess rightfully obtained access, to use the Software or to view the Documentation. Except as expressly authorized by this Agreement, you shall not make available the Software, Documentation, or any license key to any third party. You will use your best efforts to cooperate with and assist Zend in identifying and preventing any unauthorized use, copying, or disclosure of the Software, Documentation, or any portion thereof. 3. License Fees The Software will be available to you for use upon your execution of an Order with IBM. The fees paid by you for the Software are paid in consideration of the license granted under this Agreement.. 4. Software Maintenance and Support Services You may elect to purchase Software maintenance and support services by so ordering from IBM and paying the applicable fees. 5. Term and Termination This Agreement is effective upon your acceptance of the Agreement, or upon your using the Software, even if you have not expressly accepted this Agreement. This Agreement shall continue in effect until terminated. Without prejudice to any other rights, this Agreement will terminate automatically if you fail to comply with any of the limitations or other requirements described herein. You are licensing the Software on a limited term basis, and if you fail to pay the applicable fees, Zend shall have the right to interrupt your use of the Software. You may terminate this Agreement at any time by terminating all deployed instances of the Software. Zend may terminate this License Agreement if you breach any term of the Agreement by giving you written notice of your breach and Zend’s decision to terminate the Agreement. Upon termination of this Agreement, you agree to cease all use of the product. 6. Indemnifications Zend shall, at its expense, defend and indemnify you for damages and reasonable costs finally incurred in any suit or claim brought against you alleging that the Software infringes any U.S. patent, copyright, trade secret or similar right, provided that Zend is promptly notified, rendered reasonable assistance by you as required, and permitted to direct the defense or settlement negotiations. Zend shall have no obligation to defend or indemnify any infringement claim that arises from or relates to: (i) a modification of the Software by you or any third party, (ii) a combination of the Software with other software products, components, processes or materials, (iii) your failure to incorporate or implement modifications directed by Zend, (iv) third party or open source software components, (v) use of the Software in a manner inconsistent with the �Documentation, or (vi) any Software provided for evaluation or trial use or marked as beta or early access. Should the use of Software by you be enjoined, or in the event Zend wishes to minimize its potential liability hereunder, Zend may, at its option, either: (i) substitute fully equivalent non-infringing software; (ii) modify the infringing Software so that it no longer infringes but remains functionally equivalent; (iii) obtain for you, at Zend’s expense, the right to continue use of the Software. This indemnification sets forth Zend’s sole liability and your sole remedy for claims of infringement arising from your use of the Software. You will, at your own expense, indemnify and hold Zend, and its subsidiaries and affiliates, and all officers, directors, and employees thereof, harmless from and against any and all claims, actions, liabilities, losses, damages, judgments, grants, costs, and expenses, including reasonable attorneys’ fees, arising out of any use of the Software by you, any party related to you, or any party acting upon your authorization in a manner that is not expressly authorized by this Agreement. Your indemnification does not include claims of infringement that are covered by Zend’s indemnification above. 7. Warranty; Disclaimer Zend warrants for a period of thirty (30) days from your receipt of the Software that the Software will materially conform to the Documentation. This warranty covers only problems that are reproducible and verifiable and does not cover software, or other items or any services provided by any persons other than Zend. Maintenance and support, if any, are governed by a separate agreement. Software, which has been abused, misused, damaged, modified, or subjected to unauthorized use or installation, used in a manner inconsistent with the Documentation or used with components not authorized by Zend, shall void this warranty. Zend’s sole liability (and your sole and exclusive remedy) for any breach of this warranty shall be, in Zend’s sole discretion, to use commercially reasonable efforts to provide you with an error-correction or workaround which corrects the reported non-conformity, or if Zend, in its sole discretion, determines such remedies to be impracticable within a reasonable period of time, to provide a refund of the fees paid for the Software. This limited warranty does not apply for any Software provided for evaluation or trial use or marked as beta or early access. EXCEPT AS SET FORTH ABOVE IN THIS SECTION, THE SOFTWARE AND DOCUMENTATION ARE LICENSED “AS IS,” AND ZEND DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT, TO THE EXTENT AUTHORIZED BY LAW. WITHOUT LIMITATION OF THE FOREGOING, ZEND EXPRESSLY DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR �ERROR FREE. YOU ASSUME RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE RESULTS OBTAINED FROM YOUR USE OF THE SOFTWARE. YOU SHALL BEAR THE ENTIRE RISK AS TO THE QUALITY AND THE PERFORMANCE OF THE SOFTWARE. WARNING: The Software is not designed or intended for use in on-line control of equipment in hazardous environments such as the operation of nuclear facilities, aircraft, air traffic, aircraft navigation or aircraft communications, or in the design, construction, operation or maintenance of any nuclear facility, or in the operation or maintenance of any direct life support system. Zend disclaims any express or implied warranty of fitness for such uses and shall not be liable for any costs, liabilities or damages resulting from the use of the Software in such an environment. You agree that you will not use or license the Software for such purposes. 8. Limitation of Liability IN NO EVENT WILL ZEND BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, OR LOSS OF PROFITS OR LOST SAVINGS, ARISING OUT OF USE OF OR INABILITY TO USE THE SOFTWARE OR DOCUMENTATION, EVEN IF ZEND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ZEND BE LIABLE FOR ANY DIRECT DAMAGES IN EXCESS OF THE FEES PAID TO ZEND FOR THE SOFTWARE WITHIN THE PERIOD OF TWELVE (12) MONTHS PRIOR TO ANY CLAIM ARISING. 9. General Terms 9.1. Governing Law and Choice of Forum. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Israel, without regard to the conflicts of law rules thereof. Any claim or dispute arising in connection with this Agreement shall be resolved in the applicable courts situated within the city of Tel Aviv, Israel. To the maximum extent permitted by law, you hereby consent to the jurisdiction and venue of such courts and waive any objections to the jurisdiction or venue of such courts. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. 9.2 Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action. 9.3. Severability. If any term or provision of this Agreement is declared void or unenforceable in a particular situation, by any judicial or administrative authority, this declaration shall not affect the validity of enforceability of the remaining terms �and provisions hereof or the validity or enforceability of the offending term or provision in any other situation. 9.4 Survival. Any provisions of this Agreement that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration of this Agreement, shall be deemed to survive for as long as necessary to fulfill such purposes. 9.4. Headings. The Section headings contained in this Agreement are incorporated for reference purposes only and shall not affect the meaning or interpretation of this Agreement. 9.5. No Waiver; Amendments. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. Amendments to the Agreement shall only be effective if in writing and signed by all parties. 9.6. Assignment. You may not assign your rights under this Agreement and any attempted assignment shall be void and of no effect. Zend may assign its rights and obligations under this Agreement. 9.7 Notices and Reports. Any notice or report hereunder shall be in writing to the notice address set forth above and shall be deemed given: (i) upon receipt if by personal delivery; (ii) upon receipt if sent by certified or registered U.S. mail (return receipt requested); or (iii) one day after it is sent if by next day delivery by a major commercial delivery service. 9.8 Audit Rights. Upon Zend’s written request, Customer shall certify in a signed writing that Customer’s use of the Software is in full compliance with the terms of this Agreement (including any copy, scope and user limitations). With prior reasonable notice of at least 15 days and not more than twice per year, Zend may audit the copies of the Software in use by Customer provided such audit is during regular business hours. Customer is responsible for such audit costs only in the event the audit reveals that Customer’s use is not in accordance with this Agreement. 9.9 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, including but not limited to any strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or of telecommunications or data networks or services, or refusal of approval or a license by a government agency. �9.10 United States Government Restricted Rights. The Software and Documentation are provided with Restricted Rights. Use, duplication, or disclosure by the government is subject to restrictions as set forth in subparagraph (c)(f)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c) (1) and (2) of the Commercial Computer Software-Restricted Rights at 48 C.F.R. S:52.227-19, as applicable. 9.11 Export Restrictions. THIS AGREEMENT IS EXPRESSLY MADE SUBJECT TO ANY LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS ON THE EXPORT, REEXPORT OR IMPORT OF THE SOFTWARE OR DOCUMENTATION ABOUT SUCH SOFTWARE WHICH MAY BE IMPOSED FROM TIME TO TIME BY THE GOVERNMENT OF THE UNITED STATES OF AMERICA OR ANY OTHER GOVERNMENT. YOU SHALL NOT EXPORT, REEXPORT OR IMPORT THE SOFTWARE, DOCUMENTATION, OR INFORMATION ABOUT THE SOFTWARE OR DOCUMENTATION WITHOUT THE WRITTEN CONSENT OF ZEND AND COMPLIANCE WITH SUCH LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS. v. 2013-05-IBM �
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® DATA INTERMAP TECHNOLOGIES INC. – END USER LICENSE AGREEMENT FOR DATA This End User License Agreement (“EULA”) is a legal and binding agreement between Intermap Technologies Inc. (“Intermap”) and the company, individual, group or other legal entity (“Customer”) identified on the confirmation generated by Intermap (“Confirmation”) for the data, databases, data products and services of Intermap and its third party providers identified in the Confirmation, including access to software, documentation, updates, supplements, and other services identified in the Confirmation or otherwise provided by Intermap and its third party providers to Customer with this EULA (collectively “Products” and “Service(s)”), unless other terms accompany those items, in which event those terms apply to such items. This EULA, the Confirmation, and the Terms of Use (available at http://www.intermap.com/termsofuse.aspx) represent the complete and exclusive agreement between Customer and Intermap with respect to the Products and Services and may be amended or modified only in a written instrument signed by a duly authorized representative of both parties. In the event of a conflict between the EULA and the Confirmation, the terms of this EULA prevail. Intermap is a leading provider of location-based information solutions, 3D geospatial data and geospatial services. The data available through any 3D geospatial datasets is referred to in this Agreement as “Data.” The referenced Data and information regarding Intermap’s services and products, are accessible via the Intermap website, www.intermap.com (the “Website”). Please note that Data received as part of GeoPro Bundle™ has specific licensing restrictions identified in Section 2(c) below. Intermap’s Privacy Policy, available at http://www.intermap.com/privacypolicy.aspx, is incorporated into this EULA by reference and provides additional terms and conditions related to the services and products by Intermap.This policy may be amended from time to time and such amendments shall be binding and effective as of the date of their release. 1. 2. 3. 4. Additional Definitions a. “Commercial Use” shall mean any use of Data other than Noncommercial Uses. b. “Derivative Works” or “Derivative” shall mean a later work that qualifies as a derivative work under U.S. copyright Law. For clarification purposes, orthorectified products created using Intermap Products, Services, or Data are considered Derivatives. c. “Noncommercial Use” means uses of the Data that meets the following two criteria: the use objectively (i) is used either for internal purposes or is intended to support (a) education, or (b) research; and (ii) is not intended for or directed toward user’s (a) commercial advantage or financial gain, (b) monetary compensation, or (c) more than a de minimis marketing or promotional benefit. d. “Single Commercial Use” means a Single Use that constitutes a Commercial Use. e. “Single Use” means use of Data for a single project that meets each of the following criteria: the project (i) concerns a single location or limited set of identified locations that do not change after the Data is licensed under this Agreement; (ii) involves a single customer or limited set of identified customers that do not change after the Data is licensed under this Agreement; (iii) results in not more than a single copy or download of the Data per permitted customer; and (iv) is defined by a specific and limited purpose that does not change in any material respect after the Data is licensed under this Agreement. License Grant – Data. The Data is licensed to Customer, not sold. In accordance with the terms and conditions of this EULA, including the Exceptions below, Intermap grants Customer a limited, revocable, non-transferable, non-exclusive license for the time period specified in the Confirmation to: (a) internally use the Data; (b) to distribute in connection with a Single Commercial Use of the Data and a single Derivative thereof; and (c) permit Customer’s contractors and consultants to access the Data solely for use on behalf of Customer, provided that such contractors and consultants agree in writing: (i) to be bound by the same license limitations applicable to Customer, (ii) acknowledge that contractors are prohibited from creating Derivative Works for their own use, and (iii) to return the Data and any Derivative Works to Customer, and keep no copy thereof, upon completion of the contracting or consulting engagement. Conduct in violation of this EULA by such other parties will be deemed to be a material breach of this EULA by Customer. Exceptions: a. If any Customer license includes the NEXTMap® Britain Product, note that under no circumstances shall that data be used to create or distribute flood maps, flood hazard maps, flood insurance rate maps, flood models, or any map, image or representation of flood modeling or risk in any manner. b. If third party access to the Data is specifically authorized by Intermap in the Confirmation, such access shall be limited to geo-referenced PDF files only, or “GeoPDF,” unless specifically authorized in writing by Intermap. No other format for third party access to the Data is granted nor should be utilized by the Customer. c. If Data is received as part of GeoPro Bundle, the following additional restrictions apply: i. Use of Data is licensed only during the Term, after which it may no longer be utilized in any form, including any Derivatives, by Customer. Continued use of any Derivatives and/or the Data received as part of the GeoPro Bundle requires a current license to GeoPro™ with Intermap. ii. The Data may not be used for Commercial Use. Commercial Use of Derivatives is allowable during the Term subject to the provisions of Intermap’s then-current 3DBI End User License Agreement, available on Intermap’s website. Access to Services. Subject to the terms and conditions of this EULA, Intermap grants Customer a limited, revocable, non-transferable, non-exclusive license for the time period specified in the Confirmation to access any Services and associated functionality identified in the Confirmation. Access to Services is strictly limited to the number of subscribers and payment terms authorized and outlined in the Confirmation, and is further subject to Intermap’s Website Terms of Use. Reservation of Rights; Restrictions on Use. All rights not expressly granted to Customer are reserved by Intermap and its licensors. Unless applicable law grants Customer additional rights despite this limitation, Customer will refrain from, and prevent others from, using the Data and/or accessing Services identified in the Confirmation in any manner or for any purpose not expressly authorized by this EULA, including without limitation: a. sublicensing, transferring, selling, leasing or assigning any of the rights granted herein (and any attempt to do so is void); i. The Customer of any licensed Data who pays the applicable license fee(s) is the only user permitted to enjoy the Single Commercial Use. If the Customer chooses not to employ the licensed Data for a Single Commercial Use, then the Single Commercial Use associated with the license shall lapse. The Single Commercial Use is not assignable under any circumstances; ii. It is agreed and understood that Customer shall have no right under this Agreement to employ the Data or Derivatives thereof for any Commercial Use, other than the Single Commercial Use specified above. b. copying the Data for external use and distribution; c. publishing, disclosing, making available, distributing, transmitting or allowing a third party (except third parties explicitly permitted in Sections 1, 2 and 3 of this EULA, or in the Confirmation) to access the Data in whole or in part. Notwithstanding the foregoing, disclosure of Data pursuant to a judicial or administrative order will not be deemed to be a breach of the foregoing obligation, provided Customer (i) provides timely written notice of such order to Intermap; and (ii) reasonably cooperates with Intermap’s efforts to contest or limit the scope of such order; d. reverse engineering, decompiling, or disassembling the Data, except as expressly permitted by applicable law (and only then, to the extent permitted by such law and provided further that Customer promptly notifies Intermap of any such activity), including but not limited to (i) creating contours of areas larger than 25 square kilometers as a non-licensed product; and (ii) resample the data posting. e. using any trademarks of Intermap without the prior, written approval of Intermap; f. using the Data and/or Services to provide a service bureau, time share or other services to third parties; Intermap Technologies, Inc. Data End User License Agreement Page 1 of 2 v4.5 2014-10-06 �® DATA 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. g. hosting or storing any portion of the Data, or accessing the Services, on equipment not owned or controlled by Customer; h. using any portion of the Data or accessing Services in a manner that does not comply with applicable law, regulations, or governmental orders including, without limitation, all applicable privacy laws. Protection; Cooperation. Customer will (a) appropriately notify its employees of its rights and obligations hereunder; (b) use its best efforts to maintain the confidentiality and security of the Data and/or Services and prevent the unauthorized disclosure or use of the Data and/or Services or the Customer’s account information; (c) immediately notify Intermap upon discovering evidence of a current or threatened misuse or unauthorized use or disclosure of the Data and/or Services or the Customer’s account information; and (d) at Customer’s own cost, use its best efforts and cooperate with Intermap to promptly cure such. Ownership. Intermap and its licensors retain ownership of the Data and Services and all portions thereof, including all rights under copyright law, trademark law, patent law, trade secret law, and all other forms of proprietary and intellectual property protection; and such Data and/or Services will continue to be subject to the provisions of this EULA, even if Intermap expressly authorizes Customer to: (a) modify, merge, incorporate, or combine the Data, or any portion thereof, into any software or other data, or (b) convert or translate the Data into another data format. Government Uses. If Customer is a federal, state, or local government agency, the Data and/or access to the Services is licensed solely to the particular agency and not to any other government agency. The Data is considered a “commercial item” as that term is defined at 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 (Sept. 1995) and 48 C.F.R. 227.7202-1 throughout 227.7202-4 (June 1995), all U.S. Government End Users acquire the Data and/or Services with only those rights set forth herein. If the Data or any permitted Derivative Works are used in connection with the performance of any government contracts or subcontracts, Customer will ensure that (i) the Data and any Derivative Works will not constitute a deliverable under any governmental contracts or subcontracts; and (ii) in no event will a government entity acquire any rights other than those provided in this Section. The foregoing limitations apply only to government End Users and may not apply to Customer. WARRANTY DISCLAIMER; LIMITATION OF LIABILITY. THE DATA AND/OR SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED. NOT LIMITING THE FOREGOING, INTERMAP DOES NOT WARRANT THAT THE DATA AND/OR SERVICES WILL MEET CUSTOMER’S NEEDS OR EXPECTATIONS OR THAT USE OF THE DATA AND/OR SERVICES WILL BE ERROR FREE OR UNINTERRUPTED. IN NO EVENT WILL INTERMAP BE LIABLE FOR ANY CLAIM OR LOSS INCURRED BY CUSTOMER, INCLUDING WITHOUT LIMITATION INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, EVEN IF ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES. INTERMAP’S LIABILITY WILL NOT EXCEED THE LICENSE FEES PAID BY CUSTOMER TO INTERMAP WITH RESPECT TO THE DATA AND/OR SERVICES AT ISSUE. THE FOREGOING LIMITATIONS APPLY TO ALL CAUSES OF ACTION, INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT OR WARRANTY OR TORT AND IS A MATERIAL INDUCEMENT FOR INTERMAP GRANTING THE RIGHTS HEREIN. Indemnification. Customer will defend, indemnify, and hold Intermap, its affiliates, directors, employees, licensors, and agents harmless from and against any claim, action, proceeding, loss, cost, expense, damages, and liability, including reasonable attorneys’ fees, arising from: (i) Customer’s use or other actions relating to the Data and/or Services and/or (ii) Customer’s breach of any provision of this EULA. Term and Termination. This EULA becomes effective as of the date of the Confirmation and will continue in force until terminated, including expiration of any license term identified in the Confirmation, or termination of Customer’s account for any reason, including failure to adhere to the Terms of Use and all applicable payment provisions. Governing Law. a. This Agreement is governed and interpreted in accordance with the laws of the State of Colorado without regard to its conflicts of law provisions. The United Nations Convention on the International Sale of Goods does not apply. b. Any dispute arising between the parties out of or in connection with this Agreement will be finally resolved by arbitration conducted by one arbitrator in Denver, Colorado pursuant to the International Arbitration Rules of the American Arbitration Association (“AAA”) applicable to commercial disputes. The Federal Arbitration Act, 9 U.S.C. Sec. 1-16, not state law, will govern such dispute. The arbitrator's award will be final and binding and may be entered in any court having jurisdiction thereof. Each party will bear its own costs and attorneys' fees, and will share equally in the fees and expenses of the arbitrator. The arbitration will be conducted in English, the governing language of this Agreement. c. Nothing in this section will restrict the ability of Intermap or its licensors to pursue any legal or equitable remedy or to obtain an injunction to protect any rights Intermap or its licensors may have rising out of or relating to the Data and/or Services or any of Intermap or its licensors’ intellectual property rights. Any breach of this Agreement by Customer will cause Intermap and its licensors irreparable harm for which there is no adequate legal remedy. In the event of any actual or threatened breach of this Agreement by Customer, Intermap and/or its licensors are entitled to obtain injunctive and all other appropriate relief from a court of competent authority, without being required to: (i) show any actual damage or irreparable harm, (ii) prove the inadequacy of its legal remedies, or (iii) post any bond or other security. Assignment. Neither this EULA nor any of the rights granted by it may be assigned or transferred by Customer, including assignments or transfers by operation of law, as well as by contract, merger or consolidation. This Agreement is binding upon and will inure to the benefit of both parties and permitted successors. Export Licensing Notification. The products delivered hereunder are subject to the export licensing regulations of the United States. Customer will comply with such regulations in its use of the Data and/or Services. Customer is solely responsible for obtaining any and all required government authorizations, including without limitation, any export or import licenses and foreign exchange permits. Audit. At Intermap’s request, Customer will provide assurances that Customer is using the Data and/or Services consistent with the terms of this EULA. Misc. If any part of this EULA is found invalid, such invalidity will not affect the validity of remaining portions of this EULA, and the parties will promptly substitute for the invalid provision a provision that most closely approximates the intent and economic effect of the invalid provision. Failure by a party to complain of any act or failure to act of the other party or to declare the other party in default, irrespective of the duration of such default, will not constitute a waiver of rights hereunder. This EULA will be interpreted solely in the English language, and no translation into any foreign language will have any effect. Intermap Technologies, Inc. Data End User License Agreement Page 2 of 2 v4.5 2014-10-06 �
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INTERMEDIA: SECURIS YNC EULA SecuriSync End User License Agreement (EULA) Thank you for your decision to download software from Intermedia.net, Inc. (for customers based anywhere other than the United Kingdom (“Non-UK Customers”))) or Intermedia Technologies Company Ltd (for United Kingdom based customers (“UK Customers”)) (respectively, “Intermedia”). The Intermedia software application that you have downloaded (the “Application”) enables you to use the Intermedia SecuriSync service (the “Service”). This End User License Agreement (“EULA”) is incorporated by reference into the Intermedia Master Services Agreement (available at www.intermedia.net/legal/msa.pdf for Non-UK Customers; or http://www.intermedia.co.uk/legal/uk/UKMSA.pdf for UK Customers) or as applicable, a separate written Master Services Agreement that governs your use of the Service between you or your employer or other entity that has granted you access to the Services (the “Terms”). By downloading or using the Application, you: 1. Agree that the Application is licensed, not sold to you, and Intermedia reserves all rights not expressly granted to you in this EULA or in the Terms. By downloading the Application, or otherwise accessing or using the Service, you agree that you have read, understood, and agree to be bound by this EULA and the Terms. You may use the Application and the Service only as set forth in this EULA and the Terms; 2. Consent to the collection, use, sharing and transfer of your data, as outlined in the Intermedia Privacy Policy (available at www.intermedia.net/legal/PrivacyPolicy.pdf for Non-UK Customers; or http://www.intermedia.co.uk/legal/uk/UKPrivacyPolicy.pdf for UK Customers) as updated from time to time, which is hereby incorporated by reference; 3. Agree to the policies governing your use of the Service including the Intermedia Acceptable Use Policy (available at www.intermedia.net/legal/acceptableusepolicy.pdf for Non-UK Customers; or http://www.intermedia.co.uk/legal/AcceptableUsePolicy.pdf for UK Customers) and the Intermedia DMCA policy (available at www.intermedia.net/legal/dmcapolicy.pdf for Non-UK Customers; or http://www.intermedia.co.uk/legal/DMCAPolicy.pdf for UK Customers) as such policies may be updated from time to time; 4. Agree that the Application may contain third party content, and that Intermedia is not responsible for any such content; 5. Agree that your license to use the Application and the Service automatically terminates if you violate this EULA or the Terms; 6. Agree not to reverse engineer, decompile, or otherwise attempt to discover the source code of the Service or any part thereof (including this Application), except and only to the extent that such activity cannot be prohibited by applicable law notwithstanding this limitation; 7. Agree that third party terms and fees may apply to the use and operation of your 1 �INTERMEDIA: SECURIS YNC EULA mobile device in connection with your use of the Application or the Service, such as your carrier’s terms of services, and fees for phone service, data access, or messaging capabilities, and that you are solely responsible for payment of any and all such fees; and 8. Agree to and acknowledge the terms and conditions set forth below. LICENSE GRANT Subject to the restrictions set forth in this EULA and the Terms, Intermedia grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to install and use one copy of the Application in object code format, solely for use in connection with the Service. Intermedia warrants that the Service will be provided with reasonable care and skill. WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY THE APPLICATION AND THE SERVICE ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INTERMEDIA DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY. UNDER NO CIRCUMSTANCES WILL INTERMEDIA BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES WHATSOEVER ARISING OUT OF THE USE OR INABILITY TO USE THE APPLICATION OR THE SERVICE, EVEN IF INTERMEDIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL INTERMEDIA’S AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF THIS EULA EXCEED THE AMOUNTS PAID BY YOU FOR THE APPLICATION. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. NOTICE REGARDING APPLE. If you are using the Application on an iOS device, you acknowledge that you have read, understood, and agree to the following notice regarding Apple. This EULA is between you and Intermedia only, not with Apple, and Apple is not responsible for the Service and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty, then you may notify Apple and Apple will refund any applicable purchase price for the Application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including, but not limited to: (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the Application infringe that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the Service. Apple, and Apple’s subsidiaries, are third party beneficiaries of this EULA, and upon your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third party beneficiary of this EULA. You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. 2 �INTERMEDIA: SECURIS YNC EULA SEVERABILITY. If any one or more of the provisions contained herein will, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability will not affect any of the other provisions of this EULA, and this EULA will be construed as if such provision(s) had never been contained herein, provided that such provision(s) will be curtailed, limited, or eliminated only to the extent necessary to remove the invalidity, illegality, or unenforceability. CONTACTING COMPANY The Service is offered by: FOR UK CUSTOMERS: Intermedia Technologies Company Ltd 4th Floor Imperial House 15 Kingsway London WC2B 6UN or FOR NON-UK CUSTOMERS: Intermedia,net, Inc. 825 East Middlefield Road Mountain View, California 94043 [email protected] 3 �
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Keyscan Inc. KEYSCAN SOFTWARE - END-USER LICENSE AGREEMENT IMPORTANT-READ CAREFULLY: This End-User License Agreement ("EULA") is a legal agreement between you (either an individual or a single legal entity) and Keyscan Inc. with which you acquired the Keyscan Inc. software product(s) identified above ("SOFTWARE"). The SOFTWARE includes Keyscan Inc. computer software, and may include associated media, printed materials, "online", or electronic documentation and Internet based services. Note, however, that any software, documentation, or web services that are included in the SOFTWARE, or accessible via the SOFTWARE, and are accompanied by their own license agreements or terms of use are governed by such agreements rather than this EULA. This EULA is valid and grants the end-user rights ONLY if the SOFTWARE is genuine. By installing, copying, downloading, accessing or otherwise using the SOFTWARE, you agree to be bound by the terms of this EULA. If you do not agree to the terms of this EULA, you may not use or copy the SOFTWARE, and you should promptly contact Keyscan Inc. for instructions on return of the unused product(s) in accordance with Keyscan's return policies. 1. SOFTWARE PRODUCT LICENSE The term "COMPUTER" as used herein shall mean the HARDWARE, if the HARDWARE is a single computer system, or shall mean the computer system with which the HARDWARE operates, if the HARDWARE is a computer system component. 1. GRANT OF LICENSE. Keyscan Inc. grants you the following rights, provided you comply with all of the terms and conditions of this EULA: Installation and Use. Except as otherwise expressly provided in this EULA. You may install, use, access, display and run only one (1) copy of the SOFTWARE on the COMPUTER. The SOFTWARE may not be used by more than the number of genuine licensed copies registered with Keyscan Inc. Mandatory Activation. THIS SOFTWARE CONTAINS TECHNOLOGICAL MEASURES THAT ARE DESIGNED TO PREVENT UNLICENSED OR ILLEGAL USE OF THE SOFTWARE. The license rights granted under this EULA are limited to the first thirty (30) days after you first run the SOFTWARE unless you supply information required to activate your licensed copy in the manner described during the setup sequence (unless Keyscan Inc. has activated for you). You can activate the SOFTWARE through the use of telephone; toll charges may apply. You may also need to reactivate the SOFTWARE if you modify your HARDWARE or alter the SOFTWARE. Back-up Copy. YOU MAY MAKE A SINGLE BACK-UP COPY OF THE SOFTWARE. You may use the back-up copy solely for your archival purposes and to reinstall the SOFTWARE on the COMPUTER. Except as expressly provided in this EULA or by local law, you may not otherwise make copies of the SOFTWARE, including the printed materials accompanying the SOFTWARE. You may not loan, rent, lease, lend or otherwise transfer the CD or back-up copy to another user. Reservation of Rights. Keyscan Inc. reserve all rights not expressly granted to you in this EULA. �2. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS. Consent to Use of Data. You agree that Keyscan Inc. may collect and use technical information gathered in any manner as part of the product support services provided to you, if any, related to the SOFTWARE. Keyscan Inc. may use this information solely to improve their products or to provide customized services or technologies to you. Keyscan Inc. may disclose this information to others, but not in a form that personally identifies you. Database Information. The information stored in the database and/or database backups files can only be accessed via the Keyscan licensed SOFTWARE. Any attempts to access the database information via unlicensed and/or unauthorized access will terminate this license agreement. Keyscan Inc. provides no direct access to the database information. Additional Software/Services. The terms of this EULA apply to Keyscan updates, supplements, add-on components, of the SOFTWARE that Keyscan Inc. may provide to you or make available to you after the date you obtain your initial copy of the SOFTWARE, unless other terms are provided along with such Supplemental Components. Limitations on Reverse Engineering, Decompile and Disassembly. You may not reverse engineer, decompile, or disassemble the SOFTWARE. Separation of Components. The SOFTWARE is licensed as a single product. Its component parts may not be separated for use on more than one computer. Single EULA. The package for the SOFTWARE may contain multiple versions of this EULA, such as multiple translations and/or multiple media versions (e.g., in the user documentation and in the software). In this case, you are only licensed to use one (1) copy of the SOFTWARE. Termination. Without prejudice to any other rights, Keyscan Inc. may cancel this EULA if you do not abide by the terms and conditions contained herein. In such event, you must destroy all copies of the SOFTWARE and all of its component parts. Trademarks. This EULA does not grant you any rights in connection with any trademarks or service marks of Keyscan Inc. or its suppliers. 3. UPGRADES If the SOFTWARE is labeled as an upgrade, you must be properly licensed to use a product identified by Keyscan Inc. as being eligible for the upgrade in order to use the SOFTWARE ("Eligible Product"). For the purpose of upgrade(s) only, "HARDWARE" shall mean the computer system or computer system component with which you received the Eligible Product. SOFTWARE labeled as an upgrade replaces and/or supplements (and may disable, if upgrading a Keyscan software product) the Eligible Product which came with the HARDWARE. After upgrading, you may no longer use the SOFTWARE that formed the basis for your upgrade eligibility (unless otherwise provided). You may use the resulting upgraded product only in accordance with the terms of this EULA and only with the HARDWARE. If the SOFTWARE is an upgrade of a component of a package of software programs that you licensed as a single product, the SOFTWARE may be used and transferred only as part of that single product package and may not be separated for use on more than one computer. 4. INTELLECTUAL PROPERTY RIGHTS All title and intellectual property rights in and to the SOFTWARE (including but not limited to any images, photographs, animations, video, audio, music, text and incorporated into the SOFTWARE), the accompanying printed materials, and any copies of the SOFTWARE, are owned by Keyscan Inc. or its suppliers. The SOFTWARE is licensed, not sold. All title and intellectual property rights in and to the content that is not contained in the SOFTWARE, but �which may be accessed through use of the SOFTWARE is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. Use of any on-line services which may be accessed through the SOFTWARE may be governed by the respective terms of use relating to such services. 5. EXPORT RESTRICTIONS. You acknowledge that the SOFTWARE is subject to U.S. and Canadian export jurisdiction. You agree to comply with all applicable international and national laws that apply to the products, including the U.S. & Canadian Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S., Canadian and other governments. 6. ADDITIONAL PROVISIONS. FOR THE LIMITED WARRANTIES, LIMITATION OF LIABILITY, AND OTHER SPECIAL PROVISIONS. PLEASE REFER TO THE ADDITIONAL PROVISIONS PROVIDED BELOW AND/OR OTHERWISE WITH THE SOFTWARE. SUCH LIMITED WARRANTIES, LIMITATION OF LIABILITY AND SPECIAL PROVISIONS ARE AN INTEGRAL PART OF THIS EULA. APPENDIX WARRANTY AND SPECIAL PROVISIONS FOR THE UNITED STATES OF AMERICA, CANADA ANY OTHER COUNTRY LIMITED WARRANTY Keyscan Inc. warrants that the SOFTWARE will perform substantially in accordance with the accompanying written materials for a period of (365) days from the date of receipt Any implied warranties or conditions on the SOFTWARE are limited to (365) days. Some states/jurisdictions do not allow limitations on duration of an implied warranty, so the above limitation may not apply to you. NO OTHER WARRANTIES. To the maximum extent permitted by applicable law, Keyscan Inc. disclaim all other warranties, either express or implied, including, but not limited to implied warranties of merchantability and fitness for a particular purpose, with regard to the SOFTWARE, the accompanying written materials, and any accompanying hardware. This limited warranty gives you specific legal rights. You may have others which vary from state/jurisdiction to state/jurisdiction. NO LIABILITY FOR CONSEQUENTIAL DAMAGES. To the maximum extent permitted by applicable law, in no event shall Keyscan Inc. be liable for any damages whatsoever (including without limitation, direct or indirect damages for personal injury, loss of business profits, business interruption, loss of business information, or any other pecuniary loss) arising out of the use of or inability to use this product, even if Keyscan Inc. has been advised of the possibility of such damages. In any case, Keyscan Inc. entire liability under any provision of this agreement shall be limited to the amount actually paid by you for the SOFTWARE. Because some states/jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to you. This Software License Agreement is governed by the laws of the Province of Ontario, Canada. Each of the parties hereto irrevocably agrees to the jurisdiction of the courts of the Province of Ontario and further agrees to commence any litigation which may arise hereunder in the courts located in the Judicial District of York, Province of Ontario. �
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Ref: November 2015 LEXIS® DRAFT AND LEXIS® DRAFT PRO End User License Agreement PLEASE READ THIS END USER LICENSE AGREEMENT (THIS “AGREEMENT”) IN ITS ENTIRETY. BY CLICKING THE "NEXT" BUTTON, YOU ACKNOWLEDGE THAT (1) YOU HAVE READ AND UNDERSTOOD THIS AGREEMENT; (2) YOU ARE AUTHORISED TO ACCEPT IT; AND (3) YOU AGREE TO ITS TERMS. IF YOU DO NOT ACCEPT THE TERMS CONTAINED HEREIN, CLICK THE "CANCEL" BUTTON BELOW. 1. LICENSE GRANT. 1.1 Subject to the terms and conditions of this Lexis® Draft and Lexis® Draft Pro End User License Agreement (this “EULA”), LexisNexis grants you a personal, limited, nonexclusive, non-sublicensable, non-transferable license for the agreed Licence Term to access and use the Lexis® Draft or Lexis® Draft Pro software product (the “Software”) set forth in your customer order form, solutions service agreement or other agreement with LexisNexis ("Order Form"). Use of the Software is subject to the terms set forth in the Order Form including the number of Licensed Users, the Licence Term and the Licence Fee set forth in the Order Form. Customer must not use the Software in excess of the number of authorised Licensed Users and/or any other restrictions/limitations described herein. Other provisions that govern your use of the Software are set forth in the LexisNexis General Terms and Conditions including any other applicable terms and conditions referenced therein ("Referenced Terms"). This EULA, your Order Form and the Referenced Terms together form your agreement with us in respect of the Software ("Agreement"). 1.2 Restrictions and Prohibitions on Use. Except as expressly permitted by Section 1.1, or upon the express prior written consent of LexisNexis, you may not, nor permit others to: (1) copy, print, republish, display, transmit, distribute, sublicense, sell, rent, lease, loan, or otherwise make available in any form or by any means (including electronic media now existing or hereafter developed), all or any substantial portion of the Software; (2) provide anyone other than your Licensed Users access to the Software or any portions thereof; (3) use the Software to develop, or as a component of, an information storage or retrieval system, database, info-base, or similar information resource (in any media now existing or hereafter developed), including through sale, license, lease, rental, subscription, or any other commercial distribution mechanism; (4) create compilations or derivative works of the Software; (5) make any portion of the Software available through any timesharing system, service bureau, the Internet, or any other technology now existing or developed in the future; (6) remove, change, or obscure any copyright notice or other proprietary notice or terms of use contained in the Software; (7) remove, disable, or defeat any functionality of the Software; (8) upload content in the Software (through the Notes feature or otherwise) that is defamatory, libellous, pornographic or obscene, unless such content is reasonably related to professional responsibilities; (9) disclose, provide or otherwise make available trade secrets contained within the Software without the prior written approval of LexisNexis; (10) alter or remove any proprietary notices or legends contained on or in the Software; (11) release, publish, and/or otherwise make available to any third party the results of any performance or functional evaluation of the Software without the prior written approval of LexisNexis; or (12) use for illegal purposes. 1.3 Electronic Documents. Solely with respect to the electronic documents included with the Software (e.g., the electronic version of the user guide), you may only make as many copies as reasonably necessary for use by each Licensed User (either in hard copy or electronic form), provided that such copies shall be used only for your sole use and are not republished or distributed to any third party. 1.4 Third Party Materials. The use of some third-party materials included in the Software may be subject to other terms and conditions typically found in a separate software agreement or "Read Me" file located in or near such materials. 1.5 Audit. Customer agrees that LexisNexis (or its third party licensor, if applicable) and its independent accountants reserves the right to examine Customer’s books, records and accounts during Customer’s normal business hours to verify compliance with these terms. In the event such audit discloses non-compliance with these terms, Customer shall promptly pay the appropriate license fees as advised by LexisNexis, plus the reasonable cost of conducting the audit. 1.6 Customers of Lexis Draft Pro only. In addition to the terms of this Agreement, Customer acknowledges and agrees that: (a) some portions of the Software licensed hereunder may make use of one or more aspects of a database of words referred to as WordNet®, from Princeton University. The following copyright notice applies to WordNet®: WordNet 3.0 Copyright 2006 by Princeton University. All rights reserved. THIS SOFTWARE AND DATABASE IS PROVIDED "AS IS" AND PRINCETON UNIVERSITY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED. BY WAY OF EXAMPLE, BUT NOT LIMITATION, PRINCETON UNIVERSITY MAKES NO REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR THAT THE USE OF THE LICENSED SOFTWARE, DATABASE OR DOCUMENTATION WILL NOT INFRINGE ANY THIRD PARTY PATENTS, COPYRIGHTS, TRADEMARKS OR OTHER RIGHTS. The name of Princeton University or Princeton may not be used in advertising or publicity pertaining to distribution of the software and/or database. Title to copyright in this software, database and any associated documentation shall at all times remain with Princeton University and LICENSEE agrees to preserve same. (b) The third party licensor may amend its terms of use at any time on reasonable notice, including without limitation by posting revised terms on its website at http://www.wordrake.com/wordrake2eula.html which amended terms you shall be binding on you. 2. COPYRIGHT. LexisNexis and its third party licensors and developers hold exclusive ownership of the Software and all intellectual property rights embodied therein, including copyrights and valuable trade secrets incorporated in the Software's design and coding methodology including any documentation, user manuals, specifications or derivative works thereof. The Software is protected by United States and international copyright laws and international treaty provisions. This EULA does not grant you any ownership or intellectual property rights in the Software. All suggestions or feedback provided by the Customer to LexisNexis, its employees, agents or third party licensors with respect to the Software shall be the property of LexisNexis and/or its third party licensors and Customer hereby assigns the same to LexisNexis and/or its third party licensors. You may make one copy of the machine-readable form of the Software for backup or archive purposes and as such you must reproduce the original copyright notice with that copy. 3. REVERSE ENGINEERING. You agree that you will not, nor will you permit others to attempt to: (i) modify or translate the Software; (ii) decompile, decrypt or disassemble the Software or reduce the Software to human-readable form, (iii) create derivative works based on the Software; (iv) merge �Ref: November 2015 the Software with or into another product not approved for use by LexisNexis (excluding Microsoft Office); or (v) copy the Software except as expressly permitted by this EULA. 4. SOFTWARE SUPPORT. 4.1 As part of your licence of the Software, LexisNexis will provide the following support and maintenance for the Software in the first year commencing on the date you purchase the Software licence (“Support Services”): (a) Product Support. LexisNexis will provide support services for the Software according to the support centre; (b) Software Problem Resolution. If you report to LexisNexis that the Software does not function according to the user-level documentation for the Software (“Software Problem”) and otherwise comply with Section 5, LexisNexis will investigate the Software Problem within a reasonable time after receiving proper notice from you, and sufficient information to identify the problem. LexisNexis will work to correct the Software Problem(s) that can be verified based on the information provided by you utilizing a system that meets the system requirements for the Software. If the investigation confirms the existence of a Software Problem, LexisNexis will use reasonable efforts to correct the Software Problem which may include implementing a temporary work-around. If LexisNexis, in good faith, determines that the Software Problem results from an error in the applicable user-level documentation, LexisNexis may correct the Software Problem by correcting that documentation. (c) Software Updates and Upgrades. The license granted herein is only to the Software product offering specified on your Order Form. This license does not entitle you to have access or use of any other Lexis Draft software module or product. In order to ensure the proper operation of the Software in accordance with its written documentation, LexisNexis will provide you with patches, bug fixes, corrections and minor enhancements during the first 12 months from the date of purchase of the Software (“Updates”). Updates will be provided free of charge as they become commercially available from LexisNexis in the first 12 months. Thereafter, LexisNexis may continue to provide Updates free of charge at its discretion. LexisNexis may also provide you with feature or functionality enhancements to the Software (an “Upgrade”) as such Upgrades become commercially available from LexisNexis and which may be chargeable. LexisNexis’s distribution of Upgrades and/or Updates to you does not entitle you to use more copies of the Software than the number of Licensed Users for which you have a valid licence. This license, including the release of any Update or Upgrade to the Software, does not entitle you to have access to or use of any other Lexis Draft software product. If you wish to use any other Lexis Draft software product, you may be required to execute an agreement with LexisNexis which contains the appropriate terms of use and charges for the applicable Lexis Draft software module/product. Your use of an Upgrade or Update is licensed in accordance with the terms and conditions of this EULA. 4.2 LexisNexis is not obligated to provide Support Services for any Software (a) that has been provided to you free of charge, (b) that has been altered other than by LexisNexis or at LexisNexis’s direction, (c) that is more than one version out of date or (d) that has been discontinued. 4.3 LexisNexis retains the right to change or modify the Support Services offered herein at any time and from time to time upon thirty (30) days’ written notice to you. 5. YOUR RESPONSIBILITIES. 5.1 The Support Services do not include, and you must provide at your expense unless otherwise expressly agreed by you and LexisNexis in writing: (a) installation, testing, and operation of the Software and all Upgrade and/or Updates; (b) isolation and documentation of Software Problems; (c) intranet resources, backup and restoration of your systems; and (d) modems and Internet access for LexisNexis’s remote access and diagnosis of Software Problems, when necessary. 5.2 LexisNexis is not responsible for products provided to you by third parties, whether or not LexisNexis recommended them or assisted in their evaluation, selection, or supervision. The failure of those products or their respective suppliers to meet your requirements will not affect either party’s obligations under this EULA. 6. WARRANTY. 6.1 LexisNexis warrants that at the time of installation, the Software will operate substantially in accordance with the documentation provided with the Software on delivery as at the date of installation, unless performance problems are the result of hardware failure, improper use, or modification by you or your agents or contractors or due to your failure to install Updates. If the Software does not so operate substantially in accordance with this clause, your exclusive remedy and LexisNexis's sole obligation under this warranty shall be, in LexisNexis’s sole discretion, either to replace the Software, to provide you with a bug fix or patch, or to refund the Licence Fee. 6.2 LexisNexis further warrants that Software Support will be performed in a professional manner, consistent with industry standards. 6.3 If you are a “consumer” for the purposes of Australian Consumer Law, we are required to include the following statement as a result of the undertakings described in Section 4.1, 6.1 and 6.2. Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. Under the Australian Consumer Law, you are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure. The benefits to you described in Sections 4.1, 6.1 and 6.2 are in addition to other rights and remedies you have under the Australian Consumer Law and other laws. Our warranties are provided by Reed International Books Australia Pty Limited trading as LexisNexis, Address: Tower 2, 475 Victoria Avenue, Chatswood NSW 2067, Telephone Number : 1800 772 772 Email: [email protected]. However, please be aware that the Australian Consumer Law permits us to limit our liability in respect of the guarantees referred to above in accordance with the limitation in Section 6.4. 6.4 If you are a “consumer” for purposes of the Australian Consumer Law, certain guarantees may be conferred on you and certain rights and remedies may be conferred on you which cannot be excluded, restricted or modified. If so, then to the maximum extent permitted by law, our liability to you is limited at our option to: (a) In the case of goods, replacement or repair of goods or payment of the cost of replacing or repairing the goods; and �Ref: November 2015 (b) In the case of services, re-supply of the services or payment of the cost of re-supplying the services. 6.5 Subject to Section 6.4 and to the maximum extent permitted by law, we hereby exclude all other conditions, warranties, guarantees or representations, express or implied, by statute, trade or otherwise, including without limitation: LEXISNEXIS DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE, UPGRADE OR UPDATE WILL MEET ANY PARTICULAR REQUIREMENTS OR NEEDS YOU MAY HAVE, THAT THE SOFTWARE, UPGRADE OR UPDATE (INCLUDING SOFTWARE WHICH LEXISNEXIS CREATES OR MODIFIES FOR YOU) WILL OPERATE UNINTERUPTED OR BUG/ERROR-FREE, OR THAT THE SOFTWARE, UPGRADE OR UPDATE IS COMPATIBLE WITH ANY PARTICULAR PLATFORM, SYSTEM OR APPLICATION. PORTIONS OF THE SOFTWARE HAVE BEEN DEVELOPED BY THIRD PARTIES AND SUCH PORTIONS ARE PROVIDED “AS IS.” ADDITIONALLY, IF YOU RECEIVED THE SOFTWARE FREE OF CHARGE, THE SOFTWARE IS PROVIDED TO YOU "AS IS" WITHOUT WARRANTY OF ANY KIND. ALL WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN APPLY TO LEXISNEXIS’S SOFTWARE DEVELOPERS, SUBCONTRACTORS AND SUPPLIERS. IT IS THE MAXIMUM FOR WHICH THEY AND LEXISNEXIS ARE COLLECTIVELY RESPONSIBLE. 7. FEES AND PAYMENT FOR LICENCE. 7.1 Applicable fees and charges for the Software and the support services are set forth in your Order Form. Unless otherwise stated, the fees for the licence do not include any taxes, such as sales, use, or excise taxes and are non-refundable. 7.2 In the event LexisNexis sends you an invoice for the Licence Fees, you shall pay LexisNexis the net amount of each invoice in Australian dollars within 30 days after the date of the invoice. If you fail to pay any invoiced amount when due, LexisNexis may charge you interest on the unpaid balance from the date of the invoice until the date paid at a rate equal to 1.5% per month or the highest rate permitted by law, whichever is lower. 8. TERMINATION. The Agreement may be terminated in accordance with the LexisNexis General Terms and Conditions. Upon termination of the Agreement, you will promptly cease all use of the Software and will return all copies of the Software and documentation to LexisNexis or, at the option of LexisNexis, certify to LexisNexis in writing, signed by an executive officer, that all copies of the Software and documentation have been destroyed. Termination of the Agreement will not be an exclusive remedy and all other remedies will be available to either party whether or not the Agreement is terminated. 9. LIMITATIONS OF LIABILITY. SUBJECT TO SECTION 6.4, NOTWITHSTANDING THE TERMS CONTAINED IN THIS EULA, IN NO EVENT AND UNDER NO LEGAL THEORY, INCLUDING WITHOUT LIMITATION, TORT, CONTRACT, OR STRICT PRODUCTS LIABILITY, SHALL LEXISNEXIS, ITS PARENT, AFFILIATES, OR ANY OF ITS SOFTWARE DEVELOPERS, SUPPLIERS OR SUBCONTRACTORS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR DATA, COMPUTER MALFUNCTION, OR ANY OTHER KIND OF COMMERCIAL DAMAGE, EVEN IF LEXISNEXIS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER LOCAL LAW, CERTAIN LIMITATIONS MAY NOT APPLY, AND YOU MAY HAVE ADDITIONAL RIGHTS WHICH VARY FROM STATE TO STATE. SUBJECT TO SECTION 6.4 AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL LEXISNEXIS'S LIABILITY FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, EXCEED THE AMOUNT OF THE LICENCE FEE PAID BY YOU FOR THE PRECEDING TERM. You agree that a material breach of the terms and conditions herein adversely affect the intellectual property rights of LexisNexis (or its third party licensor, if applicable) in the Software or confidential information and may cause irreparable injury for which monetary damages would not be an adequate remedy and as such LexisNexis shall be entitled to equitable relief (without a requirement to post a bond) in addition to any remedies it may have hereunder or at law. In addition, you shall defend, indemnify and hold harmless LexisNexis (and/or its third party licensor, if applicable) and their officers, directors, employees, agents, affiliates, representatives, and distributors, from and against any and all suits, actions, claims, costs, damages, losses, liabilities and expenses (including legal fees) they may suffer or incur in connection with your breach of the licence terms in Sections 1 – 3 of this Agreement. 10. INDEMNITY. Subject to the terms herein, LexisNexis (or its third party licensor, if applicable), at its expense, shall defend Customer from any and all third party claims that the Software infringes or violates any third party intellectual property right in the country that the Customer purchased a license to the Software and shall indemnify Customer from any amounts assessed against Customer in a resulting judgment or amounts to settle such claims, provided that Customer: (a) gives prompt written notice of any such claim; (b) permits LexisNexis to control and direct the defense or settlement of any such claim; and (c) provide all reasonable assistance in connection with the defense or settlement of any such claim, at its expense. If Customer’s use of the Software is (or in LexisNexis’ opinion is likely to be) enjoined, then, at its expense and in its sole discretion, may: (i) procure the right to allow Customer to continue to use the Software, or (ii) modify or replace the Software or infringing portions thereof to become non-infringing, or (iii) if neither (i) nor (ii) is commercially feasible, terminate Customer’s right to use the affected portion of the Software. To the extent any infringement claim is based upon or arises out of: (i) any modification or alteration to the Software not made by LexisNexis or its third party licensors; (ii) any combination or use of the Software with products or services not approved by LexisNexis in writing; (iii) Customer’s continuance of allegedly infringing activity after being notified thereof; (iv) Customer’s failure to use any Updates made available by LexisNexis; and/or (v) use of the Software not in accordance with the applicable documentation or outside the scope of the license granted under this Addendum. The remedies set forth in this Section constitute Customer’s sole and exclusive remedies, and LexisNexis’ entire liability, with respect to infringement or misappropriation of third party intellectual property. 11. EXPORT RESTRICTIONS. You agree that you will not permit use of or export, directly or indirectly, re-export, divert or transfer the Software in violation of any applicable export control law or regulation, including without limitation, the U.S. Export Administration Regulations (“Export Controls”). 12. MISCELLANEOUS. 12.1 LexisNexis (or its third party licensor, if applicable) retains sole title to and ownership of the Software and all components, all related information furnished to you under this Addendum, and all related copyrights, trade secrets, and other intellectual property. 12.2 LexisNexis furnishes products and services to you under this EULA on a non-exclusive basis. LexisNexis may directly or indirectly furnish the same or similar products and services to other parties doing business within or outside the vertical, horizontal, or geographic markets in which you do business. �Ref: November 2015 12.3 Except as otherwise provided herein, all notices and other communications to you hereunder shall be in writing or displayed electronically in the Software. Notices to you shall be deemed to have been properly given on the date posted, if posted; on the date first made available, if displayed in the Software; or on the date received, if delivered in any other manner. Notices to us should be sent to your LexisNexis account representative, or if you do not have an account representative to LexisNexis customer services, at LexisNexis, Level 1, Tower 2, 475 Victoria Avenue, Chatswood NSW 2067 with a copy by email to [email protected]. Notices to you, if sent by email or by post, shall be sent to the postal address or email address LexisNexis has on record. 12.4 Any change to the customer details, including name, invoice, delivery and site addresses must be notified to us in writing within 30 days of the date of the change. 12.5 Each party shall submit requests for approvals, consents, and waivers to the other party in writing in a timely manner. No approval, consent, or waiver under this EULA shall be enforceable unless set forth in a writing signed by an Authorised representative of the granting party. A waiver of a default of any term of this EULA shall not be construed as a waiver of any succeeding default of that term or as a waiver of the term itself. A party's performance after the other party's default shall not be construed as a waiver of that default. No approval, consent, or waiver shall be deemed to have been given by implication and neither party shall be liable for delays in responding to, failures to respond to, or denials of those requests. 12.6 LexisNexis acknowledges and agrees that (i) all documents and communications sent by you to the Lexis Draft or Lexis Draft Pro server are confidential; and (ii) legal professional privilege may attach to them. LexisNexis will use reasonable endeavours to maintain the confidential nature of such documents and communications, including ensuring proper and secure storage for documents and communications whilst in its control. Whilst LexisNexis strives to maintain the security and integrity of its IT systems and databases in accordance with good industry practice, no IT system or telecommunication network can be guaranteed. 12.7 LexisNexis excludes all liability for breach of confidentiality or security if the breach is caused other than by a negligent act or omission of LexisNexis. 12.8 You acknowledge that the Software contains confidential and proprietary information and trade secrets belonging to LexisNexis or its third party licensors and that such information and trade secrets are being provided to you on a confidential basis. You shall maintain the confidential nature of the Software and any documentation which is provided for your own internal use under this license in the same manner you would protect your own confidential material. 12.9 Each term of this EULA is severable. If a court, agency, or arbitrator having jurisdiction determines that any term is unenforceable under applicable law, that determination shall not affect the enforceability of the other terms of this EULA. 12.10 This EULA, together with the Order Form and any Referenced Terms, constitutes the complete agreement between the parties concerning this subject, and supersedes all earlier oral and written communications between the parties with respect to this subject. 12.11 Neither party shall assign its rights or delegate its duties under this EULA without the prior written consent of the other party, except that LexisNexis may assign this EULA to an affiliate or to its successor by merger or to the transferee of substantially all of its stock or assets without your prior consent. Any assignee or delegatee shall be subject to the same obligations, restrictions, and limitations to which the assignor or delegator is subject, and no assignor or delegator shall be released from liability under this EULA by reason of any such assignment or delegation. This EULA shall be binding on and inure to the benefit of the parties and their respective successors and permitted assigns. ************ November, 2015 �
nw/88.txt
Red Gate Standard EULA Any use of the Software (as defined below) is subject to the terms of this licence agreement (“Agreement”). Please read the full Agreement carefully. You confirm that you accept and agree to be legally bound by all terms and conditions of this Agreement, which will take effect: (i) when you click “I ACCEPT” when prompted as part of download of any Software purchased through our website (and a copy of this can be found at https://www.red-gate.com/purchase/license.pdf); or (ii) when you click “I ACCEPT” when prompted as part of download and/or installation through our website of any Software purchased through a Reseller; or (iii) on signature of a paper version of this Agreement (which will incorporate any documents attached to it at the time of signature e.g. quotes). IMPORTANT NOTICES: (i) Where you sign a paper version of this Agreement, that paper version will take precedence over any subsequent click to agree versions of this Agreement presented on download and/or installation; and (ii) This Agreement shall prevail over your standard terms and conditions (if any) attached to, enclosed with, or referred to in, the purchase order or confirmation of order. TERMS AND CONDITIONS 1 DEFINITIONS In this Agreement, the following terms shall have the following meanings: “Automation Agent” means an instance of automation of our Software. This can be scheduled automation or manually triggered automation; “Per Automation Agent Licensed Software” means the Software listed in Schedule 7; “Bundle” means a set of more than one of the Software products that are supplied together for a single price. The titles of the Bundles are listed in Schedule 4; "Client Component" means, where the Licensed Software is Per OSE Licensed Software, any component of the Per OSE Licensed Software directed to or otherwise provided for accessing the Server Component; “Distribution” in the context of the SQL Comparison SDK means an instance of any of the files comprising the SQL Comparison SDK installed on an OSE other than the one on which you are developing your SQL Comparison SDK implementation; "DLM Automation Component" means any or all of the components of the software known as "DLM Automation" listed in Schedule 2; “Download” or “download” in connection with the Licensed Software means the downloading of the Licensed Software from our or any third party's remote server; “Free Edition Software” means certain of our Software, as specified in the relevant Software information on our website https://www.red-gate.com/products/free-tools and/or listed in Schedule 8 that is offered as a free edition (sometimes with limitations on the free use) as an alternative to a Licence Fee version; "Freeware" means the Software as specified in the relevant Software information on our website https://www.red-gate.com/products/free-tools for which there is not an alternative Licence Free version; “Install”, "install", "installing", "installation" or "installed" in connection with the Licensed Software means installation of the Licensed Software using a serial key provided by us or a Reseller; �"Intellectual Property Rights" means patents, registered designs, registered trade and service marks, registered copyright and modifications to and applications for any of the foregoing and the right to apply for protection for such registered rights anywhere in the world and inventions, discoveries, copyright, database right, unregistered trade or service marks, brand names or know-how and any similar or equivalent rights whether capable of registration or not arising, applied for or granted under the laws of any country; "Licence" means the licence to use the Licensed Software, set out in clause 3, 5 and/or Schedule 3 as appropriate; "Licence Fee(s)" means the fees payable by you under this Agreement to us excluding VAT and all other relevant taxes, including Withholding Tax where applicable, as detailed by us from time to time including through our website, as part of a written quotation or renewal; “Licensed Materials” has the meaning set out in Schedule 3; “Licensed Software” means such of the Software, as is selected by you and as licensed to you under the terms of this Agreement, including any related manuals, help files or other documentation; “Linked Software” means the complete set of Software associated with the relevant Bundle title as listed in Schedule 4; “OSE” means an Operating System Environment which is all or part of an operating system instance, or all or part of a virtual (or otherwise emulated) operating system instance which enables separate machine identity (primary computer name or similar unique identifier) or separate administrative rights; "Preview Software" means any beta version of the Software made available to you for preview prior to full release; "Per OSE Licensed Software" means any or all of the Software listed in Schedule 1; "Per User Licensed Software" means any or all of the Software listed in Schedule 2; “Reseller” means any third party authorized by us to sell licences to the Software; "Server Automated Process" means a task or job which runs or is triggered by a server; "Server Component" means, where the Software licensed to you under this Agreement is Per OSE Licensed Software, the server-based components on a single OSE; "Software" means any or all of the software products in executable form listed in Schedules 1 through 4 inclusive, and Schedule 7; "SQL Comparison SDK" (also known as "Synchronization Toolkit" or "SQL Toolkit") means any or all of the software, associated documentation and help files comprising an application programming interface as listed in Schedule 3; “Support Package” means the support and upgrade package for the Licensed Software products as described in Schedule 5; “Term” means the term for which we agreed to provide the Support Package to you during the purchase process; “We”, “Our”, “Us” and the non-capitalised versions means Red Gate Software Limited, a company registered in England with company number 3857576 and having its registered office at Newnham House, Cambridge Business Park, Cambridge CB4 0WZ, United Kingdom; �“You”, “Your” and the non-capitalised versions means, whether the Licensed Software is obtained directly from us or through a Reseller, (a) where an individual downloads and/or installs the Licensed Software on a OSE for his own personal use, that individual (a “Consumer”); or (b) where an individual downloads and/or installs the Licensed Software on a OSE for business use, that individual’s employer (and we will assume that such individual has the authority to purchase on behalf of their employer); or (c) where an entity or organisation downloads and/or installs the Licensed Software on a OSE for use by its employees, that entity or organisation (and such entity shall be responsible for all use by its employees of the Licensed Software). 2 HEADINGS The headings to the clauses and Schedules of this Agreement are for convenience only and will not affect its construction or interpretation. 3 3.1 EVALUATION LICENCE In return for the mutual rights and obligations set out in this Agreement, we grant you the right to use the Licensed Software for a period of 14 days from when it is initially installed by or on behalf of you ("Evaluation Period"). During the Evaluation Period you can decide whether or not the Licensed Software meets your requirements. The Evaluation Period may be extended by written agreement with us. Note that this clause 3 does not apply to the Freeware. During the Evaluation Period, you hereby agree that the Licensed Software is provided "AS IS" with no representation, guarantee or warranty of any kind as to its functionality, quality, performance, suitability or fitness for purpose. All other terms, conditions, representations and warranties expressed or implied whether by statute or otherwise are hereby expressly excluded. We shall not be liable for any claim, damages or other liability arising from or in connection with your use of the Licensed Software during the Evaluation Period. For the avoidance of doubt, during the Evaluation Period: (a) clauses 5.1, 8.1, 9.3 and 13.2 of this Agreement shall not apply; and (b) clause 13.1 shall apply except that the reference to clause 13.2 is deleted. Before or upon expiry of the Evaluation Period: 3.5.1 if, in your sole opinion, the Licensed Software has met your requirements, and you wish to continue to use the Licensed Software beyond the end of the Evaluation Period, you can decide whether to obtain a licence to the Free Edition Software or the equivalent Licence Fee version. Once the appropriate the licence has been obtained, this Agreement shall continue in force (except that this clause 3 shall no longer apply). 3.5.2 if you decide that the Licensed Software does not meet your requirements, or otherwise do not wish to enter into a paid up Licence, then you shall destroy the Licensed Software and all copies, in any form including partial copies or modifications of the Licensed Software received from us or made in connection with this Licence and all documentation relating thereto. Any rights of yours to use the Licensed Software shall cease. 3.2 3.3 3.4 3.5 4 4.1 OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS You acknowledge that: 4.1.1 all Intellectual Property Rights in or relating to the Licensed Software are owned by or licensed to us or licensed to us for business use; and 4.1.2 except as expressly granted under the Licence, you have no rights in the Licensed Software. �4.2 4.3 4.4 5 5.1 5.2 5.3 5.4 You hereby agree to refrain from any action which would diminish our Intellectual Property Rights in or relating to the Licensed Software or which would call them into question. You agree not to remove or alter any trade marks, copyright notices or similar proprietary devices, including without limitation any electronic watermarks or other identifiers, that may be incorporated in the Licensed Software or any copy of the Licensed Software. If you become aware of any infringement or suspected infringement of our Intellectual Property Rights in or relating to the Licensed Software by any third party, you shall notify us without delay. We and you shall consult together on an appropriate course of action but neither party shall be obliged to take any action in respect of any such infringement or suspected infringement. LICENCE In return for the mutual rights and obligations under this Agreement, and subject to (a) (other than in relation to the Freeware and the Free Edition Software) the payment of the Licence Fees by you to us and, where relevant, additional Licence Fees, (b) clauses 10 and 11 (and in relation to SQL Comparison SDK, paragraphs 1, 2 and 4 of Schedule 3) we grant to you in perpetuity a limited, personal, non-exclusive, non-sub-licensable and non-transferable licence: 5.1.1 subject to clauses 5.3 and 5.4, to use and copy the Licensed Software for use on a single OSE owned, leased and/or controlled by you for internal use; 5.1.2 subject to clause 5.3, to make one copy of the Licensed Software in machine readable form for normal operational security and back-up purposes. You must ensure that such copy is not installed on any OSE at any time when the original copy of the Licensed Software supplied to you is installed upon any other OSE. The Licence will apply to such copy as it applies to the original copy of the Licensed Software installed by you. Such copy and the media on which it is stored will be our property and you shall ensure that such copy bears our proprietary notice; and 5.1.3 in addition, where the Licensed Software is Per OSE Licensed Software: (i) to use and copy the Server Component on a single OSE owned, leased and/or controlled by you for internal use; and (ii) where applicable, to use and copy the Client Component on one or more OSEs leased and/or controlled by you for internal use. 5.1.4 In addition, where the Licensed Software includes one or more Bundles then the Linked Software within each Bundle must be used in the same OSE. Except as stated in this Licence, you have no right to use, incorporate into other products, copy, publish, display, modify, translate the Licensed Software or any modification, adaptation or copy of the Licensed Software or any part thereof. You may only decompile, reverse engineer, or disassemble the source code of the Licensed Software either in whole or in part, as expressly permitted under the Licence or under Sections 50(A), (B) and (BA) of the Copyright, Designs and Patents Act 1988 (as amended or updated from time to time) or other applicable law. Where the Licensed Software is: 5.3.1 Per User Licensed Software, it is licensed for use by a specific user only. Per User Licensed Software may be used by the licensed user on more than one OSE. The Licence is personal to you. Except as allowed in clause 21, you may not rent, lease, sub-license, sell, assign, or pledge the Licensed Software, on a temporary or permanent basis, without our prior written consent. �5.5 5.6 5.7 5.8 5.9 5.10 5.11 5.12 5.13 6 6.1 6.2 6.3 You shall not use the Licensed Software to manufacture or distribute a product that is substantially similar to or competitive with our Software. Where the Licensed Software is SmartAssembly or SmartAssembly Pro then the following shall apply in addition to the rights in clause 5.1: 5.6.1 we will provide a server on which to store up to 1000 of your error reports; and 5.6.2 we will use reasonable endeavours to ensure that such server remains available. However, we do not provide any special facilities such as fault tolerance and so cannot guarantee that provision of the storage service on the server will be uninterrupted or that reports will not be lost. Licence to Free Edition Software and Freeware. In return for the mutual rights and obligations set out in this Agreement, we grant you the right to use the Freeware and Free Edition Software. We specify limitations on free use of some of our Free Edition Software in the relevant Software information on our website https://www.red-gate.com/products/free-tools and in clause 5.12 as an alternative to an unrestricted Licence Fee version. Licence to Preview Software. In return for the mutual rights and obligations set out in this Agreement, we grant you the right to use the Preview Software. For the avoidance of doubt: (a) clauses 3, 6, 8.1 and 8.4 of this Agreement shall not apply to the Free Edition Software, Freeware and Preview Software; and (b) clause 13.2 shall apply except that the wording "and in such event, we shall refund to you all Licence Fees paid" shall be deleted and replaced with ", but no financial reimbursement will be given to you in such circumstances." SQL Comparison SDK. Where you have elected to take a licence for the SQL Comparison SDK with your selected Licensed Software, the terms set out in Schedule 3 shall apply in relation to such Licensed Software in addition to the Licence in clause 5. DLM Automation and SQL Toolbelt. To contribute or input database changes to a Server Automated Process that uses any DLM Automation Component(s), you must have a licence for DLM Automation. A licence for DLM Automation is only available as part of a licence of the Bundle known as SQL Toolbelt. VISUAL STUDIO 2017 Free Edition Software. Only where the Licensed Software is both accessed through Visual Studio 2017 and is listed in Schedule 8, the following shall apply: 5.12.1 the rights granted under clause 5 to use the Licensed Software shall continue only for the applicable licence period specified in Schedule 9 ("Free Licence Period"). 5.12.2 Schedules 1-7 (inclusive) do not apply. 5.12.3 if at any time you obtain a paid up licence of SQL Prompt Pro or ReadyRoll Pro, your use of SQL Prompt Pro or ReadyRoll Pro (as applicable) will be governed by this Agreement, except that clauses 5.7, 5.9 and 5.12 will no longer apply. If you breach this clause 5, the Licence or rights granted will automatically terminate in accordance with the provisions of clause 10. PAYMENT Licence Fees shall be invoiced by us to include VAT and/or other relevant taxes, including Withholding Tax. Schedule 6 gives details of how such taxes are handled. Licence Fees shall be payable on installation of the Licensed Software and/or on purchase and/or renewal of a Support Package (as applicable), except where agreed otherwise in writing with us. Licence Fees for certain of the Licensed Software may differ depending on your status, and our website will identify where this is relevant. In relation to such Licensed Software, �6.4 7 7.1 7.2 7.3 7.4 7.5 8 8.1 8.2 you must let us know if your status changes and we will be entitled to invoice for additional Licence Fees if appropriate. Failure to inform us of a change of status is a breach of your Licence and this Agreement. Where you have obtained the Licensed Software through a Reseller, the terms you have agreed with such Reseller in relation to payment and invoicing will apply instead of this clause 6 (and Schedule 6). CONFIDENTIALITY The structure, organisation, and source code of the Licensed Software are valuable trade secrets and proprietary confidential information of ours and our licensors. You agree not to provide or disclose any confidential information in the Licensed Software or derived from it to any third party, including where such confidential information is derived under any applicable law as set out in clause 5.2 (except in, and limited to, the circumstances permitted under Schedule 3). Other than the disclosures referred to in our Privacy Policy (see clause 12), we agree not to provide or disclose any information of a confidential nature in any form whatsoever which is disclosed by or on behalf of you to us to any third party. The provisions of clauses 7.1 and 7.2 will not apply to the extent that: 7.3.1 such information is in the receiving party’s possession free from any restriction as to its use or disclosure; or 7.3.2 the receiving part can demonstrate that such information is in the public domain (other than as a result of an unauthorised disclosure); or 7.3.3 such information is required to be disclosed by law. No information to which clause 7.3.3 applies shall be disclosed to a third party unless and until the receiving party has (unless prevented from doing so by law): 7.4.1 given the disclosing party, where practicable, five (5) U.K. business days, written notice of such proposed disclosure; 7.4.2 consulted with the disclosing party; and 7.4.3 agreed with the disclosing party the content of the disclosure provided that it shall not limit the disclosure in a manner which would prevent the receiving party from complying with a statutory or regulatory obligation or court order. For the purpose of this clause 7, “receiving party” means the party receiving the confidential information and “disclosing party” means the party by whom confidential information is disclosed. WARRANTY AND SUPPORT We hereby warrant that: 8.1.1 we own the Intellectual Property Rights in the Software and/or have the right to grant a licence to you; 8.1.2 in creating the Licensed Software, we have not knowingly infringed the intellectual property rights of third parties; and 8.1.3 the Licensed Software shall operate substantially in accordance with its description. However, you acknowledge that the Licensed Software and related materials is of such a complexity that there will be inherent defects and that therefore we can give no warranty that the Licensed Software is free from error or defect or that operation of the Licensed Software shall be uninterrupted. Other than as provided for in clause 8.1 above, we do not offer any warranty related to the Licensed Software and/or the Support Package, either express or implied, including but not limited to implied warranties of fitness for purpose or satisfactory quality. The Licensed Software has been developed as a standard product for use by a wide variety �8.3 8.4 9 9.1 9.2 9.3 9.4 10 10.1 10.2 of users and so we are unable to warrant that the Licensed Software will meet any particular user needs. You shall take full responsibility for ensuring that the Licensed Software is suitable for your intended purposes and to facilitate your checks of such suitability, we offer a free Evaluation Period. In relation to the Free Edition Software, Preview Software and Freeware, you hereby agree that the Licensed Software is provided "AS IS" with no representation, guarantee or warranty of any kind as to its functionality, quality, performance, suitability or fitness for purpose. All other terms, conditions, representations and warranties expressed or implied whether by statute or otherwise are hereby expressly excluded. Support. In relation to and without prejudice to the generality of clause 8.2 above, we provide support to users via our web site and user forums. You may also purchase a Support Package with certain of the Licensed Software, and when purchased, provision of the Support Package shall be subject to the terms of this Agreement. You accept that, although we will use reasonable endeavours to solve problems identified by purchasers of the Support Package, the nature of software is such that no guarantee can be provided that any particular problem will be solved. We shall have the right to withdraw services under the Support Package, without notice, if you are in default under any terms of this Agreement. LIMITATION AND EXCLUSION OF LIABILITY We do not exclude our liability (if any) to you: 9.1.1 for personal injury or death resulting from our negligence; 9.1.2 for fraud; or 9.1.3 for any other matter for which liability cannot be excluded by law. Subject to clause 9.1, we shall not be liable to you for any of the following types of loss or damage arising under or in relation to this Agreement (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise): 9.2.1 any loss of profits, business, contracts, anticipated savings, goodwill, or revenue; or 9.2.2 any loss, or corruption, of software or data; or 9.2.3 any loss of use of hardware, software or data; or 9.2.4 any indirect, special or consequential loss or damage whatsoever, even if we have been advised in advance of the possibility of such loss or damage. Subject to clauses 9.1 and 9.2, our aggregate liability under this Agreement (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) shall be limited in all cases to the price paid for the Licensed Software. In relation to the Free Edition Software, Preview Software and Freeware, our sole liability under this Agreement, subject to clause 9.1, shall be as set out in clause 13.2 as amended by clause 5.9. You acknowledge that the provisions of clauses 8, 9 and 13.1 are reasonable and reflected in the price which would be higher without those provisions, and you will accept such risk. In the event that any of the limitations or exemptions in this Agreement shall be found to be void, clauses 8, 9 and 13.1 shall be construed in accordance with clause 16. TERM AND TERMINATION The Licence shall commence upon your acceptance of its terms and shall continue in perpetuity unless terminated in accordance with clause 10.3 or 10.4, or otherwise in accordance with this Agreement. Any Support Package you purchase will be provided for the Term, unless terminated in accordance with clause 10.3 or 10.4, or otherwise in accordance with this Agreement. �10.3 10.4 10.5 10.6 10.7 10.8 11 11.1 11.2 11.3 11.4 We may terminate the Licence and/or Support Package immediately and without notice if: 10.3.1 we reasonably suspect that you are using the Licensed Software for any purpose which contravenes the laws of England; or 10.3.2 you materially fail to comply with any provision of this Agreement. The Licence will terminate automatically: 10.4.1 if you uninstall the Licensed Software, or uninstall and destroy or voluntarily return the Licensed Software to us; or 10.4.2 at the end of the Free Licence Period. Where the Licence is terminated in accordance with clause 10.3 or 10.4, then the Agreement shall terminate in its entirety. Upon termination of this Agreement, you must uninstall the Licensed Software and destroy all copies of the Licensed Software including all components of it in your power, possession or control. The termination of this Agreement howsoever arising shall not affect the rights, duties and liabilities of either party accrued prior to termination. Following termination, no obligations or liabilities remain with us. On termination of this Agreement, and except as under clause 10.5 above, the provisions of clause 1 (Definitions), 2 (Interpretation), 4 (Ownership of Intellectual Property Rights), clause 7 (Confidentiality), clauses 8.2 and 8.3 (Warranty), clause 9 (Limitation and Exclusion of Liability), clause 10 (Term and Termination), clause 11 (Audit), clause 13 (Third Party Claims), clauses 14 to 21 and paragraph 3 of Schedule 3, will remain in effect. AUDIT You agree that we shall have the right (where we reasonably suspect that the terms of clauses 5 and 6 have not been complied with or that you are otherwise in breach of this Agreement) upon reasonable notice to have an independent third party auditor enter your premises to audit any OSE system or electronic media onto which the Licensed Software or any adaptation, modification or copy of the Licensed Software has been installed in order to verify compliance with this Agreement. Prior to exercising such right to audit we and/or the third party auditor shall if required by you enter into an appropriate and reasonable confidentiality agreement. We will pay the costs of any such examination or audit unless such audit shows that additional fees are payable by you or that you are otherwise in breach of this Agreement, in which case you shall pay the costs of the examination or audit. Where we reasonably conclude that additional Licence Fees are due from you under this Agreement, we shall make a request in writing. You shall pay such additional Licence Fees within thirty (30) days of the date of the request. Non payment of such fees shall, without prejudice to any other rights that we might have, give us the right to terminate this Agreement with immediate effect. Where we reasonably conclude that you are otherwise in breach of this Agreement, we shall at our sole choice provide you with written notice of such breach and either (i) provide details of any remedial action required by you; or (ii) terminate this Agreement. Where the SQL Comparison SDK is licensed to you, we shall also have the right to audit through independent certified public accountants all records and accounts of yours which contain information bearing upon the amount of Licensed Products licensed, sold or distributed by you. We shall ensure that such independent accountants are bound by confidentiality undertakings at least as onerous as those set out in clause 7. To the extent an examination and audit reveals more than 10 copies of Licensed Products incorporating Licensed Materials having been made, distributed, sold or licensed without �the applicable licence fees having been paid, an appropriate payment shall be made promptly to us by you to reflect an amount of royalties agreed by the parties in relation to such Licensed Products, otherwise we may terminate this Agreement in accordance with clause 10.2. 12 DATA COLLECTION AND PRIVACY POLICY Information on the data we collect about you and how we treat that data is set out in our Privacy Policy, which can be viewed at: https://www.red-gate.com/our-company/about/legal. 13 13.1 THIRD PARTY CLAIMS Except as in clause 13.2 below, if a third party claims that the Licensed Software, as a result of your use of the Licensed Software, causes loss or damage whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise, then, without prejudice to our overall liability to such third party, you shall indemnify us from any such loss or damage. If any claim is brought against you alleging that your use of the intellectual property associated with the Licensed Software infringes the rights of any third party, you shall promptly notify us and supply full details of the claim. The two of us shall consult together on an appropriate course of action and shall seek to minimise the effect of any claim on the respective businesses. We shall have the right, but not the obligation, to take control of all negotiations and litigation arising out of the claim. We will pay any damages and costs awarded against you in connection with any claim subject to a maximum of the aggregate sum of Licence Fees paid to us by you under this Agreement. We shall have the right, at our sole choice, either: (i) use reasonable endeavours to negotiate terms for continued use by you of the claimed infringing software; or (ii) use reasonable endeavours to amend the Licensed Software to make it non-infringing; or (iii) terminate this Agreement with immediate effect and in such event, we shall refund to you all Licence Fees paid. 13.2 14 14.1 14.2 14.3 GOVERNING LAW AND SETTLEMENT OF DISPUTES This Agreement (and any dispute or claim relating to it, or its formation, existence, construction, performance, validity or termination) will be governed by and construed in accordance with the laws of England. The courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims). Without prejudice to any other rights or remedies that we may have, you acknowledge and agree that damages alone would not be an adequate remedy for any breach of clauses 4, 5 and/or 7 by you. Accordingly, we shall be entitled to seek an injunction or other equitable relief for any threatened or actual breach of those clauses. 15 COMPLIANCE WITH APPLICABLE LAW You acknowledge and agree that notwithstanding the fact that this Agreement is governed by the laws of England you may be subject to additional laws in other jurisdictions with respect to your use of the Licensed Software in such jurisdictions. You agree to comply with the laws of any such jurisdiction that apply to the Licensed Software including without limitation any applicable export laws or regulations. 16 SEVERABILITY �If any provision or part of any provision in this Agreement shall be found by any court, body or authority of competent jurisdiction to be illegal, invalid or unenforceable for any reason then the parties shall meet promptly to discuss in good faith and agree an alternative provision or part provision that provides as closely as possible, the same commercial effect as the original. If this happens then the remaining provisions or part provisions are unaffected. 17 NO WAIVER No failure or delay by any party to exercise any right, power or remedy will operate as a waiver of it nor will any partial exercise preclude any further exercise of the same, or of some other right, power or remedy. 18 NO THIRD PARTY RIGHTS We and you do not intend that any of this Agreement will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it and all rights by virtue of the Contracts (Rights of Third Parties) Act 1999 are hereby excluded. 19 ENTIRE AGREEMENT This Agreement contains all the terms which the parties have agreed in relation to the subject matter of this Agreement and supersedes any prior written or oral agreements, representations (save for any fraudulent misrepresentation, fraud or concealment) or understandings between the parties in relation to such subject matter. 20 REVISIONS TO TERMS We reserve the right to revise the terms of this Agreement by updating this Agreement on our website, or by notifying you by post or by email. You are advised to check the website periodically for notices concerning such revisions. Your continued use of the Licensed Software shall be deemed to constitute acceptance of any revised terms. 21 21.1 NO ASSIGNMENT The Licence is personal to you. You may not assign the benefit or delegate the burden of this Agreement or hold this Agreement on trust for any other person, provided that: 21.1.1 You shall, in relation to Per OSE Licensed Software, be entitled to assign or transfer the benefit of this Agreement once to another single OSE owned, leased and/or controlled by you or your employer or organisation for whom you have installed the Licensed Software for internal use. Any second or subsequent assignment or transfer of the benefit of this Agreement of Per OSE Licensed Software shall require our prior written consent, not to be unreasonably withheld; and 21.1.2 where the Licensed Software is Per OSE Licensed Software which includes a Client Component, you may use and install such Client Component on more than one OSE. 22 22.1 22.2 CONSUMER REGULATIONS This clause applies to Consumers only. You shall have the right to cancel this Agreement 14 days from the date you agree to be obliged to pay for the Licensed Software and/or Support Package under this Agreement. Should you wish to cancel this Agreement under clause 22.2, you must notify us of your decision to cancel by either: 22.3.1 returning a completed Model Cancellation Form (a copy of which is available here: https://www.red-gate.com/our-company/about/legal to us; or 22.3 �22.3.2 22.4 sending us an email clearly confirming your decision to the relevant email address on the "Contact Us" page of our website. If you have any complaints about this Agreement, including complaints about the Licensed Software and/or Support Package, please raise these with Red Gate using the relevant contact details on the “Contact Us” page of our website. ��SCHEDULE 1 PER OSE SOFTWARE SmartAssembly SmartAssembly Pro SQL Backup SQL Backup Lite SQL Backup Pro SQL Backup Standard SQL Hyperbac SQL Monitor SQL Response SQL Storage Compress SQL Virtual Restore SCHEDULE 2 PER USER SOFTWARE .NET Demon .NET Reflector Standard .NET Reflector VS .NET Reflector VSPro ANTS Performance Profiler ANTS Memory Profiler ANTS Performance Profiler Pro Data Compare for Oracle DLM Automation* (only available as part of the SQL Toolbelt), for purchases after 13th June 2016 Exception Hunter MySQL Compare MySQL Data Compare ReadyRoll Pro Schema Compare for Oracle Schema Doc for Oracle SmartAssembly Developer Source Control for Oracle SQL Compare SQL Compare Pro SQL Comparison SDK SQL Connect SQL Data Compare SQL Data Compare Pro SQL Dependency Tracker SQL Data Generator SQL Doc SQL Multi Script 5 Server SQL Multi Script 10 Server SQL Multi Script SQL Multi Script Unlimited SQL Object Level Recovery Native SQL Packager SQL Packager Pro SQL Prompt �SQL Prompt Pro SQL Refactor SQL Source Control SQL Test *The DLM Automation Components within DLM Automation are: DLM Automation engine DLM Automation PowerShell cmdlets SQL Compare Pro command line SQL Data Compare Pro command line SQL Data Generator command line SQL Doc command line Redgate (SQL Server) JetBrains TeamCity plugin Redgate (SQL Server) Visual Studio Team Services Build extension Redgate (SQL Server) Visual Studio Team Services Release extension Redgate (SQL Server) Jenkins plugin Redgate (SQL Server) Atlassian Bamboo plugin Redgate (SQL Server) Octopus Deploy step templates SCHEDULE 3 SQL COMPARISON SDK RedGate.SQLCompare.Engine.dll RedGate.SQLDataCompare.Engine.dll and their dependencies SQL Comparison SDK additional terms: The following additional terms shall apply to the Licensed Software listed in this Schedule: 1 2 2.1 2.2 2.3 2.4 2.5 Subject to paragraphs 3 and 4 of this Schedule and clause 11, you may use or incorporate up to 10 copies of any set of the files which comprise the Licensed Software and which are listed in this Schedule 3 (the "Licensed Materials") into up to 10 future products for onward Distribution or internal use (the "Licensed Products”) on License terms substantially similar to those contained in the License. If you use and/or distribute any of the Licensed Materials in accordance with paragraphs 1, 3 and 4 of this Schedule and clause 11, you agree to comply with the following provisions: you will distribute such files solely as part of a specific-purpose application program written using an authorized copy of the Licensed Software; you remain solely responsible for support, service, upgrades and technical or other assistance relating to such files; you will not use our name or logo without our prior written permission; you will indemnify and keep indemnified and hold us harmless from and against all costs (including the costs of enforcement and reasonable legal costs), expenses, liabilities, injuries, direct, indirect or consequential loss, pure economic loss, loss of profits, loss of business, loss of employment, or depletion of goodwill and like loss arising out of the use, reproduction or distribution of Licensed Products incorporating Licensed Materials; you will ensure that all your third party licensees of the Licensed Products comply with the terms of the License; and �2.6 3 4 5 you will not use the Licensed Materials, SQL Comparison SDK or other Licensed Software to manufacture or distribute a product that is substantially similar to or competitive with our Licensed Software and/or SQL Comparison SDK. You will keep full and accurate records for copies and supplies of Licensed Products and shall, if requested, supply us with a statement giving details of all Licensed Products supplied to any person. You shall only be permitted to distribute a maximum of 10 copies of the SQL Comparison SDK or any part thereof in Licensed Products. If you wish to distribute more than 10 copies of the SQL Comparison SDK or any part thereof in Licensed Products, then you must apply in writing to us, at our registered office, requesting a full commercial license which will be subject to the payment of royalties as agreed between the parties. If you breach the terms set out in this Schedule, we may terminate the License in accordance with the provisions of clause 10. SCHEDULE 4 BUNDLE TITLES AND ASSOCIATED LINKED SOFTWARE For convenience, we provide certain of the Software as packages or bundles of a number of the software products. The Bundle titles and the Linked Software associated with each Bundle are: Deployment Suite for Oracle Data Compare for Oracle Schema Compare for Oracle Schema Doc for Oracle (removed March 2013) Source Control for Oracle SQL Backup & Restore Bundle (Bundle retired March 2013) SQL Backup Pro SQL HyperBac SQL Virtual Restore SQL Toolbelt DLM Automation SQL Backup Pro SQL Compare Pro SQL Comparison SDK SQL Connect (removed November 2014) SQL Data Compare Pro SQL Data Generator SQL Dependency Tracker SQL Doc SQL Monitor SQL Multi Script Unlimited SQL Object Level Recovery Native (removed November 2014) SQL Packager (removed November 2014) SQL Prompt Pro SQL Search SQL Source Control �SQL Test SQL Developer Bundle SQL Compare Pro SQL Connect (removed November 2014) SQL Data Compare Pro SQL Data Generator SQL Dependency Tracker SQL Doc SQL Multi Script Unlimited SQL Packager (removed November 2014) SQL Prompt Pro SQL Search SQL Source Control SQL Test SQL Comparison Bundle SQL Compare SQL Data Compare SQL Dependency Tracker SQL Packager (removed November 2014) SQL Search SQL Prompt Bundle SQL Data Generator SQL Dependency Tracker SQL Doc SQL Prompt Pro SQL Search SQL DBA Bundle SQL Backup Pro SQL Compare SQL Data Compare SQL Doc SQL HyperBac (removed March 2013) SQL Monitor SQL Multi Script Unlimited SQL Prompt SQL Virtual Restore (removed March 2013) .NET Developer Bundle .NET Reflector VSPro ANTS Memory Profiler ANTS Performance Profiler Pro .NET Development Suite (Bundle retired November 2014) .NET Demon Commercial (removed November 2014) .NET Reflector VSPro ANTS Memory Profiler �ANTS Performance Profiler Pro SQL Connect (removed November 2014) SQL Prompt Pro .NET Toolbelt .NET Demon Commercial (removed November 2014) .NET Reflector VSPro ANTS Memory Profiler ANTS Performance Profiler Pro SmartAssembly Professional SQL Connect (removed November 2014) SQL Prompt Pro (removed November 2014) VS Productivity Pack (Bundle retired October 2013) .NET Demon Commercial .NET Reflector VSPro SQL Connect SQL Prompt Pro SQL Developer Suite (Suite removed July 2016) SQL Compare Pro SQL Data Compare Pro SQL Data Generator SQL Doc SQL Prompt Pro SQL Search SQL Source Control SQL Test SQL Toolbelt Essentials SQL Compare Pro SQL Data Compare Pro SQL Data Generator SQL Doc SQL Prompt Pro SQL Search SQL Source Control SQL Test DLM Automation Suite (Suite removed April 2016) Red Gate (SQL Server) Team City plugin Red Gate (SQL Server) TFS Build plugin SQL CI SQL Compare Pro SQL Data Compare Pro SQL Data Generator SQL Doc �SQL Packager DLM Engine DLM Automation Suite for Oracle Data Compare for Oracle (Suite removed August 2016) Schema Compare for Oracle Note that “Per Automation Agent Licensed Software” means the automation capabilities of the tools belonging to the DLM Automation Suite and the Deployment Suite for Oracle SCHEDULE 5 SUPPORT PACKAGE We provide support and upgrade services for specific Licensed Software products. An outline of the Support Package is given below and further details may be available from our website. Subject to payment of the relevant fee for the Support Package, the following shall apply: 1 2 3 4 5 The Support Package is purchased on an annual, non refundable, basis in advance except for Software provided on a subscription basis where the fees for the Support Package are included in the relevant subscription fee. We shall supply upgrades to the Licensed Software as they are released. We shall respond to email support requests from you within a reasonable period, normally one business day. Where we consider it necessary to facilitate efficient communication, we may contact you by telephone or otherwise. We shall use reasonable endeavours to solve problems identified by you. Given the nature of software, it is not possible for us to warrant that we will be able to solve any particular problem in a given timescale, or at all. However, we undertake to keep you updated on progress and, where practical, provide an interim fix and/or workaround so that you can continue effective use of the Licensed Software. You accept that, where a particular identified problem requires an update to the Licensed Software, the scheduling of any new releases and the functionality those releases contain shall be under our sole control. SCHEDULE 6 HANDLING OF TAXES For the purposes of this Schedule, “Withholding Tax” means any tax deducted at source for payments (typically interest, dividend or royalties) to a foreign corporation, as determined by the payer’s domestic tax legislation. Payment of Licence Fees shall not be reduced on account of any taxes unless required by any applicable laws. We shall be responsible for paying any and all taxes (other than Withholding Taxes required by any applicable law to be paid by you) levied on account of, or measured in whole or in part by reference to, any payments we receive. You shall deduct or withhold from payment of the Licence Fees any taxes that you are required by applicable law to deduct or withhold. Notwithstanding the foregoing, if we are entitled under any applicable tax treaty or convention to a reduction of rate of, or the elimination of, applicable Withholding Tax, we may deliver to you or the appropriate governmental authority (with your assistance to the extent that this is reasonably required) the prescribed forms necessary to reduce the applicable rate of withholding or to relieve you of your obligation to withhold tax. You shall render all reasonable assistance to us for this purpose as is requested by us (such assistance to include the signing by you or any of your officers of any required forms or other document so required). You shall apply the reduced rate of �withholding, or dispense with withholding, as the case may be, provided that you have received evidence, in a form satisfactory to you, of our delivery of all applicable forms (and, if necessary, the receipt of appropriate governmental authorisation) at least 7 (seven) days prior to the time that the payments to us are due. If, in accordance with the foregoing, you withhold any amount from a payment to us ("Withholding"), you shall (subject to the provisions of this clause) pay to us the payment net of the Withholding when due, and shall account to the proper tax authority for the Withholding. You shall send to us proof of such Withholding and that such Withholding has been accounted to the proper tax authority (through a self-declaration issued by you) within 30 (thirty) days following payment of the Withholding to the tax authority and shall, if requested by us, provide to us a copy of any return made to a tax authority of the Withholding within 10 days of request (or, if later, within 10 days of such return being made to the relevant tax authority). We shall have the right, if permissible under applicable laws, to require you to delay payment of Licence Fees in order to enable us to benefit from any applicable double taxation or other taxation treaties or conventions. You shall indemnify, keep indemnified and hold harmless, us against all losses incurred or suffered by us arising out of your failure to duly and timely pay any tax to the applicable tax Authorities or other authorities within the relevant period in accordance with this clause. SCHEDULE 7 PER AUTOMATION AGENT LICENSED SOFTWARE DLM Automation Suite (purchased before 13th June 2016) DLM Automation Suite for Oracle SCHEDULE 8 RED GATE FREE EDITION SOFTWARE FOR VISUAL STUDIO 2017 (ONLY) ReadyRoll Free Edition SQL Prompt Free Edition ReadyRoll Pro SQL Prompt Pro SQL Search SCHEDULE 9 LICENCE PERIOD FOR SCHEDULE 8 SOFTWARE (ONLY) ReadyRoll Free Edition: Perpetual upon installation and creation of Redgate account. SQL Prompt Free Edition: 28 days from when it is initially installed by or on behalf of you, becoming perpetual if you create a Redgate account when prompted. ReadyRoll Pro: 28 day trial licence from when a trial is commenced through the in-product dialog by or on behalf of you. At the end of 28 days you can decide whether to (a) obtain a paid up licence for ReadyRoll Pro, or (b) move to a perpetual licence of ReadyRoll Free Edition, or (c) request a trial extension. SQL Prompt Pro: 28 day trial licence from when a trial is commenced through the in-product dialog by or on behalf of you. At the end of 28 days you can decide whether to (a) obtain a paid up licence for SQL Prompt Pro, or (b) move to a perpetual licence of SQL Prompt Free Edition, or (c) request a trial extension. SQL Search: 28 days from when it is initially installed by or on behalf of you, becoming perpetual if you create a Redgate account when prompted. �
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END USER LICENSE AGREEMENT (EULA) FOR MEDIALAB™ v2016 © 1999-2016 EMPIRISOFT CORPORATION www.empirisoft.com send inquiries to [email protected] CAREFULLY READ THE FOLLOWING LICENSE AGREEMENT. YOU ACCEPT AND AGREE TO BE BOUND BY THIS LICENSE AGREEMENT BY CLICKING THE BUTTON LABELED "YES" THAT IS DISPLAYED BELOW. IF YOU DO NOT AGREE TO THIS LICENSE, CLICK THE ICON LABELED "NO" AND YOUR ORDER WILL BE CANCELED, THE SOFTWARE WILL NOT BE INSTALLED AND YOU WILL NOT BE CHARGED. LICENSE GRANT "You" means the person, company, organization or other entity who is being licensed to use the Software or Documentation. "We," "us" and "our" means Empirisoft Corporation. We hereby grant you a nonexclusive license to use one copy of the Software on any single computer, provided the Software is in use on only one computer at any time. The Software is "in use" on a computer when it is loaded into temporary memory (RAM) or installed into the permanent memory of a computer--for example, a hard disk, CDROM or other storage device. TITLE We remain the owner of all right, title and interest in the Software and related explanatory written materials ("Documentation"). ARCHIVAL OR BACKUP COPIES You may copy the Software for back-up and archival purposes, provided that the original and each copy is kept in your possession and that your installation and use of the Software does not exceed that allowed in the "License Grant" section above. THINGS YOU OUGHT, IOHO, AND MAY NOT DO The Software and Documentation are protected by United States copyright laws and international treaties. You must treat the Software and Documentation like any other copyrighted material--for example a book. You may not: print, copy, modify or distribute the Documentation except for your own personal use, copy the Software except to make archival or backup copies as provided above, modify or adapt the Software or merge it into another program, reverse engineer, disassemble, decompile or make any attempt to discover the source code of the Software, place the Software onto a server so that it is accessible via a pubic network such as the Internet, sublicense, rent, lease or lend any portion of the Software or Documentation, anything else that’s just not right. TRANSFERS You may transfer all your rights to use the Software and Documentation to another person or legal entity provided you transfer this Agreement, the Software and Documentation, including all copies, update and prior versions to such person or entity and that you retain no copies, including copies stored on computer. If you are granted an academic, educational, government or other financial discount for this license, then it may not be transferred to another person or entity who does not also qualify for the same discount. In such cases, where the other person or entity does not qualify for the discount you received, they will be required to pay the amount of the discount to us before transfer can occur. LIMITED WARRANTY We warrant that for a period of 90 of days after delivery of this copy of the Software to you: the media on which this copy of the Software is provided to you, will be free from defects in materials and �workmanship under normal use (does not apply to software that is downloaded), and the Software will perform in substantial accordance with the Documentation. To the extent permitted by applicable law, THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, AND WE DISCLAIM ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS, INCLUDING ANY IMPLIED WARRANTY OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, regardless of whether we know or had reason to know of your particular needs. No employee, agent, dealer or distributor of ours is authorized to modify this limited warranty, nor to make any additional warranties. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. LIMITED REMEDY Our entire liability and your exclusive remedy for breach of the foregoing warranty shall be, at our option, to either: return the price you paid, or repair or replace the Software or media that does not meet the foregoing warranty if it is returned to us with a copy of your receipt. IN NO EVENT WILL WE BE LIABLE TO YOU FOR ANY DAMAGES, INCLUDING ANY LOST DATA, LOST PROFITS, LOST SAVINGS, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM THE USE OR THE INABILITY TO USE THE SOFTWARE (EVEN IF WE OR AN AUTHORIZED DEALER OR DISTRIBUTOR HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), OR FOR ANY CLAIM BY ANY OTHER PARTY. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. TERM AND TERMINATION This license agreement takes effect upon your use of the software and remains effective until terminated. You may terminate it at any time by destroying all copies of the Software and Documentation in your possession. It will also automatically terminate if you fail to comply with any term or condition of this license agreement. You agree on termination of this license to destroy all copies of the Software and Documentation in your possession. CONFIDENTIALITY The Software contains trade secrets and proprietary know-how that belong to us and it is being made available to you in strict confidence. ANY USE OR DISCLOSURE OF THE SOFTWARE, OR OF ITS ALGORITHMS, PROTOCOLS OR INTERFACES, OTHER THAN IN STRICT ACCORDANCE WITH THIS LICENSE AGREEMENT, MAY BE ACTIONABLE AS A VIOLATION OF OUR TRADE SECRET RIGHTS. GENERAL PROVISIONS 1. This written license agreement is the exclusive agreement between you and us concerning the Software and Documentation and supersedes any prior purchase order, communication, advertising or representation concerning the Software. 2. This license agreement may be modified only by a writing signed by you and us. 3. In the event of litigation between you and us concerning the Software or Documentation, the prevailing party in the litigation will be entitled to recover attorney fees and expenses from the other party. 4. This license agreement is governed by the laws of the State of New York. 5. You agree that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export administration Act or any other export laws, restrictions or regulations. �
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END USER LICENSE AGREEMENT and TERMS AND CONDITIONS OF SALE END USER LICENSE AGREEMENT (effective date January 1, 2013) IMPORTANT, READ CAREFULLY. THIS END USER LICENSE AGREEMENT (“EULA”) IS A LEGAL AGREEMENT BETWEEN YOU AND ADVANCED PUBLIC SAFETY, INC. (“APS”) and applies to the APS proprietary computer software product(s) provided to you by APS, and includes any accompanying written materials, such as a user’s guide or product manual, as well as any “online” or electronic documentation (“Software”). This EULA will also apply to any Software error corrections, updates and upgrades subsequently furnished by APS, unless such are accompanied by different license terms and conditions which will govern their use. BY CLICKING “YES” OR “I ACCEPT” IN THE ACCEPTANCE BOX, OR BY INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, PROMPTLY RETURN THE UNUSED SOFTWARE AND ANY ACCOMPANYING APS PRODUCT TO THE PLACE FROM WHICH YOU OBTAINED THEM FOR A REFUND. As used herein, the term Software does not include software products of third party manufacturers, nor shall this EULA apply to any such software products, which are furnished to end users pursuant to license by the third-party manufacturer. This Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Software is licensed, not sold. 1 SOFTWARE PRODUCT LICENSE 1.1 License Grant. Subject to the terms and conditions of this EULA and your pre-payment of the applicable license fee(s), APS grants you a non-exclusive, perpetual license right to use one copy of the Software in machine-readable form on any computer hardware and operating system for which it was intended, but solely for your internal business needs in connection with your use of APS products. You may authorize the personnel associated with your business to use the Software, but only one person at one time, on one computer at one time. You may also store or install a copy of the Software on a storage device, such as a network server, used only to install or run the Software on your other computers over an internal network; but in such case you must acquire and dedicate a seat license for each separate computer on which the Software is installed or run from the storage device. A seat license for the Software may not be shared or used concurrently on different computers/devices. Use of the Software is limited to the total number of installation copies and seat licenses purchased by you. 1.2 Other Rights and Limitations. (1) You may not copy, modify, make derivative works of, rent, lease, sell, distribute or transfer the Software, in whole or in part, except as otherwise expressly authorized under this EULA, and you agree to use all commercially reasonable efforts to prevent its unauthorized use and disclosure. (2) The Software contains valuable trade secrets proprietary to APS and its suppliers. To the extent permitted by relevant law, you shall not, nor allow any third party to copy, decompile, disassemble or otherwise reverse engineer the Software, or attempt to do so, provided, however, that to the extent any applicable mandatory laws give you the right to perform any of the aforementioned activities without APS’s consent in order to gain certain information about the Software for purposes specified in the respective statutes (e.g., interoperability), you hereby agree that, before exercising any such rights, you shall first request such information from APS in writing detailing the purpose for which you need the information. Only if and after APS, at its sole discretion, partly or completely denies your request, may you exercise such statutory rights. (3) The Software is licensed as a single product. You may not separate its component parts for use on more than one computer except as specifically authorized in this EULA. (4) You may not rent, lease or lend the Software unless you are a reseller of APS products under separate written agreement with APS and authorized by APS to do so. (5) No service bureau work, multiple-user license or time-sharing arrangement is permitted. For purposes of this EULA “service bureau work” shall be deemed to include, without limitation, use of the Software to process or to generate output data for the benefit of, or for purposes of rendering services to any third party over the Internet or other communications network. �(6) APS has granted the Software license to you contemplating your personal internal business use. You may not assign or otherwise transfer to any third party, your rights under this EULA or the Software (or any copy), in whole or in part. (7) You may not use the Software for performance, benchmark or comparison testing or analysis, or disclose to any third party or release any results thereof (all of which information shall be considered APS confidential information) without APS’s prior written consent. (8) You may not directly or indirectly export or re-export, or knowingly permit the export or re-export of the Software (or portions thereof) to any country, or to any person or entity subject to United States or foreign export restrictions in contravention of such laws and without first obtaining appropriate license. (9) You agree to cooperate with APS to track the number of server computers, computers and other devices with access to the Software at your site(s) to ensure compliance with the license grant and installation restrictions in this EULA. In the event the compliance check reveals that the number of installations at your site exceeds the actual number of licenses obtained by you, you agree to promptly reimburse APS three (3) times the then current applicable list price for the extra licenses that are required to be compliant, but that were not obtained, as liquidated damages and as a reasonable penalty. 1.3 Termination. You may terminate this EULA by ceasing all use of the Software and destroying or returning all copies. Without prejudice as to any other rights, APS may terminate this EULA without notice if you fail to comply with the terms and conditions of this EULA. In such event, you must cease its use destroy all copies of the Software and of its component parts. 1.4 Copyright. All title and copyrights in and to the Software (including but not limited to any images, photographs, animations, video, audio, music, and text incorporated into the Software), the accompanying printed materials, and any copies of the Software are owned by APS and its suppliers. You shall not remove, cover or alter any of APS’s patent, copyright or trademark notices placed upon, embedded in or displayed by the Software or on its packaging and related materials. You may, however, either (1) make one copy of the Software solely for backup or archival purposes, or (2) install the Software on a single computer provided you keep the original solely for backup or archival purposes. You may not copy the accompanying printed materials. 1.5 U.S. Government Restricted Rights. The Software is provided with “RESTRICTED RIGHTS.” Use, duplication, or disclosure by the United States Government is subject to restrictions as set forth in this EULA, and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14(ALT III), as applicable. 2 LIMITED WARRANTY 2.1 Limited Warranty. APS warrants that the Software will perform substantially in accordance with the accompanying written materials (i.e., applicable user’s guide or product manual) for a period of one (1) year from the date of purchase. This limited warranty gives you specific legal rights, you may have others, which vary from state/jurisdiction to state/jurisdiction. The above limited warranty does not apply to error corrections, updates or upgrades of the Software after expiration of the limited warranty period, which are provided “AS IS” and without warranty unless otherwise specified in writing by APS. Because the Software is inherently complex and may not be completely free of nonconformities, defects or errors, you are advised to verify your work. APS does not warrant that the Software will operate error free or uninterrupted, will meet your needs or expectations, or that all nonconformities can or will be corrected. 2.2 Customer Remedies. APS’s and its suppliers’ entire liability, and your sole remedy, with respect to the Software shall be either, at APS’s option, (a) repair or replacement of the Software, or (b) return of the license fee paid for any Software that does not meet APS’s limited warranty. The foregoing limited warranty is void if failure of the Software has resulted from (1) accident, misuse, abuse, or misapplication; (2) alteration or modification of the Software without APS’s authorization; (3) interaction with software or hardware not supplied or supported by APS; (4) your improper, inadequate or unauthorized installation, maintenance or storage; or (f) if you violate the terms of this EULA. Any replacement Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. 2.3 NO OTHER WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APS AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, TERMS, AND CONDITIONS, EITHER EXPRESS OR IMPLIED, BY STATUTE, COMMON LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES, TERMS, AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT WITH REGARD TO THE SOFTWARE, ITS SATISFACTORY QUALITY, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES. TO THE EXTENT ALLOWED BY APPLICABLE LAW, IMPLIED WARRANTIES, TERMS AND CONDITIONS ON THE SOFTWARE ARE LIMITED TO ONE (1) YEAR. Y0U MAY HAVE OTHER LEGAL RIGHTS WHICH VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION. 2.4 LIMIATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL APS OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS), ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF APS HAS BEEN �ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY EXCLUSIVE REMEDY PROVIDED IN THIS EULA. IN NO EVENT SHALL APS’S TOTAL LIABILITY IN CONNECTION WITH THIS EULA OR THE SOFTWARE, WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EXCEED THE ACTUAL AMOUNT PAID TO APS FOR USE OF THE SOFTWARE GIVING RISE TO THE CLAIM. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. 3 GENERAL 3.1 Applicable law - Settlement of Disputes: This EULA shall be governed by the laws of the State of Florida and applicable United States Federal law without reference to "conflict of laws" principles or provisions. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this EULA. Jurisdiction and venue for any action or proceeding arising out of or in connection with this EULA or the Software shall lie exclusively in or be transferred to the applicable state or federal court located in Palm Beach County, Florida, and Buyer hereby waives any objection it may have to such venue, including, without limitation, an objection based on the assertion that this venue is an inconvenient forum. No dispute or legal action arising under this EULA, may be brought by either party more than one (1) year after such cause of action accrued, except that an action for nonpayment may be brought within two (2) years of the date of the last payment. 3.2 Severability: These terms and conditions may be severable and the invalidity, illegality or unenforceability in whole or in part of any provision shall not affect the validity of other provisions 3.3 Reservation of Rights: APS reserves all rights not expressly granted by this EULA. TERMS AND CONDITIONS OF SALE These Terms and Conditions of Sale establish the basis on which the purchase and sale of products and services described in Customer purchase orders and furnished by Advanced Public Safety, Inc. (“APS”), (hereinafter, “Item(s)” or “item(s)”) is made by and between you (“Customer”) and APS. Every purchase order placed with APS is conditioned on and confirms Customer’s acceptance of these terms and conditions of sale, and APS agrees to furnish the Items described in Customer’s purchase orders only upon these terms and conditions. Any terms or conditions to the contrary appearing on orders, or within Customer's terms and conditions of purchase or any other documentation shall be of no effect. No waiver, modification, or addition to these terms and conditions, or any assignment of Customer’s rights or obligations hereunder shall be valid or binding on APS unless in writing and signed by an authorized APS representative. These terms and conditions of sale, together with the Basic Order Terms (defined in Section 1.3 below) set forth on a purchase order accepted by APS constitute the entire agreement of Customer and APS for purchase and sale of the Item(s) (hereafter sometimes referred to as the “contract”). 1. General: 1.1 Validity of sales agreement: APS’s quotations are non-binding unless otherwise expressly stipulated in writing. Customer orders are accepted as valid and binding only when confirmed by APS in writing. Orders cannot be canceled for any reason without the prior written consent of APS. In such case, APS may claim compensation under Section 3.2 below. 1.2 Intellectual property ownership of tender materials: APS retains title and full intellectual property ownership of all tender documents and materials, including without limitation, calculations, drawings, models, plans, sets of tools, etc. All such documents and materials are considered confidential and Customer shall not copy such documentation or materials or disclose them to third parties without APS’s prior written consent. 1.3 Basic Order Terms - Fixed: All purchase orders for Items shall include the following information: (i) Items and quantities,(ii) prices, (iii) shipping instructions, and (iv) the APS part number, (collectively, “Basic Order Terms”). All Basic Order Terms are fixed and final upon APS’s acceptance of the order. APS’s obligation to Customer is limited to the contract terms. 1.4 Software License: If a purchase order includes software Items, such software is licensed, not sold, and Customer is authorized to use the software solely in accordance with, and subject to the terms and conditions of the end user license accompanying such software (including any differing limited warranty terms exclusions and limitations). Nothing herein shall be construed to grant any rights or license to use any software in any manner or for any purpose not expressly permitted by these terms and conditions or its applicable end user license agreement. 1.5 Customization: Customization or configuration of APS software Items performed by APS at Customer’s request, if any, will be subject to additional charges, except as otherwise provided on Customer’s accepted order or agreed to in writing by APS. APS will retain all copyright and other proprietary rights to the Item and any additional customization or configuration, and shall have the right and authority to use, sell and distribute the Item and utilize the results of the work for any other �purpose, in APS’s sole discretion, without requirement of notification or liability to Customer of any kind (including, without limitation, monetary remuneration). The results of any additional customization or configuration will be deemed accepted upon receipt of notification to ship the APS software Items along with the associated hardware Items, if any. In the case of notifications to ship that are not in writing, Customer’s acceptance of such Items will be deemed to occur (5) days after Delivery as defined in 2.2 below. 2. Delivery: 2.1 Delivery time: Delivery times are established when Customer’s order is received and accepted in writing by APS. APS will use commercially reasonable efforts to meet Customer’s requested delivery dates, unless Customer is in default under the contract or APS’s performance is otherwise excused. APS shall not be liable for late or delayed shipment. Late or delayed shipment shall not be a basis for Customer’s cancellation of any order. 2.2 Delivery terms: Delivery of the Items will be made on an FCA (Incoterms 2000) APS's facility basis. Title and risk of loss or damage to the Items covered by these Terms and Conditions shall pass to Customer upon delivery (except for title to software Items, in which case only title to the media shall pass). Unless otherwise agreed, APS will deliver the Items freight prepaid; provided that Customer will pay or reimburse APS for all costs of carriage, freight, insurance (if applicable), taxes, duty and other related shipping charges in connection with shipment hereunder. Customer shall make such payments to APS within thirty (30) days after date of APS’s invoice. APS has the right to make partial deliveries. 3. Acceptance, Inspection, Notice of Nonconformance: 3.1 Customer’s acceptance of ordered Items shall be deemed to occur at delivery to the FCA point. It is Customer’s responsibility to give prompt written notice of identified damage or nonconformance of goods. Upon receipt, Customer shall inspect the condition of the Items. In the event of physical damage to delivered Items or their packaging Customer shall indicate any damage to the carrier on the delivery note, have the carrier's agent sign the document and, within two (2) days of receipt, send all documents by e-mail or fax to the APS facility from which shipment took place, together with the carrier's references. Customer shall notify APS within (5) days of delivery of incorrect or nonconforming Items or materials. Concealed physical loss or damage claims must be made by Customer to the carrier by requesting an inspection and filing a claim with the carrier, with written notice, which shall also be given to APS within (5) days of delivery. If Customer retains the Item without giving notice within the aforesaid designated periods, Customer will be deemed to have waived its right to reject the order. 3.2 If Customer rejects conforming Items under an accepted order, APS shall be entitled to claim reasonable compensation for restocking and other expenses it has actually incurred. The risk of accidental loss/destruction or accidental deterioration of Items sold or distributed hereunder shall pass to the Customer at the time Customer rejects conforming Items. 4. Return of Items: There is no right of return of conforming Items. Return of nonconforming and rejected Items must be made pursuant to APS’s return procedures then in effect. Items must be returned, transport prepaid, to the APS facility (no C.O.D. or Collect Freight accepted) in original boxes and packing material, unless otherwise agreed by APS. The Items travel at the risk and responsibility of Customer. If returned Item is claimed to be defective, a complete description of the nature of the defect must be included with the returned Items. All returns are subject to inspection. 5. Pricing, Terms of Payment: 5.1 Unless otherwise agreed in writing, payment terms shall be as follows: 50% of the total purchase price is due on receipt of Customer’s purchase order. Thereafter, 40% of the purchase price is due on initial software delivery (excluding SmartExport if applicable), and the remaining 10% is due upon the earlier of (i) completion of any additional minor services (e.g., software configuration) or (ii) fifteen (15) days following completed delivery of all hardware and software deliverables. The date of the receipt of payment by APS shall be determinative. No discount will be granted for advance payment. Payment shall be made in United States Dollars (USD$). APS shall be entitled to offset payments against prior debt balances in Customer’s account. Items or services purchased under APS's United States General Services Administration ("GSA") Schedules, if any, will be subject to all of the pricing and other terms, conditions described in the applicable GSA Schedule. 5.2 APS shall have the continuing right to review Customer’s credit and change Customer's payment terms and, without limiting the foregoing, may at any time demand advance payment, satisfactory security (such as, but not limited to, a confirmed, irrevocable letter of credit acceptable to APS), or a guarantee of prompt payment, prior to shipment, if APS deems such to be required in view of APS’ assessment of Customer’s credit worthiness. 5.3 Interest shall be charged on all overdue sums owing to APS under these terms and conditions at the rate of one percent (1%) per month (or the highest legal limit if lower than said amount), and shall be calculated from the date the sums in question were payable to the date on which payment is made in full. 5.4 Customer grants APS a purchase money security interest in each Item shipped to Customer until payment is made in full to APS for such Items. Upon request from APS, Customer will cooperate with APS in perfecting any such security interest. 5.5 Customer shall be liable for any costs incurred by APS in the event of variation or suspension of any order by Customer. 5.6 Stated Item prices do not include any applicable sales, use, personal property or similar taxes, or transportation or insurance charges; all of which shall be paid by Customer. Any tax that APS may be required to collect or pay upon the sale or delivery of the Item shall be paid by Customer to APS unless Customer provides direct payment authority or an exemption �certificate valid in the state to which the Item will be shipped. 6. APS Software Support and Maintenance Services 6.1 Eligibility for Support. To be eligible to receive the technical support and maintenance services for APS software Items as described in Sections 6.2 through 6.3 below (“Annual Maintenance Services”), the license under which accepts the APS software must be valid and currently in effect, and Customer must have timely paid all charges and fees due and payable under the contract and associated purchase order(s), including, without limitation, the Annual Maintenance Services fee (at the rates then currently in effect) for the applicable support Service Term. “Service Term” means each twelve (12)-month period during which APS agrees to furnish the Annual Maintenance Services. 6.2 Scope of Annual Maintenance Services. During Customer’s applicable Service Term, APS will use commercially reasonable efforts to correct verifiable and reproducible software errors in the covered APS software Items when reported in accordance with APS’s standard reporting procedures, which may be modified from time to time at APS’s discretion. A software error shall mean a failure of the software that causes it not to perform substantially in accordance to its APS specifications. If an error exists, Customer must provide APS with information sufficient for APS to duplicate the circumstances under which the error in the APS software Item became apparent. APS will provide such technical support to Customer from 8:30am to 7:00pm Eastern, Monday through Friday except for holidays. 6.3 New Releases. APS may from time to time issue fixes or revisions of the APS software Items for release to its customers generally (“New Releases”). As part of the Annual Maintenance Services during the Service Term APS will provide Buyer with one (1) copy of each such New Release at no additional charge, subject to APS’ established procedures for delivery to its customers. APS shall provide reasonable assistance to help Customer install and operate each New Release; provided however, that if such assistance is to be furnished at Customer’s facility, Customer shall pay supplemental charges set forth in APS’ then current rate schedule for such assistance. 7. Warranty: 7.1 Limited Warranty for APS Items: Unless the limited warranty included with any APS manufactured Items covered by these terms and conditions grants different rights to the Customer, APS warrants to Customer, and only to Customer, that such Items furnished under the contract shall be designed and manufactured to conform to APS’s specifications and all parts or media are and will be free from defects in material and workmanship for a period of ninety (90) days from date of shipment. During the warranty period, APS’s liability is limited to replacing, repairing or issuing credit for any Item that is returned to APS by the original purchaser freight prepaid and which upon inspection is determined by APS to defective in materials or workmanship. APS’s repair or replacement of a defective Item as provided in this section is Customer’s only and exclusive remedy for a defective Item, and is made subject to the terms of this warranty. 7.2 Warranty Exclusions: The foregoing APS limited warranty shall only apply in the event and to the extent that (a) the APS Item is properly and correctly installed, configured, interfaced, maintained, stored, and operated in accordance with APS's applicable operator's manual and specifications, and; (b) the Item is not modified or misused. This APS limited warranty shall not apply to, and APS shall not be responsible for defects or performance problems resulting from (i) the combination or utilization of the Items with hardware or software Items, information, data, systems, interfaces or devices not made, supplied or specified by APS; (ii) the operation of the APS Item under any specification other than, or in addition to, APS's standard specifications for its products; (iii) the unauthorized, installation, modification, repair or use of the APS Items; (iv) damage caused by accident, electrical discharge or exposure to environmental conditions for which the APS Items are not intended, or normal wear and tear; (v) equipment or software manufactured and produced by third parties; or (vi) change or upgrade of Customer’s computer operating system or mobile client devices following Customer’s purchase of the Items. APS does not warrant or guarantee the results obtained through the use of the Items. APS MAKES NO WARRANTIES WHATSOEVER WITH RESPECT TO SERVICES, WHICH IF PROVIDED HEREUNDER ARE PROVIDED “AS-IS.” 7.3 Third Party Manufactured Equipment and Software Items Warranty. APS will extend to Customer the manufacturer's warranty, if any, for all third-party manufactured equipment and software Items delivered by APS to Customer under the contract. Customer acknowledges and agrees that APS shall not be responsible for separately warranting or supporting thirdparty manufactured equipment or software Items. 7.4 WARRANTY DISCLAIMER: THE FOREGOING LIMITED WARRANTY TERMS STATE APS'S ENTIRE LIABILITY, AND YOUR EXCLUSIVE REMEDIES, RELATING TO THE ITEMS FURNISHED BY APS HEREUNDER. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE ITEMS, ACCOMPANYING DOCUMENTATION AND MATERIALS ARE PROVIDED "AS-IS" AND WITHOUT EXPRESS OR IMPLIED WARRANTY OF ANY KIND, BY EITHER APS OR ANYONE WHO HAS BEEN INVOLVED IN ITS CREATION, PRODUCTION, INSTALLATION, OR DISTRIBUTION, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, APS MAKES NO WARRANTY OR REPRESENTATION OF ANY NATURE THAT THE BUYER’S USE OF THE LICENSED SOFTWARE OR OTHER ITEMS FURNISHED TO BUYER UNDER THIS AGREEMENT WILL BE UNINTERRUPTED, ERROR FREE, OR SECURE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY APS, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES CREATES ANY WARRANTIES OR IN ANY WAY INCREASES THE SCOPE OF THIS LIMITED WARRANTY �THE STATED EXPRESS WARRANTIES ARE IN LIEU OF ALL OBLIGATIONS OR LIABILITIES ON THE PART OF APS ARISING OUT OF, OR IN CONNECTION WITH, ANY ITEM. SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON DURATION OR THE EXCLUSION OF AN IMPLIED WARRANTY, SO THE ABOVE LIMITATION MAY NOT APPLY OR FULLY APPLY TO YOU. 8. LIMITATION OF LIABILITY: WITHOUT LIMITING THE FOREGOING, APS’S ENTIRE LIABILITY TO CUSTOMER UNDER OR FOR BREACH OF THESE TERMS AND CONDITIONS SHALL BE LIMITED TO THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO APS UNDER THE CONTRACT. FURTHER, NEITHER APS NOR ITS SUPPLIERS SHALL BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE DAMAGES OR OTHER DAMAGES, OR LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA, LOSS OF USE OF THE ITEM OR ANY ASSOCIATED EQUIPMENT, DOWNTIME AND USER TIME OR FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY RELATED TO THE ITEM. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, ANY IMPLIED WARRANTY OF QUALITY OR FITNESS FOR A PARTICULAR PURPOSE ON THIS ITEM IS LIMITED IN DURATION TO THE DURATION OF THE FOREGOING WARRANTY. ADDITIONALLY, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR SPECIFIED OTHER DAMAGES, OR ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY, OR MAY NOT FULLY APPLY. 9. Intellectual Property Ownership: As between APS and Customer, Customer agrees that APS and its suppliers, as applicable, own all right, title and interest to all intellectual property and other proprietary rights to the technology, software, designs, engineering details, schematics and similar data relating to or incorporated in the Items and any accompanying documentation or information derived from the foregoing. Customer shall take reasonable precautions to prevent unauthorized access and use of the software Items and accompanying documentation by third parties. To the extent permitted by applicable law, Customer shall not, nor allow any third party to copy, decompile, disassemble or otherwise reverse engineer the software Items, or attempt to do so. Customer is prohibited from, and shall prevent any third party from, removing, covering or altering any of APS’ or its suppliers patent, copyright or trademark notices placed upon, embedded in or displayed by the Items or their packaging and related materials. APS and its suppliers, as applicable, reserve all rights not specifically granted to Customer hereunder. 10. Indemnification: If someone makes a claim against you that the Software infringes their intellectual property rights, APS will indemnify you if you do the following: notify APS promptly in writing, not later than 30 days after you receive notice of the claim, or sooner if required by applicable law; give APS sole control of the defense and any settlement negotiations; and give APS the information, authority, and assistance APS needs to defend against or settle the claim. If APS believes that any of the Software may have violated someone else's intellectual property rights, APS may choose to either modify the Software or obtain a license to allow for continued use, or at APS’ sole discretion, APS may end the license for the applicable Software and refund any license fees and any unused, prepaid support fees you have paid for it. APS will not indemnify you if you alter the Software outside the scope of use provided in the documentation or if you use a Software version which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Software. APS will not indemnify you to the extent that an infringement claim is based upon the combination of the Software with any products, software or services not provided by APS. THIS SECTION PROVIDES YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT CLAIMS OR DAMAGES. 11. GOVERNMENT END USERS-RESTRICTED RIGHTS. Use, duplication, or disclosure of software Items by the U.S. Government is subject to restrictions set forth in the applicable license agreement accompanying any such Item and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14(ALT III), as applicable. 12. Export Procedures: Customer is informed that sale and delivery of Items in an export situation may be subject to export regulations of the United States or other countries. Customer warrants that it will not export or re-export directly or indirectly, any Item in violation of any law or regulation, (including, without limitation, any law or regulation of the United States Government or any agency), or to embargoed or otherwise restricted countries, or sell Items to companies listed on the denied persons list published by the United States Department of Commerce. Customer further warrants that it will not export or reexport, directly or indirectly, any Item with knowledge that it will be used in the design, development, Production or use of chemical, biological, nuclear or ballistic weapons. Laws and regulations change frequently. It is Customer's responsibility to know the law pertaining to export/import procedures in the country of destination of the Item. Customer will defend, indemnify and hold APS harmless against any liability (including attorneys’ fees) arising out of Customer’s failure to comply with the terms of this paragraph. 13. Default: APS reserves the right, by written notice of default, to cancel or indefinitely suspend an accepted Item order if: (i) Customer defaults in the performance of its obligations hereunder, or otherwise breaches the contract, or (ii) Customer ceases business operations or enters into any bankruptcy, insolvency, receivership or like proceeding not dismissed within thirty (30) days, or assigns its assets for the benefit of creditors. 14. Applicable law - Settlement of Disputes: These terms and conditions will be governed by and construed in accordance with the laws of the State of Florida and �applicable United States federal law, without reference to “conflicts of laws” provisions or principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. The venue for any action or proceeding arising out of or in connection with these terms and conditions, the Items provided under an order, or the commercial relationship of the parties shall be in the applicable state or federal court located in Palm Beach County, Florida, and Buyer hereby waives any objection it may have to such venue, including, without limitation, an objection based on the assertion that this venue is an inconvenient forum. No dispute or legal action arising under this Agreement, may be brought by either party more than one (1) year after such cause of action accrued, except that an action for nonpayment may be brought within two (2) years of the date of the last payment. 15. Severability: These terms and conditions may be severable and the invalidity, illegality or unenforceability in whole or in part of any provision shall not affect the validity of other provisions. 16. Force Majeure: Neither party shall be liable to the other for failure to perform its obligations hereunder (except the payment of sums due) to the extent caused by an event beyond such party’s reasonable control, including, without limitation, government regulations or orders, state of emergency, acts of God, war, warlike hostilities, terrorism, riots, epidemics, fire, strikes, lockouts, or similar cause(s), provided that such party promptly notifies the other in writing of such occurrence and makes its best efforts to promptly eliminate the effect thereof. 17. Notices: Any notice or other communication given by either party to the other regarding these terms and conditions will be deemed given and served when personally delivered, delivered by reputable international courier requiring signature for receipt, or five (5) business days after mailing (postage prepaid), addressed to the party at its notice address. Either party may change its notice address by written notice to the other. Customer’s notice address shall be its address appearing on the accepted purchase order. APS’s notice address shall be: Advanced Public Safety, Inc., Attn : President, 500 Fairway Drive, Suite 204, Deerfield Beach, FL 33441, with copy to Trimble Navigation Limited, Attn: General Counsel, 935 Stewart Drive, Sunnyvale, CA 94085. Agency: Advanced Public Safety: Signature Signature Name Name Date Date �
nw/90.txt
Interactive Data Visualization, Inc. SPEEDTREE MODEL LIBRARY COMPONENTS END USER LICENSE AGREEMENT This END USER LICENSE AGREEMENT (the “EULA”) is a legal agreement between you (either an individual or a single entity) (collectively “You”) and Interactive Data Visualization, Inc., a South Carolina corporation with offices at 5446 Sunset Boulevard, Suite 201, Lexington, South Carolina 29072 (“IDV”), for the Licensed Model Library Components. “Licensed Model Library Components” means the specific library of Procedural Model Files, Meshes and Textures which You have specifically licensed under this EULA for use with the SpeedTree® Architect software product, SpeedTree® Studio software product, SpeedTree® Cinema software product, SpeedTree® for Unity software product or SpeedTree® For Unreal Engine 4 Subscription software product (the “Software”). You acknowledge that you must have entered into a valid end user license agreement with IDV for the Software (the "Software EULA") as a condition precedent to Your license and use of the Licensed Model Library Components under this EULA; provided however that You may use the Licensed Model Library Components in connection with creating a Licensed Production (as defined below and permitted below) for exclusive use with the Unity Software licensed by Unity Technologies (“Unity”) or the Unreal Engine 4 Subscription software licensed by Epic Games (“UE4 Subscription”) without obtaining a license to the “SpeedTree for Unity” or "SpeedTree® For Unreal Engine 4 Subscription" Software. BY DOWNLOADING, INSTALLING, RUNNING, EXECUTING, OR OTHERWISE USING THE LICENSED MODEL LIBRARY COMPONENTS, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO BE BOUND TO THE TERMS OF THIS EULA, PLEASE DO NOT DOWNLOAD, INSTALL, RUN, EXECUTE, ACCEPT, USE OR PERMIT OTHERS TO DOWNLOAD, INSTALL, RUN, EXECUTE, ACCEPT, OR OTHERWISE USE THE LICENSED MODEL LIBRARY COMPONENTS. YOU ARE ENTITLED TO A FULL REFUND WITHIN FIFTEEN (10) DAYS OF MAKING FULL PAYMENT TO IDV FOR A LICENSE TO THE LICENSED MODEL LIBRARY COMPONENTS; PROVIDED, HOWEVER, THAT YOU MUST ALSO PERFORM, OR AS APPLICABLE AGREE THAT IDV MAY PERFORM, THE “TERMINATION PROCEDURE” AS DETAILED TO YOU IN WRITING BY IDV AT TIME OF TERMINATION AS FURTHER DESCRIBED IN “SECTION III: TERMINATION” BELOW. I. GRANT OF LICENSE; RESTRICTIONS A. Limited License. Subject to the terms and conditions contained in this EULA (including IDV’s right to terminate as set forth herein), IDV hereby grants to You a non-exclusive, non-transferable, and non-sublicenseable license to use the Licensed Model Library Components solely in connection with the Software as permitted by the Software EULA (or in the limited case where a license to “SpeedTree for Unity” or "SpeedTree® For Unreal Engine 4 Subscription" Software is not required, solely in connection with a valid license to Unity or UE4 Subscription) to create a Licensed Production, which may include (to the extent not limited by the functionality of the Software or in the case of “SpeedTree for Unity” or "SpeedTree® For Unreal Engine 4 Subscription" Software to the extent possible without a license to such Software) using the Procedural Model Files and Meshes in the Licensed Model Library Components to create one or more Licensed Productions, modifying a Procedural Model File in the Licensed Model Library Components to create another or modified Procedural Model File for use to create one or more Licensed Productions, and inputting the Textures in the Licensed Model Library Components into the Software for processing in connection with the creation of a Procedural Model File. Your rights to use the Licensed Model Library 1 �Components are subject to all further restrictions as specified in the applicable Software EULA, and the Licensed Model Library Components upon license by You hereunder shall be deemed part of the Model Library as defined in the Software EULA you entered into. "Licensed Productions" shall have the meaning specified in the Software EULA and unless amended in the Software EULA means an unlimited number of offline or rendered animation video productions such as feature movies, television shows or commercials, or any other similar video productions, as well as any still images, screenshots or the like derived or resulting from Licensed Productions, but which shall not be an interactive or a real-time production such as a video game, training application or interactive simulation; provided however that in the limited circumstance where You are permitted to use the Licensed Model Library Components with Unity or UE4 Subscription without obtaining a license to the “SpeedTree® for Unity” or "SpeedTree® For Unreal Engine 4 Subscription" Software, "Licensed Productions" shall mean an unlimited number of interactive or real-time applications such as video games, training applications or interactive simulations and offline or rendered animation video productions such as feature movies, television shows or commercials, or any other similar video productions, which in each case are created exclusively with the use of the Unity or UE4 Subscription and (ii) any still images, screenshots or the like derived or resulting from Licensed Productions. A “Mesh” means a threedimensional digital model derived from a Procedural Model File and readable without the Software and which is contained in the Licensed Model Library Components and that represents either an actual or imaginary species of vegetation, including but not limited to trees, flowers, palms, cacti, weeds, grass, food crops, and fantasy vegetation creations. A "Procedural Model File" means a three-dimensional digital model contained in the Licensed Model Library Components and which is readable only by the Software and that represents either an actual or imaginary species of vegetation, including but not limited to trees, flowers, palms, cacti, weeds, grass, food crops, and fantasy vegetation creations. "Textures" mean images used as an input to the Software and which represent leaves, bark and other tree or vegetation features and which are part of the Licensed Model Library Components. B. No Sale. You acknowledge and agree that this copy of the Licensed Model Library Components has been licensed to You pursuant to the terms and conditions of this EULA and that such copy of the Licensed Model Library Components has not been sold to You. In addition, You acknowledge that this copy of the Licensed Model Library Components is not subject to the “first sale” doctrine as that term is defined in United States Copyright laws. C. RESTRICTIONS. YOU AGREE (I) NOT TO COPY, TRANSFER, ASSIGN, RENT, RESELL, DISTRIBUTE OR USE THE LICENSED MODEL LIBRARY COMPONENTS OTHER THAN AS EXPRESSLY AUTHORIZED IN THIS EULA, (II) NOT TO REMOVE ANY COPYRIGHT NOTICE, TRADEMARK NOTICE, AND/OR OTHER PROPRIETARY LEGEND OR INDICATION OF CONFIDENTIALITY SET FORTH ON OR CONTAINED IN THE LICENSED MODEL LIBRARY COMPONENTS, (III) NOT TO USE THE LICENSED MODEL LIBRARY COMPONENTS IN ANY MANNER THAT VIOLATES THE LAWS OF THE UNITED STATES OR ANY OF ITS STATES OR TERRITORIES; (IV) NOT TO DISTRIBUTE ANY PORTION OF THE LICENSED MODEL LIBRARY COMPONENTS AS A STAND-ALONE PRODUCT; AND (V) TO REFRAIN FROM USING THE LICENSED MODEL LIBRARY COMPONENTS FOR ANY PURPOSE OTHER THAN AS EXPRESSLY AUTHORIZED IN THIS EULA. FURTHER, YOU MAY NOT DISTRIBUTE, SUBLICENSE, SELL, ASSIGN, PLEDGE, TRANSFER OR OTHERWISE PROVIDE THE LICENSED MODEL LIBRARY COMPONENTS TO ANY THIRD PARTY. WITHOUT LIMITING THE FOREGOING, YOU MAY NOT IMBED OR INCORPORATE ANY PORTION OF THE LICENSED MODEL LIBRARY COMPONENTS INTO ANY LICENSED PRODUCTION OR ANY OTHER PRODUCTION, PRODUCT OR SOFTWARE. D. Confidential and Proprietary Information. Without the prior written consent of IDV, You shall not at any time, either personally or by means of third parties, make any statement or disclosure or supply any information or material (including, without limitation, the Licensed Model Library Components or any portion thereof) to any third party (other than IDV’s agents at IDV’s direction) or to the public relating to any matter arising hereunder or to the affairs of IDV coming within Your knowledge by reason of this EULA (collectively, the “Confidential and Proprietary Information”). All Confidential and Proprietary Information is and shall remain the sole property of IDV. You agree to take all reasonable precautions to 2 �prevent any unauthorized disclosure of any Confidential and Proprietary Information and, in any event, shall use Your best efforts to protect the confidentiality of the Licensed Model Library Components. The terms of this EULA are deemed Confidential and Proprietary Information of IDV. Upon IDV’s request, or upon the termination or expiration of this EULA, You shall return all Confidential and Proprietary Information (including any copies, summaries, extracts, and other forms thereof) within Your possession or control and within the possession or control of Your employees and representatives. ALL CONFIDENTIAL AND PROPRIETARY INFORMATION IS PROVIDED ON AN “AS-IS” BASIS. IDV does not make any representation or warranty as to the accuracy or completeness of the Confidential and Proprietary Information or any component thereof. No license of any intellectual property rights, or any other rights, is granted by any disclosure of Proprietary Information. In addition to, and not in lieu of the termination provisions set forth in Section III, You agree that, in the event of a threatened or actual breach of a provision of this EULA by You, (a) monetary damages alone will be an inadequate remedy, (b) such breach will cause IDV great, immediate, and irreparable injury and damage, and (c) IDV shall be entitled to seek and obtain, from any court of competent jurisdiction (without the requirement of the posting of a bond, if applicable), immediate injunctive and other equitable relief in addition to, and not in lieu of, any other rights or remedies that IDV may have under applicable laws. E. Conflicts. You agree that this EULA shall prevail over any terms and conditions of any purchase order, acknowledgment form, or other instrument. Any additional, different, or conflicting terms in any purchase order, acknowledgement form, or other instrument shall be deemed objected to by IDV without need of further notice of objection, and shall be of no effect or in any way binding upon IDV. F. Use of Information. By installing the Licensed Model Library Components, you grant permission for IDV to collect and use certain information. You acknowledge that you have reviewed the IDV Privacy Policy, which describes IDV's practices with respect to the collection, use and disclosure of information in connection with your use of the Licensed Model Library Components. A copy of the Privacy Policy is available on the www.speedtree.com website. IDV reserves the right to change the provisions of its Privacy Policy from time to time. IDV will post any changes to the Privacy Policy on the www.speedtree.com website. Your use of the Licensed Model Library Components following the posting of such changes to the Privacy Policy will constitute your acceptance of any such changes. II. TITLE IDV reserves all rights not expressly granted to you in this EULA. You agree that IDV and/or its licensors own all right, title, interest, and intellectual property rights in and to the Licensed Model Library Components and in all patents, trademarks, trade names, inventions, copyrights, know how and trade secrets, and any related applications or extensions, relating to the design, manufacture, operation or service of the Licensed Model Library Components. All modifications, adaptations, changes, or additions made to the Licensed Model Library Components shall be the sole and exclusive property of IDV and shall be considered a part of the Licensed Model Library Components, including all applicable rights to patents, copyrights, trademarks and trade secrets inherent therein and appurtenant thereto. III. TERMINATION IDV may terminate this EULA at any time in its sole discretion. Upon such termination or in the event You request and are entitled to a refund, You shall perform, or as applicable IDV may perform, those steps specified in writing by IDV (the “Termination Procedure”) at the time of termination. The Termination Procedure may include any or all of the following steps, or any other steps as IDV may establish from time to time at its sole discretion: (i) Use of one or more digital keys provided by IDV to deactivate the Licensed Model Library Components on each PC where the Software has been installed; (ii) Return to IDV of one or more digital keys generated by IDV and confirming deactivation; (iii) Prompt erasure, deletion, or removal of the Model Library Components from any and all PCs; (iv) Destruction of all results, proceeds and printed 3 �documentation generated through the use of the Licensed Model Library Components; (iv) Return of the Licensed Model Library Components, if applicable, to place of purchase, and; (v) Written certification to IDV that You have completed the Termination Procedure. Within a reasonable period of time after such termination, if such termination was solely for IDV’s convenience, IDV shall refund the license fees for the Licensed Model Library Components. IDV will reduce any such refund on a five (5) -year straight-line depreciation basis. IV. DISCLAIMER TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE LICENSED MODEL LIBRARY COMPONENTS ARE PROVIDED “AS IS”, AND IDV DOES NOT MAKE AND SPECIFICALLY DISCLAIMS, ALL EXPRESS AND IMPLIED WARRANTIES OF EVERY KIND RELATING TO THE LICENSED MODEL LIBRARY COMPONENTS AND USE OF THE LICENSED MODEL LIBRARY COMPONENTS (INCLUDING, WITHOUT LIMITATION, ACTUAL AND IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AS WELL AS ANY WARRANTIES THAT THE LICENSED MODEL LIBRARY COMPONENTS (OR ANY ELEMENTS THEREOF) WILL ACHIEVE A PARTICULAR RESULT, OR WILL BE UNINTERRUPTED OR ERRORFREE). SPECIFICALLY, AND WITHOUT LIMITING THE FOREGOING, YOU ACKNOWLEDGE THAT IDV HAS NOT MADE ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE LICENSED MODEL LIBRARY COMPONENTS OR THE FUNCTIONALITY THEREOF AND HAS MADE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT THERETO. IN ADDITION, YOU ACKNOWLEDGE THAT YOU HAVE SELECTED THE LICENSED MODEL LIBRARY COMPONENTS, AND THAT IDV MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE FITNESS OF THE LICENSED MODEL LIBRARY COMPONENTS FOR ANY PURPOSE. V. NO SUPPORT Nothing in this EULA shall obligate IDV to provide any support for the Licensed Model Library Components. IDV may, but shall be under no obligation to, correct any defects in the Licensed Model Library Components and/or provide updates to You of the Licensed Model Library Components. You shall promptly report to IDV any defects You find in the Licensed Model Library Components to aid IDV in creating improved revisions of such items. VI. LIMITATION OF LIABILITY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL IDV BE LIABLE UNDER ANY THEORY OF LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING FROM BREACH OF CONTRACT OR WARRANTY OR FROM NEGLIGENCE OR STRICT LIABILITY), INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE, DATA, OR USE, OR FOR INTERRUPTED COMMUNICATIONS OR DAMAGED DATA, OR FROM ANY DEFECT, ERROR, OR IN CONNECTION WITH YOUR ACQUISITION OF SUBSTITUTE GOODS OR SERVICES OR MALFUNCTION OF THE LICENSED MODEL LIBRARY COMPONENTS, EVEN IF IDV OR ANY OTHER PERSON HAS BEEN ADVISED OR SHOULD KNOW OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS EULA, AND WITHOUT LIMITING ANY OTHER RIGHTS, REMEDIES, LIMITATIONS, OR RESTRICTIONS IN THIS EULA OR UNDER LAW, IDV WILL NOT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS EULA UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY, AT LAW OR IN 4 �EQUITY, FOR ANY AMOUNTS AGGREGATING IN EXCESS OF AMOUNTS PAID TO IT UNDER THIS EULA IN THE TWELVE (12) MONTH PERIOD BEFORE THE CAUSE OF ACTION AROSE. VII. INDEMNITY You hereby agree to indemnify, protect, defend and hold IDV harmless from and against any and all claims, losses and damages, including without limitation, reasonable attorneys’ and experts’ fees and disbursements, (a) which may at any time be asserted against IDV by any party for Your failure to perform any of the covenants, agreements, terms, provisions or conditions contained in this EULA, (b) by any party by reason of Your use or misuse of the Licensed Model Library Components, or (c) resulting from any failure by You to comply with any term or condition of this EULA. The provisions of this Section VII shall survive the expiration or earlier termination of the EULA. VIII. EXPORT RESTRICTIONS You acknowledge that the Licensed Model Library Components is of United States origin and subject to United States export jurisdiction. You agree to comply with all applicable international and national laws that apply to the Licensed Model Library Components and/or to the export of technical data, including the United States Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by the United States and other governments. IX. UNITED STATES GOVERNMENT RESTRICTED RIGHTS The Licensed Model Library Components are deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, for purposes of Federal Acquisition Regulations (“FAR”) 12.212 and the Defense FAR Supplement (“DFARS”) 227.7202-1, 227.7202-3, and 227.7202-4, and the restrictions set forth in such regulations, and this EULA shall be deemed to be the license described in such regulations. Any use, modification, reproduction, release, performance, display or disclosure of the Licensed Model Library Components by any agency, department or entity of the United States Government (the “Government”) shall be governed solely by the terms of this EULA and is prohibited except to the extent expressly permitted by the terms of this EULA. The Licensed Model Library Components are also deemed to be “restricted computer software” for purposes of FAR 52.227-14 and FAR 52.227-19, which clauses are incorporated herein by reference subject to the express restrictions and prohibitions set forth above. Any technical data provided that is not covered by the above provisions is deemed to be “technical information related to commercial computer software or commercial computer software documentation” for purposes of FAR 12.212 and the restrictions set forth therein, and is deemed to be “technical data or information related or pertaining to commercial items or processes” developed at private expense for purposes of DFARS 227.7102-1 and 227.7102-2 and the restrictions set forth therein, and this EULA shall be deemed to be the license described in such regulations. Any use, modification, reproduction, release, performance, display or disclosure of such technical data by the Government shall be governed solely by the terms of this EULA and is prohibited except to the extent expressly permitted by the terms of this EULA. Such technical data is also deemed to be “limited rights data” as defined in FAR 52.22714, which clauses are incorporated herein by reference subject to the express restrictions and prohibitions set forth above. Such technical data shall also be deemed to be “technical data” for purposes of DFARS 252.227-7015, which clause is incorporated herein by reference subject to the express restrictions and prohibitions set forth above. You shall not provide the Licensed Model Library Components or the technical data to any party, including the Government, unless such third party accepts the same restrictions. You are responsible for ensuring that the proper notice is given to all such third parties and the Licensed Model Library Components and the technical data are properly marked with the required legends. X. GOVERNING LAW 5 �This EULA shall be governed by the laws of the State of South Carolina, without reference to conflicts of laws principles. In addition, this EULA will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA), and the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded. Any dispute under this EULA shall be litigated exclusively in the state or federal courts in Columbia, South Carolina. XI. MISCELLANEOUS You may not assign this EULA without the prior written consent of IDV. This EULA is the entire agreement between the parties hereto with respect to the subject matter hereof, and it supersedes all prior agreements or understandings regarding its subject matter. If any provision of this EULA shall be or become invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions contained herein shall not be affected thereby. No failure or delay in exercising any right or remedy shall operate as a waiver of any such (or any other) right or remedy. Any modification or waiver to this EULA must be in writing and signed by both parties. The language of this EULA shall be construed as a whole, according to its fair meaning and intent, and not strictly for or against either party, regardless of who drafted or was principally responsible for drafting this EULA or any specific term or conditions hereof. This EULA shall bind and inure to the benefit of the parties and their successors and permitted assigns. Both parties are acting as independent contractors with respect to the activities hereunder. Nothing in this EULA shall be deemed to create any type of agency, joint venture, or partnership relationship between the parties. Neither Party shall have any right or authority to bind or obligate the other in any manner to any third party. IDV shall not be liable for any loss, damage, or penalty resulting from unavoidable delays or failures in performance resulting from acts of God or other causes beyond its control. In addition to any other payments due under this EULA, You agree to pay, and to indemnify and hold IDV harmless from, any sales, use, excise, import or export, value added or similar tax or duty not based on IDV’s net income, including any penalties and interest, as well as any costs associated with the collection or withholding thereof; and all governmental permit fees, license fees and customs and similar fees levied upon the delivery by IDV of the Licensed Model Library Components, which IDV may incur in respect of this EULA. In the event of any legal proceeding between the parties arising out of or related to this EULA, the prevailing party shall be entitled to recover, in addition to any other relief awarded or granted, its costs and expenses (including reasonable attorneys’ and expert witness’ fees) incurred in any such proceeding. Please print by opening an internet browser to: http://www.speedtree.com/downloads/Licensed Model Library Components EULA.pdf and save a copy of this EULA for Your records. 6 �
nw/91.txt
End-User License Agreement THIS IS A LEGAL DOCUMENT -- RETAIN FOR YOUR RECORDS ELPICAL® END-USER LICENSE AGREEMENT Licensor: ELPICAL SOFTWARE BV NIJVERHEIDSSTRAAT 9 6987 EN GIESBEEK THE NETHERLANDS Important - Read Carefully. Notice to User: This End User License Agreement (“Software License Agreement”) is a legal document between you and ELPICAL SOFTWARE BV (“ELPICAL”). It is important that you read this document before using the ELPICAL-provided software (“Software”) and any accompanying documentation, including, without limitation printed materials, ‘online’ files, or electronic documentation (“Documentation”). By clicking the “I accept” and “Next” buttons below, or by installing, or otherwise using the Software, you agree to be bound by the terms of this Software License Agreement as well as the ELPICAL Privacy Policy (“Privacy Policy”) including, without limitation, the warranty disclaimers, limitation of liability, data use and termination provisions below, whether or not you decide to purchase the Software. You agree that this agreement is enforceable like any written agreement negotiated and signed by you. If you do not agree, you are not licensed to use the Software, and you must destroy any downloaded copies of the Software in your possession or control. Please go to our Web site at http://www.elpical.com/license to download and print a copy of this Software License Agreement for your files and http://www.elpical.com/privacy to review the privacy policy. 1. SOFTWARE LICENSE (a) License Grant. Upon your acceptance of this Software License Agreement ELPICAL grants you a non-exclusive, non-transferable (except as provided below), limited license to install and use a copy of the Software on your compatible computer. (b) Backup and Archival Copies. You may make one backup and one archival copy of the Software, provided your backup and archival copies are not installed or used on any computer and further provided that all such copies shall bear the original and unmodified copyright, patent and other intellectual property markings that appear on or in the Software. You may not transfer the rights to a backup or archival copy. (c) Key Codes, Upgrades and Updates. Prior to your purchase and as part of the registration for the thirty (30) -day evaluation period, as applicable, you will receive an evaluation key code. You will receive a purchase key code when you elect to purchase the Software. The purchase key code will enable you to activate the Software beyond the initial evaluation period. You may not re-license, reproduce or distribute any key code except with the express written permission of ELPICAL. If the Software that you have licensed is an upgrade or an update, then the update replaces all or part of the Software previously licensed. The update or upgrade and the associated license keys does not constitute the granting of a second license to the Software in that you may not use the upgrade or update in addition to the Software that it is replacing. You agree that use of the upgrade of update terminates your license to use the Software or portion thereof replaced. (d) Title. Title to the Software is not transferred to you. Ownership of all copies of the Software and of copies made by you is vested in ELPICAL, subject to the rights of use granted to you in this Software License Agreement. As between you and ELPICAL, documents, files, stylesheets, generated program code (including the Unrestricted Source Code) and schemas that are authored �or created by you via your utilization of the Software, in accordance with its Documentation and the terms of this Software License Agreement, are your property. (e) Reverse Engineering. You may not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, underlying ideas, underlying user interface techniques or algorithms of the Software by any means whatsoever, directly or indirectly, or disclose any of the foregoing. Any information supplied by ELPICAL or obtained by you may not be disclosed to any third party or used to create any software which is substantially similar to the expression of the Software. (f) Other Restrictions.You may not loan, rent, lease, sublicense, distribute or otherwise transfer all or any portion of the Software to third parties. You may not copy the Software except as expressly set forth above, and any copies that you are permitted to make pursuant to this Software License Agreement must contain the same copyright, patent and other intellectual property markings that appear on or in the Software. You may not modify, adapt or translate the Software. You may not, directly or indirectly, encumber or suffer to exist any lien or security interest on the Software; knowingly take any action that would cause the Software to be placed in the public domain; or use the Software in any computer environment not specified in this Software License Agreement. You will comply with applicable law and ELPICAL’s instructions regarding the use of the Software. You agree to notify your employees and agents who may have access to the Software of the restrictions contained in this Software License Agreement and to ensure their compliance with these restrictions. YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR THE ACCURACY AND ADEQUACY OF THE SOFTWARE FOR YOUR INTENDED USE AND YOU WILL INDEMNIFY AND HOLD HARMLESS ELPICAL FROM ANY 3RD PARTY SUIT TO THE EXTENT BASED UPON THE ACCURACY AND ADEQUACY OF THE SOFTWARE IN YOUR USE. WITHOUT LIMITATION, THE SOFTWARE IS NOT INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION, COMMUNICATION SYSTEMS OR AIR TRAFFIC CONTROL EQUIPMENT, WHERE THE FAILURE OF THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. 2. INTELLECTUAL PROPERTY RIGHTS Acknowledgement of ELPICAL's Rights. You acknowledge that the Software and any copies that you are authorized by ELPICAL to make are the intellectual property of and are owned by ELPICAL and its suppliers. The structure, organization and code of the Software are the valuable trade secrets and confidential information of ELPICAL and its suppliers. The Software is protected by copyright, including without limitation by United States Copyright Law, international treaty provisions and applicable laws in the country in which it is being used. You acknowledge that ELPICAL retains the ownership of all patents, copyrights, trade secrets, trademarks and other intellectual property rights pertaining to the Software, and that ELPICAL’s ownership rights extend to any images, photographs, animations, videos, audio, music, text and “applets” incorporated into the Software and all accompanying printed materials. You will take no actions which adversely affect ELPICAL’s intellectual property rights in the Software. Trademarks shall be used in accordance with accepted trademark practice, including identification of trademark owners’ names. Trademarks may only be used to identify printed output produced by the Software, and such use of any trademark does not give you any right of ownership in that trademark. Claro Premedia Server, 4LeafClover and ELPICAL are trademarks of ELPICAL Software BV (registered in numerous countries). Except as expressly stated above, this Software License Agreement does not grant you any intellectual property rights in the Software. Notifications of claimed copyright infringement should be sent to ELPICAL’s copyright agent as further provided on the ELPICAL Web Site. 3. LIMITED TRANSFER RIGHTS �Notwithstanding the foregoing, you may transfer all your rights to use the Software to another person or legal entity provided that: (a) you also transfer each of this Software License Agreement, the Software and all other software or hardware bundled or pre-installed with the Software, including all copies, updates and prior versions, and all copies of font software converted into other formats, to such person or entity; (b) you retain no copies, including backups and copies stored on a computer; (c) the receiving party secures a personalized key code from ELPICAL; and (d) the receiving party accepts the terms and conditions of this Software License Agreement and any other terms and conditions upon which you legally purchased a license to the Software. (e) you will have your key code deactivated by ELPICAL. Notwithstanding the foregoing, you may not transfer education, pre-release, or not-for-resale copies of the Software. 4. PRE-RELEASE AND EVALUATION PRODUCT ADDITIONAL TERMS If the product you have received with this license is pre-commercial release or beta Software (“Pre-release Software”), then this Section applies. In addition, this section applies to all evaluation and/or demonstration copies of ELPICAL software (“Evaluation Software”) and continues in effect until you purchase a license. To the extent that any provision in this section is in conflict with any other term or condition in this Software License Agreement, this section shall supersede such other term(s) and condition(s) with respect to the Pre-release and/or Evaluation Software, but only to the extent necessary to resolve the conflict. You acknowledge that the Pre-release Software is a pre-release version, does not represent final product from ELPICAL, and may contain bugs, errors and other problems that could cause system or other failures and data loss. CONSEQUENTLY, THE PRE-RELEASE AND/OR EVALUATION SOFTWARE IS PROVIDED TO YOU “AS-IS” WITH NO WARRANTIES FOR USE OR PERFORMANCE, AND ELPICAL DISCLAIMS ANY WARRANTY OR LIABILITY OBLIGATIONS TO YOU OF ANY KIND, WHETHER EXPRESS OR IMPLIED. WHERE LEGALLY LIABILITY CANNOT BE EXCLUDED FOR PRE-RELEASE AND/OR EVALUATION SOFTWARE, BUT IT MAY BE LIMITED, ELPICAL’S LIABILITY AND THAT OF ITS SUPPLIERS SHALL BE LIMITED TO THE SUM OF FIFTY DOLLARS (USD $50) IN TOTAL. If the Evaluation Software has a time-out feature, then the software will cease operation after the conclusion of the designated evaluation period. Upon such expiration date, your license will expire unless otherwise extended. Access to any files created with the Evaluation Software is entirely at your risk. You acknowledge that ELPICAL has not promised or guaranteed to you that Pre-release Software will be announced or made available to anyone in the future, that ELPICAL has no express or implied obligation to you to announce or introduce the Pre-release Software, and that ELPICAL may not introduce a product similar to or compatible with the Pre-release Software. Accordingly, you acknowledge that any research or development that you perform regarding the Pre-release Software or any product associated with the Pre-release Software is done entirely at your own risk. During the term of this Software License Agreement, if requested by ELPICAL, you will provide feedback to ELPICAL regarding testing and use of the Pre-release Software, including error or bug reports. If you have been provided the Pre-release Software pursuant to a separate written agreement, your use of the Software is governed by such agreement. You may not sublicense, lease, loan, rent, distribute or otherwise transfer the Pre-release Software. Upon receipt of a later unreleased version of the Prerelease Software or release by ELPICAL of a publicly released commercial version of the Software, whether as a stand-alone product or as part of a larger product, you agree to return or destroy all earlier Pre-release Software received from ELPICAL and to abide by the terms of the license agreement for any such later versions of the Pre-release Software. �5. LIMITED WARRANTY AND LIMITATION OF LIABILITY (a) Limited Warranty and Customer Remedies. ELPICAL warrants to the person or entity that first purchases a license for use of the Software pursuant to the terms of this Software License Agreement that (i) the Software will perform substantially in accordance with any accompanying Documentation for a period of ninety (90) days from the date of receipt, and (ii) any support services provided by ELPICAL shall be substantially as described in Section 6 of this agreement. Some states and jurisdictions do not allow limitations on duration of an implied warranty, so the above limitation may not apply to you. To the extent allowed by applicable law, implied warranties on the Software, if any, are limited to ninety (90) days. ELPICAL’s and its suppliers’ entire liability and your exclusive remedy shall be, at ELPICAL’s option, either (i) return of the price paid, if any, or (ii) repair or replacement of the Software that does not meet ELPICAL’s Limited Warranty and which is returned to ELPICAL with a copy of your receipt. This Limited Warranty is void if failure of the Software has resulted from accident, abuse, misapplication, abnormal use, Trojan horse, virus, or any other malicious external code. Any replacement Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. This limited warranty does not apply to Evaluation and/or Pre-release Software. (b) No Other Warranties and Disclaimer. THE FOREGOING LIMITED WARRANTY AND REMEDIES STATE THE SOLE AND EXCLUSIVE REMEDIES FOR ELPICAL OR ITS SUPPLIER’S BREACH OF WARRANTY. ELPICAL AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, AND FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO YOU IN YOUR JURISDICTION, ELPICAL AND ITS SUPPLIERS MAKE NO WARRANTIES, CONDITIONS, REPRESENTATIONS OR TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE AS TO ANY OTHER MATTERS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ELPICAL AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, INFORMATIONAL CONTENT OR ACCURACY, QUIET ENJOYMENT, TITLE AND NON-INFRINGEMENT, WITH REGARD TO THE SOFTWARE, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHERS, WHICH VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION. (c) Limitation Of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW EVEN IF A REMEDY FAILS ITS ESSENTIAL PURPOSE, IN NO EVENT SHALL ELPICAL OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, DIRECT, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF ELPICAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, ELPICAL’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS SOFTWARE LICENSE AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE PRODUCT. Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply to you. In such states and jurisdictions, ELPICAL’s liability shall be limited to the greatest extent permitted by law �and the limitations or exclusions of warranties and liability contained herein do not prejudice applicable statutory consumer rights of person acquiring goods otherwise than in the course of business. The disclaimer and limited liability above are fundamental to this Software License Agreement between ELPICAL and you. (d) Infringement Claims. ELPICAL will indemnify and hold you harmless and will defend or settle any claim, suit or proceeding brought against you by a third party that is based upon a claim that the content contained in the Software infringes a copyright or violates an intellectual or proprietary right protected by United States or European Union law (“Claim”), but only to the extent the Claim arises directly out of the use of the Software and subject to the limitations set forth in Section 5 of this Agreement except as otherwise expressly provided. You must notify ELPICAL in writing of any Claim within ten (10) business days after you first receive notice of the Claim, and you shall provide to ELPICAL at no cost with such assistance and cooperation as ELPICAL may reasonably request from time to time in connection with the defense of the Claim. ELPICAL shall have sole control over any Claim (including, without limitation, the selection of counsel and the right to settle on your behalf on any terms ELPICAL deems desirable in the sole exercise of its discretion). You may, at your sole cost, retain separate counsel and participate in the defense or settlement negotiations. ELPICAL shall pay actual damages, costs, and attorney fees awarded against you (or payable by you pursuant to a settlement agreement) in connection with a Claim to the extent such direct damages and costs are not reimbursed to you by insurance or a third party, to an aggregate maximum equal to the purchase price of the Software. If the Software or its use becomes the subject of a Claim or its use is enjoined, or if in the opinion of ELPICAL’s legal counsel the Software is likely to become the subject of a Claim, ELPICAL shall attempt to resolve the Claim by using commercially reasonable efforts to modify the Software or obtain a license to continue using the Software. If in the opinion of ELPICAL’s legal counsel the Claim, the injunction or potential Claim cannot be resolved through reasonable modification or licensing, ELPICAL, at its own election, may terminate this Software License Agreement without penalty, and will refund to you on a pro rata basis any fees paid in advance by you to ELPICAL. THE FOREGOING CONSTITUTES ELPICAL’S SOLE AND EXCLUSIVE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT. This indemnity does not apply to infringements that would not be such, except for customer-supplied elements. 6. SUPPORT AND MAINTENANCE ELPICAL offers multiple optional “Maintenance & Support Package(s)” (“MSP”) for the version of Software product edition that you have licensed, which you may elect to purchase in addition to your Software license. The Support Period, hereinafter defined, covered by such MSP shall be delineated at such time as you elect to purchase a MSP. Your rights with respect to support and maintenance as well as your upgrade eligibility depend on your decision to purchase MSP and the level of MSP that you have purchased: (a) If you have not purchased MSP, you will receive the Software AS IS and will not receive any maintenance releases or updates. However, ELPICAL, at its option and in its sole discretion on a case by case basis, may decide to offer maintenance releases to you as a courtesy, but these maintenance releases will not include any new features in excess of the feature set at the time of your purchase of the Software. In addition, ELPICAL will provide free technical support to you for thirty (30) days after the date of your purchase (the “Support Period” for the purposes of this paragraph a), and ELPICAL, in its sole discretion on a case by case basis, may also provide free courtesy technical support during your thirty (30)-day evaluation period. Technical support is provided via a Web-based support form only, and there is no guaranteed response time. (b) If you have purchased MSP, then solely for the duration of its delineated Support Period, you are eligible to receive the version of the Software edition that you have licensed and all maintenance releases and updates for that edition that are released during your Support Period. For the duration of your MSP’s Support Period, you will also be eligible to receive upgrades to �the comparable edition of the next version of the Software that succeeds the Software edition that you have licensed for applicable upgrades released during your Support Period. The specific upgrade edition that you are eligible to receive based on your Support Period is further detailed in the MSP that you have purchased. Software that is introduced as separate product is not included in MSP. Maintenance releases, updates and upgrades may or may not include additional features. In addition, ELPICAL will provide Priority Technical Support to you for the duration of the Support Period. Priority Technical Support is provided via a Web-based support form only, and ELPICAL will make commercially reasonable efforts to respond via e-mail to all requests within forty-eight (48) hours during ELPICAL’s business hours (MO-FR, 8:30am CET – 5pm CET, Dutch and US holidays excluded) and to make reasonable efforts to provide work-arounds to errors reported in the Software. During the Support Period you may also report any Software problem or error to ELPICAL. If ELPICAL determines that a reported reproducible material error in the Software exists and significantly impairs the usability and utility of the Software, ELPICAL agrees to use reasonable commercial efforts to correct or provide a usable work-around solution in an upcoming maintenance release or update, which is made available at certain times at ELPICAL’s sole discretion. If ELPICAL, in its discretion, requests written verification of an error or malfunction discovered by you or requests supporting example files that exhibit the Software problem, you shall promptly provide such verification or files, by email, telecopy, or overnight mail, setting forth in reasonable detail the respects in which the Software fails to perform. You shall use reasonable efforts to cooperate in diagnosis or study of errors. ELPICAL may include error corrections in maintenance releases, updates, or new major releases of the Software. ELPICAL is not obligated to fix errors that are immaterial. Immaterial errors are those that do not significantly impact use of the Software. Whether or not you have purchased the Support & Maintenance Package, technical support only covers issues or questions resulting directly out of the operation of the Software and ELPICAL will not provide you with generic consultation, assistance, or advice under any circumstances. Updating Software may require the updating of software not covered by this Software License Agreement before installation. Updates of the operating system and application software not specifically covered by this Software License Agreement are your responsibility and will not be provided by ELPICAL under this Software License Agreement. ELPICAL’s obligations under this Section 6 are contingent upon your proper use of the Software and your compliance with the terms and conditions of this Software License Agreement at all times. ELPICAL shall be under no obligation to provide the above technical support if, in ELPICAL’s opinion, the Software has failed due to the following conditions: (i) damage caused by the relocation of the software to another location or CPU; (ii) alterations, modifications or attempts to change the Software without ELPICAL’s written approval; (iii) causes external to the Software, such as natural disasters, the failure or fluctuation of electrical power, or computer equipment failure; (iv) your failure to maintain the Software at ELPICAL’s specified release level; or (v) use of the Software with other software without ELPICAL’s prior written approval. It will be your sole responsibility to: (i) comply with all ELPICAL-specified operating and troubleshooting procedures and then notify ELPICAL immediately of Software malfunction and provide ELPICAL with complete information thereof; (ii) provide for the security of your confidential information; (iii) establish and maintain backup systems and procedures necessary to reconstruct lost or altered files, data or programs. �7. SOFTWARE ACTIVATION, UPDATES AND LICENSE METERING (a) License Metering. ELPICAL has a built-in license metering module that helps you to avoid any unintentional violation of this Software License Agreement. (b) Software Activation. ELPICAL’s Software may use your internal network and Internet connection for the purpose of transmitting license-related data at the time of installation, registration or update to an ELPICAL-operated license server and validating the authenticity of the license-related data in order to protect ELPICAL against unlicensed or illegal use of the Software and to improve customer service. Activation is based on the exchange of license related data between your computer and the ELPICAL license server. You agree that ELPICAL may use these measures and you agree to follow any applicable requirements. (c) Use of Data. The terms and conditions of the Privacy Policy are set out in full at http://www.elpical.com/privacy and are incorporated by reference into this Software License Agreement. By your acceptance of the terms of this Software License Agreement or use of the Software, you authorize the collection, use and disclosure of information collected by ELPICAL for the purposes provided for in this Software License Agreement and/or the Privacy Policy as revised from time to time. European users understand and consent to the processing of personal information in the United States for the purposes described herein. ELPICAL has the right in its sole discretion to amend this provision of the Software License Agreement and/or Privacy Policy at any time. You are encouraged to review the terms of the Privacy Policy as posted on the ELPICAL Web site from time to time. 8. TERM AND TERMINATION This Software License Agreement may be terminated (a) by your giving ELPICAL written notice of termination; or (b) by ELPICAL, at its option, giving you written notice of termination if you commit a breach of this Software License Agreement and fail to cure such breach within ten (10) days after notice from ELPICAL. In addition the Software License Agreement governing your use of a previous version that you have upgraded or updated of the Software is terminated upon your acceptance of the terms and conditions of the Software License Agreement accompanying such upgrade or update. Upon any termination of the Software License Agreement, you must cease all use of the Software that it governs, destroy all copies then in your possession or control and take such other actions as ELPICAL may reasonably request to ensure that no copies of the Software remain in your possession or control. The terms and conditions set forth in Sections 1(g), (h), (i), 2, 5(b), (c), 9, and 10 survive termination as applicable. 9. RESTRICTED RIGHTS NOTICE AND EXPORT RESTRICTIONS. The Software was developed entirely at private expense and is commercial computer software provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the U.S. Government or a U.S. Government contractor or subcontractor is subject to the restrictions set forth in this Agreement and as provided in FAR 12.211 and 12.212 (48 C.F.R. §12.211 and 12.212) or DFARS 227. 7202 (48 C.F.R. §227-7202) as applicable. Consistent with the above as applicable, Commercial Computer Software and Commercial Computer Documentation licensed to U.S. government end users only as commercial items and only with those rights as are granted to all other end users under the terms and conditions set forth in this Software License Agreement. Manufacturer is ELPICAL Software BV, Nijverheidsstraat 9, 6987 EN GIESBEEK, The Netherlands/EU. You may not use or otherwise export or re-export the Software or Documentation except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the Software or Documentation may not be exported or re-exported (i) into (or to a national or resident of) any U.S. embargoed country or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders. By using the Software, you represent and warrant that you are not located in, under control of, or a national or resident of any such country or on any such list. �10. GENERAL PROVISIONS If you are located in the European Union and are using the Software in the European Union and not in the United States, then this Software License Agreement will be governed by and construed in accordance with the laws of The Netherlands (excluding its conflict of laws principles and the U.N. Convention on Contracts for the International Sale of Goods) and you expressly agree that exclusive jurisdiction for any claim or dispute with ELPICAL or relating in any way to your use of the Software resides in The Netherlands and you further agree and expressly consent to the exercise of personal jurisdiction The Netherlands in connection with any such dispute or claim. If you are located in the United States or are using the Software in the United States then this Software License Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, USA (excluding its conflict of laws principles and the U.N. Convention on Contracts for the International Sale of Goods) and you expressly agree that exclusive jurisdiction for any claim or dispute with ELPICAL or relating in any way to your use of the Software resides in the federal or state courts of Massachusetts and you further agree and expressly consent to the exercise of personal jurisdiction in the federal or state courts of Massachusetts in connection with any such dispute or claim. If you are located outside of the European Union or the United States and are not using the Software in the United States, then this Software License Agreement will be governed by and construed in accordance with the laws of The Netherlands (excluding its conflict of laws principles and the U.N. Convention on Contracts for the International Sale of Goods) and you expressly agree that exclusive jurisdiction for any claim or dispute with ELPICAL or relating in any way to your use of the Software resides The Netherlands and you further agree and expressly consent to the exercise of personal jurisdiction The Netherlands in connection with any such dispute or claim. This Software License Agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. This Software License Agreement contains the entire agreement and understanding of the parties with respect to the subject matter hereof, and supersedes all prior written and oral understandings of the parties with respect to the subject matter hereof. Any notice or other communication given under this Software License Agreement shall be in writing and shall have been properly given by either of us to the other if sent by certified or registered mail, return receipt requested, or by overnight courier to the address shown on ELPICAL’s Web site for ELPICAL and the address shown in ELPICAL’s records for you, or such other address as the parties may designate by notice given in the manner set forth above. This Software License Agreement will bind and inure to the benefit of the parties and our respective heirs, personal and legal representatives, affiliates, successors and permitted assigns. The failure of either of us at any time to require performance of any provision hereof shall in no manner affect such party’s right at a later time to enforce the same or any other term of this Software License Agreement. This Software License Agreement may be amended only by a document in writing signed by both of us. In the event of a breach or threatened breach of this Software License Agreement by either party, the other shall have all applicable equitable as well as legal remedies. Each party is duly authorized and empowered to enter into and perform this Software License Agreement. If, for any reason, any provision of this Software License Agreement is held invalid or otherwise unenforceable, such invalidity or unenforceability shall not affect the remainder of this Software License Agreement, and this Software License Agreement shall continue in full force and effect to the fullest extent allowed by law. The parties knowingly and expressly consent to the foregoing terms and conditions. �
nw/92.txt
TIBCO Spotfire - License Agreement READ THIS END USER LICENSE AGREEMENT CAREFULLY. BY DOWNLOADING OR INSTALLING THE SOFTWARE, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD OR INSTALL THE SOFTWARE AND RETURN IT TO THE VENDOR FROM WHICH IT WAS PURCHASED. Upon your acceptance as indicated above, the following shall govern your use of the Software except to the extent all or any portion of the Software (a) is subject to a separate written agreement, or (b) is provided by a third party under the terms set forth in an Addenda at the end of this Agreement, in which case the terms of such addenda shall control over inconsistent terms with regard to such portion(s). License Grant. The Software is the property of TIBCO or its licensors and is protected by copyright and other laws. While TIBCO continues to own the Software, TIBCO hereby grants to Customer a limited, non-transferable, non-exclusive, license to use the Number of Units set forth in the Ordering Document solely for Customer’s internal business use. License Term. The term of each license for the Software shall be either perpetual or on a term limited basis as set forth in the Ordering Document. If licensed on a term limited basis, the term shall be for a period of three years commencing on the Purchase Date, and on expiration, Customer must cease using and return or destroy all copies of the Software. Restrictions. Customer agrees not to (a) make more copies than the Number of Units (except for a reasonable number of copies for archival and disaster recovery purposes) or use any unlicensed versions of the Software; (b) provide access to the Software to anyone other than employees, contractors, or consultants under written contract with Customer agreeing to be bound by terms at least as protective of TIBCO as those in this End User License Agreement (“Authorized Users”); (c) sublicense, transfer, assign, distribute to any third party, pledge, lease, rent, or commercially share the Software or any of Customer’s rights under this Agreement (for the purposes of the foregoing a change in control of Customer is deemed to be an assignment); (d) use the Software for purposes of providing a service bureau, including, without limitation, providing third-party hosting, or third-party application integration or application service provider-type services, or any similar services; (e) use the Software in connection with ultrahazardous activities, or any activity for which failure of the Software might result in death or serious bodily injury to Customer or a third party; or (f) directly or indirectly, in whole or in part, modify, translate, reverse engineer, decrypt, decompile, disassemble, make error corrections to, create derivative works based on, or otherwise attempt to discover the source code or underlying ideas or algorithms of the Software. Customer may engage in such conduct as is necessary to ensure the interoperability of the Software as required by law, provided that prior to commencing any decompilation or reverse engineering of any Software, Customer agrees to it shall observe strict obligations of confidentiality and provide TIBCO reasonable advance written notice and the opportunity to assist with and/or conduct such activity on Customer’s behalf and at Customer's expense; and (g) notwithstanding the method of delivery of the Software, the scope of the licenses granted under this Agreement are limited to the Software as set forth in an Ordering Document. Beta and Evaluation Licenses. Notwithstanding the foregoing, if the Software is being provided for demonstration, beta testing, or evaluation purposes, then Customer agrees (a) to use the Software solely for such purposes, (b) that the Software will not be used or deployed in a production or development environment, and (c) that such use shall automatically terminate upon the earlier of thirty days from the date Customer receives the right to install the Software, or Customer’s receipt of notice of termination from TIBCO. Maintenance. Maintenance, if ordered, including first year and all subsequent years, is provided under the policies set forth in the Maintenance Program Guide in effect at the time Maintenance services are provided. The policies set forth in the Maintenance Program Guide, incorporated in this Agreement, are subject to change at TIBCO’s discretion; however the level of Maintenance service provided by TIBCO will not be materially reduced during the period for which Maintenance fees have been paid by Customer. The current version of the Maintenance Program Guide can be accessed at <http://www.tibco.com/services/support/default.jsp>. To receive Maintenance, all Page 1 �Software must be properly licensed and annual Maintenance fees paid. TIBCO is not obligated to continue providing Maintenance if annual Maintenance fees have not been paid. Services. Customer may request additional services (“Services”) either in an Ordering Document, or by a separate mutually executed work order, statement of work or other work-request document incorporating the term of this End User License Agreement (each, a “Work Order”). Unless otherwise expressly agreed to in a Work Order, all Services and any work product therefrom shall be (a) performed on a time and materials basis, plus meals, lodging, travel, and other expenses reasonably incurred in connection therewith, (b) deemed accepted upon delivery, and (c) exclusively owned by TIBCO (except for Confidential Information of Customer), including all right, title and intellectual property or other right or interest therein. Each Work Order is intended to constitute an independent and distinct agreement of the parties, notwithstanding that each shall be construed to incorporate all applicable provisions of this End User License Agreement. Limited Warranty. If Customer obtained the Software directly from TIBCO, then TIBCO warrants that for a period of thirty (30) days from the Purchase Date: (i) the media on which the Software is furnished will be free of defects in materials and workmanship under normal use; and (ii) the Software will substantially conform to its Documentation. This limited warranty extends only to the original Customer hereunder. Customer’s sole and exclusive remedy and the entire liability of TIBCO and its licensors under this limited warranty will be, at TIBCO’s option, repair, replacement, or refund of the Software and applicable Maintenance fees, in which event this End User License Agreement shall terminate upon refund thereof. This warranty does not apply to any Software which (a) is licensed for beta, evaluation, testing or demonstration purposes for which TIBCO does not receive a license fee, (b) has been altered or modified, except by TIBCO, (c) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by TIBCO, (d) has been subjected to abnormal physical or electrical stress, misuse, negligence, or accident, or (e) is used in violation of any other term of this End User License Agreement. Customer agrees to pay TIBCO for any Maintenance or Services provided by TIBCO related to a breach of the foregoing on a time, materials, travel, lodging and other reasonable expenses basis. If Customer obtained the Software from a TIBCO reseller or distributor, the terms of any warranty shall be as provided by such reseller or distributor, and TIBCO provides Customer no warranty with respect to such Software. EXCEPT AS SPECIFIED IN THIS LIMITED WARRANTY, THE SOFTWARE, MAINTENANCE AND SERVICES ARE PROVIDED “AS IS”, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, SATISFACTORY QUALITY OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. CERTAIN THIRD PARTY SOFTWARE MAY BE PROVIDED TO CUSTOMER ALONG WITH CERTAIN TIBCO SOFTWARE AS AN ACCOMMODATION TO CUSTOMER. THIS THIRD PARTY SOFTWARE IS PROVIDED “AS IS”. CUSTOMER MAY CHOOSE NOT TO USE THIRD PARTY SOFTWARE PROVIDED AS AN ACCOMMODATION BY TIBCO. NO WARRANTY IS MADE REGARDING THE RESULTS OF ANY SOFTWARE, MAINTENANCE OR SERVICES OR THAT THE SOFTWARE WILL OPERATE WITHOUT ERRORS, PROBLEMS OR INTERRUPTIONS, OR THAT ERRORS OR BUGS IN THE SOFTWARE WILL BE CORRECTED, OR THAT THE SOFTWARE’S FUNCTIONALITY, MAINTENANCE OR SERVICES WILL MEET CUSTOMER’S REQUIREMENTS. NO TIBCO DEALER, DISTRIBUTOR, AGENT OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS OR ADDITIONS TO THIS WARRANTY. Indemnity. If Customer obtained the Software from TIBCO directly, then TIBCO agrees at its own expense to defend or, at its option, to settle, any claim or action brought against Customer to the extent it is based on a claim that the unmodified Software infringes any patent issued by the United States, Canada, Australia, Japan, or any member of the European Union, or any copyright, or any trade secret of a third party; and TIBCO will indemnify and hold Customer harmless from and against any damages, costs and fees reasonably incurred (including reasonable attorneys’ fees) that are attributable to such claim or action and which are assessed against Customer in a final judgment; provided that TIBCO is promptly notified in writing of such claim, TIBCO has the exclusive right to control such defense and/or settlement, and Customer shall provide reasonable assistance (at TIBCO's expense) in the defense thereof. In no event shall Customer settle any claim, action or proceeding without TIBCO's prior written approval. In the event of any such claim, litigation or threat thereof, TIBCO, at its sole option and expense, shall (a) procure for Customer the right to continue to use the Software or (b) replace or modify the Software with Page 2 �functionally equivalent software. If such settlement or modification is not commercially reasonable (in the reasonable opinion of TIBCO), TIBCO may cancel this End User License Agreement upon sixty days prior written notice to Customer, and refund to Customer the unamortized portion of the license fees paid to TIBCO by Customer based on a five-year straight-line depreciation. This Section states the entire liability of TIBCO with respect to the infringement of any intellectual property rights, and Customer hereby expressly waives any other liabilities or obligations of TIBCO with respect thereto. The foregoing indemnity shall not apply to the extent any infringement could have been avoided by use of the then-current release. Limitation of Liability. EXCEPT AS PROVIDED UNDER INDEMNITY OR RESULTING FROM A BREACH OF CONFIDENTIALITY (THE “EXCLUDED MATTERS”), IN NO EVENT WILL EITHER PARTY OR TIBCO’S LICENSORS BE LIABLE FOR ANY LOST DATA, LOST REVENUE, LOST PROFITS, DAMAGE TO REPUTATION, BUSINESS INTERRUPTION, OR ANY OTHER INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR ANY SIMILAR TYPE DAMAGES ARISING OUT OF THIS AGREEMENT, THE USE OR THE INABILITY TO USE THE SOFTWARE, OR THE PROVISION OF ANY MAINTENANCE OR SERVICES, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR THE EXCLUDED MATTERS, IN NO EVENT SHALL A PARTY BE LIABLE TO THE OTHER, WHETHER IN CONTRACT, TORT (INCLUDING ACTIVE OR PASSIVE NEGLIGENCE), BREACH OF WARRANTY, CLAIMS BY THIRD PARTIES OR OTHERWISE, EXCEED THE PRICE PAID BY CUSTOMER UNDER THE APPLICABLE ORDERING DOCUMENT. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE ABOVE-STATED REMEDY OR LIMITED WARRANTY FAILS OF ITS ESSENTIAL PURPOSE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO CUSTOMER. Confidentiality. “Confidential Information” means the terms of this End User License Agreement; all information marked by the disclosing party as proprietary or confidential; any provided software, related documentation or related performance test results derived by Customer; and any methods, concepts or processes utilized in provided software or related documentation. Confidential Information shall remain the sole property of the disclosing party and shall not be disclosed to any non-Authorized User of either TIBCO or Customer without the prior written consent of the disclosing party. If Confidential Information is communicated orally, such communication shall be confirmed as "Confidential" in writing within thirty days of such disclosure. The parties agree to protect the Confidential Information of the other in the same manner it protects the confidentiality of similar information and data of its own (and at all times exercising at least a reasonable degree of care). Except with respect to the Software, items will not be deemed Confidential Information if (i) available to the public other than by a breach of an agreement with TIBCO, (ii) rightfully received from a third party not in breach of any obligation of confidentiality, (iii) independently developed by one party without use of the Confidential Information of the other; (iv) known to the recipient at the time of disclosure (other than under a separate confidentiality obligation); or (v) produced in compliance with applicable law or court order, provided the other party is given reasonable notice of the same. Both parties agree to indemnify the other for any damages the other may sustain resulting from their unauthorized use and/or disclosure of the other’s Confidential Information. Such damages shall include reasonable expenses incurred in seeking both legal and equitable remedies. To the extent required by law, at Customer’s request, TIBCO shall provide Customer with the interface information needed to achieve interoperability between the Software and another independently created program, on payment of TIBCO's applicable fee. Customer agrees to observe obligations of confidentiality with respect to such information. To the extent TIBCO is exposed to individual personal data owned or otherwise held by Customer during the provision of Services, which is subject to various data protection laws and/or regulations ("Protected Data"), TIBCO agrees to treat such Protected Data in accordance with the Customer Privacy and Security Statement set forth at <http://www.tibco.com/customer_privacy_security_statement.jsp> (the "Statement"). The policies and procedures set forth in the Statement as well as those set forth in the Data Protection Policy Statement at <http://www.tibco.com/resources/data_protection_statement.pdf> are in place to meet TIBCO’s obligations for the protection, integrity and confidentiality of any Protected Data which exceed TIBCO’s standard obligations to safeguard Confidential Information. Export. Software, including technical data, is subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or Page 3 �import regulations in other countries. Customer agrees to comply strictly with all such regulations and agrees to obtain all necessary licenses to export, re-export, or import Software. Government Use. If the Software, Maintenance or Services are being or have been acquired with U.S. Federal Government funds, or Customer is an agency, department, or other entity of the United States Government ("Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of the Software, Maintenance or Services, or any related documentation of any kind, including technical data, or manuals, is restricted in accordance with Federal Acquisition Regulation 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement 227.7202 for military agencies. The Software, Maintenance and Services are COMMERCIAL ITEMS AS DEFINED BY THE FEDERAL ACQUISITION REGULATION. Use of the Software, Maintenance and Services by the Government is further restricted according to the terms of this Agreement and any amendment hereto. Orders. An Ordering Document means any purchase order, similar document or agreement requesting Software, Maintenance or Services, which shall be deemed accepted only by issuance of a TIBCO invoice and solely for purposes of administrative convenience. None of the terms of the Ordering Document (other than the Software product name, Number of Units, level of Maintenance, description of Services, and fees due in connection therewith) shall apply for any reason or purpose whatsoever, regardless of any statement on any Ordering Document to the contrary, unless countersigned by an officer of TIBCO. This Agreement constitutes the entire agreement between the parties with respect to the use of the Software, Maintenance and Services, and supersedes all proposals, oral or written, and all other representations, statements, negotiations and undertakings relating to the subject matter hereof. All orders of Software, Maintenance or Services by Customer to TIBCO shall be deemed to occur with or without reference to, under the terms of this End User License Agreement, unless expressly superseded by a signed written agreement between the parties. Neither the license to use the Software granted in this Agreement nor the obligation to pay the license fees set forth above are dependent upon the performance by any party of any Services or the supply of any other software program or product. Software shall be delivered electronically, and delivery deemed complete when the Software is made available for download by Customer. Termination. Maintenance or Services may be terminated: (a) by either party upon a default of the other, such default remaining uncured for fifteen days from written notice from the nondefaulting party; (b) upon the filing for bankruptcy or insolvency of the other party, (c) by either party upon prior written notice at least sixty (60) days prior to the end of any annual Maintenance term; or (d) by Customer (for Services), upon ten days prior written notice or 30 days prior written notice by TIBCO. Termination of Maintenance or Services shall not terminate this End User License Agreement. Customer may terminate this End User License Agreement in its entirety at any time by destroying all copies of the Software. Upon termination or expiration of this End User License Agreement in its entirety, for any reason, Customer must cease using and return or destroy all copies of the Software. Customer’s obligation to pay accrued charges and any fees due as of the date of termination, as well as the sections entitled “Confidentiality”, “Limited Warranty” and “Limitation of Liability” shall survive any such termination. Authority. You hereby represent and warrant that you have full power and authority to accept the terms of this End User License Agreement on behalf of Customer, and that Customer agrees to be bound by this End User License Agreement. Definitions. In connection with this End User License Agreement Software product definitions are as set forth at <http://tibco.com/software/productdefinitions.jsp> which are hereby incorporated into the End User License Agreement and the following capitalized terms shall have the following meaning: “Customer” means the original purchaser or licensee of the Software and any permitted successors and assigns; “Documentation” means text material that accompanies the Software on delivery, which describes how to make use of that software. “Enterprise” means an unlimited Number of Units of the Software set forth in an Ordering Document as Enterprise, to be deployed by Customer during a period of one year (or such other period of time set forth in the Ordering Document) from the Purchase Date (the “Enterprise Term”), at which time, the Number of Units then deployed in Production and Non-Production use by Customer becomes fixed and Customer may not thereafter deploy additional Units. During the Enterprise Term, Customer’s right to deploy an unlimited Number of Units does not extend to any entity which acquires, is acquired by, merged Page 4 �into, or otherwise combined with Customer. Customer hereby agrees to provide TIBCO, within sixty (60) days after the end of the Enterprise Term, with written notice of the Number of Units deployed at the end of the Enterprise Term by Unit and License Type. In the event Customer elects to renew Maintenance (subject to the section entitled “Term and Termination”), then during the Enterprise Term and for the first annual renewal thereafter, TIBCO agrees the annual Maintenance fee for the Software licensed on an Enterprise basis shall not increase by more than the percentage rate change in the United States Department of Labor - Consumer Price Index for All Urban Consumers (CPI-U) for the twelve month period immediately preceding the anniversary date of Maintenance. “Purchase Date” means the date the Ordering Document is accepted by TIBCO. “Project” means an unlimited Number of Units of the Software set forth in an Ordering Document as Project, to be deployed by Customer solely in connection with the description and scope of the Customer project set forth in the Ordering Document, during a period of one year (or such other time period set forth in the Ordering Document) from the Purchase Date (the “Project Term”), at which time, the Number of Units then deployed in Production and Non-Production use by Customer becomes fixed and Customer may not thereafter deploy additional Units. During the Project Term, Customer’s right to deploy an unlimited Number of Units does not extend beyond the scope of the Project as set forth herein or to any entity which acquires, is acquired by, merged into, or otherwise combined with Customer. Customer hereby agrees to provide TIBCO, within sixty (60) days after the end of the Project Term, with written notice of the Number of Units deployed at the end of the Project Term by Unit and License Type. In the event Customer elects to renew Maintenance (subject to the section entitled “Term and Termination”), then during the Project Term and for the first annual renewal thereafter, TIBCO agrees the annual Maintenance fee for the Software licensed on a Project basis shall not increase by more than the percentage rate change in the United States Department of Labor - Consumer Price Index for All Urban Consumers (CPI-U) for the twelve month period immediately preceding the anniversary date of Maintenance. “Severity” means the impact levels of an error, defect or malfunction, which under Maintenance are determined by TIBCO as follows: “Severity 1” is an emergency production situation where the Software is totally inoperable or fails catastrophically and there is no workaround; “Severity 2” is a detrimental situation (and there is no workaround) where (a) performance degrades substantially under reasonable loads causing a severe impact on use, (b) the Software is usable but materially incomplete; or (c) one or more mainline functions or commands is inoperable; “Severity 3” is where the Software is usable, but does not provide a function in the most convenient manner; and “Severity 4” is a minor problem or documentation error. “Software” means the most current, generally available object code version on all Platforms then currently available. Software does not include multiple Platforms if the software product licensed on a Platform specific basis as designated in the Software product name or as otherwise listed in an Ordering Document, including its Documentation and any subsequent Updates provided under Maintenance. For the purposes of the product definitions where “TIBCO Software” or “Licensor Software” is used it shall have the same meaning as “Software”. “TIBCO” means TIBCO Software Inc. and any entities, regardless of corporate status, controlled by, controlling, or under common control with TIBCO Software Inc. “Updates” means Software bug fixes, enhancements, and updates, if and when made generally available by TIBCO. Updates provided under Maintenance, warranty or which are provided for any other reason by TIBCO, or TIBCO’s authorized resellers or distributors (if applicable), are subject to the license rights, limitations and restrictions of the End User License Agreement. Special Product Provision. Embedded/Bundled Products. Some Software embeds or bundles other Software. Use of such embedded or bundled Software is solely to enable the functionality of the Software licensed under this Agreement, and may not be used or accessed by any other Software, or for any other purpose. Bundle. A collection of Software listed in TIBCO’s then current price book to be sold together under a collective name such as “XXX Bundle” which consists of X, Y and Z. The Software which comprises a Bundle must be used in accordance with any specific license restrictions imposed in this Agreement and solely in conjunction with the components of the Bundle; provided that a Bundle component may be accessed by or communicate with other Software separately licensed by Customer. In no event may the Software which comprises a Bundle be used on a standalone basis. A “Bundle” is sold at a discount to the cost of licensing the individual components due to the restrictions imposed on the use of the Bundle by this section and any specific license restrictions imposed by this Agreement. If the terms of this Agreement with regard to a Bundle are breached, and such breach is not cured within ten (10) days of TIBCO notifying Customer in writing of the breach, TIBCO shall be entitled to invoice Customer for the list price of the individual components of the Bundle based upon the manner in which Customer has deployed and is making use of the components. Open Source Software. If Customer uses open source Page 5 �software or any other third party software not supplied by TIBCO in conjunction with the Software, Customer must ensure that its use does not: (i) create, or purport to create, obligations of use with respect to the Software; or (ii) grant, or purport to grant, to any third party any rights to or immunities under TIBCO’s intellectual property or proprietary rights in the Software. Customer also may not combine Software with programs licensed under the GNU General Public License ("GPL") in any manner that could cause, or could be interpreted or asserted to cause, the Software or any modifications thereto to become subject to the terms of the GPL. Third Party Software. Third Party Software means third-party software identified by its company and/or product name, the provision of which by TIBCO is made solely as an accommodation and in lieu of Customer purchasing a license to Third Party Software directly from the third party vendor. General. All payments of fees due shall be made in U.S. dollars, net 30 from Purchase Date, or, for any other amounts coming due hereafter, net 30 from TIBCO’s invoice. Fees do not include sales, use, withholding, value-added or similar taxes, and Customer agrees to pay all sales, use, value-added, goods and services, consumption, withholding, excise and any other similar taxes or government charges, exclusive of TIBCO’s income tax. Customer agree to pay all reasonable costs incurred (including reasonable attorneys’ fees) in collecting past due amounts. Except as set forth in the sections entitled “Limited Warranty” and “Indemnity” all fees paid under or in connection with this End User License Agreement are non-refundable and no right of set-off exists. A service charge of one and one-half percent per month will be applied to all invoices that are not paid on time. No delay in the performance of any obligation by either party, excepting all obligations to make payment, shall constitute a breach of this End User License Agreement to the extent caused by force majeure. Customer hereby grants TIBCO and its independent auditors the right to audit Customer’s compliance with this End User License Agreement. If any portion of this End User License Agreement is found to be void or unenforceable, the remaining provisions shall remain in full force and effect. Governing Law. This End User License Agreement shall be governed by and construed in accordance with the laws of the State of California, United States of America, as if performed wholly within the state and without giving effect to the principles of conflict of law. The United Nations Convention on Contracts for the International Sale of Goods is excluded from application hereto. Version Apr 2008 Copyright © 1994-2010 TIBCO Software Inc. ALL RIGHTS RESERVED. Third Party Software Notices and License Agreements Antlr Runtime for .Net 3.0.1 Copyright (c) 2003-2007, Terence Parr All rights reserved. Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met: • • • Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer. Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution. Neither the name of the author nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission. THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT OWNER OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. Page 6 �Log4net 1.2.10 OpenAjax Hub 2.0 Apache License Version 2.0, January 2004 http://www.apache.org/licenses/ TERMS AND CONDITIONS FOR USE, REPRODUCTION, AND DISTRIBUTION 1. Definitions. "License" 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 (i) the power, direct or indirect, to cause the direction or management of such entity, whether by contract or otherwise, or (ii) ownership of fifty percent (50%) or more of the outstanding shares, or (iii) beneficial ownership of such entity. "You" (or "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. 3. Grant of Patent 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 (except as stated in this section) patent license to make, have made, use, offer to sell, sell, import, and otherwise transfer the Work, where Page 7 �such license applies only to those patent claims licensable by such Contributor that are necessarily infringed by their Contribution(s) alone or by combination of their Contribution(s) with the Work to which such Contribution(s) was submitted. If You institute patent litigation against any entity (including a cross-claim or counterclaim in a lawsuit) alleging that the Work or a Contribution incorporated within the Work constitutes direct or contributory patent infringement, then any patent licenses granted to You under this License for that Work shall terminate as of the date such litigation is filed. 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: (a) You must give any other recipients of the Work or Derivative Works a copy of this License; and (b) You must cause any modified files to carry prominent notices stating that You changed the files; and (c) 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 (d) 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; or, 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, including, 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 Page 8 �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. jQuery 1.6.2 Copyright (c) 2011 John Resig, http://jquery.com/ Permission is hereby granted, free of charge, to any person obtaininga copy of this software and associated documentation files (the"Software"), to deal in the Software without restriction, includingwithout limitation the rights to use, copy, modify, merge, publish,distribute, sublicense, and/or sell copies of the Software, and topermit persons to whom the Software is furnished to do so, subject tothe following conditions:The above copyright notice and this permission notice shall beincluded in all copies or substantial portions of the Software. THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND,EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OFMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE ANDNONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BELIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTIONOF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTIONWITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE. jQuery UI 1.8.7 Copyright (c) 2010 Paul Bakaus, http://jqueryui.com/ This software consists of voluntary contributions made by manyindividuals (AUTHORS.txt, http://jqueryui.com/about) For exactcontribution history, see the revision history and logs, availableat http://jquery-ui.googlecode.com/svn/Permission is hereby granted, free of charge, to any person obtaininga copy of this software and associated documentation files (the"Software"), to deal in the Software without restriction, includingwithout limitation the rights to use, copy, modify, merge, publish,distribute, sublicense, and/or sell copies of the Software, and topermit persons to whom the Software is furnished to do so, subject tothe following conditions:The above copyright notice and this permission notice shall beincluded in all copies or substantial portions of the Software. THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND,EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OFMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE ANDNONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BELIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTIONOF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTIONWITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE. Page 9 �OpenAjax Hub 2.0 Specification Copyright 2007-2009 OpenAjax Alliance. This software includes the OpenAjax Hub specification, which can be found at http://www.openajax.org/member/wiki/OpenAjax_Hub_2.0_Specification_Managed_Hub_APIs Page 10 �
nw/93.txt
PORTAL END USER LICENSE AGREEMENT Your use of the software in this web-based portal ("Portal") is under license from Electronic Lockbox Services, LLC, a Michigan limited liability company, located at 1502 W. Edgewood Ave. Suite B, Indianapolis IN 46217 ("ELS, "we" and "us"), and is subject to the following end user license agreement ("EULA"), which you consent to by way of your acceptance of the terms using the "I accept" button on the screen, and/or your use of the Portal. If you do not agree to be bound by the EULA, you may not access or use the Portal. The Portal is licensed to you, not sold. There may now or in the future be updates or new software that becomes a part of or otherwise accompany the Portal that may be subject to a separate license agreement(s), and in that case, the terms of those separate license agreement(s) will govern your use of those products. We reserve all rights not expressly granted to you. We grant You a limited, non-transferable license to use the Portal which is accessed via the Internet on a computer or other device that you own or otherwise are authorized to use. You may not (i) reproduce the Portal or make it available for use to any other party, (ii) rent, lease, lend, sell, redistribute or sublicense your license to use the Portal, or (iii) copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Portal, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Portal). This EULA will govern your use of any updates or upgrades to the Portal unless we provide a new license to you along with the update or upgrade, in which case the new license will control. This EULA will remain in effect until you or we terminate it. This EULA will automatically terminate without further notice if you breach any of its terms. Upon termination, You shall cease all use of the Portal and destroy all copies of it (in whole or in part) in your possession or control. The Portal may provide access to third party websites and services, which you acknowledge we do not control and for which we disclaim all responsibility. You use such services and third party websites at your own risk. We reserve the right to change, suspend, remove, or disable your access to the Portal at any time without notice and under no circumstances will we be liable to you for any loss or damage in doing so. YOU EXPRESSLY ACKNOWLEDGE THAT USE OF THE PORTAL IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. YOU EXPRESSLY ACKNOWLEDGE THAT THE PORTAL ALLOWS YOU TO REMIT PAYMENTS TO THIRD PARTIES AND THAT THOSE THIRD PARTIES ARE REPONSIBLE FOR THE COLLECTION AND PROTECTION OF YOUR PERSONAL DATA, NOT ELS; WE MAY PROVIDE THE INFORMATION YOU SUBMIT TO US VIA THE PORTAL TO CREDIT CARD COMPANIES AND OTHER THIRD PARTIES. YOU SHOULD REFER TO YOUR PROVIDER'S PRIVACY NOTICES IF YOU HAVE QUESTIONS ABOUT HOW YOUR DATA IS HANDLED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PORTAL AND ANY SERVICES PERFORMED OR PROVIDED BY THE �PORTAL ("SERVICES") ARE PROVIDED "AS IS" AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND WE HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE PORTAL AND ANY SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. WE DO NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE PORTAL, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE PORTAL OR SERVICES WILL BE UNINTERRUPTED OR ERRORFREE, OR THAT DEFECTS IN THE PORTAL OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR OUR AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL WE BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF OR DISCLOSURE OF DATA (INCLUDING PERSONAL DATA OR INFORMATION), BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE PORTAL, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall our total liability to you for all damages (other than as may be required by applicable law) exceed twenty-five dollars ($25.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose. You may not use or otherwise export or re-export the Portal except as authorized by United States law and the laws of the jurisdiction in which the Portal was accessed. In particular, but without limitation, the Portal may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Portal, you represent and warrant that you are not located in any such country or on any such list. You will not use the Portal for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear weapons, missiles, or chemical or biological weapons. The laws of the State of Michigan, excluding its conflicts of law rules, govern this EULA and your use of the Portal. Your use of the Portal may also be subject to other local, state, national, or international laws. �
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End User License Agreement (EULA) By downloading this software, you hereby agree to the following End User License Agreement: The files you are downloading from Laird Technologies, Inc. (Laird) include software developed and/or licensed by Cypress Semiconductor Corporation and its suppliers and licensors (Suppliers), as well as associated media, printed materials, and online or electronic documentation. Laird software and associated materials and documentation, collectively referred to as the (Software), is protected by United States as well as international intellectual property laws and treaties. The Software is licensed for use and not for resale. This end-user license agreement (EULA) is a legal agreement between you, the end user, and Laird concerning your use of the Software. Any use of the Software, including, but not limited to, use with a Laird product which contains Cypress Semiconductor Corporation product (Product), will constitute your agreement with this EULA (or your ratification of any previous consent). If you do not agree to this EULA, then do not use the Product or Software, and do not copy the Software. Grant of Software License This EULA grants to you a non-exclusive and nontransferable (except as specified herein) license to use the Software only in conjunction with the Product, subject to the terms and conditions set forth in this EULA. This license and your right to use the Software automatically terminate if you fail to comply with any provision of this EULA. Upon termination you must destroy all copies of the Software. Title to and ownership of the Software remains with Laird and its third party licensors. Limitations on License You may not alter, modify, adapt, create a derivative work from, merge, translate, decompile, disassemble, or reverse engineer the Software. Any attempt to do any of the foregoing shall terminate your license immediately and automatically. Users residing outside of United States and Canada: You agree not to use this software in any product that will be sold and operated within the United States and Canada. Use of this software is strictly forbidden for any product operating in the United States and Canada and you accept full responsibility in ensuring compliance with this requirement. Failure to adhere to this requirement will void all warranties and result in non-compliance with United States and Canadian regulatory bodies which may result in legal action against you by the authoritative bodies. Transfer of License You may permanently transfer rights and obligations under this EULA only as part of a permanent sale or transfer of the Product. Export Restrictions Because the U. S. Government controls export of technical materials, including the restrictions contained in the U.S. Export Administration Act, you agree that you will not ship, transfer, or reexport, directly or indirectly, the Software or any derivative thereof into any country prohibited by the U. S. Export Administration Act and the regulations thereunder. You also agree that you �will not use the Software for any purpose prohibited by the U.S. Export Administration Act. Limited Warranty The Software is offered “AS IS”, and you receive no warranties of any kind, express or implied, by statute, communication or conduct with Laird or otherwise. Laird specifically disclaims all implied warranties of merchantability, fitness for a specific purpose or noninfringement concerning the software or any upgrades to or documentation for the Software. Without limitation of the above, Laird grants no warranty that the Software is error-free or will operate without interruption, and grants no warranty regarding its use or the results therefrom including, without limitation, its correctness, accuracy or reliability. LAIRD DOES NOT WARRANT THAT THE SOFTWARE'S FUNCTIONS WILL MEET YOUR REQUIREMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED OR ERRORFREE. In no event will Laird, its third party licensors or anyone else involved in the creation, production, or delivery of the software be liable for direct, indirect, special, incidental, or consequential damages arising out of use or inability to use the software, even if any party has been advised of the possibility of such damages. Laird and its third party licensors are not responsible for any costs including, but not limited to, those incurred as a result of lost profits or revenue, loss of time, data, or use of the Software, the costs of recovering the Software or data, the cost of substitute software, claims by third parties, or other similar costs. In no case will Laird’s liability exceed the cost of Product. The warranties and remedies set forth above are exclusive and in lieu of all others, oral or written, express or implied. It is expressly understood and agreed that each and every provision of this EULA that provides for a limitation of liability, disclaimer of warranty, or exclusions of damages is intended by the parties to be severable and independent of any other provision and is to be enforced as such. Governing Law This EULA is the entire agreement between you and Laird relative to the Software and supersedes all prior written statements, proposals, or agreements relative to its subject matter. This EULA is governed by the laws of the State of Ohio, United States of America (USA), without regard to its choice of law provisions. In the event of any conflicts between foreign law, rules, and regulations and the laws of the State of Ohio, USA rules and regulations, the State of Ohio, USA law, rules and regulations shall prevail and govern. The United Nations Convention on Contracts for the International Sales of goods shall not apply to this EULA. Laird possesses all title or rights to license the Software. Laird retains all rights not expressly granted and waives no rights under federal copyright or other applicable laws. Laird transfers no title or rights to the intellectual property contained in the Software. All rights reserved. This product includes software developed by Cypress Semiconductor Corporation. If you have any questions, contact Laird at [email protected]. �
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LUXAND™ END USER LICENSE AGREEMENT NOTICE TO USER: THIS IS A CONTRACT. THIS END USER LICENSE AGREEMENT IS A LEGALLY BINDING CONTRACT THAT SHOULD BE READ IN ITS ENTIRETY. THIS IS AN AGREEMENT GOVERNING YOUR USE OF “LUXAND FACESDK” SOFTWARE, FURTHER DEFINED HEREIN AS “PRODUCT,” AND THE LICENSOR OF THE PRODUCT IS WILLING TO PROVIDE YOU WITH ACCESS TO THE PRODUCT ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. BELOW, YOU ARE ASKED TO ACCEPT THIS AGREEMENT AND CONTINUE TO INSTALL OR, IF YOU DO NOT WISH TO ACCEPT THIS AGREEMENT, TO DECLINE THIS AGREEMENT, IN WHICH CASE YOU WILL NOT BE ABLE TO INSTALL OR OPERATE THE PRODUCT. BY INSTALLING THIS PRODUCT YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. This Electronic End User License Agreement (the “Agreement”) is a legal agreement between you (either an individual or an entity), (the “Licensee”), and Luxand, Inc. (the “Licensor”), regarding the software and service titled “LUXAND FACESDK” that you about to download, downloaded, or otherwise obtained through other resources or media such as CD-ROMs, floppy disks, or through a network in object code or source code form or other related services, including without limitation a) all of the contents of the files, including disk(s), CD-ROM(s) or other media with which this Agreement is provided and including all forms of code, such as Source Code and Object Code as provided and in a form that is provided by Licensor to you (the “Software”). For the avoidance of doubt, by way of example, but not exclusion, if a specific file is provided by Licensor in Object Code only, the Source Code for such files shall not be deemed a part of the Software provided by Licensor to you. For purposes hereof “Source Code” shall mean the human-readable form of the computer programming code and related system documentation including all comments and any procedural code such as job control language and “Object Code” shall mean computer programs assembled or compiled in magnetic or electronic binary form on software media, which are readable and usable by machines, but not generally readable by humans without reverse-assembly, reverse-compiling, or reverse-engineering, (b) all successor upgrades, revisions, patches, enhancements, fixes modifications, copies, additions or maintenance releases of the Software, if any, licensed to you by the Licensor (collectively, the “Updates”) provided that the Updates shall not include a new subsequent releases of the Software bearing a new first numeral such as 2.0 or 3.0 (“New Releases”) but include any minor revisions of the Software version indicated by a change in the decimal numeral, such as 2.3 or 2.4, and (c) related user documentation and explanatory materials or files provided in written, “online” or electronic form (the “Documentation” and together with the Software and Updates, the “Product”). You are subject to the terms and conditions of this End User License Agreement whether you access or obtain the Product directly from the Licensor, or through any other source. For purposes hereof, “you” means the individual person installing or using the Product on his or her own behalf; or, if the Product is being downloaded or installed on behalf of an organization, such as an employer, “you” means the organization for which the Product is downloaded or installed and it is represented hereby that such organization has authorized the person accepting this agreement to do so on its behalf. For purposes hereof the term “organization,” without limitation, includes any partnership, limited liability company, corporation, association, joint stock company, trust, joint venture, labor organization, unincorporated organization, or governmental authority. By accessing, downloading, storing, loading, installing, executing, displaying, copying the Product into the memory of a computer or otherwise benefiting from using the functionality of the Product in 1 �accordance with the Documentation (“Operating”), you agree to be bound by the terms of this Agreement. If you do not agree to the terms and conditions of this Agreement, the Licensor is unwilling to license the Product to you. In such event, you may not Operate or use the Product in any way. For the purposes of this Agreement, “Licensor Site” shall mean the Internet website maintained by or on behalf of Licensor from which the Software is available for download pursuant to a license from Licensor. The Licensor Site is currently located at: www.Luxand.com BEFORE YOU CLICK ON THE “I AGREE” BUTTON CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOUR CLICK OF THE “I AGREE” BUTTON IS A SYMBOL OF YOUR SIGNATURE AND BY CLICKING ON THE “I AGREE” BUTTON, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT AND AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “EXIT” BUTTON AND THE SOFTWARE WILL NOT BE INSTALLED ON YOUR COMPUTER. This Product will not install on your computer unless or until you accept the terms of this Agreement. You may also receive a copy of this Agreement by contacting the Licensor at: [email protected]. 1. Proprietary Rights and Non-Disclosure. 1.1. Ownership Rights. You agree that the Product and the authorship, systems, ideas, methods of operation, documentation and other information contained in the Product, are proprietary intellectual properties and/or the valuable trade secrets of the Licensor or its suppliers and/or licensors and are protected by civil and criminal law, and by the law of copyright, trade secret, trademark and patent of the United States, other countries and international treaties. You may use trademarks only insofar as to identify printed output produced by the Product in accordance with accepted trademark practice, including identification of trademark owner’s name. Such use of any trademark does not give you any rights of ownership in that trademark. The Licensor and/or its suppliers own and retain all right, title, and interest in and to the Product, including without limitations any error corrections, enhancements, Updates or other modifications to the Software, whether made by the Licensor or any third party, and all copyrights, patents, trade secret rights, trademarks, and other intellectual property rights therein. Your possession, installation or use of the Product does not transfer to you any title to the intellectual property in the Product, and you will not acquire any rights to the Product except as expressly set forth in this Agreement. All copies of the Product made hereunder must contain the same proprietary notices that appear on and in the Product. Except as stated herein, this Agreement does not grant you any intellectual property rights in the Product and you acknowledge that the License, as further defined herein, granted under this Agreement only provides you with a right of limited use under the terms and conditions of this Agreement. 1.2. Source Code. You acknowledge that the source code for the Product is proprietary to the Licensor or its suppliers and/or licensors and constitutes trade secrets of the Licensor or its suppliers and/or licensors. Except as otherwise specifically provided herein, you agree not to disassemble, decompile or “unlock”, decode or otherwise reverse-translate or reverse-engineer, or attempt in any manner to reconstruct or discover any source code or underlying algorithms of the Product or any part thereof provided solely in Object Code form. 1.3. Confidential Information. You agree that, unless otherwise specifically provided herein the Product, including the specific design and structure of individual programs and the Product, constitute confidential proprietary information of the Licensor or its suppliers and/or licensors. You agree not to transfer, copy, disclose, provide or otherwise make available such confidential 2 �information in any form to any third party. For purposes hereof, “License Key” shall mean a file or a unique sequence of digit and/or symbols provided to you by the Licensor confirming the purchase of the license from the Licensor, which may carry the information about the License, i.e. its type, the user name and the number of licenses purchased, and enabling the full functionality of the Product in accordance with the License granted under this Agreement. You agree to implement reasonable security measures to protect such confidential information, provided however, that you may make and distribute unlimited copies of the trial version of Product in object code only, including copies for commercial distribution,] as long as each copy that you make and distribute contains this Agreement subject to end user’s acceptance before the first use, and the same copyright and other proprietary notices pertaining to the Product that appear in the Product and further provided, that in connection with the distribution of the trial version of the Product you do not (i) bundle the Product with any other products or materials, including and DVD or CD compilations, or (ii) charge any fees without Licensor’s prior written consent. If you download the Software from the Internet or similar on-line source, you must include the copyright notices resident on the Software with any on-line distribution and on any media you distribute that includes the Software. 2. Grant of License. 2.1. License. The Licensor grants you the non-exclusive and non-transferable license to store, load, install, execute, and display (to “Use”) the specified version of the Software on designated number of computers, workstations, Servers (as such term defined in Section 2.1(b)), personal digital assistants, ‘smart phones,’ mobile phones, hand-held devices, or other electronic devices for which the Software was designed provided that, such Use is deemed to be processed with (i) a single Server if such Server has not more than one (1) CPU (central processing unit), having not more than two (2) “cores” per CPU, for which the Software was designed and/or (ii) a single virtual environment with not more than two (2) “cores” (each a “Client Device”) by a single user pursuant to the terms and conditions of this Agreement (“License”), provided that, if you have purchased more than a single License to Use a single (1) copy of the Product on one or more Client Devices or with more than one Domain (the “Multisite Use Licenses”), then the number of the Uses, Licenses Domains and Client Devices shall be reflected in the License Key granted to you by the Licensor, and you hereby agree and accept such License as follows: a) Trial Version. If you have received, downloaded and/or installed a trial version of the Product and are hereby granted an evaluation license for the Software and you may Use the Product for evaluation purposes only. Any use of the Product for other purposes is strictly prohibited, provided however that, subject to the restrictions contained herein, you may copy and distribute a trial version of the Product as provided in Section 1.3 hereof. The Licensor shall not be required to provide any support and Updates, for the Trial Version of the Product. b) Local Machine License. If the Product is licensed under Local Machine License with the Software provided in Object Code only upon the terms specified on the Licensor’s Site, in the applicable invoicing or packaging for the Product, you may Operate one copy of the specified version of the Product for Local Use (the “Local Machine License”). For purposes hereof, “Local Use” shall mean business, commercial, government Use only for internal purposes to create the Applications, frameworks or Components developed Using the Software (the “Results”) and to use such Results for internal purposes without the right to assign, license or otherwise transfer any such Results or the Product to any third party. For purposes of this Agreement, the terms: (i) “Application” shall mean a computer program developed Using the Product for your utilization in accordance with Licenses granted herein (i.e. Local Machine License) and (ii)“Component” shall mean libraries or components for 3 �use with third party software, including without limitations, DLL libraries, Delphi components, .NET assemblies ActiveX objects and Java classes. Licensee may Use the Product licensed under the Local Machine License on a single (1) Client Device (except for a local and/or publicly accessible Server) owned, rented or leased by Licensee, provided that, such Client Device is not accessed and/or available to the general public or any third party, and further provided that such Client Device is not a Server. For purposes hereof, the term “Server” shall mean a Client Device or a Client Device system with one or more computer central processing units (CPU’s) that multiple users access or make use of, including but not limited to, terminal servers, file servers, application servers or web servers and that operates for the purpose of serving other Client Devices logically or physically connected to it, including, but not limited to, other Client Devices connected to it in an internal network, intranet or the Internet on which the Product may be Used and/or Operated. c) Server License. If the Product is licensed under Server License with the Software provided in Object Code only upon the terms specified on the Licensor’s Site, in the applicable invoicing or packaging for the Product, you may Operate one copy of the specified version of the Product on one (1) Client Device and implemented with not more than one (1) internet domain (the “Domain”), provided that you may change the Domain upon written request to Licensor and payment of fee as provided in the applicable invoicing for the Product or Licensor Site, and further provided that you discontinue using the original Domain as soon as you designate the new Domain, and further provided that Licensee shall prominently display on Licensee’s website, Application and Results the following: “Face Recognition powered by Luxand.com” together with Luxand logotype. For purposes of this Agreement, the “Domain” shall mean a full qualified domain name (FQDN) specified during the License purchase, and does not include subdomains of the Domain except for subdomain name preceded with “www” or subdomain names of localized version of the FQDN (e.g., de.wikipedia.org, en.wikipedia.org). Under the Server License, any Use or Operating of the Product by third parties or transfer of the Results to third parties are strictly prohibited. d) Middleware License. If the Product is licensed under Middleware License with the Software provided in Object Code only upon the terms specified in the applicable invoicing or packaging for the Product, you may Use the Product for business, commercial, government Use with the right to distribute any Results to any third parties (e.g. your customers), provided that, you distribute the Results in Object Code form and the Result adds significant and primary functionality to the Software, and further provided that, except pursuant to Licensor’s written consent, you may not grant any rights to your customers to sub-license, assign or otherwise transfer any rights granted to you herein, including without limitation a right to sub-license or transfer of the Results to your customer’s end-users. Licensee may Use the Product licensed under the Middleware License on an unlimited number of Client Devices owned, rented or leased by Licensee, provided however, you may not Operate the Product on the Client Devices that are Servers or are accessible to third parties (e.g. publicly accessible web server). e) Vendor License. If the Product is licensed under Vendor License with the Software provided in Object Code only upon the terms specified in the applicable invoicing or packaging for the Product, you may Use the Product for business, commercial, government Use with the right to distribute any Results to any third parties (e.g. your customers) via any commercial channels (e.g. online or retail stores), provided that, (i) the Results shall be developed by a single member (employer or contractor) of your organization (ii) you 4 �distribute the Results in Object Code form and the Results adds significant and primary functionality to the Software, and (iii) except pursuant to Licensor’s written consent, you may not grant any rights to your customers to sub-license, assign or otherwise transfer any rights granted to you herein, including without limitation a right to sub-license or transfer of the Results to your customer’s end-users, and (iv) Licensee shall prominently display on Licensee’s website, Application and Result the following: “Face Recognition powered by Luxand.com” together with Luxand logotype. Licensee may Use the Product licensed under the Vendor License on an unlimited number of Client Devices owned, rented or leased by Licensee, provided however, you may not Operate the Product on the Client Devices that are Servers or are accessible to third parties (e.g. publicly accessible web server), and further provided, that for the rights granted herein, you shall within fifteen (15) days after following the close of each calendar month during the Term hereof remit to Licensor any and all fees due and payable for previous calendar month as set forth in the Attachment A. f) Application License. If the Product is licensed under Application License with the Software provided in Object Code only upon the terms specified in the applicable invoicing or packaging for the Product, you may Use the Product for business, commercial, government Use with the right to distribute any Results to any third parties (e.g. your customers) via any commercial channels (e.g. online or retail stores), provided that, (i) the Result shall contain only a single Application, but may contain several Components within the single Application (ii) you distribute the Results in Object Code form and the Results adds significant and primary functionality to the Software, and (iii) except pursuant to Licensor’s written consent, you may not grant any rights to your customers to sub-license, assign or otherwise transfer any rights granted to you herein, including without limitation a right to sub-license or transfer of the Results to your customer’s end-users, and (iv) you may not Operate the Product on the Client Devices that are Servers or are accessible to third parties (e.g. publicly accessible web server), and further provided, that for the rights granted herein, you shall within fifteen (15) days after following the close of each calendar month during the Term hereof remit to Licensor any and all fees due and payable for previous calendar month as set forth in the Attachment A, and further provided,if any amount payable by you to Licensor becomes overdue for over four (4) calendar months in accordance with the provisions of this Agreement, Licensor shall have the right to terminate this Agreement unilaterally, in the event that you fail to cure such breach. g) Redistributables. If you are granted Vendor License, Application License or Middleware License pursuant to Section 2.1(d) and (e) hereof, in addition to the licenses and rights granted therein, Licensor grants you a nonexclusive, deployment-free, royalty-free right to reproduce and distribute the Object Code version of those portions of the Software which are identified as ‘redistributable files’ (collectively, the “Redistributables”) provided that you comply with all of the following requirements: i) you distribute the Redistributables in Object Code form only in conjunction with and as part of your software application product which adds significant and primary functionality and when the absence of Redistributables will make your software application inoperable; ii) you do not use Licensor name, logo or trademarks to market your software application product; iii) you include a valid copyright notice on your Software identifying the Licensor as the copyright owner of the Redistributables; and iv) except as otherwise explicitly consented by Licensor in writing, you may not sub5 �license, assign or otherwise transfer any rights granted to you herein to any third party (i.e. sub-license of the Redistributables). h) Grant of Multiple Licenses. If you have purchased multiple licenses for the Product, as reflected the License Key granted to you by the Licensor, then the number of multiple licenses and the licensing terms reflected in the License Key shall determine the number of copies of the Product you may have, the permitted Uses, and the number of Client Devices on which you may Use the Product provided that unless the type of the License and explicit licensing terms, and the License Key provides otherwise, each purchased license entitles only you to install and Use (as such term defined in this Agreement) the Product on any number of Client Devices. The Licensor reserves all rights not expressly granted herein. 2.2. Third Party Software. In order to Operate the Product you may need to obtain certain additional third-party software (“Third Party Software”). Third Party Software is (i) not licensed hereunder; (ii) not under Licensor’s control or license; and (iii) subject to the applicable licenses of such third parties which you may need to enter into prior to the installation of the Third Party Software and prior to the effective Operation of the Product. Notwithstanding any provision to the contrary herein, nothing in this Agreement shall be construed as to grant you any rights or licenses with regard to such Third Party Software or to entitle you to use such Third Party Software. 2.3. Multiple Environment Product; Multiple Language Product; Dual Media Product; Multiple Copies; Bundles. If you use different versions of the Product or different language editions of the Product, if you receive the Product on multiple media, if you otherwise receive multiple copies of the Product, or if you received the Product bundled with other software, the total permitted number of your Client Devices on which all versions of the Product are installed shall correspond to the number of licenses you have obtained from the Licensor provided that unless the licensing terms and the License Key provides otherwise, each purchased license entitles only you to install and Use the Product on any number of Client Devices. You may not rent, bundle with other products or materials, lease, sublicense, lend or transfer any versions or copies of the Product regardless of whether you use the Product or not without Licensor’s written consent. 2.4. Updates; Software Assurance. During the Term of this Agreement, you may download Updates to the Product when and as the Licensor publishes them in its website as such Updates are made available to you per your License and applicable invoicing terms, as applicable, free of charge or for a fee. If you purchased the “Software Assurance” Services at the time of the purchase of the License at prices and terms set forth on the Licensor Site, you will be entitled to download Updates free of charge for a period of one (1) year from the date of the purchase when such Updates are made available by Licensor. Notwithstanding any provision to the contrary herein, nothing in this Agreement shall be construed as to grant you any rights or licenses with regard to the New Releases of the Product or to entitle you to any New Release. This Agreement does not obligate the Licensor to develop and/or provide any Updates. Notwithstanding the foregoing, any Updates that you may receive become part of the Product and the terms of this Agreement apply to them (unless this Agreement is superceded by a successive agreement accompanying such Update or modified version of to the Product). 2.5. Term and Termination. The term of this Agreement (“Term”) shall begin when you download or install the Product (whichever is earlier) and shall continue, unless otherwise terminated pursuant hereto, in perpetuity or for the term specified in the License granted hereunder. The Licensor may terminate this Agreement by offering you a superseding Agreement for the Product or any replacement or modified version of or upgrade or New Release of the Product and conditioning your continued use of the Product or such replacement, modified or upgraded version or New Release on your acceptance of such superseding Agreement. This Agreement may be also terminated by the Licensor immediately and without notice if you fail to comply with any of your 6 �obligation or conditions of this Agreement. Without prejudice to any other rights, this Agreement will terminate automatically if you fail to comply with any of the limitations or other requirements described herein. Upon any termination or expiration of this Agreement, you must immediately cease use of the Product and destroy all copies of the Product. 2.6. No Rights Upon Termination. Upon termination of this Agreement you will no longer be authorized to Operate or use the Product in any way 2.7. Material Terms and Conditions. You specifically agree that each of the terms and conditions of this Section 2 are material and that failure of you to comply with these terms and conditions shall constitute sufficient cause for Licensor to immediately terminate this Agreement and the License granted under this Agreement. The presence of this Section 2.7 shall not be relevant in determining the materiality of any other provision or breach of this Agreement by either party hereto. 2.8. Licensee License. Subject to the terms and conditions of this Agreement, the Licensee hereby grants to the Licensor a non-exclusive license to use, reproduce and display the Licensee Marks on the Licensor Site, solely in connection with providing a “link back” to the Licensee’s website and in connection with the promotional materials used by Licensor in connection with the Products. 3. Additional Covenants; Assignment of Intellectual Property Rights. 3.1. Additional Limitations. Notwithstanding anything to the contrary herein, you may not Operate, Use, or modify the Product in any way as to form the basis for creating a product that provides the same, or substantially the same, functionality as the Product; and in the event you develop any modifications, enhancements, derivative works and/or extensions to the Product, either independently or jointly with Licensor, such modifications, enhancements, derivative works and/or extensions and all rights associated therewith will be the exclusive property of Licensor. You will not grant, either expressly or impliedly, any rights, title, interest, or licenses to any such modifications, enhancements, derivative works and/or extensions to any third party. You will, however, be entitled to use such modifications, enhancements, derivative works and/or extensions under the terms set forth in this Agreement. You hereby assign all right, title and interest in and to such modifications, enhancements, derivative works and/or extensions to the Product to Licensor. You also agree to execute, acknowledge and deliver to Licensor all documents and do all things Licensor deems necessary or desirable, at no cost to but at Licensor expense, to enable Licensor to obtain and secure such modifications, enhancements, derivative works and/or extensions anywhere in the world. You agree to secure all necessary rights and obligations from relevant employees or third parties in order to satisfy the above obligations. 3.2. Indemnification. In addition to the other requirements set forth in this Section 3, you hereby agree to indemnify, hold harmless, and defend Licensor from and against any and all liabilities, damages, losses, costs and expenses (including reasonable attorneys' fees) arising from or related to any claim, action, proceeding or allegation that arises or results, either directly or indirectly, from the use and distribution of any of your software application product(s) or components. 4. Restrictions. 4.1. No Transfers. Under no circumstances you shall sell, loan, rent, lease, loan, license, sublicense, publish, display, distribute, or otherwise transfer to a third party the Product, any copy or use thereof, in whole or in part, without Licensor's prior written consent, provided that if such non-waivable right is specifically granted to you under applicable law in your jurisdiction you may transfer your rights under this Agreement permanently to another person or entity, provided that (a) 7 �you also transfer this Agreement, the Product, all accompanying printed materials, and all other software or hardware bundled or pre-installed with the Product, including all copies, Updates and prior versions, to such person or entity; (b) retain no copies, including backups and copies stored on a Client Device; (c) the receiving party accepts the terms and conditions of this Agreement and any other terms and conditions upon which you legally purchased a license to the Product; and (d) the Licensor is notified about the transfer. Notwithstanding the foregoing, you may not transfer education, pre-release, or “not for resale” copies of the Product. In no case you may permit third parties to benefit from the use or functionality of the Product via a timesharing, service bureau or other arrangement, except to the extent such use is specified in the application price list, purchase order or product packaging for the Product. 4.2. Prohibitions. Except as otherwise specifically provided for in this Agreement, you may not use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, otherwise reverse engineer, or otherwise reduce any party of the Product to human readable form or transfer the licensed Product, or any subset of the licensed Product, nor permit any third party to do so, except to the extent the foregoing restriction is expressly prohibited by applicable law. Notwithstanding the foregoing sentence, decompiling the Software is permitted to the extent the laws of your jurisdiction give you the non-waivable right to do so to obtain information necessary to render the Software interoperable with other software; provided, however, that you must first request such information from the Licensor and the Licensor may, in its discretion, either provide such information to you (subject to confidentiality terms) or impose reasonable conditions, including a reasonable fee, on such use of the Software to ensure that the Licensor's and its suppliers and/or licensors proprietary rights in the Software are protected. You may not modify, or create derivative works based upon the Product in whole or in part. Any such unauthorized use shall result in immediate and automatic termination of this Agreement and the License granted hereunder and may result in criminal and/or civil prosecution. Neither Product’s binary code nor source may be used or reverse engineered to re-create the program algorithm, which is proprietary, without written permission of the Licensor. All rights not expressly granted here are reserved by Licensor and/or its suppliers and licensors, as applicable. 4.3. License Key. You may not give, make available, give away, sell or otherwise transfer your registration License Key or any copy thereof to a third party. Product’s License Key may not be distributed, except as provided herein, outside of the area of legal control of the person or persons who purchased the original License, without written permission of the Licensor. Doing so will result in an infringement of copyright. The Licensor retains the right of claims for compensation in respect of damage which occurred by your giving away the License Key or registration code contained therein. This claim shall also extend to all costs which the Licensor or its licensors incur in defending themselves. 4.4. No Extraction for Separate Use. You shall not extract or Use any functionality of this Software other than as part of normal Operation of the Product described in the Documentation and as integral part of Operation and functionality of the Product as a whole. 4.5. Proprietary Notices and Copies. You may not remove any proprietary notices or labels on the Product. You may not copy the Product except as expressly permitted in Section 2 above. 4.6. No Transfer of Rights. Except as otherwise specifically provided herein, you may not transfer or assign any of the rights granted to you under this Agreement or any of your obligations pursuant hereto. 4.7. Compliance with Law. You agree that in Operating the Product and in using any report or information derived as a result of Operating this Product, you will comply with all applicable international, national, state, regional and local laws and regulations, including, without limitation, 8 �privacy, copyright, export control and obscenity law. 4.8. Additional Protection Measures. Solely for the purpose of preventing unlicensed use of the Product, the Software may install on your computer technological measures that are designed to prevent unlicensed use, and the Licensor may use this technology to confirm that you have a licensed copy of the Product. The update of these technological measures may occur through the installation of the Updates. The Updates will not install or may fail to Operate if installed on unlicensed copies of the Product. If you are not using a licensed copy of the Product, you are not allowed to install the Updates. The Licensor will not collect any personally identifiable information from your computer during this process. 5. NO WARRANTY AND DISCLAIMER. 5.1. NO IMPLIED OR OTHER WARRANTIES. EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT TO WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO YOU IN YOUR JURISDICTION, THE PRODUCT IS PROVIDED “AS-IS” WITHOUT ANY WARRANTY WHATSOEVER AND THE LICENSOR MAKES NO PROMISES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE, REGARDING OR RELATING TO THE PRODUCT OR CONTENT THEREIN OR TO ANY OTHER MATERIAL FURNISHED OR PROVIDED TO YOU PURSUANT TO THIS AGREEMENT OR OTHERWISE. YOU ASSUME ALL RISKS AND RESPONSIBILITIES FOR SELECTION OF THE PRODUCT TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE PRODUCT. THE LICENSOR MAKES NO WARRANTY THAT THE PRODUCT WILL BE ERROR FREE OR FREE FROM INTERRUPTION OR FAILURE, OR THAT IT IS COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, SATISFACTORY QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCT AND THE ACCOMPANYING WRITTEN MATERIALS OR THE USE THEREOF. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. YOU HEREBY ACKNOWLEDGE THAT THE PRODUCT MAY NOT BE OR BECOME AVAILABLE DUE TO ANY NUMBER OF FACTORS INCLUDING WITHOUT LIMITATION PERIODIC SYSTEM MAINTENANCE, SCHEDULED OR UNSCHEDULED, ACTS OF GOD, TECHNICAL FAILURE OF THE SOFTWARE, TELECOMMUNICATIONS INFRASTRUCTURE, OR DELAY OR DISRUPTION ATTRIBUTABLE TO VIRUSES, DENIAL OF SERVICE ATTACKS, INCREASED OR FLUCTUATING DEMAND, AND ACTIONS AND OMISSIONS OF THIRD PARTIES. THEREFORE, THE LICENSOR EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY REGARDING SYSTEM AND/OR SOFTWARE AVAILABILITY, ACCESSIBILITY, OR PERFORMANCE. THE LICENSOR DISCLAIMS ANY AND ALL LIABILITY FOR THE LOSS OF DATA DURING ANY COMMUNICATIONS AND ANY LIABILITY ARISING FROM OR RELATED TO ANY FAILURE BY THE LICENSOR TO TRANSMIT ACCURATE OR COMPLETE INFORMATION TO YOU. 5.2. LIMITED LIABILITY; NO LIABILITY FOR CONSEQUENTIAL DAMAGES. YOU ASSUME THE ENTIRE COST OF ANY DAMAGE RESULTING FROM YOUR USE OF THE PRODUCT AND THE INFORMATION CONTAINED IN OR COMPILED BY THE PRODUCT, 9 �AND THE INTERACTION (OR FAILURE TO INTERACT PROPERLY) WITH ANY OTHER HARDWARE OR SOFTWARE WHETHER PROVIDED BY THE LICENSOR OR A THIRD PARTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE LICENSOR OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF GOODWILL, WORK STOPPAGE, HARDWARE OR SOFTWARE DISRUPTION IMPAIRMENT OR FAILURE, REPAIR COSTS, TIME VALUE OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCT, OR THE INCOMPATIBILITY OF THE PRODUCT WITH ANY HARDWARE SOFTWARE OR USAGE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL LICENSOR’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES IN ANY ONE OR MORE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE EXCEED THE AMOUNT PAID BY YOU FOR THE PRODUCT. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT THAT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. 6. Notice to U.S. Users. 6.1. Notice to U.S. Government End Users. The Product and accompanying Documentation are deemed to be “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” respectively, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights, including any use, modification, reproduction, release, performance, display or disclosure of the Product and accompanying Documentation, as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States. 6.2. U.S. Export Restrictions for U.S. Users. If you are a U.S. person or entity or if you are otherwise subject to U.S. laws and regulations, you acknowledge and agree that the Product may be subject to restrictions and controls imposed by the Export Administration Act and the Export Administration Regulations of the United States (the “Acts”). You agree and certify that neither the Product nor any direct product thereof is being or will be used for any purpose prohibited by the Acts. You may not Operate, download, export, or re-export the Product (a) into, or to a national or resident of, any country to which the United States has embargoed goods, or (b) to anyone on the United States Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By Using the Product, you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country or on any such list. You acknowledge that it is your sole responsibility to comply with any and all government export and other applicable laws and that the Licensor has no further responsibility for such after the initial license to you. You warrant and represent that neither the U.S. Commerce Department, Bureau of Export Administration nor any other U.S. federal agency has suspended, revoked or denied your export privileges. 7. Your Information and the Licensor’s Privacy Policy. 10 �7.1. Privacy Policy. You hereby expressly consent to the Licensor’s processing of your personal data (which may be collected by the Licensor or its distributors) according to the Licensor’s current privacy policy as of the date of the effectiveness hereof which is incorporated into this Agreement by reference (see www.luxand.com/privacy). By entering into this Agreement, you agree that the Licensor may collect and retain information about you, including your name, email address and credit card information. The Licensor employs other companies and individuals to perform functions its behalf. Examples include fulfilling orders, delivering packages, sending postal mail and e-mail, removing repetitive information from customer lists, analyzing data, providing marketing assistance, processing credit card payments, and providing customer service. They have access to personal information needed to perform their functions, but may not use it for other purposes. The Licensor publishes a privacy policy on its web site and may amend such policy from time to time in its sole discretion. You should refer to the Licensor’s privacy policy prior to agreeing to this Agreement for a more detailed explanation of how your information will be stored and used by the Licensor. If “you” are an organization, you will ensure that each member of your organization (including employees and contractors) about whom personal data may be provided to the Licensor has given his or her express consent to the Licensor’s processing of such personal data. Personal data will be processed by the Licensor or its distributors in the country where it was collected, and possibly in the United States, European Union and Russian Federation. The laws of such jurisdictions regarding processing of personal data may be less or more stringent than the laws in your jurisdiction. 8. Proprietary Notices; Trademarks. 8.1. Licensor Marks. Any and all Licensor Marks are and shall remain the exclusive property of Licensor, and/or of its Affiliates, as the case may be, and Licensor grants Licensee a limited license to reproduce the Licensor Marks only to the extent expressly provided herein. Licensee will use the Licensor Marks consistently with guidelines for use as may be communicated by Licensor from time to time. Licensee acknowledges that its utilization of the Licensor Marks pursuant hereto shall not create in it, nor shall it represent it has, any right, title or interest in or to the Licensor Marks other than the license expressly granted herein, or contest or impair Licensor’s Intellectual Property Rights. Licensee shall: a). not, either during or after the Term of this Agreement, do anything or aid or assist any other Person to do anything which would infringe upon, harm or contest the validity of any Licensor Mark or Licensor’s or any of its Affiliates’ rights therein or which would hinder or prevent Licensor or any of its Affiliates from utilizing and/or licensing or sublicensing the Licensor Marks in any manner; b). not in any manner authorize or purport to authorize any Person to use any of the Licensor Marks; and c). report to Licensor any unauthorized use of any of the Licensor Marks by any Person that comes to Licensee’s attention in any manner whatsoever. 8.2. Mark Policies and Standards; Quality Control. Licensee acknowledges that any right to use the Licensor Marks is conditioned upon Licensee’s observance of the provisions of this Agreement regarding the marketing and advertising of the Product. Licensee shall display the Licensor Marks in accordance with Licensor’s guidelines for using trademarks as in effect from time to time and as provided to Licensee. Notwithstanding the foregoing, any change by Licensor or any of its Affiliates to the Licensor Marks guidelines which affects Licensee’s usage shall not apply retroactively to Licensee’s past usage which conformed with the then current guidelines and Licensor shall permit Licensee a reasonable period of time in which to conform with the new guidelines. Licensor retains the right to specify and approve the quality and standards of 11 �all materials on which the Licensor Marks are displayed and to inspect from time to time samples of such materials. If requested by Licensor, additional agreements and conditions regarding manufacture and quality control will be set forth in a separate Addendum to this Agreement. Failure of Licensee to adhere to such standards of quality as provided herein shall be grounds for Licensor to terminate Licensee’s rights to use such Licensor Marks and to terminate this Agreement. All advertising and other promotional, packaging and similar materials used by Licensee concerning Derivatives shall bear such trademark notices and legends as Licensor may reasonably require pursuant to this Section 8.2. Licensee shall not use, alter or exploit in any manner any of the Licensor Marks, except in such manner and media as Licensor may consent to in writing. 8.3. Licensee Marks. Any and all Licensee Marks are and shall remain the exclusive property of the Licensee, and/or of its Affiliates, as the case may be, and the Licensee grants Licensor a limited license to reproduce the Licensee Marks only to the extent expressly provided herein. Licensor will use the Licensee Marks consistently with guidelines for use as may be communicated by Licensee from time to time. Licensor acknowledges that its utilization of the Licensee Marks pursuant hereto shall not create in it, nor shall it represent it has, any right, title or interest in or to the Licensee Marks other than the license expressly granted herein, or contest or impair Licensee’s Intellectual Property Rights. 9. Miscellaneous. 9.1. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Virginia without reference to conflicts of law rules and principles. To the extent permitted by law, the provisions of this Agreement shall supersede any provisions of the Uniform Commercial Code as adopted or made applicable to the Products in any competent jurisdiction. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly disclaimed and excluded. The federal and state courts within the Commonwealth of Virginia shall have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement. You agree that this Agreement is to be performed in the Commonwealth of Virginia and that any action, dispute, controversy, or claim that may be instituted based on this Agreement, or arising out of or related to this Agreement or any alleged breach thereof, shall be prosecuted exclusively in the federal or state courts in of the Commonwealth of Virginia and you, to the extent permitted by applicable law, hereby waive the right to change venue to any other state, county, district or jurisdiction; provided, however, that the Licensor as claimant shall be entitled to initiate proceedings in any court of competent jurisdiction. 9.2. Period for Bringing Actions. No action, regardless of form, arising out of the transactions under this Agreement, may be brought by either party hereto more than one (1) year after the cause of action has occurred, or was discovered to have occurred, except that an action for infringement of intellectual property rights may be brought within the maximum applicable statutory period. 9.3. Entire Agreement; Severability; No Waiver. This Agreement is the entire agreement between you and Licensor and supersedes any other prior agreements, proposals, communications or advertising, oral or written, with respect to the Product or to subject matter of this Agreement. You acknowledge that you have read this Agreement, understand it and agree to be bound by its terms. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, void, or unenforceable for any reason, in whole or in part, such provision will be more narrowly construed so that it becomes legal and enforceable, and the entire Agreement will not fail on account thereof and the balance of the Agreement will continue in full force and effect to the maximum extent permitted by law or equity while preserving, to the fullest extent possible, its 12 �original intent. No waiver of any provision or condition herein shall be valid unless in writing and signed by you and an authorized representative of Licensor provided that no waiver of any breach of any provisions of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach. Licensor’s failure to insist upon or enforce strict performance of any provision of this Agreement or any right shall not be construed as a waiver of any such provision or right. 9.4. Publicity. The Parties shall work together to issue publicity and general marketing communications concerning their relationship and other mutually agreed-upon matters. In addition, Licensor shall have a right, but not an obligation, at its own discretion, to issue such publicity and general marketing communications concerning the relationship of the Parties, and Licensor may list Licensee as its customer on its site and similar marketing communications. 9.5. Contact Information. Should you have any questions concerning this Agreement, or if you desire to contact the Licensor for any reason, please contact our Customer Department at: [email protected] Copyright © 2005-2016 Luxand, Inc. and its licensors. All rights reserved. The Product, including the Software and any accompanying Documentation, are copyrighted and protected by copyright and trademark laws and international copyright and trademark treaties, as well as other intellectual property laws and international agreements. 13 �ATTACHMENT A Product name 1. FaceSDK** Product Type/ Product Version Installation Fee Royalty* $X per installation of the $X per Result Result; *The Parties agree that (i) the Royalty as determined pursuant hereto (i.e. percentage, fixed amounts) and/or total aggregate Royalty may be adjusted, as mutually agreed by the Parties. **Licensor, by employee the services of a reputable a certified public accountant may, at Licensor’s sole expense (except as provided herein), upon 10 days advance written notice to Licensee during Licensee’s business hours examine and/or audit the books and records of Licensee which relate to payments due and Products’ licenses installed hereunder within the last twelve month period. Licensor’s certified public accountant shall not have access to any of Licensee's records beyond those necessary to complete any audit contemplated under this Agreement. If any examination or audit should reveal that the fee due to Licensor under this Agreement for any period was understated in any sales report, then Licensee shall pay to Licensor immediately upon demand the amount understated. If any examination or audit discloses an understatement in any report by Licensee of five percent (5%) or more (provided that any revisions and corrections in the subsequent reports will be taken into the account), Licensee shall also reimburse Licensor for any and all costs and expenses connected with the examination or audit (including without limitation, reasonable accountants’ and attorney’s fees). In the event that any examination or audit discloses or audit discloses an understatement in any sales report of ten percent (10%) or more, Licensee shall also pay to Licensor as an underpayment penalty an amount equal to the amount of the underpayment. In the event any of the understatement of ten percent (10%) or more is determined to be intentional, Licensor may at its option terminate this Agreement immediately upon written notice to Licensee. The foregoing remedies shall be in addition to any other remedies Licensor may have hereunder. No provision of this paragraph shall be construed as limiting or restricting any Licensor’s rights or remedies provided elsewhere in this Agreement or by law. 14 �
nw/96.txt
Terms and Conditions for Use of MasterCard Optimization Solutions Website PLEASE READ THIS END USER LICENSE AGREEMENT (“EULA”) BEFORE AGREEING TO ACCEPT THESE TERMS AND CONDITIONS AND USING THE MASTERCARD OPTIMIZATION SOLUTIONS WEBSITE (THE “WEBSITE”). BY SELECTING THE “I AGREE” BUTTON BELOW, YOU HEREBY AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA AND YOU WARRANT THAT YOU ARE AUTHORIZED BY AND LAWFULLY ABLE TO BIND THE COMPANY OR LEGAL ENTITY FOR WHICH YOU WORK TO THE TERMS AND CONDITIONS OF THIS EULA. YOU SHOULD PRINT AND RETAIN A COPY OF THIS AGREEMENT FOR YOUR RECORDS BY USING THE PRINT FUNCTIONALITY IN YOUR BROWSER. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS EULA, DO NOT ACCEPT THEM, DO NOT CONTINUE WITH YOUR USE OF THE WEBSITE AND SELECT THE “I DISAGREE” BUTTON BELOW. MasterCard International Incorporated (“MasterCard”) provides the marketing and promotional materials (“Website Materials”) on the Website to your customer financial institution, credit union or organization (“You”) subject to compliance with the terms and conditions of this EULA. Authorized Use of the Website Materials. Provided that You comply with this EULA, MasterCard grants You a revocable, non-transferable, non-exclusive, non-assignable limited license to use the Website Materials, solely for the your business purposes and as restricted by the Website details (“Permitted Use”). You may not redistribute the Website Materials other than for a Permitted Use without the express written consent of MasterCard. MasterCard, or its licensors, shall own all right, title and interest to the Website Materials and any changes, copies, or derivative works thereto. Authorized Use of Promotional Materials The Website provides certain promotion materials (“Promotional Materials”) that you may use for your MasterCard-branded Promotion purposes. By ordering specific Promotional Materials, You acknowledge and agree to adhere to the terms and conditions of each promotion, including, without limitation, any special limitations or criteria associated with such promotion. Furthermore, You acknowledge that You are not authorized to make any revisions, amendments or modifications to the Promotion Materials unless expressly authorized by MasterCard and then only subject to MasterCard’s written approval prior to distribution. You may not redistribute the Promotion Materials except in accordance with MasterCard’s instructions set forth for each Promotion and if required, in accordance with MasterCard’s prior written approval. The Promotional Materials that are ordered pursuant to this EULA including, without limitation, the Merchant’s logo, image, trademarks or service marks (collectively the ”Merchant Marks”), MasterCard’s logo, image, trademarks or services mark (collectively the “MasterCard Marks”) and any other third party content are the property of the respective owner. All use of third party content by You shall inure to the benefit of the respective owners and You obtain no rights to such third party content provided to it hereunder other than the right to use such Promotional Materials in media approved by MasterCard (the “Permitted Media”) and solely in connection with the Permitted Use. Any use of the Promotional Materials that is inconsistent with the foregoing shall be unauthorized and is strictly prohibited. 195997.1 �Reformatting Promotion Materials Subject to prior written approval of MasterCard, as applicable, You may reformat the Promotional Materials to include your name, trade names, trademarks, service marks, logotypes, slogan, tag lines, and other proprietary information relating to the promotion provided that doing so does not alter in any way or distort the images or associated text (verbatim and without change) contained in the Promotional Materials or result in the removal, or obscuring of, the proprietary legends indicating Merchant's ownership of the Merchant Marks or MasterCard ownership of the MasterCard Marks and the Promotional Materials. You may not publish or distribute the Promotional Materials in any manner or in any publication that in any way is misleading, offends the public morality, or otherwise disparages Merchant or MasterCard or any third party contained in the Promotional Materials, including their respective affiliates or brands. User Obligations. Access. MasterCard shall make the Website available over the Internet. You shall provide at your own expense, all necessary telephone lines, Internet connections, equipment, software (including a compatible Web browser), and services for You to effectively access the Website. You are responsible for upgrading and configuring your internal systems (e.g., network or Intranet settings, Internet routing, fire walls, and Web browsers) to be and remain compatible with and optimize the performance of the Website. You acknowledge that the availability and performance of the Website may be subject to interruption or delay due to causes beyond the reasonable control of MasterCard. User Codes. Access to the Website is controlled by a user name and password (collectively referred to as “User Codes”). The User Codes are for Your personal use only, and You agree not to disclose them to any third party. You are responsible for maintaining the confidentiality of the User Codes and for establishing sufficient policies and controls and taking such actions to protect against disclosure of your User Codes. You are responsible for all acts or omissions that relate to your user account while access to the Website is obtained using your User Codes, regardless of whether You authorized such use. You are responsible for any damages, losses, costs, or breaches of security incurred or caused by your failure to maintain the confidentiality of your User Codes. You agree to IMMEDIATELY notify MasterCard if You become aware or suspect that your User Codes have been lost, stolen, or compromised in any way, or if you become aware of possible or actual unauthorized use of the Website. Restrictions. You may not: (i) damage, disrupt or impede the operations of this Website; (ii) request access to this Website by impersonating another or using a false persona, circumvent or attempt to modify any security credentials; (iii) use an automated means to copy the Promotional Materials except for authorized purposes: or (iv) transmit any viruses, worms, defects, Trojan horses or any programming destructive in nature to this Website. Your Data You agree to the terms of the Global Privacy Notice posted at optimization.mastercard.com as may be amended from time to time. Confidentiality and Nondisclosure Terms 195997.1 �You acknowledge that the Website materials contain proprietary and confidential information of MasterCard. You agree to: (i) to hold the Website Materials in confidence; (ii) not to, directly or indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer to any third-party the Website Materials except in accordance with the provisions of this EULA or other terms set forth on this Website; and (iii) not to make use of the Website Materials other than for the permitted purposes under this EULA. The nondisclosure and confidentiality obligations set forth in this Section shall survive termination of this EULA for any reason and shall remain in effect for a period of five (5) years after termination hereof. Termination You have no rights to terminate this EULA. MasterCard may change the terms of this EULA or terminate this EULA at any time. In the event MasterCard changes the terms of this EULA, a new EULA will be provided for your acceptance or rejection. In the event that MasterCard terminates this EULA, You shall cease, using the Website immediately. Your Warranties You represent and warrant that: (i) the registration that you provide to MasterCard for this Website is true and correct; (ii) your Marks shall not violate or infringe the intellectual property rights of another; and (iii) you shall comply with the MasterCard Rules and Brand Standards in all Promotional Materials. Warranty Disclaimer/Limitation of Liability YOUR USE OF THE WEBSITE IS AT ITS OWN RISK. THE WEBSITE AND THE WEBSITE MATERIALS ARE PROVIDED “AS IS” AND “AS AVAILABLE”. MASTERCARD MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE WEBSITE, ITS MERCHANTABILITY, COURSE OF DEALING OR TRADE OR ITS FITNESS FOR ANY PARTICULAR PURPOSE. MASTERCARD DOES NOT WARRANT THE RELIABILITY, ACCURACY OR COMPLETENESS OF THE INFORMATION CONTAINED ON THE WEBSITE. MASTERCARD DOES NOT WARRANT THAT ALL ERRORS CAN BE OR WILL BE CORRECTED OR THAT THE WEBSITE WILL OPERATE WITHOUT ERROR. IN NO EVENT SHALL MASTERCARD BE LIABLE FOR INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF INCOME, USE, OR INFORMATION UNDER THIS EULA. IN NO EVENT SHALL MASTERCARD HAVE ANY LIABILITY FOR DIRECT DAMAGES ARISING OUT OF THIS EULA IN EXCESS OF $100 (U.S.). Remedies. You acknowledge that in the event of a breach of this EULA by You that MasterCard will likely suffer irreparable damage that cannot be fully remedied by monetary damages. Therefore, You agree that MasterCard shall be entitled to seek and obtain injunctive relief against any such breach in any court of competent jurisdiction. The rights of MasterCard under this section shall not in any way be construed to limit or restrict the right to seek or obtain other damages or relief available under this EULA or applicable law. 195997.1 �Compliance with Applicable Laws You shall comply with all federal, state and local ordinances, regulations, statutes, and laws (“Laws”) applicable to use of the Website materials and any promotion conducted by You using such Website Materials, including without limitation the Promotional Materials. The obligations of the You under this Section include without limitation the obligation to comply with Laws and marketing best practices applicable to the privacy of data, email, mobile marketing, telemarketing, sweepstakes, advertising and marketing communications and promotions, and advertisements. Indemnification by You. You agree to defend, indemnify and hold MasterCard and its respective affiliates, merchants, and partners and their respective directors, officers, employees, agents, successors and assigns harmless from any and all demand, liability, loss, claim and/or expense, including reasonable attorneys’ fees and expenses, related to Your alleged violation or violation of this EULA or arising our of your use of the Website Materials, including without limitation, the Promotional Materials. General. (a) You may not assign or transfer its rights or obligations granted under this EULA to any other person. (b) This EULA, including any exhibits thereto, constitutes the entire agreement between You and MasterCard respecting the subject matter herein and supersedes any prior written or oral agreement relating to this matter. (c) This EULA may not be modified except by written agreement dated after the date of this EULA and signed by an authorized representative of each of the Parties. (d) MasterCard shall not be bound by any provision of any other party’s purchase order receipt, acceptance, confirmation, correspondence, or otherwise. (e) If a provision of this EULA is determined to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be severed and other provisions shall remain in full force and effect, provided that original intent of the EULA shall remain intact. (f) This EULA shall be governed by the substantive laws of the State of New York without resort to its choice-of-law provisions and the state and federal courts located in New York shall have exclusive jurisdiction over all disputes relating to this EULA. (g) THE PARTIES WAIVE THE RIGHT TO A JURY TRIAL. (h) All legal notices, consents, demands, requests or other communications hereunder (“Notice”) shall be in writing and be deeded to be duly give or delivered if: (i) delivered personally; (ii) delivered by facsimile if a confirmation copy is immediately mailed by the sender postage prepaid certified mail, return receipt requested; or (iii) delivered by recognized courier contracting the dame day or next day delivery to the addresses set forth on page 1, Attn: General Counsel. (i) To the extent that MasterCard’s performance hereunder is prevented or delayed, directly or indirectly, by fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil disorder, labor difficulties, internet outages, third party providers inability to provide services, or any other cause beyond the reasonable control of MasterCard, MasterCard may be excused from further performing under this EULA. (j) All clauses which by their nature should survive the termination of this EULA will survive such termination, including without limitation, terms confidentiality, intellectual property, warranties, indemnification and limitation of liability. [I Agree to the terms set forth above] [I Disagree] 195997.1 �
nw/97.txt
END USER LICENSE AGREEMENT IMPORTANT – THIS IS A LEGAL DOCUMENT BETWEEN YOU (WHICH SHALL BE IDENTIFIED HEREIN AS "You" OR THE "User" (WITH "User" FURTHER DESCRIBED BELOW)) AND THE AMERICAN SOCIETY OF BREAST SURGEONS ("ASBS"), WITH IT BEING GENERALLY UNDERSTOOD (AS APPLICABLE) THAT YOU ARE OTHERWISE AGREEING TO THIS END USER LICENSE AGREEMENT ON BEHALF OF THE ENTITY (OR INSTITUTION OR FACILITY) THAT WILL BE NAMED ON THE MEMBER ACCOUNT WITH ASBS. BEFORE ACCESSING OR USING THE MASTERY OF BREAST SURGERY PROGRAM YOU SHOULD READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS CONTAINED IN THIS END USER LICENSE AGREEMENT (THE “Agreement”) AS THEY GOVERN THE USE OF THE MASTERY OF BREAST SURGERY PROGRAM AND ALL ASSOCIATED SOFTWARE, DATABASES, MATERIALS, AND INFORMATION (TOGETHER, THE “Software” FOR THE PURPOSES OF THIS AGREEMENT). ASBS IS WILLING TO ALLOW ACCESS TO AND USE OF THE SOFTWARE ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. TERMS AND CONDITIONS 1. THE SOFTWARE. The Software makes available the Mastery of Breast Surgery program as a web-based application for documentation of clinical performance and adherence to quality measures in breast surgery. The Software is hosted from ASBS' HIPAA secure server. More specific details regarding the Software can be found at http://www.breastsurgeons.org/mastery/background.php (which ASBS may update from time to time). 2. LICENSE GRANT. The Software is provided by ASBS as a resource for you and to assist only with furthering ASBS' mission of [improving clinical performance and adherence to quality measures for breast surgery, enhancing the ability to document quality outcomes in patient care, and enabling individual surgeons to know and be able to report their performance. Conditioned on your compliance with the terms and conditions of this Agreement, including, without limitation, the obligation to pay all applicable fees and charges (if any), this Agreement provides you with a limited, nonexclusive, non-transferable, and sublicenseable (but only on a limited basis as set forth below) license to use the Software solely for your internal business purposes in connection with activities in furtherance of improving clinical performance and adherence to quality measures for breast surgery and only in connection with related clinical, medical, or performance information, records, or materials (with all such information, records, or materials identified collectively herein as the "Records"). In connection with the foregoing license and as the only right to sublicense, you may also enable an individual employee(s) of yours who has a need to have access to and use of the Software in accordance with your internal business purposes ("Authorized User(s)") to access and use the Software so long as all such use remains in compliance with this Agreement. Accordingly, in connection with this license, references to "you" or "User" throughout this Agreement mean you, any Authorized User(s), and the corporate, institution, or entity-level member of ASBS (per any other agreement with ASBS) that you sign on behalf of such entity or under which you access any Software. 3. RESTRICTIONS. The foregoing license is limited. You therefore may not (i) use, copy, store, transmit, distribute, display, rent, lease, sell, modify, license, sublicense, or commercially exploit the Software (or any part thereof) in any manner not expressly permitted by this Agreement, including, without limitation, for further re-sale or distribution, (ii) reverse engineer, decompile, disassemble, translate, or create any derivative work of the Software (or any part thereof); (iii) access, link to, or use any source code from the Software (or any part thereof); (iv) erase or remove any proprietary or intellectual property notice contained in or on the Software (or any part thereof); or (v) use or permit use of the Software (or any part thereof) for or by any person or entity (including affiliates and subsidiaries) other than Authorized Users. In addition, you may not, and you shall not permit any other person or entity to, (i) use any "deep link," "page scrape," "robot," "spider," or other automatic device, program, script, algorithm, or methodology, or any similar or equivalent manual process, to access, acquire, copy, or monitor any portion of the Software or in any way reproduce or circumvent the navigational structure or presentation of the Software to obtain or attempt to obtain any materials, Records, or information through any means not purposely made available through the Software, (ii) attempt to gain unauthorized access to any portion or feature of the Software, including, without limitation, the account(s) or Record(s) of another User(s) or any other system(s) or network(s) connected to the Software or to any ASBS server, by hacking, password "mining," or any other illegitimate or prohibited means, (iii) probe, scan, or test the vulnerability of the Software or any network connected to the Software, (iv) breach or attempt to breach the security or authentication measures on the Software or any network connected to the Software, (v) reverse look-up, trace, or seek to trace any information on any other User of the Software, (vi) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Software or ASBS' systems or networks, (vii) use any device, software, or routine to interfere with the proper working of the Software or with any other User(s)'s use of the Software, (viii) forge headers, impersonate a person, or otherwise manipulate identifiers in order to disguise your identity or the origin of any message or transmittal you send to ASBS on or through the Software, and/or (ix) use the Software in a manner that could damage, �disparage, or otherwise negatively impact ASBS, its business, or its goodwill. Moreover, you shall not enter into any contractual relationship or other legally binding obligation with any third party or person which shall have the purpose or effect of encumbering ASBS or the use of the Software (or any part thereof). You acknowledge and agree that exceeding the scope of the license herein shall be a material breach of this Agreement and subject to the termination provisions set forth herein. 4. USER OBLIGATIONS. Subject to ASBS' right to monitor and audit compliance, you acknowledge and agree that you shall be responsible for monitoring your and your Authorized User(s)'s use of the Software and for maintaining compliance with the terms and conditions of this Agreement. Accordingly, any breach of this Agreement by an Authorized User shall constitute a breach by you. Moreover, at all times, you agree to assume all responsibility for your use, and the results of your use, of the Software, including meeting any legal or certification standard or any requirements of your contracts with third parties or other persons. ASBS assumes no liability for any claims that may result directly or indirectly from the communications or interactions you establish with other persons or entities using the Software. You also agree to be responsible for and to abide by all applicable laws and regulations with respect to your use of the Software and any activities you conduct using your Records, including, without limitation, any that relate to privacy or information security. You also represent that you will, at all times, provide true, accurate, current, and complete information when submitting Records to the Software. Although ASBS uses commercially reasonable efforts to maintain and secure the Software, you agree that it shall be solely your responsibility for maintaining and securing all of the Records which you use on or in connection with the Software. Finally, you shall be solely responsible for providing the software, hardware, communication links, and connections necessary to access the Software and for training yourself and any Authorized Users (as such term is defined below) with respect to use of the Software. To the extent you request from ASBS additional support, training, implementation, or other programming work relating to the Software beyond ASBS' stated obligations in this Agreement or beyond the training information provided by ASBS through the ASBS Web site, which includes background information on the Software at http://www.breastsurgeons.org/mastery/background.php, or through ABSS' self-help videos provided within the Software, ASBS may provide such support, training, implementation, or programming work, in its sole discretion, at its standard time and materials rates or such other pricing as agreed to in writing and subject to the terms of this Agreement and any other written agreement required by ASBS 5. DELIVERY OF RECORDS. You acknowledge and agree that ASBS shall not be obligated to incorporate into or process through the Software any Records whose technical requirements do not fit within any specified technical parameters or which cannot be integrated or utilized with commercially reasonable efforts. In connection with delivering and providing to ASBS any Records or other information, you hereby grant to ASBS a non-exclusive, worldwide, royalty-free, right and license to copy, distribute, create derivative works from, display, modify, reformat, transmit, and otherwise use any such Records or information as necessary in connection with ASBS' operation and maintenance of the Software in any form, media, or technology now known or later developed for as long as this Agreement remains in effect. With respect to any such Records or information, you represent that you have all rights and permission necessary to submit, display, or make available any content in your Records and have obtained at your sole expense all necessary consents, rights, permissions, and clearances (and can provide ASBS with reasonable proof thereof (if requested)) required for ASBS to use such Records or information in connection with operation or maintenance of the Software. 6. ACCOUNT MAINTENANCE. ASBS shall assign to you an account for use of the Software and for the processing of and access to your Records. Registration with and access to the Software and your on-line account will require both a user name and a password, which user name and password can be modified by you). Only one User can use one user name and password and, thus, one account. Doing so insures that each User will only be able to access its own account through the Software. Anyone with knowledge of both a User's user name and password can gain access to the restricted portions of the Software and to the User's account. Accordingly, you agree to keep confidential the user name and password for your on-line account and will ensure that only you and your Authorized Users can access your account. You also agree not to use another User's account, user name, and/or password. In addition, you agree to remain solely responsible for all activities that occur under or through your account. You will immediately notify ASBS if you become aware of any loss or theft of your password or any unauthorized use of your user name and password. ASBS will not be liable for any loss or damage arising from your failure to comply with these obligations, including, without limitation, if another party or person accesses your account due to such failure. In connection with the foregoing, ASBS reserves the right to delete or change a user name or password at any time and for any reason. ASBS will provide notice of any such deletion or change. 7. PROPRIETARY RIGHTS. This Agreement provides only a limited license to access and use the Software. Accordingly, you expressly acknowledge and agree that ASBS does not grant any implied right to you or any other person and transfers no ownership or intellectual property interest or title in and to the Software (or any part thereof) to you or anyone else. All text, graphics, user interfaces, visual interfaces, photographs, sounds, artwork, computer or programming code (including html or PHP code), programs, software, databases, products, information, and documentation as well as the design, structure, selection, coordination, expression, "look and feel," and arrangement of the Software, unless otherwise indicated, are owned, controlled, and licensed by ASBS or its licensors and are protected by law including, but not limited to, United States copyright, trade secret, patent, and trademark law, as well as other �state, national, and international laws and regulations. Accordingly, your unauthorized use of the Software may violate intellectual property or other proprietary rights laws as well as other laws, regulations, and statutes. The Software is Copyright © 2009-10 ASBS or its licensors. AMERICAN SOCIETY OF BREAST SURGEONS, the ASBS logo, and all other names, logos, and icons identifying ASBS and its programs, products, and services are proprietary trademarks of ASBS, and any use of such marks, including, without limitation, as domain names, without the express written permission of ASBS is strictly prohibited. 8. CONFIDENTIALITY. You acknowledge and agree that in connection with this Agreement or your use of the Software you may receive or gain access to the confidential, proprietary, or sensitive information of ASBS or its licensors (the "Confidential Information"). Moreover, you acknowledge and agree that (i) the Software includes unpublished, licensed works, and trade secrets; (ii) independent economic advantages are derived by ASBS from its ownership of the Software; and (iii) the Software's software, databases, and programming code are also Confidential Information. Accordingly, with respect to the Confidential Information of ASBS, you agree to secure and protect the confidentiality of the Confidential Information of ASBS (and/or its licensors) in a manner consistent with the maintenance of ASBS' rights therein, using at least as great a degree of care as you use to maintain the confidentiality of your own confidential information of a similar nature, but in no event using less than reasonable efforts. You also acknowledge and agree that any disclosure or unauthorized use of such Confidential Information would be detrimental to ASBS and its business and goodwill. You therefore shall not, nor permit any third party to, sell, transfer, publish, disclose, or otherwise make available any portion of the Confidential Information to third parties. In particular, you acknowledge and agree that you are prohibited from disclosing or making accessible any Confidential Information of ASBS to any person or entity that is not an Authorized User. All Confidential Information of ASBS shall remain the exclusive property of ASBS. These restrictions do not apply to Confidential Information which you (i) are required by law or regulation to disclose, but only to the extent and for the purposes of such law or regulation; (ii) disclose in response to a valid order of a court or other governmental body, but only to the extent of and for the purposes of such order, and only if you first notify ASBS of the order and permit ASBS to seek an appropriate protective order or move to quash or limit such order; or (iii) disclose with written permission of ASBS, in compliance with any terms or conditions set by ASBS regarding such disclosure. Upon termination or expiration of this Agreement, you shall return to ASBS or destroy, at the request of ASBS, all Confidential Information of ASBS and certify in writing to ASBS, within ten (10) days following termination or expiration, that all such Confidential Information has been returned or destroyed. 9. FEEDBACK. ASBS welcomes your feedback and suggestions with respect to improving the Software. But, by transmitting any feedback or suggestions and any related information, material, or other content (collectively, “feedback”) to ASBS, you represent and warrant that such feedback does not infringe or violate the intellectual property or proprietary rights of any third party (including, without limitation, patents, copyrights, or trademark rights) and that you have all rights necessary to convey such feedback to ASBS. In addition, any feedback received by ASBS will be deemed to include from you a royalty-free, perpetual, irrevocable, transferable, non-exclusive right and license for ASBS to adopt, publish, reproduce, disseminate, transmit, distribute, copy, use, create derivative works, and display (in whole or in part) worldwide, or act on such feedback without additional approval or consideration, in any form, media, or technology now known or later developed for the full term of any rights that may exist in such information, material, or content, and you hereby waive any claim to the contrary. 10. REPRESENTATIONS AND WARRANTIES. You represent and warrant to ASBS that (i) you are at least eighteen (18) years of age or the legal age of majority, (ii) you are authorized to enter into this Agreement on behalf of yourself, your Authorized User(s), and the Member named on the account with ASBS (in the event you access the Software and/or agree to this Agreement on behalf of such entity), (ii) you are authorized and able to fulfill and perform the obligations and meet the conditions of a User as specified herein, (iii) any information or data provided to ASBS by you or your Authorized User(s) will not violate any law or regulation or any third party or person's right; and (iv) you and/or your Authorized User(s) has all required permits, licenses, and other governmental authorizations and approvals to use the Software in accordance with this Agreement. 11. WARRANTY DISCLAIMER. THE SOFTWARE IS PROVIDED “AS IS” AND "AS AVAILABLE," AND ASBS HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. ASBS DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE SOFTWARE IN TERMS OF AVAILABILITY, ACCURACY, RELIABILITY, CURRENTNESS, COMPLETENESS, FUNCTIONALITY, INTENDED PURPOSE, OR OTHERWISE. ASBS ALSO DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE WILL ENABLE YOU TO MEET OR ACHIEVE ANY CERTIFICATION OR LEGAL STANDARD OR THAT THE SOFTWARE WILL OPERATE ERROR-FREE, UNINTERRUPTED, OR IN A MANNER THAT WILL MEET YOUR REQUIREMENTS. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE AND ANY RELATED RESULTS IS WITH YOU. 12. LIMITATION OF LIABILITY. You also acknowledge and agree that use of the Internet and access to and use of the Software is done on a voluntary basis solely at your own risk. ASBS shall not be liable or responsible for any claim, �damage, or loss resulting from a cause beyond ASBS' control, including, but not limited to, failure of electronic or mechanical equipment or communication lines, telephone or other connection problems, computer viruses, unauthorized access, theft, operator errors, severe weather, earthquakes, or natural disasters, strikes, or other labor problems, wars, or governmental restrictions. MOREOVER, YOU AGREE THAT IN NO EVENT SHALL ASBS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, FOR LOST PROFITS, FOR LOST DATA, ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF THE SOFTWARE, OR FOR ANY INFORMATION OR MATERIALS AVAILABLE THROUGH THE SOFTWARE, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF ASBS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. IN ADDITION, ASBS SHALL ASSUME NO RESPONSIBILITY OR LIABILITY FOR THE STORAGE OF ANY RECORDS OR FOR THE DELIVERY, SECURITY, OR AVAILABILITY OF ANY RECORDS. WITHOUT LIMITATION OF THE FOREGOING, TOTAL LIABILITY OF ASBS FOR ANY REASON WHATSOEVER RELATED TO USE OF THE SOFTWARE, RESULTS FROM USE OF THE SOFTWARE, OR FOR ANY CLAIMS RELATING TO THIS AGREEMENT SHALL NOT EXCEED FIVE THOUSAND DOLLARS $5,000.00 (USD). 13. INDEMNIFICATION. You shall indemnify, hold harmless, and defend ASBS and its officers, directors, members, counselors, agents, and employees against all claims, liabilities, costs, damages, judgments, suits, actions, or proceedings (including any instituted by a government or government agency), losses and expenses, including reasonable attorneys' fees and costs of suit or proceeding, arising out of or resulting from (a) any breach by you and/or your Authorized User(s) of this Agreement or any failure by you and/or your Authorized User(s) to fulfill any obligation or condition specified in this Agreement or (b) any breach or violation by you of any laws or regulations (local, state, federal, or international) related to your performance or fulfillment of your obligations under this Agreement. 14. GOVERNING LAW. This Agreement has been made in and will be construed and enforced solely in accordance with the laws of the State of Maryland, U.S.A., as applied to agreements entered into and completely performed in the State of Maryland. The state or local courts in the State of Maryland will have exclusive jurisdiction and venue over all controversies in connection with this Agreement, and you hereby consent to such exclusive and personal jurisdiction and venue. You also acknowledge and agree that any applicable state law implementation of the Uniform Computer Information Transactions Act (including any available remedies or laws) shall not apply to this Agreement and is hereby disclaimed. A printed version of this Agreement and of any related notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent as other Records and records originally generated and maintained in printed form. Please contact ASBS if you wish to receive a printed copy of this Agreement. 15. ENFORCEMENT. ASBS wishes to maintain the Software as a helpful resource for all of its Users. As it relates to ASBS' operation, maintenance, monitoring, or support for the Software, you therefore have no reasonable expectation of privacy while using the Software because ASBS reserves the right to view, monitor, and/or record activity on the Software to ensure compliance with this Agreement and to comply with government or court appointed authorities when necessary. ASBS also reserves the right, at any time and without notice, to protect its rights in the Software by incorporating security and management technology into the Software. Any information obtained by monitoring, reviewing, or recording is subject to disclosure under court order or to review by law enforcement organizations in connection with investigation or prosecution of possible criminal activity on the Software. Moreover, and in accordance with termination provision under this Agreement, ASBS reserves the right to suspend or terminate immediately your access to the Software if you fail to comply with the terms and conditions of this Agreement. In such event, ASBS shall be relieved of its obligations under this Agreement or any other applicable agreement with ASBS during the period of suspension and shall not be found to be in breach of this Agreement or any other applicable agreement with ASBS for such relief. You also acknowledge that any breach, threatened or actual, of this Agreement will cause irreparable injury to ASBS and/or its licensors or suppliers, such injury would not be quantifiable in monetary damages, and ASBS and/or its licensors would not have an adequate remedy at law. You therefore agree that ASBS and/or its licensors (or on their behalf) shall be entitled, in addition to other available remedies, to seek and be awarded an injunction or other appropriate equitable relief from a court of competent jurisdiction restraining any breach, threatened or actual, of your obligations under any provision of this Agreement. Accordingly, you hereby waive any requirement that ASBS or its licensors post any bond or other security in the event any injunctive or equitable relief is sought by or awarded to ASBS to enforce any provision of this Agreement. 16. TERM AND TERMINATION. This Agreement and your right to use the Software will take effect at the moment you click "I ACCEPT" or you register with or use the Software and is in effect so long as you pay all applicable fees (if any) and charges in a timely manner or until terminated earlier as set forth below. This Agreement will terminate automatically if you click "I REJECT" of if you declare and provide notice to ASBS that you are no longer using the Software. ASBS also reserves the right at any time and on reasonable grounds, which shall include, without limitation, any reasonable belief of fraud, illegal activity, or actions or omissions that violate any term or condition of this Agreement, to terminate this Agreement with you in order to protect its name, business, or goodwill and/or any other User. You therefore acknowledge and agree that ASBS shall have the sole right to determine in its reasonable discretion whether you and/or your Authorized User(s) is engaging in any unauthorized activity and/or violating any term or �conditions of this Agreement. Termination of this Agreement for unauthorized activity or a violation of this Agreement will be effective without notice. ASBS shall also not be responsible or liable for any damages or loss, such as loss of sales or profits, as a result of any termination of this Agreement in accordance with this section. Upon termination of this Agreement for any reason, certain applicable provisions of this Agreement will survive termination, as outlined below. In particular, any applicable fees or charges that were due to ASBS prior to termination shall remain and shall become immediately payable to ASBS upon termination. Upon termination, you (and any of your Authorized Users) must also return to ASBS and/or destroy or delete from your computer, laptop, work station, network, or system all copies of the Software (and any associated materials) in your possession. If requested by ASBS, you shall provide written confirmation of your compliance with this obligation. Any licenses from ASBS and any right to use the Software shall immediately cease upon termination of this Agreement. Moreover, upon termination, all of your Records shall be deleted from the Software, except as required by law. The provisions concerning proprietary ownership of the Software, confidentiality, feedback, representations and warranties, warranty disclaimer, limitation of liability, indemnification, governing law, enforcement, termination, notices, and the miscellaneous terms will survive the termination of this Agreement for any reason. 17. SPECIFIC PROGRAMS; OTHER TERMS AND CONDITIONS. Additional notices, terms, and conditions, including, without limitation, ASBS' Terms of Service Agreement, ASBS' Privacy Policy, ASBS' Mastery of Breast Surgery Program Participation Agreement, and ASBS' Business Associate Agreement (if ASBS' compliance and such document are required by applicable law) may apply to the use of the Software. In particular, to the extent required by applicable law, ASBS will comply with its data handling obligations under the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") per the terms of its Business Associate Agreement or its Mastery of Breast Surgery Program Participation Agreement or the form of business associate agreement that ASBS has executed in writing. You agree to abide by such other notices, terms, and conditions (as applicable). If there is a conflict with this Agreement, ASBS' obligations, if any, with respect to its services, programs, and/or products are governed solely by the terms, conditions, notices, and agreements pursuant to which they are provided, and nothing should be construed to alter such terms, conditions, notices, and agreements. 18. NOTICES. All notices, demands, and other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given when delivered, by first class U.S. Mail, return receipt requested, in person, by commercial overnight courier (e.g., FEDERAL EXPRESS), with constructive receipt deemed to have occurred 3 calendar days after being mailed, or when receipt is acknowledged if sent by facsimile or other electronic transmission device. 19. MISCELLANEOUS. Notwithstanding anything herein, you acknowledge that the rights and services are provided by ASBS on a non-exclusive basis, and ASBS shall have the right to enter into similar business relationships with other entities or persons and to perform services for others during the term of this Agreement. The relationship between you and ASBS is and shall be that of independent contractors and nothing in this Agreement shall be construed or used to create or imply any relationship of partners, joint venturers, or employer and employee. You also agree that this Agreement is only for your or your Authorize User(s)'s benefit. Accordingly, you may not assign or otherwise transfer this Agreement or the license granted hereunder or delegate any of your duties specified herein, in whole or in part, without ASBS' prior written consent. Any attempt of assignment, delegation, or transfer in violation of this Agreement shall be void, of no effect, and a material breach of this Agreement. Notwithstanding the foregoing, ASBS may assign this Agreement in whole or in part and otherwise delegate its rights and responsibilities and use contractors to fulfill its obligations under this Agreement. Failure by ASBS to insist on strict performance of any of the terms and conditions of this Agreement will not operate as a waiver of that or any subsequent default or failure of performance. In the event any provision of this Agreement is found by an arbitrator or court of competent jurisdiction to be invalid, void, or unenforceable, you agree that unless it materially affects the entire intent and purpose of this Agreement, the invalidity, voidness, or unenforceability shall affect neither the validity of this Agreement nor the remaining provisions herein, and the provision in question shall be deemed to be replaced with a valid and enforceable provision most closely reflecting the intent and purpose of the original provision. Headings are for convenience only and have no legal or contractual effect. This Agreement, ASBS' Terms of Service Agreement, ASBS' Privacy Policy, ASBS' Mastery of Breast Surgery Program Participation Agreement, and ASBS' Business Associate Agreement (as applicable), which are all hereby incorporated by reference as if set forth fully herein, represent the entire agreement between you and ASBS with respect to the services provided by ASBS and any use of the Software, and they supersede all prior or contemporaneous communications and proposals, whether electronic, oral, or written between you and ASBS with respect to the Software. Please note that ASBS reserves the right to change the terms and conditions of this Agreement and under which the Software is extended to you by providing you in writing or electronically a copy of such revised terms (or notice thereof). ASBS also has the exclusive right to provide updates, upgrades, and/or changes to any aspect of the Software at any time. But, ASBS has no obligation to provide such updates, upgrades, or changes. Your continued use of the Software following any such change to such Software will be deemed acceptance of any change to this Agreement or the Software. If you have questions regarding the Software or if you are interested in obtaining more information concerning ASBS and its products or services, or want permission to use any ASBS content, please contact ASBS. �
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NETMOTION WIRELESS, INC. MOBILITY END USER LICENSE AGREEMENT IMPORTANT - READ CAREFULLY BEFORE INSTALLING OR USING THE SOFTWARE: This NetMotion Wireless, Inc. End User License Agreement (“EULA”) is a legal agreement between you (either an individual or a single entity) and NetMotion Wireless, Inc. (“NetMotion”) for the enclosed NetMotion software product, which includes computer software object code and associated documentation ("Software"). The terms of this EULA apply to your use of the Software, whether your use is time-limited for “evaluation” purposes (“Evaluation License”) or long-term (“Permanent License”). The Software also includes any updates and supplements to the original Software provided to you by NetMotion. Any third party product provided along with the Software that so requires is licensed to you under the terms of that license agreement as more fully described below. By installing, copying, downloading, accessing or otherwise using the Software, you agree to be bound by the terms of this EULA. If you do not agree to the terms of this EULA, do not use or install the Software. If you have purchased the Software, promptly return the Software and all accompanying materials with proof of purchase to your place of purchase for a refund. 1. SOFTWARE LICENSE. The Software is confidential and protected by United States and international patent and copyright laws and treaties, as well as other intellectual property laws and treaties. The Software is licensed, not sold. 2. GRANT OF EVALUATION LICENSE. NetMotion grants you a limited, royalty-free, nontransferable, non-exclusive, license to install and use the Software as an integrated product provided that you comply with the terms and conditions of this EULA. GRANT OF PERMANENT LICENSE. Upon receipt of payment by NetMotion or its authorized Resellers, as provided herein, NetMotion grants you a perpetual, fully paid-up, non-transferable, nonexclusive, worldwide (subject to applicable export restrictions) limited license to install and use the Software as an integrated product for internal business purposes, provided that you comply with the terms and conditions of this EULA. 2.1. Install and Use Server Component. You may install and use a copy of the server component of the Software on as many Servers as you are licensed to use the server component of the Software. For purposes of this EULA, “Server” means any computer on which the server component of the Software is installed or used. 2.2. Install and Use Client Component. You may install the number of copies of the client component of the Software for which you have obtained a license on devices solely for your internal use. 2.3. Reservation of Rights. NetMotion, its suppliers and licensors reserve all rights not expressly granted under this EULA. 3. LIMITATIONS. 3.1. Limitations on Use, Modifying, Copying, Publishing and Redistributing. NetMotion and its suppliers and licensors retain all ownership of the Software, and all modifications and copies thereof, including all copyrights and other intellectual property rights therein. Except as expressly provided in this EULA, you may not modify, make copies, publish for others to copy, or redistribute the Software or the printed materials accompanying the Software. You may make copies of the Software only for archival and backup purposes and one copy of electronic documentation accompanying the Software for each license you have acquired for the Software. You must include all applicable copyright notices and other proprietary rights legends that come with the Software, unaltered and unobscured, in any copies you make. You may keep the original media on which NetMotion provided the Software solely for backup or archival purposes. If the original media is required to use the Software, you may make one copy of the Software solely for backup or archival purposes. You shall not provide copies of the Software to any third party. 3.2. Limitations on Reverse Engineering, Decompiling and Disassembly. The Software in both object �code and source code form includes valuable trade secret information of NetMotion and its licensors. You may not modify the Software or make derivative works thereof, reverse engineer, decompile, or disassemble the Software or otherwise attempt to gain access to the source code for the Software, except and only to the extent expressly permitted by applicable law notwithstanding this limitation. 3.3. Limitations on Transfer. You may not rent, lease, sell, sublicense, lend or otherwise transfer or assign your rights or obligations under this EULA to any person or entity without the prior written consent of NetMotion. Such consent may be conditioned on the payment of additional license fees or the imposition of additional transfer restrictions. 4. PAYMENT TERMS. You agree to pay for a Permanent License, maintenance and support when and as indicated in the quotation and invoice issued by NetMotion or its authorized Reseller. Further, you agree to pay all value added, sales, use and other taxes resulting from this Agreement or your use of the Software, exclusive of taxes imposed directly on NetMotion or its authorized Resellers. 5. TERMINATION. The term of this Agreement shall commence on the date on which you accept this EULA and shall continue until terminated as provided hereinafter. If you have received an Evaluation License, your license to such version of the Software will terminate the date it times out. If you violate any term of this EULA, NetMotion may terminate this EULA without waiving any other rights. If your EULA is terminated, you must destroy all copies of the Software and, on request of NetMotion, certify said destruction. All amounts paid by you to NetMotion prior to termination shall be non-refundable. No termination of this Agreement shall in any way affect the rights, duties or obligations of either you or NetMotion which have accrued prior to the date of such termination. 6. SAFEGUARDS/AUDIT RIGHTS. You agree to: (i) implement internal safeguards to prevent any unauthorized copying, distribution, or use of the Software; (ii) provide NetMotion with written certification of the number of copies of the Software installed or used on request, and (iii) to allow NetMotion to audit your premises and systems for compliance with this EULA during regular business hours. NetMotion will pay for the cost of the audit unless the audit shows a discrepancy in the number of copies of the Software used over the licenses you have acquired, in which event, you shall pay for the cost of the audit. 7. EXPORT LAWS; FOREIGN CORRUPT PRACTICES. You acknowledge that the Software is of U.S. origin. You agree to comply with all applicable international and national laws that apply to the Software, including the US Export Administration Regulations (15 CFR, Parts 730-774, as well as enduser, end-use and destination restrictions issued by U.S. and other governments. The Software contains encryption and cannot be exported outside the United States or Canada without a U.S. Commerce Department export license or applicable license exception. You agree that you will not directly or indirectly export, re-export or import the Software (or portions thereof) other than to Canada, without first obtaining an export license or determining that a license exception is authorized and applicable and notifying NetMotion in writing of such export. You further agree that you will avoid any activity that violates U.S. or local laws, including the U.S. Foreign Corrupt Practices Act. 8. U.S. GOVERNMENT RESTRICTED RIGHTS. The Software is commercial computer software and documentation developed exclusively at private expense, and in all respects is proprietary data belonging solely to NetMotion. If the Software is acquired by or on behalf of agencies or units of the Department of Defense (DoD), then, pursuant to DoD FAR Supplement Sections 227.7201 through 227.7202 and its successors (48 C.F.R. 227.7201-227.7202) the Government's right to use, reproduce or disclose the Software is subject to the restrictions of this EULA. If the Software is acquired by or on behalf of civilian agencies of the United States Government, then, pursuant to FAR Sections 2.101 and 12.212 and its successors (48 C.F.R. 2.101 and 48 C.F.R. 12.212), the Government's right to use, reproduce or disclose the Software is subject to the restrictions of this EULA. 9. GOVERNING LAW AND ATTORNEYS' FEES. Without regard to the conflict of laws rules, this EULA is governed by the laws of the State of Washington, USA, and specifically excludes the United Nations Convention on Contracts for the International Sale of Goods. In any action or suit to enforce any right or remedy under this EULA or to interpret any provision of this EULA, the prevailing party will be entitled to recover its costs, including reasonable attorneys' fees. 10. ENTIRE AGREEMENT. This EULA constitutes the entire agreement between you and NetMotion �with respect to your right to use the Software, and replaces all other agreements or representations, whether written or oral. Terms contained in the quotation and invoice issued by NetMotion or its authorized Resellers, and in any purchase order issued by you, are hereby incorporated by reference solely for the purpose of identifying the quantity and type of client and server licenses and modules purchased, the level of maintenance and support to be provided, the rate at which such products and services shall be paid and the payment terms applicable to the licensing of such Software and services. In all other respect, the terms of this EULA cannot be modified by any terms in any printed forms used by the parties in performing the EULA, and can only be modified by express written consent of both parties. If any part of this EULA is held to be unenforceable as written, it will be enforced to the maximum extent allowed by applicable law, and will not affect the enforceability of any other part. The original of this EULA is in English. If it is translated into another language, the English language version shall prevail. 11. LIMITED WARRANTY. For a period of ninety (90) days from the date of shipment or download from NetMotion of the Software, NetMotion warrants that (a) the unmodified Software will perform substantially in accordance with the accompanying written materials when used as directed, and (b) the media upon which the Software is delivered will be free of defects. This Limited Warranty is void if failure of the Software has resulted from modification, accident, abuse, or misapplication. 12. EXCLUSIVE REMEDY. Your exclusive remedy with respect to any breach of the Limited Warranty is, at NetMotion's option, either repair or replacement of the non-conforming Software or return of the prorata price you paid for the non-conforming Software. You must return all non-conforming Software to NetMotion with your proof of purchase to be entitled to this remedy. Outside the United States, neither these remedies nor any product support services offered by NetMotion are available without proof of your purchase from an authorized international source. 13. NO OTHER WARRANTIES. TO THE FULL EXTENT PERMITTED BY LAW, NETMOTION AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT, WITH REGARD TO THE SOFTWARE. 14. LIMITATION OF LIABILITY. NETMOTION AND ITS LICENSORS WILL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS OR CONFIDENTIAL INFORMATION, LOSS OF PRIVACY, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF NETMOTION OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, THE ENTIRE LIABILITY OF NETMOTION AND ITS LICENSORS UNDER THIS AGREEMENT AND LIMITED WARRANTY SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE THAT CAUSES THE DAMAGE. 15. THIRD PARTY SOFTWARE. The Software may contain or be distributed with software code or products from third parties (“Third Party Software”) NetMotion has secured all necessary rights from such third parties to use, distribute and sublicense such Third Party Software in conjunction with the Software. Any Third Party Software so requiring, is sub-licensed to you under the terms of that Third Party License. The terms of any such Third Party License apply only to the specific software code or product of the named third party and do not extend to any other portion of the Software licensed by NetMotion, or other third party intellectual property, including trademarks. In any event, the disclaimer of warranty and limitation of liability provisions of this EULA shall apply to all of the Software, including Third Party Software. Applicable Third Party Licenses are available at www.netmotionwireless.com/legal-and-copyright.aspx. Revision Date: April 24, 2012 �
nw/99.txt
Moovitapp Global – End User License Agreement 1. This End-User License Agreement (“EULA”), a legal agreement between you, either an individual or a single entity (“You" or “User”) and TranzMate Ltd., having its registered offices at 3rd Sapir St. Ness Ziona, Israel (hereinafter, the "Company”, "us" or "we") governing Your use of the Company's application, and any associated documentation ("Application”), Platform, Trip Planner Algorithm and Services (as such terms defined hereinafter). 2. The Application provides access to a platform for planning Your trips through use of public transit in certain countries ("Platform"). The Platform enables You to: a. view the location of the transit line stops of certain transit agencies supported by the Application ("Transit Agencies") ("Transit Line Stop(s)") and any related static information (e.g.: name of Transit Agency, Transit Line Stops locations, transit lines timetables, frequencies and travel routes) ("Public Transit Information"); b. plan and optimize Your trip based on comprehensive proprietary trip planning algorithms which combine the Public Transit Information with certain "wisdom of the crowds", dynamic information which derives from others users of the Platform, whether in real time and whether on an estimated bases based on other users' previous experience ("Dynamic Information"); c. post certain content which would later appear on the Platform, next to each of the relevant Transit Line Stops; and d. communicate with other users of the Application (the "Trip Planner Algorithm"). 3. IMPORTANT: BY DOWNLOADING AND/OR INSTALLING THIS APPLICATION AND/OR BY DOWNLOADING, AND/OR BY USING ANY OF THE PLATFORM, TRIP PLANNER ALGORITHM AND ANY OF THE SERVICES, YOU ACCEPT AND AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS EULA. IF YOU DO NOT AGREE TO ANY OF THE TERMS AND CONDITIONS OF THIS EULA - YOU ARE NOT ALLOWED TO USE THE APPLICATION, PLATFORM, TRIP PLANNER ALGORITHM AND ANY OF THE SERVICES AND IS OBLIGED TO UNINSTALL AND ERASE THE APPLICATION FROM YOUR MOBILE DEVICE. 4. Grant of License. Subject to the limitations and restrictions provided in this EULA, Company grants You a limited, non-exclusive, non-sublicensable, non-transferable, worldwide license, to install and use the Application, and use the Platform, Trip Planner Algorithm and Services in accordance with the terms and conditions of this EULA for the sole purpose of enabling You to use certain of Our services through any mobile or portable device which may use Android Operating System and/or iOS Operating System (ver. 4.0 and above) (“Mobile Device”). For the avoidance of doubt, it is hereby made clear that this EULA does not convey to You any interest in or title to the Application, Platform, Trip Planner Algorithm and/or any of the Services, but only limited rights to use the Application, Platform, Trip Planner Algorithm and/or any of the Services solely in accordance with the terms and conditions hereunder. 5. Your Account 5.1. You may choose to perform a registration procedure and create an account in order to use certain features set forth under the Application, Platform, Trip Planner Algorithm and Services (the "Account"). When You enter the Application You will see a "User Settings" option and be required to insert 14102/6000/3948917/2 �certain details such as Your email address, user name, home address, office address and TranzMate icon type (the "Account Registration Procedure"). 5.2. As part of the Account Registration Procedure, You shall select a user name, as well as any additional information as mentioned above. You will provide us with accurate, complete and updated Account information. Failure to do so shall constitute a breach of this EULA which may result, inter alia, in immediate termination of Your Account. 5.3. You are responsible for maintaining the confidentiality of Your Account, and user name and for restricting access to your Mobile Device, and You agree to accept responsibility for all activities that occur under Your Account. At any time following Your registration, You may choose to revoke Your registration by simply erasing Your username and email address and becoming an anonymous user. 6. Use Restrictions 6.1. While using the Application, Platform, Trip Planner Algorithm and Services, there are certain types of behaviors which are strictly prohibited, as appears in the list below. Please read this list carefully. Your failure to comply with the provisions set forth herein may result in the suspension or blocking of Your use of the Application, Platform, Trip Planner Algorithm and/or Services and/or the termination of Your Account, and may also expose You to civil and/or criminal liability. 6.2. You may not, whether by Yourself or anyone on Your behalf: 6.2.1. copy, modify, alter, adapt, make available, translate, reverse engineer, decompile, or disassemble any portion of the Application, Platform, Trip Planner Algorithm and/or Services, including, but not limited to, with respect to any of the Public Transit Information and/or Dynamic Information; 6.2.2. create a browser, frame, border environment or GUI around the Application, Platform, Trip Planner Algorithm and/or Services; 6.2.3. interfere with or disrupt the operation of the Application, Platform, Trip Planner Algorithm and/or Services, or the servers or networks that host the Application, Platform, Trip Planner Algorithm and/or Services or make the Services available, or disobey any laws or regulations or requirements, procedures, policies, or regulations of such servers or networks; 6.2.4. interfere with or violate other users' rights to privacy and other rights, or harvest or collect data and information about users without their express consent, whether manually or with the use of any robot, spider, crawler, site search or retrieval application, or other automatic device or process to access the Application, Platform, Trip Planner Algorithm and/or Services and/or retrieve index and/or data-mine information, including with respect to the Public Transit Information and/or the Dynamic Information; -2- �6.2.5. impersonate any person or entity or provide false or misleading personal information; 6.2.6. transmit or otherwise make available through or in connection with the Application, Platform, Trip Planner Algorithm and/or Services any virus, "worm", "Trojan Horse", "time bomb", "web bug", spyware, or any other computer code, file, application or program that is malicious by nature or defective, and may, or is intended to damage or hijack the operation of any hardware, software or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component; 6.2.7. use the Application, Platform, Trip Planner Algorithm and/or Services for any illegal, unlawful or unauthorized purposes; 6.2.8. use the Application, Platform, Trip Planner Algorithm and/or Services for any commercial or other non-personal purposes, including any usage which generates any revenues, whether directly or indirectly, without Our prior written consent. 6.2.9. use the Application, Platform, Trip Planner Algorithm, the Service and/or other User's Information for purposes of harassment, stalking, scorning, provocation, acts of terrorism, violence or any other purpose which may endanger other users. 7. Representations and Warranties by the User As a condition to Your use of this Application, Platform, Trip Planner Algorithm and/or Services, You hereby represent and warrant that: 7.1. You are at least 18 years of age and possess the legal authority to enter into this EULA, to use the Application, Platform, Trip Planner Algorithm and/or Services in accordance with all terms and conditions herein, and to fully perform Your obligations hereunder (e.g. You do not have any pending stay of exit order against You); 7.2. You are financially responsible for Your use of this Application, Platform, Trip Planner Algorithm and/or Services and/or for any use You may perform with respect to Your Account; 7.3. the execution of this EULA does not and will not violate any other agreement to which You are bound, or any law, rule, regulation, order or judgment to which You are subject; 7.4. Your use of the Application, Platform, Trip Planner Algorithm and/or Services has not been previously suspended, Your access to the Application, Platform, Trip Planner Algorithm and/or Services has not been previously blocked by Us, nor has Your Account been previously terminated by Us. -3- �7.5. You will safeguard Your Account information and will supervise and be responsible for any use of Your Account by anyone other than You; 8. Privacy Policy 8.1. General The Company respects Your privacy and is committed to protect the information You share with it. The Company believes that You have a right to know the Company's practices regarding the information the Company collects when You use the Application. Below You will find a detailed list of the information the Company collects, how the Company intend to use it and for which purposes: 8.2. What information do the Company collect? 8.2.1. Two types: o Non identifiable and anonymous information which consists of technical information and behavioral information, such as: users patterns; transit line timelines; and preferred routes o Identifiable and personal information, such as: o personal details (such as full name, email address, home address, office address, TranzMate icon type, which is voluntarily provided by You to Company either directly by You or otherwise; and o geographical information regarding the current location of your Mobile Device, subject to Your prior consent, in order to provide You with Our location based services. For the sake of clarification, any Non-personal Information combined with Personal Information shall be regarded as Personal information. 8.3. For which purposes information? do the Company collects Non-Personal To learn about general trends of usage of the Company's Application, and enhance Your experience on the Application (e.g. the Company determines which part of the Application draws more traffic and improve such services areas on the Application); and Provide Transit Agencies, municipalities, government offices and/or other third parties which may have interest in such information for research, public transit planning and development purposes. 8.4. Personal Information is collected in order to: Learn more about Your preferences and suggest relevant content to You; Enhance the User experience and adjust Our Services to You personally (e.g. collecting information about Your Mobile Device's geographic location will enable Us to provide You with a more accurate and personalized information); and -4- � Display in Company’s internal organizational facilities or resources for the inspiration of the company’s employees and the internal organization; and Pursuant to Your consent, deliver targeted advertisements to You. 8.5. Sharing the information with third parties WE WILL NOT SHARE YOUR PERSONAL INFORMATION WITH ANY THIRD PARTY, EXCEPT FOR THE FOLLOWING CASES: (a) to satisfy any applicable law, regulation, legal process, subpoena or governmental request; (b) to enforce these Privacy Policy or the Terms of Use: www.tranzmate.com/en/license.pdf, including investigation of potential violations of such Terms; (c) to detect, prevent, or otherwise address fraud, security or technical issues; (d) to respond to User's support requests; (e) to respond to claims that any content violates the rights of third-parties; (f) to respond to claims that contact information (e.g. name, email address, etc.) of a third-party has been posted or transmitted without their consent or as a form of harassment; (g) to protect the rights, property, or personal safety of Company, its Users, or the general public; (h) when Company is undergoing any change in control, including by means of merger, acquisition or purchase of all or substantially all of the assets of Company; or (i) pursuant to Your explicit approval, in order to supply certain Services You have requested from Company; and (j) to let Our partners and affiliates serve You with respect to their products and services, including newletters and publications, advertisements, prizes and benefits, upon Your prior consent. You hereby acknowledge and agree that the Application may collect and process Personal and Non-Personal Information in accordance with this Section 8 . If You have any questions or concerns with regard to privacy issues, please contact Us through the following address: [email protected] . For the avoidance of doubt, if You do not agree with this Privacy Policy You are not allowed to use the Application, the Platform, the Trip Planner Algorithm and/or any of the Services. 9. Intellectual Property Rights 9.1. The Application, Platform, and the Trip Planner Algorithm, including without limitation, the proprietary algorithms and methods, inventions, patents and patent applications, copyrightable material, graphics, text, sounds, music, designs, specifications, data, technical data, videos, interactive features, software (source and/or object code), files, interface, GUI and trade secrets pertaining thereto (collectively, "Intellectual Property"), are fully owned or licensed to Us and are subject to copyright and other applicable intellectual property rights under applicable laws, foreign laws and international conventions. Notwithstanding the above, certain content and features made available or displayed through the Application, Platform, Trip Planner Algorithm and/or Services, including without limitation, graphics, photos, sounds, -5- �music, videos, interactive features, software, scripts, interface, trademarks, service marks and logos may be owned by third parties (e.g. the intellectual property rights to the Public Transit Information may be owned by the Ministry of Transportation, the respective municipalities or the relevant Transit Agency, as the case may be). 9.2. Except as provided herein, You are not granted, expressly or by implication, estoppel or otherwise, any license or right to use any of the Intellectual Property and/or the Public Transit Information and/or the Dynamic Information not as explicitly permitted to You under this EULA. 10. Trademarks "TranzMate", Our company logo and other commercial identifiers We use in connection with the Application, Platform, Trip Planner Algorithm and/or Services are all trademarks and/or trade names of Ours or of Our third party licensors, whether registered or not. No right, license, or interest to such trademarks or trade names is granted hereunder, and You agree that no such right, license, or interest shall be asserted by You with respect to such trademarks and/or trade names. 11. Commercial Advertisements We may integrate commercials and advertisements, in the Application, Platform, Trip Planner Algorithm and/or Services . All the information contained in such commercials and advertisements belong solely to Us or Our advertisers and We make no warranties or representations as to such advertisements, whether or not We have control over such advertisements. 12. Disclaimer and Warranties 12.1. THE APPLICATION, PLATFORM, TRIP PLANNER ALGORITHM AND/OR SERVICES ARE AT THEIR BETA STAGE AND PROVIDED HERE ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR NON-INFRINGEMENT OR IMPLIED WARRANTIES OF USE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 12.2. WE DO NOT WARRANT THAT THE USE OF THE APPLICATION, PLATFORM, THE TRIP PLANNER ALGORITHM AND/OR ANY OF THE SERVICES WILL BE UNINTERRUPTED OR ERRORFREE. WE MAY CORRECT, MODIFY, AMEND, ENHANCE, IMPROVE AND MAKE ANY OTHER CHANGES TO THE APPLICATION, THE PLATFORM, THE TRIP PLANNER ALGORITHM AND/OR SERVICES, IN WHOLE OR IN PART, AT ANY TIME. 12.3. WE MAKE NO REPRESENTATION REGARDING THE SUITABILITY OF THE APPLICATION, PLATFORM, TRIP PLANNER ALGORITHM AND/OR SERVICES OR OTHER -6- �INFORMATION PROVIDED THROUGH IT, DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE USE OF THE APPLICATION, PLATFORM, TRIP PLANNER ALGORITHM AND/OR SERVICES, AND WE ARE NOT AND SHALL NOT BE RESPONSIBLE FOR ANY ERROR, FAULT OR MISTAKE OF ANY AND ALL INFORMATION RECEIVED THROUGH THE APPLICATION, PLATFORM, TRIP PLANNER ALGORITHM AND/OR SERVICES. 12.4. WE DO NOT WARRANT NOR GUARANTEE ANY INFORMATION PROVIDED THROUGH THE APPLICATION, PLATFORM, TRIP PLANNER ALGORITHM AND/OR SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY PUBLIC TRANSIT INFORMATION AND/OR ANY DYNAMIC INFORMATION, AND ASSUMES NO LIABILITY, WITH RESPECT TO SUCH INFORMATION. AMONG OTHERS, WE MAKE NO REPRESENTATION REGARDING THE ACTUAL ARRIVAL OR DEPARTURE OF THE PUBLIC TRANSIT LINES TO THE RESPECTIVE TRANSIT LINES STOPS, NOR REGARDING THEIR RESPECTIVE ROUTES. YOU ACKNOWLEDGE AND UNDERSTAND THAT THE INFORMATION PRESENTED ON THIS APPLICATION, PLATFORM, TRIP PLANNER ALGORITHM AND/OR SERVICES SHOULD BE USED FOR GENERAL INFORMATIONAL PURPOSES ONLY AND YOU SHOULD NOT RELY ON THE ACCURACY OF SUCH INFORMATION FOR YOUR DECISION MAKING. WE CANNOT ASSUME ANY RESPONSIBILITY FOR UPDATING OR CORRECTING ANY SUCH INFORMATION ONCE IT HAS BEEN GIVEN. WE ACT MERELY AS A VENUE BETWEEN THE RESPECTIVE - TRANSIT AGENCY'S VEHICLE AND YOURSELF, AND ARE NOT, IN ANY CASE, DIRECTLY OR INDIRECTLY INVOLVED IN ANY TRANSACTION BETWEEN ANY TRANSIT AGENCY OR ANY OTHER THIRD PARTY AND YOURSELF. 13. Limitation of Liability THE USE OF THE APPLICATION, PLATFORM, TRIP PLANNER ALGORITHM AND/OR SERVICES IS SOLELY AT YOUR OWN RISK. IN NO EVENT WILL WE BE LIABLE FOR ANY DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION RESULTING FROM OR ARISING OUT OF THE A APPLICATION, PLATFORM, TRIP PLANNER ALGORITHM AND/OR SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES, LOSS OR COSTS YOU MAY SUFFER DUE TO THE INSTALLATION OF THE APPLICATION ON YOUR RESPECTIVE MOBILE DEVICE, RELIANCE ON ANY PUBLIC TRANSIT INFORMATION AND/OR ANY DYNAMIC INFORMATION, THE USE OF THE APPLICATION, PLATFORM, TRIP PLANNER ALGORITHM AND/OR ANY OF THE -7- �SERVICES, YOUR RELIANCE ON THE INFORMATION PROVIDED THROUGH THE APPLICATION, PLATFORM, TRIP PLANNER ALGORITHM AND/OR SERVICES, REGARDLESS OF WHETHER WE OR AN AUTHORIZED REPRESENTATIVE OF OURS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT WHERE LIABILITY IS MANDATORY IN WHICH EVENT LIABILITY FOR DAMAGES SHALL BE LIMITED TO TEN (10) US DOLLARS. 14. Indemnification You agree to defend, indemnify and hold Us, Our officers, directors, employees and agents harmless, from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, and expenses (including but not limited to attorney's fees) arising from: (i) Your use of the Application, Platform, Trip Planner Algorithm and/or Services; (ii) Your violation of any term of this EULA; (iii) Your violation of any third party rights, including without limitation any intellectual property rights or privacy right; and (iv) any damage of any sort, whether direct, indirect, special or consequential, You may cause to any third party with relation to the Application, Platform, Trip Planner Algorithm and/or Services. This defense and indemnification obligation will survive this EULA. 15. General 15.1. This EULA dose not, and shall not be construed to create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the parties hereto. 15.2. Any claim relating to the Application, Platform, Trip Planner Algorithm and/or Service or its use thereof will be governed by and interpreted in accordance with the laws of the State of Israel without reference to its conflict-of-laws principles. 15.3. Any dispute arising out of or related to Your use of the Application, Platform, Trip Planner Algorithm and/or Service will be brought in, and You hereby consent to exclusive jurisdiction and venue in, the competent courts of the Tel-Aviv-Jaffa District, Israel. You agree to waive all defenses of lack of personal jurisdiction and forum nonconvenience and agree that process may be served in a manner authorized by applicable law or court rule. 15.4. If any provision of this EULAis found to be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from this EULA and will not affect the validity and enforceability of any remaining provisions. 15.5. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof. 15.6. This EULA constitute the entire terms and conditions between You and the Company relating to the subject matter herein and supersedes any -8- �and all prior or contemporaneous written or oral agreements or understandings between You and Us. 16. Complains If You feel that any of Your personal rights has been compromised on the Service, or the Application please contact Us at [email protected] and We will exert Our best efforts to handle Your complaint. 17. User Generated Content The Application, Platform and/or Services allow You to link to, post, publish and make available through it (either on designated billboards or otherwise), Your own copyrightable materials such as text contributions and other proprietary materials (the "User Generated Content"). As long as Your User Generated Content is subject to the applicable copyright law, such User Generated Content shall remain at all times, and to the extent permitted by law, Your sole and exclusive property. You understand and agree that You are solely responsible for Your User Generated Content and the consequences of posting or publishing such material in any way. You represent and warrant that You have (and will continue to have) all necessary licenses, rights, consents, and permissions which are required to use and to enable the Application, Platform and/or Services to use Your User Generated Content. You agree that You will not post or upload any User Generated Content containing content which is unlawful for You to possess, post or upload in the country in which You are resident, or which it would be unlawful for Company to use or possess in connection with the Application, Platform, Trip Planner Algorithm and/or other Services. Company has the right, but no obligation, to remove under its sole discretion any User Generated Content for any reason, including without limitation in case it suspect or believe that the User Generated Content is unlawful, offensive, threatening, libelous, defamatory, obscene, or otherwise violates any third-party's rights, including intellectual property rights, copyrights and/or privacy rights and/or this EULA or other policies. Unless the User Generated Content was transmitted to a third party via the application, platform, trip planner algorithm and/or services You can ask Company to remove any User Generated Content uploaded by You to the Application, Platform and/or Services by sending an email to Transmate support at [email protected] explicitly reserves the right to remove the User Generated Content without a prior notice, at its sole discretion. When You upload, post, publish or make available User Generated Content on the Application, Platform, Trip Planner Algorithm and/or Services, or use such User Generated Content via the Application, Platform, Trip Planner Algorithm and/or other Services, You (i) grant the Company an irrevocable, perpetual, non-exclusive, royalty-free, transferable, assignable, sub-licensable and worldwide license, to use, reproduce, distribute, transmit, prepare derivative works of, display, make available to the public by use of databases, such as user suggestions databases, and perform that User Generated Content in -9- �connection with the Application, Platform, Trip Planner Algorithm and/or the Services, whether through the Internet, any Mobile Device or otherwise, in any media formats and through any media channels known today and developed in the future; and (ii) irrevocably waive Your moral rights with respect to Your User Generated Content, in connection with Our use of such User Generated Content as described hereunder. 18. Copyright Agent We respect the Intellectual Property rights of others. If You believe that any content displayed through the Application, Platform and/or the Services is infringing Your rights, including, but not limited to, if you believe that content relating to any of Your User Generated Content have been copied in a way that constitutes copyright infringement, please provide the following information in writing to TranzMate's Copyright Agent: (i) A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright; (ii) A description of the copyrighted work that You claim has been infringed; (iii) A description of the material that You claim to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information sufficient to permit TranzMate to locate the material; (iv) Information so that We can contact You, such as address, telephone number and e-mail address; (v) A statement that You have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; (vi) A statement that the information in the notification is accurate and, under penalty of perjury, that You are the copyright owner or are authorized to act on behalf of the owner of a copyright that is allegedly infringed. TranzMate's Copyright Agent can be reached at the following address [email protected] . -10- �