END USER SOFTWARE LICENSE AGREEMENT
This agreement will govern your installation and use of a free evaluation copy of DIVEX (hereinafter “Software”).
PLEASE READ THIS AGREEMENT CAREFULLY. BY COPYING, INSTALLING, OR USING ALL OR ANY PORITON OF THIS SOFTWARE, YOU (HEREINAFTER “USER”) ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, THE PROVISIONS ON LICENSE RESTRICTIONS. USER AGREES THAT THIS AGREEMENT IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY USER, THIS AGREEMENT IS ENFORCEABLE AGAINST USER. IF USER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, USER MAY NOT COPY, INSTALL, OR USE ALL OR ANY PORTION OF THE SOFTWARE.
1. License Grants and Limitations
1.1 Software License. Subject to all the terms and conditions of this Agreement, Vendor hereby grants to User a nonexclusive, nontransferable, nonsublicensable license under the Vendor’s intellectual property rights to use a copy of the Software solely for non-commercial use and/or evaluative purposes and in accordance with the other restrictions in this Agreement. The Software may only be copied as may be necessary for backup purposes or to replace a defective copy. If User is unable to operate the Software due to an equipment malfunction, the Software may be transferred temporarily to other computer equipment during the period of equipment malfunction.
1.2 Documentation License. Subject to all the terms and conditions of this Agreement, Vendor hereby grants to User a nonexclusive, nontransferable, nonsublicensable license to use and copy the Documentation in support of User’s licensed use of the Software.
1.3.1 General. User acknowledges that the Software and Documentation contain valuable trade secret and confidential information of Vendor. User shall take the actions necessary to fulfill its obligations under this Agreement by instruction or agreement with its employees or agents who are permitted access to the Software or Documentation. User shall only give access to the Software or Documentation on a need-to-know basis.
1.3.2 Proprietary Rights. Title to all patents, copyrights, trade secrets, and other proprietary rights in or related to the Software and Documentation (including all of their component parts) are and will remain the exclusive property of Vendor. User will not acquire any right in the Software or Documentation or take any action to challenge Vendor’s proprietary rights. Vendor will own all rights in any copy, translation, modification, adaptation, or derivative work of the Software, including any improvements, whether or not authorized by Vendor, and User hereby assigns these rights to Vendor.
1.3.3 No Implied Licenses. Any use, modification, or distribution of the Software or Documentation by User outside the scope of the express licenses granted in this Agreement is prohibited.
1.3.4 Limitation of Rights. The rights granted under the Agreement do not extend to future versions of the Software. User acknowledges that acceptance of this Agreement shall not provide User with any rights to future, commercial, and/or non-evaluative versions of the Software.
1.3.5 No Reverse-Engineering. User shall not, and shall not knowingly permit others to: (a) modify the Software; or (b) decompile, reverse-engineer, disassemble, or otherwise attempt, directly or indirectly, to obtain or create source code for the Software; except that decompiling the Software is permitted solely to the extent the laws of User’s jurisdiction give User the right to do so to obtain information necessary to render the Software interoperable with other software, provided that User must first request this information from Vendor and Vendor may, in its sole discretion, either provide this information to User or impose reasonable conditions, including a reasonable fee, on this use of the Software to ensure that Vendor’s proprietary rights in the Software are protected.
1.3.6 Unauthorized Distribution or Copying. Other than in accordance with this Agreement, User shall not, and shall not knowingly permit others to: (a) lease, license, sublicense, transfer, or assign any of its rights under this Agreement; (b) sell, rent, or distribute the Software, including providing access to the Software or using the Software to operate a service bureau or on a timesharing basis; or (c) use, copy, duplicate, or otherwise reproduce any part of the Software or Documentation. Any breach of this Section 1.3.6 is a material breach of this Agreement that is incapable of cure.
1.3.7 Required Proprietary Notices. User shall ensure that each copy it makes of the Software or Documentation contains the same proprietary notices as provided to User.
1.4 Reasonable Cooperation. User shall promptly provide to Vendor all relevant facts in its possession upon becoming aware of a likelihood of infringement or other illegal use or misuse by any third party of the Software or any related intellectual property rights. User shall provide reasonable cooperation in any related suits and actions, at Vendor’s request and expense.
1.5 Acceptance. Without prejudice to any warranty rights, User will be deemed to have accepted the Software on the date the Software is downloaded.
1.6 Technical Support. No technical support is provided with the Software. Use of the Software by the User is at-will. By accepting the Agreement, User acknowledges that Vendor does not provide technical support and Vendor is not responsible for any mishaps that may result from the use of the Software.
2 Fees. Vendor shall make the Software available to User for free.
3 Term and Termination.
3.1 Term. This Agreement commences upon download and continues for up to one (1) year post download or until
(i) Automatically terminated or suspended if User fails to comply with any of the terms and conditions set forth in the Agreement; or
(ii) Terminated or suspended by Vendor, with or without cause.
3.2 Effect of Termination. Upon termination of this Agreement, all licenses granted to User will immediately terminate and User shall immediately cease using the Software and Documentation.
4.1 No Warranty. Vendor makes no warranties that the Software will substantially conform to the applicable Documentation at the time of delivery, when operated in accordance with the applicable user manual. Vendor provides the Software to User “as-is” and makes no assertion as to the fitness of the Software for any particular use, process, analysis, or purpose.
4.2 Remedies. Vendor shall not be held accountable for any damage caused by the use of the Software or data generated using the Software.
5.1 THE SOFTWARE AND ANY SERVICES ARE PROVIDED “AS IS,” AND VENDOR MAKES NO ADDITIONAL WARRANTIES, EXPRESS, IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY, AS TO ANY SOFTWARE OR SERVICES, OR ANY MATTER WHATSOEVER. THE PARTIES DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE, AND NON-INFRINGEMENT.
5.2 VENDOR DOES NOT WARRANT THAT THE SOFTWARE OR ANY SERVICES WILL MEET ANY USER REQUIREMENTS NOT SPECIFIED IN THIS AGREEMENT, THAT THE SOFTWARE WILL OPERATE IN THE COMBINATIONS THAT USER MAY SELECT FOR USE, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
6 Limitation of Liability.
6.1 NEITHER PARTY WILL BE LIABLE FOR ANY SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING FOR LOSS OF PROFITS, SAVINGS, REVENUE, OR USE, DAMAGED OR LOST FILES OR DATA, OR BUSINESS INTERRUPTION) IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION OR CHARACTERIZATION OF THE DAMAGES, EVEN IF THE PARTY SOUGHT TO BE HELD LIABLE HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES. VENDOR WILL NOT BE LIABLE FOR ANY DAMAGES FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR AGGREGATE LIABILITY TO USER RELATING TO THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION OR CHARACTERIZATION OF THE DAMAGES.
7.1 Vendor Intellectual Property Indemnity. User shall: (a) defend or, at its sole option, settle, at its own expense any suit, action, or proceeding brought against User by a third party claiming that the Software infringes any patent issued or any copyright or trade secret arising under the laws of any jurisdiction (an “IP Action”); and (b) pay damages finally awarded against User in the IP Action.
7.2 User Use Indemnity. User shall defend at its own expense any suit, action or proceeding brought against Vendor by a third party based on any claim arising in connection with User’s use of the Software (a “Use Action”), and User shall pay the damages incurred by Vendor in the Use Action, or those damages agreed to in a settlement of the Use Action, and all reasonable attorney fees and costs of litigation. Vendor shall: (a) notify User promptly in writing of the Use Action, (b) tender to User sole control of the defense or settlement of the Use Action at User’s expense, provided, however, User may not settle a Use Action in a manner that would have an adverse impact on the business of Vendor without receiving the prior written consent of Vendor, and (c) cooperate and, at User’s expense, assist in the defense of the Use Action. Vendor will have the right to participate at its own expense in any Use Action or related settlement negotiations using counsel of its own choice.
8.1 Export. User shall comply with all applicable export laws and regulations of the United States of America, the European Union, and other countries (“Applicable Export Laws”) and assure that no Software is: (a) exported, directly or indirectly, in violation of Applicable Export Laws; or (b) intended to be used for any purposes prohibited by the Applicable Export Laws, including nuclear, chemical, or biological weapons proliferation. The Parties shall not take any actions that would cause either Party to violate the U.S. Foreign Corrupt Practices Act or similar anti-corruption laws.
8.2 U.S. Government End Users. 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 these terms are used in FAR 12.212. Consistent with FAR 12.212 and DoD FAR Supp. 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which this Agreement may be incorporated, User may provide to a government end user or, if this Agreement is direct, a government end user will acquire, the Software and Documentation with only those rights specified in this 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 in this Agreement.
8.3 Notice. All notices under this Agreement, including notices of address change, must be in writing and will be deemed given when sent via email to [email protected].
8.4 Legal Expenses. If legal action is taken by either Party to enforce its rights under this Agreement, all costs and expenses incurred by either Party, including reasonable attorney fees and costs of litigation, will be paid by the individual parties.
8.5 Severability. If a provision of this Agreement is held by a court of competent jurisdiction to be illegal, unenforceable, or in conflict with any law of a federal, state, or local government, the validity of the remaining provisions will remain in full force and effect.
8.6 Governing Law; Venue. This Agreement is governed by the laws of the State of New York, without regard to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any litigation related to this Agreement must be brought in a state or federal court located in the State of New York, as permitted by law, except that Vendor may elect to seek injunctive or similar relief in any court having jurisdiction over User. User hereby consents to the personal jurisdiction of these courts.
8.7 Assignment. Neither Party may assign or transfer, by merger, operation of law or otherwise, this Agreement or any right or duty under this Agreement to a third party without the other Party’s prior written consent, except that Vendor may transfer this Agreement, together with all of its rights and duties under this Agreement, to a successor entity if Vendor is acquired, whether by equity or asset purchase, merger, corporate restructuring or reorganization, or the like. Any purported assignment or transfer in violation of this Section is void.
8.8 No Third-Party Beneficiaries. This Agreement is an agreement between the Parties and confers no rights upon any of the Parties’ employees, agents, contractors or customers, or upon any other person or entity.
8.9 Force Majeure. Except with regard to any obligation to pay money, neither Party will be held responsible for any delay or failure in performance caused by fire, flood, embargo, strike, labor dispute, delay or failure of any subcontract, telecommunications failure or delay, act of sabotage, riot, accident, delay of carrier or supplier, voluntary or mandatory compliance with any governmental act, regulation or request, act of God or by public enemy, or any act or omission or other cause beyond that Party’s reasonable control. If any of these events does occur, the time to perform an affected obligation will be extended by the length of time the event continues.
8.10 Entire Agreement. This Agreement contains all the agreements, representations, and understandings of the Parties and supersedes any previous understandings, commitments, representations or agreements, verbal or written, with respect to the subject matter of this Agreement. If there is any inconsistency between a term of this Agreement and a term on any exhibit, the term of this Agreement will govern.
8.11 Modification. This Agreement may be modified or amended by the Vendor without notice. User agrees to abide by the terms resulting from such modifications or amendments.