|
END USER LICENSE AGREEMENT
EXADEL, INC. SOFTWARE LICENSE AGREEMENT
USE OF SOFTWARE ORDERED OR DOWNLOADED FROM EXADEL, INC. ("EXADEL") IS PROVIDED ONLY UNDER LICENSE FROM EXADEL. BEFORE DOWNLOADING OR USING EXADEL SOFTWARE, PLEASE READ THE FOLLOWING LICENSE AGREEMENT CAREFULLY AND INDICATE YOUR ACCEPTANCE BY CLICKING THE ACCEPTANCE BOX. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD OR USE EXADEL SOFTWARE. CERTAIN CAPITALIZED TERMS ARE DEFINED IN SECTION 11.
1. LICENSE TERMS
(a) Evaluation Use. The terms of this Section 1(a) are applicable to you if you have registered on Exadel's website and downloaded a trial version of Exadel's software. Subject to the terms of this Agreement, Exadel grants to you a non-exclusive, non-transferable, license to use the evaluation version of the Software solely for Evaluation Use. Third party software products or modules supplied by Exadel, if any, may be used solely with the Software. Unless a different term is noted on Exadel's website at the time of download, this license limits you to fifteen (15) days usage to a limited set of Software functionality (the "Evaluation Limitation"). All rights not specifically granted to you herein are retained by Exadel.
(b) Development Use. The terms of this Section 1(b) are applicable to you if you have either downloaded a free version (that is not a trial version for Evaluation Use) or purchased a license of Exadel software. Subject to the terms of this Agreement, Exadel grants to you a non-exclusive, non-transferable, fee-bearing license to use the Software solely for Development Use for the number of users and the number of CPU's, Servers and/or at the Sites, as specified on Exadel's invoice. Third party software products or modules supplied by Exadel, if any, may be used solely with the Software. All rights not specifically granted to you herein are retained by Exadel.
(c) Restrictions on Use. Whether the Software is being licensed for Evaluation or Development Use, you may not reverse engineer, decompile, disassemble or otherwise attempt to determine source code or protocols from the Software or disclose the results of software performance benchmarks to any third party without Exadel's prior written consent. Additional restrictions, if any, with respect to third party software will be delivered to you along with your license key. You may not distribute, lease, rent, resell or sublicense Software (whether purchased or free) to any third party or co-worker, or otherwise use it except as permitted in this Agreement.
(d) Ownership Rights. You may modify the Software in accordance with the Documentation solely to allow for interoperability with your internal MIS system. Such modifications shall not be derivative works, nor shall you create or attempt to create any derivative works from the Software. Title, ownership rights and all intellectual property rights in and to the Software shall remain the sole and exclusive property of Exadel.
(e) Copies and Number of Users. The terms of this Section 1(e) are applicable to you if you are a Development Use customer. You may make a reasonable number of copies of the Software and Documentation (provided that all copyright and other proprietary notices of Exadel and its licensors are reproduced), solely for archival purposes. If you do copy for this purpose, you will preserve any proprietary rights notices on the Software and place such notices on any and all copies you made or make. If you would like to change the number of Users, or number or identity of Sites, CPU's and/or Servers indicated on your invoice, you must contact Exadel in writing for our approval; you may be subject to additional fees.
(f) Territory. The license grants hereunder are limited to use within the Territory.
(g) Exadel Visual Component Platform. The terms and conditions of this Section 1(g) are applicable if you have downloaded Exadel Visual Component Platform Software consisting of certain component libraries and related development tools (collectively, "Exadel VCP"), regardless of whether you have downloaded a trial version for Evaluation Use or a free or fee-based version for Development Use. This Section 1(g) is in addition to (not in lieu of) the other terms and conditions of this Agreement, all of which apply to use of Exadel VCP. However, if any term or condition of this Agreement conflicts with any portion of this Section 1(g), this Section 1(g) shall govern.
(i) Subject to compliance with other restrictions on your license (such as, but not limited to, the number of users), you may use Exadel VCP for internal development of applications and other products for internal use. You may not repackage, sell, distribute, sublicense, or otherwise transfer Exadel VCP or any of its components to, or otherwise permit the use of Exadel VCP or any of its components by, any third parties; provided, however, that if Exadel VCP component libraries are inherently incorporated into run-time applications for sale, distribution, or other transfer to, or use by, any third parties (collectively, "Distributed Products"), you must include with Distributed Products the Distribution License Agreement attached as Exhibit A hereto and you must secure and provide to Exadel the third party's verified and documented acceptance of the Distribution License Agreement before permitting the transferee to use the Distributed Product. Possession or use of Exadel VCP or any of its components by any third party who receives Exadel VCP or such components from you and who has not accepted the Exadel Distribution License Agreement constitutes your breach of this Agreement.
(ii) The only permitted Distributed Products are run-time applications that will not function properly without inherently incorporating Exadel VCP component libraries or portions thereof. Without limiting the foregoing, you may not sell, distribute, sublicense, otherwise transfer Exadel VCP development environments or development tools to any third parties, or otherwise permit the use of Exadel VCP development environments or development tools by any third parties.
2. LICENSE FEES.
(a) Payment and Taxes. If you are a Development Use customer, in consideration of the license granted pursuant to Section 1(b), you agree to pay Exadel the total non-refundable and non-cancelable license fee(s) within fifteen (15) days of Exadel's invoice. You will pay all sales, use, VAT and other consumption taxes, personal property taxes and other taxes (other than those based on Exadel's net income) unless you furnish Exadel with written proof of exemption. Exadel may assess interest charges of one percent (1%) per month for late payments.
(b) Foreign Taxes. If you download and/or use the Software outside the United States, you agree that the amounts to be remitted to Exadel are to be the actual amounts due without withholding taxes or other assessments by authorities anywhere in the foreign location, which withholding taxes or assessments you agree to pay. You will promptly furnish Exadel with certificates evidencing payment of such amounts.
3. SUPPORT SERVICES.
You must purchase annual Support Services from Exadel in order to qualify for and receive the Support Services. For information visit www.exadel.com.
(a) Support Services. Support Services generally means that Exadel will provide:
(i) Maintenance Updates and Upgrades ("Maintenance Releases") if, as and when Exadel makes any such Maintenance Releases generally available and
(ii) helpdesk assistance with respect to the Software, including
(a) clarification of functions and features;
(b) clarification of documentation;
(c) guidance in the operation of the Software; and
(d) Software error analysis.
Exadel will use reasonable efforts to provide error corrections or work-arounds for the most severe errors as soon as possible and based upon Exadel's classification of the severity of the error. Support Services will be provided only with respect to versions of the Software that, in accordance with Exadel policy, are then being supported by Exadel.
(b) Your Responsibilities. You agree to provide Exadel with reasonable access to your personnel and equipment, if necessary, during normal business hours in order to provide Support Services. You agree to document and promptly report all errors or malfunctions of the Software to Exadel. You agree to pay the Support Services fees when due, and if you do not do so within fifteen (15) days after any such amount becomes due, Exadel may suspend performance of its Support Services obligations.
4. LIMITED WARRANTY
(a) Limited Warranty. With respect to the Software licensed for Development Use, Exadel warrants that the Software will conform in all material respects to the Documentation for a period of ninety (90) days from the date of delivery of the Software. Exadel does not warrant that operation of the Software will be uninterrupted or "bug" free. If Exadel breaches the foregoing warranty and you promptly notify Exadel in writing of the nature of the breach, Exadel shall make commercially reasonable efforts to promptly repair or replace the non-conforming Software, without charge. If, after a reasonable opportunity to cure, Exadel does not repair or replace the non-conforming Software, you must return the Software and the Documentation to Exadel, or certify in writing that all copies have been destroyed, and Exadel will refund the fees it received for the Software to you. This is your sole and exclusive remedy for breach of the exclusive warranty set forth above
(b) Disclaimer. THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH WARRANTIES ARE HEREBY DISCLAIMED.
5. LIMITATION OF LIABILITY
(a) Evaluation Use. EVALUATION USE AND FREE SOFTWARE IS PROVIDED GRATUITOUSLY AND, THEREFORE, EXADEL AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY WHETHER IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) Development Use. With respect to Development Use (other than free versions, which are governed by Section 5(a), above), Exadel's aggregate liability to you for damages concerning performance or nonperformance by Exadel or in any way related to this Agreement, and regardless of whether the claim for such damages is based in contract, tort, strict liability of otherwise, shall not exceed the license fees received by Exadel for the affected Software for the twelve (12) month period preceding the occurrence of such liability. IN NO EVENT SHALL EXADEL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOST DATA OR LOST PROFITS, EVEN IF EXADEL HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES.
(c) Applicability. Some States do not permit disclaimers of certain warranties or limitations on certain types of liability under certain circumstances; consequently, some of the foregoing disclaimers and limitations may not be applicable to you, in whole or in part.
6. SOFTWARE CHANGES.
Exadel reserves the right at any time not to release or to discontinue release of any Software and to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the Software.
7. INDEMNIFICATION; OTHER REMEDIES.
(a) Indemnification. You agree to defend, indemnify, and hold Exadel harmless from and against any and all loss, damage, and costs, including reasonable attorneys' fees and costs, resulting from any claim, action, or demand resulting from your use of any Exadel software, including without limitation third party claims.
(b) Injunctive Relief. If an injunction is sought or obtained against your use of the Software as a result of a third party infringement claim, Exadel may, at its sole option and expense, (i) procure for you the right to continue using the affected Software, (ii) replace or modify the affected Software with functionally equivalent software so that it does not infringe, or, if either (i) of (ii) is not commercially feasible, (iii) terminate the licenses and refund the license fees received for the affected Software on a pro rata basis using a thirty six (36) month amortization schedule. Notwithstanding the foregoing, as stated above, Exadel makes no warranties as to non-infringement.
(c) Disclaimer of Liability. Exadel shall have no liability for any third party claim of infringement based upon (i) use of other than the then current, unaltered version of the applicable Software, unless the infringing portion is also in the then current, unaltered release; (ii) use, operation or combination of the applicable Software with non-Exadel programs, data, equipment or documentation if such infringement would have been avoided but for such use, operation or combination; or (iii) any third party software.
8. TERM AND TERMINATION.
(a) Acceptance of Agreement; Termination. This Agreement takes effect upon the earlier of (i) your electronic indication of your selection of the ACCEPTANCE button at the end of this License Agreement, (ii) your downloading of the Software, (iii) your use of the Software, or (iv) receipt by Exadel of a valid, binding purchase order, Agreement or other ordering document for the Software, and will remain in force until terminated in accordance with this Agreement. This Agreement may be terminated by you upon fifteen (15) days' prior written notice to Exadel or by destroying or returning to Exadel all copies and partial copies of the Software and Documentation under your control; provided that no such termination will entitle you to a refund of any portion of the License or Support Services Fees. Exadel may, by written notice to you, terminate this Agreement immediately if any of the following events occur: (a) you fail to pay any amount due to Exadel within fifteen (15) days after Exadel gives you written notice of such nonpayment; (b) you are in material breach of any non-monetary provision of this Agreement, which breach, if capable of being cured, is not cured within fifteen (15) days after Exadel gives you written notice thereof, or (c) you declare bankruptcy or make an assignment to or for the benefit of creditors.
(b) Survival. Upon termination of this Agreement for non-default, the provisions of Sections 1, 2, 4(b), 5, 7, 8, 10 and 11 will survive. Upon termination of this Agreement for default, the provisions of Sections 1(d), 1(e), 1(h), 2, 4(b), 5, 7, 8, 9, 10 and 11 will survive.
(c) Effect of Termination. Within fifteen (15) days after the date of termination or discontinuance of this Agreement for any reason whatsoever, you shall destroy the Software and all copies, in whole or in part, all Documentation relating thereto, and any other Exadel confidential information in your possession that is in tangible form.
9. UNITED STATES GOVERNMENT RIGHTS.
The Software provided under this Agreement is commercial computer software developed exclusively at private expense, and in all respects are proprietary data belonging solely to Exadel.
(a) Department of Defense End Users. 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 Section 227.7202 and its successors (48 C.F.R. 227.7202) the Government's right to use, reproduce or disclose the Software and any accompanying documentation acquired under this Agreement is subject to the restrictions of this Agreement.
(b) Civilian Agency End Users. If the Software is acquired by or on behalf of civilian agencies of the United States Government, then, pursuant to FAR Section 12.212 and its successors (48 C.F.R. 12.212), the Government's right to use, reproduce or disclose the Software acquired under this Agreement is subject to the restrictions of this Agreement.
10. MISCELLANEOUS.
(a) Force Majeure. Except for obligations to pay money, neither party shall be liable for any delay or failure in performance due to causes beyond its reasonable control.
(b) Export Compliance. You may not download or otherwise export or re-export the Software or any underlying information or technology except in full compliance with all United States and other applicable laws and regulations. In particular, but without limitation, none of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported (a) into (or to a national or resident of) Cuba, Iran, Iraq, Libya, North Korea, Syria, or Sudan, or (b) to anyone on the US Treasury Department's list of Specially Designated Nationals or the US Commerce Department's Table of Denial Orders. By licensing the Software, you are agreeing to the foregoing and you are representing and warranting that you are not located in, under control of, or a national or resident of any such country or on any such list.
(c) Assignment. You may not assign this Agreement, except to a successor in interest as the result of a merger or acquisition or sale of all or substantially all of your assets, without Exadel's prior written consent which will not be unreasonably withheld.
(d) Severability. If any part of this Agreement is held to be unenforceable, in whole or in part, such holding will not affect the validity of the other parts of the Agreement.
(e) Waiver. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
(f) Notices. All notices permitted or required under this Agreement shall be in writing and shall be delivered in person, by FAX, overnight courier service or mailed by first class, registered or certified mail, postage prepaid, to the address of the party specified as accepting these terms and conditions upon completion of the registration sheet and ACCEPTANCE of this Agreement by clicking on the ACCEPTANCE button.
(g) Governing Law and Venue. Notwithstanding the Territory, this Agreement will be governed by both the substantive and procedural laws of California, U.S.A., excluding its conflict of law rules. Any dispute regarding this Agreement will be heard in the state or federal courts having jurisdiction in Contra Costa County, California, U.S.A. and you agree that you shall be subject to the personal jurisdiction of such courts.
(h) Entire Agreement. Any amendment or modification to the Agreement must be in writing signed by both parties. This Agreement constitutes the entire agreement and supersedes all prior or contemporaneous oral or written agreements regarding the subject matter hereof. No terms, provisions or conditions of any purchase order, acknowledgment or other business form that you may use in connection with the licensing of the Software will have any effect on the rights, duties or obligations of the parties hereunder, or otherwise modify this Agreement, regardless of any failure of Exadel to object to such terms, provisions or conditions.
11. DEFINITIONS.
(a) "Development Use" means use of the Software by a Development Use customer to design, develop and/or test new applications for production.
(b) "Documentation" means Exadel's current user manuals, operating instructions and installation guides generally provided with the Software to its licensees.
(c) "Error" means a failure of the Software to conform to the specifications as set forth in the Documentation, resulting in the inability to use the Software or a material restriction in use of the Software.
(d) "Evaluation Use" means use of the Software solely for evaluation and trial for new applications intended for your production.
(e) "Maintenance Release" means a subsequent version of the Software that includes Updates and/or Upgrades.
(f) "Server" means a single computer processor capable of executing the Software.
(g) "Site" means the specific, physical location of a Server, as set forth on your registration form.
(h) "Software" means the object code versions, extracts and/or derivative works of the software electronically downloaded from Exadel's website upon acceptance of this Agreement, and the related Documentation, including Maintenance Releases provided pursuant to the standard Support Services Terms and Conditions.
(i) "Support Services" means technical support for Software under Exadel's then current policies.
(j) "Support Services Term" means the first year after the Effective Date of the applicable Software License Agreement and the related Order, plus any respective renewal terms.
(k) "Territory" means the geographical territory into which you download the Software or indicate acceptance of this Agreement.
(l) "Update" means either a Software modification or addition that, when made or added to the Software, corrects the Error, or a procedure or routine that, when observed in the regular operation of the Software, eliminates the practical adverse effect of the Error on customer.
(m) "Upgrade" means a revision of the Software released by Exadel to its end user customers generally, during the Support Services Term, to add new and different functions or to increase the capacity of the Software. Upgrade does not include the release of a new product or added features for which there may be a separate charge. If a question arises as to whether a new product offering is an Upgrade or a new product or feature, Exadel's opinion will prevail, provided that Exadel treats the product offering as a new product or feature for its end user customers generally.
Exadel End User Clickwrap 04.21.05 Copyright (c) Exadel Inc. All Rights Reserved.
ATTACHMENT A
TO EXADEL END USER LICENSE AGREEMENT
DISTRIBUTION LICENSE AGREEMENT
You have acquired an application or other software or device ("Software") that includes software and/or data licensed from Exadel, Inc., a California corporation ("Exadel") to __________________________________ ("Seller"). The software and/or data originating from Exadel, as well as associated media, printed materials, and "online" or electronic documentation (collectively, "Exadel Products") are protected by intellectual property laws and treaties and are subject to the terms and conditions of this End User License Agreement ("EULA"). All rights reserved. The terms and conditions of this EULA are in addition to and not in lieu of the terms and conditions of any other permissions, agreements or restrictions applicable to Software. In the event of any conflict between this EULA and any such permissions, agreements or restrictions, this EULA shall govern.
IF YOU DO NOT AGREE WITH AND ACCEPT THIS EULA, DO NOT USE THE SOFTWARE OR THE EXADEL PRODUCTS AND DO NOT COPY THE EXADEL SOFTWARE. INSTEAD, PROMPTLY CONTACT THE SELLER FOR INSTRUCTIONS ON RETURN OF THE UNUSED SOFTWARE. ANY USE OF EXADEL PRODUCTS OR SOFTWARE WHICH INCLUDES EXADEL PRODUCTS WILL CONSTITUTE YOUR AGREEMENT WITH AND ACCEPTANCE OF THIS EULA (OR RATIFICATION OF ANY PREVIOUS CONSENT).
GRANT OF LIMITED LICENSE. You may use Exadel Products solely in connection with valid, internal use of the Software. Without the prior written consent of Exadel (which consent may be withheld, conditioned, or delayed by Exadel for any reason and in any manner in its sole and absolute discretion) you may not (1) use Exadel Products or Software for development or further modification, (2) sell, distribute, sublicense, or otherwise transfer Exadel Products or Software containing Exadel Products to any third party; or (3) otherwise permit the use of Exadel Products or Software containing Exadel Products by any third party. Without limiting the foregoing, Exadel's consent may be conditioned upon requirement of payment of additional license, distribution, or other fees to Exadel. Should you wish to obtain Exadel's consent, please visit www.exadel.com for contact information or call 1-888-439-2335.
NOT FAULT TOLERANT. THE EXADEL PRODUCTS ARE NOT FAULT TOLERANT. SELLER HAS INDEPENDENTLY DETERMINED HOW TO USE THE EXADEL PRODUCTS IN THE SOFTWARE, AND EXADEL HAS RELIED UPON SELLER TO CONDUCT SUFFICIENT TESTING TO DETERMINE THAT THE EXADEL PRODUCTS ARE SUITABLE FOR SUCH USE.
NO WARRANTIES FROM EXADEL. THE SOFTWARE AND EXADEL PRODUCTS ARE PROVIDED "AS IS" AND WITH ALL FAULTS WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND FROM EXADEL. BY USING SOFTWARE AND EXADEL PRODUCTS YOU ASSUME THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT (INCLUDING LACK OF NEGLIGENCE). WITHOUT LIMITING THE FOREGOING, EXADEL HEREBY DISCLAIMS ANY AND ALL EXPRESS AND IMPLIED REPRESENTATIONS AND WARRANTIES WITH RESPECT TO SOFTWARE AND EXADEL PRODUCTS, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, AND THAT THE SOFTWARE AND EXADEL PRODUCTS DO NOT INFRINGE ON THIRD PARTY RIGHTS OR ARE BUG-FREE. IF YOU HAVE RECEIVED ANY REPRESENTATIONS OR WARRANTIES REGARDING THE SOFTWARE OR EXADEL PRODUCTS, THOSE REPRESENTATIONS AND WARRANTIES DID NOT ORIGINATE FROM AND ARE NOT BINDING ON EXADEL.
No Liability for Certain Damages. EXCEPT AS PROHIBITED BY LAW, EXADEL SHALL HAVE NO LIABILITY FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS) ARISING FROM OR IN CONNECTION WITH THE USE OR PERFORMANCE OF SOFTWARE OR EXADEL PRODUCTS. THIS LIMITATION SHALL APPLY EVEN IF EXADEL IS AWARE OF POTENTIAL LIABILITY AND IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL EXADEL BE LIABLE FOR ANY AMOUNT IN EXCESS OF U.S. TWO HUNDRED FIFTY DOLLARS (U.S. $250.00).
LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION, AND DISASSEMBLY. You may not reverse engineer, decompile, or disassemble any Exadel Products or Software containing Exadel Products or otherwise attempt to determine source code or protocols except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
GOVERNING LAW. This Agreement and your use of Exadel Products is governed by the laws of the State of California, as if you are a resident of California, and without application of rules favoring the party who drafted this Agreement. Jurisdiction and venue for any and all actions arising from this Agreement or the use of Exadel Products shall be in the appropriate state or federal court in Contra Costa County, California. You hereby consent to the jurisdiction of such courts.
|
