LICENSING INFO
SOFTWARE LICENSE AGREEMENT
This Software License Agreement (“License Agreement”) are entered into by and between ZSHUTTR a California based corporation (“Company”) and licensee (“Customer”), for the licensing of software pursuant to the Purchase Agreement.
1.0 DEFINITIONS
1.1 Documentation is user manuals, training materials, descriptions and specifications, technical manuals, license agreements, supporting materials and other information relating to the License offered by Company, whether distributed in print, or digital format.
1.2 Effective Date is the date this License Agreement is click-accepted or, if signed in hard copy by Customer, the date of last signature, or in the absence of any of the forgoing, these License Agreement shall be effective from the date an order is placed by Customer.
1.3 Purchase Agreement are the terms set forth on the web-portal and checkout cart agreed to by the Customer and the Company for the purchase of a License provided under this License Agreement.
1.5 Software is the most recent version at the time of the Effective Date of the Company’s programs listed from time to time in the Purchase Agreement and made available by Company for license to Customer including necessary access codes, and any copies made, bug fixes for, updates to, or upgrades thereof.
2.0 SCOPE
These License Agreement set forth the terms and conditions for Customer’s purchase the License solely for Customer’s internal business use. Customer shall not resell to, make available for use by, or otherwise transfer title to any License to, any end user or other third party, including any reseller, without the exclusive written permission of the Company.
3.0 PRICES
3.1 Prices for the License shall be those specified in Company’s then current Purchase Agreement, less any applicable discount at the time of acceptance of the Purchase Agreement by Company, or in accordance with an applicable, valid written price quotation, if any, submitted by Company to Customer for such License.
3.2 All prices are exclusive of any taxes, fees and duties or other similar amounts, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon these License Agreement. Customer shall pay any taxes related to the License provided pursuant to these License Agreement (except for taxes based on Company’s revenue income) or shall present an exemption certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice.
4.0 ORDERS
4.1 Customer shall purchase the License by issuing a Purchase Agreement agreed to by Customer. No contingency contained on any Purchase Agreement shall be binding upon Company. The terms of this License Agreement shall apply, regardless of any additional or conflicting terms on any Purchase Agreement or other correspondence or documentation submitted by Customer to Company, and any such additional or conflicting terms are deemed rejected by Company.
4.2 Company shall use commercially reasonable efforts to provide order acknowledgement information within ten (10) business days of receipt for Purchase Agreements placed by any other method. Upon and subject to credit approval, where applicable, by Company following Company’s receipt of any Purchase Agreement, Company will review and accept or decline any or all Purchase Agreements for the Company entity that will supply the License, and no other person is authorized to accept Purchase Agreements on behalf of Company. Company may accept a Purchase Agreement even if some of the information required by Section 4.1 above is missing or incomplete.
4.3 Customer agrees to be bound to the terms of the Purchase Agreement and shall comply with all terms therein including, but not limited to the limited use of the License as set forth therein. Company shall maintain the right to audit Customer regarding the use of the licensed software and to ensure that the use complies with the terms and conditions set forth in this Agreement or the Purchase Agreement. Company shall have the right to conduct an audit once every twelve months at its own costs. Company shall provide Customer with notice five business days prior to the audit. Customer agrees to assist Company with the audit to the best of its ability. Upon finding any breaches to this agreement Customer shall have the right to remedy the breach within 30 days.
5.0 PAYMENT
Upon and subject to approval by Company, payment terms shall be made at the time of the transaction. Any delays will preclude the transfer of the License to Customer.
6.0 PROPRIETARY RIGHTS AND SOFTWARE LICENSING
6.1 Subject to the terms contained in Company’s End User License Agreement (“EULA”), Company grants to Customer a non-exclusive, non-transferable license to use the Software and Documentation for Customer’s internal use. Any resale of Software or Documentation to any person or entity is expressly prohibited. Customer may not sublicense, to any person or entity, any rights to distribute the Software or Documentation. Customer agrees to share the EULA with each user of the Software and Services.
6.2 Customer shall notify any user of the Software of the requirements included in this License Agreement prior to installation of the Software. Customer shall notify Company promptly of any breach or suspected breach of this License Agreement and further agrees that it will, at Company’s request, assist Company in efforts to preserve Company’s intellectual property rights including pursuing an action against any breaching third parties.
6.3 Licensee Agrees that it shall not: (1) modify, adapt, translate, sublicense, rent, lease, or loan all or any portion of the Licensed Software or Documentation; (2) create any derivative works from all or any portion of the Licensed Software or Documentation; (3) not reverse-engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Licensed Software except: only to the extent expressly permitted by applicable law; after notification to Company; upon payment of a reasonable fee; and execution of a confidentiality agreement to protect the code from disclosure to any third parties; (4) use the Licensed Software in the essential operations, such as those operations that could jeopardize the safety of individuals, 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; (5) remove or obscure Company’s copyright or trademark notices, or the copyright and trademark notices of third parties that Company has included in the Licensed Software or Documentation; and (6) use the Licensed Software to host applications for third parties, as part of a facility management, timesharing, service provider, or service bureau arrangement.
7.0 WARRANTY
7.1 All contributions, and Licensed Software are provided “AS IS” and “AS AVAILABLE,” without warranty or conditions of any kind. Company cannot guarantee and does not promise any specific results from use of the Licensed Software. No advice or information, whether oral or written, obtained shall create any warranty not expressly stated in this agreement. Company makes no warranties or representations about the accuracy, reliability, timeliness or completeness of the Licensed Software. Company also assumes no liability or responsibility for any (a) errors, mistakes or inaccuracies of content and materials, or (b) any bugs or features in the Licensed Software or due to third party technology.
8.0 CONFIDENTIAL INFORMATION
8.1 “Confidential Information” to be disclosed by Customer under these License Agreement is information regarding Customer's network operations and technical plans and marketing and financial data, and “Confidential Information” to be disclosed by Company under these License Agreement is information regarding Company’s License, technical, financial, and marketing data, information relating to future License and service development, and some information posted on the Company’s website.
8.2 The receiving party ("Receiving Party") may use the Confidential Information solely for the purpose of furtherance of the business relationship between the parties, as provided in these License Agreement and shall not disclose the Confidential Information to any third party, other than to employees of the Receiving Party who have a need to have access to and knowledge of the Confidential Information, solely for the purpose authorized above. Notwithstanding the foregoing, when Company is the Receiving Party, it may disclose Confidential Information to any employee of Company directly and indirectly wholly owned subsidiaries who have a need to have access to or knowledge of the Confidential Information. Each party shall take appropriate measures by instruction and agreement prior to disclosure to such employees to assure against unauthorized use or disclosure. Information (other than that on Company’s public website) disclosed by the disclosing party (“Disclosing Party”) in written or other tangible form will be considered Confidential Information only if such information is conspicuously designated as “Confidential,” “Proprietary” or bears a similar legend. Information disclosed orally shall be considered Confidential Information only if: (i) identified as confidential, proprietary or the like at the time of disclosure, and (ii) confirmed as confidential, proprietary or the like in writing within thirty (30) days of disclosure. Confidential Information disclosed to the Receiving Party by any affiliates or agent of the Disclosing Party is subject to these License Agreement.
8.3 The Receiving Party shall have no obligation with respect to information that (i) was rightfully in possession of the Receiving Party without any obligation of confidentiality prior to receiving it from the Disclosing Party; (ii) is, or subsequently becomes, legally and publicly available without breach of these License Agreement; (iii) is rightfully obtained by the Receiving Party from a source other than the Disclosing Party without any obligation of confidentiality; (iv) is developed by or for the Receiving Party without use of the Confidential Information and such independent development can be shown by documentary evidence; or (v) is disclosed by the Receiving Party pursuant to and in accordance with a valid order issued by a court or government agency, provided that the Receiving Party provides (a) prior written notice to the Disclosing Party of such order and (b) the Disclosing Party prior opportunity to oppose or restrict such disclosure. Upon written demand by the Disclosing Party, the Receiving Party shall: (i) cease using the Confidential Information, (ii) return the Confidential Information and all copies, notes or extracts thereof to the Disclosing Party within seven (7) days of receipt of demand, and (iii) upon request of the Disclosing Party, certify in writing that the Receiving Party has complied with the obligations set forth in this paragraph.
8.4 Each party shall retain all right, title and interest to such party’s Confidential Information. No license to any intellectual property (or application for intellectual property protection) is either granted or implied by the conveying of Confidential Information. The Receiving Party shall not reverse-engineer, decompile, or disassemble any software disclosed to it and shall not remove, overprint or deface any notice of copyright or confidentiality, trademark, logo, legend, or other notices of ownership from any originals or copies of Confidential Information it obtains from the Disclosing Party or from any copies the Disclosing Party is authorized to make.
8.5 Neither party shall disclose, advertise, or publish either the existence, the subject matter, any discussions relating to, or any of the terms and conditions, of these License Agreement (or any summary of any of the forgoing) to any third party without the prior written consent of the other party. Either party may provide press releases, publications, advertisements or public disclosures regarding the business relationship between parties. Each party grants a limited right to the use of any logos of each party for the exclusive use of marketing and advertising.
9.0 PATENT, COPYRIGHT AND TRADEMARK INFRINGEMENT
INDEMNIFICATION
9.1 Claims. Company will defend any claim against Customer that a Company License provided under this Agreement infringes third party patents, copyrights or registered trademarks (the “Claim”) and will indemnify Customer against the final judgment entered by a court of competent jurisdiction or any settlements arising out of a Claim.
9.2 Customer shall:
(a) promptly notify Company in writing of the Claim (or threat thereof), and any subsequent litigation updates; and
(b) cooperate with Company in the defense of the Claim (including any statements to third parties regarding the Claim), and grant Company full and exclusive control of the defense and settlement of the Claim and any subsequent appeal.
If Customer fails to notify Company promptly of the Claim, and that failure prejudices Company’s ability to defend, settle or respond to the Claim, then Company’s obligation to defend or indemnify Customer with respect to that Claim will be reduced to the extent Company has been prejudiced. In addition, such failure to provide prompt notification shall relieve Company of any obligation to reimburse for Customer attorneys’ fees incurred prior to notification.
9.3 Additional Remedies. If a Claim is made or appears likely, Customer agrees to permit Company to procure for Customer the right to continue using the Company License, or to replace or modify the Company License with one that is at least functionally equivalent. If Company determines that none of those alternatives is reasonably available, then Customer will return the Company License and Company will refund Customer’s remaining net book value of the Company License calculated according to generally accepted accounting principles.
9.4 Exclusions. Company has no obligation for any Claim based on:
(a) compliance with any designs, specifications, requirements or instructions provided by Customer or a third party on Customer’s behalf;
(b) modification of a Company-Branded License by Customer or a third party; or
(c) the amount or duration of use made of the Company-Branded License, revenue earned by Customer or services offered by Customer to external or internal customers;.
9.5 Sole and Exclusive Remedy. This Section states Company’s entire obligation and Customer’s exclusive remedy regarding any claims for intellectual property infringement.
10.0 TERMINATION
The term of this license shall continue until such time as Customer halts all use of the Software or upon breach of this License Agreement. The warranty shall continue for such time as indicated in the Purchase Agreement. If Customer breaches this License Agreement, and fails to cure any breach within 30 calendar days after request from Company, or its authorized representative, Company may terminate this agreement and EULA attached as Exhibit B, whereupon all rights granted under this License Agreement shall immediately cease including any rights to the warranty. Furthermore, upon termination, Customer shall uninstall all copies of the Software, return to Company all copies Software, if any, and verify in writing that all copies of the Software have been destroyed.
11.0 COMPLIANCE WITH LAWS
11.1 Company expects and requires that all of its employees, contractors, agents, and other parties with whom Company does business (“Company Partners”), act at all times in a professional and ethical manner in carrying out their services and contractual obligations to Company, or on Company’s behalf to a Company customer or other third party. To that end, all Company Partners shall:
(a) Comply with all federal, state and local laws, ordinances, codes, regulations, rules, policies and procedures (“Applicable Laws”).
(b) Upon request, Company’s Partners may be required to have their own subcontractors, consultants, agents or representatives execute a similar written anti-corruption compliance statement, and to confirm to Company that such action has been taken laws;
(c) In no event shall Company be obligated under any supplier or third party agreement to take any action or omit to take any action that Company believes, in good faith, would cause it to be in violation of the FCPA or other Applicable Laws;
(d) Customer may purchase Software for the purposes of medical or healthcare related activities. Certain regulations regarding the Health Insurance Portability and Accountability Act of 1996 (known as “HIPAA”) may apply to the work performed by Customer. Company does not warrant that this Software complies with HIPAA. Customer bears its own responsibility and obligations to ensure its internal systems comply with HIPAA regulations, if any apply.
(e) Company retains the right to suspend or terminate any Company Partner agreement immediately upon written notice if Company believes, in good faith, that such Company Partner has breached any elements of this policy, or if the Partner makes a false or fraudulent statement, representation or warranty while carrying out their contractual obligations;
12.0 LIMITATION AND EXCLUSION OF LIABILITY GENERAL INDEMNIFICATION
12.1 IN NO EVENT WILL COMPANY 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. THESE LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW. THE AGGREGATE LIABILITY OF COMPANY SHALL BE LIMITED TO THE AMOUNT PAID FOR THE LICENSED SOFTWARE, IF ANY.
12.2 Subject to Section 9, To the maximum extent permitted by law, Customer shall defend Company and its affiliates, directors, officers, employees and agents against any third party claim, demand, or allegation arising out of a breach, or alleged breach of the Indemnifying Party’s representations and warranties under this agreement (“Claim”), and indemnify and hold harmless the Company from any resulting costs, expenses and liabilities (including reasonable attorneys’ fees), including, without limitation, any damages awarded against the Company to the third party making such Claim, by a court of competent jurisdiction, or agreed to in settlement; provided that the Company: (i) notify Customer promptly in writing of such claim, (ii) grants Customer sole control over the defense and settlement thereof, and (iii) reasonably cooperates in response to a Customer’s request for assistance. Customer will have the exclusive right to defend any such Claim and make settlements thereof at its own discretion, provided that the Indemnifying Party will not enter into any settlement that adversely affects the Company without prior written consent, which consent shall not be unreasonably withheld, delayed or conditioned.
13.0 GENERAL
13.1 Governing Law. This License Agreement is subject to, and will be governed by and construed in accordance with the substantive laws in force of the State of California. Unless prohibited by law of an applicable jurisdiction, the courts of the State of California shall have exclusive jurisdiction over all disputes relating to this License Agreement. This 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.
13.2 Force Majeure. Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including, without limitation, acts of God, earthquakes, labor disputes, industry-wide shortages of supplies, actions of governmental entities, riots, war, terrorism, fire, or delays of common carriers or other circumstances beyond its reasonable control. The obligations and rights of the defaulting party shall be extended for a period equal to the period during which such event prevented such party’s performance.
13.3 No Waiver. No failure or delay by Company 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 Company shall operate as a waiver or preclude any other, or further, exercise of that, or any other right, or remedy.
13.4 Assignment. Neither this License Agreement nor any rights or obligations under these License Agreement shall be assigned by a party without the other’s prior written consent, which will not be unreasonably withheld or delayed. Any attempted assignment shall be void and of no effect. Notwithstanding the foregoing, the parties may assign these License Agreement and any right or obligation under it without the other’s approval, to any affiliates. Notwithstanding any assignment by Customer, Customer shall remain liable for the payment of all amounts due under these License Agreement.
13.5 Severability. In the event that part of or one or more terms of these License Agreement become or are declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, each such part or term shall be null and void and shall be deemed deleted from these License Agreement. All remaining terms of this License Agreement shall remain in full force and effect. Notwithstanding the foregoing, if this paragraph is invoked and, as a result, the value of these License Agreement is materially impaired for either party, as determined by such party in its sole discretion, then the affected party may terminate these License Agreement by written notice with immediate effect to the other.
13.6 No Agency. These License Agreement do not create any agency, partnership, joint venture, or franchise relationship. No employee of either party shall be or become, or shall be deemed to be or become, an employee of the other party by virtue of the existence or implementation of these License Agreement. Each party hereto is an independent contractor. Neither party shall assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.
13.7 Entire Agreement. These License Agreement constitute the entire agreement between the parties concerning the subject matter of this License Agreement and replace any prior oral or written communications between the parties, all of which are excluded. There are no conditions, understandings, agreements, representations or warranties, expressed or implied, that are not specified herein (except where implied by law and exclusion is prohibited). This License Agreement may be modified only by a written document executed by the parties hereto.
13.8 Export Restrictions. Licensee shall not ship, transfer, or export Licensed Software into any country or use Licensed Software in any manner prohibited by any act or any export laws, restrictions, or regulations (collectively the “Export Laws.”) Because 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, a citizen, or an entity, embargoed by the United States, 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.
13.9 Notices. All notices required or permitted under these License Agreement will be in writing and will be deemed given one (1) day after deposit with a commercial express courier specifying next day deliver, with written verification of receipt or, if sent by email, by receiving non-automated confirmation of receipt of the email. All communications will be sent to the addresses set forth on the first page of this License Agreement, (and notices to Company shall be further addressed to the Office of the General Counsel, Attn: Contract Notice) or such other address as may be designated by a party by giving written notice to the other party pursuant to this paragraph, or, in the absence of such an address from Customer, to the address to which the last invoice under these License Agreement was sent before notice is served. Notwithstanding the foregoing, notices regarding changes in pricing, Software license terms, policies or programs may be by posting on Company’s website or by e-mail or fax.
END USER’S LICENSE AGREEMENT
The software that is subject to this End User’s License Agreement (EULA) is licensed, not sold, to the Licensee by ZSHUTTR (“Company”).
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.
CONTENTS
The “Licensed Software” includes all of the contents of the files, downloads, other media for which this EULA is provided, including:
(1)third-party computer information or software that Company 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 and/or mobile device. If Licensed Software includes multiple licenses, Licensee may install the number of copies licensed to Licensee by Company. Licensee shall be solely responsible for all expenses incurred in Licensee’s installation of the Licensed Software.
ACTIVATION
The Licensed Software may contain 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.
TRANSFER
Licensee may not sell, assign, or transfer the Licensed Software or the License granted by this EULA without prior written consent of Company.
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 Licensed Software except: only to the extent expressly permitted by applicable law; after notification to Company; 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 the Licensed Software in the essential operations, such as those operations that could jeopardize the safety of individuals, 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;
(5)Licensee may not remove or obscure Company’s copyright or trademark notices, or the copyright and trademark notices of third parties that Company has included in the Licensed Software or Documentation;
(6)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
(7)Licensee may not use the Licensed Software in any manner not authorized by this EULA.
CONTENT
Licensee may use any images, icons, fonts, shapes, and all other graphic content (collectively, “Content”) included with the Licensed Software, if any, for the exclusive purposes of referring to the Licensed Software for educational or informative purposes so long as the Licensee provides appropriate references to Company and its ownership of the Licensed Software.
Certain portions of the Content may consist of the copyrights, trademarks, service marks, trade names, or other intellectual property of third parties. Company has provided these portions of the Content for Licensees’ convenience in using the Licensed Software, pursuant to authorization of their owners. Except for this limited use, Licensee may not use any third-party intellectual property identified as belonging to others without the owners’ express authorization.
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, Company strongly encourages Licensee to seek competent legal counsel. Company will not assist Licensee in making this determination, nor can Company 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, Company asks Licensee to correctly designate Company’s trademark(s) when referring to the Licensed Software in the notice or copyright portion of Licensee’s paper, project, or product.
Licensee shall indemnify, hold harmless, and defend Company and Company’s suppliers from all claims, damages, attorneys’ fees, costs, and lawsuits that arise from, or result from, Licensee’s use or distribution of Content.
CONTENT UPDATES
Company provides updates to the content and documentation of some of its software from time to time. These types of updates are collectively referred to as “Content Updates.” Company reserves the right to designate specified Content Updates as requiring purchase of a separate subscription at any time, and without prior notice to Licensee, except that any such change will only become effective at the earlier of the expiration of the initial period provided for by the applicable software, or the expiration of the term of a separately paid for subscription.
Company reserves the right to update the contents of the EULA in connection with updates to the Software from time to time. Company shall provide notice of any updates and continued use of the updated Software shall consist of acceptance of the terms of the updated EULA. Use of pervious versions of the Software will not subject users to the terms of the updated EULA.
SUPPORT
Company is not obligated by this EULA to provide Licensee with any technical support services relating to the License.
NO WARRANTY ON LICENSED SOFTWARE
Except for as provided for in the License Agreement, the Licensed Software is provided to Licensee “AS IS.” Company’s suppliers, make no warranty as to its use or performance. COMPANY 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. COMPANY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES OR INACCURACIES OF CONTENT AND MATERIALS, OR (B) ANY BUGS OR FEATURES IN THE LICENSED SOFTWARE OR DUE TO THIRD PARTY TECHNOLOGY.
LIMITATION OF LIABILITY
EXCEPT FOR AS PROVIDED IN THE LICENSE AGREEMENT, IN NO EVENT WILL COMPANY 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 COMPANY 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 COMPANY SHALL BE LIMITED TO THE AMOUNT PAID FOR THE LICENSED SOFTWARE, FOR THE TWELVE MONTHS PRIOR TO THE CLAIM OR IF NO PAYMENTS HAVE BEEN MADE IN TWELVE MONTHS, THE AMOUNT PAID FOR THE SOFTWARE ON THE INITIAL PURCHASE ORDER, IF ANY.
SURVIVAL OF DISCLAIMERS
The exclusions of warranties and liability limitations shall survive the termination of this EULA, howsoever 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 any act or any export laws, restrictions, or regulations (collectively the “Export Laws”). Because 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 nation, a citizen located within a nation, an individual, or an entity, embargoed by the United States, 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 State of California which shall have exclusive jurisdiction over any disputes except in matters of conflict of laws.
INTELLECTUAL PROPERTY OWNERSHIP
The Licensed Software and any authorized copies that Licensee makes are the intellectual property of, and are owned by, Company, and by third parties whose intellectual property has been licensed by Company. The structure, organization, and code of the Licensed Software are the valuable trade secrets and confidential information of Company and such third parties. The Licensed Software is protected by law, including without limitation, United States or international copyright laws, 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
Company reserves all rights not expressly granted to Licensee by this EULA. The reservation of rights is limited to Company’s intellectual property rights and to the intellectual property rights of third parties licensed by Company.
COMPLETE AGREEMENT
This EULA in conjunction with the the Licensed Software and the License Agreement, supersedes all prior or contemporaneous representations, discussions, undertakings, communications, agreements, arrangements, advertisements, and understandings regulating the Licensed Software.
MODIFICATION
This EULA may only be modified or amended by a writing signed by an authorized officer of Company.
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 Company 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 Company 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 Company, or Company’s 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 Company, Company may terminate this EULA, whereupon all rights granted to Licensee shall immediately cease. Furthermore, upon termination, Licensee shall return to Company all copies of the Licensed Software, or verify in writing that all copies of the Licensed Software have been destroyed and Licensee shall not receive a refund.
This Software License Agreement (“License Agreement”) are entered into by and between ZSHUTTR a California based corporation (“Company”) and licensee (“Customer”), for the licensing of software pursuant to the Purchase Agreement.
1.0 DEFINITIONS
1.1 Documentation is user manuals, training materials, descriptions and specifications, technical manuals, license agreements, supporting materials and other information relating to the License offered by Company, whether distributed in print, or digital format.
1.2 Effective Date is the date this License Agreement is click-accepted or, if signed in hard copy by Customer, the date of last signature, or in the absence of any of the forgoing, these License Agreement shall be effective from the date an order is placed by Customer.
1.3 Purchase Agreement are the terms set forth on the web-portal and checkout cart agreed to by the Customer and the Company for the purchase of a License provided under this License Agreement.
1.5 Software is the most recent version at the time of the Effective Date of the Company’s programs listed from time to time in the Purchase Agreement and made available by Company for license to Customer including necessary access codes, and any copies made, bug fixes for, updates to, or upgrades thereof.
2.0 SCOPE
These License Agreement set forth the terms and conditions for Customer’s purchase the License solely for Customer’s internal business use. Customer shall not resell to, make available for use by, or otherwise transfer title to any License to, any end user or other third party, including any reseller, without the exclusive written permission of the Company.
3.0 PRICES
3.1 Prices for the License shall be those specified in Company’s then current Purchase Agreement, less any applicable discount at the time of acceptance of the Purchase Agreement by Company, or in accordance with an applicable, valid written price quotation, if any, submitted by Company to Customer for such License.
3.2 All prices are exclusive of any taxes, fees and duties or other similar amounts, however designated, including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon these License Agreement. Customer shall pay any taxes related to the License provided pursuant to these License Agreement (except for taxes based on Company’s revenue income) or shall present an exemption certificate acceptable to all relevant taxing authorities. Applicable taxes shall, to the extent practical, be billed as a separate item on the invoice.
4.0 ORDERS
4.1 Customer shall purchase the License by issuing a Purchase Agreement agreed to by Customer. No contingency contained on any Purchase Agreement shall be binding upon Company. The terms of this License Agreement shall apply, regardless of any additional or conflicting terms on any Purchase Agreement or other correspondence or documentation submitted by Customer to Company, and any such additional or conflicting terms are deemed rejected by Company.
4.2 Company shall use commercially reasonable efforts to provide order acknowledgement information within ten (10) business days of receipt for Purchase Agreements placed by any other method. Upon and subject to credit approval, where applicable, by Company following Company’s receipt of any Purchase Agreement, Company will review and accept or decline any or all Purchase Agreements for the Company entity that will supply the License, and no other person is authorized to accept Purchase Agreements on behalf of Company. Company may accept a Purchase Agreement even if some of the information required by Section 4.1 above is missing or incomplete.
4.3 Customer agrees to be bound to the terms of the Purchase Agreement and shall comply with all terms therein including, but not limited to the limited use of the License as set forth therein. Company shall maintain the right to audit Customer regarding the use of the licensed software and to ensure that the use complies with the terms and conditions set forth in this Agreement or the Purchase Agreement. Company shall have the right to conduct an audit once every twelve months at its own costs. Company shall provide Customer with notice five business days prior to the audit. Customer agrees to assist Company with the audit to the best of its ability. Upon finding any breaches to this agreement Customer shall have the right to remedy the breach within 30 days.
5.0 PAYMENT
Upon and subject to approval by Company, payment terms shall be made at the time of the transaction. Any delays will preclude the transfer of the License to Customer.
6.0 PROPRIETARY RIGHTS AND SOFTWARE LICENSING
6.1 Subject to the terms contained in Company’s End User License Agreement (“EULA”), Company grants to Customer a non-exclusive, non-transferable license to use the Software and Documentation for Customer’s internal use. Any resale of Software or Documentation to any person or entity is expressly prohibited. Customer may not sublicense, to any person or entity, any rights to distribute the Software or Documentation. Customer agrees to share the EULA with each user of the Software and Services.
6.2 Customer shall notify any user of the Software of the requirements included in this License Agreement prior to installation of the Software. Customer shall notify Company promptly of any breach or suspected breach of this License Agreement and further agrees that it will, at Company’s request, assist Company in efforts to preserve Company’s intellectual property rights including pursuing an action against any breaching third parties.
6.3 Licensee Agrees that it shall not: (1) modify, adapt, translate, sublicense, rent, lease, or loan all or any portion of the Licensed Software or Documentation; (2) create any derivative works from all or any portion of the Licensed Software or Documentation; (3) not reverse-engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Licensed Software except: only to the extent expressly permitted by applicable law; after notification to Company; upon payment of a reasonable fee; and execution of a confidentiality agreement to protect the code from disclosure to any third parties; (4) use the Licensed Software in the essential operations, such as those operations that could jeopardize the safety of individuals, 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; (5) remove or obscure Company’s copyright or trademark notices, or the copyright and trademark notices of third parties that Company has included in the Licensed Software or Documentation; and (6) use the Licensed Software to host applications for third parties, as part of a facility management, timesharing, service provider, or service bureau arrangement.
7.0 WARRANTY
7.1 All contributions, and Licensed Software are provided “AS IS” and “AS AVAILABLE,” without warranty or conditions of any kind. Company cannot guarantee and does not promise any specific results from use of the Licensed Software. No advice or information, whether oral or written, obtained shall create any warranty not expressly stated in this agreement. Company makes no warranties or representations about the accuracy, reliability, timeliness or completeness of the Licensed Software. Company also assumes no liability or responsibility for any (a) errors, mistakes or inaccuracies of content and materials, or (b) any bugs or features in the Licensed Software or due to third party technology.
8.0 CONFIDENTIAL INFORMATION
8.1 “Confidential Information” to be disclosed by Customer under these License Agreement is information regarding Customer's network operations and technical plans and marketing and financial data, and “Confidential Information” to be disclosed by Company under these License Agreement is information regarding Company’s License, technical, financial, and marketing data, information relating to future License and service development, and some information posted on the Company’s website.
8.2 The receiving party ("Receiving Party") may use the Confidential Information solely for the purpose of furtherance of the business relationship between the parties, as provided in these License Agreement and shall not disclose the Confidential Information to any third party, other than to employees of the Receiving Party who have a need to have access to and knowledge of the Confidential Information, solely for the purpose authorized above. Notwithstanding the foregoing, when Company is the Receiving Party, it may disclose Confidential Information to any employee of Company directly and indirectly wholly owned subsidiaries who have a need to have access to or knowledge of the Confidential Information. Each party shall take appropriate measures by instruction and agreement prior to disclosure to such employees to assure against unauthorized use or disclosure. Information (other than that on Company’s public website) disclosed by the disclosing party (“Disclosing Party”) in written or other tangible form will be considered Confidential Information only if such information is conspicuously designated as “Confidential,” “Proprietary” or bears a similar legend. Information disclosed orally shall be considered Confidential Information only if: (i) identified as confidential, proprietary or the like at the time of disclosure, and (ii) confirmed as confidential, proprietary or the like in writing within thirty (30) days of disclosure. Confidential Information disclosed to the Receiving Party by any affiliates or agent of the Disclosing Party is subject to these License Agreement.
8.3 The Receiving Party shall have no obligation with respect to information that (i) was rightfully in possession of the Receiving Party without any obligation of confidentiality prior to receiving it from the Disclosing Party; (ii) is, or subsequently becomes, legally and publicly available without breach of these License Agreement; (iii) is rightfully obtained by the Receiving Party from a source other than the Disclosing Party without any obligation of confidentiality; (iv) is developed by or for the Receiving Party without use of the Confidential Information and such independent development can be shown by documentary evidence; or (v) is disclosed by the Receiving Party pursuant to and in accordance with a valid order issued by a court or government agency, provided that the Receiving Party provides (a) prior written notice to the Disclosing Party of such order and (b) the Disclosing Party prior opportunity to oppose or restrict such disclosure. Upon written demand by the Disclosing Party, the Receiving Party shall: (i) cease using the Confidential Information, (ii) return the Confidential Information and all copies, notes or extracts thereof to the Disclosing Party within seven (7) days of receipt of demand, and (iii) upon request of the Disclosing Party, certify in writing that the Receiving Party has complied with the obligations set forth in this paragraph.
8.4 Each party shall retain all right, title and interest to such party’s Confidential Information. No license to any intellectual property (or application for intellectual property protection) is either granted or implied by the conveying of Confidential Information. The Receiving Party shall not reverse-engineer, decompile, or disassemble any software disclosed to it and shall not remove, overprint or deface any notice of copyright or confidentiality, trademark, logo, legend, or other notices of ownership from any originals or copies of Confidential Information it obtains from the Disclosing Party or from any copies the Disclosing Party is authorized to make.
8.5 Neither party shall disclose, advertise, or publish either the existence, the subject matter, any discussions relating to, or any of the terms and conditions, of these License Agreement (or any summary of any of the forgoing) to any third party without the prior written consent of the other party. Either party may provide press releases, publications, advertisements or public disclosures regarding the business relationship between parties. Each party grants a limited right to the use of any logos of each party for the exclusive use of marketing and advertising.
9.0 PATENT, COPYRIGHT AND TRADEMARK INFRINGEMENT
INDEMNIFICATION
9.1 Claims. Company will defend any claim against Customer that a Company License provided under this Agreement infringes third party patents, copyrights or registered trademarks (the “Claim”) and will indemnify Customer against the final judgment entered by a court of competent jurisdiction or any settlements arising out of a Claim.
9.2 Customer shall:
(a) promptly notify Company in writing of the Claim (or threat thereof), and any subsequent litigation updates; and
(b) cooperate with Company in the defense of the Claim (including any statements to third parties regarding the Claim), and grant Company full and exclusive control of the defense and settlement of the Claim and any subsequent appeal.
If Customer fails to notify Company promptly of the Claim, and that failure prejudices Company’s ability to defend, settle or respond to the Claim, then Company’s obligation to defend or indemnify Customer with respect to that Claim will be reduced to the extent Company has been prejudiced. In addition, such failure to provide prompt notification shall relieve Company of any obligation to reimburse for Customer attorneys’ fees incurred prior to notification.
9.3 Additional Remedies. If a Claim is made or appears likely, Customer agrees to permit Company to procure for Customer the right to continue using the Company License, or to replace or modify the Company License with one that is at least functionally equivalent. If Company determines that none of those alternatives is reasonably available, then Customer will return the Company License and Company will refund Customer’s remaining net book value of the Company License calculated according to generally accepted accounting principles.
9.4 Exclusions. Company has no obligation for any Claim based on:
(a) compliance with any designs, specifications, requirements or instructions provided by Customer or a third party on Customer’s behalf;
(b) modification of a Company-Branded License by Customer or a third party; or
(c) the amount or duration of use made of the Company-Branded License, revenue earned by Customer or services offered by Customer to external or internal customers;.
9.5 Sole and Exclusive Remedy. This Section states Company’s entire obligation and Customer’s exclusive remedy regarding any claims for intellectual property infringement.
10.0 TERMINATION
The term of this license shall continue until such time as Customer halts all use of the Software or upon breach of this License Agreement. The warranty shall continue for such time as indicated in the Purchase Agreement. If Customer breaches this License Agreement, and fails to cure any breach within 30 calendar days after request from Company, or its authorized representative, Company may terminate this agreement and EULA attached as Exhibit B, whereupon all rights granted under this License Agreement shall immediately cease including any rights to the warranty. Furthermore, upon termination, Customer shall uninstall all copies of the Software, return to Company all copies Software, if any, and verify in writing that all copies of the Software have been destroyed.
11.0 COMPLIANCE WITH LAWS
11.1 Company expects and requires that all of its employees, contractors, agents, and other parties with whom Company does business (“Company Partners”), act at all times in a professional and ethical manner in carrying out their services and contractual obligations to Company, or on Company’s behalf to a Company customer or other third party. To that end, all Company Partners shall:
(a) Comply with all federal, state and local laws, ordinances, codes, regulations, rules, policies and procedures (“Applicable Laws”).
(b) Upon request, Company’s Partners may be required to have their own subcontractors, consultants, agents or representatives execute a similar written anti-corruption compliance statement, and to confirm to Company that such action has been taken laws;
(c) In no event shall Company be obligated under any supplier or third party agreement to take any action or omit to take any action that Company believes, in good faith, would cause it to be in violation of the FCPA or other Applicable Laws;
(d) Customer may purchase Software for the purposes of medical or healthcare related activities. Certain regulations regarding the Health Insurance Portability and Accountability Act of 1996 (known as “HIPAA”) may apply to the work performed by Customer. Company does not warrant that this Software complies with HIPAA. Customer bears its own responsibility and obligations to ensure its internal systems comply with HIPAA regulations, if any apply.
(e) Company retains the right to suspend or terminate any Company Partner agreement immediately upon written notice if Company believes, in good faith, that such Company Partner has breached any elements of this policy, or if the Partner makes a false or fraudulent statement, representation or warranty while carrying out their contractual obligations;
12.0 LIMITATION AND EXCLUSION OF LIABILITY GENERAL INDEMNIFICATION
12.1 IN NO EVENT WILL COMPANY 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. THESE LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW. THE AGGREGATE LIABILITY OF COMPANY SHALL BE LIMITED TO THE AMOUNT PAID FOR THE LICENSED SOFTWARE, IF ANY.
12.2 Subject to Section 9, To the maximum extent permitted by law, Customer shall defend Company and its affiliates, directors, officers, employees and agents against any third party claim, demand, or allegation arising out of a breach, or alleged breach of the Indemnifying Party’s representations and warranties under this agreement (“Claim”), and indemnify and hold harmless the Company from any resulting costs, expenses and liabilities (including reasonable attorneys’ fees), including, without limitation, any damages awarded against the Company to the third party making such Claim, by a court of competent jurisdiction, or agreed to in settlement; provided that the Company: (i) notify Customer promptly in writing of such claim, (ii) grants Customer sole control over the defense and settlement thereof, and (iii) reasonably cooperates in response to a Customer’s request for assistance. Customer will have the exclusive right to defend any such Claim and make settlements thereof at its own discretion, provided that the Indemnifying Party will not enter into any settlement that adversely affects the Company without prior written consent, which consent shall not be unreasonably withheld, delayed or conditioned.
13.0 GENERAL
13.1 Governing Law. This License Agreement is subject to, and will be governed by and construed in accordance with the substantive laws in force of the State of California. Unless prohibited by law of an applicable jurisdiction, the courts of the State of California shall have exclusive jurisdiction over all disputes relating to this License Agreement. This 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.
13.2 Force Majeure. Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including, without limitation, acts of God, earthquakes, labor disputes, industry-wide shortages of supplies, actions of governmental entities, riots, war, terrorism, fire, or delays of common carriers or other circumstances beyond its reasonable control. The obligations and rights of the defaulting party shall be extended for a period equal to the period during which such event prevented such party’s performance.
13.3 No Waiver. No failure or delay by Company 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 Company shall operate as a waiver or preclude any other, or further, exercise of that, or any other right, or remedy.
13.4 Assignment. Neither this License Agreement nor any rights or obligations under these License Agreement shall be assigned by a party without the other’s prior written consent, which will not be unreasonably withheld or delayed. Any attempted assignment shall be void and of no effect. Notwithstanding the foregoing, the parties may assign these License Agreement and any right or obligation under it without the other’s approval, to any affiliates. Notwithstanding any assignment by Customer, Customer shall remain liable for the payment of all amounts due under these License Agreement.
13.5 Severability. In the event that part of or one or more terms of these License Agreement become or are declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, each such part or term shall be null and void and shall be deemed deleted from these License Agreement. All remaining terms of this License Agreement shall remain in full force and effect. Notwithstanding the foregoing, if this paragraph is invoked and, as a result, the value of these License Agreement is materially impaired for either party, as determined by such party in its sole discretion, then the affected party may terminate these License Agreement by written notice with immediate effect to the other.
13.6 No Agency. These License Agreement do not create any agency, partnership, joint venture, or franchise relationship. No employee of either party shall be or become, or shall be deemed to be or become, an employee of the other party by virtue of the existence or implementation of these License Agreement. Each party hereto is an independent contractor. Neither party shall assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.
13.7 Entire Agreement. These License Agreement constitute the entire agreement between the parties concerning the subject matter of this License Agreement and replace any prior oral or written communications between the parties, all of which are excluded. There are no conditions, understandings, agreements, representations or warranties, expressed or implied, that are not specified herein (except where implied by law and exclusion is prohibited). This License Agreement may be modified only by a written document executed by the parties hereto.
13.8 Export Restrictions. Licensee shall not ship, transfer, or export Licensed Software into any country or use Licensed Software in any manner prohibited by any act or any export laws, restrictions, or regulations (collectively the “Export Laws.”) Because 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, a citizen, or an entity, embargoed by the United States, 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.
13.9 Notices. All notices required or permitted under these License Agreement will be in writing and will be deemed given one (1) day after deposit with a commercial express courier specifying next day deliver, with written verification of receipt or, if sent by email, by receiving non-automated confirmation of receipt of the email. All communications will be sent to the addresses set forth on the first page of this License Agreement, (and notices to Company shall be further addressed to the Office of the General Counsel, Attn: Contract Notice) or such other address as may be designated by a party by giving written notice to the other party pursuant to this paragraph, or, in the absence of such an address from Customer, to the address to which the last invoice under these License Agreement was sent before notice is served. Notwithstanding the foregoing, notices regarding changes in pricing, Software license terms, policies or programs may be by posting on Company’s website or by e-mail or fax.
END USER’S LICENSE AGREEMENT
The software that is subject to this End User’s License Agreement (EULA) is licensed, not sold, to the Licensee by ZSHUTTR (“Company”).
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.
CONTENTS
The “Licensed Software” includes all of the contents of the files, downloads, other media for which this EULA is provided, including:
(1)third-party computer information or software that Company 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 and/or mobile device. If Licensed Software includes multiple licenses, Licensee may install the number of copies licensed to Licensee by Company. Licensee shall be solely responsible for all expenses incurred in Licensee’s installation of the Licensed Software.
ACTIVATION
The Licensed Software may contain 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.
TRANSFER
Licensee may not sell, assign, or transfer the Licensed Software or the License granted by this EULA without prior written consent of Company.
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 Licensed Software except: only to the extent expressly permitted by applicable law; after notification to Company; 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 the Licensed Software in the essential operations, such as those operations that could jeopardize the safety of individuals, 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;
(5)Licensee may not remove or obscure Company’s copyright or trademark notices, or the copyright and trademark notices of third parties that Company has included in the Licensed Software or Documentation;
(6)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
(7)Licensee may not use the Licensed Software in any manner not authorized by this EULA.
CONTENT
Licensee may use any images, icons, fonts, shapes, and all other graphic content (collectively, “Content”) included with the Licensed Software, if any, for the exclusive purposes of referring to the Licensed Software for educational or informative purposes so long as the Licensee provides appropriate references to Company and its ownership of the Licensed Software.
Certain portions of the Content may consist of the copyrights, trademarks, service marks, trade names, or other intellectual property of third parties. Company has provided these portions of the Content for Licensees’ convenience in using the Licensed Software, pursuant to authorization of their owners. Except for this limited use, Licensee may not use any third-party intellectual property identified as belonging to others without the owners’ express authorization.
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, Company strongly encourages Licensee to seek competent legal counsel. Company will not assist Licensee in making this determination, nor can Company 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, Company asks Licensee to correctly designate Company’s trademark(s) when referring to the Licensed Software in the notice or copyright portion of Licensee’s paper, project, or product.
Licensee shall indemnify, hold harmless, and defend Company and Company’s suppliers from all claims, damages, attorneys’ fees, costs, and lawsuits that arise from, or result from, Licensee’s use or distribution of Content.
CONTENT UPDATES
Company provides updates to the content and documentation of some of its software from time to time. These types of updates are collectively referred to as “Content Updates.” Company reserves the right to designate specified Content Updates as requiring purchase of a separate subscription at any time, and without prior notice to Licensee, except that any such change will only become effective at the earlier of the expiration of the initial period provided for by the applicable software, or the expiration of the term of a separately paid for subscription.
Company reserves the right to update the contents of the EULA in connection with updates to the Software from time to time. Company shall provide notice of any updates and continued use of the updated Software shall consist of acceptance of the terms of the updated EULA. Use of pervious versions of the Software will not subject users to the terms of the updated EULA.
SUPPORT
Company is not obligated by this EULA to provide Licensee with any technical support services relating to the License.
NO WARRANTY ON LICENSED SOFTWARE
Except for as provided for in the License Agreement, the Licensed Software is provided to Licensee “AS IS.” Company’s suppliers, make no warranty as to its use or performance. COMPANY 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. COMPANY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES OR INACCURACIES OF CONTENT AND MATERIALS, OR (B) ANY BUGS OR FEATURES IN THE LICENSED SOFTWARE OR DUE TO THIRD PARTY TECHNOLOGY.
LIMITATION OF LIABILITY
EXCEPT FOR AS PROVIDED IN THE LICENSE AGREEMENT, IN NO EVENT WILL COMPANY 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 COMPANY 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 COMPANY SHALL BE LIMITED TO THE AMOUNT PAID FOR THE LICENSED SOFTWARE, FOR THE TWELVE MONTHS PRIOR TO THE CLAIM OR IF NO PAYMENTS HAVE BEEN MADE IN TWELVE MONTHS, THE AMOUNT PAID FOR THE SOFTWARE ON THE INITIAL PURCHASE ORDER, IF ANY.
SURVIVAL OF DISCLAIMERS
The exclusions of warranties and liability limitations shall survive the termination of this EULA, howsoever 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 any act or any export laws, restrictions, or regulations (collectively the “Export Laws”). Because 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 nation, a citizen located within a nation, an individual, or an entity, embargoed by the United States, 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 State of California which shall have exclusive jurisdiction over any disputes except in matters of conflict of laws.
INTELLECTUAL PROPERTY OWNERSHIP
The Licensed Software and any authorized copies that Licensee makes are the intellectual property of, and are owned by, Company, and by third parties whose intellectual property has been licensed by Company. The structure, organization, and code of the Licensed Software are the valuable trade secrets and confidential information of Company and such third parties. The Licensed Software is protected by law, including without limitation, United States or international copyright laws, 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
Company reserves all rights not expressly granted to Licensee by this EULA. The reservation of rights is limited to Company’s intellectual property rights and to the intellectual property rights of third parties licensed by Company.
COMPLETE AGREEMENT
This EULA in conjunction with the the Licensed Software and the License Agreement, supersedes all prior or contemporaneous representations, discussions, undertakings, communications, agreements, arrangements, advertisements, and understandings regulating the Licensed Software.
MODIFICATION
This EULA may only be modified or amended by a writing signed by an authorized officer of Company.
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 Company 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 Company 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 Company, or Company’s 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 Company, Company may terminate this EULA, whereupon all rights granted to Licensee shall immediately cease. Furthermore, upon termination, Licensee shall return to Company all copies of the Licensed Software, or verify in writing that all copies of the Licensed Software have been destroyed and Licensee shall not receive a refund.