End User License Agreement
This License Agreement is entered into between Acqueon Technologies Inc. USA. a company registered under the laws of Delaware Corporation and having its office situated at 14785 Preston Road, Suite 550, Dallas TX 75254, USA (hereinafter referred to as "Licensor") and End user (hereinafter referred to as "Licensee" which expression shall unless repugnant to the meaning or context thereof be deemed to include their successors and assigns) of the Second Part.
The controlling language of this Agreement is English. If Licensee has received a translation into another language, it has been provided for Licensee`s convenience only.
The terms and conditions relating to the licensing by Acqueon Technologies Inc. USA of the Software are as follows. By using, installing or copying the Software, Licensee agrees to be bound by the terms of this Agreement.
(a) A "Server License" comprises the right to: (i) create a single instance of a Server component on a Server; and (ii) use and access the Server component and software using only the number and type of authorized concurrent or named Workstation licenses, Port Licenses and additional feature licenses specified and for which Licensee has an active license.
(b) A "Workstation License" or "Client License" comprises the right to install and use the specified Client Software on the number of Workstations or Devices for which Licensee has purchased a license.
(c) "Application Software" or "Software" means the ordered Acqueon Software Product as computer programs in object code and procedure statements in machine executable form, limited to the specific version installed, downloaded, copied or otherwise Used by Licensee together with Company Standard Documentation including User manuals for use therewith.
(d) "Use", "Uses" or "Used" means the copying of any portion of the "Application Software" into the Equipment or the processing by the Equipment of the machine instructions and procedure statements provided in the "Application Software" or the utilization of the instructional materials supplied with the "Application Software" for its own internal business purposes.
(e) "Location" means the premises where the Licensee installs, downloads, copies or otherwise Uses, in whole or in part, an Acqueon Application Software.
(f) "Company Standard Documentation" shall mean any instructional and operation manuals supplied to the Licensee by Licensor. Licensee is not entitled to receive from Acqueon any hard-copy documentation
(g) "Effective Date" means date Licensor sends License to Licensee and/or Licensee installs, downloads, copies or otherwise Uses, in whole or in part, an Acqueon Application Software.
- Subject to Licensee timely paying Licensor or its authorized representative the license fees for the Software, Licensor hereby grants non-exclusive, non-transferable license(s), in the country of the Licensee identified in this Agreement, to use the Software in accordance with the terms and conditions of the Agreement.
- The term of the Software license(s) granted under this Agreement shall be in perpetuity from the Effective Date of this Agreement unless terminated earlier. This Agreement will also terminate upon breaching or failure to non-comply with any of the conditions set forth elsewhere in this Agreement. Licensee agrees to destroy the Software and the Licenses provided together with all copies thereof in the event of termination of this agreement.
- Licensor and the Licensee, at the end of warranty period as agreed between the Licensor and the Licensee or its authorized representative, shall enter into a separate Annual Maintenance Agreement. The warranty period if applicable for each location would start from the "Effective Date" of the software in that location. After the warranty period the Licensee shall pay Licensor an Annual Maintenance Fee as mutually agreed between the parties. The Annual Maintenance Fee shall be paid in advance.
- During the term of License, Licensee shall be entitled to receive from Licensor or from its authorized representative, technical support, all updates and upgrades release of the software that Licensor may make generally available to its other Licensees or authorized representative under current maintenance. All technical support will be provided pursuant to Licensor’s then current Technical Support policies and procedures. All updates and upgrade releases will be provided pursuant to Licensor’s maintenance contract with Licensee or authorized representative.
- Licensee agrees that the Software is protected by trade secret, copyright, and other proprietary rights, and that title and ownership to the Software remains in Acqueon. Licensor reserves all rights not expressly granted herein, and the Software may not be used beyond the scope of the license(s) expressly granted hereby. The Software shall be used only by Licensee, and the license granted hereunder does not include the right to sublicense. Licensee can seek permission from Licensor to use the software for commercial software hosting services. Licensee shall keep the Software confidential. Licensee may not alter, modify or adapt the Software or any part thereof. Licensee may not translate, reverse engineer, de-compile, disassemble, or create derivative works of the Software or any part thereof. Licensee may not remove or modify any proprietary markings or restrictive legends placed on the Software. Licensee may not attempt to unlock or bypass any "copy-protection", licensing or authentication algorithm utilized by the "Software".
- The Licensee shall take necessary steps to secure and protect the Software and any copies thereof in a manner consistent with the maintenance of Acqueon’s rights therein and to take appropriate action by instruction or agreement with its employees and agents to satisfy its obligations under this agreement.
- LICENSOR WARRANTS TO LICENSEE THAT THE SOFTWARE WILL SUBSTANTIALLY CONFORM TO ACQUEON'S STANDARD USER DOCUMENTATION FOR THE SOFTWARE FOR A PERIOD OF ONE MONTH AFTER THE EFFECTIVE DATE. LICENSOR SHALL NOT BE LIABLE FOR THRID PARTY SOFTWARE OR HARDWARE. LICENSOR DOES NOT WARRANT THAT USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, THAT ALL DEFECTS IN THE SOFTWARE WILL BE CORRECTED, OR THAT THE SOFTWARE IS FREE OF BUGS OR ERRORS, WILL MEET LICENSEE’S NEEDS, OR WILL OPERATE IN THE COMBINATIONS WHICH MAY BE SELECTED BY LICENSEE. LICENSEE’S EXCLUSIVE REMEDY WITH RESPECT TO BREACH OF THIS WARRANTY SHALL BE TO RECEIVE REPLACEMENT OF NON-CONFORMING SOFTWARE WITH CONFORMING SOFTWARE. IF LICENSOR DOES NOT REPLACE THE NON-CONFORMING SOFTWARE, LICENSEE MAY TERMINATE ITS LICENSE TO THE NON-CONFORMING SOFTWARE WITHIN THE ONE MONTH PERIOD BY RETURNING ALL COPIES OF THE NON-CONFORMING SOFTWARE and LICENSES, PURGING ALL COPIES THEREOF FROM LICENSEE’S COMPUTER SYSTEMS, AND SUPPLYING TO LICENSOR AN AFFIDAVIT CONFIRMING THAT THESE ACTIONS HAVE BEEN COMPLETED. UPON SUCH TERMINATION, LICENSEE SHALL RECEIVE A PRO RATA REFUND OF THE LICENSE FEE(S) IT PAID FOR THE NON-CONFORMING SOFTWARE BASED ON A THIRTY-SIX (36) MONTH AMORTIZATION.
- To allow Licensor to provide replacement for non-conforming software or remedies for bugs or errors, Licensee agrees that Acqueon or its authorized representative may collect, maintain, process and use diagnostic, technical, usage and related information, including but not limited to information about your computer, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services (if any) related to the Software, and to verify compliance with the terms of this License. Acqueon may use this information, to provide and improve Acqueon’s products and services. To enable Acqueon’s partners and third party developers to improve their software, hardware and services designed for use with Acqueon products, Acqueon may also provide any such partner or third party developer with a subset of diagnostic information that is relevant to that partner’s or developer’s software, hardware and/or services.
- HIGH RISK ACTIVITIES – The Product is not fault-tolerant and is not designed, manufactured or intended for use or resale as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Product could lead directly to death, personal injury, or severe physical or environmental damage (`High Risk Activities`). Accordingly, Licensor and its suppliers specifically disclaim any express or implied warranty of fitness for High Risk Activities. Licensee agrees that Licensor and its suppliers will not be liable for any claims or damages arising from the use of the Product in such applications.
- Licensor shall have no liability or responsibility for problems with the Software caused by misuse, improper installation, alteration or modification by Licensee, or for problems arising out of the malfunction of Licensee’s equipment or other software not supplied by Acqueon. Licensee acknowledges that the Software may include features limiting its operability beyond the scope of the license, and Licensor shall be entitled to use self-help, including electronic means, to prevent use of the Software beyond its licensed scope.
- TO THE FULLEST EXTENT ALLOWED BY LAW, AND EXCEPT FOR THE WARRANTIES EXPRESSLY STATED HEREIN, THIS SOFTWARE IS PROVIDED "AS IS", AND LICENSOR DISCLAIMS ALL OTHER WARRANTIES, TERMS OR CONDITIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES, TERMS OR CONDITIONS REGARDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND SATISFACTORY QUALITY.
- LICENSOR SHALL NOT BE LIABLE TO LICENSEE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR: LOSS OF BUSINESS OR GOOD WILL, WORK STOPPAGE, LOSS OF INFORMATION OR DATA, LOSS OF REVENUE OR PROFIT, OR COMPUTER FAILURE, OR PHONE/TELECOMMUNICATIONS CHARGES RESULTING FROM UNAUTHORIZED ACCESS TO LICENSEE’S COMPUTERS, TELEPHONE EQUIPMENT OR LINES, OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THE INSTALLATION, MAINTENANCE, USE, PERFORMANCE OR FAILURE OF THE SOFTWARE, REGARDLESS OF THE LEGAL THEORY ASSERTED, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, AND EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. ACQUEON’S LIABILITY TO LICENSEE, REGARDLESS OF THE LEGAL THEORY OF ANY CLAIM, SHALL NOT EXCEED THE LESSER OF ONE THOUSAND DOLLARS OR THE LICENSE FEE(S) RECEIVED BY LICENSOR FOR THE SOFTWARE.
- If Licensee (i) infringes Licensor’s proprietary rights pertaining to the Software, (ii) fails to timely pay the license fees in full, or (iii) breaches the conditions mentioned under clause 6 and 7 of this agreement, Licensor may terminate the license to the Software on ten (10) days notice. Upon termination of this Agreement or a license to specific Software, Licensee shall purge all copies of the Software and Licenses from its computer systems, return the Software and supporting materials to Licensor or its authorized representative, or destroy them (including all copies), and supply an affidavit to Licensor certifying that such actions have been completed. All obligations to keep the Software confidential and to pay amounts owing as of the termination date survive termination.
- Licensee shall not assign this Agreement, or any license hereunder, without the express written consent of Licensor ; provided, however, that Licensee may assign this Agreement and the license to the Software in conjunction with the transfer of substantially all of Licensee’s business (or assets pertaining thereto) to which this Agreement relates. Any other attempt to sublicense, assign or transfer this Agreement or the licenses granted herein shall be void.
- Export Control. Licensee may not use or otherwise export or provide as service the Software except as authorized by United States law and the laws of the jurisdiction(s) in which the Software was obtained. In particular, but without limitation, the Software may not be exported or provided as a service (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Software for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.
- This Agreement constitutes the entire understanding between the parties with respect to the Software, maintenance and technical support, and may only be amended in writing signed by both parties. There are no representations, promises, warranties or understandings relied upon by Licensee which is not contained herein.
- This Agreement shall be construed, governed and enforced in accordance with the laws of United States. The parties to the agreement agree that the Jurisdiction and venue of action with respect to this Agreement shall in a court competent subject matter jurisdiction located at New Jersey, United States, and each of the parties hereby irrevocably agrees to submit itself to the exclusive jurisdiction and venue of such court for the purpose of any such action.