CODENFORCER™ SOFTWARE AS A SERVICE AGREEMENT
NOTICE TO LICENSEE:
THIS IS A CONTRACT. THIS LICENSE AGREEMENT IS A LEGALLY BINDING CONTRACT THAT SHOULD BE READ IN ITS ENTIRETY. YOUR CLICK OF THE "I ACCEPT" BUTTON IS A SYMBOL OF YOUR SIGNATURE AND BY CLICKING ON THE "I ACCEPT" BUTTON, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT AND AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, "YOU" AND "YOUR" AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY, IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MUST SELECT THE "CANCEL" BUTTON AND MAY NOT USE THE SERVICES.
This Electronic License Agreement (the "Agreement") is a legal agreement between you (either an individual or an entity), (the "you" or "Licensee"), and Softarex Technologies, Inc., a Virginia corporation (the "Licensor").
1. CERTAIN DEFINED TERMS
1.1. "Agreement" shall have the meaning set forth in the preamble hereof.
1.2. "Confidential Information" shall mean any information, product, document or other material of any nature relating to or concerning Licensor, Suppliers and/or their Affiliates, that is provided or made available to Licensee either before or after the Effective Date, directly or indirectly in any form whatsoever, including in writing, orally, and machine readable, and including, but not be limited to License Key, if applicable, any correspondence, memoranda, notes, e-mails, formulas, samples, equipment, compilations, blueprints, business information, technical information, know-how, information regarding patents, patent applications, software, computer Object Code or Source Code, algorithms, high-level structures, graphic user interfaces, ongoing research and development, business plans, business or marketing strategies or plans, products or product development strategies or plans, information concerning current and future products and services, customers, suppliers and markets, price lists and pricing information, financial statements and forecasts, computerized or other magnetically filed data, methods and techniques, manufacturing processes, developments, inventions, designs, drawings, engineering specifications, hardware configuration information, trade secrets, financial information of Licensor, Suppliers and/or their Affiliates and any other business records and information, including, without limitation, the information about this Agreement, the use or disclosure of which might reasonably be construed to be contrary to the interests of such Licensor, Suppliers and/or their Affiliates, including information of third parties subject to confidentiality obligations and which one Licensor, Suppliers and/or their Affiliates may share with Licensee, provided, however, that Confidential Information shall not include information which: (i) is already in the possession of Licensee before receipt from Licensor, Suppliers and/or their Affiliates; (ii) is or becomes rightfully in the public domain without no fault of Licensee; (iii) is received by Licensee from a third party who or which is not under any obligation of confidentiality or restriction on use or disclosure concerning such information, or (iv) is disclosed under operation of law to the public or to a third party without a duty of confidentiality. If Licensee asserts one of the four exceptions to Confidential Information above, then Licensee shall prove such assertion by proper forms of documentary evidence.
1.3. "Client System" shall mean a computer, workstation or server for which a specific version of the Software is designed to Operate.
1.4. "Documentation" shall mean user manuals, operator instructions, training materials, product descriptions and specifications, technical manuals, supporting materials, source code samples, sample applications, video, audio and other media content maintenance know how, text and graphic elements of all user interfaces and any modifications or upgrades of the foregoing, developed for use in connection with Products and provided or made available by Licensor or any of its Affiliates from time to time.
1.5. "Help Desk" shall mean Licensor's specialized technical support system where users may request online support.
1.6. "Intellectual Property Rights" shall mean all worldwide (i) inventions (whether patentable or unpatentable, whether or not reduced to practice, and/or whether developed alone or jointly with others), all improvements thereto, patents, patent applications, patent and invention disclosures, and all other rights of inventorship, together with all reissuances, continuations, continuations-in-part, divisions, revisions, supplementary protection certificates, extensions and re-examinations thereof; (ii) Internet domain names, trademarks, service marks, trade dress, trade names, logos, designs, slogans, product names, corporate names, together with all of the goodwill symbolized thereby and associated therewith, and registrations and applications for registration thereof and renewals thereof; (iii) copyrights (registered or unregistered), copyrightable works, rights of authorship, and registrations and applications for registration thereof and renewals thereof; (iv) integrated circuit designs, cell libraries, electronic masks, net lists, simulations, mask works, semiconductor chip rights, and registrations and applications for registration thereof and renewals thereof; (v) computer software (including, without limitation, Source Code, Source Code engines, source data files, and Object Code), software development tools (including, without limitation, assemblers, compilers, converters, utilities, compression tools), libraries, algorithms, routines, subroutines, commented and documented code, programmer's notes, system architecture, logic flow, data, computer applications and operating programs, databases and documentation thereof; (vi) trade secrets and other confidential information (including, without limitation, ideas, technologies, know-how, manufacturing and production processes and techniques, research and development information, drawings, schematics, specifications, bill of material, designs, plans, proposals, technical data, pricing data, marketing data, financial records, customer and supplier lists, and other proprietary information), (vii) copies and tangible embodiments thereof (in whatever form or medium), and all modifications, enhancements and derivative works of any of the foregoing; and (viii) all rights to sue and collect remedies for any past, present and future infringement of any of the foregoing, and rights of priority and protection of interests therein under the laws of any jurisdiction worldwide.
1.7. "License" shall have the meaning set forth in Section 3.1 hereof.
1.8. "License Key" shall mean a device, file or a unique sequence of digit and/or symbols provided to Licensee by Licensor that may be, in certain instances, necessary for activation of the Product and confirming the purchase of the License from Licensor, which may, but need not to, carry the information or special designations or codes, whether explicit or embedded, about the license and the number of permitted users, and, as applicable, an expiration date, and enabling the full or partial functionality of the Product in accordance with the License granted under this Agreement.
1.9. "Licensee" shall mean you (either an individual or an entity). For purposes hereof, "you" means the individual person installing or using the Product on his or her own behalf; or, if the Product is being downloaded or installed on behalf of an organization, such as an employer, "you" means the organization for which the Product is downloaded or installed and it is represented hereby that such organization has authorized the person accepting this agreement to do so on its behalf. For purposes hereof the term "organization", without limitation, includes any partnership, limited liability company, corporation, association, joint stock company, trust, joint venture, labor organization, unincorporated organization, or governmental authority.
1.10. "Licensor" shall mean Softarex Technologies, Inc.
1.11. "Licensor Site" shall mean the Internet website maintained by or on behalf of Licensor from which the Software is available for download pursuant to this Agreement from Licensor. The Licensor Site is currently located at http://codenforcer.com.
1.12. "Object Code" shall mean computer programs assembled or compiled in magnetic or electronic binary form on software media, which are readable and usable by machines, but not generally readable by humans without reverse-assembly, reverse-compiling, or Reverse Engineering.
1.13. "Operate" shall mean to access, download, store, load, install, execute, display, copy the Product into the memory of a computer or otherwise benefiting from using the functionality of the Product such as software development and testing purposes in accordance with the Documentation.
1.14. "Project" shall mean a Licensee's task, entity or a project related to creating, developing or modifying Licensee's Source Code for a specific, unique and single computer program, procedures, and associated documentation and data.
1.15. "Product" shall mean Software in Object Code, if any, and all related Documentation included therewith in any form and on any media and all fixes, Updates, modifications, enhancements and new releases of the foregoing and those related materials sold and/or used in connection therewith and any other software, materials and products of the Suppliers provided to Licensee by Licensor pursuant to the terms hereof.
1.16. "Services" shall mean software as a service consisting of system administration, system management, and system monitoring activities that Licensor performs for Licensor's programs, and includes the right to use the Licensor's programs, support services for such Licensor's programs, as well as any other services provided by the Licensor.
1.17. "Software" shall mean software titled "codeNforcer" and including all forms of code, such as Source Code and Object Code, any upgrades, modified versions, Updates, patches and additions thereto, in any form and on any media including all modifications, enhancements and new releases of the foregoing.
1.18. "Source Code" shall mean the human-readable form of the computer programming code and related system documentation including all comments and any procedural code such as job control language.
1.19. "Suppliers" shall mean one or more of the entities from which the Products or rights to the Products may be or may have been obtained by Licensor.
1.20. "Updates" means a subsequent release of the Software that Licensor generally makes available to its supported Licensees at no additional License fee either during the Term and shall not include any release, new version, option or future application which Licensor licenses for a separate charge.
1.21. "User" shall mean any individual, which is an employee or Licensee's contractors, freelances and consultants that may Operate the Products pursuant to the License granted to Licensee hereunder.
You may also receive a copy of this Agreement by contacting the Licensor at: firstname.lastname@example.org.
By accessing, downloading, storing, loading, installing, executing, displaying, copying the Product into the memory of a computer or otherwise benefiting from using the functionality of the Product in accordance with the Documentation, you agree to be bound by the terms of this Agreement. If you do not agree to the terms and conditions of this Agreement, the Licensor is unwilling to license the Product to you. In such event, you may not Operate or use the Product in any way.
2. Proprietary Rights and Non-Disclosure
2.1. Ownership Rights. You agree that the Product and the authorship, systems, ideas, methods of operation, Documentation and other information contained in the Product, are proprietary intellectual properties and/or the valuable trade secrets of the Licensor or its Suppliers and/or licensors and are protected by civil and criminal laws, and by copyright, trade secret, trademark and patent laws and statutes of the United States, other countries and international treaties. You may use trademarks only insofar as to identify printed output produced by the Product in accordance with accepted trademark practice, including identification of trademark owner's name. Such use of any trademark does not give you any rights of ownership in that trademark. Unless otherwise explicitly provided in the Agreement and except for Results (as such term defined below), the Licensor and/or its Suppliers own and retain all right, title, and interest in and to the Product, including, without limitations, any error corrections, enhancements, Updates or other modifications to the Software, whether made by the Licensor or any third party, and all copyrights, patents, trade secret rights, trademarks, and other intellectual property rights therein. Your possession, installation or Use of the Product does not transfer to you any title to the intellectual property in the Product, and you will not acquire any rights to the Product except as expressly set forth in this Agreement. Unless otherwise provided in the Agreement, all copies of the Product made hereunder must contain the same proprietary notices that appear on and in the Product. Except as stated herein, this Agreement does not grant you any intellectual property rights in the Product and you acknowledge that the License, as further defined herein, granted under this Agreement only provides you with a right of limited use under the terms and conditions of this Agreement.
2.2. Source Code. You acknowledge that the Source Code for the Product is proprietary to the Licensor or its suppliers and/or licensors and constitutes trade secrets of the Licensor or its suppliers and/or licensors. Except as otherwise specifically provided herein and/or in the Terms of Service, you agree not to disassemble, decompile or "unlock", decode or otherwise reverse-translate or reverse-engineer, or attempt in any manner to reconstruct or discover any source code or underlying algorithms of the Product or any part thereof provided solely in Object Code form. You may change, add or delete any files of the licensed copy of the Products and you may adapt or modify the Source Code solely for purposes of Using a licensed copy of the Product and as expressly permitted pursuant to a type of the License (as set forth below) purchased hereunder, provided that modification voids any express warranty provided herein and terminates any right to support services.
2.3. Confidential Information. You agree that, unless otherwise specifically provided herein, the Product, including the specific design and structure of individual programs and the Product, constitute confidential proprietary information of the Licensor or its suppliers and/or licensors. You agree not to transfer, copy, disclose, provide or otherwise make available Confidential Information in any form to any third party. You agree to implement reasonable security measures to protect Confidential Information, provided that you may make and distribute unlimited copies of the trial version of the Product in object code only, including copies for commercial distribution, as long as each copy that you make and distribute contains this Agreement subject to end user's acceptance before the first use, and the same copyright and other proprietary notices pertaining to the Product that appear in the Product, and further provided that in connection with the distribution of the trial version of the Product you do not (i) bundle the Product with any other products or materials, or (ii) charge any fees without Licensor's prior written consent.
2.4. User Compliance and User License Acknowledgement. Licensee shall use its best efforts to ensure compliance of authorized Users and appoint one User entrusted with a custody of the Product and License Key, when applicable, and installation of the Product and which shall electronically execute Licensor's "click-through" User License acknowledgement, if any, by which a User appointed with the custody of the Product and License Key, when applicable, shall consent and agree to the terms of this Agreement. Notwithstanding anything to the contrary herein, Licensee hereby agrees that if conflict arises between this Agreement and "click-through" Software as a Service Agreement, this Agreement shall always control.
2.5. No Modification. You agree not to modify or alter the Product in any way unless otherwise permitted by applicable License or agreed to by Licensor. Unless otherwise provided herein or applicable Documentation, you may not remove or alter any copyright notices or other proprietary notices on any copies of the Product.
2.6. Prohibited Uses. You agree that you will not:
- a)Engage in any act that Licensor deems in its reasonable discretion to be in conflict with the spirit or intended use of the Product and related service;
- b)Make improper Use of Licensor's Product;
- c)Use the Product, intentionally or unintentionally, in connection with any violation of any applicable law or regulation, or do anything that promotes the violation of any applicable law or regulation;
- d)Institute, assist or become involved in any type of attack, including without limitation distribution of a virus, denial of service attacks upon the Product, or other attempts to disrupt the related service; and
- e)Bundle the Product in whole or in part with any other products, applications or extensions without Licensor's prior explicit written approval. For purposes of this Agreement, the term "bundle" shall mean offering the Product with any third-party applications, frameworks, components or systems for distribution and sub-license to subsequent third parties' end-users (e.g. in connections with "middleware") as a single offering.
3. Grant of License
3.1. License. The Licensor grants you the non-exclusive, personal, limited, non-transferable (except as otherwise specifically provided herein) (unless otherwise terminated pursuant to the terms hereof) right (without the right to sublicense) to Operate a single (1) copy of the Product in Object Code or Source Code, as applicable, by a number of authorized users (either you, your employee or agent) as provided under a specific license (set forth below) ("Named Users") on a single virtual or physical servers, i.e. server Client Systems that Licensee's owns, rents or leases during the Term of this Agreement in connection with a number of Projects set forth below or otherwise on Licensor Site or applicable documentation ("License"), provided that Licensee shall not copy and/or distribute Documentation to Licensee's end-users for any purpose. Unless otherwise provided in this Agreement or set forth in applicable documentation and/or Licensor Site, Licensor hereby does not claim any ownership rights in the applications, reports or files developed by Licensee through Using the Software (the "Results").
- a)Public Cloud License. If the Product is licensed under Public Cloud License upon the terms specified in the applicable invoicing for the Product or Licensor Site, you or your organization may Use the Product for the period designated and selected by you during a subscription process with designated functionality and number of Projects limitations set forth in applicable License Key and/or Documentation.
- b)Trial License. If you are granted an access to an online trial version of the Product you are hereby granted a trial license for the Software, and you may allow three (3) Named Users to Use the Product online for three (3) Projects and only for purposes of testing and evaluation of the Product to determine its fitness and compatibility with Licensee's requirements ("Evaluation Purposes") for a period of not more than thirty (30) days. Any use of the Product for other purposes is strictly prohibited. The Licensor shall not be required to provide any support and/or Updates, for the trial version of the Product.
3.2. HelpDesk. Licensor will provide you with free web-based Technical Support Services via email and HelpDesk as long as you Use the Product and pay applicable fees, provided that you do not violate any provisions of this Agreement. Support terms and conditions are set forth at www.codenforcer.com/support and in your user account. You can also send any support requests to email@example.com or firstname.lastname@example.org or can send support ticket through HelpDesk link available in your online account or in your codeNforcer user account. All support conditions and necessary tools for this are subject to change without notice.
3.3. Third Party Software. The Product may contain third-party applications and Source Code ("Third Party Applications"). Third Party Applications are not under Licensor's control and are subject to the applicable licenses and respective terms and conditions of such third parties which you may need to enter into and/or comply with prior to or subsequent to the installation and/or use of the Third Party Applications. The list of such Third Party Applications, related information and licenses are provided in the Attachment A, attached to this Agreement and made part thereof.
3.4. Prohibition of Floating Use. Licensee agrees and acknowledges that the Product shall be only Operated, at any given moment by the maximum number of Named Users for whom a license under this Agreement have been validly acquired and that any Operation of the Product under such licenses shall be restricted as set forth in applicable Documentation and/or in accordance with functionalities set forth in License Key and/or this Agreement.
3.5. Updates. During the Term of this Agreement, when and as the Licensor make Updates publicly available, you may receive free Updates to the Product as long as you Use the Product and pay applicable fees, provided that you do not violate any provisions of this Agreement. This Agreement does not obligate the Licensor to provide any Updates. Notwithstanding the foregoing, any Updates that you may receive become part of the Product and the terms of this Agreement apply to them (unless this Agreement is superseded by a further Agreement accompanying such Update or modified version of the Product).
3.6. Term and Termination. The term of this Agreement ("Term") shall begin upon your full payment of License upon its activation and shall continue, unless otherwise terminated pursuant hereto, in perpetuity or for the term specified in the License granted hereunder, provided that, you hereby agree and acknowledge that License and/or subscription fee may be due and payable in thirty (30) days interval or as otherwise provided by Licensor in applicable Documentation or Licensor Site, and further provided that you agree and acknowledge that failure to make appropriate payment will suspend the License to Use the Product granted herein. If Licensor offers you a superseding Agreement for the Product in connection with an Upgrade or New Release you may accept such superseding Agreement or continue to Use the Product under this version of the Agreement. This Agreement may be also terminated by the Licensor immediately upon notice if you infringe Licensor's Intellectual Property or upon thirty (30) day notice if you fail to comply with any of your obligation or conditions of this Agreement. Upon any termination or expiration of this Agreement, you must immediately cease use of the Product and destroy all copies of the Product.
3.7. No Rights Upon Termination. Upon termination of this Agreement you will no longer be authorized to Operate or use the Product in any way.
3.8. Material Terms and Conditions. You specifically agree that each of the terms and conditions of this Section 3 are material and that failure of you to comply with these terms and conditions shall constitute sufficient cause for Licensor to immediately terminate this Agreement and the License granted under this Agreement. The presence of this Section 3.8 shall not be relevant in determining the materiality of any other provision or breach of this Agreement by either party hereto.
3.9. Additional Limitations. Notwithstanding anything to the contrary herein, you may not Operate, or modify the Product in any way as to form the basis for creating a product, service and/or framework that provides the same, or substantially the same, functionality as the Product; and unless expressly otherwise provided herein, in the event you develop any modifications, enhancements, derivative works and/or extensions to the Product, either independently or jointly with Licensor, such modifications, enhancements, derivative works and/or extensions and all rights associated therewith will be the exclusive property of Licensor.
3.10. No Transfers. Under no circumstances you shall sell, loan, rent, lease, or otherwise transfer to a third party the Product, any copy or use thereof, in whole or in part, without Licensor's prior written consent, provided that if such non-waivable right is specifically granted to you under applicable law in your jurisdiction, you may transfer your rights under this Agreement permanently to another person or entity, provided that: a) you also transfer this Agreement, the Product, all accompanying printed materials, and all other software or hardware bundled or pre-installed with the Product, including all copies, Updates and prior versions, to such person or entity; b) retain no copies, including backups and copies stored on a Client System; c) the receiving party accepts the terms and conditions of this Agreement and any other terms and conditions upon which you legally purchased a license to the Product; and d) the Licensor is notified about the transfer. In no case you may permit third parties to benefit from the use or functionality of the Product via a timesharing, service bureau or any other arrangement, except to the extent such use is specified in the application price list, purchase order or product packaging for the Product.
4.1. License Key. You may not give, make available, give away, sell or otherwise transfer your registration License Key or any copy thereof to a third party. Product's License Key may not be distributed, except as provided herein, outside of the area of legal control of the person or persons who purchased the original License, without written permission of the Licensor. Doing so will result in an infringement of copyright. The Licensor retains the right of claims for compensation in respect of damage which occurred by your giving away the License Key or registration code contained therein. This claim shall also extend to all costs which the Licensor or its licensors incur in defending themselves.
4.2. No Extraction for Separate Use. You shall not extract or Use any functionality of this Software other than as part of normal Operation of the Product described in the Documentation and as integral part of Operation and functionality of the Product as a whole.
4.3. Proprietary Notices and Copies. You may not remove any proprietary notices or labels on the Product. You may not copy the Product except as expressly permitted in Section 3 above.
4.4. No Transfer of Rights. Except as otherwise specifically provided herein or explicitly agreed to in writing by Licensor, you may not transfer or assign any of the rights granted to you under this Agreement or any of your obligations pursuant hereto without prior written consent of Licensor (which shall not be unreasonably withheld), provided that you may assign this Agreement to any third party in connection with a transaction involving merger, acquisition, restructuring, reorganization or sale or transfer of all or substantially all of the assets or stock of Licensee upon written notification to Licensor. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.
4.5. Compliance with Law. You agree that in Using the Product and/or Results, you will comply with all applicable international, national, state, regional and local laws and regulations, including, without limitation, privacy, copyright, export control and obscenity law.
4.6. Additional Protection Measures. Solely for the purpose of preventing unlicensed use of the Product, the Software may install on your computer technological measures that are designed to prevent unlicensed use, and the Licensor may use this technology to confirm that you have a licensed copy of the Product. The update of these technological measures may occur through the installation of the Updates and may require that you connect to the Internet. The Updates will not install or may fail to Operate if installed on unlicensed copies of the Product. If you are not using a licensed copy of the Product, you are not allowed to install the Updates. The Licensor will not collect any personally identifiable information from your computer during this process.
5. RIGHTS GRANTED
Upon Softarex Technologies' acceptance of your order and for the duration of the services term defined in the ordering document, you have the nonexclusive, non-assignable, royalty free, worldwide limited right to use the services solely for your internal business operations and subject to the terms of the Agreement. You may allow your users to use the services for this purpose and you are responsible for your users' compliance with the Agreement. The services are provided as described in, and subject to, the services policies referenced in the ordering document.
You acknowledge that Softarex Technologies has no delivery obligation and will not ship copies of the Softarex Technologies' programs to you as part of the services. You agree that you do not acquire under the Agreement any license to use the Softarex Technologies' programs specified in the ordering document in excess of the scope and/or duration of the Services. Upon the end of the Agreement or the Services thereunder, your right to access or use the Softarex Technologies' programs specified in the ordering document and the services shall terminate
6. OWNERSHIP AND RESTRICTIONS
You retain all ownership and intellectual property rights in and to your data. Softarex Technologies or its licensors retain all ownership and intellectual property rights to the services and Softarex Technologies' programs. Softarex Technologies retains all ownership and intellectual property rights to anything developed and delivered under the Agreement.
Third party technology that may be appropriate or necessary for use with some Softarex Technologies' programs is specified in the program documentation or ordering document as applicable. Your right to use such third party technology is governed by the terms of the third party technology license agreement specified by Softarex Technologies and not under the Agreement.
You may not:
- remove or modify any program markings or any notice of Softarex Technologies' or its licensors' proprietary rights;
- make the programs or materials resulting from the services available in any manner to any third party for use in the third party's business operations (unless such access is expressly permitted for the specific program license or materials from the services you have acquired);
- modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services (the forego ing prohibition includes but is not limited to review of data structures or similar materials produced by programs), or access or use the Services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to Softarex Technologies;
- disclose results of any Services or program benchmark tests without Softarex Technologies' prior written consent; and
- license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the services, Softarex Technologies' programs or materials available, to any third party other than, as expressly permitted under the terms of the Agreement.
The rights granted to you under the Agreement are also conditioned on the following:
- the rights of any user licensed to use the Services (e.g., on a "named user" basis) cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user, in which case the prior author ized user shall no longer have any right to access or use the license);
- except as expressly provided herein, no part of the Services may be copied, reproduced, distributed, republished, down loaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and
- you agree to make every reasonable effort to prevent unauthorized third parties from accessing the Services.
7. WARRANTY AND DISCLAIMER
THE SOFTWARE IS MADE AVAILABLE BY SOFTAREX TECHNOLOGIES ON AN "AS IS" BASIS AND WITH ALL FAULTS. EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT TO WHICH THE SAME MAY NOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW, SOFTAREX TECHNOLOGIES DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT SOFTAREX TECHNOLOGIES WILL CORRECT ALL SERVICES ERRORS. YOU ACKNOWLEDGE THAT SOFTAREX TECHNOLOGIES DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. SOFTAREX TECHNOLOGIES IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
THE LICENSOR MAKES NO WARRANTY THAT THE PRODUCT WILL BE ERROR FREE OR FREE FROM INTERRUPTION OR FAILURE, OR THAT IT IS COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR DISCLAIMS ALL WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, SATISFACTORY QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCT AND THE ACCOMPANYING WRITTEN MATERIALS OR THE USE THEREOF. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. YOU HEREBY ACKNOWLEDGE THAT THE PRODUCT MAY NOT BE OR BECOME AVAILABLE DUE TO ANY NUMBER OF FACTORS INCLUDING, WITHOUT LIMITATION, PERIODIC SYSTEM MAINTENANCE, SCHEDULED OR UNSCHEDULED, ACTS OF GOD, TECHNICAL FAILURE OF THE SOFTWARE, TELECOMMUNICATIONS INFRASTRUCTURE, OR DELAY OR DISRUPTION ATTRIBUTABLE TO VIRUSES, DENIAL OF SERVICE ATTACKS, INCREASED OR FLUCTUATING DEMAND, AND ACTIONS AND OMISSIONS OF THIRD PARTIES. THEREFORE, THE LICENSOR EXPRESSLY DISCLAIMS ANY EXPRESSED OR IMPLIED WARRANTY REGARDING SYSTEM AND/OR SOFTWARE AVAILABILITY, ACCESSIBILITY, OR PERFORMANCE. THE LICENSOR DISCLAIMS ANY AND ALL LIABILITY FOR THE LOSS OF DATA DURING ANY COMMUNICATIONS AND ANY LIABILITY ARISING FROM OR RELATED TO ANY FAILURE BY THE LICENSOR TO TRANSMIT ACCURATE OR COMPLETE INFORMATION TO YOU.
8. LIMITED LIABILITY; NO LIABILITY FOR CONSEQUENTIAL DAMAGES
YOU ASSUME THE ENTIRE COST OF ANY DAMAGE RESULTING FROM YOUR USE OF THE PRODUCT AND THE INFORMATION CONTAINED IN OR COMPILED BY THE PRODUCT, AND THE INTERACTION (OR FAILURE TO INTERACT PROPERLY) WITH ANY OTHER HARDWARE OR SOFTWARE WHETHER PROVIDED BY THE LICENSOR OR A THIRD PARTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE LICENSOR OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF GOODWILL, WORK STOPPAGE, HARDWARE OR SOFTWARE DISRUPTION IMPAIRMENT OR FAILURE, REPAIR COSTS, TIME VALUE OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCT, OR THE INCOMPATIBILITY OF THE PRODUCT WITH ANY HARDWARE, SOFTWARE OR USAGE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU HEREBY EXPRESSLY ACKNOWLEDGE AND AGREE IN NO EVENT WILL LICENSOR'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES IN ANY ONE OR MORE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE EXCEED THE AMOUNT PAID BY YOU FOR THE PRODUCT OR APPLICABLE SUBSCRIPTION DURING PREVIOUS ONE MONTH. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY TO THE EXTENT THAT APPLICABLE LAW PROHIBITS SUCH LIMITATION.
8.1. Indemnification. You agree to indemnify, defend and hold harmless Licensor and its respective officers, directors, employees, agents, successors, and assigns from any and all losses, liabilities, damages and claims, and all related expenses (including reasonable legal fees and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties) and costs related to, arising from, or in connection with any third-party claim related to, arising from, or in connection with the actual or alleged: (i) infringement by Licensee of any third-party intellectual property and/or proprietary right, including, but not limited to, patent, trademark, copyright, trade secret, publicity and/or privacy, (ii) personal injury (including death) or property damage due to the gross negligence or intentional misconduct of Licensee, and/or (iii) breach by Licensee of any of its representations, warranties, obligations, and/or covenants set forth herein.
8.2. Licensor Warranty. Licensor hereby warrants that:
- a.it has all the necessary rights, titles, and/or interests, in Products to grant Licensee the rights and licenses contained in this Agreement; and
- b.to its knowledge, the Products does not infringe any patent, copyright, trademark or other intellectual property rights of any third party.
9. END OF AGREEMENT
Services provided under this software as a service agreement shall be provided for the period defined in the ordering document unless earlier terminated in accordance with the agreement. The term of the services and any renewal years are collectively defined as the "services term." At the end of the services term, all rights to access or use the services, including the Softarex Technologies' programs listed in the ordering document, shall end.
If either of us breaches a material term of the agreement and fails to correct the breach within 30 days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate the applicable ordering document under which the breach occurred. If Softarex Technologies ends the ordering document as specified in the preceding sentence, you must pay within 30 days all amounts which have accrued prior to such end, as well as all sums remaining unpaid for the services ordered under the agreement plus related taxes and expenses. If Softarex Technologies ends the services under the Indemnification section, you must pay within 30 days all amounts remaining unpaid for services plus related taxes and expenses. The nonbreaching party may agree in its sole discretion to extend the 30-day period for so long as the breaching party continues reasonable efforts to cure the breach. You agree that if you are in default under the Agreement, you may not use the services ordered.
At your request, and for a period of up to 60 days after the termination of the applicable ordering document, Softarex Technologies may permit you to access the services solely to the extent necessary for you to retrieve a file of your data then in the services environment.
You agree and acknowledge that Softarex Technologies has no obligation to retain your data and that your data may be irretrievably deleted after 60 days following the termination of the ordering document.
Provisions that survive termination or expiration of the agreement are those relating to limitation of liability, infringement indemnity, payment, and others which by their nature are intended to survive.
10. NOTICE TO U.S. AND EU USERS
10.1. Notice to U.S. Government End Users. The Product and accompanying Documentation are deemed to be "Commercial Items," as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", respectively, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights, including any use, modification, reproduction, release, performance, display or disclosure of the Product and accompanying Documentation, as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
10.2. Export Restrictions. If you are a U.S. or EU person or entity or if you are otherwise subject to U.S. or EU laws and regulations, you acknowledge and agree that the Product may be subject to restrictions and controls imposed by the export control regulations of the United States or European Union (the "Acts"). You agree and certify that neither the Product nor any direct product thereof is being or will be used for any purpose prohibited by the Acts. You may not Use, download, export, or re-export the Product into, or to a national or resident of, any country to which the United States or European Union has embargoed goods. By Using the Product, you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country. You acknowledge that it is your sole responsibility to comply with any and all government export and other applicable laws and that the Licensor has no further responsibility for such after the initial license to you.
11. YOUR INFORMATION AND THE LICENSOR'S PRIVACY
12. FORCE MAJEURE
Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated party. We both will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either of us may cancel unperformed services upon written notice. This section does not excuse either party's obligation to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for the services.
13.1. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Virginia without reference to conflicts of law rules and principles. To the extent permitted by law, the provisions of this Agreement shall supersede any provisions of the Uniform Commercial Code as adopted or made applicable to the Products in any competent jurisdiction. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly disclaimed and excluded. The federal and state courts within the Commonwealth of Virginia shall have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement. You agree that this Agreement is to be performed in the Commonwealth of Virginia and that any action, dispute, controversy, or claim that may be instituted based on this Agreement, or arising out of or related to this Agreement or any alleged breach thereof, shall be prosecuted exclusively in the federal or state courts of the Commonwealth of Virginia and you, to the extent permitted by applicable law, hereby waive the right to change venue to any other state, county, district or jurisdiction; provided, however, that the Licensor as claimant shall be entitled to initiate proceedings in any court of competent jurisdiction.
13.2. Period for Bringing Actions. No action, regardless of form, arising out of the transactions under this Agreement, may be brought by either party hereto more than one (1) year after the cause of action has occurred, or was discovered to have occurred, except that an action for infringement of intellectual property rights may be brought within the maximum applicable statutory period.
13.3. Entire Agreement; Severability; No Waiver. This Agreement is the entire agreement between you and supersedes any other prior agreements, proposals, communications or advertising, oral or written, with respect to the Product or to subject matter of this Agreement provided that the Licensor and you may limit, modify or changes the applicability of the terms of this Agreement by a prior, contemporaneous or subsequent written agreement by referencing this Section 13.3 of the Agreement and expressly providing for such limitation, modification or changes. You acknowledge that you have read this Agreement, understand it and agree to be bound by its terms. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, void, or unenforceable for any reason, in whole or in part, such provision will be more narrowly construed so that it becomes legal and enforceable, and the entire Agreement will not fail on account thereof and the balance of the Agreement will continue in full force and effect to the fullest extent permitted by law. No waiver of any breach of any provisions of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach and no waiver will be effective unless made in writing.
13.4. Class Action Waiver. Any proceedings to resolve or litigate any dispute in any forum in connection with this Agreement shall be conducted solely on an individual basis. Neither you nor Licensor shall seek to have any dispute or controversy in connection with this Agreement heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity. Parties further agree that no arbitration or proceeding shall be combined with another arbitration or proceeding without the prior written consent of the other party.
13.5. Contact Information. Should you have any questions concerning this Agreement, or if you desire to contact the Licensor for any reason, please contact our Customer Department by writing to: email@example.com
Copyright © 2017 Softarex Technologies, Inc. and its licensors. All rights reserved. The Product, including the Software and any accompanying Documentation, are copyrighted and protected by copyright and trademark laws and international copyright and trademark treaties, as well as other intellectual property laws and international agreements. Softarex Technologies™ and related logo, and all related product and service names, design marks and slogans are the trademarks and/or registered trademarks of Softarex Technologies, Inc. All other product and service marks contained herein are the trademarks of their respective owners. Any use of the Softarex Technologies' or third party trademarks or logos without the prior written consent of Softarex Technologies, Inc. or the applicable trademark owner is strictly prohibited.
Third Party Application/Open Source Licenses