IMPORTANT, READ CAREFULLY:
This End-User License Agreement (this "Agreement") is a legal agreement between the entity for which you are authorized to enter into this Agreement ("Licensee") and FlowTraq, Inc. ("Licensor") for the FlowTraq(R) suite of software products provided by Licensor (the "Licensed Software"), and the related associated media, printed materials, and "online" or electronic documentation (collectively, the "Documentation"). The Licensed Software also includes any updates, upgrades and supplements to the original Licensed Software provided to Licensee by Licensor, if any.
YOU HEREBY ACKNOWLEDGE AND REPRESENT THAT YOU ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE.
YOU ALSO AGREE THAT LICENSEE'S USE OF THE LICENSED SOFTWARE CONSTITUTES AN ACKNOWLEDGMENT THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND THAT LICENSEE SHALL BE BOUND BY ITS TERMS AND CONDITIONS.
THE LICENSED SOFTWARE IS PROTECTED BY COPYRIGHT LAWS OF THE UNITED STATES AND INTERNATIONAL COPYRIGHT TREATIES, AS WELL AS OTHER INTELLECTUAL PROPERTY LAWS AND TREATIES.
THE LICENSED SOFTWARE IS LICENSED, NOT SOLD.
By clicking on the "I accept the terms of the Licensee Agreement" button, "Accept" button, or similar button, or by installing, copying, downloading, accessing, or otherwise using the Licensed Software, Licensee agrees to be bound by the terms and conditions of this Agreement. IF YOU DO NOT OR CANNOT AGREE TO THE TERMS OF THIS AGREEMENT ON BEHALF OF LICENSEE, OR IF LICENSEE DOES NOT AGREE TO SUCH TERMS, THEN CLICK ON THE "I do NOT accept the terms of the License Agreement" button, "DO NOT ACCEPT" BUTTON, OR SIMILAR BUTTON, AND/OR DO NOT INSTALL OR USE THE LICENSED SOFTWARE.
1.0 LICENSE.
1.1 License Type.
The Licensed Software is licensed to Licensee, pursuant to the terms of this Agreement, on a Subscription License (as defined below) basis, a Perpetual License (as defined below) basis, or an Evaluation License (as defined below) basis. The license key, a series of numbers, letters, and other symbols provided by Licensor, (the "License Key") determines whether Licensee's license is a Subscription License, a Perpetual License, or an Evaluation License, provided that if the License Key does not specify the type of license, then the Licensed Software shall be deemed to be licensed pursuant to a Subscription License and Licensee shall be obligated to pay the applicable license fee. In no event shall this Agreement be interpreted to provide Licensee with more than one type of license. A separate License Key shall be required for each server onto which the Licensed Software is installed.
1.2 Pilot Program.
In the event that Licensor provides the Licensed Software to Licensee in connection with Licensor's Pilot Program (the "Pilot Program") and Licensee has executed and delivered to Licensor the applicable License and Participant Agreement or other license agreement pursuant to which Licensor grants to Licensee a license to use the Licensed Software in connection with the Pilot Program (the "Pilot Program License Agreement"), then the terms of the Pilot Program License Agreement shall apply to Licensee's use of the Licensed Software in connection with the Pilot Program and the terms of this Agreement shall not apply. If Licensee wishes to use the Licensed Software after expiration of Licensee's participation in the Pilot Program, then Licensee must contact Licensor to purchase a Subscription License or Perpetual License and pay the applicable Subscription Fee or Licensee Fee, as the case may be. Upon Licensor generating (a) a new License Key for a Subscription License and Licensee's payment of the applicable Subscription Fee, then Licensee's license shall thereafter be deemed to be a Subscription License, or (b) a new License Key for a Perpetual License and Licensee's payment of the applicable License Fee, then Licensee's license shall thereafter be deemed to be a Perpetual License.
1.3 Subscription License Grant.
If the License Key provided to Licensee is for a Subscription License, then subject to payment of the applicable subscription fee (the "Subscription Fee") and the terms and conditions of this Agreement, Licensor hereby grants to Licensee and Licensee hereby accepts a limited, non-exclusive right and license (the "Subscription License") to use the Licensed Software and the Documentation during the Initial Term (as defined in Section 2.1(a)) and any Renewal Term (as defined in Section 2.1(c)), for its internal business use only on a single server or other computer.
1.4 Perpetual License Grant.
If the License Key provided to Licensee is for a Perpetual License, then, subject to payment of the applicable license fee (the "License Fee") and the terms and conditions of this Agreement, Licensor hereby grants to Licensee and Licensee hereby accepts a limited, perpetual (except as otherwise set forth herein), non-exclusive right and license (the "Perpetual License") to use the Licensed Software and the Documentation, beginning on the Effective Date (as defined in Section 2.1(a)), for its internal business use only on a single server or other computer.
1.5 Evaluation License Grant.
(a) If the License Key provided to Licensee is for an Evaluation License, then, subject to the terms and conditions of this Agreement, Licensor hereby grants to Licensee and Licensee hereby accepts a limited, temporary, non-exclusive right and license (the "Evaluation License") to use the Licensed Software and the Documentation, beginning on the Effective Date, for evaluation purposes for its internal business use only on a single server or other computer. The duration of the Evaluation License shall be limited to a specific number of days (the "Evaluation License Period"), as determined by the applicable License Key, provided that if the License Key does not specify the number of days, then the Evaluation License Period shall be 120 days.
(b) If Licensee wishes to use the Licensed Software after expiration of the Evaluation License Period, then Licensee must contact Licensor to purchase a Subscription License or Perpetual License and pay the applicable Subscription Fee or Licensee Fee, as the case may be. Upon Licensor generating (i) a new License Key for a Subscription License and Licensee's payment of the applicable Subscription Fee, then Licensee's license shall thereafter be deemed to be a Subscription License, or (ii) a new License Key for a Perpetual License and Licensee's payment of the applicable License Fee, then Licensee's license shall thereafter be deemed to be a Perpetual License.
(c) The following provisions of this Agreement shall be deemed to be modified as follows during the Evaluation License Period:
(i) Licensor provides no warranty, express or implied, of any kind during the Evaluation License Period. During the Evaluation License Period, Licensor provides the Licensed Software "AS IS", AND THE LIMITED WARRANTY (AS DEFINED IN SECTION 5.1) SHALL NOT APPLY, AND SHALL BE VOID AND OF NO FORCE AND EFFECT.
(ii) During the Evaluation License Period, the indemnification provisions of Article 7.0 shall be void and of no force and effect, and Licensor shall have no indemnification obligations pursuant to this Agreement.
(iii) During the Evaluation License Period, Licensor shall provide the Maintenance Services (as defined in Section 4.1(a)) and Standard Support Services (as defined in Section 4.1(b)) only on a limited, as-available basis.
1.6 Evaluation License - Certain Restrictions.
(a) If Licensee uses the Licensed Software pursuant to an Evaluation License, then the provisions of this Section shall apply.
(b) Notwithstanding the presence or absence of any copyright and/or proprietary legends in the Licensed Software, Licensee agrees to keep confidential all information concerning the Licensed Software received from Licensor or otherwise obtained by Licensee, during the term of this Agreement, and not to disclose any information concerning the Licensed Software to any third party without Licensor's prior written approval. Licensee shall permit access to the Licensed Software only to those employees of Licensee that are involved in testing and evaluating the Licensed Software. Licensee agrees to inform each of its employees given access to the Licensed Software or any portion thereof of the confidential nature thereof and to require them to abide by Licensee's obligations under this Agreement. Licensee shall not be required to maintain the confidentiality of information to the extent that Licensee can demonstrate that such information is or becomes known to the public from a source other than through Licensee without breach of a confidentiality restriction.
(c) All reports, designs, specifications, and other materials and all rights in all media made and/or developed which pertain to the Licensed Software, whether prepared by Licensor or Licensee, shall be the exclusive property of Licensor throughout the world; and all such reports, designs, specifications or other materials and all media shall be kept confidential by Licensee. In addition, Licensor shall have the sole and exclusive right to register copyright of such materials in its own name in any and all countries and to obtain renewals and manufacture, reproduce, publish, distribute, and sell such media. All right, title, and interest throughout the world to any invention relating to enhancement of the Licensed Software, whether or not patentable, conceived in or made in the course of or as a result of Licensee's efforts shall be the exclusive property of Licensor. Licensee agrees to assign and hereby does assign all right, title and interest in and to any such media, reports, designs, specifications or other materials, or inventions to Licensor, and Licensee agrees to perform all acts and execute all applications, assignments and other documents reasonably necessary or desirable to effectuate the foregoing assignment.
(d) Licensee covenants and agrees that:
(i) the Licensed Software will be installed only at the one (1) site owned by Licensee;
(ii) the Licensed Software will only be accessed by employees of Licensee;
(iii) the Licensed Software will not be used for any purpose other than internal evaluation and, specifically, will not be used in or for Licensee's actual business operations;
(iv) Licensee shall provide a suitable and adequate computing environment (including appropriate hardware) for the installation, use and evaluation of the Licensed Software;
(v) Licensee shall provide Licensor with status reports and other information relating to Licensee's use of Licensed Software as may be reasonably requested from time to time by Licensor; and
(vi) Licensee agrees that during and after the Evaluation License Period, Licensee will not make any announcement or otherwise make public any assessment or feedback of the Licensed Software without the prior written consent of Licensor.
1.7 Licensed Copy(ies).
Licensee may install and use one (1) copy of the Licensed Software on a single operating system on a single computer for each licensed copy of the Licensed Software licensed by Licensee. Only the number of concurrent users for which Licensee has purchased a license may use such copy of the Licensed Software.
1.8 Licensee Changes.
(a) At any time during the term of this Agreement, at Licensee's request, and subject to Licensee being in compliance with its obligations under this Agreement, and payment of additional License Fees (with respect to a Perpetual License) or Subscription Fees (with respect to a Subscription License), Licensor agrees to provide to Licensee license keys to authorize use of the Licensed Software on one (1) or more additional servers (each an "Authorized Server"). In the event of any such increase, the Licensee Fee (and applicable Maintenance Service Fees (as defined in Section 4.3)) or Subscription Fee payable by Licensee under this Agreement shall be adjusted accordingly, based on the then applicable Subscription Fee or License Fee (and Maintenance Service Fee) for the total number of Authorized Servers. With respect to a Subscription License, the Subscription Fees payable by Licensee for the year in which such increase in Authorized Servers takes effect shall be prorated according to the number of full or partial months remaining in the year in which such increase takes effect.
(b) In the event that Licensee wishes to reduce the number of Authorized Servers under the Perpetual License during the term of this Agreement, Licensee shall provide written notice to Licensor of such reduction. Licensee shall be responsible for payment of the full amount of the Maintenance Services Fee for the entire Maintenance Period (as defined in Section 4.3), in which the reduction occurs. In addition, all License Fees and Maintenance Service Fees are NON-REFUNDABLE and Licensee shall not receive any refund for any License Fees or for any portion of the Maintenance Service Fees as a result of a reduction in the number of Authorized Servers.
(c) Licensee may not reduce the number of Authorized Servers under the Subscription License during the Initial Term or any Renewal Term. However, Licensee shall have the right to reduce the number of total Authorized Servers effective as of the first day of any Renewal Term by providing Licensor with notice of such change. With respect to a Subscription License, in the event of any reduction in the number of Authorized Servers pursuant to the terms of this Agreement, the Subscription Fees payable by Licensee for the applicable Renewal Term shall be adjusted accordingly.
1.9 Licensee Hardware Requirements. Licensee shall provide a suitable and adequate computing environment (including appropriate hardware) for the installation and use of the Licensed Software, and hereby acknowledges and agrees that the failure to provide such a computing environment may adversely affect the ability of the Licensed Software to function fully.
2.0 TERM AND TERMINATION.
2.1 Term; Initial Term and Renewal Terms.
(a) If Licensee purchases a Subscription License, then the initial term of the Subscription License (the "Initial Term") shall be the one (1) year period commencing on the day on which Licensor generates the applicable License Key (the "Effective Date").
(b) If Licensee purchases a Perpetual License, then the term of the Perpetual License shall commence on the Effective Date and continue thereafter until terminated in accordance with the provisions of this Agreement.
(c) If Licensee purchases a Subscription License, then Licensee may extend the term of the Subscription License beyond the Initial Term for one (1) or more additional one (1) year periods (each, a "Renewal Term") provided that Licensee provides Licensor with written notice of renewal (the "Renewal Notice") prior to the expiration of the then current Initial Term or Renewal Term, and pays to Licensor the then applicable Subscription Fees prior to the expiration of the then current Initial Term or Renewal Term. The Subscription Fees payable for any Renewal Term shall be at Licensor's annual subscription rates then in effect on the date of the Renewal Notice.
(d) The term of this Agreement shall commence on the Effective Date and shall continue thereafter until terminated in accordance with the provisions of this Agreement.
2.2 Termination for Non-Payment.
(a) Any amount payable to Licensor hereunder (including any License Fee, Subscription Fee, Services Fee, Extended Support Service Fee, or Consulting Fee) which is overdue shall accrue interest at the rate of one percent (1%) per month until paid in full.
(b) In addition, in the event that Licensee fails to pay within thirty (30) days after the applicable due date any License Fee, Subscription Fee, Services Fee, Extended Support Services Fee, or Consulting Fee, then (i) with respect to any unpaid License Fee, Licensor may immediately terminate the applicable Perpetual License by sending written notice of termination to Licensee, (ii) with respect to any unpaid Subscription Fee, Licensor may immediately terminate the applicable Subscription License and terminate providing any Maintenance Services by sending written notice of termination or suspension to Licensee, (iii) with respect to any unpaid Services Fee, Licensor may immediately suspend providing any Maintenance Services and Standard Support Services without notice, or immediately terminate providing any Maintenance Services and Standard Support Services by sending written notice of termination, (iv) with respect to any unpaid Extended Support Services Fee, Licensor may immediately suspend providing any Extended Support Services without notice, or immediately terminate providing any Extended Support Services by sending written notice of termination, and (v) with respect to any unpaid Consulting Fee, Licensor may immediately suspend providing any Consulting Services without notice, or immediately terminate providing any Consulting Services by sending written notice of termination, .
2.3 Termination By Either Party.
(a) Licensee may terminate this Agreement at any time by notifying Licensor in writing of termination. Upon termination of this Agreement by Licensee, the Evaluation License, Subscription License or Perpetual License (as the case may be) shall also automatically and immediately terminate. All fees paid by Licensee, including all License Fees, Subscription Fees, Services Fees, and Extended Support Services Fees, and Consulting Fees are NON-REFUNDABLE.
(b) In addition to the provisions of Section 2.2 above and without prejudice to any other rights, Licensor may terminate this Agreement by written notice to Licensee if Licensee breaches or otherwise fails to comply with the terms and conditions of this Agreement. Upon any such termination of this Agreement by Licensor, the Evaluation License, Subscription License or Perpetual License (as the case may be) shall also automatically and immediately terminate.
2.4 Effect of Termination.
(a) Upon any termination of the Evaluation License, Subscription License, or the Perpetual License (as the case may be), Licensee shall immediately discontinue use of the Licensed Software and shall within three (3) days return to Licensor, or certify destruction of, all full or partial copies of the Licensed Software and Documentation.
(b) No termination of the Subscription License, the Perpetual License, or this Agreement shall (i) relieve Licensee from its obligation to pay any charges for Subscription Fees, Licensee Fees, Services Fees, Extended Support Services Fees, or Consulting Fees accrued prior to the termination date, or (ii) except as specifically set forth in Section 5.3, obligate Licensor to refund or otherwise return any payments made by Licensee pursuant to this Agreement. ALL LICENSE FEES, SUBSCRIPTION FEES, SERVICES FEES, EXTENDED SUPPORT SERVICES FEES, AND CONSULTING FEES PAID TO LICENSOR ARE NON-REFUNDABLE.
(c) The provisions of Sections 1.5(c)(i), 1.5(c)(ii), 1.6(b), 1.6(c), 2.2(a), 2.4, 3.5, 3.8, 5.2, 5.3, 6.1, 6.2, 8.1, 8.2, 8.3, 8.4, and of Article 9.0 shall survive termination of this Agreement.
3.0 OTHER RIGHTS AND LIMITATIONS.
3.1 Limitations on Reverse Engineering, Decompilation, and Disassembly.
Licensee may not reverse engineer, decompile, or disassemble the Licensed Software, except to the extent that this restriction is expressly prohibited by law.
3.2 Separation of Components.
The Licensed Software is licensed as a single product. Its component parts may not be separated by Licensee for any reason.
3.3 Limited Copy Rights.
During the term of the Subscription License (if Licensee purchases a Subscription License) or the Perpetual License (if Licensee purchases a Perpetual License), and subject to the inclusion of any and all copyright and proprietary notices appearing in or on the Licensed Software in the form provided by Licensor, Licensee may make a reasonable number of copies of the Licensed Software, but only as may be necessary for archival, back-up, or disaster recovery purposes. Licensee may not make any copies of the Licensed Software used pursuant to an Evaluation License.
3.4 Restrictions on Transfer.
Licensee may not rent, lease, sell, sublicense, distribute, or otherwise transfer (including, without limitation, transfer by operation of law in connection with a merger) rights to the Licensed Software unless Licensee obtains Licensor's prior, express written consent.
3.5 Intellectual Property Rights.
(a) The Licensed Software and the Documentation, as well as all patents, copyrights, trademarks, service marks, trade secrets, and other intellectual property and proprietary rights in or related to the Licensed Software and the Documentation (collectively, the "IP Rights"), are and will remain the exclusive property of Licensor or its licensors, whether or not specifically recognized or perfected under the laws of the jurisdiction in which the Licensed Software is used or licensed. Licensee shall not take any action that jeopardizes any of the IP Rights. Except for the specific license rights granted to Licensee pursuant to this Agreement, Licensee shall not have or acquire under this Agreement any right, title, or interest in or to the Licensed Software or the Documentation.
(b) Without limiting the generality of the provisions in subsection (a) above, this Agreement does not grant Licensee any rights in connection with any trademarks or service marks of Licensor.
3.6 Geographical Limitations.
If Licensee downloads the Licensed Software (in connection with a Perpetual License or otherwise), then the Licensed Software and the Documentation may only be used in the United States and in any country that is a party to the Berne Copyright Convention, subject, however, to compliance with applicable U.S. export laws and regulations. Licensee shall be responsible, at its expense, for complying with all applicable laws and regulations of each jurisdiction where there is a user of the Licensed Software (including, without limitation, laws and regulations pertaining to (a) exports or imports of software and related property, (b) use or remote use of software and related property, and (c) registration of this Agreement). Licensee shall indemnify and hold harmless Licensor and its affiliates from and against all actions, claims, and proceedings brought or asserted against, and all damages, losses, liabilities, costs, and expenses (including reasonable attorneys' fees) suffered or incurred, by Licensor and its affiliates arising out of any violation or alleged violation by Licensee of any such laws or regulations.
3.7 Export Compliance.
The Licensed Software may contain strong encryption and may be subject to United States export controls. Licensee shall not export or re-export the Licensed Software, directly or indirectly, in violation of applicable export restrictions, including to:
(a) any countries that are subject to United States export restrictions;
(b) any end-user who Licensee knows or reasonably should know will utilize them in the design, development or production of military, nuclear, chemical or biological weapons; or
(c) any end-user who has been prohibited from participating in the United States export transactions by any federal agency of the United States government.
Licensee further acknowledges that the Licensed Software may include technical data subject to export and re-export restrictions imposed by United States law, and Licensee shall comply with all such applicable United States laws.
3.8 Audit Rights.
At Licensor's request from time to time, Licensee shall provide Licensor with a list of all copies and locations of the Licensed Software and the Documentation. Licensor, or an auditor of Licensor's choosing, may also from time to time perform an audit of Licensee's use of the Licensed Software and the Documentation and Licensee's compliance with the terms of this Agreement. Any such audit shall be made during Licensee's normal business hours, shall be undertaken after reasonable prior written notice thereof has been given by Licensor to Licensee, and shall not unreasonably interfere with Licensee's business operations. Licensee agrees to cooperate with Licensor in any such audit. In the event that any such audit indicates a deployment of the Licensed Software in excess of the specified number of Authorized Servers, Licensee shall promptly reimburse Licensor for the costs of such audit and pay additional Subscription Fees or Licensee Fees (as the case may be) to Licensor for such unauthorized use.
4.0 MAINTENANCE AND SUPPORT SERVICES
4.1 In General - Maintenance Services and Standard Support.
(a) Licensor shall provide Licensee with the following maintenance services for the Licensed Software ("Maintenance Services") in accordance with the terms of this Agreement: all new releases, corrections, bug fixes, enhancements and new features, updates, security patches, and other similar changes (but generally excluding new software modules) to the Licensed Software as Licensor generally releases to its other customers who have contracted for Maintenance Services for the Licensed Software.
(b) In addition, Licensor shall provide Licensee with the following standard support services for the Licensed Software ("Standard Support Services") in accordance with the terms of this Agreement:(i) authorized access to Licensor's maintenance and support center on the World Wide Web at http://support.flowtraq.com/, (ii) email support by sending an email to "support@proquesys.com ", (iii) in the event that a particular matter is not resolved by the online maintenance and support center or by email in a reasonable period of time, Licensee may request telephone support from 9:00 a.m. until 5:00 p.m. (Eastern Time) each business day, and (iv) remote troubleshooting assistance for common support issues, when available and with Customer's consent and cooperation.
4.2 Maintenance Services and Standard Support Services - Subscription License.
If Licensee purchases a Subscription License, then the cost of the Maintenance Services and Standard Support Services is included in the Subscription Fee. Licensor shall provide Maintenance Services and Standard Support Services during the Initial Term and any Renewal Term for which the Subscription Fee is paid in full. Maintenance Services and Standard Support Services will end immediately and automatically upon expiration of the Initial Term or Renewal Term pursuant to Section 2.3, or termination of the Subscription License or this Agreement.
4.3 Maintenance Services and Standard Support Services - Perpetual License.
(a) If Licensee purchases a Perpetual License, then the License Fee does not include the cost of Maintenance Services or Standard Support Services. Instead, Licensee must pay an additional fee for Maintenance Services and Standard Support Services (the "Services Fee") for each year for which Licensee desires Maintenance Services and Standard Support Services (the "Services Period"). The fee for Maintenance Services and Standard Support Services must be paid in full in advance for each such year.
(b) If Licensee purchases a Perpetual License, then Licensee is not required to purchase Maintenance Services and Standard Support Services for periods after the Initial Term. However, if Licensee does not purchase Maintenance Services and Standard Support Services for some period of time, and thereafter purchases Maintenance Services and Standard Support Services, then, in addition to the Services Fees otherwise payable to Licensor, Licensee shall also pay the full amount of all Service Fees that would have been payable by Licensee had Licensee purchased such Maintenance Services and Standard Support Services at Licensor's standard rates for all prior periods in which Licensee did not pay Licensee for such Maintenance Services and Standard Support Services.
4.4 Extended Support Services.
For an additional fee (the "Extended Support Services Fee") Licensee may purchase support services in addition to the Standard Support Services. Such additional support services (the "Extended Support Services") consist of (a) priority response to support requests, and (b) telephone support twenty-four (24) hours each day, seven (7) days each week (including holidays) by qualified personnel for troubleshooting assistance. Such Extended Support Services shall be provided in accordance with the FlowTraq Support Service Description available upon request.
4.5 Consulting Services.
(a) "Consulting Services" means any services provided by Licensor with respect to the Licensed Software, other than the Maintenance Services, Standard Support Services or Extended Support Services, and may include (i) assisting Licensee with optimizing Licensee's use of the Licensed Software, (ii) consulting with Licensee regarding the functionality and capabilities of the Licensed Software, (iii) assisting Licensee with use of the Licensed Software (including the building of filters, views, or workspaces) to achieve Licensee's particular goals, or (iv) advising Licensee regarding the strategic deployment of the Licensed Software through Licensee's entire enterprise.
(b) Neither the Subscription Fee nor the License Fee includes fees for providing Consulting Services, and Licensee shall pay Licensor a separate fee for providing the Support Services (the "Consulting Fees").
4.6 Licensee-Provided Information.
With respect to technical information Licensee provides to Licensor in connection with the Maintenance Services or Support Services, Licensor may use such information for its business purposes, including for product maintenance, support and development. Licensor will not utilize such technical information in a form that identifies Licensee.
5.0 WARRANTY PROVISIONS
5.1 Limited Warranty.
Licensor warrants that, for a period of thirty (30) days from the date on which the Licensed Software is delivered to Licensee, by download, on a physical media, or otherwise (the "Limited Warranty Period"), the Licensed Software will perform substantially in accordance with the Documentation (the "Limited Warranty"). HOWEVER, LICENSOR DOES NOT WARRANT THAT LICENSEE'S USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR THAT THE OPERATION OF THE SOFTWARE WILL BE ERROR-FREE.
5.2 Limitations.
(a) The Limited Warranty shall immediately terminate if (i) any modifications are made to the Licensed Software by Licensee or any third party (other than a third party authorized by Licensor to make specific modifications) during the Limited Warranty Period, (ii) the media (if any) on which the Licensed Software is delivered is subjected to accident, abuse, or improper use, or (iii) Licensee breaches the terms of this Agreement.
(b) The Limited Warranty shall not apply if the Software is used on or in conjunction with hardware or software other than the unmodified version of hardware and software with which the Software was designed to be used as described in the Documentation. THE LIMITED WARRANTY GIVES LICENSEE SPECIFIC LEGAL RIGHTS; LICENSEE MAY HAVE OTHER RIGHTS THAT VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION.
(c) The Limited Warranty shall not apply unless Licensee informs Licensor of the problem with the Licensed Software during the Limited Warranty Period.
(d) THE EXPRESS WARRANTY SET FORTH IN SECTION 5.1 OF THIS AGREEMENT IS IN LIEU OF, AND LICENSOR DISCLAIMS, ANY AND ALL OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), WITH RESPECT TO THE LICENSED SOFTWARE OR ANY PART THEREOF OR WITH RESPECT TO ANY SERVICES PROVIDED OR TO BE PROVIDED BY LICENSOR, WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING, OR OTHERWISE. SUCH DISCLAIMED WARRANTIES INCLUDE, BUT ARE NOT LIMITED TO, ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT LICENSOR KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), OR NON-INFRINGEMENT. THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE MADE SOLELY TO LICENSEE AND NOT TO OR FOR THE BENEFIT OF ANY THIRD PARTY.
5.3 Remedies.
Licensor's sole liability for a breach of the Limited Warranty, and Licensee's sole remedy, shall be (in Licensor's sole discretion): (a) to replace the defective media on which the Licensed Software was delivered; (b) to advise Licensee how to achieve substantially the same functionality with the Licensed Software as described in the Documentation through a procedure different from that set forth in the Documentation; or (c) if the above remedies are impracticable in Licensor's judgment, to refund the Subscription Fee or License Fee (as the case may be) Licensee paid for the Licensed Software and terminate this Agreement and the Subscription License or Perpetual License (as the case may be). Repaired, corrected, or replaced Licensed Software shall be covered by the Limited Warranty for the longer of (i) the unexpired portion of the then applicable Limited Warranty Period, or (ii) thirty (30) days after the date Licensor either shipped to Licensee the repaired or replaced Licensed Software or advised Licensee as to how to operate the Licensed Software so as to achieve the functionality described in the Documentation, whichever is applicable.
6.0 LIMITATION OF LIABILITY
6.1 Consequential Damages Limitation.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL LOSSES OR DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF OR RESULTING FROM THE USE OF OR INABILITY TO USE THE LICENSED SOFTWARE, THE MAINTENANCE SERVICES, OR THE SUPPORT SERVICES, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO A BREACH BY LICENSOR OF ITS OBLIGATIONS UNDER ARTICLE 7.0 OR A CLAIM FOR PERSONAL INJURY OR PROPERTY DAMAGE (EXCLUDING, HOWEVER, ANY SUCH CLAIM AGAINST LICENSOR RELATING TO THE PERFORMANCE OR NON-PERFORMANCE OF THE LICENSED SOFTWARE).
6.2 Direct Damages Limitation.
LICENSOR'S LIABILITY FOR ANY BREACH OR DEFAULT UNDER THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, ANY BREACH OF ANY WARRANTY GIVEN BY LICENSOR UNDER THIS AGREEMENT) SHALL BE LIMITED TO THE AMOUNT OF LICENSEE'S DIRECT DAMAGES RESULTING FROM SUCH BREACH OR DEFAULT, NOT TO EXCEED THE AMOUNTS RECEIVED BY LICENSOR WITH RESPECT TO THE LICENSED SOFTWARE, THE MAINTENANCE SERVICES, THE STANDARD SUPPORTS SERVICES, EXTENDED SUPPORT SERVICES, OR CONSULTING SERVICES GIVING RISE TO SUCH BREACH OR DEFAULT, IN THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION ACCRUED. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO AMOUNTS PAYABLE BY LICENSOR TO A THIRD PARTY CLAIMANT UNDER ARTICLE 7.0 OR A CLAIM FOR PERSONAL INJURY OR PROPERTY DAMAGE (EXCLUDING, HOWEVER, ANY CLAIM AGAINST LICENSOR RELATING TO THE PERFORMANCE OR NON-PERFORMANCE OF THE LICENSED SOFTWARE OR ANY OF LICENSOR'S SERVICES).
7.0 INDEMNIFICATION
7.1 Third-Party Claims.
Licensor will defend at its own expense any action against Licensee brought by a third party to the extent that the action is based upon a claim that the Licensed Software infringes any United States copyright or misappropriates any United States trade secret, and Licensor will pay those costs and damages finally awarded against Licensee in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action made by Licensor.
7.2 Conditions.
Licensor's obligations under Section 7.1 are conditioned on (a) Licensee notifying Licensor promptly in writing of the commencement of any such action, (b) Licensee giving Licensor sole control of the defense thereof and any related settlement negotiations, and (c) Licensee cooperating with Licensor in such defense.
7.3 Licensor's Options.
If the Licensed Software becomes, or in Licensor's opinion is likely to become, the subject of an infringement or misappropriation claim, Licensor may, at its option and expense, either (a) procure for Licensee the right to continue using the Licensed Software, (b) replace or modify the Licensed Software so that it becomes non-infringing, or (c) terminate the Evaluation License, Subscription License or Perpetual License, as the case may be. If the License is terminated under clause (c) above, then Licensor shall refund to Licensee the following amount: (i) with respect to a Subscription License, a portion of the annual Subscription Fee pro-rated according to the remaining portion of the then current Initial Term or Renewal Term, and (ii) with respect to a Perpetual License, a pro rata portion of the Licensee Fee, amortized over the first five (5) year period of the Perpetual License.
7.4 Exclusions.
Notwithstanding the foregoing, Licensor will have no obligation with respect to any infringement or misappropriation claim if the Licensed Software (a) is being used not in accordance with this Agreement or not in accordance with the Documentation, or (b) has been modified by Licensee or any third party.
7.5 Entire Liability.
Licensor's obligations under this Article shall constitute its only obligations in the event that any claim or action is brought against Licensee alleging that the Licensed Software infringes, misappropriates, or otherwise violates the rights of any third party.
8.0 ARBITRATION AND JURISDICTION
8.1 Binding Arbitration.
Licensee and Licensor agree that the exclusive remedy for all disputes and claims relating in any way to, or arising out of, this Agreement (including the arbitrability of any claim or dispute and the enforceability of this paragraph), or to any other alleged act or omission by either party toward the other (excepting only any cause of action giving rise to a claim for equitable relief), shall be binding arbitration. Any such claim shall be submitted to arbitration before a single arbitrator; provided that if Licensee and Licensor are unable to agree to an arbitrator, the dispute shall instead be submitted to a panel of three (3) arbitrators. The arbitrator(s) shall be selected in accordance with the then-prevailing Rules of Commercial Arbitration of the American Arbitration Association ("AAA"), and the arbitration proceedings shall be conducted in Manchester, New Hampshire.
8.2 Authority of the Arbitrators.
The arbitrator(s) shall not contravene or vary in any respect any of the terms or provisions of this Agreement. The award of the arbitrator(s) shall be final and binding upon Licensor and Licensee, and judgment upon any award rendered therein may be entered and enforced in any court of competent jurisdiction, including the New Hampshire Superior Court.
8.3 Injunctive Relief.
Neither this arbitration provision nor a pending arbitration shall prevent either party from obtaining injunctive relief for any matter at any time.
8.4 Choice of Law.
This Agreement shall be governed by the laws of the State of New Hampshire, without regard to conflicts of law provisions.
9.0 MISCELLANEOUS
9.1 Entire Agreement.
This Agreement shall constitute the complete and exclusive agreement between Licensor and Licensee with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications, proposals, understandings, or other agreements, whether oral, electronic, or written, between them regarding the subject matter hereof. The acceptance of any purchase order by Licensor is expressly made conditional on Licensee's consent to the terms set forth herein.
9.2 Modification.
The terms and conditions contained in this Agreement may not be modified by Licensee except in a writing duly signed by Licensee and an authorized representative of Licensor.
9.3 Notice.
Any notice required to be given to a party under this Agreement shall be in writing and shall be (a) given by personal delivery to such party, (b) mailed by registered or certified mail, return receipt requested, postage prepaid, or (c) shipped by a nationally-recognized overnight carrier, shipping prepaid. Any such notice shall be sent to Licensor at the address set forth below in Article 10.0, or Licensee at the address in Licensor's records. Either party may at any time change the address to which written notices are to be sent to such party, by notifying the other party of the new address by written notice.
9.4 Assignment.
(a) This Agreement shall be binding upon and for the benefit of the parties hereto and their respective successors and permitted assigns. Licensor may assign this Agreement at its discretion. Except as set forth in subsection (b) below, Licensee may not assign, sublicense or otherwise transfer any rights by operation of law or otherwise (including as the result of a merger, sale of assets, stock sale, or other transaction resulting in a change of control) under this Agreement, any license granted hereunder, or any of Licensee's rights hereunder, in whole or in part.
(b) Licensee may assign or transfer this Agreement in its entirety to a purchaser which acquires control of Licensee or all or substantially all of Licensee's assets, but if and only if, (i) no later than thirty (30) days following such purchase, Licensee and such purchaser provide Licensor with written notice thereof, including the unconditional written agreement by such purchaser to be bound by all of the provisions of this Agreement, and (ii) Licensor consents to such assignment, which consent shall not be unreasonably withheld.
9.5 Severability.
Each term, condition, and provision of this Agreement shall be valid and enforced to the fullest extent permitted by law. If there is any conflict between any term, condition, or provision of this Agreement and any statute, law, ordinance, order, rule, or regulation, the latter shall prevail; provided, that any such conflicting term, condition, or provision shall be curtailed and limited only to the extent necessary to bring it within the legal requirements and the remainder of this Agreement shall not be affected thereby.
9.6 U.N. Convention.
This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.
9.7 Taxes.
Any United States (whether federal, state, or local) or foreign sales, use, or other taxes (excluding only any tax based on Licensor's net income), assessments, or other governmental fees or charges arising from any payments made or to be made by Licensee to Licensor for the Licensed Software or with respect to its use, or otherwise related to or arising out of this Agreement, are the responsibility of and shall be paid by Licensee or, if Licensor is required to pay the same, shall be reimbursed by Licensee to Licensor upon demand.
9.8 Waiver.
No failure or delay by either party to exercise any right or remedy specified herein shall be construed as a current or future waiver of such remedy or right, unless said waiver is in writing signed by a duly authorized representative of the party issuing such waiver.
10.0 CONTACT INFORMATION
If Licensee has any questions concerning this Agreement, or if Licensee wishes to contact Licensor for any reason, please contact Licensor at the street address or email address below:
FlowTraq, Inc
16 Cavendish Court
Lebanon, New Hampshire 03766
<support@flowtraq.com>
FlowTraq incorporates Restlet, 2005-2011 Noelios Technologies. "Restlet" is a registered trademark of Noelios Technologies. Restlet is available under the terms of the LGPL 2.1.
For a copy of the Restlet source code, please contact <support@flowtraq.com> or visit http://www.restlet.org for the most recent version.
FlowTraq incorporates JFreeChart, 2000-2009 by Object Refinery Limited and Contributors. JFreeChart is available under the terms of the LGPL 2.1.
For a copy of the JFreeChart source code, please contact <support@flowtraq.com> or visit http://www.jfree.org for the most recent version.
