This End User Licence Agreement (the "Licence Agreement") is between VITEC, including any of its affiliates, parent company and subsidiaries (hereinafter, collectively, the “Licensor”), and the entity that is a party to the purchase order, Terms and Conditions, or other agreement under which Licensor provides certain software (“Agreement”) for use by such entity (hereinafter, “You” or “Licencee”). In the event of any conflict between the Agreement and this Licence Agreement, the terms of this Licence Agreement will control with respect to the subject matter of this Licence Agreement.
This Licence Agreement sets forth Licencee’s rights and obligations regarding the use of (a) software that Licensor has made available to You for installation on a computer or server (“Installed Software”), or (b) software that Licensor has embedded in hardware that Licensor has sold to You (“Embedded Software” and, together with Installed Software, the “Program”). In all circumstances, the Program is Licenced (not sold) to You pursuant to the terms of this Licence Agreement.
FOR INSTALLED SOFTWARE:
PLEASE READ THE TERMS AND CONDITIONS OF THIS LICENCE AGREEMENT CAREFULLY BEFORE PROCEEDING WITH INSTALLATION OF THE PROGRAM WHICH IS LICENCED HEREUNDER AND THE OTHER PRODUCTS INSTALLED AND DELIVERED ON THE COMPUTER OR SERVER PURCHASED FROM LICENSOR FOR THE PURPOSE OF USING THE PROGRAM (THE “Workstation”) OR THE NEW RELEASE OF THE PROGRAM ON A CD-ROM, DOWNLOAD LINK, USB STORAGE DEVICE COMPILATION (THE “Media”). BY CLICKING THE “YES”, “CONTINUE” or “NEXT” BUTTON BELOW (THE “Confirmation”), YOU ARE ACCEPTING AND AGREEING TO ANY AND ALL OF THE TERMS AND CONDITIONS OF THIS LICENCE AGREEMENT AND THE THIRD PARTY EULAS (AS DEFINED BELOW).
THEREFORE, IF YOU ARE NOT WILLING TO BE BOUND BY ALL OR ANY OF THE TERMS AND CONDITIONS OF THIS LICENCE AGREEMENT AND/OR THE THIRD PARTY EULAS, CLICK THE “NO” BUTTON BELOW AND THE INSTALLATION WILL TERMINATE IMMEDIATELY.
Please note that the Third Party EULAs are between You and the relevant third party.
- Program Licence Grant. Licensor hereby grants to You, and You accept, a non-exclusive, non-transferable (except as expressly authorized in this Licence Agreement), non-sublicensable Licence to use the Program herein in machine-readable, object code form only, only as authorized in this Licence Agreement.
- For Installed Software: (i) the Program may be used only on the Workstation on which it is installed or, in case of virtual Licence, on the Workstation it was Licenced for, or in case of a program release in the Media, the original Workstation purchased from Licensor with the original Program’s version; (ii) the Program may be used only in the country where acquired by You, unless You are an approved Channel Partner of the Licensor acquiring the Program for delivery to another end-user; and (iii) the Program may not be used (x) concurrently on two or more Workstations, or (y) in a local area or other network, without separate authorization and the payment of additional Licence fees.
- For Embedded Software, the Program may be used solely in connection with Your use of the hardware in which the Program is embedded. If You transfer ownership of such hardware to any third party, the Licence granted herein to such Embedded Software is transferable to such third party; provided, that (i) such third party shall agree in writing to assume and abide by the terms of this Licence Agreement (an “Assumption Agreement”), and in such case the third party will be considered the “Licencee” under this Licence Agreement, (ii) such Assumption Agreement shall name Licensor as an express third-party beneficiary of such Assumption Agreement with the right to directly enforce such Assumption Agreement and this Licence Agreement against such third party, and (iii) You promptly shall provide to Licensor a signed copy of such Assumption Agreement.
- Licensor welcomes Your comments regarding the Program. If You elect to provide or make available to us any suggestions, comments, ideas, improvements, or other information or materials in connection with or related to the Program (“Service Feedback”), You hereby grant Licensor a non-exclusive, royalty-free, fully paid-up, irrevocable, perpetual, worldwide, transferable Licence, with the right to subLicence, under all intellectual property rights in and to such Service Feedback to (i) use, copy, reproduce, distribute, sell, Licence, lease, create derivative works of, adapt, publicly display, and perform such Service Feedback in any and all media now known or hereafter created, (ii) incorporate all or any of the Service Feedback or results of clause (i) into the Program and to make such Program available to third parties, and (iii) make, have made, develop, sell, offer to sale, import, lease any product or service; it being agreed that Licensor and its subLicencees may exercise all such rights and disclose such Service Feedback in any manner and via any media Licensor chooses, without reference to its source and without any other obligation even if such Service Feedback is designated by You as confidential.
- Limitations on Licence. The Program is Licenced as a single product accompanied with the Third Party Software which are separately and independently Licenced to You by the relevant third party under the relevant Third Party EULA. For Installed Software, the Program may not be separated for use and may only be used on one Workstation. Other than the rights expressly set forth in Section 1 above, no other right or interest whatsoever in or to the Program or otherwise is hereby transferred or granted to You. Without limiting the foregoing, You may not: (i) unbundle, display, distribute, reverse engineer, decompile, or disassemble the Program or any part thereof, (ii) modify, adapt, translate, divide, part or revise the Program or any part thereof, or otherwise use parts, portions or elements of the Program or create derivative works based on the Program or any part thereof, (iii) assign, subLicence, resell, transfer, pledge, loan, lease, rent to, or share Your rights under this Licence Agreement except as expressly allowed by and in accordance with Section 1(b), or (iv) access or utilize the Program for competitive purposes or to develop software or services competitive with the Program. All rights not specifically granted to Licencee hereunder are reserved by Licensor. This Licence Agreement shall automatically terminate upon the occurrence of any of the events set forth in subsections (i), (ii), (iii) or (iv) above. Upon termination, You must destroy the Program and related documentation and all copies thereof, whether made under the terms of this Licence Agreement or otherwise.
- Licensor’s Rights. You acknowledge and agree that the Program is a proprietary product of Licensor, protected under copyright laws and any international copyright treaties, patent law, trade secret law and other intellectual property rights of general applicability. You further acknowledge and agree that between You and Licensor, all right, title, and interest in and to the Program, including associated intellectual property rights, are and shall remain with Licensor. This Licence Agreement does not convey to You an interest in or to the Program or any part thereof, but only a limited right of use revocable in accordance with the terms of this Licence Agreement.
- Third Party Software. You acknowledge that You have read and understood any Third Party EULAs provided to You together with the WorkStation documentation, and You agree to be bound by the terms and conditions of such Third Party EULAs, including without limitations such terms and conditions which relate to limitation of liability and remedies.
Notwithstanding the above, if a Third Party Software IS NOT provided herein with a separate Third Party EULA, then the terms of this Licence Agreement will apply to it, except that (i) the entity providing the Third Party Software will not be the Licensor and (ii) TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE THIRD PARTY SOFTWARE IS PROVIDED AS IS.
THE LIMITED WARRANTY INCLUDED IN SECTION 7 OF THIS LICENCE AGREEMENT APPLIES TO ANY THIRD PARTY SOFTWARE WHETHER ACCOMPANIED WITH A SEPARATE THIRD PARTY EULA OR NOT, AS A SERVICE PROVIDED TO YOU BY LICENSOR, UNDER THE ORIGINAL TERMS OF THE LIMITED WARRANTY SET FOURTH IN SECTION 7 OF THIS LICENCE AGREEMENT, INCLUDING THE LIMITED WARRANTY PERIOD PROVIDED HEREIN.
Without limiting the foregoing, Licencee acknowledges that certain components of the Program may be Open Source Components. [Licensor shall provide a list of Open Source Components for a particular version of the Program upon Customer’s request.] To the extent required by the Licences covering Open Source Components, the terms of such Licences will apply in lieu of the terms of this Licence Agreement. To the extent the terms of the Licences applicable to Open Source Components prohibit any of the restrictions in this Licence Agreement with respect to such Open Source Component, such restrictions will not apply to such Open Source Component. To the extent the terms of the Licences applicable to Open Source Components require Licensor to make an offer to provide source code for an applicable Open Source Component in connection with the Program, such offer is hereby made. LICENCEE ACKNOWLEDGES THAT LICENSOR IS NOT THE AUTHOR, OWNER OR LICENSOR OF ANY OPEN SOURCE COMPONENT, AND THAT LICENSOR MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AS TO THE QUALITY, CAPABILITIES, OPERATIONS, PERFORMANCE OR SUITABILITY OF ANY OPEN SOURCE COMPONENT. “Open Source Component” means a component of a Program that is subject to so-called “open source” software Licences, which include without limitation any software Licences approved as open source Licences by the Open Source Initiative or any substantially similar Licences, including without limitation any Licence that, as a condition of distribution of the software Licenced under such Licence, requires a distributor to make the Open Source Component available to its end users in source code format. Licensor and Licencee are each responsible for complying with their respective obligations under the Licences applicable to Open Source Components. Licencee shall not do anything that puts Licensor in breach of its obligations under the Licences applicable to Open Source Components. Licencee shall not, and shall not allow any of its authorized users or any third party to, directly or indirectly use any Open Source Component in a manner that would require Licensor to disclose Licensor’s proprietary source code of the Program to any third party.
- Term: For Installed Software, this Licence Agreement is effective upon Your Confirmation, and for Embedded Software this Licence Agreement is effective as of the date you receive the applicable hardware procured pursuant to the applicable Agreement, and in either case shall continue until terminated. Licensor may terminate this Licence Agreement upon a breach by You of any term hereof (including any term of the respective Third Party EULAs or Licences for any Open Source Component).
- Limited Warranty: Licensor warrants only to You that for a period stated in the Licensor’s default warranty coverage or in the extended Support and Maintenance Program You’ve purchased with the Program, the Program and any part thereof will perform substantially in accordance with the functional description provided in the documentation accompanying the Program, provided however, that in no event shall the Warranty Period extend beyond the time period declared in the maintenance and support contract purchased with the Program. Your exclusive remedy and Licensor's entire liability under this limited warranty shall be, at Licensor's options, to repair or replace the Program or any part thereof.
The foregoing limited warranty does not cover repair for damages, malfunctions, or service failures which do not adversely affect the ability of the Program to perform its usual designated function or that are caused by (1) alteration or modification to the Program without Licensor’s prior written approval, (2) the hardware on which Embedded Software has been incorporated, the Program, the Workstation or the Media has been subject to misuse, negligence, accident or improper installation, or use, or the Program has been subject to maintenance by anyone other than Licensor, (3) failure to follow Licensor's installation (including servers specifications), operation or maintenance instructions, or (4) or any factor beyond Licensor's control.
THE EXPRESS LIMITED WARRANTY SET FORTH IN THIS SECTION 6 ABOVE, CONSTITUTES THE ENTIRE AND ONLY WARRANTY WITH RESPECT TO THE PROGRAM. LICENSOR MAKES AND YOU RECEIVE NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED WITH RESPECT TO THE PROGRAM. LICENSOR EXPRESSLY DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS, AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. LICENSOR DOES NOT WARRANT THAT THE PROGRAM IS ERROR FREE OR THAT THE OPERATION OF THE PROGRAM WILL BE SECURE OR UNINTERRUPTED.
- LIABILITY: LICENSOR SHALL NOT BE LIABLE UNDER ANY CLAIM RELATED TO THE PROGRAM, INCLUDING CLAIMS IN RESPECT OF INFRINGEMENTS OF THIRD PARTY'S RIGHTS, INFRINGEMENT OF PATENT, COPYRIGHT, REGISTERED DESIGN OR TRADEMARK, AND OTHER INTELLECTUAL PROPERTY RIGHTS. IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS AND BUSINESS INTERRUPTION) ARISING OUT OF THE USE OF OR INABILITY TO USE THE PROGRAM, OR FOR ANY LOSS OF OR DAMAGE TO PROPERTY RELATING TO OR ARISING FROM THE USE OF THE PROGRAM, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. IN NO EVENT SHALL LICENSOR’S LIABILITY HEREUNDER EXCEED THE AMOUNT OF LICENCE FEES PAID BY YOU, REGARDLESS OF WHETHER YOUR CLAIM IS BASED ON CONTRACT, TORT, STRICT LIABILITY, PRODUCT LIABILITY OR OTHERWISE.
- Support. Unless expressly stated herein otherwise, Licensor’s Program is eligible for its standard warranty coverage. Licensor’s Extended support and maintenance services for the Program are available for an annual fee under a separate services maintenance agreement.
- INTELLECTUAL PROPERTY: Certain names and logos identifying Licensor and/or its Programs and/or other products are trademarks of Licensor. This Licence Agreement does not grant You any right, title or interest in connection with any trademarks, service marks or other intellectual property rights owned by the Licensor or any third party and You agree that no such right, title or interest shall be asserted by You with respect to such trademarks, service marks or other intellectual property rights.
- Export Regulation. You acknowledge that the Program Licenced hereunder may be subject to the export control laws and regulations of the United States ("U.S.") and/or any other country in which the Program is received. You agree that You will not knowingly transfer, divert, export or re-export, directly or indirectly, the Program or technical data (as defined by the U.S. Export Administration Regulations) restricted by such regulations or by other applicable national regulations to any person, firm, entity country or destination to which such transfer, diversion, export or re-export is restricted or prohibited by U.S. or other applicable law, without obtaining prior authorization from the U.S. Department of Commerce, U.S. Department of State and/or other applicable government authorities to the extent required by those laws
- Confidentiality; Security. You agree to use Your best efforts and to take all reasonable steps to safeguard the Program and the Workstation, to ensure that no unauthorized person shall have access thereto and that no unauthorized copy, publication, disclosure or distribution in whole or in part, in any form, shall be made. You acknowledge that the Program, the Workstation and any part thereof contains valuable confidential information and trade secrets and that unauthorized use and/or copying are harmful to Licensor and Third Party. You agree to hold the Program, the Workstation and any part thereof in confidence during the term of this Licence Agreement.
- Indemnification. You agree to indemnify and hold Licensor, its affiliates, officers and employees, harmless from any claim, demand or damage, including reasonable attorney’s fees, asserted by any third party due or arising out of Your use of the Program, Workstation and any part thereof and for any third-party claims arising out of Your violation of any Third Party EULA or Licence applicable to any Open Source Component.
- Governing Law; Jurisdiction. This Licence Agreement shall be construed and governed in accordance with the laws of the State of New York without regard to conflicts of law’s provisions thereof. The competent courts of the State of New York shall have exclusive jurisdiction over any disputes arising out of this Licence Agreement and You hereby waive unconditionally any objection to the laying of venue of any lawsuit, action or other proceeding in such courts. The United Nations Convention on the International Sale of Goods (CISG) shall not apply to the interpretation or enforcement of this Licence Agreement.
- Severability: Should any term of this Licence Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms hereof.
- No Waiver: The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
- ENTIRE AGREEMENT. YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THIS LICENCE AGREEMENT AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER AGREE THAT THIS LICENCE AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND LICENSOR AND SUPERSEDES ANY PROPOSALS OR PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS RELATING TO THE SUBJECT MATTER OF THIS LICENCE AGREEMENT.
- Reservation of Rights: All rights not expressly granted herein are reserved by Licensor or its licensors.
- Assignment: Any attempt by You to subLicence, assign or transfer any of the rights, duties or obligations hereunder other than in accordance with the terms of this Licence Agreement shall be void ab initio.
- Arbitration. Any dispute, controversy or claim arising out of, relating to, or in connection with this Licence Agreement, or the transactions contemplated hereby, or the breach, termination or validity hereof, shall be finally settled exclusively by arbitration in accordance with the procedures of this Section 19.
(a) The arbitration shall be administered by, and conducted in accordance with the international arbitration rules of the International Chamber of Commerce (the “ICC”) in effect at the time of the arbitration, except as they may be modified by mutual agreement of the parties. The place of the arbitration shall be New York City; provided, that the arbitrators may hold hearings in such other locations as the arbitrators determine to be most convenient and efficient for all of the parties to such arbitration under the circumstances. The arbitration shall be conducted in the English language.
(b) The arbitration shall be conducted by three (3) arbitrators. The party (or the parties, acting jointly, if there is more than one) initiating arbitration (the “Claimant”) shall appoint an arbitrator in its request for arbitration (the “Request”). The other party (or the other parties, acting jointly, if there is more than one) to the arbitration (the “Respondent”) shall appoint an arbitrator within thirty (30) days of receipt of the Request and shall notify the Claimant of such appointment in writing. If, within thirty (30) days of receipt of the Request by the Respondent, either party has not appointed an arbitrator, then that arbitrator shall be appointed by the ICC. The first two (2) arbitrators appointed in accordance with this provision shall appoint a third arbitrator within thirty (30) days after the Respondent has notified Claimant of the appointment of the Respondent’s arbitrator or, in the event of a failure by a party to appoint, within thirty (30) days after the ICC has notified the parties and any arbitrator already appointed of the appointment of an arbitrator on behalf of the party failing to appoint. When the third (3rd) arbitrator has accepted the appointment, the two (2) arbitrators making the appointment shall promptly notify the parties of the appointment. If the first two arbitrators appointed fail to appoint a third arbitrator or so to notify the parties within the time period prescribed above, then the ICC shall appoint the third (3rd) arbitrator and shall promptly notify the parties of the appointment. The third (3rd) arbitrator shall act as chair of the tribunal.
(c) The arbitral award shall be rendered within thirty (30) days after commencement of the arbitration, unless such time limit is extended by agreement of the parties or by the arbitrator for good cause under the circumstances. It is the intent of the parties that, barring extraordinary circumstances, arbitration proceedings will be concluded within sixty (60) days from the date the arbitrators are appointed. The arbitrators may extend this time limit in the interests of justice. Failure to adhere to this time limit shall not constitute a basis for challenging the award. The arbitral award shall be in writing, state the reasons for the award, and be final and binding on the parties. The award may include an award of costs, including reasonable attorneys’ fees and disbursements. In addition to monetary damages, the arbitral tribunal shall be empowered to award equitable relief, including an injunction and specific performance of any obligation under this Licence Agreement. The arbitral tribunal is not empowered to award damages in excess of compensatory damages, and each party hereby irrevocably waives any right to recover punitive, exemplary or similar damages with respect to any dispute, except insofar as a claim is for indemnification for an award of punitive damages awarded against a party in an action brought against it by an independent third party. The arbitral tribunal shall be authorized in its discretion to grant pre-award and post-award interest at commercial rates. Any costs, fees or taxes incident to enforcing the award shall, to the maximum extent permitted by law, be charged against the party resisting such enforcement. Judgment upon the award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant party or its assets.
(d) The parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it (including any pleadings, briefs or other documents submitted or exchanged, any testimony or other oral submissions, and any awards) shall not be disclosed beyond the tribunal, the ICC, the parties, their counsel and any person necessary to the conduct of the proceeding, except as may be lawfully required in judicial proceedings relating to the arbitration or otherwise, or as required by the rules of any stock or other quotation system or exchange on which the disclosing party’s equity securities are listed or by applicable law or regulations.
(e) Each party shall bear its own costs of the arbitration.
(f) All payments made pursuant to the arbitration decision or award and any judgment entered thereon shall be made in U.S. Dollars (or, if a payment in U.S. Dollars is not permitted by applicable law or regulations and if mutually agreed upon by the parties, in mutually agreed alternate currency), free from any deduction, offset or withholding for taxes.
(h) None of the parties shall institute a proceeding in any court or administrative agency to resolve a dispute arising out of, relating to or in connection with this Agreement, except for a court proceeding to compel arbitration or otherwise enforce this agreement to arbitrate, to enforce an order or award of the arbitration tribunal or petition for the provisional or emergency remedies provided for herein. The parties waive objection to venue and consent to the nonexclusive personal jurisdiction of the courts of New York, New York in any action to enforce this arbitration agreement, any order or award of the arbitration tribunal or the provisional or emergency remedies provided for herein. In any such permitted court action, the parties agree that delivery of the complaint or petition by international courier, with proof of delivery, shall constitute valid and sufficient service, and they individually and collectively waive any objection to such service.
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