END-USER LICENSE AGREEMENT ("Agreement")
This is a legal agreement concerning the use of Software between you, the end user, as an authorized representative of the company acquiring the license, and Accelicon Technologies, Inc. acting directly or through their subsidiaries (collectively “Accelicon Technologies”). Except for license agreements related to the subject matter of this license agreement which are physically signed by you and an authorized representative of Accelicon Technologies, this Agreement and the applicable quotation contain the parties' entire understanding relating to the subject matter and supersede all prior or contemporaneous agreements.
1. GRANT OF LICENSE. The software programs, including any updates, modifications, revisions, copies, documentation and design data (“Software”), are copyrighted, trade secret and confidential information of Accelicon Technologies or its licensors who maintain exclusive title to all Software and retain all rights not expressly granted by this Agreement. Accelicon Technologies grants to you, subject to payment of appropriate license fees, a nontransferable, nonexclusive license to use Software solely: (a) in machine-readable, object-code form; (b) for your internal business purposes; (c) for the license term; and (d) on the computer hardware and at the site authorized by Accelicon Technologies. A site is restricted to a mile radius. Accelicon Technologies’ standard policies and programs, which vary depending on Software, license fees paid or services purchased, apply to the following: (a) relocation of Software; (b) use of Software, which may be limited, for example, to execution of a single session by a single user on the authorized hardware or for a restricted period of time (such limitations may be technically implemented through the use of authorization codes or similar devices); and (c) support services provided, including eligibility to receive telephone support, updates, modifications, and revisions.
2. RESTRICTIONS ON USE. You may copy Software only as reasonably necessary to support the authorized use. All copies shall remain the property of Accelicon Technologies or its licensors. You shall not make Software available in any form to any person other than employees and on-site contractors. You shall take appropriate action to protect the confidentiality of Software and ensure that any person permitted access to Software does not disclose it or use it except as permitted by this Agreement. Except as otherwise permitted for purposes of interoperability as specified by applicable and mandatory local law, you shall not reverse-assemble, reverse-compile, reverse-engineer or in any way derive from Software any source code. You may not sublicense, assign or otherwise transfer Software, this Agreement or the rights under it, whether by operation of law or otherwise (“attempted transfer”), without Accelicon Technologies’ prior written consent and payment of Accelicon Technologies’ then-current applicable transfer charges. The terms of this Agreement, including without limitation, the licensing and assignment provisions shall be binding upon your successors in interest and assigns. The provisions of this section 2 shall survive the termination or expiration of this Agreement.
3. LIMITED WARRANTY.
Accelicon Technologies warrants that during the warranty period Software, when properly installed, will substantially conform to the functional specifications set forth in the applicable user manual. Accelicon Technologies does not warrant that Software will meet your requirements or that operation of Software will be uninterrupted or error free. The warranty period is 90 days starting upon installation. You must notify Accelicon Technologies in writing of any nonconformity within the warranty period. This warranty shall not be valid if Software has been subject to misuse, unauthorized modification or improper installation. ACCELICON TECHNOLOGIES' ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY SHALL BE, AT ACCELICON TECHNOLOGIES' OPTION, EITHER (A) REFUND OF THE PRICE PAID UPON RETURN OF SOFTWARE TO ACCELICON TECHNOLOGIES OR (B) MODIFICATION OR REPLACEMENT OF SOFTWARE THAT DOES NOT MEET THIS LIMITED WARRANTY, PROVIDED YOU HAVE OTHERWISE COMPLIED WITH THIS AGREEMENT. ACCELICON TECHNOLOGIES MAKES NO WARRANTIES WITH RESPECT TO: (A) SERVICES; (B) SOFTWARE WHICH IS LICENSED TO YOU FOR A LIMITED TERM OR LICENSED AT NO COST; OR (C) EXPERIMENTAL BETA CODE; ALL OF WHICH ARE PROVIDED “AS IS.”
THE WARRANTIES SET
4. LIMITATION OF LIABILITY. EXCEPT WHERE THIS EXCLUSION OR RESTRICTION OF LIABILITY WOULD BE VOID OR INEFFECTIVE UNDER APPLICABLE LAW, IN NO EVENT SHALL ACCELICON TECHNOLOGIES OR ITS LICENSORS BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR SAVINGS) WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ACCELICON TECHNOLOGIES OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ACCELICON TECHNOLOGIES' OR ITS LICENSORS' LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY YOU FOR THE SOFTWARE OR SERVICE GIVING RISE TO THE CLAIM. IN THE CASE WHERE NO AMOUNT WAS PAID, ACCELICON TECHNOLOGIES AND ITS LICENSORS SHALL HAVE NO LIABILITY FOR ANY DAMAGES WHATSOEVER. THE PROVISIONS OF THIS SECTION 4 SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT.
5. INDEMNIFICATION. YOU AGREE TO INDEMNIFY AND HOLD HARMLESS ACCELICON TECHNOLOGIES AND ITS LICENSORS FROM ANY CLAIMS, LOSS, COST, DAMAGE, EXPENSE, OR LIABILITY, INCLUDING ATTORNEYS' FEES, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF SOFTWARE AS DESCRIBED IN SECTION 4. THE PROVISIONS OF THIS SECTION 5 SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT.
6. INFRINGEMENT.
6.1. Accelicon Technologies will defend or settle, at its option and expense, any action brought against you alleging that Software infringes a patent or copyright or misappropriates a trade secret in the
6.2. If an infringement claim is made, Accelicon Technologies may, at its option and expense: (a) replace or modify Software so that it becomes noninfringing; (b) procure for you the right to continue using Software; or (c) require the return of Software and refund to you any license fee paid, less a reasonable allowance for use.
6.3. Accelicon Technologies has no liability to you if infringement is based upon: (a) the combination of Software with any product not furnished by Accelicon Technologies; (b) the modification of Software other than by Accelicon Technologies; (c) the use of other than a current unaltered release of Software; (d) the use of Software as part of an infringing process; (e) a product that you make, use or sell; (f) any Beta Code contained in Software; (g) any Software provided by Accelicon Technologies’ licensors who do not provide such indemnification to Accelicon Technologies’ customers; or (h) infringement by you that is deemed willful. In the case of (h) you shall reimburse Accelicon Technologies for its attorney fees and other costs related to the action upon a final judgment.
6.4. THIS SECTION STATES THE ENTIRE LIABILITY OF ACCELICON TECHNOLOGIES AND ITS LICENSORS AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY ALLEGED PATENT OR COPYRIGHT INFRINGEMENT OR TRADE SECRET MISAPPROPRIATION BY ANY SOFTWARE LICENSED UNDER THIS AGREEMENT.
7. TERM. This Agreement remains effective until expiration or termination. For any material breach under this Agreement, Accelicon Technologies may terminate this Agreement upon 30 days written notice if you are in material breach and fail to cure such breach within the 30 day notice period. If Software was provided for limited term use, this Agreement will automatically expire at the end of the authorized term. Upon any termination or expiration, you agree to cease all use of Software and return it to Accelicon Technologies or certify deletion and destruction of Software, including all copies, to Accelicon Technologies’ reasonable satisfaction.
8. EXPORT. Software is subject to regulation by local laws and
9. CONTROLLING LAW, JURISDICTION AND DISPUTE RESOLUTION. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF
10. SEVERABILITY. If any provision of this Agreement is held by a court of competent jurisdiction to be void, invalid, unenforceable or illegal, such provision shall be severed from this Agreement and the remaining provisions will remain in full force and effect.