AppsAnywhere - End User License Agreement (“EULA”)
Last updated: October 20th 2017
This End User License Agreement (“EULA”) is a legal agreement between you (either an individual or a single entity) and Software2 Ltd. (“Software2”) for access to AppsAnywhere (“Software”) that accompanies this EULA, which may include associated Internet-based services.
YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT WHEN YOU USE THE SOFTWARE. IF YOU DO NOT AGREE, DO NOT USE THE SOFTWARE.
GENERAL: Software2 grants you a license to use the Software under the terms and conditions set forth in this EULA, provided that you comply with all such terms and conditions. The Software is protected by copyright and other intellectual property laws and treaties. Software2 owns the title, copyright, and other intellectual property rights to the Software. Software2 reserves all rights not expressly granted to you in this EULA. The Software is licensed, not sold.
ADDITIONAL RIGHTS AND LIMITATIONS: You may not reproduce, or install the Software on your computer. You may only use the Software through the web access provided by Software2. You may not reverse engineer, decompile, or disassemble the Software, including any codes or protocols associated with the Software.
DISCLAIMER OF WARRANTIES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SOFTWARE2 PROVIDES TO YOU ACCESS AND USE OF THE SOFTWARE, AND SUPPORT SERVICES (IF ANY AS DESCRIBED IN THIS EULA) AS IS AND WITH ALL FAULTS; AND SOFTWARE2 HEREBY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY (IF ANY) IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF RELIABILITY OR AVAILABILITY, OF ACCURACY OR COMPLETENESS OF RESPONSES, OF RESULTS, OF WORKMANLIKE EFFORT, OF LACK OF VIRUSES, AND OF LACK OF NEGLIGENCE, ALL WITH REGARD TO THE SOFTWARE, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATION, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE SOFTWARE.
EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SOFTWARE2 BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, NEGLIGENCE, AND ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATION, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT OR PRODUCT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF SOFTWARE2, EVEN IF SOFTWARE2 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
LIMITATION OF LIABILITY AND REMEDIES. NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE AND ALL DIRECT OR GENERAL DAMAGES IN CONTRACT OR ANYTHING ELSE), THE ENTIRE LIABILITY OF SOFTWARE2 UNDER ANY PROVISION OF THIS EULA AND YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING SHALL BE LIMITED TO U.S. $5.00. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
1. INTRODUCTION: This Agreement governs End User’s use of AppsAnywhere (Software) developed and owned by Software2. End User will be provided access through Software2 to Software2’s Software to access the apps provided.
2. LICENSE: Subject to the terms and conditions of this Agreement, Software2 grants End User, and End User accepts, a non-transferable and nonexclusive license to use in object code form only the Software for the sole purpose of accessing apps. End User may use and access the Software solely through an approved web site identified by Software2 in writing from time to time (the “Site”).
End User acknowledges that Software2 is the sole owner of all intellectual property rights in and to the Software and the Site. Except as expressly authorized in this Agreement, End User will not copy, modify, distribute, sublicense, transfer, display, rent or unbundle the Software. In addition, End User will not reverse engineer, decompile or disassemble the Software, and will not otherwise attempt to reconstruct or discover the source code for the Software. Software2 reserves all rights in the Software not expressly granted to End User.
3. ACCEPTANCE: Acceptance of this software license is deemed to have occurred upon End User’s submission of this acceptance by logging into the Software.
4. ADDITIONAL END USER OBLIGATIONS: End User shall have sole responsibility for acquiring and maintaining its own technology environment, including but not limited to PC’s, operating systems, servers, Internet access, local area networks, and wide area networks.
End User agrees to comply with Software2’s procedures and security measures associated with access to the Software and the Site (the “Software2 Procedures”), which will be maintained by Software2 on the Site and are incorporated by reference in this Agreement. Software2 may revise the Software2 Procedures from time to time.
Software2 may in its sole discretion deny or remove access to any user of the Software or Site (“User”) who fails to abide by the Software2 Procedures or who otherwise tampers with or abuses the Site or the Software or utilizes the software for illegal, disruptive or other inappropriate purposes.
5. CONFIDENTIALITY: “Confidential Information” means any information or data (including without limitation any formula, pattern, compilation, program, device, method, technique, or process) that is disclosed by one party (a “disclosing party”) to the other party (a “receiving party”) pursuant to this Agreement. Confidential Information of Software2 includes, but is not limited to, the terms of this Agreement. Confidential Information does not include information that: (a) is or becomes publicly known or available without breach of this Agreement; (b) is received by a receiving party from a third party without breach of any obligation of confidentiality; or (c) was previously known by the receiving party as shown by its written records.
A receiving party agrees: (a) to hold the disclosing party’s Confidential Information in strict confidence; and (b) except as expressly authorized by this Agreement, not to, directly or indirectly, use, disclose, copy, transfer or allow access to the Confidential Information. In addition, without limiting the foregoing, Software2 agrees to use, and to require its contractors to use, reasonable procedures and mechanisms to maintain the security of and to prevent the unauthorized access to the computer systems on which End User’s Confidential Information resides. Notwithstanding the foregoing, a receiving party may disclose Confidential Information of the disclosing party as required by law or court order; in such event, such party shall use its best efforts to inform the other party prior to any such required disclosure.
Each party acknowledges and agrees that any violation of this Section 6 or the intellectual property rights of Software2 may cause the disclosing party irreparable injury for which the disclosing party would have no adequate remedy at law, and that the disclosing party shall be entitled to preliminary and other injunctive relief against the receiving party for any such violation. Such injunctive relief shall be in addition to, and in no way in limitation of, all other remedies or rights that disclosing party shall have at law or in equity.
6. TERM OF AGREEMENT: The Term of this license agreement is 30 calendar days, beginning with the date the agreement is accepted by the End User – as set forth in Section 3.
7. WARRANTY: Software2 warrants that the Software will substantially conform to the online training instructions. If it does not, at Software2’s option, Software2 will either make the online training instructions conform to the Software, or replace it with conforming Software. This is the exclusive remedy for breach of the foregoing warranty.
8. LIABILITY: In no event shall either party be liable for special, consequential, incidental, indirect or punitive loss, damage or expenses whether arising in contract or tort (including but not limited to lost profits, savings, data, or the cost of recreating lost data), even if it has been advised of their possible existence.
9. INDEMNIFICATION: If a claim of copyright, patent, trade secret, or other intellectual property rights violation is made against End User relating to the Software, End User agrees to immediately notify Software2, allow Software2 to control the litigation or settlement of such claim, and cooperate with Software2 in the investigation, defense, and/or settlement thereof. Software2 agrees to take control of the litigation and indemnify the End User by paying any settlement approved by Software2, or any judgment, costs, or attorneys’ fees finally awarded against the End User for such claim. End User may participate at End User’s own expense. This indemnification obligation does not apply to the extent the claim is based on a combination of Software with other software, or any modification to the Software, if such claim would not have been made but for the combination or modification. If such a claim is made or, in Software2’s opinion, is likely to be made, Software2, at its sole discretion, may modify the Software, obtain rights for the End User to continue using the Software, or terminate the agreement for the Software.
10. MISCELLANEOUS: Neither party shall be liable for any failure or delay in the performance of its obligations due to causes beyond the reasonable control of the party affected, including but not limited to war, sabotage, insurrection, riot or other act of civil disobedience, strikes or other labor shortages, act of any government affecting the terms hereof, accident, fire, explosion, flood, hurricane, severe weather or other act of God.
END USER LICENSE AGREEMENT FOR NUMECENT INC SOFTWARE NUMECENT INC.
("LICENSOR") IS WILLING TO LICENSE THIS SOFTWARE TO YOU, THE “LICENSEE”, ONLY UPON THE CONDITION THAT YOU ACCEPT THE TERMS CONTAINED IN THIS LICENSE. BY ACCEPTING THESE TERMS, YOU ARE INDICATING THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ANY ADDITIONAL TERMS AND CONDITIONS CONTAINED HEREIN, UNDERSTAND THEM, AND AGREE TO BE BOUND BY THEM. IF YOU DO NOT AGREE TO OR UNDERSTAND ALL THESE TERMS, THEN LICENSOR IS UNWILLING TO LICENSE THE SOFTWARE TO YOU.
1. Definitions (as used in this Agreement): (a) "Software" means all software, in object code only, provided by Licensor to you, together with the authorization key contained in the Security device, and all Licensor-authorized updates, replacements or modifications provided to you. (b) "Documentation" means the user guides, reference manuals, installation materials and other written materials (in whatever format, including electronic or hardcopy) relating to the System which Licensor provides to you. (c) "Security device" means the Software "authorization key" packaged by Licensor with the Software (or any Licensor-authorized replacement provided to you) and which contains a unique series of data elements which enables the use of the Software. (d) "System" means a system furnished by Licensor and comprised of Software, Security device, and related Documentation.
2. Limited Use License (a) Subject to the terms and conditions contained in this Agreement, Licensor grants, and you accept, a non-exclusive, non-transferable (except as provided below) license, without the right to sublicense, and right (i) to use the Software only on a single computer, and (ii) to use the Documentation, in each case for your internal purposes only. The Software may only be used by a single user at any time, and may not be used as a networked application. Additional concurrent users will require additional licenses for the Software. You may physically transfer the Software from one computer to another provided that the Software is used on only one computer at a time. Additionally, you may not distribute copies of the Software or the accompanying Documentation to others nor may you modify or translate the Software or Documentation. You may not transfer the Software or this license, except in compliance with Licensor's license transfer procedures, which among other things require the transferee prior to such transfer to agree in writing to be bound by your obligations hereunder, and may in some jurisdictions require the payment of a transfer fee. (b) Notwithstanding the foregoing, you may license the System to a third party for a temporary, defined period provided: (i) you may not license the Software separate from the Security device; (ii) you remain responsible for all of your obligations hereunder; (iii) you ensure that each such third party complies with all obligations hereunder; (iv) you notify Licensor on request of the location of the System; and (v) you indemnify, defend and hold Licensor harmless from and against any claims or liabilities that may arise from your rental of the System. (c) You will take all reasonable steps to safeguard the Software, and the Documentation and to ensure that no unauthorized persons have access to the Software or the Documentation, and that no persons authorized to have such access shall take any action which would be prohibited by this Agreement if taken by you. You will not, directly or indirectly, reverse engineer, disassemble, decompile or otherwise alter the Software (including but not limited to the Security device); provided, however, that (i) if you are located in the European Union or Norway, if reproduction of the code and translation of its form are necessary to obtain the information required to achieve the interoperability of the Software with other programs, you shall inform Licensor in writing accordingly and Licensor shall notify you within twenty (20) business days from receipt of your request that: (A) Licensor will perform the work in order to achieve such interoperability and charge you a reasonable expense allowance for such work, or (B) you yourself are entitled to undertake those actions, but only to the extent required to achieve the interoperability of the Software with other programs; and (ii) if you are not located in the European Union or Norway, this Section 2(c) gives you specific legal rights, and you may also have other rights which vary from jurisdiction to jurisdiction. You will include and will not alter or remove any copyright, patent, trade secret, proprietary and/or other legal notices contained on or in the System, including the Software, Security device, or the Documentation. The existence of any such notices on or in the System shall not be construed as an admission that publication has occurred. (d) You acknowledge that the Software may include features that ensure that your use of the Software complies with the terms of this Agreement. (e) The Software may be accompanied by a Security device, which contains an "authorization key." An authorization key is a unique series of data elements which enables you to access and use the version of the Software licensed to you. Such keys are confidential and non-transferable and must be returned or destroyed by you upon termination of this Agreement, as provided in Section 11. (f) This license is limited to the version of the Software (including features) originally approved by Licensor to be licensed to you, as accessed through the applicable Licensor-configured Security device (or any Licensor-authorized replacement). This license does not extend to any other version, even if such version may be part of the Software, and access to such versions may only be accomplished through a separate Licensor-authorized license accompanied by a separate Licensor-authorized Security device or other authorization key. You acknowledge that it is a breach of this license for you, or anyone acting on your behalf, to modify or alter the Security device configuration to access any version of the Software not originally licensed to you, or to use with the Software any other Security device or authorization key not originally supplied with the Software (or any Licensor-authorized replacement). (g) If you are licensing the System from the licensee who obtained the System from Licensor, you shall be bound by all the terms and conditions of this Agreement to the same extent as such licensee; provided, however, that (i) Licensor makes no warranties to you under Section 7 below; (ii) you shall not be entitled to any Software maintenance and support, if any, provided by Licensor under Section 8 below; and (iii) you shall have no right to relicense the System to any other parties. (h) In addition to the Software, Licensor may provide with the System certain third party software (such as plug-ins) to be used at your own option (the "Third Party Software"). If you decide to use such Third Party Software, your use shall be governed by any applicable third party's license agreement provided to you, an electronic copy of which will be installed in the appropriate product folder on your computer upon installation of the Third Party Software. LICENSOR AND ITS RESELLERS, DISTRIBUTORS AND LICENSORS ARE NOT RESPONSIBLE FOR SUCH THIRD PARTY SOFTWARE AND SHALL HAVE NO LIABILITY FOR YOUR USE OF IT. Where no such agreement is provided to you separately, your use shall be governed by this Agreement.
3. Title. This Agreement is not a sale of the Software, the Documentation or any copy thereof. Licensor and its licensors retain all rights, title, interest, and ownership of the Software and the Documentation, including patents, copyrights, trademarks, trade secrets and other proprietary rights applicable thereto, and all copies, regardless of the form or media on or in which the original or any copy may exist. The Software and the Documentation are protected by United States, Canadian and other applicable laws and by international treaty provisions. Except as stated herein, this Agreement does not grant you any rights to patents, copyrights, trade secrets, trademarks or any other rights in respect of Software, Hardware, and Documentation.
4. Restrictions on Copying. You are hereby licensed to make one copy of the Software in machine-readable form solely for backup purposes, provided that you include and not alter or remove any copyright, patent, trade secret, proprietary and/or other legal notices contained on or in the Software or Documentation. All copies or partial copies of the Software or Documentation, whether in printed, machine-readable or other form, shall be considered part of the Software or Documentation and shall be subject to this Agreement. Except as expressly provided herein, you may not copy, nor encourage or allow copying of, the Software or Documentation. You may not cause or permit the disclosure, copying, licensing, sublicensing, leasing, dissemination or other distribution of the Software or the Documentation by any means or in any form, without the prior written consent of Licensor. You may not use the Software to conduct a service bureau, ASP business or similar business for the benefit of third parties.
5. Confidentiality. You acknowledge that the System contains proprietary and confidential property of Licensor and/or Licensor's licensors embodying trade secrets (collectively, "Confidential Information"). You will not disclose, provide or otherwise make available any such Confidential Information to any person other than your employees and/or consultants who need to have access thereto to carry out their duties and who are bound by appropriate confidentiality or nondisclosure agreements.
6. Government End Users. U.S. GOVERNMENT RESTRICTED RIGHTS. The System was developed at private expense and with no government funds. If any Software or Documentation is acquired by or on behalf of a unit or agency of the U.S. Government, the Government agrees that such Software or Documentation is "commercial computer software" or "commercial computer software documentation" and that, absent a written agreement to the contrary, the Government's rights with respect to such Software or Documentation are limited by the terms of the this License Agreement, pursuant to U.S. Federal Acquisition Regulations Section 12.212(a) and/or Defense Federal Acquisition Regulations Supplement Section 227.7202-1(a), as applicable. The Software is proprietary data, all rights of which are reserved under the copyright laws of the United States, Canada and other countries.
7. Limited Warranty. (a) Licensor warrants solely to you that the System, unmodified by you, will function substantially in accordance with Licensor's published specifications for the period(s) set forth in the applicable warranty policy in effect at the time of licensing when given normal, proper, and intended usage, provided that you implement all releases, enhancements and corrections previously offered to you by Licensor. This warranty does not apply to expendable components, such as, but not limited to, computer diskettes and tapes. Your sole remedy and Licensor's exclusive liability for a breach of this limited warranty shall be, at Licensor's option, the repair or replacement of the non-conforming System. LICENSOR AND ITS RESELLERS, DISTRIBUTORS AND LICENSORS DO NOT WARRANT THAT YOUR USE OF THE SYSTEM WILL BE UNINTERRUPTED OR ERROR-FREE. (b) If Licensor determines that the System, or the component parts thereof, for which you have requested warranty service are not eligible for warranty service, You will pay or reimburse Licensor for all reasonable costs of investigating and responding to such request at Licensor's then prevailing time and materials rates. If Licensor provides repair service or replacement parts that are not covered by the warranty provided in this Section, you will pay Licensor at Licensor's then prevailing time and materials rates. (c) Licensor shall have no obligation to provide warranty or maintenance service in respect of claims resulting, in whole or in part, from (i) catastrophe, fault or negligence, (ii) improper or unauthorized use or repair of the System, (iii) use of any System in a manner for which it was not designed, (iv) causes external to the System such as, but not limited to, power failure or electric power surges, or (v) use of the System in combination with equipment or software not supplied or approved by Licensor. (d) Notwithstanding the above, no warranty shall apply to Hardware, Software or Documentation which is designated as "beta," "limited release," "pre-release," or otherwise as not being subject to warranty. All such Hardware, Software and Documentation is provided "AS IS" AND WITH ALL FAULTS. IN ADDITION, NO WARRANTY APPLIES TO LOST OR STOLEN SECURITY DEVICES. YOU ARE ADVISED TO INSURE YOUR SECURITY DEVICES AGAINST LOSS OR THEFT. (e) EXCEPT AS STATED ABOVE, LICENSOR AND ITS RESELLERS, DISTRIBUTORS AND LICENSORS EACH DISCLAIM, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL WARRANTIES OR CONDITIONS, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SYSTEM (OR ANY COMPONENT PARTS THEREOF), ANY THIRD PARTY SOFTWARE, INCLUDING ANY AND ALL WARRANTIES OF TITLE, NON-INFRINGEMENT OF THIRD PARTY'S RIGHTS, QUALITY, PERFORMANCE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. Some jurisdictions do not allow limitations on disclaiming implied warranties or conditions, so the above limitation may not apply to you. (f) If you have questions about performance of this product, or this limited warranty, you can contact Licensor at Numecent Inc., 15635 Alton Parkway, Suite 100, Irvine, CA 92618, USA (or such other address as Licensor may make available from time to time), or visit www.numecent.com to obtain information on limited warranty performance. (g) This limited warranty gives you specific legal rights, and you may also have other rights which vary from jurisdiction to jurisdiction. Some jurisdictions do not allow the exclusion or limitation of relief, incidental or consequential damages, so the above limitation or exclusion may not apply to you.
8. Software Maintenance (This Section 8 is applicable only if Licensor provides maintenance). Software maintenance charges and options are specified by Licensor from time to time. In the event you purchase Software maintenance, such maintenance shall be subject to the terms and conditions effective on the date of such purchase, and Licensor shall provide the following, plus options, if any, which you purchase, effective immediately upon expiry of the applicable warranty period: (a) You will receive one copy of maintenance releases to the Software and Documentation if and as they are generally made available at no additional charge to Licensor customers which have purchased Licensor software maintenance. Maintenance releases may contain minor functional enhancements and corrections. Maintenance releases do not include upgrades or major product releases. (b) Licensor will use reasonable efforts, including by means of a workaround or telephone hot-line support, to cause Software not covered by Licensor's warranty to perform substantially in accordance with specifications after having been notified by you of non-performance. If Licensor is unable to cause such Software to perform substantially in accordance with such specifications, then your sole remedy and Licensor's exclusive liability is a pro rata refund of the fees you paid for such maintenance for the remainder of the then-current maintenance period. (c) Subject to your having entered into a maintenance and support agreement with Licensor, Licensor will provide maintenance only on the then most current and one immediately prior version of the Software. Licensor's obligation to provide maintenance shall be conditioned on your: using only Licensor-approved products and maintaining the correct operating environment in accordance with requirements stipulated in the applicable System specifications; designating one of your employees at each site to be Licensor's single service contact and allowing Licensor reasonable access to the System and necessary data; promptly installing all changes and/or updates furnished by or on behalf of Licensor; notifying Licensor in writing prior to relocating the System to a permitted location other than the site at which the System is then-currently installed; and being current in all payments to Licensor. (d) In the event you request a field visit to perform maintenance or warranty services, you agree to pay Licensor its then-current charges associated with field visits. (e) EXCEPT AS STATED ABOVE, LICENSOR AND ITS RESELLERS, DISTRIBUTORS AND LICENSORS EACH DISCLAIM, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL WARRANTIES OR CONDITIONS, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, STATUTORY OR OTHERWISE, WITH RESPECT TO SUCH MAINTENANCE, INCLUDING ANY AND ALL WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY'S RIGHTS, QUALITY, PERFORMANCE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
9. Limitation of Liability. THE MAXIMUM LIABILITY OF LICENSOR AND ITS RESELLERS, DISTRIBUTORS AND LICENSORS ARISING OUT OF THE SALE/LICENSE OF THE SYSTEM OR THE USE THEREOF OR THE PROVISION OF MAINTENANCE, WHETHER BASED UPON WARRANTY, CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED (A) WHERE THE CLAIM RELATES SOLELY TO THE SYSTEM, THE ACTUAL PAYMENT MADE BY YOU FOR THE SYSTEM; (B) WHERE THE CLAIM RELATES SOLELY TO MAINTENANCE, THE AMOUNTS PAID BY YOU FOR MAINTENANCE IN THE TWELVE MONTH PERIOD PRIOR TO THE DATE OF THE CLAIM; OR (C) WHERE A CLAIM RELATES BOTH TO THE SYSTEM AND MAINTENANCE, THE AMOUNTS PAID BY YOU DURING THE LAST TWELVE MONTH PERIOD PRIOR TO THE DATE OF THE CLAIM WITH REGARD TO THE SYSTEM AND MAINTENANCE. Some jurisdictions do not allow the limitation of liability to specified amounts, so the above limitations may not apply to you.
10. Exclusion of Damages. IN NO EVENT SHALL LICENSOR AND ITS RESELLERS, DISTRIBUTORS AND LICENSORS BE LIABLE FOR SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, OR FOR LOSS OF DATA OR LOSS OF USE DAMAGES (INCLUDING WITHOUT LIMITATION "DOWNTIME") AND LOST PROFITS, ARISING HEREUNDER OR FROM THE SALE OF THE SYSTEM OR THE LICENSE OF THE SOFTWARE AND DOCUMENTATION OR THE USE OF ANY OF THEM OR THE PROVISION OF MAINTENANCE OR ANY DELAY OR FAILURE TO DELIVER THE SYSTEM OR MAINTENANCE, EVEN IF LICENSOR OR LICENSOR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. Some jurisdictions do not allow the exclusion or limitation of incidental, consequential, special, punitive or indirect damages, so the above limitation or exclusion may not apply to you.
11. Term. This Agreement is effective until terminated. You may terminate the license at any time by returning the Software and all Documentation to Licensor and by removing the Software and all copies thereof from the memory of any computer into which the Software has been transferred. This Agreement shall terminate automatically if you fail to comply with any term or condition contained herein. Within seven days of Licensor's termination of this Agreement, you will return to Licensor the original and all copies of the Software and the Documentation. Any Software you are required to return hereunder includes circuit boards containing Licensor proprietary software, firmware, or other technology. The Security device (which contains proprietary authorization keys) shall also be returned to Licensor, or, at Licensor's option, you may destroy it and certify to Licensor that it has been destroyed.
12. Export. (a) You acknowledge that the Software, Hardware, Documentation and/or technical data associated therewith ("Technical Data") are subject to the export control laws of the United States. You agree that you shall comply with all applicable U.S. export control laws and regulations, and shall not export or re-export the Software, Hardware, Documentation and/or Technical Data, or direct products thereof, except as authorized by U.S. law. (b) Without limiting the foregoing, you acknowledge that you are not a person or entity prohibited from receiving U.S. exports or a person or entity which engages in the development, production, or stockpiling of missiles or nuclear, chemical, or biological weapons. You further acknowledge that (i) you are not located in, and (ii) you are not a national of any country that is restricted or embargoed by the United States government or for which an export license is required under regulations promulgated by the U.S. Department of Commerce. (c) You agree not to export, re-export, or otherwise disclose the Software, Hardware Documentation and/or Technical Data to any national of the above-listed countries, or to any other person or entity prohibited from receiving U.S. exports or to any entity which engages in the development, production, or stockpiling of missiles or nuclear, chemical, or biological weapons. (d) Without limiting any of the foregoing, in the event you export the Software, Hardware, Documentation or Technical Data from the country in which you first received it, you assume the responsibility for compliance with all applicable export and re-export regulations, as the case may be.
13. Respect for Rights and Indemnification. You agree that you shall only use the Software and Documentation in a manner that complies with all applicable laws in the jurisdiction in which you use the Software and Documentation, including but not limited to, applicable restrictions concerning copyright and other intellectual property rights. This Software is intended for use only with properly licensed media, content, and content creation tools. It is your responsibility to ascertain whether any copyright, patent, or licenses are necessary and to obtain any such licenses to duplicate, modify, transmit, distribute, and/or create or compress such media, content or tools. You agree to indemnify, defend, and hold harmless Licensor and each of its officers, directors, employees, subsidiaries and divisions, from and against losses, damages, expenses (including reasonable attorneys' fees), fines, or claims arising from or relating to any claim that the Software and Documentation was used by you in connection with the duplication, modification, transmission or distribution of or any other action relating to any content or materials in violation of another party's rights or in violation of any law. You may not use the Software in conjunction with any device or service designed to circumvent technological measures employed to control access to, or the rights in, a content file or other work protected by the copyright laws of any jurisdiction.
14. Choice of Law; Jurisdiction; Language. (a) This Agreement will be governed by the laws of the State of California, excluding: (i) the application of its conflicts of law rules; (ii) the United Nations Convention on Contracts for the International Sale of Goods; (iii) the 1974 Convention on the Limitation Period in the International Sale of Goods (the "1974 Convention"); and (iv) the Protocol amending the 1974 Convention, done at Vienna April 11, 1980. (b) You and Licensor agree that the exclusive venue shall be the federal and state courts in Orange County, California, United States of America, and each of us submits to the exclusive jurisdiction of such courts. Nothing contained in this paragraph shall prevent either you or Licensor from seeking equitable relief such as an injunction in whatever jurisdiction as may be appropriate.
15. General (a) This Agreement supersedes all prior agreements and understandings between the parties related to the subject matter herein and is intended by the parties to be the complete and exclusive statement of the terms of their Agreement. This Agreement shall not be amended, altered or changed by any purchase order or other instrument submitted by you. If Licensor provides any modification, enhancement, replacement or update for the Software to you, such modification, enhancement, replacement, or update shall be governed by the terms of this Agreement, or any additional or different terms and conditions that may be required by Licensor as a condition to your using such modification, enhancement, replacement or update. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable, and shall not affect the enforceability of any other provision of this Agreement. The waiver of any party of a breach or default under any provision under this Agreement or the failure of such party to exercise its rights under this Agreement in any instance shall not operate or be construed as a continuing waiver or a waiver of any subsequent breach or default. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof (whether or not similar). (b) You shall be responsible for and shall pay, and shall reimburse Licensor on request if Licensor is required to pay, any sales, use, value added (VAT), consumption or other tax (excluding any tax that is based on Licensor's net income), assessment, duty, tariff, or other fee or charge of any kind or nature that is levied or imposed by any governmental authority on the System. (c) Except as expressly provided otherwise herein, the remedies contained herein are cumulative and in addition to any other remedies at law or equity. Licensor's failure to enforce, or waiver of a breach of, any provision hereof shall not constitute a waiver of any other breach of such provision. You acknowledge that a breach by you of Sections 2, 4, or 5 of this Agreement would constitute irreparable harm to Licensor for which a remedy at law would be inadequate and therefore consent to being enjoined from any such breach without requiring Licensor to post a bond. (d) Licensor shall not be considered in default in performance of its obligations hereunder if performance of such obligations is prevented or delayed by acts of God or government, war, riots, acts of civil disorder, labor disputes, failure or delay of transportation or telecommunications, or by vendors or subcontractors, or any other similar cause or causes beyond its reasonable control. (e) The terms and conditions of this Agreement will be held as confidential by both parties hereto, provided, however, that Licensor may cite that you are a user of the System. (f) The System is not fault-tolerant and is not designed, certified, tested, manufactured or intended for use in hazardous environments requiring fail-safe or uninterrupted performance, including without limitation, in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, weapons systems, or disposal of hazardous waste, in which the failure of the System could lead directly or indirectly to death, personal injury, or severe physical or environmental damage ("High Risk Activities"). LICENSOR AND ITS RESELLERS, DISTRIBUTORS AND LICENSORS HAVE NOT MADE ANY EXPRESS WARRANTIES AND SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR HIGH RISK ACTIVITIES. You agree to indemnify and hereby hold Licensor, its licensors and resellers harmless from any claims for losses, costs, damages, expenses, or liability which may arise out of or in connection with the use of the System for High Risk Activities.