Kardin Systems Software End-User License Agreement

IMPORTANT - READ CAREFULLY: This End-User License Agreement (the "Agreement") is a legal agreement between you (either an individual or a single entity) ("You") and Kardin Systems, Inc. (the "Licensor") for the software accompanying this Agreement, which includes computer software and may include associated media, printed materials, and "online" or electronic documentation, and any fixes, releases, upgrades, new versions or enhancements that may subsequently be issued (the "Licensed Program") to You. By exercising your rights to make and use copies of the Licensed Program, you agree to be bound by the terms of this Agreement. If you do not agree to the terms of this Agreement, you may not use the Licensed Program. 1. Licensed Program. The Licensed Program is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Therefore, you must treat the Licensed Program like any other copyrighted material. THE LICENSED PROGRAM IS LICENSED, NOT SOLD. 2. Certain Preliminary Uses. (a) Installation. The Licensed Program is distributed to You by electronic download or on self-installing media as described in the Documentation. You will need to install the Licensed Program on properly configured and compatible computer equipment according to the Documentation. You will also need to ensure that all required data is in proper format and no other software or equipment having an adverse impact on the Licensed Program are present. (b) Evaluation Period. The Licensor may agree to grant you a temporary "Evaluation License" to install, store, load, execute, display and evaluate the Licensed Program for thirty (30) days. The Evaluation License does not authorize You to make productive use of the Licensed Program. At the end of the Evaluation Period, You can terminate this Agreement by notifying Licensor and certifying the return/destruction of all remaining copies in your possession or control. If You do not terminate this Agreement by that time, You will automatically be deemed to obtain a license to Use the Licensed Program according to this Agreement and You agree to pay any unpaid License Fees for the Licensed Program. 3. Licensed Operating Environment. (a) Operating Environment. Once have agreed to the terms of this Agreement, have completed activities described in Section 2 ("Certain Preliminary Uses") and provided You pay the applicable License Fees described or referenced in Section 7 ("Price & Payment") when due, You will be deemed granted one (1) non-exclusive operations license(s) for the Licensed Program, in each case to install, store, load, execute and display (collectively, "Use") the Licensed Program on one (1) CPU of the class described in the Documentation (the "Licensed Operating Environment"). The Licensed Program is provided only in machine readable object code form. (b) Authorized Operators. The Licensed Program will be operated solely by Your own employees ("Authorized Operators"). The Authorized Operators will Use the Licensed Program in the Licensed Operating Environment in accordance with the terms of this Agreement. (c) Installation from a Network Server. You may store complete copies of the installation files or disks for the Licensed Program on a storage device, such as a network server, used only to install the Licensed Program on your other computers over an internal network; however, you may not install the Licensed Program on such a storage device or network server. A license for the Licensed Program may not be shared or used concurrently on different computers. Licensor does not provide "network" or "floating" licenses. Any such storage of installation files or disks must be secure and not accessible to the general public. 4. Additional Responsibilities. You shall be exclusively responsible for the supervision, management, and use of the Licensed Software, including, but not limited to the following: (a) Assuring proper configuration of any hardware or related equipment or devices which are involved in the use of Licensed Software, including protection from computer viruses. (b) Establishing adequate operating methods. (c) Verifying that any and all calculations, reports, and other information entered into or produced by Licensed Software is correct and error free. (d) Implementing procedures sufficient to satisfy Your obligations for security under this Agreement, including appropriate action between You and other members of Your organization or employees of Your company to prevent misuse, unauthorized copying, modification, or disclosure of the Software. (e) Ensuring that Your Authorized Operators use the Licensed Program in the Licensed Operating Environment strictly in support of Your internal business operations and to process Your own data. (f) Maintaining in a safe place archival copies of valuable software or data that would be needed in the event of disaster, corruption, or other loss. 5. Reservation of Rights. (a) Rights to Licensed Program. The intellectual property rights in the Licensed Program shall at all times remain the exclusive property of Licensor. By executing this Agreement and paying the applicable License Fee, You obtain a limited license to Use the Licensed Program in object code form. YOU AGREE NOT TO DISASSEMBLE, DECOMPILE OR REVERSE ENGINEER THE LICENSED PROGRAM. You also agree that any information obtained in violation of this restriction will be confidential information automatically and irrevocably deemed assigned to and owned exclusively by the owner of the Licensed Program. You will at all times use due diligence to safeguard and protect all such confidential and proprietary information pertaining to the Licensed Program. You will ensure that all marks, notices or legends pertaining to the origin, identity or ownership of the Licensed Program remain intact and clearly legible. (b) All Other Rights Reserved. Except as expressly granted to You under another provision of this Agreement, Licensor reserves to itself and prohibits You (directly or indirectly, in whole or in part) from loaning, renting, leasing, sublicensing or otherwise distributing or operating the Licensed Program to or for the benefit of any third party, and from altering, adapting, translating or preparing any derivative work of the Licensed Program. The foregoing limitation does not prohibit Authorized Operators from making a copy of the Licensed Program for archival purposes or as an essential step in making Permitted Uses of the Licensed Program in the Licensed Operating Environment. (c) Separation of Components. The Licensed Software is licensed as a single product. Its component parts may not be separated for use on more than one computer. 6. Product Support. You may receive the following Product Support from Licensor for so long as Licensor generally offers such Support to the public. (a) Single Point of Contact. Support for Licensed Software will be handled through a Single Point of Contact ("Contact") within the Your Company (although Licensor may agree to support more than one point of contact for large companies). You shall identify the Contact when purchasing user licenses for the Licensed Software. If Your Company already has a designated Contact, You will not be able to select an additional Contact without the written consent of Licensor. (b) Support Charges. Support, if provided, will be billed at normal hourly support rates as determined by Licensor. (c) Third Party Support. In the event that You receive Support from an Authorized Third Party Support Provider, such support will be governed by Your agreement with that Support Provider. Licensor makes no guarantees regarding the quality or correctness of any such support. (d) No Guarantee of Support. Purchasing a User License for the Licensed Software does not guarantee that You will be provided with Support. 7. Price & Payment. (a) Price. You agree to pay Licensor a License Fee in the amount stated on Licensor's invoice. The License Fee is determined according to the method stated on the invoice. Payment of the License Fee entitles You to Use the Licensed Program in accordance with this Agreement during the stated Term. Any applicable Product Support Fees are referenced in Section 6 ("Product Support"). (b) Payment. Unless otherwise stated on Licensor's invoice, the applicable fees and shipping charges are payable by You promptly upon delivery. You will pay all sales, use, value-added, GST, personal property or other governmental tax or levy associated with this transaction (including interest and penalties imposed thereon) other than taxes based on the net income or profits of Licensor. If You fail to pay any amount when due, Your license to Use the Licensed Program will automatically terminate and You will pay all costs of enforcement, including reasonable legal fees. 8. Transfer of License. Licensor may agree, under certain terms and conditions, to allow You to transfer and assign not less than all of Your rights to the Licensed Program under this Agreement. You must give Licensor written notice of the requested transfer and the identity of the transferee. Licensor may condition the transfer on the transferee's written consent to be bound by this Agreement. Licensor may impose transfer fees on an assignment of this Agreement. By transferring this Agreement, You terminate any right to Your continued possession or Use of the Licensed Program. You must promptly destroy all remaining copies of the Licensed Program in Your possession or under Your control. Licensor may require a Deletion Code or other proof of destruction to complete the License Transfer. 9. No Warranties. Licensor expressly disclaims any warranty for the Licensed Software. The Licensed Software and any related documentation or support is provided "AS IS" without warranty of any kind, either express or implied, including, without limitation, the implied warranties or merchantability, fitness for a particular purpose, non-infringement, quality, conformity with specifications, reliability or functionality. The entire risk arising out of use, performance, or nonperformance of the Licensed Software remains with You. LICENSOR MAKES NO WARRANTY, EXPRESS OR IMPLIED, AND DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, WITH REGARD TO THE LICENSED SOFTWARE, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES. 10. Software Locks & Undocumented Features. BE ON NOTICE THAT THE LICENSED PROGRAM CONTAINS A SOFTWARE LOCK THAT IS DESIGNED TO PREVENT UNAUTHORIZED OR EXCESSIVE USE OF THE LICENSED PROGRAM. USAGE OF THE LICENSED PROGRAM MAY, UNDER CERTAIN CIRCUMSTANCES, BE AUTOMATICALLY TERMINATED. LICENSOR DOES NOT REPRESENT OR WARRANT THAT OPERATION OF THIS FEATURE WILL BE ERROR FREE. YOU NEVERTHELESS AGREE THAT INCORPORATION OF THIS FEATURE INTO THE LICENSED PROGRAM IS COMMERCIALLY REASONABLE, HAS BEEN REFLECTED IN THE TERMS AND CONDITIONS OF THIS AGREEMENT AS A WHOLE AND YOU ACCEPT ALL RISK ASSOCIATED WITH THIS FEATURE. 11. Limitation of Remedies & Liabilities. The following provisions are a material condition of this Agreement and reflect a fair allocation of risk: (a) Remedies. You agree that if the Licensor violates any warranty or other provision of this Agreement, and Licensor determines that repair or other corrective action is not economically or technically feasible, Your sole and exclusive remedy will be to obtain a refund of License Fees paid by You. You also agree that legal remedies alone provide inadequate protection of Licensor's intellectual property rights in the Licensed Program and that, in addition to other relief, Licensor may without necessity of posting bond obtain temporary and permanent injunctions to enforce those rights. (b) Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LICENSOR OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE PRODUCT OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS INCLUDES DAMAGES INCURRED BY YOU, YOUR CUSTOMERS OR ANY THIRD PARTY. THIS LIMITATION PROTECTS LICENSOR AND ANY DISTRIBUTOR OR RESELLER FROM WHOM YOU OBTAINED THE LICENSED PROGRAM. IN ANY CASE, LICENSOR’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE LICENSE FEE FOR THE LICENSED SOFTWARE. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. 12. Term & Termination. (a) Generally. This Agreement shall continue in full force and effect in perpetuity unless terminated earlier in accordance with this or another Section of this Agreement. This Agreement will terminate automatically if You breach any provision of it. You may terminate this Agreement at any time at Your election. (b) Effect of Termination. Termination of this Agreement will terminate Your right to possess or Use the Licensed Program. Upon termination for any reason, You agree to return to Licensor or destroy the original and all copies of the Licensed Program (including Documentation) and cease all further Use of it. Termination will have no effect on Your obligation to safeguard and protect proprietary rights of Licensor under Section 5(a) ("Rights to Licensed Program"), disclaimers under Section 9 ("Warranties"), limitations under Section 11 ("Limitation of Remedies & Liabilities") or continuing assurances made under Section 14 ("Export Regulations"). 13. Disputes, Choice of Law. Except for certain injunctive relief authorized under Section 11 ("Limitation of Remedies & Liabilities") which may be brought at any time, the parties agree that all disputes shall be submitted to a single arbitrator under proceedings conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The award of the arbitrator shall include a written explanation of the decision, shall be limited to remedies otherwise available in court and shall be binding upon the parties and enforceable in any court of competent jurisdiction. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE UNITED STATES AND CALIFORNIA, AND ANY ACTION SHALL BE INITIATED AND MAINTAINED IN A FORUM OF COMPETENT JURISDICTION IN SUCH DESIGNATED STATE. YOU WILL BRING ANY ACTION AGAINST LICENSOR WITHIN ONE (1) YEAR AFTER THE CLAIM ARISES, OR BE BARRED. 14. Export Regulations. The transfer of technology across national boundaries is regulated by the U.S. Government. You agree not to export or re-export the Licensed Program without first obtaining any required export license or governmental approval. You will not directly or indirectly export or re-export Licensed Program technology to Afghanistan, the People's Republic of China or any Group Q, S, W, Y or Z country specified in Supplement 1 to Part 770 of the U.S. Export Administration Regulations. This provision and the assurances made herein shall survive termination of this Agreement. 15. U.S. Government Restricted Rights. The Licensed Program (including Documentation) are provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights clause at 48 CFR 52.227-19, as applicable. The Contractor is Kardin Systems, Inc. with offices at 701 Southampton Road, Suite 209, Benicia CA 94510. 16. Non-waiver. You agree that no failure to exercise, and no delay in exercising any right, power, or privilege hereunder on the part of Licensor shall operate as a waiver of any right, power, or privilege. You further agree that no single or partial exercise of any right, power, or privilege hereunder shall preclude its further exercise. 17. Miscellaneous. This document constitutes the entire and exclusive agreement between the parties with respect to the subject matter hereof and supersedes all other communications, whether written or oral. This document and Your signature entry or agreement in electronic form, or a hardcopy duplicate in good form, shall be considered an original document with authenticated signature admissible into evidence unless the document's authenticity is genuinely placed in question. You may issue a purchase order, but it will have no substantive effect on our Agreement. This Agreement may be modified or amended only by a writing signed by an authorized representative of Licensor. It is agreed that sales representatives and distributors of the Licensed Program have no authority to alter this Agreement. Any provision found by a tribunal of competent jurisdiction to be illegal or unenforceable shall be automatically conformed to the minimum requirements of law and all other provisions shall remain in full force and effect. Waiver of any provision hereof in one instance shall not preclude enforcement of it on future occasions. Headings are for reference purposes only and have no substantive effect. If you have any questions about this Agreement, contact Kardin Systems, Inc. at 701 Southampton Road, Suite 209, Benicia CA 94510.