The following document provides more information on the licenses used for the SiteTrax.io Capture application.
This license agreement (“Agreement”) is a legal agreement between you, (“Licensee”) and Netarus, LLC (“Licensor”), for use of Licensor’s (or its affiliated companies’) and its licensors proprietary software products as set out in the Schedule, which includes any “online” or electronic documentation supplied therewith (the “Software”).
BY DOWNLOADING THE SOFTWARE ELECTRONICALLY, OR INSTALLING, COPYING, OR
OTHERWISE USING THE SOFTWARE, LICENSEE ACCEPTS AND AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF LICENSEE DOES NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT THEN LICENSEE MUST NOT DOWNLOAD THE SOFTWARE, INSTALL COPY OR OTHERWISE USE THE SOFTWARE.
Licensee is interested in purchasing a permanent license for the Software License Agreement.
Now therefore the parties hereby agree as follows:
1.1 THIRD PARTY OPENSOURCE SOFTWARE (“OS SOFTWARE”) MAY BE SUPPLIED WITH THE SOFTWARE. IN THIS EVENT SUCH OS SOFTWARE IS SUBJECT TO THE APPLICABLE LICENSE TERMS INCORPORATED IN THE OS SOFTWARE. CUSTOMER ACKNOWLEDGES THAT THE OS SOFTWARE IS SUPPLIED FREE, WITHOUT LICENSE FEES AND IS THEREFORE PROVIDED WITH NO WARRANTIES OF ANY KIND INCLUDING THE WARRANTIES OF DESIGN, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW ADLINK SHALL HAVE NO LIABILITY IN
RESPECT OF THE OS SOFTWARE, FOR DAMAGES OF ANY KIND INCLUDING WITHOUT
LIMITATION FOR ANY INDIRECT OR CONSEQUENTIAL LOSS; FOR ANY ECONOMIC LOSS;
FOR LOSS OF USE, DATA, INFORMATION, BUSINESS, REVENUE, PROFITS, PRODUCTION, GOODWILL OR ANTICIPATED SAVINGS; FOR EXEMPLARY OR INCIDENTAL DAMAGES OR OTHER SPECIAL OR PUNITIVE DAMAGES WHATSOEVER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY AND ALL OTHERS), WARRANTY, INDEMNITY OR UNDER STATUTE, EVEN IF ADLINK HAS BEEN ADVISED OF THE LIKELIHOOD OF SAME.
2.1 The Licensor hereby grants to the Licensee a limited, non-exclusive, non-transferable revocable right to use the Software upon the terms and conditions of this Agreement from the date the Software is available to Licensee for download solely for the purpose of internally using whether or not the Software meets the Licensee’s requirements.
2.2 Unless otherwise agreed in writing by Licensor is permitted to use the Software within the Licensee’s facilities only and any other use is strictly prohibited.
2.3 The license granted to Licensee under this Agreement is subject strictly to the licensing applications and restrictions specified in this Agreement. Licensee shall use the Software solely for its own internal use purposes. Licensee shall not provide or otherwise make available the Software, or any data contained or derived therefrom, in whole or in part to any third party and Licensee shall not permit any third party to use the Software save for contractors of Licensee, under supervision of Licensee, at Licensee’s premises and provided that such contractors are bound by written agreement to compliance with the terms of this Agreement. Licensee shall ensure compliance by such third party contractors to such terms and Licensee acknowledges and agrees that Licensee is liable for any actions/failure to act by its contractors which results in a breach of this Agreement.
2.4 Licensee shall not, or permit any third party to, publish or disclose the results of any performance or benchmark tests relating to the Software without the written consent of Licensor.
2.5 Software provided to Licensee under this Agreement may be used for developing new application(s), but Licensee is not permitted to deploy any application or program created with the Software except for testing or trial use. For the avoidance of doubt, Licensee is NOT permitted to deploy any application or program created with the Software for production use.
2.6 Licensee may make a single copy of Software licensed, for back-up or archival purposes. Any copy must include Licensor’s copyright notice and is fully subject to the terms of this Agreement.
2.7 Licensee shall not
2.7.1 copy, reproduce, translate, adapt, de-compile, modify, reverse engineer, disassemble or create derivative works of the Software except (a) as permitted by this Agreement; or (b) as permitted by Licensor and with Licensor’s prior written authorisation, or (c) where applicable law prohibits these restrictions;
2.7.2 make any attempt to unblock or bypass any initialisation system or encryption techniques utilised by the Software;
2.7.3 use the Software for any criminal or unlawful activity; introduce any virus, logic bomb, harmful code or trojan horse to the Software; or use any manual or technical or automated system or software to extract data or content, in whole or in part, from the Software for display on any other website, or for the purposes of offering the data or content, in whole or in part, for sale, resale, distribution or licensing to others or copying, merging, modifying or creating derivative works;
2.7.4 interfere with another user’s use and enjoyment of the Software, interfere with or disrupt the security measures of the Software; or interfere with or disrupt the networks connected to the Software; or
2.7.5 perform stress testing of the Software without Licensor’s prior written consent; and
2.7.6 keep any user identification (“User ID”) and passwords given to each user personal to each user. Licensee will at all times keep any and all access codes, User ID’s and passwords provided by Licensor to Licensee strictly confidential within Licensee’s organisation, not allow any third party to use them to access the Software, and promptly notify Licensor if Licensee suspects or becomes aware of any unauthorised use of Licensee’s User ID or password.
2.8 If Licensee requires information relating to the Software necessary to achieve inter-operability with an independently created software program, Licensee shall make a written request to Licensor to make available such information. Licensee shall not make any copies of any documentation supplied by Licensor relating to the Software.
2.9 In the event that the Software contains or is accompanied by certain third-party software products such
third-party software is subject to the respective third-party license terms as may be set forth within the third-party software. Furthermore, the software may enable you to obtain software applications from other sources. Those applications are offered and distributed by third parties under their own license terms.
Licensor is not developing, distributing or licensing those applications to Licensee, but instead, as a convenience, enables Licensee to use this software to obtain those applications directly from the application providers. By using the software, Licensee acknowledges and agrees that Licensee is obtaining the applications directly from the third party providers and under separate license terms, and that it is Licensee’s responsibility to locate, understand and comply with those license terms.
3.1 Software shall be made available to Licensee via electronic transfer or download and shall not use or deliver any tangible media in connection with the (a) delivery, installation, updating or problem resolution of any Software (including any new releases); or (b) delivery, correction or updating of documentation, unless otherwise agreed in writing. For the purposes of this section tangible media shall include, but not be limited to, any tape disk, compact disk, card, flash drive, or any other comparable physical medium.
3.2 Licensor shall deliver one copy of the Software in machine-readable object code form and shall issue applicable License Key(s). Delivery shall be deemed to have occurred when the Software has been made available for electronic download and Licensee has been notified accordingly.
- Fees basis
- Payment Terms
- Expiry of Term 6.1 If at the expiry of the Term, the Licensee does not wish to purchase a permanent license, the Licensee shall forthwith remove and destroy the Software and all copies, in whole and in part, in any form including partial copies of modifications of the Software received from the Licensor or made in connection with this Agreement.
- Liability 7.1 DUE TO THE LIMITED NATURE OF THE LICENSE GIVEN HEREIN, WHICH IS FOR THE LICENSEE’S TermOF THE SOFTWARE ONLY, THE LICENSOR DOES NOT WARRANT TO THE LICENSEE THAT THE SOFTWARE IS FREE FROM FAULTS OR DEFECTS, THAT USE OF THE SOFTWARE WILL BE UNINTERRUPTED, OR THAT THE SOFTWARE (INCLUDING FOR THE AVOIDANCE OF DOUBT ANY FUNCTIONS CONTAINED IN THE SOFTWARE OR THE RESULTS OF USE) WILL MEET LICENSEE’S REQUIREMENTS. IN THE COURSE OF
SUCH TERM,THE LICENSEE MAY PROCESS ITS OWN DATA AND RETAIN THE BENEFIT OF SUCH PROCESSING BUT THE LICENSOR SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY ERRORS OR DEFECTS THEREIN. 7.2 ANY CONDITION, REPRESENTATION OR WARRANTY WHICH MIGHT OTHERWISE BE IMPLIED OR INCORPORATED WITHIN THIS AGREEMENT BY REASON OF STATUTE OR COMMON LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABLE OR SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT ARE HEREBY EXPRESSLY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. 7.3 LICENSOR DOES NOT EXCLUDE OR LIMIT ITS LIABILITY IN NEGLIGENCE FOR DEATH OR PERSONAL INJURY, OR FOR FRAUD, OR OTHERWISE INSOFAR AS ANY EXCLUSION OR LIMITATION OF ITS LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY LAW. 7.4 THE LICENSEE SHALL USE THE SOFTWARE AT ITS OWN RISK AND ACCORDINGLY, SAVE AS PROVIDED IN CLAUSE 7.3 ABOVE, LICENSOR SHALL NOT IN ANY CIRCUMSTANCES HAVE ANY LIABILITY FOR ANY LOSSES OR DAMAGES WHICH MAY BE SUFFERED BY LICENSEE (OR ANY PERSON CLAIMING UNDER OR THROUGH THE CUSTOMER), WHETHER THE SAME ARE SUFFERED DIRECTLY OR INDIRECTLY OR ARE IMMEDIATE OR CONSEQUENTIAL, AND WHETHER THE SAME ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE HOWSOEVER, WHICH FALL WITHIN ANY OF THE FOLLOWING CATEGORIES: (I) SPECIAL DAMAGE, EVEN IF LICENSOR WAS AWARE OF THE CIRCUMSTANCES IN WHICH SUCH DAMAGE COULD ARISE; (II) LOSS OF PROFITS; (III) LOSS OF ANTICIPATED SAVINGS; (IV) LOSS OF BUSINESS OR BUSINESS OPPORTUNITY; (V) LOSS OF GOODWILL; (VI) LOSS OF, OR DAMAGE TO (INCLUDING CORRUPTION OF) DATA.. 7.5 SUBJECT TO CLAUSES 7.3 AND 7.4 ABOVE, THE TOTAL LIABILITY OF LICENSOR, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY AND ALL OTHERS), BREACH OF STATUTORY DUTY OR OTHERWISE, SHALL IN NO CIRCUMSTANCES EXCEED THE FEES PAID BY LICENSEE UNDER THIS AGREEMENT OR THE SUM OF $20,000 (TWENTY THOUSAND US DOLLARS), WHICHEVER IS LOWER. 7.6 LICENSEE HEREBY WAIVES ANY RIGHT TO ANY OTHER REMEDIES OR RELIEFS NOT SET OUT IN THIS AGREEMENT AND SUCH WAIVER SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT HOWEVER SUCH TERMINATION ARISES. 7.7 LICENSEE ACKNOWLEDGES THAT: 7.7.1 THE LEVEL OF FEES HEREUNDER REFLECTS THE ALLOCATION OF RISK BETWEEN THE PARTIES, AND 7.7.2 IT IS IN A BETTER POSITION THAN LICENSOR TO ASSESS AND MANAGE ITS RISK IN RELATION TO USE OF THE SOFTWARE AND SUPPORT SERVICES.
7.8 LICENSEE INDEMNIFIES LICENSOR AND UNDERTAKES TO KEEP LICENSOR INDEMNIFIED AGAINST ANY LOSSES, DAMAGES, COSTS, LIABILITIES AND EXPENSES (INCLUDING WITHOUT LIMITATION LEGAL EXPENSES AND ANY AMOUNTS PAID BY US TO A THIRD PARTY IN SETTLEMENT OF A CLAIM OR DISPUTE ON THE ADVICE OF OUR LEGAL ADVISERS) INCURRED OR SUFFERED BY LICENSOR ARISING OUT OF ANY BREACH BY LICENSEE OF ANY PROVISION OF THIS AGREEMENT.
7.9 ALL REFERENCES TO LICENSOR IN THIS CLAUSE 8 SHALL, FOR THE PURPOSES OF THIS CLAUSE ONLY, BE TREATED AS INCLUDING ALL EMPLOYEES, DIRECTORS, SUBCONTRACTORS AND SUPPLIERS OF LICENSOR AND ITS AFFILIATES, ALL OF WHOM SHALL HAVE THE BENEFIT OF THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET OUT IN THIS CLAUSE.
7.10 THE TERMS OF THIS CLAUSE SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT HOWSOEVER ARISING.
- Intellectual Property Rights
8.1 Where used in this Agreement, ‘Intellectual Property Rights’ shall have the following meaning “all past, present, and future trade secret rights, patent rights, copyrights, moral rights, contract rights, trademark rights, service marks, and other proprietary rights in any jurisdiction, including those rights in inventions, software, domain names, know-how, methods, processes, information and technology, in and/or pertaining to the Software (including but not limited to any images, photographs, animation, video, audio, music, text, and applets incorporated into the Software) and any copies of the Software.
8.2 All rights, title and interest in and to the Software and all corrections, enhancements, or other modifications to the Software made by Licensor or any Third Party at Licensor’s direction, and all Intellectual Property Rights therein are the sole and exclusive property of Licensor its affiliated companies, or licensors. The Software is protected by applicable Intellectual Property Rights including but not limited to copyright, trademark laws and international treaty provisions. Licensee may not copy any printed materials accompanying the Software.
8.3 Licensee may not remove, modify or alter any Licensor copyright or trademark notice from any part or copies of the Software, including but not limited to any such notices contained in the physical and/or electronic media or documentation, in Licensor’s installation dialogue or ‘about’ boxes, in any of the runtime resources and/or in any web-presence or web-enabled notices, code or other embodiments originally contained in or dynamically or otherwise created by the Software.
8.4 Licensee shall protect the Software and any associated data or documentation from unauthorised or illegal use and comply with all laws relating to its use of the Software.
If the Software is, or in Licensor’s opinion may become, the subject of a claim for infringement of the intellectual property rights of a third party, Licensor may at its option and as Licensee’s sole remedy:
8.4.1 procure the right to continued use of the Software;
8.4.2 replace or modify the Software to make it non infringing; or
8.4.3 terminate this Agreement.
9.1 This Agreement shall continue for the Term unless terminated sooner in accordance with this Agreement.
9.2 Licensor may by notice in writing to Licensee terminate this Agreement if Licensee:
9.2.1 commits a breach of this Agreement; or
9.2.2 has ceased business, been adjudged bankrupt or insolvent under the laws of any jurisdiction, made an assignment for the benefit of creditors, or filed, or had filed against it, a petition of bankruptcy, reorganisation or other insolvency proceeding.
9.3 Following termination of this Agreement, Licensee shall immediately cease to use the Software and shall destroy all of the Software including any copies thereof.
9.4 Termination of this Agreement, for whatever cause, shall be without prejudice to the rights of either party accrued prior thereto, including without limitation any right to payment of any sum and any right to sue in respect of any antecedent breach of this Agreement, and termination shall not affect any provision of this Agreement which, in order to give full effect to its meaning, needs to survive such termination (and all such provisions shall survive such termination to the extent necessary to give full effect to their meanings).
10.1 Licensee shall not assign sub-license or otherwise transfer any of the rights or obligations under this Agreement without the prior written consent of Licensor.
10.2 Licensor shall be entitled without the prior written consent of Licensee to assign sub-contract or otherwise transfer its rights and obligations under this Agreement.
- Export Regulations
By downloading or using the Software, Licensee represents and warrants that it is not located in under the control of or a national or resident of any country which is subject to an applicable embargo or other trade restriction imposed by the U.S. or other government. Licensee shall not import, export, or re-export the Software to or from any country in contravention of any applicable import or export laws or regulations of the United States or other government.
- High Risk Activities
The Software is not fault-tolerant and is not designed, manufactured or intended for use in on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Software could lead directly to death, personal injury, or severe physical or environmental damage (“High Risk Activities”). Licensor and its suppliers specifically disclaim any express or implied warranty of fitness for High Risk Activities and Licensee warrants that it will not use the Software for High Risk Activities.
- Audit Rights
Licensor reserves the right, with reasonable notice and at reasonable times, not exceeding one time per year, to conduct an audit of Licensee’s records to the extent only that is reasonably necessary to confirm Licensee’s compliance with the terms of this Agreement. In the event such audit reveals that copies of the Software have been made or are in use in breach of this Agreement, Licensee shall be liable to pay to the Licensor, as liquidated damages, Licensor’s prevailing list price for each such copy.
- US Government End Users
The Software and documentation included therein are “commercial items” as that term is defined in 48 C.F.R. 2.101 (October 1995). Software is “commercial computer software” and Software documentation is
“commercial computer software documentation” as such terms are used in 48 C.F.R. 227.7202-1, 227.72023 and 227.7202-4 (June 1995). If the Licensee hereunder is the U.S. Government or any agency or department thereof, the Software is licensed hereunder (i) only as commercial item, and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement.
- General 15.1 Neither party shall be in breach of this Agreement if there is any total or partial failure of performance by it of its duties and obligations under this Agreement which is due to causes beyond its reasonable control provided that the party affected by such causes gives notice in writing to the other party at the commencement and cessation of these causes. 15.2 Any notice or other communication required or permitted under this Agreement shall be given in writing to the address of the recipient as notified from time to time and will be deemed to have been given or made when delivered personally; if properly addressed and posted by prepaid certified or registered mail within three business days of posting; if sent by facsimile upon being sent if confirmed by post; or electronically upon receipt if acknowledged to have been received. 15.3 This Agreement contains the entire agreement between the Licensor and the Licensee relating to the licensing of the Software and supersedes all prior oral or written understanding, arrangements, representations or agreements between them relating to the subject matter of this Agreement. No amendment, variation or discharge of this Agreement is valid unless accepted in writing by both parties. 15.4 The failure of either party to exercise or enforce any rights under this Agreement shall not amount to a waiver of those rights. 15.5 The illegality or invalidity of any part of this Agreement shall not affect the legality or validity of the remainder of it. Any provision of the Agreement held to be to be excessively broad as to scope, activity, subject or otherwise so as to be unenforceable at law shall be constructed by limiting or reducing it so as to be enforceable to the maximum extent compatible with the applicable law then prevailing. 15.6 If this Agreement is entered into with Licensor’s affiliate company located in the United States of America, then this Agreement shall be governed by and construed in accordance with the substantive laws of the Commonwealth of Massachusetts, without giving effect to the principles of conflict or choice of law of such Commonwealth. If this Agreement is entered into with Licensor’s affiliate company located in any other jurisdiction than the United States of America, then this Agreement: (i) shall be governed by and construed in accordance with the laws of England and all disputes arising in connection with this Agreement shall be subject to the non-exclusive jurisdiction of the English courts and (ii) is enforceable by the original parties to it and by their successors in title and permitted assignees. No term of this Agreement is enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to this Agreement. The original of this Agreement has been written in English. The parties hereto waive any statute, law, or regulation that might provide an alternative law or forum or to have this Agreement written in any language other than English.
Licensor Software Product(s): SiteTrax.io