END USER LICENSE AGREEMENT
IMPORTANT! READ CAREFULLY: THIS IS A LEGAL AGREEMENT. BY DOWNLOADING, INSTALLING, COPYING, SAVING ON YOUR COMPUTER, OR OTHERWISE USING THIS SOFTWARE, YOU (LICENSEE, AS DEFINED BELOW) ARE BECOMING A PARTY TO THIS END USER LICENSE AGREEMENT “AGREEMENT”) AND YOU ARE CONSENTING TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU SHOULD NOT DOWNLOAD, INSTALL AND USE THE SOFTWARE.
THE PROVISIONS OF THIS AGREEMENT ALLOCATE THE RISKS BETWEEN LICENSEE AND LICENSOR. LICENSOR’S PRICING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.
“Licensor” means Chronon Systems, LLC, Inc. (“Licensor”), a Delaware limited liability corporation having a principal place of business at 1900 South Norfolk St. Suite 350, San Mateo, CA 94403.
“Licensee” means the individual or legal entity specified in the License Certificate. For legal entities, “Licensee” includes any entity which controls, is controlled by, or is under common control with Licensee. For purposes of this definition, “control” means (a) the power, direct or indirect, to cause the direction or management of such entity, whether by contract or otherwise, or (b) ownership of fifty percent (50%) or more of the outstanding shares or beneficial ownership of such entity.
For purposes of this Agreement the following terms will have the meanings set forth below:
2.1 Authorized User means (a) if Licensee is an individual, solely Licensee; (b) if Licensee is a legal entity, any employee, independent contractor and other temporary worker authorized by Licensee to use the Software while performing duties within the scope of their employment or assignment.
2.2 Documentation means Licensor’s current user manuals, operating instructions and installation guides generally provided with the Software to its licensees.
2.3 Intellectual Property Rights means any patents, trademarks, copyrights, mask works rights, know-how, trade secrets, or other intellectual property rights.
2.4 License Certificate means evidence of a license provided by Licensor to Licensee in electronic or printed form.
2.5 License Key means a unique key-code that enables a single Authorized User to use the Software at a time. Only Licensor and/or its representatives are permitted to produce License Keys for the Software.
2.6 Software means the object code versions of the Software described on the License Certificate.
2.7 Third Party Software means the third party software programs and components that are owned and licensed by parties other than Licensor and that are integrated with or made part of the Software.
2.8 Third Party Software Licenses means the licenses for the Third Party Software, including: the apache license (http://commons.apache.org/lang/license.html, the bsd license (http://xstream.codehaus.org/license.html), the asm framework license (http://asm.ow2.org/license.html) and the Eclipse Public License (http://www.eclipse.org/org/documents/epl-v10.php).
3.1 License Grant. Licensor grants Licensee non-exclusive and non-transferable (except as permitted herein) license to install and use the Software and the Documentation on multiple computers and operating systems, provided that a number of concurrent users never exceeds the number of Authorized Users specified in the appropriate License Certificate(s) and that the same License Key is not used concurrently by different Authorized Users, on different computers or operating systems, subject to the following limitations: (a) the Software may be used solely to record and debug applications on the licensed computer listed in the License Certificate; (b) Licensee may not allow the use of the same License Key by multiple Authorized Users, or on different computers or operating systems at a time; (c) Licensee may not copy the Software, except for archival or disaster recovery purposes, and if Licensee does copy for these purposes, Licensee will preserve any proprietary rights notices on the Software and place such notices on any and all copies Licensee has made or makes; (d) Licensee will not reverse engineer, decompile, disassemble, or otherwise attempt to determine source code or protocols from the Software; and (e) Licensee will not lease, rent, or sublicense the Software to any third party, or otherwise use it except as permitted in this Agreement. Licensee may not disclose the results of any performance benchmarks to any third party without Licensor’s prior written consent.
3.2 Education Software Grant. Subject to the terms, conditions, and limitations set forth in this Agreement, Licensor hereby grants to Licensee a limited, non-exclusive, non-transferable license to use the Software for non-commercial, educational purposes only (including conducting academic research or providing educational services) as follows:
(a) Licensee may:
(i) install and use the Software and the Documentation on the number of Authorized Users listed in the License Certificate, provided that the same License Key is not used concurrently by different Authorized Users, and subject to the following limitations: (ii) the Authorized Users may only be used if Licensee is a student individual or professor, Licensee,(iii) the Software may be used solely to record and debug applications by the Authorized User(s)(iv) use the Software for non-commercial, educational purposes only, including conducting academic research or providing educational services, and(v) make one back-up copy of the Software solely for archival purposes
(b) Licensee may not:
(i) sell, redistribute, encumber, give, lend, rent, lease, sublicense, or otherwise transfer the Software, or any portions of the Software, to anyone without the prior written consent of Licensor; (ii) reverse engineer, decompile, disassemble, modify, translate, make any attempt to discover the source code of the Software, or create derivative works from the Software;(iii) allow the use of the same License Key by multiple Authorized Users, or on different Clients or operating systems at a time. The Software may contain a feature preventing concurrent use of the same License Key by multiple Authorized Users, on different Clients or operating systems at a time, or (iv)Licensee may not disclose the results of any performance benchmarks to any third party without Licensor’s prior written consent. (V) use the Software for any commercial purpose.
3.3 License to Third Party Software. Third Party Software is licensed to Licensee in accordance with the Third Party Software Licenses and is further subject to any restrictions set forth herein. Licensee will abide by the terms and conditions of the Third Party Software Licenses. Licensor will have no responsibility with respect to any Third Party Software, and Licensee will look solely to the licensor(s) of the Third Party Software for any remedy. Licensor claims no right in the Third Party Software, and the same is owned exclusively by the licensor(s) of the Third Party Software. LICENSOR PROVIDES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, WITH RESPECT TO ANY THIRD PARTY SOFTWARE.
3.4 Consultant Use of Software. Licensee may allow its third party consultants to access and use the Software solely for Licensee’s operations permitted hereunder, provided they have signed an agreement with Licensee protecting Licensor’s Intellectual Property Rights with terms no less stringent than the terms and conditions of this Agreement and that Licensee ensures that such consultant use of the Software complies with the terms of this Agreement.
3.5 Audit. Licensor may, at any time during the term of this Agreement and with seven (7) days prior written notice, request and gain access to Licensee’s premises subject to Licensee’s security procedures, for the limited purpose of conducting an audit to determine and verify that Licensee is in compliance with the terms and conditions of this Agreement. Licensee will promptly grant such access and cooperate with Licensor in the audit. The audit will be restricted in scope, manner and duration to that reasonably necessary to achieve its purpose and not disrupt Licensee’s operations.
4. PROPRIETARY RIGHTS OWNERSHIP.
4.1 Ownership. The Software and Documentation are the property of Licensor or its suppliers. Title, ownership rights, and all Intellectual Property Rights in and to the Software and Documentation, in whole and in part and all copies thereof, and all current and hereafter existing revisions, modifications, enhancements, derivatives and other alterations of the Software and Documentation regardless of who made any modifications, if any, are, and will remain the sole and exclusive property of Licensor and its suppliers. The Software is licensed, not sold. Licensor retains all rights not expressly granted to Licensee in this Agreement.
4.2 Rights and Protections. The Software and Documentation are protected by United States Copyright Law and International Treaty provisions. Further, the structure, organization, and code embodied in the Software are the valuable and confidential trade secrets of Licensor and its suppliers and are protected by intellectual property laws and treaties. Licensee will abide by the copyright law and all other applicable laws of the United States including, but not limited to, export control laws.
5. CONFIDENTIAL INFORMATION. By virtue of this Agreement, the parties may have access to information that is confidential to one another (“Confidential Information”). Confidential Information will be limited to the Software, the terms and pricing under this Agreement, and all information clearly identified as confidential. A party’s Confidential Information will not include information that: (a) is or becomes a part of the public knowledge or literature through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (d) is independently developed by the other party. The parties will hold each other’s Confidential Information in confidence during the term of this Agreement and for a period of two (2) years after termination of this Agreement. The parties agree, unless required by law, not to make each other’s Confidential Information available in any form to any third party for any purpose other than the implementation of this Agreement. Licensor may reasonably use Licensee’s name and a description of Licensee’s use of the Software for its investor relations and marketing purposes.
6. PAYMENTS, SHIPMENTS AND TAXES. The total non-refundable, non-cancelable license fees for the Software will be due and payable within thirty (30) days from the date of Licensor’s invoice. At its option, Licensor will deliver the Software either electronically or FOB origin, in which case Licensor will prepay the freight and add the cost to Licensee’s invoice. The terms and conditions of this Agreement will prevail regardless of any preprinted or conflicting terms on any purchase order, other correspondence, and any and all verbal communication. Licensee will pay all sales, use, VAT, and other consumption taxes, personal property taxes, and other taxes (other than those based on Licensor’s net income) unless Licensee furnishes satisfactory proof of exemption. Licensor may charge Licensee interest for any payment that is more than thirty (30) days past due at the rate of one and one-half percent (1.5%) per month or the highest amount allowed by law, whichever is lower.
7. WARRANTY EXCLUSION. THE SOFTWARE IS PROVIDED “AS IS” AND WITHOUT WARRANTY. LICENSOR EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER ARISING IN LAW, CUSTOM, CONDUCT, OR OTHERWISE.
8. LIMITATION OF LIABILITY.
8.1 Limitation. Licensor’s aggregate liability to Licensee for damages concerning performance or nonperformance by Licensor or in any way related to this Agreement, and regardless of whether the claim for such damages is based in contract, tort, strict liability, or otherwise, will not exceed the license fees received by Licensor from Licensee for the affected Software for the twelve (12) month period preceding the occurrence of such liability.
8.2 No Consequential Damages. REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS BE LIABLE TO LICENSEE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR SIMILAR DAMAGES (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 OR INABILITY TO USE THE SOFTWARE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
9. TERM AND TERMINATION. This Agreement will become effective on the Effective Date, will continue for one (1) year, and will automatically renew in one (1) year increments unless either party terminates the Agreement by providing written notice to the other at least sixty (60) days prior to the anniversary of the Effective Date. Either party will be in default if it declares bankruptcy or otherwise fails to perform any of its duties or obligations and does not undertake an effort to substantially cure such default within thirty (30) days after written notice is given to the defaulting party, except that any breach of Section 4 will be grounds for immediate termination. In the event of default, the non-defaulting party may terminate this Agreement by providing written notice of termination to the defaulting party. If Licensee is the defaulting party, Licensee must promptly, at Licensor’s direction, destroy or return all affected Software and Documentation. Upon termination of this Agreement for non-default, the provisions of Sections 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10 will survive. Upon termination of this Agreement for default, the provisions of Sections 1, 3, 4, 5, 6, 7, 8, 9, and 10 will survive.
10.1 Force Majeure. Neither party will be liable for any delay or failure in performance due to causes beyond its reasonable control.
10.2 Export Compliance. Licensee may not download or otherwise export or re-export the Software or any underlying information or technology except in full compliance with all United States and other applicable laws and regulations.
10.3 Assignment. Licensee may not assign this Agreement without Licensor’s prior written consent which will not be unreasonably withheld.
10.4 Severability. If any part of this Agreement is held to be unenforceable, in whole or in part, such holding will not affect the validity of the other parts of the Agreement.
10.5 Waiver. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
10.6 Notices. All notices permitted or required under this Agreement will be in writing and will be delivered in person, by FAX, overnight courier service or mailed by first class, registered or certified mail, postage prepaid, to the address of the party specified above or such other address as either party may specify in writing. Such notice will be deemed to have been given upon receipt.
10.7 Governing Law. This Agreement will be governed by both the substantive and procedural laws of California, U.S.A., excluding its conflict of law rules and the UN Convention for the International Sale of Goods.
10.8 United States Government Rights. The Software has been developed entirely at private expense and is provided as “Commercial Computer Software” or “restricted computer software”. The Software is in all respects the proprietary data belonging solely to Licensor or its suppliers.
Department of Defense Licensees : If the Software is acquired by or on behalf of agencies or units of the Department of Defense (DOD), then, pursuant to DOD FAR Supplement Section 227.7202 and its successors (48 C.F.R. 227.7202) the Government’s right to use, reproduce or disclose the Software and any accompanying Documentation acquired under this Agreement is subject to the restrictions of this Agreement.
Civilian Agency Licensees: If the Software is acquired by or on behalf of civilian agencies of the United States Government, then, pursuant to FAR Section 12.212 and its successors (48 C.F.R. 12.212), the Government’s right to use, reproduce or disclose the Software and any accompanying Documentation acquired under this Agreement is subject to the restrictions of this Agreement.
10.9 Entire Agreement. Any amendment or modification to the Agreement must be in writing signed by both parties. This Agreement, including the Third Party Software license agreements, constitutes the entire agreement and supersedes all prior or contemporaneous oral or written agreements regarding the subject matter hereof. The terms and conditions of this Agreement will prevail regardless of any preprinted or conflicting terms on any order, acceptance, or similar documentation.