DATA DYNAMICS, INC.
END USER LICENSE AGREEMENT
FOR
Data Dynamics Software
IMPORTANT:  READ THIS CAREFULLY BEFORE INSTALLING, USING OR ELECTRONICALLY ACCESSING THIS PROPRIETARY PRODUCT!
THIS DATA DYNAMICS, INC. END USER LICENSE AGREEMENT (THE “EULA”) CONSTITUTES A LEGAL AGREEMENT BETWEEN YOU, ACTING ON BEHALF OF YOUR BUSINESS ENTITY (“YOU” OR “LICENSEE”), AS THE END USER, AND DATA DYNAMICS, INC. INCLUDING ITS WHOLLY-OWNED SUBSIDIARIES (COLLECTIVELY “DATA DYNAMICS”) FOR THE SOFTWARE PRODUCT IDENTIFIED ABOVE, WHICH INCLUDES THE OBJECT CODE VERSION OF THE SOFTWARE, AND MAY INCLUDE ASSOCIATED MEDIA, PRINTED MATERIALS, CONTAINERS, THIRD PARTY COMPONENTS AND DOCUMENTATION (COLLECTIVELY, THE “SOFTWARE”). THE SOFTWARE ALSO INCLUDES ANY UPDATES OR UPGRADES TO OR NEW VERSIONS OF THE ORIGINAL SOFTWARE, IF AND WHEN MADE AVAILABLE TO YOU BY DATA DYNAMICS.
BY INSTALLING, DOWNLOADING, ACCESSING, OR OTHERWISE USING THE SOFTWARE, INCLUDING ANY UPDATES, UPGRADES, OR NEWER VERSIONS, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA.
IF YOU ARE ACCESSING THE SOFTWARE ELECTRONICALLY AND YOU AGREE TO THE TERMS OF THIS EULA, SELECT THE “I ACCEPT” OR “YES” BUTTON BENEATH THIS EULA TO INSTALL THE SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT INSTALL, DOWNLOAD, ACCESS OR OTHERWISE USE THE SOFTWARE, AND, IF YOU ARE ACCESSING THE SOFTWARE ELECTRONICALLY, SELECT THE “I DO NOT ACCEPT” OR “NO” BUTTON BENEATH THIS EULA.
License Grant. Subject to the terms and conditions of this EULA and to Licensee’s payment of the applicable license fees, DATA DYNAMICS grants Licensee a non-transferable, non-exclusive, revocable, limited license to install and use the Software in object code form solely for its internal business purposes and in compliance with the published specifications for the Software. For certain Software licensed hereunder, the foregoing license is limited to the equipment that the Software was installed on when received by you. The license is limited to one server instance for which the corresponding license fee has been paid. DATA DYNAMICS must pre-approve in writing any additional copies. This license grant is contingent upon Your compliance with the licensing restrictions set forth herein. DATA DYNAMICS employs a license key system to enable use of the Software. DATA DYNAMICS may include on the media with the Software additional computer programs which are not currently licensed by You and to which the license key will not permit access. Inclusion of such additional computer programs in no way implies a license from DATA DYNAMICS and You may not access or use such programs unless the license keys provided by DATA DYNAMICS specifically authorizes such access and use.
License Restrictions. Except as expressly authorized herein, Licensee is prohibited from and shall not cause or permit any: (1) copying or modification of the Software; (2) creating derivative works based on all or any portion of the Software; (3) removal or modification of any notice of any patent, copyright, trademark or other proprietary rights that appear on or in the Software; (4) reverse engineering, decompilation, translation, disassembly or discovery of the source code of all or any portion of the Software; (5) distribution, disclosure, marketing, leasing, reselling, assigning, loaning, sublicensing, renting, pledging, offering as security or transferring to any third party, including Licensee’s end user customers, of the Software, or use of the Software for any dial-up, third party data or third party network management services, remote access, interactive or other service; (6) merging of the Software into another product; (7) disclosure to any third party of the results of any testing or performance benchmarks of the Software or other DATA DYNAMICS product without DATA DYNAMICS’s prior written consent; or (8) use of the Software, any updates or any upgrades beyond the Term or after expiration or termination of this Agreement.
License Term and Termination. The license term shall be of for up to three (3) years in duration from the earlier of the date (i) of the Purchase Order, (ii) that you first access,, (iii) that you first download, or that you first install the Software, except as otherwise authorized by DATA DYNAMICS, or in the event You fail to comply with the terms and conditions of this EULA. DATA DYNAMICS may terminate this EULA for noncompliance, and you must destroy all copies of the Software and the corresponding software keys in your possession or control and certify in writing to DATA DYNAMICS or its authorized distributor that all copies have been destroyed.
Trial Use License. If You obtained this Software for trial or evaluation purposes, the following terms shall apply: DATA DYNAMICS grants You a non-transferable, non-exclusive, revocable, limited license to install and use the Software for trial and internal evaluation purposes only through the end of any trial period. You understand the Software may be controlled by a license key that will DISABLE all of its functions within a certain limited period of time following the date of DATA DYNAMICS’s issuance of the license key. The Software is provided for trial and internal evaluation purposes “AS-IS”, WITHOUT ANY WARRANTIES. Except as altered in this paragraph, all terms of this EULA shall apply to a Trial Use License.
Ownership. DATA DYNAMICS retains all title, ownership, interests and intellectual property rights in and to the Software and deems the Software to be confidential information. To the extent the Software contains any materials licensed from third parties, third party suppliers may own such licensed materials. DATA DYNAMICS retains all rights not expressly granted to Licensee in this EULA. Licensee agrees to protect and maintain the confidentiality of the Software, and not to disclose the Software to any third parties except as expressly permitted in this EULA. Licensee acknowledges that its breach of confidentiality shall cause DATA DYNAMICS irreparable injury and entitle DATA DYNAMICS to obtain equitable relief, in addition to all other remedies available to it. The confidentiality obligations hereunder shall survive the termination or expiration of this Agreement. Licensee further acknowledges that Licensee is acquiring only a limited license to use the Software and not any title to or ownership of the Software or any part thereof and that the Software is proprietary to and copyrighted by DATA DYNAMICS. DATA DYNAMICS SOFTWARE IS COPYRIGHTED AND LICENSED, NOT SOLD.
Limited Warranty and Disclaimer. DATA DYNAMICS warrants that the electronic media on which the Software is provided to Licensee will be free of defects in materials and workmanship for a period of ninety (90) days from the date of delivery. If, during this 90-day period, Licensee discovers a defect in the electronic media, Licensee shall return the defective media to DATA DYNAMICS for a replacement. Any replacement electronic media is warranted for the remainder of the original warranty period. Licensee’s sole remedy and DATA DYNAMICS’s exclusive obligation under this Limited Warranty shall be the replacement of the defective electronic media. This Limited Warranty does not apply to damage resulting from misuse, abuse, or neglect. DATA DYNAMICS does not warrant that the Software will meet Licensee’s requirements, or that the Software will operate in the combinations which Licensee may select for use, or that the operation of the Software will be uninterrupted or error-free. THE LIMITED WARRANTY SET FORTH IN THIS EULA IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DATA DYNAMICS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHERS, WHICH VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION. YOU ACKNOWLEDGE THAT NO WARRANTIES ARE MADE HEREIN BY ANY OF DATA DYNAMICS’S THIRD PARTY SUPPLIERS.
Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL DATA DYNAMICS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, COVER, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST DATA OR LOST PROFITS, HOWEVER ARISING, WHETHER BASED IN CONTRACT, TORT, OR ANY LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO CLAIMS FOR BODILY INJURY OR DEATH OR DAMAGE TO REAL OR TANGIBLE PROPERTY DIRECTLY CAUSED BY DATA DYNAMICS’s GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. IN ANY CASE, DATA DYNAMICS’s ENTIRE LIABILITY UNDER ANY PROVISION OF THIS EULA SHALL BE LIMITED TO THE GREATER OF (A) THE AMOUNT ACTUALLY PAID BY LICENSEE FOR THE LICENSE TO THE SOFTWARE DURING THE TWELVE MONTH PERIOD PRECEDING SUCH CLAIM OR (B) U.S. $100. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE LIMITATIONS SET FORTH IN THIS EULA MAY NOT APPLY TO LICENSEE. IN ADDITION, DATA DYNAMICS, ON ITS OWN BEHALF AND ON BEHALF OF ITS THIRD PARTY SUPPLIERS, RESELLERS AND DISTRIBUTORS DISCLAIM ALL LIABILITY OF ANY KIND.
Third Party Components. Software provided under this EULA may be distributed with certain freeware, open source (“Open Source Software”) or other third party components which, if included, are provided pursuant to the terms of the applicable Open Source License governing its use and distribution. Please see http://www.datadynamicsinc.com/support/oscd.jsp for such Open Source License terms. DATA DYNAMICS THEREFORE PROVIDES SUCH OPEN SOURCE SOFTWARE ON AN “AS IS” AND “WITH ALL FAULTS” BASIS WITHOUT ANY WARRANTY WHATSOEVER AND HEREBY EXPRESSSLY DISCLAIMS WITH RESPECT TO ANY OPEN SOURCE SOFTWARE AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PUROSE AND NON-INFRINGEMENT; AND (B) ALL LIABILITY FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, COVER, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST DATA OR LOST PROFITS, HOWEVER ARISING, WHETHER BASED IN CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EVEN WHERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Indemnification. Licensee shall indemnify, defend and hold DATA DYNAMICS, and its officers, agents, and employees, harmless from and against any and all actual or threatened losses, liabilities, expenses, damages, claims, demands, proceedings and causes of action (including without limitation reasonable attorneys’ fees and expenses) (“Claims”) based on, arising out of, concerning, resulting from or relating to (a) a breach by Licensee of any of the terms or provisions of this Agreement, or (b) unauthorized use of the Software by Licensee. DATA DYNAMICS shall provide prompt notification to Licensee of any such Claims and shall assist Licensee, at licensee’s sole cost and expense, as reasonably requested by Licensee.
Support. DATA DYNAMICS may, but is not required to, provide technical support for this software. Technical Support may be provided on either a time and material basis or under the terms of a separate Maintenance and Support Agreement. If you have previously purchased maintenance and support from DATA DYNAMICS for this specific DATA DYNAMICS Software and are currently under contract, the support terms under that Agreement will remain in full force and effect through the respective termination date. DATA DYNAMICS shall provide support for this software for a period of two (2) years following end of life; provided you are and remain current on your maintenance and support payment obligations. If you purchased third party maintenance and support, your vendor will provide you with the appropriate terms and conditions for such maintenance and support.
Nuclear, Aviation or Life Support Application. DATA DYNAMICS specifically disclaims liability for use of the Software in connection with the design, construction, maintenance, and/or operation of any (i) nuclear facility, (ii) aircraft, aircraft communication or aircraft ground support system, or (iii) safety or health care control system, including without limitation, life support system. Such use is entirely at Your own risk. DATA DYNAMICS shall not be liable to Licensee, its vendors, or its customers, in whole or in part, for any claims or damages arising from such use. Licensee agrees to defend, indemnify and hold DATA DYNAMICS harmless from and against any and all claims (including reasonable attorneys’ fees) arising out of any such use by Licensee or its customers.
Taxes. Licensee will pay the license fees excluding all sales, use, VAT and other transaction taxes, personal property taxes and other taxes. Licensee will be responsible for payment of all such taxes (other than those based on DATA DYNAMICS’s net income), including any related penalties and interest, arising from the payment of license fees or the delivery or license of the Software to Licensee, unless Licensee furnishes satisfactory proof of exemption. Licensee will make all payments of license fees to DATA DYNAMICS free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of license fees to DATA DYNAMICS will be Licensee’s sole responsibility.
U.S. Government Restricted Rights. The Software and the related documentation provided are a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 (Sept. 1995) and 48 C.F.R. 227.7202-1 through 227.7202¬4 (June 1995), all U.S. Government End Users acquire the Software and the related documentation with only those rights set forth in this EULA.
General. The terms and conditions of this EULA constitute the entire agreement between DATA DYNAMICS and You with respect to the subject matter hereof, and supersede all prior or contemporaneous oral or written representations, proposals or agreements concerning the subject matter herein. The terms and conditions herein take precedence over any additional or different terms, from whatever source, including Your purchase order or other correspondence, to which objection is hereby made by DATA DYNAMICS. Without limiting the foregoing, You agree that flowdown provisions, including, but not limited to United States Government Federal Acquisition Regulations (“FARs”), Defense FARs or NASA FARs, shall not apply to DATA DYNAMICS and DATA DYNAMICS does not accept such provisions notwithstanding the existence of such provisions. None of the terms and conditions in this EULA will be deemed waived, amended or modified by DATA DYNAMICS unless such waiver, amendment or modification is made in writing and signed by an authorized representative of DATA DYNAMICS. No waiver of rights contained in this EULA shall constitute a subsequent waiver of such rights or any other rights hereunder. If any provision of this EULA is held to be invalid or unenforceable by a proper authority having jurisdiction over this EULA, that provision shall be modified and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remainder of this EULA shall continue in full force and effect. Licensee may not assign or transfer, by operation of law or otherwise, any of its rights under this EULA (including without limitation its licenses with respect to the Software) to any third party without Licensor’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be null and void. This EULA is governed by the laws of the State of New Jersey, without reference to its conflict of law principles. The UN Convention on Contracts for the International Sale of Goods (CISG) is specifically excluded and shall not be applicable to this EULA. You agree to comply with all U.S. and foreign export control laws and regulations, including but not limited to the U.S. Export Administration Act of 1979, as amended, and successor legislation, and the Export Administration Regulations passed by the Department of Commerce. You expressly agree that You shall not export, directly or indirectly, re-export, divert, or transfer the Software or any direct product thereof to any destination, company or person restricted or prohibited by U.S. export controls. In the event of a dispute arising out of or relating to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs. THE PARTIES WAIVE ANY RIGHT TO A JURY TRIAL IN ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
Acknowledgment. By installing, downloading, accessing or otherwise using the Software, You acknowledge and agree that You have read this EULA and agreed to its terms. Furthermore, You agree this EULA is the complete and exclusive statement of the agreement between DATA DYNAMICS and You respecting the Software, Maintenance and Support and related documentation, and it supersedes any proposal or prior agreement - oral or written - and any other communication between DATA DYNAMICS and You relating to the subject matter of this EULA. This EULA cannot be modified by any purchase order or other document submitted by You.