SOFTWARE LICENSE TERMS AND CONDITIONS
These Software License Terms and Conditions and the License Certificate attached hereto (the "Agreement") govern the use of the Software Product (as defined below) by the purchaser (the "Licensee").
1. LICENSE; PAYMENT; RESTRICTIONS ON USE.
a. Grant of License; Term. Los Altos Technologies, Inc. ("Los Altos") grants to Licensee and Licensee accepts from Los Altos a non-exclusive, non-transferable license to use the licensed software specified in the License Certificate and all related materials received by Licensee from Los Altos (the computer program and related materials hereinafter referred to as the "Software Product") during the term of Term of License (as specified in the License Certificate).
b. Restrictions on Use; Non-Disclosure. Los Altos authorizes Licensee to use the Software Product only for Licensee's internal purposes and only for the Authorized Use set forth in the License Certificate. Licensee acknowledges and agrees that the Software Product is the confidential and proprietary information of Los Altos and that, except for the license granted herein, this Agreement grants Licensee no rights, title or interest in or to the Software Product. Licensee shall not disclose and shall exercise all reasonable precautions to prevent access to or disclosure of the Software Product, except to persons whose access to it is necessary for the effective and efficient use of the Software Product by Licensee. Licensee shall be responsible for all damages caused by unauthorized disclosure or copying by persons having access to the Software Product in the possession of Licensee. Licensee agrees that it will not attempt to duplicate, reproduce, modify, translate, reverse engineer, decompile, disassemble, create derivative works, or in any way misappropriate the Software Product. Licensee agrees not to remove or destroy any proprietary markings or proprietary legends placed upon or contained within the Software Product or any related materials or documentation.
2. SUPPORT AND TRAINING. No technical support, maintenance, or training is provided hereunder. Any support, maintenance or training from Los Altos shall be at Los Altos’ then-current standard pricing, terms, and conditions.
3. LIMITED WARRANTY. Los Altos warrants that the Software Product will be free from defects in design and operation, will be usable in the environment for which it has been designed, and that the Software Product will perform in substantial accordance with its documentation. Los Altos warrants that it is the owner of the Software Product or otherwise has the right and authority to grant the license to Licensee provided for herein. This warranty shall not apply if (i) modifications to the Software Product made by Licensee are the cause of any operational difficulties experienced or defects in the Software Product, or (ii) if the Software Product is used for a purpose other than for which it is intended. THE ABOVE IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE BY LOS ALTOS. LOS ALTOS MAKES AND LICENSEE RECEIVES NO OTHER WARRANTY, EXPRESS OR IMPLIED AND THERE ARE EXPRESSLY EXCLUDED ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
4. LIMITATION OF LIABILITY. LICENSEE AGREES THAT ITS SOLE AND EXCLUSIVE REMEDY FOR ANY DAMAGE OR LOSS IN ANY WAY CONNECTED WITH THE SOFTWARE PRODUCT (EXCEPT FOR CLAIMS UNDER SECTION 5), WHETHER BY LOS ALTOS' BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, NEGLIGENCE, OR ANY BREACH OF ANY OTHER DUTY, SHALL BE, AT LOS ALTOS' OPTION, REPAIR OR REPLACEMENT OF THE SOFTWARE PRODUCT OR RETURN OF OR CREDIT FOR ANY APPROPRIATE PORTION OF ANY PAYMENT MADE OR TO BE MADE BY LICENSEE WITH RESPECT TO THE SOFTWARE PRODUCT. UNDER NO CIRCUMSTANCES (INCLUDING CLAIMS UNDER SECTION 5) AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL LOS ALTOS BE LIABLE TO LICENSEE IN THE AGGREGATE FOR ANY DAMAGES, COSTS OR EXPENSES, IN EXCESS OF THE FEES AND CHARGES PAID HEREUNDER, EVEN IF LOS ALTOS SHALL HAVE BEEN INFORMED OF THE POSSIBILITY THEREOF. IN NO EVENT SHALL LOS ALTOS HAVE LIABILITY FOR SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL DAMAGES.
5. INDEMNIFICATION. Los Altos at its own expense will defend and hold Licensee harmless from any claim asserted against Licensee to the extent that it is based on a claim that the Software Product used within the scope of this Agreement infringes any patents, copyrights, license or other property right of a third party. Licensee shall promptly notify Los Altos in writing of such claim. Los Altos shall have the right to control the defense of all such claims, lawsuits and other proceedings. In no event shall Licensee settle any such claim, lawsuit or proceeding without Los Altos' prior written approval. In all events, Licensee shall have the right to participate in the defense of any such suit or proceeding through counsel of its own choosing. If, as a result of any claim of infringement against any patent, copyright, license or other property right, Los Altos or Licensee is enjoined from using the Software, or if Los Altos believes that the Software Product is likely to become the subject of a claim of infringement, Los Altos at its option and expense, may (i) procure the right for Licensee to continue to use the Software or (ii) replace or modify the Software Product so as to make it non-infringing, with similar functionality. The foregoing states the entire liability of Los Altos with respect to infringement of any copyrights or patents by the Software Product or any parts thereof.
6. TERMINATION. Los Altos shall have the right without further obligation or liability to Licensee to terminate this Agreement if Licensee: (ii) is delinquent in making payments of any sum due under this Agreement and continues to be delinquent for fifteen (15) days after the last day payment is due; or (ii) commits any breach of this Agreement, including attempts to misappropriate or tamper with the Software Product or use the Software Product except pursuant to the license granted hereunder. Licensee's obligation to pay all accrued charges shall survive the termination of this Agreement. Los Altos' termination of this Agreement or repossession of the Software Product shall be without prejudice to any other remedies that Los Altos may lawfully have. Upon the termination of this Agreement, the license and all other rights granted hereunder to Licensee shall immediately cease, and Licensee shall immediately: (i) return the applicable Software Product to Los Altos with all documentation, notes and other materials respecting the Software Product; (ii) purge all copies of the applicable Software Product or any portion thereof from all CPU's and from any computer storage medium or device on which Licensee has placed or permitted others to place the Software Product; and (iii) give Los Altos a written certification that through its best efforts and to the best of its knowledge, Licensee has complied with all of its obligations under this Section. Sections 3, 4, 5, 6 and 8 shall survive termination of this Agreement.
7. INSTALLATION. Licensee shall be solely responsible for the installation of the Software Product and will be responsible for causing its employees to become familiar with the Software Product and all documentation therefore.
8. GENERAL.
a. Limitations on Los Altos' Obligations. Any modification or attempted modification of the Software Product by Licensee shall void the obligations of Los Altos under this Agreement, end this Agreement, and entitle Los Altos to seek appropriate legal remedies, unless Licensee has obtained prior written authorization from Los Altos permitting such modification or attempted modifications. This Agreement does not grant Licensee any right, license, or interest in and to any modification, enhancements, or updates to the Software Product. Any updates to the Software Product, if available, may be obtained by Licensee at Los Altos’ then-current standard pricing, terms and conditions. Licensee understands and agrees that Los Altos may develop and market new or different computer programs that use part or all the Software Product and which perform all or part of the functions performed by the Software Product. Nothing contained in this Agreement gives Licensee any rights with respect to such new or different computer programs.
b. Entire Agreement; Waiver, Amendment. This Agreement, any applicable invoice and the License Certificate attached hereto constitute the entire agreement between the parties about the subject matter hereof and supersede all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, of the parties, and there are no warranties, representations or agreements among the parties with the subject matter hereof except as specifically set forth or referred to herein. In the event of any conflict between the terms and conditions of any purchase order and this Agreement, the terms and conditions of this Agreement shall control. Any waiver, amendment or modification of any of the provisions of this Agreement shall not be effective unless made in writing and signed by the parties. No failure or delay by either party in exercising any right, power, or remedy with respect to any of its rights hereunder shall operate as a waiver thereof in the future.
c. Governing Law; Arbitration. This Agreement will be governed by the laws of the State of North Carolina without regard to its conflicts of law provisions. Any dispute or claim arising out of, or in connection with, this Agreement shall be finally settled by binding arbitration in Raleigh, North Carolina, in accordance with N.C. Gen. Stat. § 1-567.1 et seq. (the "Uniform Arbitration Act") and the then-current rules and procedures of the American Arbitration Association by one (1) arbitrator appointed by the American Arbitration Association. The arbitrator shall apply the law of the State of North Carolina, without reference to rules of conflict of law or statutory rules of arbitration, to the merits of any dispute or claim. Judgment on the award rendered by the arbitrator may be entered in any North Carolina court of competent jurisdiction. The parties agree that, any provision of applicable law notwithstanding, they will not request, and the arbitrator shall have no authority to award punitive or exemplary damages against any party.
d. U.S. Export Control Laws. Licensee agrees that it will not export, re-export, disclose or deliver the Software Product to any other country or countries for which the U.S. Government requires an export license or any other official approval, unless Licensee first obtains such required license or approval.
e. U.S. Government Restricted Rights. Software and documentation provided under this Agreement is provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the Government is subject to restrictions 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 at 48 CFR 52.227.19, as applicable. The contractor/manufacturer of the Software Product is Los Altos Technologies, Inc., 1381 Kildaire Farm Road, #415, Cary, North Carolina 27511.
f. Assignment. This Agreement may not be transferred or assigned by Licensee, including transfers by operation of law or change of control, without Los Altos' prior written permission.
g. Notice. All communications or notices permitted or required to be given or served under this Agreement shall be in writing, shall be addressed to the parties at the appropriate party's address, and shall be deemed to have been duly given or served if delivered in person or deposited in the United States mail, certified mail, return receipt requested. The address for notices for Los Altos shall be: Los Altos Technologies, Inc., 1381 Kildaire Farm Road, #415, Cary, North Carolina 27511. The address for notices for Licensee shall be the address given in the License Certificate.
[License Certificate – Side 2 - Enterprise License]
Authorized Use.
The Software Product provided under this license is provided for use only by the Designated User set forth on the opposite side of this License Certificate. The Designated User may be an enterprise, group, division, department, person, etc. For the term of this license, the Software Product may be used on any Workstations owned or leased by the Designated User. Licensee represents and warrants that the number of systems owned or leased by the Designated User does not exceed the Maximum Covered Systems as set forth on the opposite side of this License Certificate. Use of the Software Product on any computers not owned or leased by the Designated User is not permitted. Licensee appoints the Administrator named on the opposite side of this License Certificate as its administrator responsible for supervision of use of the Software Product, and for ensuring compliance by Licensee with the terms of this Agreement. Transfer of the Software Product to a third party without the prior written consent of Los Altos is strictly prohibited. Los Altos may assess additional charges in connection with any such transfer. If Operating System(s) and/or Hardware are specified on the opposite side of this License Certificate, then the Software Product may only be used in conjunction with such Operating System(s) and/or Hardware.