Command
Data Appliance
END-USER
SOFTWARE LICENSE AGREEMENT
NOTICE TO END-USER: This legally binding End-User
Software License Agreement (this
“Agreement”) is made and entered into by and
between you, the
purchaser/licensee and end-user (an individual or entity referred to
hereinafter as either “you” or the
“End-User”), and Wavetronix LLC, an Idaho
limited liability company (referred to hereinafter as the
“Company”), the
owner/licensor of the subject Software that you are licensing from the
Company.
YOU ACKNOWLEDGE AND AGREE THAT YOUR ACT OF USING THE SOFTWARE
CONCLUSIVELY
CONFIRMS YOUR ACCEPTANCE OF THIS AGREEMENT (AND THE SOFTWARE AND
HARDWARE) AND
YOUR PROMISE TO HONOR ALL OBLIGATIONS OF THE END-USER HEREUNDER.
THEREFORE, YOU
NEED TO FIRST REVIEW THE TERMS OF THIS AGREEMENT,
AND IF YOU AGREE WITH
ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN, AND ONLY THEN,
MAY YOU
USE THE SOFTWARE. IF
YOU DO NOT AGREE TO
ALL OF THE TERMS OF THIS AGREEMENT, THEN YOU NEED TO RETURN THE
SOFTWARE and
any
associated hardware TO THE COMPANY OR ITS DISTRIBUTOR,
UNUSED AND
UNDAMAGED, NO LATER THAN THIRTY (30) DAYS FROM THE DATE OF YOUR
PURCHASE, IN
ORDER TO RECEIVE A FULL REFUND OF YOUR PURCHASE PRICE.
1. Grant of License.
In connection with your
purchase of the Software, you are hereby granted a
limited, nonexclusive
license (the “License”) to use the Software for its
intended business or
governmental uses, solely in connection with the computer hardware
shipped by
the Company to the End-User as part of the subject sale (but
specifically excluding any use of the same to render similar services
to
others, or any re-sale, sub-license or any other third party
transaction). The
term “Software,” for purposes of this
Agreement, shall include any Command Data Appliance software (including
the
unique software pre-installed in each piece of hardware) purchased by
you from
the Company or one of its distributors, along with the related
documentation,
and any updates, enhancements, and bug fixes the Company may provide in
the future.
You are prohibited from making or attempting to make any copies of the
Software
or to use or attempt to use the Software on any other computer or
system. The
End-User may contract hereafter for
support and maintenance pursuant to the Company’s standard
support agreement
and at the Company’s then current rates and conditions. With respect to any other
Company software or
hardware items, such as enhancements, upgrades and other components
that work
with the original Software and hardware, an additional purchase price
may be
charged, and after your purchase of any of the same, all such
additional
software items shall also be deemed “Software”
hereunder and subject to all
terms of this Agreement.
2. Term and Termination. The term of this License,
upon payment in
full of all fees and charges itemized on the purchase order, is
perpetual if
you honor all terms and conditions hereof.
However, the Company may terminate the License at any time
if the
End-User breaches any term or condition hereof and, upon receiving
written
notice of such breach from the Company, fails to cure the same to the
Company’s
reasonable satisfaction within thirty (30) days after your receipt of
said
notice. Upon
termination of the License,
the End-User shall return to the Company the Software, and any
associated
hardware, and shall certify in writing that all originals and all
copies and
parts thereof have been returned (or otherwise destroyed to the
Company’s
satisfaction). Thereafter,
the End-User
shall continue to honor all provisions set forth herein for the
protection of
the Company’s Software, intellectual property, confidential
information and
reputation.
3. Limitations; Transfers. You agree not to modify,
adapt or translate
the Software, and you further agree not to, nor attempt to, replicate,
reverse
engineer, decompile, disassemble or otherwise discover or
misappropriate the
source code of the Software, nor copy nor distribute the same. You may not disclose to
any third party all or
any part of the Software or any confidential or proprietary information
or
trade secrets relating thereto (i.e., information not in the public
domain)
without the Company’s prior written consent; provided,
however, that you may
make such disclosures to your own employees who have a “need
to know” for your
licensed use of the Software, but all such employees must be informed
of their
duty to honor all provisions of paragraphs 1, 2, 3, 4 and 8 hereof. You may not
re-sell, rent, lease,
sublicense, distribute or loan all or any part of the Software to any
third
party. The Software
is licensed as a
single unit, and its component programs may not be separated for any
other use.
You further agree not to place the Software on any other computer or
any
server. The Company
reserves the right
to verify that you are honoring all terms and conditions of this
limited
license.
4.
Ownership.
Title, all ownership rights, and all
intellectual property rights in and to the Software shall remain
exclusively
with the Company. The Software is protected by
5.
Indemnification;
Injunction. The
End-User shall fully
indemnify and hold the Company harmless from and against any and all
claims,
losses, damages, legal fees and costs suffered or incurred by the
Company as a
result of any material breach by the End-User, its employees or agents
of any
provision of this Agreement; and the End-User further agrees that any
such
actual or threatened breach will cause the Company to incur
incalculable and
irreparable damage for which there is no adequate remedy at law,
entitling the
Company to temporary and permanent injunctive relief in addition to all
other
available remedies.
6.
Limited
Warranty and Remedy. The
Software is
provided by the Company and accepted by the End-User “as
is.” The Company’s
sole and exclusive liability, and your exclusive remedy, for any breach
of this
sole warranty or this Agreement, shall be limited to, at the
Company’s option,
either the replacement or the repair of the Software (or the hardware),
as the
case may be. The Company is not liable for any performance delays or
for
nonperformance due to causes beyond its reasonable control or caused by
you or
any third party(s). This
Limited
Warranty is in addition to any and all other warranties that may be
passed
through to the End-User by the Company from third party software or
hardware
vendors (e.g., Microsoft software or Dell hardware).
This limited warranty is void if any failure
of the Software or its associated hardware results from any accident,
abuse,
misapplication, or modification of the Software by you or any third
party. THE
ABOVE-STATED LIMITED WARRANTY AND REMEDY
ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, AND THE COMPANY AND
ITS
DISTRIBUTORS DISCLAIM ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF NON-INFRINGEMENT,
MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. SOME STATES OR
JURISDICTIONS DO NOT ALLOW EXCLUSION OR LIMITATION OF IMPLIED
WARRANTIES,
HOWEVER, AND IN SUCH STATES SOME OR ALL OF THE FOREGOING LIMITATIONS
MAY NOT
APPLY TO YOU.
7.
Limitation
of Liability. TO
THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY OR ITS
DISTRIBUTORS
BE LIABLE FOR ANY DAMAGES, WHATSOEVER, WHETHER DIRECT, INDIRECT,
SPECIAL,
INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, AND WHETHER ARISING
UNDER
CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF
WARRANTY,
MISREPRESENTATION, OR OTHERWISE, INCLUDING WITHOUT LIMITATION DAMAGES
FOR LOSS
OF BUSINESS INFORMATION OR OTHER BUSINESS INTERRUPTION, ARISING OUT OF
THE USE
OF OR INABILITY TO USE THE SOFTWARE, OR ARISING OUT OF THIS AGREEMENT,
EVEN IF
THE COMPANY OR ITS DISTRIBUTORS OR THEIR REPRESENTATIVE(S) HAVE BEEN
ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES; AND IN NO EVENT SHALL THE
COMPANY’S OR ITS
DISTRIBUTORS’ LIABILITY OR EXPOSURE TO THE END-USER OR
END-USER’S ASSIGNEE
UNDER THIS AGREEMENT EVER EXCEED THE END-USER’S PURCHASE
PRICE FOR THE
SOFTWARE. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF
DAMAGES IN
CERTAIN TRANSACTIONS, HOWEVER, AND IN SUCH STATES SOME OR ALL OF THE
ABOVE
LIMITATIONS AND EXCLUSIONS MAY NOT APPLY.
IF THE SOFTWARE IS USED IN ANY SHARED MODE (LOCAL NET OR
INTERNET), YOU
SHALL HAVE BREACHED THIS AGREEMENT. THE COMPANY SHALL NOT BE LIABLE FOR
ANY
CONTAMINATION OR LOSS OF DATA OR ANY ADVERSE IMPACT, FINANCIAL,
TECHNICAL OR
OTHERWISE, DUE TO YOUR OR ANY THIRD PARTY’S MISUSE OR
MISAPPROPRIATION OF THE
SOFTWARE OR ANY ACT NOT LICENSED OR APPROVED BY THE EXPRESS TERMS OF
THIS
AGREEMENT.
8.
9.
General
Provisions. This
Agreement is the
final expression of the parties' agreement and is intended to be a
complete and
exclusive statement of the terms and conditions thereof, including any
exhibits
attached hereto. Any
waiver of any
performance required hereunder of either party shall be valid only in
the
instance for which it is given, not for any future instances or other
provisions hereof, and only if waived in writing by the party otherwise
benefiting
from such performance. Other
than the
Company’s income taxes, the End-User shall be solely
responsible for all taxes,
assessments, fees, duties, etc. that may be charged by any governmental
authority by virtue of this Agreement and/or your use of the Software. The Company’s
licensors who have contributed
software or code to the Software (e.g., Microsoft) are direct and
intended
third party beneficiaries of this Agreement and may enforce it directly
against
you, but without any liability to you for damages of any kind that may
arise
out of this Agreement. Any
action for
breach of this Agreement must be commenced by the non-breaching party
within
one (1) year from the later of the date the cause of action arises or
the date
the cause of action is discovered or in the exercise of reasonable
diligence by
you should have been discovered. This
Agreement and all matters relating hereto shall be governed by the laws
of the
State of
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Should
you have any questions
concerning this Agreement, please contact the Company at:
Wavetronix LLC
78 East 1700 South Bldg B
Fax: 801-764-0208
Email:
support@wavetronix.com