This license agreement ("Agreement") is a legal agreement between you, ("Licensee") and ADLINK Technology Limited ("Licensor"), for use of Licensor's (or its affiliate's) and its licensors proprietary software products, which include any computer software, "online" or electronic documentation ("the Software"). By downloading the Software electronically, installing, copying, or otherwise using the Software, Licensee 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 DO NOT DOWNLOAD THE SOFTWARE, INSTALL OR USE THE SOFTWARE, which must be immediately destroyed.
The Licensee is interested in purchasing a permanent license for the Software but wishes first to evaluate the Software prior to entering into the Licensor’s standard Software License Agreement.
Now therefore the parties hereby agree as follows:
1. License Evaluation
1.1 In consideration of the sum of $1 (receipt of which is hereby acknowledged) paid to the Licensor by the Licensee, the Licensor hereby grants to the Licensee the non-exclusive non-transferable right to use the Software upon the terms and conditions of this Agreement for a period of thirty (30) days from the date of downloading the Software (the “Evaluation Period”) for the purpose only of evaluating whether or not the Software meets the Licensee’s requirements. Unless otherwise agreed in writing by Licensor one specific named person only is permitted to use the Software for evaluation purposes and further downloads by Licensee after the expiry of the initial Evaluation Period are prohibited. The Software shall not under any circumstances be used for developing a new application or for deploying a particular application or program created with the Software.
1.2 Licensee shall use the Software solely for its own evaluation purposes. Licensee shall not provide or otherwise make available the Software 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. 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.
1.3 Licensee may make a single copy of the computer software included in the Software for back-up or archival purposes. Any copy must include Licensor’s copyright notice and is fully subject to the terms of this Agreement. Licensee shall not other than as permitted by the Agreement or Licensor’s written authorisation or by law copy, reproduce, translate, adapt, de-compile, modify, reverse engineer or disassemble the Software. 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 be entitled to make any copies of any documentation supplied by Licensor relating to the Software.
2. Expiry of Evaluation Period
If at the expiry of the Evaluation Period the Licensee does not wish to purchase a permanent license, the Licensee shall forthwith 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
3.1 DUE TO THE LIMITED NATURE OF THE LICENSE GIVEN HEREIN, WHICH IS FOR THE LICENSEE'S EVALUATION OF THE SOFTWARE ONLY, THE LICENSOR DOES NOT WARRANT TO THE LICENSEE THAT THE SOFTWARE IS FREE FROM FAULTS OR DEFECTS OR THAT THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS. IN THE COURSE OF SUCH EVALUATION 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. ACCORDINGLY, THE LICENSEE SHALL USE THE SOFTWARE AT ITS OWN RISK AND IN NO EVENT SHALL THE LICENSOR BE LIABLE TO THE LICENSEE FOR ANY LOSS OR DAMAGE OF ANY KIND (EXCEPT PERSONAL INJURY) OR INABILITY TO USE THE SOFTWARE OR FROM FAULTS OR DEFECTS IN THE SOFTWARE WHETHER CAUSED BY NEGLIGENCE OR OTHERWISE.
3.2 IN NO EVENT WHATSOEVER WILL LICENSOR BE LIABLE FOR ANY INDIRECT OR CONSEQUENTIAL LOSS (INCLUDING WITHOUT LIMITATION, LOSS OF USE; DATA; INFORMATION; BUSINESS; PRODUCTION OR GOODWILL), EXEMPLARY OR INCIDENTAL DAMAGES, LOST PROFITS 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 LICENSOR HAS BEEN ADVISED OF THE LIKLIHOOD OF SAME.
3.3 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.
3.4 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
3.5 THE TERMS OF THIS CLAUSE SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT HOWSOEVER ARISING.
4. Intellectual Property Rights
4.1 All title, trademarks and copyrights in and 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 are owned by Licensor, its affiliated companies, or licensors. The Software is protected by copyright, other intellectual property rights, trademark laws and international treaty provisions. Licensee must treat the Software like any other copyrighted material for archival purposes, and Licensee may not copy the printed materials accompanying the Software.
4.2 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.
4.3 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:
4.3.1 procure the right to continued use of the Software;
4.3.2 replace or modify the Software to make it non-infringing; or
4.3.3 repay to the Licensee part or all of the License Fee and terminate this Agreement.
5.1 Licensor may by notice in writing to Licensee terminate this Agreement if Licensee:
5.1.1 commits a breach of this Agreement; or
5.1.2 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.
5.2 Within 14 days following the date of termination of this Agreement, Licensee shall cease to use the Software and shall destroy all of the Software including any copies.
5.3 Termination of this Agreement shall be in addition to and not a waiver of any remedy available to Licensor arising from Licensee's breach of this Agreement.
6.1 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.
6.2 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.
7. 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.
8. 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.
9. 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.
10. 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) consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 227.7202-1, 227.7202-3 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 a 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.
11.1 This Agreement 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. 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.
11.2 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.
11.3 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.
11.4 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.
11.5 The failure of either party to exercise or enforce any rights under this Agreement shall not amount to a waiver of those rights.
11.6 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.