End user agreement for REIGNN
DATABASEACE SOFTWARE LICENSING AGREEMENT
ARTICLE I: SOFTWARE
Section 1.01 -- Grant of License: DatabaseAce hereby grants to Customer a non-exclusive and non-transferable license to Access SOFTWARE during the License Term, to install, Implement and execute SOFTWARE on the Licensed Computer during the License Term, to Access Output Data from SOFTWARE using any computer during the License Term and to Access and use the Documentation with any computer, subject to the terms and provisions of this Agreement.
Section 1.02 -- Delivery: Customer hereby acknowledges that DatabaseAce either shall deliver or has delivered SOFTWARE to Customer.
Section 1.03 -- Implementation: Customer shall be responsible for installing the SOFTWARE. Customer may implement SOFTWARE on the Licensed Computer subject to the terms and conditions of this Agreement.
Section 1.04 -- Risk of Loss: Customer shall assume risk of loss to SOFTWARE.
Section 1.05 -- Authorized Use: Customer shall not Access SOFTWARE (with or without third party products) for purposes of manipulating, viewing, disclosing, decompiling, reverse-engineering or otherwise attempting to gain or act upon knowledge of intentionally obfuscated portions of SOFTWARE. Any such Access shall be deemed Unauthorized Access.
Section 1.06 -- End Use: Customer hereby represents and warrants that SOFTWARE is being licensed by Customer for its own use and not for rental, leasing, resale, sublicensing, distribution, outsourcing, or offering service bureau services.
ARTICLE II: PAYMENT
Section 2.01 -- Amount Payable: Customer shall be responsible for rendering all Payment owed to DatabaseAce as a result of executing this Agreement (if Payment is greater than zero).
ARTICLE III: TERMINATION
Section 3.01 -- Termination Limitations: This Agreement shall only be terminated or canceled as provided under this ARTICLE III.
Section 3.02 -- Expiration: If the instance of SOFTWARE covered by this Agreement is a time-limited trial, this Agreement shall automatically terminate on Expiration Date provided that it has not already terminated before Expiration Date subject to the terms and provisions of ARTICLE III.
Section 3.03 -- Termination: Customer may terminate this Agreement for any reason prior to Expiration Date, subject to the terms and provisions of this Agreement.
Section 3.04 -- Cancellation for Cause: If Customer violates its obligations under this Agreement, DatabaseAce may cancel this Agreement by sending Cancellation Notice describing the noncompliance to Customer and requesting that the noncompliance be cured. Upon receiving Cancellation Notice, Customer shall have thirty (30) days from the date of such notice to cure any such noncompliance. If such noncompliance is not cured within the required thirty (30) day period, DatabaseAce shall have the right to cancel this Agreement as of the thirty-first (31st) day after the date of the Cancellation Notice.
ARTICLE IV: WARRANTY
Section 4.01 -- Warranty: DatabaseAce represents and warrants that SOFTWARE shall perform substantially as represented in the Documentation for the License Term. Customer's remedies for breach of warranty shall be modification or replacement of SOFTWARE or termination of this agreement subject to the terms in ARTICLE III, as determined by DatabaseAce.
Section 4.02 -- Third Party Warranties: DatabaseAce hereby assigns to Customer the benefit of any and all Manufacturer warranties for the Third Party Technology and may cooperate (at DatabaseAce's discretion) with Customer in securing the benefit of any remedies available to Customer under any such Manufacturer warranty.
Section 4.03 -- Service Warranty: Any Service provided by DatabaseAce to Customer pursuant to this Agreement shall be performed on a reasonable efforts basis in a timely and professional manner and shall conform to the standards generally observed in the industry for similar Service and shall be subject to Sections 4.01, 4.04, 4.05 and 4.08.
SECTION 4.04 -- DISCLAIMER: THE WARRANTIES SET FORTH IN SECTIONS 4.01 AND 4.03 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND DATABASEACE HEREBY DISCLAIMS AND CUSTOMER HEREBY WAIVES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) ANY AND ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES OF MERCHANTABILITY.
Section 4.05 -- Express Warranties: Customer hereby acknowledges and agrees that DatabaseAce (including DatabaseAce officers, employees, agents, directors, independent contractors, affiliates, distributors and successors) has not made or granted any express warranties concerning the Licensed Computer, the Upgrade Subscription Service and SOFTWARE except as expressly set forth in Sections 4.01 and 4.03 of this Agreement.
Section 4.06 -- Third Party Claims: If a final judgment from a court of competent jurisdiction is entered against Customer upholding claims that SOFTWARE violates a United States patent, copyright, trade secret or other proprietary rights of a third party in the United States, provided that Customer gives DatabaseAce prompt written notice upon Customer's knowledge of any such claim, permits DatabaseAce to answer and defend (at DatabaseAce's option) such claim or action and provides DatabaseAce with information, assistance and authority to assist DatabaseAce in the defense of such claim or action, DatabaseAce shall perform one or more of the following actions (as determined by DatabaseAce) within one year of the date final judgment in favor of such third party's claim is rendered by a court of competent jurisdiction: (1) Replacement: Replace SOFTWARE with a non-infringing SOFTWARE product of substantially equivalent functional and performance capability; (2) Modification: Modify SOFTWARE to avoid the infringement without substantially eliminating the functional and performance capabilities of SOFTWARE; (3) Obtain Agreement: Obtain a license for use of SOFTWARE from the third party claiming infringement for use of SOFTWARE. DatabaseAce shall have the right to participate or assume the defense (as determined by DatabaseAce) and Customer shall permit and authorize DatabaseAce to participate in or assume the defense of any such claim or action through legal counsel. The foregoing remedy does not apply and DatabaseAce shall have no obligation in connection with or relating to any third party infringement claim in connection with or related to (i) Customer's modification of SOFTWARE; (ii) Customer's failure to use SOFTWARE in accordance with the Documentation in effect; (iii) Customer's failure to use the most current release or version of SOFTWARE; (iv) Customer's combination, interface, operation or use of SOFTWARE with Third Party Technology; and (v) DatabaseAce compliance with designs, instructions, or specifications required by Customer. The remedies set forth herein shall be the sole and exclusive remedies of Customer under this Agreement for any and all claims of indemnification relating to infringement. DatabaseAce obligations set forth in this Section 4.06 shall not apply to the Third Party Technology.
Section 4.07 -- Remedies: The exclusive remedy of Customer for any reason and for any cause of action whatsoever in connection with or relating to this Agreement, the Licensed Computer, SOFTWARE or any transaction involving SOFTWARE, regardless of the form of action, whether in contract or in tort, including negligence and breach of warranty, shall be limited to the repair or replacement of SOFTWARE or termination of this Agreement pursuant to the terms of ARTICLE III, at the discretion by DatabaseAce.
Section 4.08 -- Limitation of Damages: DatabaseAce shall not be liable to Customer in connection with or relating to this Agreement, the Licensed Computer, SOFTWARE and any transactions involving SOFTWARE for any direct, indirect, lost profits, consequential, exemplary, incidental or punitive damages, regardless of the form of action, whether in contract or in tort, including breach of warranty and negligence, regardless of whether DatabaseAce has been advised of the possibility of such damages in advance or whether such damages are reasonably foreseeable. Notwithstanding anything to the contrary, the liability of DatabaseAce for any reason and for any cause of action whatsoever in connection with or relating to this Agreement, the Licensed Computer, SOFTWARE and any transactions involving SOFTWARE shall be limited to Price.
Section 4.09 -- Force Majeure: DatabaseAce shall not be liable for any failure to perform its obligations under this Agreement due of circumstances beyond the reasonable control of DatabaseAce, which such circumstances shall include (without limitation) natural disaster, terrorism, riot, sabotage, labor disputes, war, any acts or omissions of any government, governmental authority or third party, declarations of governments, transportation delays, power failure, computer failure, telecommunications failure, Third Party Technology, failure of Customer to cooperate with the reasonable requests of DatabaseAce, misuse of the Licensed Computer or SOFTWARE by Customer or third party, breach of this Agreement by Customer or a third party and any other events reasonably beyond the control of DatabaseAce.
Section 4.10 -- Customer Indemnification: Customer shall release, defend, indemnify and hold harmless DatabaseAce (including its officers, directors, employees, affiliates, independent contractors, distributors, agents and successors) against any expense, loss, cost or liability (including, without limitation, interest, penalties, attorney fees and paralegal fees) arising from any and all claims, demands, damages or actions resulting from or related to (1) use of SOFTWARE by Customer, (including, without limitation, any claim regarding use of SOFTWARE by Customer in an infringing manner or any claim by third parties for breach of warranty, negligence, loss of data, libel, slander, unfair competition, trademark infringement, or invasion of privacy); (2) performance of SOFTWARE; (3) Customer's negligence or the acts (or any failure to act) of Customer hereunder; (4) any breach by Customer of the obligations of Customer hereunder; and (5) investigation or defense of any of the above or in asserting DatabaseAce rights hereunder.
Section 4.11 -- Maintenance: Customer hereby acknowledges and agrees that Customer shall solely be responsible for acquiring, installing, implementing, updating, upgrading, maintaining and replacing the Licensed Computer and all Third Party Technology for any reason, including (without limitation) for Updates, Patches or correction of Defects and including (without limitation) all costs, fees, taxes and payments in connection therewith or related thereto. This includes but is not limited to Third Party Technology acquired by Customer from DatabaseAce under the terms of an open-source license.
Section 4.12 -- Repossession: If Customer fails to pay the balance of the Price when due (as provided in Sections 2.01 and 2.02 of this Agreement), DatabaseAce shall have the right to prevent SOFTWARE from continuing to function on Licensed Computer without further notice by denying Customer Access to current License Key files which SOFTWARE may require to continue functioning. If any Event of Bankruptcy occurs before payment of the balance of the Price when due (as provided in Section 2.01 of this Agreement), DatabaseAce shall be entitled to any and all remedies available to a secured creditor under the U.S. Bankruptcy Code and applicable state or federal law.
ARTICLE V: INTELLECTUAL PROPERTY
Section 5.01 -- Ownership and Title: Title to SOFTWARE, including all ownership rights to patents, copyrights, trademarks and trade secrets therein or in connection therewith shall be the exclusive property of DatabaseAce. Customer hereby assigns, transfers and conveys to DatabaseAce any and all rights, title and interests Customer may have or accrue in SOFTWARE, including (without limitation) any and all ownership rights to patents, copyrights, trademarks and trade secrets therein or in connection therewith.
Section 5.02 -- Reverse Engineering: Customer shall not reverse engineer SOFTWARE and shall not allow SOFTWARE to be reverse engineered.
Section 5.03 -- Backup Copies: Customer may create and store copies of SOFTWARE on any data storage device for routine archival and backup purposes.
Section 5.04 -- Modifications: Customer shall have the right to modify XML-based configuration files and other portions of SOFTWARE that are not encoded or otherwise obfuscated and that have been specifically noted as being modifiable by DatabaseAce in Documentation. Customer shall not modify encoded or otherwise intentionally obfuscated portions of SOFTWARE.
Section 5.05 -- U.S. Government Restricted Rights: If Customer is the U.S. Government or an agency or department thereof (collectively "Government"), SOFTWARE is provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the Government is subject to restrictions as set forth in subparagraphs (c)(1) and (2) of the Commercial Computer SOFTWARE Restricted Rights clause at 48 C.F.R. 52.227-19.
Section 5.06 -- Proprietary Notices: Customer shall not remove, alter or obscure any copyright notices or other proprietary legends displayed by or used by DatabaseAce in connection with or related to SOFTWARE.
Section 5.07 -- Trademarks: DatabaseAce trademarks, trade dress, logos, tradenames or insignia ("DatabaseAce Marks") are owned exclusively by DatabaseAce. DatabaseAce shall retain all rights, title and ownership interests in DatabaseAce Marks. Customer shall not (directly or indirectly) use any trademark, tradename, trade dress, insignia or logo that is similar to or a colorable imitation of any DatabaseAce Marks.
Section 5.08 -- Continuation: The terms and conditions of this Article V shall survive termination and cancellation of this Agreement.
ARTICLE VI: MISCELLANEOUS
Section 6.01 -- Assignments: All assignments of rights under this Agreement by Customer without the prior written consent of DatabaseAce shall be void.
Section 6.02 -- Entire Agreement: This Agreement contains the entire understanding of the parties and both supersedes and terminates all previous verbal and written agreements between the parties concerning the SOFTWARE, Licensed Computer, Upgrade Subscription Service and Output Data.
Section 6.03 -- Amendments and Modifications: Alterations, modifications or amendments of a provision of this Agreement shall not be binding unless such alteration, modification or amendment is in writing and signed by DatabaseAce and Customer.
Section 6.04 -- Severability: If a provision of this Agreement is rendered invalid, the remaining provisions shall remain in full force and effect.
Section 6.05 -- Captions: The headings and captions of this Agreement are inserted for convenience of reference and do not define, limit or describe the scope or intent of this Agreement or any particular section, paragraph, or provision thereof.
Section 6.06 -- Counterparts: This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
Section 6.07 -- Governing Law: This Agreement shall be governed by the laws of the State of Washington without regard to any rules of conflict or choice of laws which require the application of laws of another jurisdiction; venue shall be in Spokane Valley, Spokane County, Washington, United States of America.
Section 6.08 -- Bankruptcy: If DatabaseAce must institute, defend, appear or attend a bankruptcy proceeding as a result of the filing of bankruptcy by Customer, fees and expenses shall be paid by Customer. If Customer has a bankruptcy proceeding filed against it, DatabaseAce shall recover attorney fees, expert witness fees, and other costs incurred by DatabaseAce in connection with the bankruptcy proceeding, hearing or trial.
Section 6.09 -- Waiver: Any waiver of a provision of this Agreement by DatabaseAce shall not be binding unless such waiver is in writing and signed by DatabaseAce. Waiver by DatabaseAce of any breach of this Agreement shall not constitute waiver of any other breach. Any failure by DatabaseAce to enforce a provision of this Agreement shall not constitute a waiver or create an estoppel from enforcing such provision.
Section 6.10 -- Relationship of the Parties: It is agreed that the relationship of DatabaseAce and Customer is primarily that of licensor and licensee (or seller and customer) respectively. Nothing herein shall be construed as creating a partnership, an employment relationship, or an agency relationship between the parties, or as authorizing either party to act as agent for the other. Each party shall maintain its separate identity.
Section 6.11 -- Embargoed Countries: Customer may not download, purchase, Implement or use SOFTWARE from within any country placed under embargo by the U.S. government. The list of embargoed countries changes over time and currently includes Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria. SOFTWARE may not be downloaded, purchased, Implemented or used by any citizen or national of any embargoed country.
Section 6.12 -- Prohibited Usage: Customer may not download, purchase, Implement or use SOFTWARE to aid in the development of nuclear, chemical or biological weaponry or supporting technologies.
Section 6.13 -- Arbitration: Any controversy or claim arising out of or relating to this Agreement, or breach thereof, shall be settled by arbitration in Spokane Valley, Washington. Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Qualified Arbitrators shall be selected by the parties. Each party shall have the right of discovery as set forth in the Federal Rules of Civil Procedure.
Section 6.14 -- Assurances: Each party hereby represents and warrants that all representations, warranties, recitals, statements and information provided to the other under this Agreement are true, correct and accurate as of Effective Date to the best of their knowledge.
Section 6.15 -- Litigation Expense: In the event of litigation or arbitration arising out of this Agreement, each party shall pay its own costs and expenses of litigation or arbitration (excluding fees and expenses of arbitrators and administrative fees and expenses of arbitration).
Section 6.16 -- Equitable Remedies: The parties hereby acknowledge that damages at law may be an inadequate remedy to DatabaseAce. DatabaseAce shall have the right of specific performance, injunction or other equitable remedy in the event of a breach or threatened breach of this Agreement by Customer.
Section 6.17 -- Automated License Key Acquisition: As a part of its normal functioning, SOFTWARE may automatically acquire new License Keys from an internet resource maintained by DatabaseAce. Without access to these updated License Keys, SOFTWARE may cease normal functioning until a new License Key is acquired. DatabaseAce reserves the right to prevent SOFTWARE and Customer from automatically or manually Accessing current License Keys without further notice if Customer is found to be in breach of any of the terms of this contract at the sole discretion of DatabaseAce. Customer acknowledges that Customer is solely responsible for providing SOFTWARE with an internet connection in order that SOFTWARE might obtain updated License Keys from DatabaseAce.
Section 6.18 -- Essential Email Communications: DatabaseAce shall have the right to send Essential Email Communications to Customer.
Section 6.19 -- PHP Usage Notice: This product includes PHP software, freely available from http://www.php.net/software/