End user agreement for GRAMS/AI
USER AGREEMENT AND SOFTWARE LICENSE AND REDISTRIBUTION TERMS
BEFORE YOU CLICK ON THE ACCEPT BUTTON, CAREFULLY READ ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY CLICKING ON THE ACCEPT BUTTON, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE "DO NOT ACCEPT" BUTTON AND DO NOT USE THIS SOFTWARE.
This User Agreement (the "Agreement") is a legal agreement between you and Thermo LabSystems D.B.A. Thermo Galactic Thermo Electron Corp., a Massachusetts corporation for GRAMS/AI. In this Agreement, the term "Software" means GRAMS/AI., including associated media and printed materials, and may include electronic documentation. The term "You" or "you" means the company, entity or individual who is acquiring the license to use the Software under this Agreement. "We" or "us" means Thermo LabSystems D.B.A. Thermo Galactic, except that terms such as "both of us" mean you and us collectively. The term "use" means storing, loading, installing, executing or displaying the Software. Use on a "Seat" means use on a computer containing a central processing unit ("CPU") or group of CPU’s, that accesses its or their own individual non-cache Random Access Memory. "Server" means a CPU which permits Simultaneous Use by multiple users. "Simultaneous Use" means access, directly or indirectly, by a licensed user, of the Software executing on the Server. "End User" means an entity that acquires the Software for internal use (i.e., for purposes that do not directly produce revenue for the user), and does not include an entity that distributes, resells, sells, licenses, rents or leases the Software to other parties in the regular course of business. "Price Schedule" means our price schedule applicable to you and made available to you by us from time to time; absent special arrangements with you, the price schedule made available at www.myinstrument.com/components.htm as updated by us from time to time shall be applicable; we have the right to change the unit price from time to time for any order for Software not yet accepted by us.
Your license under this Agreement may be designated as an "Evaluation License", "Internal Use License", or "Redistribution License". In the absence of qualification as an Internal Use License or Redistribution License, your license is an Evaluation License. Each license is subject to the particular requirements applicable to it in the next section, plus the general license terms applicable below to all licenses, and the other terms of this Agreement.
Evaluation License. If your Software is designated as an "Evaluation License", we grant you only the temporary, royalty-free, non-exclusive, non-transferable right to use one copy of the Software in object form only, solely for evaluation purposes, but not for general production use, during an evaluation period of sixty (60) days from the date the Software is first used by you.
Internal Use License. Unless your Software is designated as an "Evaluation License", and subject to the other restrictions provided herein, we grant to you a non-exclusive, worldwide, license to use, reproduce and distribute the Software internally within your company or entity for use by End Users for production use, but not for distribution to third parties unless authorized below under "Redistribution License". Unless the Software is designated as "royalty free" in our Price Schedule at the time you commence usage of the Software, you must pay the applicable per-unit price set forth on the Price Schedule for a sufficient number of End User licenses for the use of such Software by you.
Redistribution License. You may notify us that you desire to distribute products containing the Software to your End Users by submitting the request form available from Thermo Electron. Conditional upon your notification to us in accordance with the instructions on that form, your license will be designated a "Redistribution License", and we grant to you in addition to an Internal Use License a non-exclusive, worldwide, license to reproduce and distribute the Software externally to End Users directly or indirectly through distributors, but only in bundled form with your products which add substantial value to the combination (a "Bundled Product"), and subject to the following additional terms in this paragraph. Prior to the sale or licensing by you of any of your products containing the Software, you must obtain from us authorization to redistribute a sufficient number of End User licenses for the use of such Software. The unit prices for the Software shall be as set forth in our Price Schedule applicable to you applicable at the time you distribute the End User licenses. You are free to determine your own resale prices for your product containing the Software. We have the right to refuse to accept any or all orders from you for licenses to End Users for any reason or for no reason. The use by End Users of the Software must be in accordance with the terms of this Agreement applicable to Internal Use License, except that no additional payment shall be required of your End Users if you have made the payment required for your Redistribution License. You will use commercially reasonable efforts to obtain the consent of your End Users of the Software to these terms.
Payment. You shall pay for any Software not designated on the applicable Price Schedule as "royalty free" at the time of acquisition by you of the applicable number of licenses or distribution to End Users as the case may be (or on such terms as may be otherwise specified in our invoice), without deduction for withholding or other taxes. At our option, acceptance may be made on credit terms in effect at the time an order is accepted. Interest shall accrue on any delinquent amounts owed by you at the rate of 1.5 percent per month, or the maximum rate permitted by applicable law, whichever is less. You shall have sole responsibility for collecting, reporting, and/or paying all income, sales, excise, property, value-added tax, and other taxes imposed by any governmental authority, as they pertain to you and your customers, and your duties, obligations, and performance hereunder. Without limiting the generality of the foregoing, you shall be responsible for reporting and paying all customs, import, and remittance duties or assessments arising from the resale of your product and the Software into any countries.
General License Terms. In addition to the above specific terms, your use of the Software is subject to the following general restrictions.
You may not install the Software on a Server, or permit Simultaneous Use of the Software that is essentially similar to use in a server-client method.
Except as otherwise specifically set forth in this Agreement, (a) you may use the Software in object code form only, on a number of Seats for which you have a acquired a license; and (b) you may not modify the Software or disable any licensing or control features of the Software. You acknowledge that the Software may contain software procedures or other mechanisms ("License Enforcement Mechanisms") that enforce use restrictions and that may disable functionality of the Software and prevent access to data using the Software at the end of any applicable license period, or upon violation of the terms of this Agreement.
Except to the extent specifically set forth in this Agreement, you may not (1) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Software; (2) copy (including copying onto a bulletin board or similar system) the Software other than as specified above; (3) rent, lease, grant a security interest in, or otherwise transfer rights to the Software except for a transfer specifically authorized below; or (4) remove any proprietary notices or labels on the Software. If you are using the Software in any country in the European Community, the prohibition against modifying, translating, reverse engineering, decompiling, disassembling or creating derivative works based on the Software does not affect your rights under any legislation implementing the E.C. Council Directive on the Legal Protection of Computer Programs. You must reproduce all copyright and other proprietary or restricted rights notices in the original Software on all authorized copies.
To the extent that the Software enables you to access (on-line or otherwise) materials not supplied by us ("Content"), you should be aware that such Content is the property of the applicable Content owner and may be protected by applicable copyright law. This Agreement grants you no rights to Content.
Ownership. You acknowledge and agree that the Software is owned and copyrighted by us or our third party suppliers. Your license confers no title or ownership in the Software and is not a sale of any rights in the Software.
Transfer. You may transfer your license to the Software (other than Evaluation copies) only upon the terms of this paragraph; you may not transfer Evaluation copies. You must deliver the original and all complete, partial or electronically stored copies of the Software and related documentation to the transferee. You may not retain any copies of the Software or related documentation, and any copies you have made which you have not transferred to the transferee you must destroy. If you have notified us of your intention to distribute software in connection with your products to End User, the transferee must complete and return to us a revised request form, and must accept these Terms as a condition of the transfer. Your license will automatically terminate upon any transfer of the Software. You have no right to sublicense, loan, rent or lease the Software.
The above restrictions on transfer do not restrict or otherwise apply to: your right to grant sublicenses in connection with the authorized distribution of the Software as a Bundled Product with your product, or the transfer of the rights to use the Software in connection with any authorized transfer of the a Bundled Product; in neither of those situations is there any requirement to notify us. However, an End User using the Software as a Bundled Product has no right to separately use the Software separately, so any End User who transfers a Bundled Product to another must not keep any copies of the Software.
Upgrades. If the Software is an upgrade of our product, you now may use that upgraded product only in accordance with this Agreement. If the Software is an upgrade of a component of a package of software programs that you licensed as a single product, the Software may be used and transferred only as part of that single product package and may not be separated for use on more than one Seat. You may not loan, rent, lease, or otherwise transfer the original non-upgraded product to another user, except as part of the permanent transfer of the Software, as provided above.
Disclaimer of Warranty. THE SOFTWARE IS PROVIDED ON AN "AS IS" BASIS, WITH ALL FAULTS, WITHOUT WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED. THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE SOFTWARE. The entire risk as to the quality and performance of the Software is borne by you. Should the Software prove defective, you and not we assume the entire cost of any service and repair. This disclaimer of warranty constitutes an essential part of this Agreement. SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU AND YOU MAY HAVE OTHER LEGAL RIGHTS THAT VARY BY JURISDICTION.
Because software is inherently complex and may not be completely free of errors, you are advised to verify and back up your work. Additionally, we do not guarantee compatibility between the Software and any future versions of the Software, or other products or services offered by us.
Limitation on Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL WE BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF WE SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. IN THE EVENT THAT NOTWITHSTANDING THE FOREGOING, WE ARE FOUND LIABLE TO YOU FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), OUR LIABILITY TO YOU WILL BE LIMITED TO THE GREATER OF $25 OR THE AMOUNT YOU PAID FOR THE SOFTWARE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
You agree to indemnify, defend and hold harmless us, our officers, directors, employees, agents, affiliates, licensors and suppliers from and against all claims, losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from any use or distribution of the Software or violation of this Agreement.
Export Controls. (a) None of the Software or underlying information or technology may be downloaded or otherwise exported or reexported (i) into (or to a national or resident of) any country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders. By downloading or using the Software, you are agreeing to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country or on any such list. In addition, you are responsible for complying with any local laws in your jurisdiction which may impact your right to import, export or use the Software, and you represent that you have complied with any regulations or registration procedures required by applicable law to make this license enforceable.
(b) If the Software is identified as a not-for-export product (for example, on the box, media or in the installation process), then, unless you have an exemption from the United States Department of State, the following applies: EXCEPT FOR EXPORT TO CANADA FOR USE IN CANADA BY CANADIAN CITIZENS, THE SOFTWARE AND ANY UNDERLYING TECHNOLOGY MAY NOT BE EXPORTED OUTSIDE THE UNITED STATES OR TO ANY FOREIGN ENTITY OR "FOREIGN PERSON" AS DEFINED BY U.S. GOVERNMENT REGULATIONS, INCLUDING WITHOUT LIMITATION, ANYONE WHO IS NOT A CITIZEN, NATIONAL OR LAWFUL PERMANENT RESIDENT OF THE UNITED STATES. BY DOWNLOADING OR USING THE SOFTWARE, YOU ARE AGREEING TO THE FOREGOING AND YOU ARE WARRANTING THAT YOU ARE NOT A "FOREIGN PERSON" OR UNDER THE CONTROL OF A "FOREIGN PERSON."
U.S. Government End Users. The Software is a "commercial item," as that term is defined in 48 C.F.R. 12.101 (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 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the Software with only those rights set forth herein.
Term. Your license under this Agreement is effective upon acceptance until expiration or termination. You may terminate this license at any time. Your license will terminate automatically without notice from us if you fail to comply with any terms of this Agreement. We may terminate your right to use Software hereunder for any reason or for no reason upon notice to you. Upon any such termination or expiration, you must discontinue all use of the Software, and immediately destroy the Software together with all copies. Any termination by us of your rights hereunder will not terminate any End User licenses to third parties you have properly acquired and resold under this Agreement. The provisions of this Agreement (other than your license to use and redistribute the Software) shall survive the termination or expiration of this Agreement.
Controlling Law and Severability. This Agreement constitutes the entire agreement between you and us with reference to this transaction. This Agreement will be governed by the laws of the Commonwealth of Massachusetts, U.S.A., except for that body dealing with conflicts of law. The application to this Agreement of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly excluded. In the event of any dispute involving this Agreement, both of us consent to exclusive jurisdiction and venue in either the state or federal courts in the Commonwealth of Massachusetts and agree that the prevailing party shall be entitled to its reasonable attorney fees and costs. In the event any provision of this Agreement shall be deemed unenforceable, void or invalid, such provision shall be modified to make it valid and enforceable, and as so modified the entire Agreement shall remain in full force and effect. No decision, action or inaction by us shall be construed to be a waiver of any rights or remedies available to it.
Having read and understood the terms of the above License Agreement, I agree to the above: