End user agreement for MxTunnel
Real Time Logic LLC
MxTunnel Software License Agreement
IMPORTANT: PLEASE READ THE ENTIRE AGREEMENT CAREFULLY BEFORE USING THE LICENSED SOFTWARE.
This Software License Agreement (hereinafter “Agreement”) by and between Real Time Logic LLC, a California Limited Liability Company, with its principal place of business at 14 Monarch Bay Plaza, #108, Monarch Beach, CA 92629, U.S.A. (hereinafter referred to as “RTL”), and the person, or party, or business, or other, entity, (hereinafter “Licensee”), is made and entered into on the date of first use of the Licensed Software by Licensee (the “Effective Date”). BY USING THE LICENSED SOFTWARE THE LICENSEE ACKNOWLEDGES AND AGREES TO BE ACCEPT AND BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT.
In consideration of the mutual covenants and promises herein contained, it is agreed as follows:
1.1. The term “Licensed Software” shall mean all Licensed Software created, owned and copyrighted by RTL that is commercially available as set forth in this Agreement, as of the Effective Date, and all modifications, upgrades, updates, enhancements, new versions, and new releases thereof, and any documentation thereto. The Licensed Software is licensed, not sold.
1.2. The term the "Period of Loan" shall mean the Term of this Agreement as set forth in Section 2.
1.3 The term “virtual machine” is considered the same as one (1) actual computer/machine.
2. Term of this Agreement
This Agreement shall take effect beginning on the Effective Date above and shall continue with automatic annual renewals unless terminated by RTL as set forth in Section 11.4.
3. Permissible Use of Licensed Software by Licensee:
The Licensed Software and any related Documentation that accompanies this Agreement is the property of RTL, and is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. While RTL continues to own the Licensed Software, after Licensee acceptance of this Agreement the Licensee will have certain rights to use the Licensed Software during the Period of Loan, but only as expressly permitted in this Agreement. Subject to the restrictions set forth in this Agreement, RTL grants Licensee a nonexclusive License to install and use the Licensed Software during the Period of Loan .
Licensee acknowledges and agrees that Licensee will use the Licensed Software only as expressly set forth in this Agreement, and any variation of the foregoing requires written consent from RTL.
Licensees rights and obligations with respect to the use of this Licensed Software are as follows:
3.1 Licensee shall have the right to:
1. Use the Licensed Software on any number of computers/machines as set forth in this Agreement.
3.2 Licensee shall NOT have the right to do any of the following, and any attempt to do so shall be deemed a breach of, and direct violation of, this Agreement:
1. Sublicense, rent or lease any portion of the Licensed Software.
2. Reverse engineer, decompile, disassemble, modify, translate, make any attempt to discover the source code of the Licensed Software or create derivative works from the Licensed Software, clone, copy any portions of the Licensed Software including items that may not be copyrightable, reproduce; examine and/or investigate, the Licensed Software, in whole or in part in any way and for any purpose(s) whatsoever, including but not limited to that of competing with RTL.
3. Use the Licensed Software in any manner that is not permitted pursuant to this Agreement.
4. Use this Licensed Software for any illegal activity, including but not limited to illegal transfers of encrypted information.
4. Licensed Software Feature and Content Updates:
Licensed Software features and content may be updated from time to time. These updates are collectively referred to as "Licensed Software Updates". The Licensee shall have the right to install free Software Updates for the Licensed Software at any time.
5. Licensed Software Installation Confirmation and Piracy Protection
6. Limited Warranty.
6.1 RTL warrants that the Licensed Software will perform substantially in accordance with the documentation accompanying the Licensed Software for a period of thirty (30) days after the Effective Date.
6.2. RTL warrants that the Licensed Software does not contain any virus, worm, trap door, back door, timer, clock, counter, or other limiting routine, instruction, or design that would erase data or programming or otherwise cause any system to become inoperable or incapable of being used in the full manner for which it was designed and created.
6.3. Notwithstanding Section 7.2, the Licensed Software is provided “As-Is” and RTL makes no warranty not expressly set forth in this Agreement whether express, implied, statutory or otherwise, including but not limited to all implied warranties of merchantability or fitness for a particular purpose. RTL does not warrant that the Licensed Software or Documentation will satisfy Licensee's requirements. THERE IS NO WARRANTY AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE LICENSED SOFTWARE OR AGAINST INFRINGEMENT. THERE IS NO WARRANTY THAT THE LICENSED SOFTWARE WILL FULFILL ANY OF LICENSEES PARTICULAR PURPOSES OR NEEDS.
6.4. EXCEPT AS SET FORTH IN THE LIMITED WARRANTY AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, RTL HEREBY DISCLAIMS ALL OTHER WARRANTIES FOR THE LICENSED SOFTWARE AND SERVICES PROVIDED BY RTL UNDER THIS AGREEMENT.
Licensee acknowledges and agrees to defend, indemnify and hold RTL harmless from any liability for Licensee's use of the Licensed Software in violation of any laws of the United States of America or other governments, including, but not limited to, U.S. export control laws, and illegal transfers of encrypted information. The indemnity shall survive the expiration or termination of this Agreement.
8. Limitation of Liability and Exclusive Remedy
RTL SHALL NOT BE LIABLE TO LICENSEE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, LOSS OF BUSINESS, BUSINESS INTERRUPTION, PERSONAL INJURY AND FOR ANY OTHER PECUNIARY LOSS OF ANY SORT), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF RTL OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE ENTIRE AGGREGATE LIABILITY OF RTL TO LICENSEE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY LICENSEE TO RTL FOR THE LICENSED SOFTWARE FOR WHICH THE LIABILITY AROSE. LICENSEE SHALL BE LIABLE FOR ANY LOSS OR DAMAGE ARISING FROM LICENSEE'S USE OF THE LICENSED SOFTWARE IN VIOLATION OF ANY PROVISION OF THIS AGREEMENT.
9. U.S. Government Restricted Rights:
The Licensed Software is deemed to be commercial computer software as defined in FAR 12.212 and subject to restricted rights as defined in FAR Section 52.227-19 "Commercial Computer Software - Restricted Rights" and DFARS 227.7202, "Rights in Commercial Computer Software or Commercial Computer Software Documentation", as applicable, and any successor regulations. Any use, modification, reproduction release, performance, display or disclosure of the Licensed Software by the U.S. Government shall be solely in accordance with the terms of this Agreement.
10. Export Controls and Restrictions
Licensee acknowledges that RTL Licensed Software may be subject to the export and import control laws of the United States and any other country. By using RTL Licensed Software the Licensee agrees to not violate any such laws. Licensee covenants that it shall not -- directly or indirectly -- sell, export, re-export, import to, transfer, divert, or otherwise dispose of any Licensed Software, source code, or technology (including products derived from or based on such technology) received from RTL under this Agreement to any other person, party, or business or other entity, or destination prohibited by the laws or regulations of the United States.
The Licensed Software includes encryption algorithms and is subject to export controls under the United States Export Administration Act, as amended, which Act prohibits exports of certain commodities and technical data, including software, to certain countries, including but not limited to Cuba, Iran, Iraq, Libya, North Korea, Sudan, or Syria, and in certain cases, the Licensed Software may not be used or exported outside of the US or Canada. You hereby certify that you will comply with all current US Export Control laws.
By Accepting the License Agreement the Licensee covenants that each of the following statements is true and that Licensee agrees to comply with each of the statements throughout the Period of Loan:
1. I am not a citizen, national or resident of, and am not under the control of the government of Cuba, Iran, Iraq, Sudan, Libya, North Korea, Syria, nor any country to which the United States has prohibited export.
2. I will not download or otherwise export or re-export the Software, directly or indirectly, to any of the above mentioned countries, nor to citizens, nationals or residents of any such or other countries to which the United States has prohibited export.
3. I am not listed on the United States Department of Treasury lists of Specially Designated Nationals, Specially Designated Terrorists, and Specially Designated Narcotics Traffickers, nor am I listed on the United States Department of Commerce Table of Denial Orders, and I will not download or otherwise export or re-export the Software, directly or indirectly, to persons on the above mentioned lists.
4. I will not use the Software for, and will not allow the Software to be used for, any purposes prohibited by United States law, including, without limitation, for the development, design, manufacture or production of nuclear, chemical or biological weapons of mass destruction.
5. I agree that U.S. export control laws and other applicable export and import laws govern my use of the Software and I will not download, export or re-export the Software in violation of the export control laws of the United States and/or any other jurisdiction
11.1 If Licensee desires to contact RTL for any reason, please write to: REAL TIME LOGIC LLC, 14 Monarch Bay Plaza, #108, Monarch Beach, CA 92629.
11.2. Licensee acknowledges and agrees that all title and all rights of ownership to, and interest in, the Licensed Software and the information it contains, any updates and all copies of, and intellectual property rights in, all or any part thereof, are and remain with RTL and possibly other parties (“Other Owners”) to whom RTL has obligations to protect such title and ownership rights, and are protected by the copyright laws of the United States of America and by international treaties. All applicable rights in the patents, copyrights, and trade secrets in the Licensed Software are and will remain the property of RTL. RTL reserves all rights not expressly granted to Licensee hereunder. Licensee acknowledges and agrees that NO title to any intellectual property in the Licensed Software is transferred to Licensee by RTL.
11.3 This Agreement governs any releases, revisions, updates or enhancements to the Licensed Software that RTL may make available to Licensee. Such releases, revisions, updates or enhancements to the Licensed Software are provided at additional charge.
11.4. TERMINATION: This Agreement and all permitted uses of the Licensed Software granted hereunder may be terminated by RTL if Licensee breaches any provision of this Agreement. Upon Termination, Licensee agrees to cease using the Licensed Software in any form and in any computer and Licensee will destroy all the Licensed Software and will reimburse RTL for all cost and expenses, including attorney's fees, incurred by RTL enforcing License obligations under the Agreement.
11.5. The obligations of RTL and of Licensee shall survive termination of this Agreement and shall continue in full force and effect thereafter, including but not limited to the disclaimers of warranties, damages, and limitations on liability.
11.6. The waiver by either party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any other or a subsequent breach of the same or a different kind. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.
11.7. This Agreement, and all of its provisions, shall be deemed to have been made in the State of California and the validity, construction, interpretation and enforcement thereof shall be governed by and construed in accordance with the laws of the State of California, the United States of America, without regard to conflict of laws provisions.
11.8. Any dispute, controversy or claim arising out of or relating to this Agreement, the subject matter thereof, or the breach thereof, shall be settled by binding arbitration in Santa Ana, California, in accordance with the Commercial Arbitration Rules then prevailing of the American Arbitration Association.
11.9. Judgment upon any award made in an arbitration may be entered and enforced in any court of competent jurisdiction. Except as set forth in the previous sentence, any judicial action taken by either party against the other in connection with any dispute or arbitration under this Agreement shall be brought in Santa Ana, California, in a State court having jurisdiction of the subject matter of the action, unless the judicial action includes claims with exclusive Federal jurisdiction, in which case such action shall be brought in Los Angeles, California, in a Federal court having jurisdiction of the subject matter of the action; unless jurisdiction cannot there be obtained over, or venue is not there proper as to, an indispensable third party. Both parties expressly consent to the exercise of jurisdiction over them in the courts set forth in the previous sentences, as appropriate, by any court of competent jurisdiction and waive any rights they may have to have the action tried or determined in a different venue.
11.10. The prevailing party in any arbitration or judicial action brought to enforce or interpret this Agreement or for relief for its breach shall be entitled to recover its reasonable attorneys' fees therein incurred.
11.11. LICENSEE AGREES THAT THE ENTIRE AGGREGATE LIABILITY OF RTL TO LICENSEE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY LICENSEE TO RTL FOR THE LICENSED SOFTWARE.
11.12. This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement and supersedes all prior agreements, communications and understandings relating to such subject matter. This Agreement shall not be amended or modified except in a writing signed by the duly authorized representatives of each party.