END-USER LICENSE Agreement for Aqua Data Studio SOFTWARE
PLEASE
READ THIS DOCUMENT CAREFULLY BEFORE INSTALLING, COPYING OR USING THE
ACCOMPANYING SOFTWARE. BY INSTALLING, COPYING OR USING THE AQUA DATA STUDIO
SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT INSTALL, COPY OR
USE THIS SOFTWARE.
This
Aqua Data Studio End-User License Agreement (this “Agreement”) is a legal
agreement between you (“Customer,” either an entity or individual developer)
and AquaFold, Inc. (“AquaFold”) regarding the use of the Aqua Data Studio
software product accompanying this Agreement, including without limitation
associated documentation (“Software Product”).
1.
GRANT OF LICENSE
Subject to the restrictions set forth in Section 2,
AquaFold hereby grants to Customer a perpetual, non-transferable (except as set
forth under Section 2.2), limited, and non-exclusive license to use the
Software Product, solely for Customer’s internal business purposes, and subject
to the terms and conditions set forth in this Agreement.
2.
LICENSE RESTRICTIONS
Customer shall abide by the following restrictions
with respect to the type of license ordered, as indicated on customer Purchase
Order:
2.1
PER-USER LICENSE. The Software Product is
licensed for a specific number of named users. In the event that Customer is
an entity, Customer must purchase one license for each user of the Software
Product at Customer’s entity that is using the Software Product. Use by additional
users will be deemed a material breach of this Agreement. A single user may
install the Software Product on as many as two computers at any given time.
Access by persons other than authorized users will be a material breach of this
Agreement.
2.2
TRANSFER. Licenses and user names may
not be shared or used concurrently by different individual users. The license
granted under Section 1 may only be transferred as expressly allowed in this
Agreement. Customer may permanently and wholly transfer all rights under this
Agreement, provided Customer (i) retains no copies (whole or partial) of
the Software Product, (ii) permanently and wholly transfers any and all
copies of the Software Product (including all component parts, the media and
printed materials, any upgrades, this Agreement, and, if applicable, the
Certificate of Authenticity) to the transferee, and (iii) the transferee
first agrees to abide by all of the terms of this Agreement. If the Software
Product is an upgrade, any transfer must include any and all prior versions of
the Software Product and any and all of Customer rights therein, if any.
2.3
VIRTUALIZED USE. Customer may install
one copy of the Software Product on a computer file server within Customer’s
internal network for the sole and exclusive purpose of using the Software
Product through commands, data or instructions (e.g. scripts) from
another desktop computer on Customer’s internal network, provided that the
total number of users who access or use the Software Product on such computer
file server do not exceed the permitted number of Software Product authorized
users indicated on the Purchase Order.
2.4
ACADEMIC/EDUCATIONAL EDITION SOFTWARE. If
an “Academic/Educational License” is indicated on Customer’s Purchase Order,
Customer’s right to use the Software Product will be limited to the
“Academic/Educational Edition” of the Software Product. Customer must be a
Qualified Educational User to use the Software Product under this type of
license, and use of the Software Product is limited to Academic/Educational
Use. For purposes of this Agreement, “Academic/Educational Use” means use for
the benefit of the non-commercial, educational activities of an educational
institution such as a university in classrooms or for non-commercial research
purposes, excluding privately funded research, and “Qualified Educational
Users” are limited to enrolled students, faculty, and staff.
2.5
EVALUATION LICENSE. Customer may install or
allow users, whether they are employees or consultants, to install one copy of
the latest version of the Software Product, which must be download directly
from the AquaFold website on the day the Software Product is installed, for the
sole purpose of user’s evaluation of the Software Product for a period of no
more than 14 days. Evaluation of the Software Product with installers acquired
from other sources or downloaded on a day previous to the day of installation
is prohibited. Evaluation of versions of the Software Product other than the
latest version is prohibited. The Software Product contains a feature that
will automatically disable it after expiration of this evaluation period.
Customer shall not disable, destroy, or remove this feature of the Software
Product, and any attempt to do so will be a material breach of this Agreement.
Immediately following the 14 day evaluation period, Customer shall either
delete the evaluation copy from user’s computer or continue to use the Software
Product. Customer’s continued use of the Software Product beyond the evaluation
period will require the purchase of a license.
2.6
OTHER RESTRICTIONS. Except as explicitly authorized in this
Agreement, Customer shall not itself, or through any parent, subsidiary,
affiliate, agent or other third party:
(a)
modify,
reverse engineer, decompile, or disassemble the Software Product except to the
extent that the foregoing restriction is expressly prohibited by applicable
law;
(b)
write or
develop any derivative software or any other software program based upon the
Software Product;
(c)
sell,
lease, license, or sublicense the Software Product;
(d)
interfere
with, remove, disable, or modify any license key or license monitoring
mechanism in or provided with the Software Product;
(e)
allow
access to the Software Product by any user
other than Customer’s employees, or otherwise provide or make the Software
Product available to any third party without AquaFold’s prior written consent;
or
(f)
use the
Software Product to provide processing services to third parties, or otherwise
use the Software Product on a “service bureau” basis.
Customer may make one copy of the Software Product
for back-up and archival purposes. Customer may not copy any documentation
accompanying the Software Product. For the avoidance of doubt, Software
Product upgrades and updates shall only be used to replace all or part of
previous versions or releases of Software Product previously licensed to
Customer. No additional licenses to the Software Product are granted upon
Customer’s receipt of upgrades or updates, or keys thereto.
3.
SUBSCRIPTION
3.1
TERM AND TERMINATION OF
SUBSCRIPTION. The initial purchase of a
license to the Software Product for a user includes a one year Subscription to
receive maintenance, support and version upgrade services on behalf of such
user, as set forth in this Section 3 (“SUBSCRIPTION”),
commencing on the date AquaFold sends electronic confirmation with registration
and license key(s) to email address provided by customer. Customer may renew
its Subscription after the initial Subscription period at AquaFold’s
then-current Subscription renewal rates. AquaFold may refuse to renew the
Subscription upon no less than 12 months prior notice to Customer, in the event
AquaFold elects to generally discontinue Subscription Services for the Software
Product. Termination of the Subscription will not affect the term of the
Software Product license. AquaFold will in no event be required to provide Subscription
Services for any version of the Software Product more than one major revision
prior to the most current release.
3.2
SUBSCRIPTION DUTIES. For so long as Customer is
current in the payment of all Subscription Fees (as defined below), AquaFold
shall provide Subscription Services as specified in this Section 3.
3.3
SUBSCRIPTION SERVICES. Subscription Services
means that AquaFold will provide: (a) updates and upgrades to the Software
Product, if any, made publicly available by AquaFold to its customers during
the term of the Subscription, and (b) email assistance with respect to the
Software Product, including (i) clarification of functions and features of the
Software Product; (ii) clarification of the Software Product documentation;
(iii) guidance in the operation of the Software Product; and (iv) error
verification, analysis and correction to the extent possible by telephone.
AquaFold’s standard hours of service are 8:00 a.m. through 6:00 p.m. Pacific
Time except for business holidays as observed by AquaFold.
3.4
ELIGIBILITY OF SOFTWARE. Subscription Services will
not include services requested as a result of, or with respect to, the
following, and any services requested as a result thereof will be billed to
Customer at AquaFold’s then-current rates:
(a) accident;
unusual physical, electrical or electromagnetic stress; neglect; misuse;
failure of electric power, air conditioning or humidity control;
(b) improper
installation by Customer or use of the Software Product that deviates from any
operating procedures established by AquaFold in the applicable documentation;
(c) modification,
alteration or addition or attempted modification, alteration or addition of the
Software Product undertaken by persons other than AquaFold or AquaFold’s
authorized representatives; or
(d) software
or technology of any party other than AquaFold.
3.5
RESPONSIBILITIES
OF CUSTOMER. AquaFold’s obligations under this Section 3 are subject to the
following:
(a) Customer
shall provide AquaFold with access to Customer’s personnel and equipment during
normal business hours. This access must include the ability to connect via
Internet to the equipment on which the Software Product is operating and to
obtain the same access to the equipment as those of Customer’s employees having
the highest privilege or clearance level. AquaFold will inform Customer of the
specifications of the modem equipment needed and Customer will be responsible
for the costs and use of said modem equipment.
(b) Customer
shall provide supervision, control and management of the use of the Software
Product. In addition, Customer shall implement procedures for the protection
of information and the implementation of backup facilities in the event of
errors or malfunction of the Software Product.
(c) Customer
shall document and promptly report all errors or malfunctions of the Software
Product to AquaFold. Customer shall take all steps necessary to carry out
procedures for the rectification of errors or malfunctions within a reasonable
time after such procedures have been received from AquaFold.
(d) Customer
shall maintain a current backup copy of the Software Product and all related
data.
(e) Customer
shall properly train its personnel in the use and application of the Software
Product.
(f) Customer
shall designate a single point of contact for Subscription Services. Upon
AquaFold’s request, Customer shall provide proof, prior to delivery of Subscription
Services, that Customer has purchased licenses for users to be supported.
3.6
SUBSCRIPTION
FEES. The “Subscription Fees” shall be paid as set forth in Section 10. Subscription
Fees charged for each one-year period shall be set forth in AquaFold’s price
list in effect as of the date of invoice. The Subscription Fee may be modified
by AquaFold at any time without prior notice. AquaFold may decline to renew Subscriptions
at any time upon no less than one year’s notice if AquaFold generally
discontinues its Subscription program for the Software Product. If Customer
elects not to renew the Subscription, Customer may re-enroll only upon payment
of the annual Subscription Fee for the coming year and all Subscription Fees
that would have been paid had Customer not allowed the Subscription to expire.
4.
TERM AND
TERMINATION
4.1
GENERAL.
Customer may terminate this Agreement upon AquaFold’s receipt of written
notice from Customer that Customer wishes to terminate this Agreement and has,
on or before the date of such notice, deleted all copies of the Software
Product installed on Customer’s computers and within Customer’s possession or
control. AquaFold may immediately terminate the software license granted
hereunder if Customer (a) breaches any material term of this Agreement and
does not cure such breach within 10 business days of receiving written notice thereof,
or (b) ceases business operations, assigns its assets for the benefit of
creditors, becomes bankrupt, or otherwise seeks to dispose of all or
substantially all of its assets. Upon such termination, Customer shall
immediately cease all use of, and delete or destroy all copies of the Software
Product and the documentation in Customer’s possession or control.
5.
USAGE VERIFICATION, SOFTWARE
ACTIVATION, AND LICENSE METERING
5.1
USAGE VERIFICATION. Customer verifies that it has completed a full
audit of all use of all versions of the Software Product in its computer
systems and that it has properly licensed all usage in all versions of the
Software Product, including but not limited to versions 3.0, 3.5, 3.7, 4.0,
4.5, 4.7, 6.0, 6.5, 7.0, 7.5 and 8.0. At AquaFold’s request, but not more
frequently than annually, Customer shall furnish AquaFold with a document
signed by Customer’s authorized representative verifying that Customer’s usage
of the Software Product is in accordance with this Agreement, and identifying
the users using the Software Product. Customer shall permit AquaFold or its
agents access to Customer’s computer systems and physical facilities, to review
Customer’s deployment and use of the Software Product for compliance with the
terms and conditions of this Agreement. Any such reviews shall be scheduled at
least 15 days in advance, shall be conducted during normal business hours at
Customer’s facilities and shall not unreasonably interfere with Customer’s
business activities. If Customer’s use of the Software Product exceeds the
number of users for which Customer has purchased licenses, Customer shall pay
for the additional licenses or license upgrades and the unpaid license fees at
AquaFold’s then-current list prices, such amounts to be immediately due and
payable, including, at AquaFold’s option, interest calculated from the date of
the first unpermitted use. Additionally, if the unpaid fees exceed 5% of the
license fees paid for the Software Product, the Customer shall also pay AquaFold’s
reasonable costs of conducting the review.
5.2
SOFTWARE ACTIVATION. AquaFold’s Software Product may use Customer’s
internal network and Internet connection for the purpose of
(a) transmitting license-related data at the time of installation,
registration, use or update to an AquaFold-operated license server and
(b) validating the authenticity of the license-related data in order to
protect AquaFold against unlicensed or illegal use of the Software Product.
Activation is based on the exchange of license related data between Customer’s
computer and the AquaFold license server. Customer agrees that AquaFold may
use these measures to follow any applicable requirements.
5.3
LICENSE METERING. AquaFold may include in the Software Product a
built-in license metering module that helps the Customer avoid any
unintentional violation of this Agreement. This module may use the Customer’s
internal network for license metering between installed versions of the
Software Product. Customer acknowledges that such metering module may send
AquaFold on-line notification confirming use of the Software Product. Customer
shall not disable, modify or interfere with the operation of any such module.
5.4
PIRACY AND REVERSE ENGINEERING OF LICENSE KEYS. Customer hereby
represents and warrants that neither Customer nor any of its employees or
contractors have attempted to circumvent, interfere with, or remove any license
key or license metering mechanism in the Software, or used any computer under
the ownership or control of Customer to do so, or assisted any third party to
do so (including without limitation the purchase or download of counterfeit
license keys). Breach of this Section will be a material breach of this Agreement.
6.
INTELLECTUAL PROPERTY
6.1
INTELLECTUAL PROPERTY OWNERSHIP AND COPYRIGHT
PROTECTION.
Copyright and trademark laws and international treaty provisions protect the
Software Product. AquaFold retains all right, title, and interest in and to
the Software Product, the accompanying printed materials, and any copies of the
Software Product. AquaFold reserves all rights not expressly granted herein.
6.2
ALTERATION OF TRADEMARK. Customer may not remove, modify or alter
any AquaFold copyright or trademark notice from any part of the Software
Product, including but not limited to any such notices contained in the
physical and/or electronic media or documentation, in any of the runtime
resources and/or in any web-presence or web-enabled notices, code or other
embodiments originally contained in or otherwise created by the Software
Product.
7.
LIMITED WARRANTY
7.1
AquaFold
warrants that (a) the Software Product will, for a period of 90 days after
the date of delivery, perform substantially in accordance with AquaFold written
performance specifications accompanying it on delivery (or otherwise published
by AquaFold), and (b) any Subscription services provided by AquaFold shall
be in substantial compliance with the written Subscription description provided
to CUSTOMER by AQUAFOLD.
7.2
AQUAFOLD
has performed generally recognized anti-virus scanning on the Software Product,
and the version of the Software Product delivered to Customer is, as determined
according to such scanning, free of viruses. .
7.3
CUSTOMER REMEDIES. In the event of any breach of warranty or other
duty owed by AquaFold, AquaFold’s entire liability and Customer’s sole and
exclusive remedy shall be, at AquaFold’s sole option, either (a) return of
the price paid by Customer for the Software Product, if any, or (b) repair
or replacement of the defective Software Product. Any replacement or repaired
Software Product will be warranted for the remainder of the original warranty
period or 30 days, whichever is longer. This limited warranty will only
apply if (1) the Software Product has been properly installed and used at all
times in accordance with the instructions for use, (2) the Software Product has
not been modified by Customer or any third party, and (3) the Software Product
failure is not the result of accident, abuse, or misapplication.
7.4
NO OTHER WARRANTIES. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR THE
SELECTION OF THE SOFTWARE PRODUCT TO ACHIEVE ITS INTENDED RESULTS, AND FOR THE
INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SOFTWARE PRODUCT. TO
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AQUAFOLD AND ITS SUPPLIERS
DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED OR STATUTORY,
INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT WITH RESPECT TO THE SOFTWARE
PRODUCT. THE LIMITED WARRANTY GIVES CUSTOMER SPECIFIC LEGAL RIGHTS. CUSTOMER
MAY HAVE OTHERS, WHICH VARY FROM STATE TO STATE. SOME STATES AND JURISDICTIONS
DO NOT ALLOW LIMITATIONS ON AN IMPLIED WARRANTY, SO THE ABOVE LIMITATION MAY
NOT APPLY TO CUSTOMER.
8.
LIMITATION OF LIABILITY
CUSTOMER ASSUMES THE ENTIRE
COST OF ANY DAMAGE RESULTING FROM THE INFORMATION CONTAINED IN OR COMPILED BY
THE SOFTWARE PRODUCT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO
EVENT SHALL AQUAFOLD OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL,
INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION,
DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS
INFORMATION OR DATA, COST OF COVER OR ANY OTHER PECUNIARY LOSS) IN CONNECTION
WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE, USE OF OR INABILITY TO USE
THE SOFTWARE PRODUCT OR THE PROVISION OF OR FAILURE TO PROVIDE SUBSCRIPTION
SERVICES, EVEN IF AQUAFOLD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,
WHETHER SUCH CLAIM IS BASED ON TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY,
OR BREACH OF CONTRACT. IN ANY CASE, AQUAFOLD’S ENTIRE LIABILITY UNDER ANY
PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT CUSTOMER ACTUALLY
PAID TO AQUAFOLD FOR THE SOFTWARE PRODUCT OR SERVICES DIRECTLY RELATING TO SUCH
CLAIM. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR
LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES, THE ABOVE
LIMITATION MAY NOT APPLY TO CUSTOMER. THE FOREGOING MONETARY LIMITATION AND/OR
COMPENSATION EXCLUDES FRAUD, GROSS-NEGLIGENCE AND WILLFUL MISCONDUCT ON THE
PART OF AQUAFOLD.
9.
INFRINGEMENT INDEMNITY
9.1
So
long as Customer is in full compliance with this Agreement, AquaFold shall
defend, or at its option, settle any and all claims, demands, or lawsuits
brought against Customer (“Claims”), and pay any related third party damages
costs, and expenses (including, without limitation, reasonable legal fees)
arising from or incurred by reason of any infringement or alleged infringement
of any copyright or trade secret by the provision or use of the Software
Product.
9.2
In
the event of a Claim, AquaFold may, at its own option and discretion, take one
or more of the following actions:
(a)
procure
for the benefit of Customer the right to continue to use the Software Product
as described in this Agreement; or
(b)
modify
or replace the Software Product so that there is no further infringement,
provided that such modification or replacement will not substantially decrease
the functionality of the Software Product.
In the event neither (a) nor (b) are reasonably
possible, AquaFold may terminate this Agreement and refund to Customer all
license fees and current Subscription fees paid for the Software Product.
9.3
AquaFold’s
obligations under this Section 9 are subject to Customer allowing AquaFold sole
control of the defense, assistance with such defense at AquaFold’s expense, and
timely written notice of the Claim.
10.
FEES AND PAYMENT
The Software Product license fees and then-current
annual Subscription fees (collectively, “Fees”) will be due and payable in full
to AquaFold no later than 30 days after the date of AquaFold’s invoice.
Payment must be accompanied by the Contract Reference Number indicated on the
invoice, and be addressed and sent to the billing contact and address indicated
on the invoice. Any Fee amounts not paid within 30 days will be subject to
interest charges of 1% of the overdue amount per month, or the highest rate
allowable under law, whichever is less. The Fees paid by Customer exclude all
applicable use and other taxes and all applicable export and import costs,
customs duties and similar charges. Fees are expressed in US Dollars, and are
non-refundable.
11.
GENERAL PROVISIONS
11.1
CONSENT
TO JURISDICTION AND FORUM SELECTION. This Agreement will be interpreted and
construed in accordance with the laws of the State of California and the United
States of America, without regard to conflict of law principles. The parties
hereby consent to the personal and exclusive jurisdiction of the state and
federal courts located in Santa Clara County, California for resolution of any
disputes arising out of this Agreement.
11.2
COMPLIANCE
WITH LAWS. This Agreement is expressly made subject to any laws, regulations,
orders or other restrictions on the export from the U.S. of the Software
Product or of information related thereto which may be imposed from time to
time by the U.S. government (“U.S. Export Laws”). Customer’s use of the
Software Product must be strictly in accordance with law. Customer shall
obtain any required non-U.S. governmental authorizations, including without
limitation any import licenses and foreign exchange permits, and, if
applicable, shall file or register this Agreement with the appropriate
authorities.
11.3
SEVERABILITY;
WAIVER. If any provision of this Agreement is held to be invalid or
unenforceable for any reason, the remaining provisions will continue in full
force without being impaired or invalidated in any way and the invalid or
unenforceable provision shall be enforced to the full extent permitted. The
waiver by either party of a breach of any provision of this Agreement will not
operate or be interpreted as a waiver of any other or subsequent breach.
11.4
SUCCESSORS
AND ASSIGNS. Customer may not assign its rights (voluntarily or by operation
of law in connection with a merger, acquisition, or sale of all or
substantially all of Customer’s assets) or delegate its duties under this
Agreement without AquaFold’s written consent.
11.5
ENTIRE
AGREEMENT AND AMENDMENT. This Agreement and the Exhibits attached hereto set
forth the entire understanding and agreement of the parties, and supersede any
and all oral or written agreements or understandings between the parties, as to
the subject matter of this Agreement. This Agreement shall control over any
conflicting provisions of any Customer purchase order or other similar business
form, and such conflicting provisions are expressly rejected, unless
specifically acknowledged and agreed to by the parties in writing.
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