NOTICE TO USER:
THIS IS AN AGREEMENT GOVERNING YOUR USE OF THE SOFTWARE TITLED MicroOLAP Database Designer for PostgreSQL, FURTHER DEFINED HEREIN AS "PRODUCT," AND THE LICENSOR OF THE PRODUCT IS WILLING TO PROVIDE YOU WITH ACCESS TO THE PRODUCT ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. BELOW, YOU ARE ASKED TO ACCEPT THIS AGREEMENT AND CONTINUE TO INSTALL OR, IF YOU DO NOT WISH TO ACCEPT THIS AGREEMENT, TO DECLINE THIS AGREEMENT, IN WHICH CASE YOU WILL NOT BE ABLE TO INSTALL OR OPERATE THE PRODUCT. BY ACKNOWLEDGING YOUR CONSENT HERETO AND BY INSTALLING AND OPERATING THIS PRODUCT YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. For purposes hereof "Operating" shall mean accessing, storing, loading, installing, Using (as defined below), and copying the Product into the memory of a Client Device, as defined below. "Using" shall mean executing and displaying the product on a Client Device or otherwise benefiting from utilizing, deploying or using the Product or its functionality.
This Electronic End User License Agreement (the "Agreement") is a legal agreement between you (either an individual or an entity), the Licensee, and MicroOLAP Technologies Ltd., ( the "Licensor"), regarding the Product and related support service you are about to install and Operate and/or other related services, including without limitation:
a) all of the contents of the files, including disk(s), CD-ROM(s) or other media with which this Agreement is provided and including all forms of code, such as Source Code, Object Code, dynamic or static libraries, and/or executable files as provided and in a form that is provided by Licensor to you (the "Software"). For the avoidance of doubt, by way of example, but not exclusion, if a specific file is provided by Licensor in Object Code only, the Source Code for such files shall not be deemed a part of the Software provided by Licensor to you. For purposes hereof "Source Code" shall mean the human-readable form of the computer programming code and related system documentation including all comments and any procedural code such as job control language and "Object Code" shall mean computer programs assembled or compiled in magnetic or electronic binary form on software media, which are readable and usable by machines, but not generally readable by humans without reverse-assembly, reverse-compiling, or reverse-engineering.
b) all support services provided to you by Licensor in connection with the Software (the "Services");
c) and all successor upgrades, modified versions, modified modules, revisions, patches, enhancements, fixes, modifications, copies, additions or maintenance releases of the Software, if any, licensed to you by the Licensor (collectively, the "Updates"), and
d) related user documentation and explanatory materials or files provided in written, "online" or electronic form (the "Documentation" and together with the Software, Samples, Updates, and Services the "Product").
For the purposes of this Agreement, "Licensor Site" shall mean the Internet website maintained by or on behalf of Licensor from which the Software is available for download pursuant to a license from Licensor. The Licensor Site is currently located at http://www.microolap.com.
You are subject to the terms and conditions of this End User License Agreement whether you access or obtain the Product directly from the Licensor, or through any other source. For purposes hereof, "you" or "Licensee" means the individual person installing or using the Product on his or her own behalf; or, if the Product is being downloaded or installed on behalf of an organization, such as an employer, "you" means the organization for which the Product is downloaded or installed, then the person accepting this agreement represents hereby that such organization has authorized such person to accept this agreement on the organization's behalf. For purposes hereof the term "organization," without limitation, includes any partnership, limited liability company, corporation, association, joint stock company, trust, joint venture, labor organization, unincorporated organization, or governmental authority.
If you do not agree to the terms and conditions of this Agreement, the Licensor is unwilling to license the Product to you. In such event, you may not Operate the Product in any way.
BEFORE YOU PUT A CHECKMARK AT THE "I ACCEPT THE AGREEMENT" BUTTON AND PRESS "NEXT," PLEASE CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT, AS SUCH ACTIONS ARE A SYMBOL OF YOUR SIGNATURE AND BY CLICKING ON THE "I ACCEPT THE AGREEMENT" AND "NEXT" BUTTONS, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT AND AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE "CANCEL" BUTTON AND THE PRODUCT WILL NOT BE INSTALLED ON YOUR CLIENT DEVICE, AS SUCH TERM IS DEFINED BELOW.
For your reference, you may refer to the copy of this Agreement that can be found in installed files of the Software as license.rtf.
You may also receive an electronic copy of this Agreement by contacting Licensor at firstname.lastname@example.org.
1. Proprietary Rights and Non-Disclosure.
1.1. Ownership Rights. You agree that the Product and the authorship, systems, ideas, methods of operation, derivative Documentation and other information contained in the Product, are proprietary intellectual properties and or the valuable trade secrets of the Licensor and are protected by applicable civil and criminal law, and by the law of copyright, trade secret, trademark and patent and international treaties. You may use trademarks only insofar as to identify printed output produced by the Product in accordance with accepted trademark practice, including identification of trademark owner's name. Such use of any trademark does not give you any rights of ownership in that trademark. The Licensor and its suppliers own and retain all right, title, and interest in and to the Product, including all copyrights, patents, trade secret rights, trademarks, and other intellectual property rights therein. Your possession, installation or use of the Product does not transfer to you any title to the intellectual property in the Product, and you will not acquire any rights to the Product except as expressly set forth in this Agreement. All copies of the Product made hereunder must contain the same proprietary notices that appear on and in the Product. Except as stated herein, this Agreement does not grant you any intellectual property rights in the Product.
1.3. Confidential Information. You agree that, unless otherwise specifically provided herein the Product, including the specific design and structure of individual programs and the Product, constitute confidential proprietary information of the Licensor or its suppliers and/or licensors. You agree not to transfer, copy, disclose, provide or otherwise make available such confidential information in any form to any third party. For purposes hereof, "License Key" or "Registration Key" shall mean a file or a unique sequence of digit and/or symbols provided to you by the Licensor confirming the purchase of the license from the Licensor, which may carry the information about the License, i.e. its type, the user name and the number of licenses purchased, and enabling the full functionality of the Product in accordance with the License granted under this Agreement. You agree to implement reasonable security measures to protect such confidential information. If you download the Software from the Internet or similar on-line source, you must include the copyright notices resident on the Software with any on-line distribution and on any media you distribute that includes the Software.
2. Grant of License.
a) Trial License. If you have received, downloaded and/or installed a Trial Version of the Product (the "Trial Version") and are hereby granted a Trial License for the Software and you may Operate the Product only for evaluation and demonstration purposes and only during the single applicable evaluation period of thirty (30) days (the "Trial Period"), unless otherwise indicated, from the date of the initial installation. Any use of the Product for other purposes or beyond the applicable evaluation period is strictly prohibited, provided however that, subject to the restrictions contained herein, you may copy and distribute the Trial Version of the Software without any modifications whatsoever, and including this Agreement, to any third party. Licensee shall have no technical support rights during the Trial Period. The Licensor shall not be required to provide any support and Updates, as stated below, for the Trial Version of the Product. During the Trial Period, the Licensor provides no warranty whatsoever and assumes and bears no liability whatsoever for the Trial Version of the Product.
c) Site License. If the Product is licensed with site license terms specified in the applicable product invoicing or packaging for the Product, you may Operate and Use the Product on an unlimited number of Client Devices within a single building owned or leased by your company. Additionally, the individual licensing terms may specify other terms, conditions and restrictions of Using the Product (the "Site License").
f) Intranet License. If the Product is licensed with Intranet License terms specified in the applicable product invoicing or packaging for the Product, you may Operate and Use the Product on an unlimited number of Client Devices within a single local area network and/or private computer network under your control (the "Intranet License"). Additionally, the individual licensing terms may specify other terms, conditions and restrictions of Using the Product.
g) Internet License. If the Product is licensed with Internet License terms specified in the applicable product invoicing or packaging for the Product, you may Operate and Use the Product on an unlimited number of Client Devices on a single server accessible via internet (the "Internet License"). Additionally, the individual licensing terms may specify other terms, conditions and restrictions of Using the Product.
h) Compiled Units. If you are granted a Commercial License pursuant to Section 2.1(e) hereof, in addition to the licenses and rights granted therein, Licensor grants you a nonexclusive, deployment-free, royalty-free right to reproduce and distribute the Object Code version of those portions of the Software which are identified in the Documentation as 'compiled units' (the "Compiled Units") provided that you comply with all of the following requirements:
i). you distribute the Compiled Units in Object Code form only in conjunction with and as part of your software application product which adds significant and primary functionality and when the absence of Compiled Units will make your software application inoperable;
ii). you do not use Licensor name, logo or trademarks to market your software application product; and
iii). you include a valid copyright, trademark or any other proprietary notices on your Software identifying the Licensor as the owner of the Compiled Units.
i). For purposes hereof, "Source Code" shall mean the human-readable form of the computer programming code and related system documentation including all comments and any procedural code such as job control language. Provided you have purchased a license to a part of the Software supplied in Source Code form, you may make modifications, enhancements, derivative works and/or extensions to that licensed Source Code provided to you under the terms set forth in this Section 2.1(f).
ii). While the Licensor does not claim any ownership rights in the Results, in the event you develop any modifications, enhancements, derivative works and/or extensions to the licensed Source Code (the "Derivatives"), either independently or jointly with the Licensor, such Derivatives and all rights associated therewith will be the exclusive property of the Licensor.
iii). You shall not grant, either expressly or by implication, any rights, title, interest, or licenses to any Derivatives to any third party. You will, however, be entitled to use such Derivatives under the terms set forth in this Agreement. You hereby assign all right, title and interest in and to such Derivatives to the licensed Source Code to the Licensor.
iv). You also agree to execute, acknowledge and deliver to the Licensor all documents and instruments and do all things and actions Licensor deems necessary or desirable, at no cost to you but at Licensor's expense, to enable the Licensor to obtain and secure such Derivatives anywhere in the World. You agree to secure all necessary rights and obligations from relevant employees, or third parties in order to satisfy the above obligations. You may not distribute the Licensor's Source Code, or any Derivatives, in Source Code form.
v). Under no circumstances may any portion of the Source Code be distributed, disclosed or otherwise made available to any third party without the express, prior written consent of the Licensor. Under no circumstances may the Source Code be used in whole or in part, as the basis for creating a product that provides the same, or substantially the same, functionality as any of the Licensor's product. You will not take any action, or assist or otherwise aid anyone else in taking any action that would, in any way, limit the Licensor's independent development, sale, assignment, licensing or use of its Software or any Derivatives thereof. You will not modify or delete, in whole or part, any copyright, trade secret, proprietary, confidential or other notice thereon or therein, including a prominent notice on the Results "Powered by MicroOLAP Database Designer for PostgreSQL" without the express, prior written consent of the Licensor.
vi). YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT SOURCE CODE IS LICENSED "AS IS," AND THAT THE LICENSOR DOES NOT PROVIDE ANY TECHNICAL SUPPORT FOR SOURCE CODE.
m) Educational Purpose License, Educational Institution Classroom License, and Educational Institution Site License. If the Product is licensed under an Educational Purpose License upon the terms specified in the applicable Educational Purpose License invoicing or packaging for the Product, you may make use of the Product solely for Educational Purpose. "Educational Purpose" means any non-commercial study or research that is undertaken solely in furtherance of one's education, whether or not completed by a student in pursuit of an educational degree, certificate or diploma and as used by teachers or facilitates teaching of a class, and all administrative staff, faculty and employees, of any college, university, trade school or other school ("Educational Institution"). With the acquisition of an Educational Institution Classroom License, Licensee may install and Operate the Product by a number of Users determined by the applicable invoicing terms within one Educational Institution in one classroom. Within these limitations, you may install the Product as a "Network" Product and run the Product from any networked Client Devices on Licensee's LAN, provided that such Client Devices are located exclusively within one classroom. With the acquisition of an Educational Institution Site License, Licensee may install and Operate the Product by a number of Users determined by the applicable invoicing terms within one Educational Institution in one geographic location. Within these limitations, you may install the Product as a "Network" Product and run the Product from any networked Client Devices on Licensee's LAN, provided that such Client Devices are located exclusively within one office complex within one geographic location. Educational License may be granted exclusively at the discretion of the Licensor upon your submission of a written request discussing your and your employer/employees activities, when applicable, and your reasons for and purposes of Operating the Product.
2.2. Multiple Environment Product; Multiple Language Product; Dual Media Product; Multiple Copies; Bundles. If you use different versions of the Product or different language editions of the Product, if you receive the Product on multiple media, if you otherwise receive multiple copies of the Product, or if you received the Product bundled with other software, the total permitted number of your Client Devices on which all versions of the Product are installed shall correspond to the number of licenses you have obtained from the Licensor provided that unless the licensing terms and the License Key provides otherwise, each purchased license entitles you to install and Use the Product on one (1) Client Device. You may not rent, lease, sublicense, lend or transfer any versions or copies of the Product regardless of whether you use the Product or not, provided that the terms specified in the applicable product invoicing or packaging for the Product specify otherwise.
2.3. Run-time License. If the Product is licensed under Commercial License in accordance to Sections 2.1(e) or 2.1(k), in addition to the licenses and rights granted therein, Licensor grants Licensee a right to display, install, copy and distribute a portion of Licensor Software (the "Run-time Edition") on Client Devices of its customers as part of the Licensee's bundled products (the "Run-time License") in accordance with terms and conditions specified in the License Key, and/or invoicing terms, including the limitations relating to the number Client Devices of such customers or the number of such customers as the case may be, provided that, Licensee shall include a valid and prominent copyright, trademark or any other proprietary notices in its bundled products identifying the Licensor as the owner of the Run-time Edition as may be specified by Licensor from time to time.
2.4. Updates. During the Term of this Agreement, you may download Updates to the Product when and as the Licensor publishes them in its website or through other online services. Notwithstanding any provision to the contrary herein, nothing in this Agreement shall be construed as to grant you any rights or licenses with regard to the New Releases of the Product or to entitle you to any New Release. This Agreement does not obligate the Licensor to provide any Updates. Notwithstanding the foregoing, any Updates that you may receive become part of the Product and the terms of this Agreement apply to them (unless this Agreement is superceded by a further Agreement accompanying such Update or modified version of to the Product).
2.5. Material Terms and Conditions. You specifically agree that each of the terms and conditions of this Section 2 are material and that failure of you to comply with these terms and conditions shall constitute sufficient cause for Licensor to immediately terminate this Agreement and the License granted under this Agreement. The presence of this Section 2.5 shall not be relevant in determining the materiality of any other provision or breach of this Agreement by either party hereto.
3. Additional Covenants; Assignment of Intellectual Property Rights.
3.1. Additional Limitations. Notwithstanding anything to the contrary herein, you may not Operate, Use, or modify the Product in any way as to form the basis for creating a product that provides the same, or substantially the same, functionality as the Product; and in the event you develop any modifications, enhancements, derivative works and/or extensions to the Product, either independently or jointly with Licensor, such modifications, enhancements, derivative works and/or extensions and all rights associated therewith will be the exclusive property of Licensor. You will not grant, either expressly or impliedly, any rights, title, interest, or licenses to any such modifications, enhancements, derivative works and/or extensions to any third party. You will, however, be entitled to use such modifications, enhancements, derivative works and/or extensions under the terms set forth in this Agreement. You hereby assign all right, title and interest in and to such modifications, enhancements, derivative works and/or extensions to the Product to Licensor. You also agree to execute, acknowledge and deliver to Licensor all documents and do all things Licensor deems necessary or desirable, at no cost to but at Licensor expense, to enable Licensor to obtain and secure such modifications, enhancements, derivative works and/or extensions anywhere in the world. You agree to secure all necessary rights and obligations from relevant employees or third parties in order to satisfy the above obligations.
3.2. Reservations of all Rights. The Licensor reserves all rights not expressly granted herein.
3.3. Back-up Copies. You can make one (1) copy of the Product for backup and archival purposes, provided, however, that the original and each copy is kept in your possession or control, and that your installation, Operation and Use of the Product does not exceed that which is allowed in Section 2 hereof.
3.4. Additional Protection Measures. Solely for the purpose of preventing unlicensed and/or unauthorized Use of the Product, including without limitation Run-time Edition, the Software may collect certain non-personal information relating to the hardware of your or your customer's Client Devices and/or install on your or your customer's Client Devices certain technological measures that are designed to prevent unlicensed and/or unauthorized Use and Operation of the Product, and the Licensor may use this technology to confirm that you have a licensed copy of the Product. Such installation or collection of information or updates of these technological measures may occur through and/or during the installation or activation of the Product or Updates. The Product and/or Updates will not install or may fail to Operate if installed contrary to the rights granted under the License or if attempted to be installed or Operated on unlicensed copies of the Product. If you are not using a licensed copy of the Product, you are not allowed to install the Updates. The Licensor will not collect any personally identifiable information from your computer during this process.
4. Term and Termination.
4.2. No Rights upon Termination. Upon termination of this Agreement you will no longer be authorized to Operate or Use the Product in any way.
5. Support and Updates.
5.1. Terms of Support. During the Warranty Period as defined below, you are entitled to technical services and support for the Product which is provided to you by Licensor free of charge during the regular business hours (GMT+3), except for locally-observed holidays, and includes the support provided through a special technical support section of the Licensor Site (http://www.microolap.com/support/) ("Warranty Support"). During the Warranty Period, Warranty Support is unlimited and includes technical and support questions and patch fixes. After the expiration of the Warranty Period, you may purchase additional support services from Licensor at current rates as listed at Licensor Site (http://www.microolap.com/support/).
5.2. Updates. During the Warranty Period hereunder and, if your purchasing terms provide for a certain extended period of time during which you are entitled to Updates free of charge (i.e., one year from the time of the purchase of the License), then for such extended period of time, you may download Updates to the Product when and as the Licensor publishes them on the Licensor Site, or through other online services. If the Product is an Update to a previous version of the Product, you must possess a valid license to such previous version in order to use the Update. You may continue to use the previous version of the Product on your Client Device after you receive the Update to assist you in the transition to the Update, provided that: (i) the Update and the previous version are installed on the same computer device; (ii) the previous version or copies thereof are not transferred to another party unless all copies of the Update are also transferred to such party; and (iii) you acknowledge that any obligation the Licensor may have to support the previous version of the Product may be ended upon availability of the Update. Except for the rights to free Updates during the Warranty Period, as further defined herein, nothing in this Agreement shall be construed as to grant you any rights or licenses with regard to the new version or releases of the Product or to entitle you to any new version, upgrade or release. This Agreement does not obligate the Licensor to provide any Updates. Notwithstanding the foregoing, any Updates that you may receive become part of the Product and the terms of this Agreement apply to them (unless this Agreement is superseded by a succeeding agreement accompanying such Update or modified version of the Product). Notwithstanding anything to the contrary herein, nothing herein shall be deemed to entitle you to any Licensor's Optional Updates that are provided by Licensor for a fee, or to any new releases, versions or substitutes of the Product.
5.3. Additional Support and Updates. In addition to the free Support and free Updates provided for in Sections 5.1 and 5.2, you may purchase additional Services, additional Updates or additional Support beyond the applicable period at the ongoing rates and prices published or provided by Licensor.
6.2. No Extraction for Separate Use. You shall not have the right to extract or to Use any functionality of this Software, including any DLLs or other compiled units or Object Code fragments other than as part of normal Operation of the Product described in the Documentation and as integral part of Operation and functionality of the Product as a whole.
6.3. Proprietary Notices and Copies. You may not remove any proprietary notices or labels on the Product. You may not copy the Product except as expressly permitted in Section 2 above.
6.4. Compliance with Law. You agree that in Operating the Product and in using any report or information derived as a result of Operating this Product, you will comply with all applicable international, national, state, regional and local laws and regulations, including, without limitation, privacy, trademark, patent, copyright, export control and obscenity law and you shall not use the Product for unethical or illegal business practices or in violation of any obligation to a third party in using, Operating, accessing or running any of the Product and shall not knowingly assist any other person or entity to so violate any obligation to a third party.
7. WARRANTIES AND DISCLAIMERS.
7.1. Limited Warranty. The Licensor warrants that for two (2) months (the "Warranty Period") from the date the Product has been downloaded by you or was made otherwise available to you by Licensor if the Product was supplied to you on other media, the media on which Product has been provided will be free from defects in materials and workmanship and that the Software will perform substantially in accordance with the Documentation or generally conform to the Product's specifications published by the Licensor. Non-substantial variations of performance from the Documentation do not establish a warranty right. THIS LIMITED WARRANTY DOES NOT APPLY TO UPDATES AS APPLIED TO ANY MODIFIED PRODUCT, WHETHER OR NOT SUCH MODIFICATION IS PERMISSIBLE HEREUNDER, TRIAL AND DEMO OR EVALUATION VERSIONS, UPDATES, PRE-RELEASE, TRYOUT, PRODUCT SAMPLER, OR NOT FOR RESALE (NFR) COPIES OF PRODUCT. This limited warranty is void and your support right terminates if the defect or damage has resulted from accident, abuse, or misapplication or any modification, whether or not such modification is permitted hereunder. Notwithstanding anything to the contrary herein, any and all modifications shall be deemed derivative works within the meaning of copyright law and remain subject to the terms of this Agreement, including without limitation Section 1.1 hereof, provided however, that any damage or claims relating to or arising out of any modifications made by Licensee, whether or not permitted hereunder, shall be the sole responsibility of Licensee. To make a warranty claim, you must return the Product to the location where you obtained it along with proof of purchase within such sixty (60) day period of the license fee you paid for the Product. THE LIMITED WARRANTY SET FORTH IN THIS SECTION GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE ADDITIONAL RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.
7.2. Customer Remedies. The Licensor and its suppliers' entire liability and your exclusive remedy for any breach of the foregoing warranty shall be at the Licensor's option: (i) return of the purchase price paid for the License, if any, (ii) replacement of the defective media in which the Product is contained, or (iii) correction of the defects, "bugs" or errors within reasonable period of time. You must return the defective media to the place of purchase at your expense with a copy of your receipt. Any replacement media will be warranted for the remainder of the original Warranty Period.
7.3. NO OTHER WARRANTIES. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, AND FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT TO WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO YOU IN YOUR JURISDICTION, THE PRODUCT IS PROVIDED "AS-IS" WITHOUT ANY WARRANTY WHATSOEVER AND THE LICENSOR MAKES NO PROMISES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE, REGARDING OR RELATING TO THE PRODUCT OR CONTENT THEREIN OR TO ANY OTHER MATERIAL FURNISHED OR PROVIDED TO YOU PURSUANT TO THIS AGREEMENT OR OTHERWISE. YOU ASSUME ALL RISKS AND RESPONSIBILITIES FOR SELECTION OF THE PRODUCT TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE PRODUCT. THE LICENSOR MAKES NO WARRANTY THAT THE PRODUCT WILL BE ERROR FREE OR FREE FROM INTERRUPTION OR FAILURE, OR THAT IT IS COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, SATISFACTORY QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCT AND THE ACCOMPANYING WRITTEN MATERIALS OR THE USE THEREOF. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. YOU HEREBY ACKNOWLEDGE THAT THE PRODUCT MAY NOT BE OR BECOME AVAILABLE DUE TO ANY NUMBER OF FACTORS INCLUDING WITHOUT LIMITATION PERIODIC SYSTEM MAINTENANCE, SCHEDULED OR UNSCHEDULED, ACTS OF GOD, TECHNICAL FAILURE OF THE SOFTWARE, TELECOMMUNICATIONS INFRASTRUCTURE, OR DELAY OR DISRUPTION ATTRIBUTABLE TO VIRUSES, DENIAL OF SERVICE ATTACKS, INCREASED OR FLUCTUATING DEMAND, AND ACTIONS AND OMISSIONS OF THIRD PARTIES. THEREFORE, THE LICENSOR EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY REGARDING SYSTEM AND/OR SOFTWARE AVAILABILITY, ACCESSIBILITY, OR PERFORMANCE. THE LICENSOR DISCLAIMS ANY AND ALL LIABILITY FOR THE LOSS OF DATA DURING ANY COMMUNICATIONS AND ANY LIABILITY ARISING FROM OR RELATED TO ANY FAILURE BY THE LICENSOR TO TRANSMIT ACCURATE OR COMPLETE INFORMATION TO YOU.
7.4. LIMITED LIABILITY; NO LIABILITY FOR CONSEQUENTIAL DAMAGES. YOU ASSUME THE ENTIRE COST OF ANY DAMAGE RESULTING FROM YOUR USE OF THE PRODUCT AND THE INFORMATION CONTAINED IN OR COMPILED BY THE PRODUCT, AND THE INTERACTION (OR FAILURE TO INTERACT PROPERLY) WITH ANY OTHER HARDWARE OR SOFTWARE WHETHER PROVIDED BY THE LICENSOR OR A THIRD PARTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE LICENSOR OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, HARDWARE OR SOFTWARE DISRUPTION IMPAIRMENT OR FAILURE, REPAIR COSTS, TIME VALUE OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCT, OR THE INCOMPATIBILITY OF THE PRODUCT WITH ANY HARDWARE SOFTWARE OR USAGE, EVEN IF SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL LICENSOR'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES IN ANY ONE OR MORE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE EXCEED THE AMOUNT PAID BY YOU FOR THE PRODUCT. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT THAT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
8.1. Indemnification for Violations. In Operating the Product, you agree to use only those materials for which you have the necessary patent, copyright and other permissions, licenses, and/or clearances. You agree to indemnify, defend and hold harmless the Licensor and its respective officers, directors, employees, agents, successors, and assigns (the "Licensor Indemnitees") from any and all losses, liabilities, damages and claims, and all related expenses including without limitation reasonable legal fees and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties and costs related to, arising from, or in connection with any third-party claim related to, arising from, or in connection with the actual or alleged: (i) infringement by you or by Compiled Units (except when such breach is exclusively attributable to Product) of any third-party intellectual property and/or proprietary right, including, but not limited to, patent, trademark, copyright, trade secret, publicity and/or privacy, (ii) personal injury (including death) or property damage due to gross negligence or intentional misconduct of the Licensee, and (iii) breach by the Licensee of any of its representations, warranties, obligations, and/or covenants set forth herein. You shall promptly notify the Licensor in writing after you become aware of any such claims, but failure to give such notice shall not relieve you of indemnity obligations hereunder. You shall have exclusive control over the settlement or defense of such claims or actions, except that Licensor may appear in the action, at its own expense, through counsel reasonably acceptable to you, only in the event it is mutually determined by the parties that an actual conflict of interest would exist by your representation of the Licensor and you in such action. Licensor shall give you, at your expense, all information and assistance reasonably requested by you to settle or defend such claims or actions. You shall be entitled to retain all monetary proceeds, attorneys' fees, costs and other rewards you receive as a result of defending or settling such claims. In the event you fail to promptly indemnify and defend such claims and/or pay Licensor's expenses, as provided above, Licensor shall have the right to defend itself, and in that case, you shall reimburse the Licensor Indemnitees for all of their attorneys' fees, costs and damages incurred in settling or defending such claims within thirty (30) days of each of Licensor's written requests. Nothing in this Section 3.2 or this Agreement shall be interpreted as to exclude any possible legal recourse against the Licensee.
9. U.S. Government-Restricted Rights.
9.1. Notice to U.S. Government End Users. The Product and accompanying Documentation are deemed to be "Commercial Items," as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," respectively, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights, including any use, modification, reproduction, release, performance, display or disclosure of the Product and accompanying Documentation, as are granted to all other end users pursuant to the terms and conditions herein. Unpublished rights are reserved under the copyright laws of the United States.
9.2. Export Restrictions. You acknowledge and agree that the Product may be subject to restrictions and controls imposed by the Export Administration Act and the Export Administration Regulations of the United States (the "Acts"). You agree and certify that neither the Product nor any direct product thereof is being or will be used for any purpose prohibited by the Acts. You may not Operate, download, export, or re-export the Product (a) into, or to a national or resident of, any country to which the United States has embargoed goods, or (b) to anyone on the United States Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading or using the Product, 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. You acknowledge that it is your sole responsibility to comply with any and all government export and other applicable laws and that the Licensor has no further responsibility for such after the initial license to you. You warrant and represent that neither the U.S. Commerce Department, Bureau of Export Administration nor any other U.S. federal agency has suspended, revoked or denied your export privileges. For more information on the U.S. Export Administration Regulations (EAR), 15 C.F.R. Parts 730-774, and the Bureau of Export Administration ("BXA"), please see the BXA homepage (http://www.bxa.doc.gov).
10.2. Public Announcements. The Licensor may identify you to the public as a customer of the Licensor and describe in a customer case study the services and solutions delivered by the Licensor to you. The Licensor may also issue one or more press releases, containing an announcement of the execution and delivery of this Agreement and/or the implementation of the Product by you. Nothing contained in this Section 10.2 shall be construed as an obligation by you to disclose any of your proprietary or confidential information to any third party. In addition, you may opt-out from this Section 10.2 by writing an opt-out request to the Licensor at email@example.com.
11.1. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed and enforced in accordance with the laws of the British Virgin Islands without reference to conflicts of law rules and principles. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly disclaimed and excluded. The courts within the British Virgin Islands shall have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement. You agree that this Agreement and any action, dispute, controversy, or claim that may be instituted based on this Agreement, or arising out of or related to this Agreement or any alleged breach thereof, shall be prosecuted exclusively in the courts of the British Virgin Islands and you, to the extent permitted by applicable law, hereby waive the right to change venue to any other state, county, district or jurisdiction; provided, however, that the Licensor as claimant shall be entitled to initiate proceedings in any court of competent jurisdiction.
11.2. Period for Bringing Actions. No action, regardless of form, arising out of the transactions under this Agreement, may be brought by either party hereto more than one (1) year after the cause of action has occurred, or was discovered to have occurred, except that an action for infringement of intellectual property rights may be brought within the maximum applicable statutory period.
11.3. Entire Agreement; Severability; No Waiver. This Agreement is the entire agreement between you and Licensor and supersedes any other prior agreements, proposals, communications or advertising, oral or written, with respect to the Product or to subject matter of this Agreement. You acknowledge that you have read this Agreement, understand it and agree to be bound by its terms. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, void, or unenforceable for any reason, in whole or in part, such provision will be more narrowly construed so that it becomes legal and enforceable, and the entire Agreement will not fail on account thereof and the balance of the Agreement will continue in full force and effect to the maximum extent permitted by law or equity while preserving, to the fullest extent possible, its original intent. No waiver of any provision or condition herein shall be valid unless in writing and signed by you and an authorized representative of Licensor provided that no waiver of any breach of any provisions of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach. Licensor's failure to insist upon or enforce strict performance of any provision of this Agreement or any right shall not be construed as a waiver of any such provision or right.
11.4. Contact Information. Should you have any questions concerning this Agreement, or if you desire to contact the Licensor for any reason, please contact our Customer Department at http://microolap.com/support/.
© 1999-2007 Microolap Technologies Ltd. All rights reserved. The Product, including the Software and any accompanying Documentation, are copyrighted and protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.