AI END USER SOFTWARE LICENSE AGREEMENT
NOTICE TO USER: THIS IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR AN ENTITY, THE "LICENSEE") AND AMERICAN INNOVATIONS, LTD. ("LICENSOR") REGARDING YOUR USE OF LICENSOR’S SOFTWARE (THE "SOFTWARE"). CAREFULLY READ THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT (THIS "AGREEMENT") BEFORE USING THE SOFTWARE. BY USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. THE SOFTWARE CONTAINS CERTAIN APPLICATION SOFTWARE OF LICENSOR AS WELL AS CERTAIN SOFTWARE OF THIRD PARTIES (THE "THIRD PARTY SOFTWARE"). THE SOFTWARE AND THE THIRD-PARTY SOFTWARE ARE LICENSED (NOT SOLD) TO YOU. IF YOU ARE NOT WILLING TO BE BOUND BY THE TERMS OF THIS AGREEMENT, DO NOT USE THE SOFTWARE AND RETURN IT TO LICENSOR OR DESTROY IT. ALL RETURNS WILL BE SUBJECT TO LICENSOR'S RETURN POLICY. THIS AGREEMENT INCORPORATES BY REFERENCE LICENSOR’S SALES TERMS AND CONDITIONS LOCATED AT: http://aiworldwide.com/about/legal/terms/. IN THE EVENT OF CONFLICT BETWEEN THIS AGREEMENT AND LICENSOR’S SALES TERMS AND CONDITIONS, THIS AGREEMENT SHALL CONTROL.
- GRANT OF LICENSE. Provided that Licensee complies with all terms and conditions of this Agreement including the payment to Licensor of all related fees, Licensor grants Licensee the perpetual, non-exclusive, non-transferable (except as expressly set forth herein), fully-paid, limited right to:
a) Install and execute the Software for use by a single individual that is designated as part of the registration process ("Named User") for the sole purpose of processing Licensee's internal data in the ordinary course of Licensee's business. Licensee may, at its discretion, replace the Named User with another individual; provided, however, any previously Named User may not be re-designated for a period of six (6) months without prior written permission of Licensor. Unless otherwise specified on the purchase order, invoice or work order, Licensee is acquiring a named user license. If, however, Licensee has acquired a concurrent use license (which is available for purchase on limited types of Software and as specified on the invoice), Licensee may install the Software for access by multiple users (“Clients”) for the sole purpose of processing internal data in the ordinary course of business; provided, however, in no event may the number of Clients are the Software at the same time (“Concurrent Users”) exceed the number of Concurrent Users specified on the invoice(s) provided by Licensor and paid in full by Licensee (“Maximum Number of Users”). A license for Concurrent Users will automatically terminate if the number of Concurrent Users at any time exceeds the Maximum Number of Users unless Licensee has paid all associated additional license fees for such additional Concurrent Users. Notwithstanding the foregoing, users of the Allegro Field Computer™ are limited in all instances to use the Software solely on the device on which it was installed by Licensor.
b) Use and copy the Documentation in connection with Licensee's authorized use of the Software provided all copies of the Documentation contain all notices of copyright and ownership as contained in the original. "Documentation" means all instructions and other documentation related to the Software provided by Licensor.
c) Maintain one (1) separate site for disaster recovery, back-up or emergency use of the Software provided that any use of the Software at such site shall only be on a limited basis and only during the period of time the original site is unable to use the Software due to equipment failure. Licensee may also make a copy of the Software and the Documentation solely for archival purposes. Licensee will maintain accurate records of the location of all back-up copies of the Software and such records may be inspected and verified by Licensor at any time during Licensee's business hours upon reasonable notice.
d) Licensee may use the Software and Documentation only in the conduct of its internal business. The Software may not be used by Licensee (directly or indirectly) to operate as a service bureau or to offer hosting, outsourcing, or subscription services. Licensee may not distribute, sub-license or otherwise make the Software or Documentation available to any third party (other than third party contractors who operate the Software for the sole benefit of Licensee and upon prior written approval by Licensor).
ANY UNAUTHORIZED USE OF THE SOFTWARE WILL AUTOMATICALLY VOID THIS LICENSE GRANT AND MAY SUBJECT LICENSEE TO CLAIMS BY LICENSOR FOR COPYRIGHT INFRINGEMENT, BREACH OF CONTRACT, INJUNCTIVE RELIEF AND/OR MONETARY DAMAGES.
- RESTRICTIONS. The Software is the property of Licensor and the Software (including all intellectual property rights therein) is exclusively owned by Licensor and its licensors. This Agreement does not grant Licensee any rights to the source code of the Software. All rights not expressly granted to you in this Agreement are reserved to Licensor. Licensee may not reverse engineer, decompile or disassemble the Software nor modify or transfer the Software to a third party without the prior written approval of Licensor.
- LIMITED WARRANTY. Licensor warrants, for Licensee’s benefit alone, that for a period of ninety (90) days from the date delivery (the "Warranty Period"), the Software will perform substantially in accordance with the specifications published by Licensor. If, during the Warranty Period, Licensee notifies Licensor in writing of a material defect in the Software, and if Licensor is able to replicate the defect, then Licensor will work to provide you with replacement Software that corrects the defect. Any replacement Software will be warranted for the remainder of the Warranty Period or thirty (30) days, whichever is longer. EXCEPT AS EXPRESSLY SET HEREIN, THE SOFTWARE AND SUPPORT ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND AND NO OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED, ARE MADE WITH RESPECT TO THE SOFTWARE OR SUPPORT, INCLUDING BUT NOT LIMITED TO ANY WARRANTY THAT THE SOFTWARE WILL BE SECURE OR PERFORM IN ANY PARTICULAR MANNER, AS WELL AS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTIES. LICENSOR DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF, OR THE RESULTS OF, THE SOFTWARE IN TERMS OF ACCURACY, CORRECTNESS, RELIABILITY OR OTHERWISE AND DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT LICENSOR WILL BE ABLE TO CORRECT ALL DEFECTS. LICENSOR EXPRESSLY DISCLAIMS ANY WARRANTIES NOT STATED HEREIN.
- REMEDIES. Licensor's entire liability and Licensee’s exclusive remedy under the above limited warranty shall be that Licensor, in its sole discretion, will use reasonable commercial efforts to correct or provide a workaround for any reproducible error in the Software (each such action a "Remedy") at Licensor's expense provided you give written notice itemizing such error to Licensor during the Warranty Period. Licensor cannot guaranty that any Remedy nor any other services or support provided under this Agreement will permanently cure the error. The limited warranty is void if failure of the Software has resulted from your improper use.
- LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH ANY CLAIM THAT ARISES FROM THIS AGREEMENT OR USE OF THE SOFTWARE OR SUPPORT. IN NO EVENT SHALL EITHER PARTY BE ENTITLED TO ANY MONETARY DAMAGES IN EXCESS OF THE LICENSE FEES PAID TO LICENSOR FOR THE SOFTWARE OR SUPPORT, AS APPLICABLE. Licensee understands that the applicable fees reflect the allocation of risk set forth in this Agreement and that Licensor would not have made the Software or Support available for use without the limitations set forth in this Agreement.
- INTELLECTUAL PROPERTY INDEMNIFICATION. Licensor agrees to indemnify Licensee against all liabilities, judgments, awards and costs finally awarded arising out of or related to any claim that Licensee's authorized use or possession of the Software (as permitted herein) infringes or violates the copyright, trade secret, patent, or any other proprietary right of any third party, provided that Licensee: a) notifies Licensor promptly in writing of any claim or suit; b) gives Licensor the sole right to control investigation, preparation, defense, and settlement of such claim or suit; and c) gives Licensor assistance and reasonable cooperation for the defense of same. Following notice of any claim or should Licensor believe that the Software may be the subject of an infringement claim, Licensor may, in its discretion and at its option, procure the right for Licensee to continue to use the Software, replace or modify the Software to make it non-infringing, or terminate this Agreement. The foregoing obligations of Licensor shall not apply and Licensor will have no liability for any claim of infringement if: a) the Software is configured or developed to Licensee's specifications; b) the Software is modified after delivery by anyone other than Licensor or a party approved in writing by Licensor; c) the Software is combined with other products, services, processes, or materials; d) Licensee continues the infringing activity after being notified of modifications that would have avoided the alleged infringement; or e) Licensee's use is not in accordance with this Agreement; provided such infringement would not have occurred but for such configuration or development, modification, combination, continued use, or improper use. The foregoing states Licensee's sole remedy for, and Licensor's entire liability and responsibility for, infringement of any copyright, trade secret, patent, or any other proprietary right of any third party relating to the Software. Licensee will defend, indemnify, and hold Licensor harmless from all damages, settlements, attorneys' fees and expenses related to any claim of infringement excluded from Licensor's indemnity by the preceding sentence.
- THIRD PARTY PRODUCTS. Licensor is not responsible for the Third Party Software and any third party hardware. You understand that your use of the Third Party Software and any third party hardware (and all associated warranties) is subject to the applicable license agreements for the Third Party Software and warranty agreements for the third party hardware from the respective third party providers. The terms of this Agreement shall apply to the extent that any terms of any Third Party Software license agreements are less restrictive.
- TECHNICAL SUPPORT & MAINTENANCE. All technical support and maintenance (“Support”) shall be provided by Licensor subject to this Agreement. Support shall be provided in accordance with the Licensor’s standard Support terms. In the event of any conflict between this Agreement and the Technical Support and Maintenance Program, this Agreement shall control. Licensee must use the current or immediately prior version of the Software (i.e. any release indicated by a numeral change to right or left of first decimal versus the prior release), provided that Licensee shall convert to then current version of Software once it has been commercially available for one (1) year.
- GOVERNMENT USE/PROCUREMENT. If the Software is being licensed under the terms of an agreement with the U.S. Government or any contractor on its behalf: 1) the Software is commercial computer software; 2) the Software and Documentation were developed exclusively at private expense, and (a) if acquired by or on behalf of a civilian agency, shall be subject to the terms of this commercial computer software license as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors; or (b) if acquired by or on behalf of units of the Department of Defense ("DOD") shall be subject to the terms of this commercial computer software license as specified in 48 C.F.R. 227.7202-2, DOD FAR Supplement and its successors. If the Software will be made available to the U.S. Government, any use, duplication, or disclosure by the U.S. Government of the Software shall be subject to the restrictions applicable to proprietary commercial computer software set forth in subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights clause at 48 C.F.R. 52.227-19, as applicable. The manufacturer is American Innovations, Ltd., 12211 Technology Blvd., Austin, TX 78727.
- GENERAL. This Agreement is governed by the laws of the state of Texas, exclusive of any provisions of the United Nations convention on the international sale of goods, without regard to principles of conflicts of law and constitutes the complete agreement between you and Licensor. It supersedes any oral or written proposals, prior agreements, purchase orders or any other communication between Licensee and Licensor relating to the Software. This Agreement shall automatically terminate upon failure by Licensee to comply with its terms, in which event Licensee must immediately stop using the Software and all related Third Party Software. If any action is brought by either party against the other, the prevailing party shall be entitled to recover reasonable attorney fees and court costs in addition to any relief granted. If any provision of this Agreement is held invalid, the offending clause will be modified so as to be enforceable and, as modified, shall be fully enforced, and the remainder of this Agreement will continue in full force and effect. RIPL Software is an Upgrade of IMP Software and IAP Software. PCS Axis Software is a migration from PCS Fox-Pro-based Software. IMP Software, FMP Software and PCS Software are copyrighted works; Concentric Software and RIPL Software copyrights are pending.