ATTENTION: THE SOFTWARE AND DOCUMENTATION PROVIDED UNDER THIS AGREEMENT ARE BEING LICENSED TO YOU BY NUVYYO, INC. ("LICENSOR") AND ARE NOT BEING SOLD. THIS AGREEMENT CONTAINS LIMITATIONS ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES, AND LIABILITIES THAT ARE APPLICABLE TO THE SOFTWARE AND DOCUMENTATION.
IMPORTANT: BEFORE DOWNLOADING, INSTALLING, OR USING THE SOFTWARE AND DOCUMENTATION, PLEASE CAREFULLY READ THIS AGREEMENT WHICH CONTAINS THE TERMS AND CONDITIONS UNDER WHICH YOU ARE ACQUIRING A LICENSE TO USE THE SOFTWARE AND DOCUMENTATION. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT PLEASE DO NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE AND DOCUMENTATION AND PROMPTLY RETURN OR DESTROY THE SOFTWARE AND DOCUMENTATION. IF YOU DOWNLOAD, INSTALL, OR USE THE SOFTWARE AND/OR DOCUMENTATION, YOU WILL HAVE ACCEPTED AND AGREED TO THESE TERMS AND CONDITIONS. THE SOFTWARE AND DOCUMENTATION ARE ALSO PROTECTED BY COPYRIGHT LAWS AND INTERNATIONAL COPYRIGHT TREATIES, AS WELL AS OTHER INTELLECTUAL PROPERTY LAWS. IF YOU ARE AN AGENT OR EMPLOYEE OF AN ENTITY, YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY'S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT.
1. Definitions: In this Agreement:
"Agreement" means this Nuvyyo Software License;
"Documentation" means the technical publications delivered to You with the Software relating to the installation and operation of the Software, such as reference, user, installation and technical guides and release notes;
"Nuvyyo" means Nuvyyo, Inc.
"Software" means the Licensor binary and/or bytecode software programs that (i) are made available to You for download after acceptance of this Agreement, (ii) are packaged with this Agreement, or (iii) pre-installed on Nuvyyo products, or (iv) embed this Agreement in their installer(s) and which are installed after acceptance of this Agreement, and which binary and/or bytecode software programs include any Documentation; and
"You" or "Your" means the individual acquiring the Software license or any entity on whose behalf such individual is acting. In the case of an entity, "You" includes any entity that by majority voting interest controls, is controlled by, or is under common control with You.
2. Grant of Software License: Subject to the terms and conditions of this Agreement, Licensor grants You a non-exclusive, non-transferable, non-sublicensable, internal license to use a reasonable number of copies of the Software.. All copies of the Software made by You shall include all trademarks, copyright notices, restricted rights legends, proprietary markings and the like exactly as they appear on the copy of the Software originally provided to You. No other rights in the Software or Documentation are granted to You.
3. Open Source Software: Binary, bytecode and source code versions of certain open source software packages may be embedded in or distributed with the Software ("Open Source Software"). If a separate license agreement for an item of open source software is: delivered to You with the Software; included in the download package for the Software; referenced in any material (including the Documentation) that is included in the download or distribution package for the Software; or listed at www.Nuvyyo.com/opensource, then such open source software shall be Open Source Software and such separate license agreement shall govern Your use of that item or version of such open source software. The Open Source Software may include free software (i.e. software licensed under the GNU Lesser General Public License or other free software licenses) for which the applicable free software license may also require that the source code for such free software be made available to those receiving only executable versions of such free software. If the source code for any free software distributed with the Software is not provided with the Software, then upon request, within a three (3) year period from the original receipt of such Open Source Software from Licensor, for a fee that shall not exceed Licensor's costs associated with the shipping of the source code for such free software, Licensor will provide a copy of the source code for such free software to You.
4. Restrictions: The terms set forth in this Section 4 shall constitute conditions to the licenses granted in Section 2.. You shall not reverse engineer, disassemble, reverse translate, decompile or in any other manner decode the Software except to the extent the Software is distributed with any Open Source Software that prohibits the imposition of such a restriction or to the extent the foregoing restriction is expressly prohibited by applicable law notwithstanding a contractual obligation to the contrary. You acknowledge and agree that no rights in respect to the source code of the Software are granted to You. You acknowledge and agree that the rights in respect to use of the Software and Documentation are granted only for use in conjunction with Nuvyyo hardware. You shall not distribute, lease, rent, grant a security interest in, assign, or otherwise transfer the Software except as expressly provided in this Agreement. You shall not modify or create any derivatives works of the Software or merge all or any part of the Software with another program. You shall not use the Software or make the Software available to any third parties as part of any service bureau, time sharing service, application service provider offering, software-as-a-service offering or any other managed service offering. You shall not disclose any performance, benchmarking, or feature-related information about the Software. You further agree not to disclose, transfer or otherwise provide to any third party any portion of the Software, except as expressly permitted herein.
5. Disclaimer of Warranties: Licensor does not make any representations or provide any warranties or conditions in respect to the Software. EXCEPT FOR ANY WARRANTIES THAT MAY BE PROVIDED IN ANY COMMERCIAL AGREEMENT BETWEEN YOU AND LICENSOR, THE SOFTWARE AND DOCUMENTATION ARE PROVIDED "AS IS", WITHOUT ANY REPRESENTATIONS, CONDITIONS, OR WARRANTIES OF ANY KIND. WITHOUT LIMITATION, LICENSOR AND ITS LICENSORS, SUPPLIERS, SUBCONTRACTORS AND DISTRIBUTORS DISCLAIM ANY EXPRESS OR IMPLIED REPRESENTATIONS, CONDITIONS, AND/OR WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT, DURABILITY, TITLE, SATISFACTORY QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE WHETHER ARISING BY STATUTE, COURSE OF DEALING, USAGE OF TRADE, OR OTHERWISE. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN ANY COMMERCIAL AGREEMENT, THE ENTIRE RISK OF THE USE OF THE SOFTWARE AND DOCUMENTATION SHALL BE BORNE BY YOU. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN ANY COMMERCIAL AGREEMENT, NEITHER LICENSOR NOR ANY OF ITS LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS MAKE ANY REPRESENTATIONS OR PROVIDE ANY CONDITIONS AND/OR WARRANTIES ABOUT THE SUITABILITY OF THE SOFTWARE AND/OR DOCUMENTATION OR ABOUT ANY INFORMATION AND/OR DATA THAT MAY BE PROCESSED BY OR MADE AVAILABLE USING THE SOFTWARE.
6. LIMITATION OF LIABILITY: NEITHER LICENSOR NOR ANY OF ITS LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS SHALL HAVE ANY LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES ARISING FROM THIS AGREEMENT, RELATING TO THE SOFTWARE OR DOCUMENTATION, OR RELATING TO ANY SERVICES PROVIDED TO YOU BYLICENSOR (INCLUDING ITS LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS) IN RELATION TO THE SOFTWARE AND/OR DOCUMENTATION FOR ANY INDIRECT, RELIANCE, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFIT, LOSS OF OR DAMAGE TO DATA, BUSINESS INTERUPTION, LOSS OF DATA, REPLACEMENT OR RECOVERY COSTS, OR OTHER COMMERCIAL OR ECONOMIC LOSS, WHETHER ARISING FROM CONTRACT, EQUITY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER THEORY OF LIABILITY, EVEN IF LICENSOR (INCLUDING ITS LICENSORS, SUPPLIERS, SUBCONTRACTORS AND DISTRIBUTORS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THEY ARE FORESEEABLE. THE LIMITATIONS IN THIS SECTION SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM OR FUNDAMENTAL BREACH. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THESE LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT SHALL THE TOTAL CUMULATIVE LIABILITY OF LICENSOR (INCLUDING ITS LICENSORS, SUPPLIERS, SUBCONTRACTORS AND DISTRIBUTORS) TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES ARISING FROM THIS AGREEMENT, RELATING TO THE SOFTWARE, DOCUMENTATION AND/OR RELATING TO ANY SERVICES PROVIDED TO YOU BY LICENSOR (INCLUDING ITS LICENSORS, SUPPLIERS, SUBCONTRACTORS AND DISTRIBUTORS) IN RELATION TO THE SOFTWARE AND/OR DOCUMENTATION, EXCEED THE LICENSE FEES PAID BY YOU FOR THE SOFTWARE.
THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT. YOU ACKNOWLEDGE THAT BUT FOR THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY, NEITHER LICENSOR NOR ANY OF ITS LICENSORS OR SUPPLIERS WOULD GRANT THE RIGHTS GRANTED IN THIS AGREEMENT.
7. Term and Termination: This Agreement shall continue for as long as You use the Software, however, it may be terminated sooner as provided in this Section 7. You may terminate this Agreement by destroying all copies of the Software and Documentation under Your control and providing certification of such destruction to Licensor or by returning the Software to Licensor. Licensor may terminate this Agreement immediately by providing You with written notice if: (a) You are in material breach of any provision of this Agreement, which breach, if capable of being cured, is not cured within thirty (30) days after Licensor gives You written notice thereof; or (b) You have committed a non-curable material breach of this Agreement. Upon termination You shall destroy all copies of the Software. In addition to this Section, the Sections entitled Definitions, Disclaimer of Warranties, Limitation of Liability, Title, High-Risk Activities, Intellectual Property, and General shall continue in force even after any termination of this Agreement. No termination of this Agreement will entitle You to a refund of any amounts paid by You to Licensor or affect any obligations You may have to pay any outstanding amounts owing to Licensor. Upon any termination by Licensor, You shall destroy all copies of the Software and Documentation under Your control and certify such destruction to Licensor.
8. Support and Updates: This Agreement does not grant You the right to any updates or enhancements of the Software or the right to receive any technical support for the Software. Such updates and other technical support services, if available, may be purchased separately from Licensor. Use of any updates or enhancements to the Software provided pursuant to any technical support You may procure from Licensor shall be governed by the terms and conditions of this Agreement. Licensor reserves the right at any time not to release or to discontinue the release of any Software and to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the Software.
9. Title: All right, title, and interest (including all intellectual property rights) in, to, and under the Software (including all copies thereof) shall remain with Licensor and its licensors.
10. High-Risk Activities: The Software is not fault-tolerant and is not designed, manufactured or intended for use in or in conjunction with on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation systems, air traffic control, or direct life support machines. Licensor, its licensors, suppliers, subcontractors and distributors specifically disclaim any express or implied representations, warranties and/or conditions for such uses.
11. U.S. Government End-Users: The Software and Documentation are each a "commercial item" as that term is defined at FAR 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are defined in FAR 12.212, and are provided to the U.S. Government only as commercial end items. Government end users acquire the rights set out in this Agreement for the Software and Documentation consistent with: (i) for acquisition by or on behalf of civilian agencies, the terms set forth in FAR12.212; or (ii) for acquisition by or on behalf of units of the Department of Defense, the terms set forth in DFARS 227.7202. Use of the Software and Documentation is further restricted by the terms and conditions of this Agreement. For the purposes of any applicable government use, the Software and Documentation were developed exclusively at private expense, and are trade secrets of Nuvyyo, Inc. for the purpose of any Freedom of Information legislation or any other disclosure statute, regulation or provision.
12. Export Restrictions: The Software, Documentation and related information are subject to export and import restrictions. By downloading, installing, or using the Software, Documentation and/or related information, You are representing and warranting that You are not located in, are not under the control of, and are not a national or resident of any country to which the export of the Software, Documentation and/or related information would be prohibited by the laws and/or regulations of Canada or the United States. You are also representing and warranting that You are not an individual to whom the export of the Software, Documentation or related information would be prohibited by the laws and/or regulations of Canada or the United States. You shall comply with the export laws and regulations of Canada and the United States that are applicable to the Software, Documentation and related information and You shall also comply with any local laws and/or regulations in Your jurisdiction that may impact Your right to export, import, or use the Software, Documentation or related information, and You represent and warrant that You have complied with any such applicable laws and/or regulations. The Software, Documentation and related information shall not be used for any purposes prohibited by export laws and/or regulations, including, without limitation, nuclear, chemical, or biological weapons proliferation. You shall be responsible for procuring all required permissions for any subsequent export, import, or use of the Software, Documentation or related information.
13. Intellectual Property: Nuvyyo is a trademark or a registered trademark of Nuvyyo, Inc. in certain countries. All Licensor product names and logos are trademarks or registered trademarks of Nuvyyo, Inc. in certain countries. All other company and product names and logos are trademarks or registered trademarks of their respective owners in certain countries. You shall not disclose, transfer or otherwise provide to any third party any portion of the Software, except as expressly permitted in this Agreement.
14. General: This Agreement is the entire agreement between You and Licensor in respect to the Software, superseding any other agreements or discussions, oral or written. The terms and conditions of this Agreement shall prevail over any pre-printed terms on any quotes, orders, purchase orders, or purchase order acknowledgements, and shall prevail over any other communications between the parties in relation to the Software. You may not assign this Agreement whether voluntarily, by operation of law, or otherwise without Licensor's prior written consent. Licensor may assign this Agreement at any time without notice. The failure of a party to claim a breach of any term of this Agreement shall not constitute a waiver of such breach or the right of such party to enforce any subsequent breach of such term. If any provision of this Agreement is held to be unenforceable or illegal, such decision shall not affect the validity or enforceability of such provisions under other circumstances or the remaining provisions of this Agreement and such remaining provisions shall be reformed only to the extent necessary to make them enforceable under such circumstances. This Agreement shall be governed by the laws of the Province of Ontario and the laws of Canada applicable therein. No choice or conflict of laws rules of any jurisdiction shall apply to this Agreement. You shall only be entitled to bring any action or proceeding arising out of or relating to this Agreement, the Software, Documentation or any services provided in respect to the Software and/or Documentation in a court in Ottawa, Ontario, Canada, and You consent to the jurisdiction of such courts for any such action or proceeding. You waive all rights that You may have or that may hereafter arise to contest the jurisdiction of such courts for any action or proceeding brought by You. You hereby waive any right You may have to request a jury trial with respect to any action brought by You in connection with this Agreement, the Software or any services provided in respect to the Software. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded.
January 31, 2014