THIS AGREEMENT (the "Agreement") is hereby entered into between Sys-Manage Informatica SL (the "Licensor") and the party executing this Agreement ("You") on the following terms and conditions:
1. Licensed Program. This is a license agreement between You and Licensor with respect to Sys-Manage Hash (Freeware), the accompanying Documentation and any fixes, releases, upgrades, new versions or enhancements that may subsequently be issued to You (the "Licensed Program").
2. Certain Preliminary Uses.
(a) Installation. The Licensed Program is distributed to You by electronic download or on self-installing media as described in the Documentation. You will need to install the Licensed Program on properly configured and compatible computer equipment according to the Documentation. You will also need to ensure that all required data is in proper format and no other software or equipment having an adverse impact on the Licensed Program are present.
3. Licensed Operating Environment.
(a) Operating Environment. Once You sign this Agreement, have completed activities described in Section 2 ("Certain Preliminary Uses"), You will be deemed granted non-exclusive Server License(s) to install, store, load, execute and display (collectively, "Use") the Licensed Program (Server Edition, if applicable) on as many servers as You deem necessary and to make the Licensed Program (Node Edition, if applicable) available for Use by as many end-users as You deem necessary in support of Your company-wide business operations (the "Licensed Operating Environment"). The Licensed Program is provided only in machine readable object code form.
(b) Authorized Operators. The Licensed Program will be operated by Your own employees, on-site professional facility manager or off-site operations contractor ("Authorized Operators"). The Authorized Operators may Use the Licensed Program in the Licensed Operating Environment for the beneficial uses described in Section 4 ("Permitted Uses").
(c) Disaster Recovery Exception. In the event of a bona fide disaster, such as a fire, flood, earthquake or civil disturbance, You may relocate and Use the Licensed Program on a back-up configuration substantially equivalent to the Licensed Operating Environment for a period not to exceed sixty (60) days. You may also temporarily appoint an independent disaster recovery center as an Authorized Operator during the pendency of the emergency. Upon completion of the emergency, You will return the Licensed Program to the original environment and certify the deletion of all copies from the back-up equipment. You will need to make and store in a safe place archival copies of valuable software or data that would be needed if a disaster occurred.
4. Permitted Uses. Your Authorized Operators may Use the Licensed Program in the Licensed Operating Environment strictly in support of Your internal business operations and to process Your own data.
5. Reservation of Rights.
(a) Rights to Licensed Program. The intellectual property rights in the Licensed Program shall at all times remain the exclusive property of Licensor or other owner identified in the Documentation. By executing this Agreement and paying the applicable License Fee, You obtain a limited license to Use the Licensed Program in object code form. You agree not to disassemble, decompile or reverse engineer the Licensed Program. You also agree that any information obtained in violation of this restriction will be confidential information automatically and irrevocably deemed assigned to and owned exclusively by the owner of the Licensed Program. You will at all times use due diligence to safeguard and protect all such confidential and proprietary information pertaining to the Licensed Program. You will ensure that all marks, notices or legends pertaining to the origin, identity or ownership of the Licensed Program remain intact and clearly legible.
(b) All Other Rights Reserved. Except as expressly granted to You under another provision of this Agreement, Licensor reserves to itself and prohibits You (directly or indirectly, in whole or in part) from loaning, renting, leasing, sublicensing or otherwise distributing or operating the Licensed Program to or for the benefit of any third party, and from altering, adapting, translating or preparing any derivative work of the Licensed Program. The foregoing limitation does not prohibit Authorized Operators from making a copy of the Licensed Program for archival purposes or as an essential step in making Permitted Uses of the Licensed Program in the Licensed Operating Environment.
6. Warranties. The following provisions are subject to Section 8 ("Limitation of Remedies & Liabilities"). The specified warranties will last for one (1) year from the date the Licensed Program is delivered to You (the "Warranty Period"). Warranties are for Your benefit alone, it being agreed they are not assignable and there are no third party beneficiaries of them.
(a) Noninfringement Warranty. Licensor warrants it has the rights needed to enter into this Agreement and that, to the best of its knowledge and belief, Permitted Use by You of the Licensed Program in the Licensed Operating Environment will not infringe or misappropriate any United States copyright, trademark, patent, or the trade secrets of any third persons. If promptly notified of any claim to the contrary, Licensor shall (i) defend through litigation or obtain through negotiation Your right to continue using the Licensed Program; (ii) rework the Licensed Program to make it noninfringing while preserving the original functionality, or (iii) replace the Licensed Program with functionally equivalent software.
(b) Limited Performance Warranty. Licensor warrants to You that it will make a reasonable effort to ensure the Licensed Program operates substantially in accordance with the Documentation and in compliance with Year 2000 Standards. For these purposes, "Year 2000 Standards" means the Licensed Program records, stores, recognizes, interprets, processes and presents both 20th and 21st century dates using four digit years substantially according to formats and assumptions specified in the Documentation. If You notify Licensor of a defect during the Warranty Period, Licensor will attempt to correct the defect at no cost to You. Licensor does not warrant that it will be able to correct all reported defects or that Use of the Licensed Program will be uninterrupted or error free. LICENSOR MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, AND DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, ACCURACY, INTEGRATION AND FITNESS FOR A PARTICULAR PURPOSE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. STATEMENTS REGARDING YEAR 2000 ARE "YEAR 2000 READINESS DISCLOSURES" ENTITLED TO CERTAIN PROTECTIONS UNDER FEDERAL LAW.
7. Software Locks & Undocumented Features. BE ON NOTICE THAT THE LICENSED PROGRAM CONTAINS A SOFTWARE LOCK THAT IS DESIGNED TO PREVENT UNAUTHORIZED OR EXCESSIVE USE OF THE LICENSED PROGRAM. USAGE OF THE LICENSED PROGRAM WILL BE MONITORED AND MAY UNDER CERTAIN CIRCUMSTANCES BE TERMINATED. LICENSOR DOES NOT REPRESENT OR WARRANT THAT OPERATION OF THIS FEATURE WILL BE ERROR FREE. YOU NEVERTHELESS AGREE THAT INCORPORATION OF THIS FEATURE INTO THE LICENSED PROGRAM IS COMMERCIALLY REASONABLE, HAS BEEN REFLECTED IN THE TERMS AND CONDITIONS OF THIS AGREEMENT AS A WHOLE AND YOU ACCEPT ALL RISK ASSOCIATED WITH THIS FEATURE. YOU SHOULD BACKUP YOUR VALUABLE DATA ON MEDIA NOT ASSOCIATED WITH THE LICENSED PROGRAM.
8. Limitation of Remedies & Liabilities. The following provisions are a material condition of this Agreement and reflect a fair allocation of risk:
(a) Remedies. You agree that if the Licensor violates any warranty or other provision of this Agreement, and Licensor determines that repair or other corrective action is not economically or technically feasible, Your sole and exclusive remedy will be to obtain a refund of License Fees paid by You. You also agree that legal remedies alone provide inadequate protection of Licensor's intellectual property rights in the Licensed Program and that, in addition to other relief, Licensor may without necessity of posting bond obtain temporary and permanent injunctions to enforce those rights.
(b) Liabilities. YOU AGREE LICENSOR IS NOT LIABLE FOR ANY AMOUNT EXCEEDING THE LICENSE FEES ACTUALLY PAID BY YOU HEREUNDER. IN NO EVENT SHALL LICENSOR BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST SAVINGS OR PROFIT, LOST DATA OR BUSINESS INTERRUPTION EVEN IF LICENSOR IS NOTIFIED IN ADVANCE OF SUCH POSSIBILITY). THIS INCLUDES DAMAGES INCURRED BY YOU, YOUR CUSTOMERS OR ANY THIRD PARTY. THIS LIMITATION PROTECTS LICENSOR AND ANY DISTRIBUTOR OR RESELLER FROM WHOM YOU OBTAINED THE LICENSED PROGRAM. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE FOREGOING LIMITATION MAY NOT APPLY TO YOU.
9. Term & Termination.
(a) Generally. This Agreement shall continue in full force and effect in perpetuity unless terminated earlier in accordance with this or another Section of this Agreement. This Agreement will terminate automatically if You breach any provision of it. You may terminate this Agreement at any time at Your election.
(b) Effect of Termination. Termination of this Agreement will terminate Your right to possess or Use the Licensed Program. Upon termination for any reason, You agree to destroy the original and all copies of the Licensed Program (including Documentation) and cease all further Use of it. Termination will have no effect on Your obligation to safeguard and protect proprietary rights of Licensor under Section 5(a) ("Rights to Licensed Program"), disclaimers under Section 9 ("Warranties"), limitations under Section 8 ("Limitation of Remedies & Liabilities") or continuing assurances made under Section 11 ("Export Regulations").
10. Disputes, Choice of Law. Except for certain injunctive relief authorized under Section 11 ("Limitation of Remedies & Liabilities") which may be brought at any time, the parties agree that all disputes shall be submitted to a single arbitrator for nonbinding arbitration under proceedings conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The award of the arbitrator shall include a written explanation of the decision and shall be limited to remedies otherwise available in court. If the parties are still unable to reconcile their differences after the arbitrator issues its award the dispute may then be taken to court by either party. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE UNITED STATES AND OHIO, AND ANY ACTION SHALL BE INITIATED AND MAINTAINED IN A FORUM OF COMPETENT JURISDICTION IN SUCH DESIGNATED STATE. YOU WILL BRING ANY ACTION AGAINST LICENSOR WITHIN ONE (1) YEAR AFTER THE CLAIM ARISES, OR BE BARRED.
11. Export Regulations. The transfer of technology across national boundaries is regulated by the U.S. Government. You agree not to export or re-export the Licensed Program without first obtaining any required export license or governmental approval. You will not directly or indirectly export or re-export (including by transmission) any regulated technology to any country to which such activity is restricted by U.S. regulation or statute, without the prior written consent, if required, of the Bureau of Export Administration of the U.S. Department of Commerce. This provision and the assurances made herein shall survive termination of this Agreement.
12. U.S. Government Restricted Rights. The Licensed Program (including Documentation) are provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the Government is subject to restrictions as set forth in the Rights in Commercial Computer Software clause at DFARS 227.7202-3 or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights clause at 48 CFR 52.227-19, as applicable. The Contractor is Sys-Manage Informatica SL.
13. Miscellaneous. This document constitutes the entire and exclusive agreement between the parties with respect to the subject matter hereof and supersedes all other communications, whether written or oral. This document and Your signature entry in electronic form, or a hardcopy duplicate in good form, shall be considered an original document with authenticated signature admissible into evidence unless the document's authenticity is genuinely placed in question. You may issue a purchase order, but it will have no substantive effect on our Agreement. This Agreement may be modified or amended only by a writing signed by an authorized representative of Licensor. It is agreed that sales representatives and distributors of the Licensed Program have no authority to alter this Agreement. Any provision found by a tribunal of competent jurisdiction to be illegal or unenforceable shall be automatically conformed to the minimum requirements of law and all other provisions shall remain in full force and effect. Waiver of any provision hereof in one instance shall not preclude enforcement of it on future occasions. Headings are for reference purposes only and have no substantive effect.