END-USER SOFTWARE LICENSE AGREEMENT
This End-User Software License Agreement (the “Agreement”) is made and effective on the date of first use and activation of a license on the application provided by Augmentalis Inc.,
BY AND BETWEEN, Augmentalis Inc., (the “Licensor”), a corporation organized and existing under the laws of the State of California, United States of America, with its head office located at: 5860 Owens Avenue, Ste 200, Carlsbad, California, 92008, United States AND The Licensor/User (the “Licensee”), who may be an individual, corporation or other entity as provided by law and corporation organized and existing under the laws of its respective state, region or country as may be appropriate.
WHEREAS, Licensor has developed certain computer programs and related documentation more particularly the software that includes this Agreement. WHEREAS, Licensee wishes to use the Software under the conditions set forth in this Agreement. NOW, THEREFORE, in consideration of the mutual promises set forth herein, Licensee and Licensor hereby agree as follows:
The following definitions shall apply to this Agreement:
- “Software” means the computer programs, applications and documentation that accompany the software that includes this agreement.
- “Install” means placing the Software on a computer’s hard disk, CD-ROM, flash memory or any other secondary storage device. “Derivative Works” means a work that is based upon one or more preexisting works, such as a revision, modification, translation, abridgment, condensation, expansion or any other form in which such a preexisting work may be recast, transformed or adapted, and that, if prepared without authorization by the owner of the preexisting work, would constitute copyright infringement. “Use” means (i) executing or loading the Software into computer RAM or other primary memory, and (ii) copying the Software for archival or emergency restart purposes. “Territory” means All countries where it is legal to sell this software.
- Software License
If Licensee has purchased a Perpetual License, Licensor hereby grants to Licensee a perpetual, non-exclusive license to use the Software and Documentation (collectively, the “Software System”), subject to the terms and conditions hereinafter set forth. This License is effective when executed by both parties and the license granted to the Software remains in force until Licensee stops using the Software or until Licensor terminates this License because of Licensee’s failure to comply with any of its terms and conditions.
[TERM OF YEARS]
If Licensee has purchased a Term License, This License is effective when executed by both parties and will last for a term as stipulated in licensees purchase agreement.
[SINGLE USER/DEVICE LICENSE]
If Licensee has purchased a Single User/Device License, Licensor hereby grants to Licensee a nonexclusive license to install and use the Software on one single device in its possession,
If Licensee has purchased a Multiple User/Device License, Licensor hereby grants to Licensee a nonexclusive license to install and use the Software on up to the number of devices as stipulated in licensees purchase agreement.
If Licensee has purchased a Site License, Licensor hereby grants to Licensee a nonexclusive license to install and use the Software on any device located at the address or addresses provided in the licensee’s purchase agreement, such computers cannot be accessed from outside the site by a telecommunications network or otherwise.
Licensor hereby grants to Licensee a nonexclusive license to install and use the Software on the Local Area Network currently operating at the site as provided for in the purchase agreement between licensee and licensor, provided the total number of users who have access to the Software at any time does not exceed the number as provided in the aforementioned purchase agreement.
- LICENSE FEE:
As consideration for the license to use the Software System granted to Licensee herein, Licensee shall pay to Licensor the fee as per the purchase agreement with the Licensee.
- LICENSEE’S RIGHTS AND OBLIGATIONS:
Licensee may either:
- Make one copy of the Software solely for backup or archival purposes, or
- Transfer the Software to a single hard disk, provided Licensee keep the original solely for backup or archival purposes.
The Software and Documentation are protected by United States of America copyright laws and international treaties and is patent pending. Licensee must treat the Software and Documentation like any other copyrighted or patent protected material. Licensee may not:
- Copy the Documentation
- Copy the Software except to make archival or backup copies as provided above
- Modify or adapt the Software or merge it into another program
- Reverse engineer, disassemble, decompile or make any attempt to discover the source code of the Software
- Place the Software onto a server so that it is accessible via a public network such as the Internet
- Sublicense, rent, lease or lend any portion of the Software or Documentation.
- LIMITED WARRANTY:
Licensor warrants that for a period of 365 of days after delivery of the Software to Licensee that The Software will perform in substantial accordance with the Documentation, under the limitations provided by the device, operating system or runtime environment it was designed for.
To the extent permitted by law, THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, AND LICENSOR DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS, INCLUDING ANY IMPLIED WARRANTY OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, regardless of whether Licensor knows or had reason to know of Licensee particular needs. No employee, agent, or distributor of Licensor is authorized to modify this warranty, nor to make any additional warranties.
- LIMITED REMEDY:
Licensor entire liability and Licensee exclusive remedy shall be: The replacement of any digital media not meeting the Limited Warranty which is returned to Licensor or to an authorized Dealer or Distributor with a copy of Licensee’s receipt.
IN NO EVENT WILL LICENSOR BE LIABLE TO LICENSEE FOR ANY DAMAGES, INCLUDING ANY LOST PROFITS, LOST SAVINGS, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM THE USE OR THE INABILITY TO USE THE SOFTWARE (EVEN IF LICENSOR OR AN AUTHORIZED DEALER OR DISTRIBUTOR HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY.
Representations and Warranties:
Licensor hereby represents and warrants to Licensee that:
- Licensor is the owner of all right, title and interest, including copyright, in all the Licensed Materials, or has the authority to enter into this Agreement on behalf of the owner.
- Licensor has not granted any rights or licenses to the Licensed Materials that would conflict with Licensor’s obligations under this Agreement.
- Licensor will not enter into any agreement with any third party which would affect Licensee’s rights under this Agreement, or bind Licensee to any third party, without Licensee’s prior written consent.
- Licensee’s use of the Licensed Materials as authorized by this Agreement will not infringe any existing copyright, trade secret, patent or trademark rights of any third party.
Licensor shall have the right to immediately terminate this License if Licensee fails to perform any obligation required of Licensee under this Agreement or if Licensee becomes bankrupt or insolvent. This License Agreement takes effect upon Licensee’s use of the software and remains effective until terminated by Licensor or the termination of the license period specified in the Licensees purchase agreement. Licensee may terminate it at any time by destroying all copies of the Software and Documentation in its possession. It will also automatically terminate if Licensee fails to comply with any term or condition of this License Agreement. Upon Licensees termination of the agreement, there shall be no encumbrance upon licensor to return or refund any license fees. Any refund shall be at the sole discretion of the licensor.
Return or Destruction of Software Upon Termination:
Upon termination of this License, Licensee shall return to Licensor or destroy the original and all copies of the Software including partial copies and modifications. Licensor shall have a reasonable opportunity to conduct an inspection of Licensee’s place of business to assure compliance with this provision.
- Title to Software:
Licensor retains title to and ownership of the Software and all enhancements, modifications and updates of the Software.
- Modification and Enhancements:
Licensee will make no efforts to reverse engineer the Software or make any modifications or enhancements without Licensor’s express written consent.
- The Software:
The Software shall consist of the modules or components, shall perform the functions and shall comply with licensor’s written information provided at the time of sale.
The Documentation shall consist of all user manuals, training materials, guides, listings, specifications, and other materials for use in conjunction with the Software, as my be provided by Licensor from time to time.
- Source Code:
The Software, its Source Code form (the “Source Code”), and all relevant explanations and documentation of the Source Code (collectively, “Commentary”) are the sole property of the Licensor and not subject to release to the Licensee.
- Operating Environment:
The Software, and each module or component and function thereof, shall be capable of operating fully and correctly on the combination of computer equipment (“Hardware”) the programming language and the Operating System as advertised by the Licensor.
- Software Installation and Acceptance:
Licensee shall install the Software on the Hardware. Licensee shall successfully conduct all of its own testing procedures on the Software. Within 90 days of installation, Licensee shall either provide the Licensor with notice that the software is defective. If such notice is not provided, it shall be understood that the software has been accepted by the Licensee.
- New Location:
Licensee may, at any time, without prior notice to or consent of Licensor, transfer the Software to any location other than the site of initial installation for use on any other central processing unit (“CPU”) which is owned or controlled by Licensee or by subsidiaries or other entities owned or controlled by Licensee. Licensee shall thereafter promptly give Licensor notice of such new location.
- Multiple Use Option:
Licensee shall have the option to extend the license granted hereunder to include use of the Software on more than a single CPU which it may exercise in its sole discretion at any time by tendering to Licensor a payment equal to the License Fee specified by the Licensor at the time Licensee exercises its option to extend.
The License Fee does not include training for Licensee to install or operate the software.
- Software Maintenance:
- During the warranty period, Licensor shall promptly notify Licensee of any defects or malfunctions in the Software or Documentation of which it learns from any source. Licensor shall promptly correct any defects or malfunctions in the Software or Documentation discovered during such warranty period and provide Licensee with corrected copies of same, without additional charge. Licensor’s obligation hereunder shall not affect any other liability which it may have to Licensee.
- Licensor shall provide to Licensee, without additional charge, copies of the Software System and Documentation revised to reflect any enhancements to the Software System made by Licensor during the warranty period. Such enhancements shall include all modifications to the Software System which increase the speed, efficiency or ease of operation of the Software System, or add additional capabilities to or otherwise improve the functions of the Software System.
- Additional Support:
During the warranty period, Licensor shall provide to Licensee, without additional charge, all reasonably necessary written consultation requested by Licensee in connection with its use and operation of the Software System or any problems therewith. Telephone consultation shall be requested and provided only during Licensor’s normal business hours and Licensee shall pay all telephone charges in connection therewith.
- Software Maintenance Contract and Renewal Option:
After expiration of the warranty period referred to above, Licensor shall provide maintenance, additional support and enhancements in connection with the Software System, pursuant to the year(s) Software Maintenance Contract executed with licensee.
- Licensee’s Modifications:
Licensee shall not have the right, to independently modify the Software System for its own purposes and use, through the services of its own employees or of independent contractors and shall not violate Licensor’s proprietary rights therein. Licensor shall be the owner of any ideas for changes, updates or additions to the software that may be suggested by Licensee. Licensor, if it, at its sole discretion incorporates any such suggested modifications into its software shall be the sole owner of all intellectual property, patents and copyrights.
Each party agrees that it shall not disclose to any third party any information concerning the customers, trade secrets, methods, processes or procedures or any other confidential, financial or business information of the other party which it learns during the course of its performance of this Agreement, without the prior written consent of such other party. This obligation shall survive the cancellation or other termination of this Agreement. The Software contains trade secrets and proprietary know-how that belong to us and it is being made available to Licensee in strict confidence. ANY USE OR DISCLOSURE OF THE SOFTWARE, OR OF ITS ALGORITHMS, PROTOCALS OR INTERFACES, OTHER THAN IN STRICT ACCORDANCE WITH THIS LICENSE AGREEMENT, MAY BE ACTIONABLE AS A VIOLATION OF OUR TRADE SECRET RIGHTS.
- Licensor’s Proprietary Notices:
Licensee agrees that any copies of the Software or Documentation which it makes pursuant to this Agreement shall bear all copyright, trademark and other proprietary notices included therein by Licensor and, except as expressly authorized herein, Licensee shall not distribute same to any third party without Licensor’s prior written consent. Notwithstanding the preceding sentence, Licensee may add its own copyright or other proprietary notice to any copy of the Software or Documentation which contains modifications to which Licensee has ownership rights pursuant to this Agreement.
Licensee may assign this agreement to any subsidiary or affiliate under its control, or as part of the sale of that part of its business which includes the Hardware or any substantial portion of its data processing facilities, or pursuant to any merger, consolidation or other reorganization, without Licensor’s consent, upon notice to Licensor. Licensor shall not assign this Agreement without Licensee’s prior written consent, which shall not be unreasonably withheld. An assignee of either party, if authorized hereunder, shall have all of the rights and obligations of the assigning party set forth in this Agreement.
Licensor agrees to indemnify and hold harmless Licensee and its subsidiaries or affiliates under its control, and their directors, officers, employees and agents, against any and all losses, liabilities, judgments, awards and costs (including legal fees and expenses) arising out of or related to any claim that Licensee’s use or possession of the Software or Documentation, or the license granted hereunder, infringes or violates the copyright, trade secret or other proprietary right of any third party. Licensor shall defend and settle at its sole expense all suits or proceedings arising out of the foregoing, provided that Licensee gives Licensor prompt notice of any such claim of which it learns. No settlement which prevents Licensee from continuing to use the Software System as provided herein shall be made without Licensee’s prior written consent. In all events, Licensee shall have the right to participate in the defense of any such suit or proceeding through counsel of its own choosing.
The parties agree to submit any dispute under this License to binding arbitration in the following location County of San Diego, State of California, United States of America. under the rules of the American Arbitration Association.
- Attorney Fees:
If any legal action is necessary to enforce this License, the prevailing party shall be entitled to reasonable attorney fees, costs and expenses in addition to any other relief to which it may be entitled.
- Limited Liability:
Unless otherwise expressly stated herein, Licensor shall not be liable to Licensee for any consequential damages arising out of Licensor’s breach of this Agreement.
All notices required or permitted to be given by one party to the other under this Agreement shall be sufficient if sent by Registered mail, return receipt requested AND via Email to with a return receipt to the parties at the respective addresses set forth above or to such other address as the party to receive the notice has designated by notice to the other party.
- Governing Law:
This Agreement shall be governed by and construed under the laws of the State of California, United States of America.
- Consent to Jurisdiction, Venue and Service:
Licensor consents and agrees that all legal proceedings relating to the subject matter of this Agreement shall be maintained in courts sitting within the County of San Diego, State of California, United States of America and Licensor consents and agrees that jurisdiction and venue for such proceedings shall lie exclusively with such courts. Service of process in any such proceeding may be made by registered mail, return receipt requested AND email with read receipt, directed to the respective party at the address at which it is to receive notice.
If any provision of this Agreement is held invalid or otherwise unenforceable, the enforceability of the remaining provisions shall not be impaired thereby.
- No Waiver
The failure by any party to exercise any right provided for herein shall not be deemed a waiver of any right hereunder.
- Complete Agreement
This Agreement sets forth the entire understanding of the parties as to its subject matter and may not be modified except in a writing executed by both parties. IN WITNESS WHEREOF, the parties agree that this Agreement, will be effective upon registration of the software and acceptance of the license, with full knowledge of its content and significance and intending to be legally bound by the terms hereof.
This license agreement may be found on https://www.augmentalis.com/support/legal/end-user-license-agreement/