PLEASE READ THIS END USER LICENSE AGREEMENT ("LICENSE") CAREFULLY BEFORE USING BYTEBLOWER. BY USING BYTEBLOWER, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT USE BYTEBLOWER. IF YOU DO NOT AGREE TO THE TERMS OF THE LICENSE, YOU MAY RETURN THE BYTEBLOWER SOFTWARE AND THE ACCOMPANYING MANUALS, CONTAINERS AND HARDWARE ("PRODUCT MATERIALS") TO THE PLACE WHERE YOU OBTAINED IT.
RESTRICTIONS ON USE
Customer may not alter, modify, vary, or create derivative works based on the whole or any part of Software in any way whatsoever, nor permit any third party to alter, modify, vary, or create derivative works based on the whole or any part of Software; and Customer shall not make or permit to be made any translation, alteration, adaptation, enhancement, modification, update or addition to, nor decompile, reverse engineer or disassemble the Software without the prior written consent of Excentis.
When Software licenses are purchased as part of, in conjunction with, or intended to be used with Hardware, Customer may only use the Software with the Hardware. The Software may include license management components designed to administer usage rights and restrictions; Customer agrees not to circumvent or attempt to circumvent such technical means for the purpose of enabling usage rights above those purchased by Customer. Customer's use of the Software may be subject to further restrictions set forth in any applicable Quote. Any increase in use of the Software above and beyond applicable restrictions may subject Customer to payment of additional fees.
Software may utilize open source technology and technology from third party suppliers that may be included as a part of the Software, included in the same medium on which the Software is delivered or as a part of the download of Software received by Customer, or pre-loaded on Hardware (collectively the "Third Party Technology"). All Third Party Technology is identified in the Software Documentation or in a Quote and is subject to the third party supplier's license restrictions or the applicable open source license such as GNU Lesser General Public License, GNU General Public License, or similar agreement (an "Open Source License").
This Agreement does not modify or abridge any rights or obligations Customer may have with respect to open source technology included as part of the Software under an applicable Open Source License. However, to the extent that open source technology is incorporated into Software, Excentis obligations under Section 6 (Indemnity) below with respect to such open source technology shall apply to the extent such open source technology is used in conjunction with Software in accordance with this Agreement and with the terms of the Open Source License. Any use (or distribution) of open source technology separate and apart from use of the Software is governed by the relevant Open Source License.
MAINTENANCE AND TECHNICAL SUPPORT
Inconsideration of payment of the applicable maintenance and support fee, Customer shall be entitled to receive technical support services for the applicable Product for a period specified in the Quote for the maintenance and technical support. Technical support is more fully described on www.byteblower.com. The term "Software" as used in these Terms includes all updates, upgrades and enhancements delivered by Excentis to Customer pursuant to technical support services.
WARRANTY
The Software is not error-free. Excentis warrants however that, for a period of ninety (90) days following delivery (the "Software Warranty Period"), the Software, when installed and used in accordance with the Software Documentation, will operate and perform in all material respects in accordance with the Software Documentation ("Conform"). A minor discrepancy between the actual operation, functionality or performance of the Software and as described in the Software Documentation shall not be considered a failure to Conform. Customer's exclusive remedy and Excentis' sole liability under this warranty shall be for Excentis to attempt, through reasonable efforts, to correct any material failure of the Software to perform, operate or function as warranted, if such failure is reported to Excentis within the Software Warranty Period and Customer, at Excentis' request, provides Excentis with sufficient information (which may include access to Customer's computer system for use of Customer's copy of the Software by Excentis or its designated personnel) to reproduce the defect in question.
Excentis warrants that, for a period of one (1) year following delivery (the "Hardware Warranty Period"), the Hardware shall be in good working order and will perform, function and operate substantially to the relevant Product specifications. Hardware supplied may contain either new or refurbished parts. If refurbished, all components will be warranted as new. Customer's exclusive remedy and Excentis' sole liability under this warranty shall be for Excentis to provide during the Hardware Warranty Period, at no additional charge to Customer, the parts and labor necessary to restore the Hardware to good working order. Customer shall notify Excentis of the failure of any of the Hardware to perform in accordance with the applicable specifications, and thereafter, pursuant to Excentis' direction, arrange for the delivery of the damaged Hardware to Excentis or its designee for repair.
Customer acknowledges and agrees that the Hardware is intended for use solely with the Software and with other programs that are approved for installation by Excentis, and therefore the warranties in previous two paragraphs shall become void and of no further force and effect if: (i) any software or program other than the Software be installed on the Hardware unless such program is approved for such installation by Excentis or (ii) Customer integrates the Hardware or Software with any third party products other than those certified as compatible by Excentis.
The Software and Hardware are not fault-tolerant and are not designed, manufactured or intended for use for testing of on-line control equipment in hazardous environments requiring fail-safe performance, such as the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Software or Hardware could lead directly to death, personnel injury or severe physical or environmental damage ("High Risk Activities"). Accordingly, Excentis and its suppliers specifically disclaim any express or implied warranty of fitness for High Risk Activities and no license is granted to use the Software or Hardware for such activities.
OWNERSHIP
Except for the license rights granted hereunder, all right, title and interest in and to the Software and Software Documentation (as well as all test scripts and other similar items delivered by Excentis to Customer) shall be retained by Excentis and its suppliers.
Uponfull payment the hardware shall belong to the Customer and the Customer receive a software license grant under the terms and conditions as detailed in section "Software license grant" and Excentis shall retain all ownership rights in and to the Excentis Property. Excentis shall also retain the unlimited right to use and to sublicense to others the ideas, concepts, techniques or other expertise which it developed or employed in providing the Services or creating the deliverables, in any products and for any purposes (including providing services and developing deliverables for other customers) whatsoever, so long as in doing so Excentis does not disclose any Customer confidential information.
INDEMNITY
Excentis, at its own expense, shall indemnify the Customer and its officers, agents and employees from and against any action brought against Customer to the extent that such action is solely based on a claim that the unmodified Software, when used in accordance with these Terms, infringes any U.S. copyright or trade secret rights of any third party and Excentis shall pay all costs, settlements and damages finally awarded, provided: (a) Excentis shall have sole control of the defense and/or settlement of such claim or suit; (b) the Customer will notify Excentis promptly in writing of each such claim or suit and shall give Excentis all information known to the Customer relating thereto; and (c) the Customer will cooperate with any reasonable request of Excentis in the settlement or defense of any such claim or suit. The Customer shall be reimbursed for all reasonable expenses incurred in providing any cooperation requested by Excentis.
If all or any part of the Software is, or in the opinion of Excentis may become, the subject of any claim or suit for infringement of any third party rights, Excentis may, at its expense and discretion, do one of the following things: (a) procure for the Customer the right to use the Software or the affected part of the Software; (b) replace the Software or the affected part of the Software with other Software providing substantially similar functionality; (c) modify the Software or the affected part of the Software to make it non-infringing; or (d) if none of the foregoing remedies are, in the sole discretion of Excentis, commercially feasible, refund the aggregate payments paid by the Customer for the Software or the affected part of the Software less a reasonable amount for the prior use thereof by Customer (based on a five (5) year straight line life).
Excentis shall have no obligations under this Section to the extent that a claim is based upon: (a) the use of any prior version of the Software if such infringement would have been avoided by the use of the then-current version; (b) the combination, operation or use of the Software with software or data which was not provided by Excentis, if such infringement would have been avoided in the absence of such combination, operation or use; or (c) the use of the Software on or in connection with a computer system other than those set forth in the Software Documentation.
This Section states the entire liability of Excentis and the exclusive remedy of the Customer with respect to any alleged infringement of any third party rights.
LIMITATIONS OF WARRANTIES AND LIABILITY
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NO WARRANTY, WHETHER EXPRESS OR IMPLIED, IS MADE WITH RESPECT TO THE SOFTWARE, HARDWARE, SOFTWARE DOCUMENTATION OR SERVICES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, NEITHER EXCENTIS NOR CUSTOMER, NOR ANY OF THEIR RESPECTIVE PARENTS, SUBSIDIARIES OR LICENSORS, SHALL BELIABLE FOR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSS, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR GOODWILL, HOWEVER CAUSED, OR OTHERWISE BE LIABLE IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE AND WHETHER SUCH LOSS ARISES OUT OF OR IN CONNECTION WITH THE USE OF THE SOFTWARE, HARDWARE, SERVICES OR OTHERWISE UNDER THIS AGREEMENT. EXCEPT FOR (A) A CLAIM OF COPYRIGHT OR TRADE SECRET INFRINGEMENT, OR (B) A BREACH OF SECTIONS 1, 2 OR 9 (IN ALL CASES, FOR WHICH NO LIMIT APPLIES), THE MAXIMUM LIABILITY OF EXCENTIS AND CUSTOMER FOR CLAIMS ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT SHALL BE THE FEES PAID TO EXCENTIS FOR THE SOFTWARE, HARDWARE OR SERVICES GIVING RISE TO THE CLAIM.
TERM AND TERMINATION
Either Excentis or Customer may terminate a Quote, Order or SOW upon the other party's material breach of these Terms, such Quote, SOW or such Order, provided that (a) the non-breaching party shall first have sent written notice to the breaching party describing the breach in reasonable detail and demanding that it be cured, and (b) the breaching party does not cure the breach within thirty (30) days following its receipt of such notice.
On termination, all licenses granted to the Customer under the specific Quote, Order or SOW shall terminate, the Customer shall cease to use such Software (and Hardware, if applicable), shall return the product to Excentis free of cost, taxes and import duties for Excentis and shall certify in writing to Excentis that all copies (in any form or media) of the Software have been destroyed or returned to Excentis.
Termination shall not relieve the Customer from making payments for Software, Hardware or Services delivered prior to termination and shall not prevent either party from pursuing any other available remedies.
CONFIDENTIALITY
Each party may have access to information that is confidential to the other party ("Confidential Information"). Confidential Information shall include all written or oral information that is (i) clearly identified in writing at the time of disclosure as confidential, or (ii) that a reasonable person at the time of disclosure reasonably would assume, under the circumstances, to be Confidential Information. Confidential Information shall include, without limitation, software programs, technical data, methodologies, know-how, processes, reports and report formats. Confidential Information also includes all information received from third parties that either party is obligated to treat as confidential. The Software and Software Documentation, as well as Excentis' price lists, this Quote and the Order, and any Statements of Work, shall at all times be considered Confidential Information of Excentis whether or not identified as such orally or in writing.
A party's Confidential Information shall not include information that (i) is or becomes a part of the public domain through no act or omission of the other party; (ii) was in the other party's lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (iii) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (iv) is independently developed by the other party without use of or reference to the other party's Confidential Information. In addition, nothing in this Section will be construed to prohibit disclosure of Confidential Information to the extent that such disclosure is required to by law or valid order of a court or other governmental authority; provided, however, that the responding party shall first have given notice to the other party and the responding party shall have made a reasonable effort (at the other party's cost and expense) to restrict the scope of disclosure to the greatest extent reasonably possible and to obtain a protective order requiring that the Confidential Information so disclosed be used only for the purposes for which the order was issued.
The parties agree, unless required by law, not to make each other's Confidential Information available in any form to any third party or to use each other's Confidential Information for any purpose other than in the performance of these Terms. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in breach of these Terms. The parties agree to hold each other's Confidential Information in confidence during the term of these Terms and for a period of three (3) years thereafter.
Each party acknowledges and agrees that, due to the unique nature of Confidential Information, there can be no adequate remedy at law for breach of this Section and that such breach would cause irreparable harm to the non-breaching party; therefore, the non-breaching party shall be entitled to seek immediate injunctive relief, in addition to whatever remedies it might have at law or under these Terms.
Unless otherwise expressly agreed in writing by Excentis, Customer shall not provide Excentis access to any personally identifiable information, whether of Customer or its customers. All data provided to Excentis is presumed to be non-production data.
NOTICES
All notices shall be in writing and given by personal delivery, certified mail, return receipt requested, or by commercial overnight courier for next business day delivery, to the addresses first listed above. Notices to Excentis shall be sent to the attention of the Chief Executive Officer; notices to Customer shall be sent to the address set forth in the applicable Order. Notice shall be deemed given three (3) business day after mailing, or the next business day after delivery to such overnight courier (unless the return receipt or the courier's records evidence a later delivery).
EXPORT CONTROLS
12.1 No Software or underlying information or technology may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, Sudan, North Korea,Iran, Syria or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders. Customer represents and warrants that it is not located in, under the control of, or a national or resident of any such country or on any such list. 12.2 In addition, if the licensed Software is identified as a not-for-export product, then, unless Customer has an exemption from the United States Department of State, the following applies: EXCEPT FOR EXPORT TO CANADA FOR USE IN CANADA BY CANADIAN CITIZENS, THE SOFTWARE AND ANY UNDERLYING TECHNOLOGY MAY NOT BE EXPORTED OUTSIDE THE UNITED STATES OR TO ANY FOREIGN ENTITY OR "FOREIGN PERSON" AS DEFINED BY U.S. GOVERNMENT REGULATIONS, INCLUDING WITHOUT LIMITATION, ANYONE WHO IS NOT A CITIZEN, NATIONAL OR LAWFUL PERMANENT RESIDENT OF THE UNITED STATES. BY DOWNLOADING OR USING THE SOFTWARE, YOU ARE AGREEING TO THE FOREGOING AND YOU ARE WARRANTING THAT YOU ARE NOT A "FOREIGN PERSON" OR UNDER THE CONTROL OF A "FOREIGN PERSON".
GOVERNMENT END USERS
The Software and associated documentation are "commercial computer software" and "commercial computer software documentation", and, as such, the rights of U.S. Government End Users with respect to the Software and documentation are as set forth in this License Agreement, in accordance with FAR 12.212 or DFARS 227.7202-1, as applicable.
MISCELLANEOUS
These Terms shall be governed by and construed in accordance with law of the Kingdom of Belgium without regard to conflicts of laws provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods. The parties consent to the exclusive jurisdiction and venue for actions related to the subject matter hereof in the courts located in Ghent, Belgium. The parties agree that process may be served in the manner provided herein forgiving of notices or otherwise as allowed by Belgian law.
If any provision of these Terms is held to be invalid or unenforceable, the parties shall substitute for the affected provision a valid or enforceable provision which approximates the intent and economic effect of the affected provision. The failure or delay by any party to enforce any of these Terms shall not be deemed a waiver of such term. These Terms shall be binding upon and inure to the benefit of the parties, their successors and permitted assigns. Customer may not assign this Agreement without the express written consent of Excentis; Excentis may assign this Agreement to any purchaser of all or a substantial portion of the business to which this Agreement relates.
In addition to those provisions which specifically provide for survival beyond expiration or termination, all provisions, if any, regarding payment, warranty, liability and limits thereon, and confidentiality and/or protection of proprietary rights and trade secrets shall survive indefinitely or until the expiration of any time period specified elsewhere in these Terms with respect to the provision in question.
Customer is responsible for payment of all shipping, insurance, taxes, tariffs, customs duties, or any other charges resulting from or imposed upon these Terms, except taxes based on Excentis' net income. Customer agrees that each payment under this Agreement shall be free of all withholdings or deductions of taxes imposed by any jurisdiction of any nature whatsoever, and if any such withholding or deduction is required, Customer shall pay an additional amount such that, after the deduction of all amounts required to be withheld or deducted, the net amount of Product and Service fees or such other payment actually received by Excentis will equal (on an after-tax basis) the amount of Product and Service fees or any such other amount that would be due absent of such withholding. Excentis agrees to provide as soon as possible all necessary documentation according to applicable legislation, in order to ensure that any withholding tax will be avoided or sufficiently lowered in accordance with foreign tax treaties. To the extent caused by fire, flood, natural disasters, acts of war or terror, electrical power or telecommunications service delay, outages or disruption, governmental action or other force majeure, no delay, failure or default in performance of any obligation by either party, excepting all obligations to make payments underthese Terms, shall constitute a breach of these Terms.
OTHER TERMS
Other specific terms and conditions may be included in these Terms if included as an "Appendix" hereto.
Should you have any questions concerning this Agreement, write to Excentis nv, Gildestraat 8, 9000 Ghent, Belgium
ByteBlower is a registered trademark of Excentis nv.
All other trademarks or registered trademarks are the property of their respective holders.