Software license terms and conditions
BY INSTALLING THE LICENSED SOFTWARE THAT YOU HAVE SELECTED TO LICENSE FROM MICRODEA INC. ("MICRODEA"), YOU ARE AGREEING FOR YOURSELF OR ON BEHALF OF THE ENTITY LICENSING THE LICENSED SOFTWARE AND DOCUMENTATION (DEFINED BELOW) ("CUSTOMER") THAT CUSTOMER WILL BE BOUND BY THE TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE ("AGREEMENT") AND THAT YOU HAVE THE AUTHORITY TO BIND THE ENTITY LICENSING THE LICENSED SOFTWARE AND DOCUMENTATION. IF CUSTOMER DOES NOT AGREE TO ALL THE TERMS OF THIS AGREEMENT, DO NOT INSTALL THE LICENSED SOFTWARE. THE “EFFECTIVE DATE” FOR THIS AGREEMENT SHALL BE THE DAY THE SOFTWARE AUTHORIZATION CODE LICENSE KEY WAS PROVIDED.
1. DEFINITIONS.
"Authorization Code" means, collectively, the specific code and authorization key for each copy of the Licensed Software issued by MICRODEA to Customer
"Authorized User" means an employee, contractor, registered student, research assistant, partner or agent of Customer authorized by Customer to use the Licensed Software.
"Authorized Reseller" means an authorized distributor, authorized reseller, or dealer of the Licensed Software.
"Concurrent Authorized Users" means Authorized Users who use the software at the same time in accordance with the terms of this Agreement.
"Confidential Information" has the meaning set forth in Section 7 of this Agreement.
"Customer Enhancements" means enhancements to Synergize Special Files in which the copyright is owned by Customer and which are derivative works of the MICRODEA Enhancements.
"Documentation" means the user's manuals and supporting documentation, which may be in printed or electronic form, provided with the Licensed Software under this Agreement.
"License Fee" means the applicable fee for which Customer licenses the Licensed Software.
"License Period" means a perpetual term unless (a) terminated as provided below or (b) a specific fixed term is otherwise set forth in the License and Authorization Key document.
"Licensed Software" means the specific software licensed by Customer under the terms of this Agreement (as specified in the License and Authorization Key document issued to Customer), including any Updates and Upgrades thereto.
"Serial Number" means a set of unique characters associated with a specific copy of the Licensed Software issued by MICRODEA to Customer (based on the specific configuration and release of the Licensed Software and the license type, license term, number of Concurrent Authorized Users, network, and/or operating system designated by Customer during the ordering process).
"MICRODEA Enhancements" means Synergize Special Files or enhancements to Synergize Special Files in which the copyright is owned by MICRODEA or distributed by MICRODEA from time to time.
"Synergize Special Files" are all files that are installed by the Application, that are either developed by Microdea or licensed by Microdea.
"Technical Support Terms" means the terms governing MICRODEA's then-current standard technical support services for the Licensed Software.
"Third-Party Software" means certain software supplied by third parties that MICRODEA provides access to as part of the Licensed Software.
"Update" means a revision to the Licensed Software or patch that improves the functionality of the Licensed Software, and may contain new features or enhancements, which is not an Upgrade.
"Upgrade" means a subsequent version of the Licensed Software that MICRODEA designates as a new release and makes generally commercially available.
2. License and Authorization Key document, LICENSE GRANTS, THIRD-PARTY SOFTWARE, RESTRICTIONS AND OWNERSHIP.
2.1 License and Authorization Key Document. MICRODEA shall issue Customer a License and Authorization Key document via e-mail, fax, postal mail, or courier (e.g., FedEx, UPS, DHL) that sets forth the specific Licensed Software and the specific number of Concurrent or Named Authorized Users and Serial Number and Authorization Code associated with the Licensed Software (the "License and Authorization Key document"). The License and Authorization Key document is hereby incorporated by reference into this Agreement.
2.2 Licences Subject to the terms and conditions of this Agreement, MICRODEA grants to Customer a non-assignable, non-transferable license, without the right to sublicense, to use the Licensed Software, in object-code form only, within a local area network solely for Customer's internal business, research, or educational purposes. Customer is authorized by MICRODEA to install the Licensed Software Server components on as many servers that the client has purchased licenses for, and may install the Licenses Software Client components on an unlimited number of machines as long as the specific number of Concurrent or Named Authorized Users for which Customer has paid the applicable License Fee is not exceeded.
Customer is permitted to make the Documentation available via a local area network to Authorized Users. Except as otherwise expressly provided herein, Customer may not reproduce or distribute the Documentation in any manner, whether physically or electronically. Customer shall not, nor permit any third party to, including, without limitation, any Authorized User, to make the Documentation publically available or to publish such on any publicly accessible web site.
2.3 Third-Party Software. Where Third-Party Software is included in the application it is subject to various other terms and conditions imposed by the licensors of such Third-Party Software. Third-Party Software is subject to, and governed by, the respective Third-Party Software licenses, except that this Section 2.3 (Third-Party Software) and Section 4.2 (No Warranty) and Section 8 (Limitation on Liability) of this Agreement also govern Customer's use of the Third-Party Software. Customer agrees to comply with the terms and conditions contained in all such Third-Party Software licenses.
2.4 Serial Number and Authorization Code. MICRODEA shall issue to Customer a Serial Number and Authorization Code in the License and Authorization Key document for each copy of the Licensed Software components. Customer is entirely responsible for any and all activities that occur under Customer's account and all charges incurred from use of the copy of the Licensed Software assigned by Serial Number and Authorization Code to Customer (e.g., maintenance, support, or license or subscription fee charges). The Licensed Software shall be deemed accepted upon MICRODEA's delivery of the Authorization Code to Customer by MICRODEA or an Authorized Reseller.
2.5 License to MICRODEA Enhancements. Subject to the terms and conditions of this Agreement, MICRODEA grants to Customer a non-assignable, non-transferable, royalty-free license, without the right to sublicense, to use the MICRODEA Enhancements solely with the Software for Customer's internal business, research, or educational purposes.
2.6 License to Customer Enhancements. If Customer submits Customer Enhancements to MICRODEA or makes Customer Enhancements generally available for modification, use or distribution without charge by third parties, Customer grants to MICRODEA a perpetual, irrevocable, transferable, royalty-free license to modify, reproduce, and distribute the Customer Enhancements, with the right to sublicense through multiple tiers of distribution. THE CUSTOMER ENHANCEMENTS ARE PROVIDED TO MICRODEA ON AN "AS IS" AND "WHERE IS" BASIS and without warranty of any type or kind. CUSTOMER HEREBY EXPRESSLY DISCLAIMS AND EXCLUDES ALL WARRANTIES AND CONDITIONS, whether statutory, express, implied OR OTHERWISE, WITH RESPECT TO THE CUSTOMER ENHANCEMENTS, including, but not limited to, any implied warranty of, merchantability, fitness for a particular purpose AND non-infringement of third party rights.
2.7 Restrictions. Customer shall not, nor permit any person (including any Authorized User) to: (i) reverse engineer, reverse compile, decrypt, disassemble, or otherwise attempt to derive the source code of the Licensed Software (except to the extent that this restriction is expressly prohibited by law); (ii) modify, translate, or create derivative works of the Licensed Software; (iii) sublicense, resell, rent, lease, distribute, market, commercialize, or otherwise transfer rights or usage to the Licensed Software (except as expressly permitted under this Agreement); (iv) remove, modify, or obscure any copyright notices or other proprietary notices or legends appearing on or in the Licensed Software, or any portion thereof; (v) transfer, use, or export the Licensed Software in violation of any applicable laws, rules, or regulations of any government or governmental agency; (vi) use the Licensed Software or any system services accessed through the Licensed Software to disrupt, disable, or otherwise harm the operations, software, hardware, equipment, and/or systems of a business, institution, or other entity, including, without limitation, exposing the business, institution, or other entity to any computer virus, trojan horse, or other harmful, disruptive, or unauthorized component; or (vii) embed the Licensed Software in any third-party applications, unless otherwise authorized in writing in advance by an officer of MICRODEA.
2.8 Ownership. MICRODEA shall retain all right, title, and interest, including all intellectual property rights, in and to the Licensed Software, Enhancements, customization and Documentation provided to Customer under this Agreement. Customer will not remove, alter, or destroy any form of copyright notice, proprietary markings, or confidential legends placed upon or contained within the Licensed Software, MICRODEA Enhancements or Documentation, or any component thereof.
3. TECHNICAL SUPPORT AND UPGRADES AND UPDATES.
3.1 Technical Support. MICRODEA agrees to provide Customer and its Concurrent Authorized Users with technical support services in accordance with MICRODEA's Technical Support Terms, which are hereby incorporated by reference into this Agreement. MICRODEA reserves the right to make changes to the technical support services offered by MICRODEA and change the Technical Support Terms at any time, and MICRODEA will post notice of the changes and the updated Technical Support Terms on the MICRODEA web site. Customer's continued use of the technical support services after such changes have been posted means that Customer agrees to the new Technical Support Terms, even if Customer has not reviewed the changes.
3.2 Updates and Upgrades. To receive and use an Upgrade, Customer must have valid Support and Upgrade assurance coverage in effect or pay the applicable fees for that Upgrade and agree to MICRODEA's standard terms and conditions governing the use of that Upgrade. If no such standard terms and conditions are stated by MICRODEA, the terms of this Agreement shall apply, and the Upgrade shall be deemed Licensed Software. Customer shall not continue to use the prior version of the Licensed Software, since it has now been replaced by the Updated or Upgraded version, even where such upgrade or update is performed on a new computer. Technical support services are provided only for the Authorized Users of the then-current version of the Licensed Software.
4. Limited warranty; warranty disclaimer.
4.1 Limited Media Warranty. For thirty (30) days from the date of purchase, MICRODEA warrants that the media on which the Licensed Software, MICRODEA Enhancements and Documentation is furnished shall be free from defects in material and faulty workmanship. Customer may return for replacement, without charge, any media that fails to meet this limited media warranty to MICRODEA or the dealer from whom the Licensed Software (and MICRODEA Enhancements) was purchased, as applicable, within the 30-day period. MICRODEA or the applicable dealer will not be responsible for replacing any media that contains defects due to Customer's misuse. The foregoing is Customer's sole remedy, and MICRODEA's sole obligation, with respect to a breach of the limited media warranty.
4.2 No Warranty. EXCEPT FOR THE LIMITED WARRANTY EXPRESSLY SET FORTH IN SECTION 4.1 ABOVE, THE LICENSED SOFTWARE, DOCUMENTATION, AND SUPPORT SERVICES ARE PROVIDED TO CUSTOMER ON AN "AS IS" AND "WHERE IS" BASIS and without warranty of any type or kind. MICRODEA HEREBY EXPRESSLY DISCLAIMS AND EXCLUDES ALL WARRANTIES AND CONDITIONS, whether statutory, express, implied, OR OTHERWISE, WITH RESPECT TO THE LICENSED SOFTWARE AND SUPPORT SERVICES, including, but not limited to, any implied warranty of, merchantability, fitness for a particular purpose, AND non-infringement of third-party rights.
5. TERM AND TERMINATION.
5.1 Term. Except for Customers with a fixed-term License Period, this Agreement shall commence on the Effective Date and shall continue in effect until terminated as set forth below. If the License Period is for a fixed term, this Agreement will commence on the Effective Date and shall continue until the earlier to occur of the expiration of the License Period or the termination of this Agreement as set forth below. In the case of additional Authorized Users who are authorized and added, or new modules or enhancements provided after the initial License Fee payment, the term of their usage of the Licensed Software shall be coterminous with the preexisting then-current term. If Customer purchases an Upgrade, the term of the Agreement shall continue in effect for the specific term set forth in the new License and Authorization Key document issued for the Upgrade.
5.2 Termination. Customer may terminate this Agreement at any time upon thirty (30) days' prior written notice to MICRODEA. MICRODEA may terminate this Agreement immediately without notice if Customer breaches any term of this Agreement, including, without limitation, breaching the scope of the license granted or confidentiality obligations under this Agreement.
5.3 Effect of Expiration or Termination. Upon expiration or termination of this Agreement, (i) the rights and licenses granted to Customer pursuant to this Agreement shall automatically and immediately terminate and (ii) Customer shall immediately cease using the Licensed Software. In addition, for a fixed-term License Period, upon expiration of the License Period, the Authorization Code will expire and the Licensed Software will cease to function. Sections 2.3, 2.5, 2.6, 4.2, 5.3, 7, 8, 9, and 10 of this Agreement shall survive any expiration or termination of this Agreement.
6. FEES AND PAYMENT.
6.1 Fees and Payment Terms. Customer licenses the Licensed Software from MICRODEA. This Agreement is between Customer and MICRODEA solely. The applicable License Fee is specified on the MICRODEA web site or in the specific price proposal provided by MICRODEA or an Authorized Reseller. All fees paid to MICRODEA are non-refundable. MICRODEA may terminate this Agreement and/or invalidate Customer's Serial Code and/or Authorization Code if the billing or contact information is false, fraudulent, or invalid. Customer will pay all taxes, including sales, use, personal property, value-added, excise, customs fees, import duties, stamp duties, and any other similar taxes and duties, including penalties and interest, imposed by the legal jurisdiction in which the Customer business operates.
6.2 Additional software purchases. During the License Period, Customer shall pay to MICRODEA or the specific Authorized Reseller the then-current rate for any licenses for additional modules, customization or user licenses. This fee shall be charged or invoiced to Customer on the date such additional Concurrent Authorized Users are added to Customer's account.
6.3 Concurrent Authorized User Accounting. Customer shall maintain business practices and records necessary to manage the number of Authorized Users and compliance with the terms of this Agreement. If MICRODEA determines that Customer has more Concurrent Authorized Users than Customer has paid for, Customer shall immediately pay MICRODEA the applicable additional fees.
7. CONFIDENTIALITY.
Customer and MICRODEA agree to maintain the confidentiality of any confidential or proprietary information of one party (the "disclosing party") received by the other party (the "receiving party") during, or prior to entering into, this Agreement that the receiving party should know is considered confidential or proprietary by the disclosing party based on the circumstances surrounding the disclosure, including, without limitation, non-public technical and business information ("Confidential Information"). The Licensed Software is copyrighted and shall be deemed MICRODEA's Confidential Information. The Documentation is copyrighted material of MICRODEA. This section shall not apply to any information that is or becomes publicly available through no breach of this Agreement by the receiving party or is independently developed by the receiving party without access to or use of the Confidential Information of the disclosing party. The foregoing confidentiality obligations will not restrict either party from disclosing Confidential Information of the other party pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to enable the other party to seek a protective order or otherwise limit such disclosure. The receiving party of any Confidential Information of the disclosing party agrees not to use the disclosing party's Confidential Information for any purpose except as necessary to fulfill its obligations and exercise its rights under this Agreement. The receiving party shall protect the secrecy of and avoid disclosure and unauthorized use of the disclosing party's Confidential Information to the same degree that it takes to protect its own confidential information of similar nature (but in no event less than reasonable care).
8. LIMITATION OF LIABILITY.
8.1 Consequential Damages Waiver. IN NO EVENT SHALL MICRODEA, ITS EMPLOYEES or AGENTS HAVE ANY LIABILITY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF ANY REPRESENTATIVE OF MICRODEA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.
8.2 Limitation of Liability. IN NO EVENT SHALL MICRODEA'S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED: (I) IF THE LICENSED SOFTWARE IS LICENSED FROM MICRODEA DIRECTLY, THE LICENSE FEES PAID BY CUSTOMER TO MICRODEA FOR THE LICENSED SOFTWARE, OR (II) IF THE LICENSED SOFTWARE IS LICENSED THROUGH AN AUTHORIZED RESELLER, THE LICENSE FEES PAID BY CUSTOMER TO THE APPLICABLE AUTHORIZED RESELLER, AS APPLICABLE. NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.
9. U.S. Government End Users.
The Licensed Software under this Agreement is "commercial computer software" as that term is described in DFAR 252.227-7014(a)(1). If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms and this Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 12.111(Technical Data) of the Federal Acquisition Regulations ("FAR") and its successors. If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202 of the DOD FAR Supplement and its successors.
10. GENERAL.
Except as expressly provided herein, Customer may not assign or transfer any of its rights under this Agreement (including its licenses with respect to the Licensed Software and Documentation) without the prior written consent of MICRODEA. This Agreement will be governed by and construed in accordance with the laws of the Province of Ontario and the federal Canadian laws applicable therein, and Customer and MICRODEA agree to submit to the personal and exclusive jurisdiction of the courts located in Toronto, Ontario, Canada. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. If any provision of this Agreement is found void and unenforceable, it will be replaced to the extent possible by MICRODEA with a provision that comes closest to the meaning of the original provision. This Agreement and the documents referenced in this Agreement, constitute the entire agreement between Customer and MICRODEA relating to its subject matter and all terms herein and supersedes all prior or contemporaneous agreements or understandings. This Agreement may be modified or changed only in writing signed by authorized representatives of Customer and MICRODEA. Notices hereunder shall be in writing and addressed to Customer at the address provided when purchasing this license or, in the case of MICRODEA, when addressed to MICRODEA Inc., Attn: CEO, 15 Wertheim Court, Suite 301, Richmond Hill, Ontario L4B3H7 Canada.