1. PURPOSE/LICENSE
BY USING THIS SOFTWARE, YOU (LICENSEE) AGREE TO ACCEPT THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THESE TERMS, YOU SHOULD NOT INSTALL OR UNINSTALL THE SOFTWARE IMMEDIATELY. Rheonics, Inc. (“Rheonics”, Licensor) provides this computer program and related materials for your use with Rheonics Products and Services ONLY. You assume responsibility for the acquisition of a machine and associated equipment compatible with the program, and for installation, use, and results obtained from the program.
Rheonics grants to you a non-transferable, non-exclusive license to: (a) use all fully paid up licensed programs provided to you to run on a single machine; (b) copy the program for backup or modification for the sole purpose of installing and configuring the program on a single machine. A single machine may consist of a single physical machine with a single operating system or a single virtual machine running in a host computer. You must reproduce and include the copyright notice on any copy transferred to another entity that has rightful access to use the software with Rheonics products and services. YOU MAY NOT REVERSE ENGINEER, USE, COPY OR MODIFY ANY PROGRAM OR RELATED MATERIALS OR ANY COPY, IN WHOLE OR IN PART, EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS LICENSE. IF YOU TRANSFER POSSESSION OF ANY COPY OF THE PROGRAM OR RELATED MATERIALS TO ANOTHER PARTY, YOUR LICENSE IS AUTOMATICALLY TERMINATED. Unless otherwise expressly permitted, you may not use the program to provide subscription services, training services, consulting services, service bureau, time sharing, or rental use to third parties. No license, express or implied, is granted under any intellectual property directly or indirectly owned by Rheonics which does not specifically read on the program as provided hereunder, nor shall any license, except the license specifically granted herein, be implied in law, implied in equity, or exist under the doctrine of patent exhaustion.
2. TITLE
Title to and ownership of the program and related materials shall at all times remain with Rheonics or its licensors. Your right to use the same is at all times subject to the terms and condition of this Agreement. Rheonics may, from time to time, revise or update the program and/or related materials and, in so doing, incurs no obligation to furnish such revisions or updates to you.
Licensor warrants that it has the right to grant temporary use by Licensee of the Software System. Licensor makes no other warranties, express or implied, including but not limited to implied warranties of merchantability and fitness for a particular purpose.
3. TERM
You may terminate this license at any time by destroying the program and the related materials together with all copies in any form. This license will also terminate upon conditions set forth elsewhere in this Agreement or if you fail to comply with any term or condition of this Agreement. You agree upon such termination to destroy the program and the related materials together with all copies in any form.
4. CONFIDENTIALITY
4.1 Licensee Confidential Information
Licensee acknowledges that RHEONICS SOFTWARES contains proprietary and confidential information of Licensor, which Licensor considers to constitute valuable trade secrets. In addition, Licensee may also be provided with or be exposed to confidential information of third parties with which Licensor conducts business. The confidential information of Licensor and third parties is called collectively “Confidential Information.” In recognition of the foregoing, Licensee covenants and agrees:
a. That Licensee will keep and maintain all Confidential Information in strict confidence, using such degree of care as is appropriate to avoid unauthorized use or disclosure;
b. That Licensee will not, directly or indirectly, disclose any Confidential Information to any third party, except with Licensor ‘s prior written consent;
c. That Licensee will not make use of any Confidential Information for its own purposes, such as creation of a competitive product; or for the benefit of anyone or any other entity other than Licensor;
d. That (i) on termination of discussions with Licensor, or (ii) if Licensor is engaged to perform services for Licensee, upon completion of the engagement, or (iii) at any time Licensor may so request, Licensee will deliver promptly to Licensor or, at Licensor ‘s option, will destroy all memoranda, notes, records, reports, media and other documents and materials (and all copies thereof) regarding or including any Confidential Information which Licensee may then possess or have under its control; and
e. That Licensee will take no action with respect to the Confidential Information that is inconsistent with its confidential and proprietary nature.
Licensee shall be permitted to disclose the Confidential Information only as follows:
a. To its employees and agents (“Employees”) having a need to know such information in connection with this Software License Agreement (and in any event Licensee shall be responsible for all Employees’ compliance with the terms of this Software License Agreement); and
b. If disclosure is required by law, but in such event, Licensee shall notify Licensor in writing in advance of such disclosure and provide Licensor with copies of any related information so that Licensor may take appropriate action to protect the Confidential Information.
4.2 Licensor Confidential Information
For purposes of this Software License Agreement, Confidential Information shall include, but not be limited to, all business information of Licensor, including the following:
a. All information and data related to the Software and Documentation;
b. All information relating to Licensor ‘s planned or existing computer systems and systems architecture, including computer hardware, computer software, source code, object code, documentation, methods of processing and operational methods;
c. All information regarding Licensor ‘s product strategies, customer lists, sales, profits, organizational restructuring, new business initiatives and financial information; and
d. Confidential information of third parties with whom Licensor conducts business. Notwithstanding the foregoing, Confidential Information shall not include information that (i) is or becomes generally known to the public not as a result of a disclosure by Licensee, (ii) is rightfully in the possession of Licensee prior to disclosure by Licensor or (iii) is received by Licensee in good faith and without restriction from a third party not under a confidentiality obligation to Licensor and having the right to make such disclosure. Licensee acknowledges that the disclosure of Confidential Information may cause irreparable injury to Licensor and damages which may be difficult to ascertain. Licensor shall, therefore, be entitled to injunctive relief upon a disclosure or threatened disclosure of any Confidential Information, without a requirement that Licensor prove irreparable harm, in addition to such other remedies as may be available at law or in equity. Without limitation of the foregoing, Licensee shall advise Licensor immediately in the event that it learns or has reason to believe that any person or entity which has had access to Confidential Information has violated or intends to violate the terms of this Software License Agreement.
In addition, Licensee shall not release the results of any evaluation or benchmark of RHEONICS SOFTWARE to any third party without the express prior written consent of Licensor.
5. LIMITED WARRANTY
Rheonics warrants the media on which the program is furnished to be free from defects in materials and workmanship under normal use for a period of ninety (90) days from the date of delivery to you as evidenced by a copy of your invoice. However, Rheonics does not warrant that the functions contained in the program will meet your requirements or that the operation of the program will be uninterrupted or error free. THE PROGRAM AND RELATED MATERIALS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PROGRAM IS WITH YOU. SHOULD THE PROGRAM PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION.
Licensor shall have no liability to Licensee if the infringement results from:
a. Use of RHEONICS SOFTWARE in combination with software or instruments not provided by Licensor
b. Modifications to the RHEONICS SOFTWARE not made by Licensor, or
c. Use of other than a current release of Rheonics Software, if such infringement would have been avoided by use of a current Licensor release. The foregoing states the entire liability of Licensor with respect to infringement of any patents, copyrights, trade secrets or other proprietary rights by Rheonics softwares or any part thereof.
6. LIMITATION OF REMEDIES
Rheonics’ entire liability and your exclusive remedy shall be: (1) the replacement of any media not meeting Rheonics’ “Limited Warranty” and which is returned with a copy of your invoice to Rheonics., or (2) if Rheonics is unable to deliver a replacement media which is free of defects in materials or workmanship, you may terminate this Agreement by returning the program. IN NO EVENT WILL Rheonics BE LIABLE TO YOU FOR ANY DAMAGES ARISING OUT OF ANY CAUSES WHATSOEVER (WHETHER SUCH CAUSES BE BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT, PATENT INFRINGEMENT, OR OTHERWISE), INCLUDING ANY LOST PROFITS, LOST SAVINGS, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE SUCH PROGRAM EVEN IF Rheonics HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR OF ANY CLAIM BY ANY OTHER PARTY.
7. TERMINATION
Licensor may terminate this Software License Agreement at any time with or without cause by giving written notice of termination to Licensee, effective on Licensee’s receipt thereof. Anything to the contrary herein notwithstanding, immediately upon such termination Licensee shall return to Licensor the Software, including all related documentation and all copies thereof.
8. WAIVER
The waiver or failure of Licensor to exercise any right provided for herein shall not be deemed a waiver of any further right hereunder. The rights and remedies of Licensor set forth in this Agreement are in addition to any rights or remedies Licensor may otherwise have at law or in equity. If any provision of this Software License Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby.
9. GOVERNING LAW AND JURISDICTION
This Software License Agreement and performance hereunder shall be governed by the laws of Switzerland without regard to conflicts of laws. Licensee and Licensor hereby agree that the sole jurisdiction and venue for any litigation arising from or relating to this Software License Agreement shall be an appropriate federal or state court located in Kanton of Zurich.
10. SURVIVAL
All provisions hereof relating to proprietary rights, confidentiality and non-disclosure, indemnification and limitation of liability shall survive the completion of the Services or any earlier termination of this Software License Agreement.
11. GENERAL
You may not sublicense, assign, or transfer the license or the program and related materials without the prior written consent of Rheonics. Any attempt otherwise to sublicense, assign or transfer any of the rights, duties, or obligations hereunder without such consent is void.
12. ENTIRE AGREEMENT
To the extent that a third party owns and has licensed to Rheonics any portion of the program, such third-party owner shall be a beneficiary of this Agreement and shall have the right to enforce its rights under this Agreement independently of Rheonics. Should you have any question concerning this Agreement, please contact your Rheonics representative.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN US RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, UNLESS THE SITE AT WHICH THE PROGRAM IS TO BE USED IS COVERED BY A MASTER LICENSE AGREEMENT BETWEEN YOU AND Rheonics, IN WHICH CASE THE PROGRAMS AND YOUR USE OF THEM SHALL BE EXCLUSIVELY GOVERNED BY THAT MASTER LICENSE AGREEMENT. YOU AGREE THAT Rheonics MAY AUDIT YOUR FACILITY TO CONFIRM COMPLIANCE WITH THE FOREGOING PROVISIONS.