END USER LICENSE AGREEMENT
PLEASE SCROLL DOWN AND READ THIS ENTIRE END-USER LICENSE AGREEMENT (this "Agreement"). This Agreement is a legal agreement between you, either an individual or a legal entity ("You") and POLYSYNC TECHNOLOGIES, INC., a Delaware Corporation ("PolySync") that sets forth the terms and conditions governing Your use of the Software and the Documentation.
BY CLICKING THE ACCEPT BUTTON BELOW, OR BY DOWNLOADING, INSTALLING OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN DO NOT CLICK THE ACCEPT BUTTON, INSTALL, DOWNLOAD, OR USE THE SOFTWARE. If the License to the Software is purchased by an entity or the Software is used or evaluated for the benefit of an entity, then these terms are agreed to on behalf of such entity, and the individual executing these terms hereby represents to PolySync that such individual is authorized to accept these terms on behalf of such entity. Otherwise these terms are agreed to by an individual.
1. Software, Licenses and Documentation.
(a) Software and Licenses. This Agreement applies to software programs ("Software") which You have licensed from PolySync or PolySync"s authorized reseller ("Authorized Reseller"). The invoice issued by PolySync or such Authorized Reseller ("Invoice") will specify the number of licenses purchased by You (each such license a, "License") and the name and version of the Software licensed thereunder. Software includes any Updates PolySync may make available to You, and such Updates will be subject to this Agreement. Unless otherwise specified in the Invoice, each License corresponds to a single, specific computing workstation identified at the time of initial installation ("Site").
(b) Documentation. You may be provided with electronic or physical documentation concerning the Software, which provides relevant information regarding the Software"s use and features ("Documentation").
2. Grant of License. Subject to the terms and conditions of this Agreement and payment of all applicable fees, PolySync hereby grants to You a nonexclusive, nontrans_ferable (except as set forth in Sections 12 and 17) license during the applicable period of the License, as set forth herein or in the applicable Invoice (the "License Term") to (a) use the Software solely (i) for Your internal business purposes; (ii) at the Site(s); and (iii) for such number of Licenses, in each case of (i)-(iii) as are purchased by You and identified in the applicable Invoice and (b) use the Documentation in connection with the foregoing permitted use of the Software. Irrespective of the use of the term "sale", "sell" or the like, the Software and Documentation are licensed only.
3. Evaluation Software
(a) Section Applicability. This Section 3 applies only if the Software You have been licensed is on an evaluation or other temporary basis, or You have otherwise rightfully obtained the Software from PolySync at no cost ("Evaluation Software"). If this Section 3 applies to You, and a provision in this Section 3 conflicts with any other provision of this Agreement, then the provision in this Section 3 shall govern in connection with Your use of Evaluation Software.
(b) Activation. Your license term for the Evaluation Software (the "Evaluation Term") is fourteen (14) days from delivery unless otherwise authorized in writing by PolySync in its sole discretion. Your right to use the Evaluation Software and Documentation is limited to evaluating the suitability of the Evaluation Software for licensing on a for-fee basis.
(c) Evaluation Term. After the end of the Evaluation Term for the Evaluation Software, Your right to use the Evaluation Software will automatically end, unless You purchase a License.
(d) No Warranties. POLYSYNC HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND LIABILITY WITH RESPECT TO EVALUATION SOFTWARE, INCLUDING ANY DAMAGES RESULTING FROM USE (OR INABILITY TO USE) EVALUATION SOFTWARE.
(e) No Support. PolySync has no duty to provide Updates, Support or any other Maintenance (as such terms are defined below) to You with respect to the Evaluation Software.
(f) Conversion. Please contact PolySync or an Authorized Reseller if You wish to purchase a License for the Software.
4. Restrictions. All rights in and to the Software and Documentation not specifically granted under this Agreement are reserved. You will prevent access to and use of the Software and Documentation by third parties, except for third parties using the Software and Documentation solely in connection with the authorized provision of services to You. You may only use the Software and Documentation subject to with the following restrictions:
(a) Software and Documentation may be used solely for Your own internal use and solely for Your own benefit.
(b) You may make one copy of the Software in machine-readable form solely for backup purposes. You shall reproduce on any such copy all copyright notices and any other proprietary legends on the original copy of the Software. You may not remove or obscure PolySync"s or any third party"s copyright, trademark, or other propriety notices or legends from the Software or Documentation.
(c) You may not do any of or permit or enable others to do any of the following with regard to the Software or Documentation: (i) decompile, disassemble, reverse engineer, or otherwise derive the source code from it, or attempt to do so, except to the extent permitted by applicable law; (ii) disclose, distribute, sell, sublicense, display, publish, modify, adapt, alter, transfer, or create derivative works from it; (iii) circumvent any usage restrictions, whether time-based, workstation based, or otherwise; (iv) rent, lease, resell, sublicense, or grant a security interest in it. Any attempt to do any of the foregoing shall be void and of no effect.
(d) You may not use the Software or Documentation (i) to develop any application having the same primary function as the Software; (ii) to provide any services to third parties, including without limitation any service bureau, application service provider or hosting service; (iii) in operating an on-line service, bulletin board, Web or Internet access service or enabling Your customers to access such services or use data received from such services.
(e) You will treat the Software as confidential information and a trade secret of PolySync, and will only use and disclose the Software to the minimum extent necessary in connection with the uses of the Software permitted by this Agreement. You will use at least reasonable efforts to keep the Software confidential and not provide it to third parties without a need to know.
5. Payment. Your rights to use the Software are subject to Your timely paying all amounts due, whether to PolySync or the Authorized Reseller, as applicable. Payment terms for payments due are as stated in Invoices issued by PolySync or its Authorized Reseller or as agreed between You and such Authorized Reseller. All amounts paid are non-refundable.
6. Term and Termination.
(a) Term. This Agreement will terminate automatically upon the earlier of: (i) Your failure to comply with any term of this Agreement; (ii) the end of the Evaluation Term (unless You purchase a License); or (iii) the end of the License Term, as applicable. The License Term for the purchased Licenses is either perpetual ("Perpetual License") or a subscription for a limited term ("Subscription License"), as specified in the Invoice. Unless either party terminates this Agreement by notifying the other party in writing at least thirty (30) days before the expiration of the then current License Term, the License Term will automatically renew for additional consecutive periods of equal duration as the immediately preceding License Term. For Subscription Licenses, Maintenance is provided at no additional cost for the duration of the applicable License Term. For Perpetual Licenses, the initial term for Maintenance (as defined in Section 7(b)) of the Software is one (1) year beginning on the date the applicable License is purchased, and, subject to payment of the annual Maintenance fee as described in Section 7c, will automatically renew for additional one (1) year periods (collectively, the "Maintenance Term") unless either party provides a notice to the other at least thirty (30) days before the renewal date that it does not wish for the Maintenance Term to renew. If You elect not to renew the Maintenance Term, PolySync shall have no further obligation to provide Maintenance.
(b) Termination " by You. You may terminate this Agreement at any time by issuing a written notice to PolySync identifying the Licenses You are terminating and the effective date thereof. You will not be entitled to receive a refund of any amounts prepaid.
(c) Termination " by PolySync. PolySync will provide written notice to You if You are in breach of this Agreement.
(d) Effect of Termination. You must destroy all copies of Software and Documentation in Your possession immediately after the termination or expiration of this Agreement. Amounts accrued hereunder prior to the expiration or termination shall continue to be due even if this Agreement is terminated and shall be paid in accordance with Section 5. Sections 4, 5, 6, 8, 9, 10, 11, 17, 18, 19, 20, and 21 shall survive the termination or expiration of this Agreement.
7. Updates and Support.
(a) Updates. The terms of the Agreement will govern any bug fixes or error corrections to the Software ("Updates"), if any, subsequently provided by PolySync during the Maintenance Term.
(b) Support. PolySync will use commercially reasonable efforts to respond during regular business hours to Your requests for support during the Maintenance Term ("Support", and together with any Updates, "Maintenance"); however, given the nature of the Software, PolySync cannot guarantee that all identified issues will be resolved, through Updates, Support, or otherwise, to Your satisfaction.
(c) Maintenance Fees. If you purchase a Perpetual License, You agree to pay annual Maintenance fees, which shall be based on a percentage of the then-current list price for the Software, for any renewal of the Maintenance Term for the Software. You will be invoiced for each renewal of the Maintenance Term approximately sixty (60) days prior to renewal. Maintenance includes Updates to the Software, but not new releases of the Software ("Upgrades"). Upgrades must be purchased separately from PolySync or its Authorized Resellers. Subscription Licenses include the cost of Maintenance in the fees paid for the License.
8. Feedback and Data.
(a) Feedback. If You provide feedback to PolySync concerning the Software ("Feedback"), PolySync may use it for any purpose, including to improve or enhance its products and services. You hereby grant PolySync a non-exclusive, perpetual, irrevocable, royalty-free, assignable, worldwide license to use, reproduce, disclose, sublicense, distribute, modify, and otherwise exploit such Feedback without restriction.
(b) Data. As a result of Your use of the Software, certain data, statistics and other information (collectively "Information") may be generated either automatically by the Software or as a direct result of Your use. The Software contains features whereby Information is delivered to PolySync automatically and Information may also be collected by PolySync in connection with the provision of any support or maintenance services (if any) for Software. PolySync may collect, store, use and exploit such Information for the purposes of supporting, improving and developing PolySync"s products and services, provided that such use of data shall be in compliance with any applicable laws or regulations regarding data privacy and data security. PolySync will not publicly disclose Information in a way that identifies You or Your end users, to the extent applicable, without Your consent. You may not interfere with PolySync"s collection of Information.
9. NO WARRANTIES; DISCLAIMERS.
(a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED ON AN "AS IS" BASIS WITHOUT ANY WARRANTIES BY POLYSYNC, ITS RESELLERS OR THEIR LICENSORS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, ACCURACY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY THAT MAY OTHERWISE ARISE FROM A COURSE OF DEALING OR USAGE OF TRADE, OR ANY WARRANTY THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED OR BE ERROR-FREE. YOU ACKNOWLEDGE AND AGREE THAT THE SOFTWARE IS USED AT YOUR SOLE RISK.
(b) THE SOFTWARE IS NOT INTENDED FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN, THE CONTENT, DATA, OR INFORMATION PROVIDED BY THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE, INCLUDING, WITHOUT LIMITATION, CRITICAL SAFETY SYSTEMS, THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, LIFE SUPPORT MACHINES, OR WEAPON SYSTEMS.
10. LIMITATION OF LIABILITY. EXCEPT FOR POLYSYNC"S INDEMNITFY OBLIGATIONS AS SET FORTH IN SECTION 11 BELOW, UNDER NO CIRCUMSTANCES WILL POLYSYNC, ITS LICENSORS OR RESELLERS BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, OR PUNITIVE DAMAGES OR DAMAGES FOR LOSS OF USE OF ANY PRODUCT, SALES, PROFITS, BUSINESS INFORMATION, DATA, OR OTHER SUCH PECUNIARY LOSS ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR DOCUMENTATION, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY (INCLUDING WITHOUT LIMITATION NEGLIGENCE, BREACH OF CONTRACT, OR OTHERWISE), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL A RESELLER"S OR POLYSYNC"S AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID BY YOU TO POLYSYNC OR ITS RESELLER UNDER THIS AGREEMENT. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.
11. Indemnification. PolySync shall defend You, at its own expense, against any claim, suit or action against You brought by a third party to the extent that such claim, suit or action alleges that the Software as delivered by PolySync and used in accordance with this Agreement infringes any patent, copyright or trade secret of a third party (the "Claim"), and PolySync will pay costs and damages (including reasonable attorneys" fees) finally awarded by a court of competent jurisdiction for such Claim or amounts agreed to by PolySync in a monetary settlement of such Claim. The foregoing obligations are conditioned on You: (a) promptly notifying PolySync in writing of such Claim; (b) giving PolySync sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at PolySync"s request and expense, assisting in such defense. In the event that the use of the Software is enjoined, PolySync shall, at its option and at its own expense, either (i) procure the right to continue using the Software, (b) replace the Software with a non-infringing but functionally equivalent product, or (c) modify the Software so it becomes non-infringing; provided that if none of the foregoing is commercially practicable in PolySync"s reasonable judgment, PolySync may then terminate this Agreement without liability to You. Notwithstanding the foregoing, PolySync will have no obligation under this Section 11 or otherwise with respect to any Claim based upon: (i) any use of the Software in combination with products, equipment, software not supplied or approved by PolySync, if such infringement would not have occurred but for the combination; (ii) any modification to the Software not supplied or approved by PolySync, if such infringement would not have occurred but for such modification; or (iii) any unauthorized use of the Software.
12. Transfer of Software. During the License Term, You may move a License for Software to a different Site. However, You acknowledge that such transfer may require You to contact PolySync for support. After the transfer, You must completely remove the Software from the former Site. NOTWITHSTANDING THE FOREGOING, YOU MAY NOT TRANSFER EVALUATION SOFTWARE, OR BETA OR PRE-RELEASE COPIES OF SOFTWARE.
13. Agreement Updates. PolySync may update this Agreement from time to time after Your License Term has begun. Such updates to this Agreement (the "Updated Agreement") will apply to You: (i) with respect to new Licenses or Upgrades You may purchase after the Agreement is updated; and (ii) with respect to Updates which require You to accept such changes to this Agreement in order to use such Updates. If You accept such Updated Agreement, or install or otherwise use such updated or upgraded Software after such changes to this Agreement, then You acknowledge and agree that You are bound by and agree to the terms of such Updated Agreement.
14. Open Source. The Software may contain open source software. The open source software and the corresponding license terms governing the use of such open source software are available on PolySync"s website at https://polysync.io/open-source-credits. By accepting the terms of this EULA, You are accepting the terms of the open source license agreements that govern the use of such open source software, including all disclaimers of warranty and limitations of liability set forth therein. Such open source software is licensed to You under the applicable open source license terms.
15. Export Restrictions. You may not export or re-export the Software without complying with all applicable export control laws and obtaining any necessary permits and licenses.
16. Government Use. You agree that the Software and related Documentation are "Commercial Items", as that term is defined at 48 C.F.R. "2.101, consisting of "commercial computer software" and "commercial computer software documentation", as such terms are used in 48 C.F.R. "12.212 or 48 C.F.R. "227.7202, as applicable. This customary commercial license to the Software and Documentation is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data " Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). The Software and Documentation is being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
17. Assignment. You may not assign or transfer this Agreement or the rights hereunder, by operation of law or otherwise, including in connection with a merger or other acquisition, without the prior written consent of PolySync. PolySync may freely assign or transfer this Agreement.
18. Reference. You hereby permit PolySync to refer to You as a user of the Software and display Your logo in PolySync"s marketing documentation and on its web site, in compliance with Your trademark usage guidelines. Upon Your written request, PolySync will cease making such use of Your logo.
19. Severability and Waiver. If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement will continue in full force and effect. Failure to enforce any right or provision in this Agreement will not constitute a waiver of such provision, or any other provision of this Agreement. Waiver of a breach shall not waive the right to enforce any subsequent breach under this Agreement. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of any other right hereunder.
20. Entire Agreement. This Agreement and PolySync"s Invoices form the complete statement of the agreement between You and PolySync with respect to the Software and Documentation, and there are no other prior or contemporaneous understandings, promises, representations, or descriptions with respect to the Software or Documentation. For the avoidance of doubt, to the extent any non-disclosure agreement between You and PolySync conflicts with the terms of this Agreement, the agreement that is most protective of PolySync"s confidential information shall prevail. Except as provided for herein (including as set forth below), no amendment to or modification of this Agreement will be binding unless made in writing and signed by PolySync. No terms, provisions or conditions of any purchase order, acknowledgement or other busi_ness form that You may use in connection with the licensing of the Software will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any fail_ure of PolySync to object to such terms, provisions or conditions. Any terms in such documentation issued by You are void.
21. Governing Law and Venue. This Agreement will be interpreted and construed in accordance with the laws of the State of Oregon and the United States of America, excluding that body of law applicable to choice of law. The application of the United Nations Convention of Contracts for the International Sale of Goods to this Agreement is expressly excluded. The parties consent to non-exclusive jurisdiction in the state or federal courts for Multnomah County, Oregon and, such venue shall not be challenged by the non-filing party as improper or inappropriate due to, among other things, inconvenience under the doctrine of forum non-convenience or other similar doctrines. Each party also agrees not to bring any action or proceeding arising out of or relating to this Agreement in any other court. Notwithstanding the foregoing, You acknowledge and agree that a breach of this Agreement by You would cause irreparable injury to PolySync for which monetary damages would not be an adequate remedy. Therefore, PolySync shall be entitled to obtain equitable relief in addition to any remedies it may have hereunder or at law, without the necessity of posting a bond, and in any court of competent jurisdiction.