The RMDMIA Framework Technology Preview Release 1.0 License Agreement
PLEASE CAREFULLY READ THE FOLLOWING LEGAL AGREEMENT GOVERNING YOUR USE OF THE LICENSED PROGRAM. BY COMPLETING THE INSTALLATION OF THE LICENSED PROGRAM, OR BY CLICKING A BUTTON ACCEPTING THIS AGREEMENT, YOU AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE, THEN STOP AND PROMPTLY AND PERMANENTLY REMOVE THE LICENSED PROGRAM FROM YOUR COMPUTER AND RETURN IT, AND ANY ARCHIVAL COPIES, IN THE ORIGINAL PACKAGING WITHIN THIRTY (30) DAYS FROM DATE OF PURCHASE WITH YOUR RECEIPT AND YOU WILL BE GIVEN A FULL REFUND.
You may have another written agreement directly with Happy Artist that supplements or supersedes all or portions of this agreement.
Happy Artist and its suppliers own all intellectual property in the Software. The Software is licensed, not sold. Happy Artist permits you to copy, download, install, use, or otherwise benefit from the functionality or intellectual property of the Software only in accordance with the terms of this agreement. Use of some third party materials included in the Software may be subject to other terms and conditions typically found in a separate license agreement that usually is located near the materials.
If You have any questions, you may contact Happy Artist by E-mail at email@example.com, or by telephone Happy Artist at 1-206-582-2675 (United States of America).
END-USER LICENSE AGREEMENT
THIS AGREEMENT (the "Agreement") is hereby entered into between Happy Artist, with offices at Bellevue, WA 98004 (the "Licensor") and the party obtaining the right to use the Licensed Program ("You") on the following terms and conditions:
1. Licensed Program. This is a license agreement between You and the Licensor with respect to RMDMIA Framework Technology Preview Release, Version 1.0, the accompanying Documentation and all fixes, releases, upgrades, new versions or enhancements, if any, that may subsequently be issued to You (the "Licensed Program"). The Licensed Program generates Linkable Libraries and Distributable Files incorporated as an integral part of Value-Added Applications. For these purposes, "Value-Added Applications" mean software programs created by You that contain substantial functionality beyond what is provided by the Licensed Program. Value-Added Applications containing Linkable Libraries or Distributable Files in runtime executable form may be distributed to the public at large.
2. Certain Preliminary Uses.
(a) Installation. The Licensed Program is distributed to You by electronic download or on self-installing media as described in the Documentation. You will need to install the Licensed Program on properly configured and compatible computer equipment according to the Documentation. You will also need to ensure that all required data is in proper format and no other software or equipment having an adverse impact on the Licensed Program are present.
3. Licensed Operating Environment.
(a) Operating Environment. Once You sign or manifest assent this Agreement, have completed activities described in Section 2 ("Certain Preliminary Uses") and provided You pay the applicable License Fees described or referenced in Section 7 ("Price & Payment") when due, You will be deemed granted one (1) non-exclusive operations license(s) for the Licensed Program, in each case to install, store, load, execute and display (collectively, "Use") the Licensed Program on one (1) CPU of the class described in the Documentation (the "Licensed Operating Environment"). The Licensed Program is provided only in machine readable object code form. Portable or Home Computer Use Exception. The primary user of the Computer on which the Software is installed may install a second copy of the Software for his or her exclusive use on either a portable Computer or a Computer located at his or her home, provided the Software on the portable or home Computer is not used at the same time as the Software on the primary Computer.
(b) Authorized Operators. The Licensed Program will be operated solely by Your own employees ("Authorized Operators"). The Authorized Operators may Use the Licensed Program in the Licensed Operating Environment for the beneficial uses described in Section 4 ("Permitted Uses").
(c) Disaster Recovery Exception. In the event of a bona fide disaster such as a fire, flood, earthquake or civil disturbance, You may relocate and Use the Licensed Program on a back-up configuration substantially equivalent to the Licensed Operating Environment for a period not to exceed sixty (60) days. You may also temporarily appoint an independent disaster recovery center as an Authorized Operator during the pendency of the emergency. Upon completion of the emergency, You will return the Licensed Program to the original environment and certify the deletion of all copies from the back-up equipment. You will need to make and store in a safe place archival copies of valuable software or data that would be needed if a disaster occurred.
4. Permitted Uses. Your Authorized Operators may Use the Licensed Program in the Licensed Operating Environment to support: (a) Your internal business operations and processing of Your own data; (b) similar internal operations of Your immediate customers, and (c) for redistribution and support of Your immediate customers to their own "second-tier" customers and users at large.
5. Reservation of Rights.
(a) Rights to Licensed Program. The intellectual property rights in the Licensed Program shall at all times remain the exclusive property of Licensor or other owner identified in the Documentation. By executing this Agreement and paying the applicable License Fee, You obtain a limited license to Use the Licensed Program in object code form. You agree not to disassemble, decompile or reverse engineer the Licensed Program. You also agree that any information obtained in violation of this restriction will be confidential information automatically and irrevocably deemed assigned to and owned exclusively by the owner of the Licensed Program. You will at all times use due diligence to safeguard and protect all such confidential and proprietary information pertaining to the Licensed Program. You will ensure that all marks, notices or legends pertaining to the origin, identity or ownership of the Licensed Program remain intact and clearly legible.
(b) Rights to Value-Added Applications. Subject to Subsection (a), You or Your designee will own all program designs or code independently developed by You as part of Your Value-Added Applications. Upon termination other than for a material breach by You, You may continue to Use Linkable Libraries and Distributable Files incorporated into Value-Added Applications developed by You prior to the effective date of termination.
(c) All Other Rights Reserved. Except as expressly granted to You under another provision of this Agreement, Licensor reserves to itself and prohibits You (directly or indirectly, in whole or in part) from loaning, renting, leasing, sublicensing or otherwise distributing or operating the Licensed Program to or for the benefit of any third party, and from altering, adapting, translating or preparing any derivative work of the Licensed Program. The foregoing limitation does not prohibit Authorized Operators from making a reasonable number of backup copies of the Software, provided your backup copies are not installed or used for other than archival purposes.
6. Product Support. Except for any warranty support specified in Section 9 ("Warranties"), the Licensor is not expected to provide You with any Product Support, such as telephone Hotline Service or Updates, with respect to this Licensed Program.
7. Price & Payment.
(a) Price. You agree to pay Licensor the applicable License Fee determined by reference to Licensor's published prices at the time this Licensed Program was ordered. Payment of the License Fee entitles You to Use the Licensed Program in accordance with this Agreement during the stated Term. If the License Fee is based on usage, then You will maintain any necessary usage records for calculating fees according to the Documentation. Any applicable Product Support Fees are referenced in Section 6 ("Product Support").
(b) Payment. Unless otherwise stated on Licensor's invoice, the applicable fees and shipping charges are payable by You promptly upon delivery. You will pay all sales, use, value-added, GST, personal property or other governmental tax or levy associated with this transaction (including interest and penalties imposed thereon) other than taxes based on the net income or profits of Licensor. If You fail to pay any amount when due, Your license to Use the Licensed Program will automatically terminate and You will pay all costs of enforcement, including reasonable legal fees.
8. Transfer Restriction on License. You may not assign all or any part of Your rights or obligations under this Agreement without Licensor's prior written consent and any attempt to the contrary will be void and a material breach of this Agreement. Licensor may withhold such consent in its sole discretion. Licensor may not impose transfer fees as a condition of any permitted transfer. A transfer of this Agreement will terminate any right to Your continued possession or Use of the Licensed Program and You must promptly destroy all remaining copies of the Licensed Program in Your possession or under Your control.
9. Warranties. The following provisions are subject to Section 10 ("Limitation of Remedies & Liabilities"). Any warranties are for Your benefit alone, it being agreed they are not assignable and there are no third party beneficiaries of them.
(a) Software Media. Licensor warrants any magnetic media on which the Licensed Program is recorded and the Documentation to be free from defects in tangible materials and accuracy of reproduction from the master media. Licensor will replace at no charge defective original media or Documentation returned to it with proof of payment.
(b) No Performance Warranty. Except as provided in this Section, You agree that the Licensed Program and any services are provided strictly on an "as is" basis without any express or implied warranty, guarantee or other assurance of quality, conformity with specifications, reliability or functionality. You accept all risk for the suitability, performance or nonperformance of the Licensed Program. LICENSOR MAKES NO WARRANTY, EXPRESS OR IMPLIED, AND DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.
(c) Certain JAVA Code. THE LICENSED PROGRAM MAY CONTAIN OR SUPPORT PROGRAMS WRITTEN IN JAVA. THE LICENSED PROGRAM, AND ESPECIALLY JAVA, IS NOT FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATIONS SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF LICENSED PROGRAM COULD LEAD TO DEATH, PERSONAL INJURY OR PHYSICAL OR ENVIRONMENTAL DAMAGE. TO THE EXTENT YOU USE THE LICENSED PROGRAM IN SUCH ENVIRONMENT, YOU EXPRESSLY ASSUME ALL RISK THEREFORE.
10. Limitation of Remedies & Liabilities. The following provisions are a material condition of this Agreement and reflect a fair allocation of risk:
(a) Remedies. You agree that if the Licensor violates any warranty or other provision of this Agreement, and Licensor determines that repair or other corrective action is not economically or technically feasible, Your sole and exclusive remedy will be to obtain a refund of License Fees paid by You. You also agree that legal remedies alone provide inadequate protection of Licensor's intellectual property rights in the Licensed Program and that, in addition to other relief, Licensor may without necessity of posting bond obtain temporary and permanent injunctions to enforce those rights.
(b) Liabilities. YOU AGREE LICENSOR IS NOT LIABLE FOR ANY AMOUNT EXCEEDING THE LICENSE FEES ACTUALLY PAID BY YOU HEREUNDER. IN NO EVENT SHALL LICENSOR BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST SAVINGS OR PROFIT, LOST DATA OR BUSINESS INTERRUPTION EVEN IF LICENSOR IS NOTIFIED IN ADVANCE OF SUCH POSSIBILITY). THIS INCLUDES DAMAGES INCURRED BY YOU, YOUR CUSTOMERS OR ANY THIRD PARTY. THIS LIMITATION PROTECTS LICENSOR AND ANY DISTRIBUTOR OR RESELLER FROM WHOM YOU OBTAINED THE LICENSED PROGRAM. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE FOREGOING LIMITATION MAY NOT APPLY TO YOU. THIS LIABILITY LIMIT IS INDEPENDENT OF REMEDY LIMITS.
11. Term & Termination.
(a) Generally. This Agreement shall continue in full force and effect in perpetuity unless terminated earlier in accordance with this or another Section of this Agreement. This Agreement will terminate automatically if You breach any provision of it. You may terminate this Agreement at any time at Your election.
(b) Effect of Termination. Termination of this Agreement will terminate Your right to possess or Use the Licensed Program. Upon termination for any reason, You agree to destroy the original and all copies of the Licensed Program (including Documentation) and cease all further Use of it. Termination, other than for a material breach by You, shall not affect Your right to continue Using and distributing Value-Added Applications created by You prior to the effective date of termination. Termination will have no effect on Your obligation to safeguard and protect proprietary rights of Licensor under Section 5(a) ("Rights to Licensed Program"), disclaimers under Section 9 ("Warranties"), limitations under Section 10 ("Limitation of Remedies & Liabilities") or continuing assurances made under Section 13 ("Export Regulations").
12. Disputes, Choice of Law. Except for certain injunctive relief authorized under Section 10 ("Limitation of Remedies & Liabilities") which may be brought at any time, the parties agree that all disputes shall be submitted to a single arbitrator for nonbinding arbitration under proceedings conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The award of the arbitrator shall include a written explanation of the decision and shall be limited to remedies otherwise available in court. If the parties are still unable to reconcile their differences after the arbitrator issues its award the dispute may then be taken to court by either party. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE UNITED STATES AND WASHINGTON, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES. THE PARTIES MAY INITIATE ANY DISPUTE RESOLUTION PROCEEDING IN SUCH DESIGNATED STATE AND IRREVOCABLY CONSENT TO NON-EXCLUSIVE PERSONAL JURISDICTION AND VENUE THEREIN. YOU WILL BRING ANY ACTION AGAINST LICENSOR ARISING OUT OF THIS AGREEMENT WITHIN ONE (1) YEAR AFTER THE CLAIM ARISES, OR BE BARRED.
13. Export Regulations. The transfer of technology across national boundaries is regulated by the U.S. Government. You agree not to export or re-export the Licensed Program without first obtaining any required export license or governmental approval. You will not directly or indirectly export or re-export (including by transmission) any regulated technology to any country to which such activity is restricted by U.S. regulation or statute, without the prior written consent, if required, of the Bureau of Export Administration of the U.S. Department of Commerce. This provision and the assurances made herein shall survive termination of this Agreement.
14. U.S. Government Restricted Rights. The Licensed Program (including Documentation) are provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the Government is subject to restrictions as set forth in the Rights in Commercial Computer Software clause at DFARS 227.7202-3 or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights clause at 48 CFR 52.227-19, as applicable. The Contractor is Happy Artist, with offices at Bellevue, WA 98004.
15. Miscellaneous. This document constitutes the entire and exclusive agreement between the parties with respect to the subject matter hereof and supersedes all other communications, whether written or oral. This document and Your signature entry in electronic form, or a hardcopy duplicate in good form, shall be considered an original document with authenticated signature admissible into evidence unless the document's authenticity is genuinely placed in question. You may issue a purchase order, but it will have no substantive effect on our Agreement. This Agreement may be modified or amended only by a writing signed by an authorized representative of Licensor. It is agreed that sales representatives and distributors of the Licensed Program have no authority to alter this Agreement. Any provision found by a tribunal of competent jurisdiction to be illegal or unenforceable shall be automatically conformed to the minimum requirements of law and all other provisions shall remain in full force and effect. Waiver of any provision hereof in one instance shall not preclude enforcement of it on future occasions. Headings are for reference purposes only and have no substantive effect.
If you have any questions regarding this agreement or if you wish to request any information from Happy Artist please E-mail Happy Artist at firstname.lastname@example.org, or by telephone Happy Artist at 1-206-582-2675 (United States of America).
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