PLEASE READ THIS SOFTWARE LICENSE AGREEMENT
CAREFULLY. BY DOWNLOADING, INSTALLING OR USING
THE SOFTWARE YOU INDICATE ACCEPTANCE OF AND
AGREE TO THE TERMS AND CONDITIONS OF THIS
AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS
AND CONDITIONS, DO NOT DOWNLOAD, INSTALL OR
USE THE SOFTWARE. THIS AGREEMENT DOES NOT
SUPERCEDE ANY OTHER WRITTEN AGREEMENT BETWEEN
YOU AND MAXdbt.
This agreement (the “Agreement”) is made
between MAXdbt, Inc., (“MAXdbt”) and you, the
customer (“Licensee”). The terms and
conditions of this Agreement are intended by
the parties as a final expression of their
agreement with respect to the subject matter
hereof and may not be contradicted by evidence
of any prior or contemporaneous agreement
unless such agreement is signed by both
parties. In the absence of such an agreement,
this Agreement shall constitute the complete
and exclusive statement of the terms and
conditions and no extrinsic evidence
whatsoever may be introduced in any judicial
proceeding which may involve the Agreement.
This Agreement may not be modified except by a
writing executed by both parties hereto.
SECTION 1. GENERAL PROVISIONS.
The provisions of this Section 1 shall apply
to any and all Software, as defined below.
1.1 Software.
For the purpose of this Agreement, the
licensed computer software program(s)
downloaded and/or installed and the supporting
documentation for such will be referred to as
the “Software.”
1.2 Restrictions.
MAXdbt reserves any rights not expressly
granted to Licensee and retains title and full
ownership rights under the copyright laws of
the United States or any other jurisdiction or
under any federal, state, or foreign laws.
MAXdbt is not obligated to provide and
Licensee acquires no right of any kind with
respect to any source code for the Software.
Licensee agrees that it has no right
whatsoever to modify the Software or any
portion thereof in any manner. Licensee shall
not, nor permit any third party to reverse
engineer, decompile, disassemble or otherwise
reduce the Software to any other humanly
perceivable form, and may not modify, adapt,
rent, lease, loan or create derivative works
based upon the Software or any part thereof.
1.3 Export Law Assurances.
Licensee shall not export or re-export, or
allow the export or re-export of the Software
or any copy, portion or direct product of the
foregoing, in violation of any export laws,
restrictions, national security controls or
regulations of the United States or other
applicable foreign agency or authority.
1.4 Limitation of Remedies and Damages.
IN NO EVENT WILL MAXDBT, ITS SUBSIDIARIES OR
ANY OF THE LICENSORS, DIRECTORS, OFFICERS,
EMPLOYEES OR AFFILIATES OF ANY OF THE
FOREGOING BE LIABLE TO LICENSEE UNDER ANY
CONTRACT, NEGLIGENCE, STRICT LIABILITY OR
OTHER LEGAL OR EQUITABLE THEORY FOR ANY
CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL
DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED
TO, DAMAGES FOR LOSS OF BUSINESS PROFITS,
BUSINESS INTERRUPTION, LOSS OF BUSINESS
INFORMATION AND THE LIKE), WHETHER FORESEEABLE
OR UNFORESEEABLE, OR FOR COST OF PROCUREMENT
OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES,
REGARDLESS OF THE BASIS OF THE CLAIM AND EVEN
IF MAXDBT OR A MAXDBT REPRESENTATIVE HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
MAXDBT’S CUMULATIVE LIABILITY FOR DAMAGES FOR
ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE
FORM OF THE ACTION, WILL BE LIMITED TO NO
GREATER THAN THE AMOUNT OF MONEY PAID TO
MAXDBT FOR THE SOFTWARE THAT CAUSED THE
DAMAGES. NO ACTION MAY BE BROUGHT AGAINST
MAXDBT LATER THAN ONE YEAR FROM THE
TERMINATION OF THIS AGREEMENT.
1.5 Nondisclosure.
“Confidential Information” shall be defined to
include Software, source code, object code,
documentation and any proprietary tools,
proprietary knowledge or proprietary
methodologies disclosed by MAXdbt to Licensee
under or relating to this Agreement. Licensee
shall observe complete confidentiality with
respect to the Confidential Information, and
shall use its best efforts and take all
reasonable steps to protect the Confidential
Information from any use, reproduction,
publication, disclosure, or distribution
except as specifically authorized by this
Agreement. Licensee shall promptly notify
MAXdbt of any known unauthorized use or
disclosure of the Confidential Information and
will cooperate with MAXdbt in any litigation
brought by MAXdbt against third parties to
protect its proprietary rights.
1.6 Assignment.
Licensee may not assign or transfer its rights
and obligations under this Agreement without
prior written approval by MAXdbt and any
purported assignment or transfer without
MAXdbt’s consent shall be null and void.
1.7 Injunctive Relief.
Licensee hereby expressly agrees that MAXdbt,
in addition to any other rights or remedies
which MAXdbt may possess, shall be entitled to
injunctive and other equitable relief without
having to post bond or other security to
prevent a material breach or continuing
material breach of this Agreement.
1.8 Software Supplied to the Government.
The Software is a “commercial item,”
“commercial computer software” and/or
“commercial computer software documentation.”
Consistent with DFAR section 227.7202 and FAR
section 12.212, any use, modification,
reproduction, release, performance, display,
disclosure or distribution of the Software by
the U.S. government shall be governed solely
by the terms of this Agreement and shall be
prohibited except to the extent expressly
permitted herein.
1.9 Survival. Sections
1.2, 1.3, 1.4, 1.5, 1.7, 1.9, 1.10, 1.11 and
1.12 shall survive termination of this
Agreement for any reason whatsoever.
1.10 Warranties.
THE LIMITED WARRANTIES AS DESCRIBED IN SECTION
2.2 AND SECTION 3.3 OF THIS AGREEMENT ARE THE
ONLY WARRANTIES PROVIDED BY MAXDBT AND ITS
LICENSORS, WHO EXPRESSLY DISCLAIM ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT
NOT LIMITED TO IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE WITH REGARD TO THE SOFTWARE AND
ACCOMPANYING WRITTEN MATERIALS.
1.11 Term and Termination.
This Agreement is effective for the term of
the license grant unless sooner terminated,
either through mutual agreement by the parties
or by Licensee’s material breach of the
Agreement; provided, however, Licensee shall
have ten (10) days from written notice to cure
any such breach if curable. Upon any
termination Licensee must immediately destroy
the Software and all accompanying written
materials and all copies thereof (including
copies stored in computer memory) and shall so
certify to MAXdbt in writing.
1.12 General.
This Agreement will be construed under the
laws of the State of Michigan, except for that
body of law dealing with conflicts of law and
the U.N. Convention of Contracts for the Sale
of International Goods, which shall not apply.
In the event there is a dispute concerning the
subject matter of this Agreement, the proper
venue shall be the County of Oakland, State of
Michigan, United States of America. Each party
hereby waives opposition to jurisdiction in
such court. Service of process can be done in
accordance with the governing law of the
Agreement. Performance of any obligation
required by a party hereunder may be waived
only by a written waiver signed by the other
party, which waiver shall be effective only
with respect to the specific obligation
described therein. If any provision of this
Agreement shall be held by a court of
competent jurisdiction to be contrary to law,
that provision will be enforced to the maximum
extent permissible and the remaining
provisions of this Agreement will remain in
full force and effect.
SECTION 2. TRIAL EVALUATION TERMS AND
CONDITIONS.
The provisions of this Section 2 shall apply
to Software downloaded for temporary and/or
trial use.
2.1 License.
Subject to the terms and conditions of this
Agreement, the Software is licensed, not sold
to Licensee by MAXdbt for an evaluation period
of seven (7) days from the download date
("Evaluation Period").
(a) Licensee may use the Software for its own
internal evaluation and for no other purpose.
(b) Licensee’s opportunity for a free
evaluation of the Software is limited to one
Evaluation Period per release of the Software.
(c) There is no fee for Licensee’s use of the
Software in accordance with this Agreement
during the Evaluation Period, however,
Licensee is responsible for any applicable
shipping charges or taxes which may be
incurred under this Agreement, and any fees
which may be associated with usage beyond the
scope permitted herein.
(d) Licensee acknowledges that it is
downloading the Software with the intent to
purchase a perpetual license to use the
Software upon completion of a successful
evaluation of such. A MAXdbt sales
representative may contact Licensee after the
download to discuss Licensee’s purchase of a
perpetual license.
2.2 “AS-IS” Warranty.
MAXdbt warrants that it or its licensors
retain(s) all intellectual property rights in
the Software and any accompanying written
materials provided by MAXdbt, including but
not limited to copyright, and that it has the
legal right to grant Licensee the License
granted under this Agreement. LICENSEE AND
MAXDBT AGREE THAT THE SOFTWARE IS PROVIDED “AS
IS” AND UNSUPPORTED, AND THAT MAXDBT MAKES NO
WARRANTY AS TO THE SOFTWARE, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
SECTION 3. “FULL” LICENSE TERMS AND
CONDITIONS.
The provisions of this Section 3 shall apply
to Software licensed with no time limits.
3.1 LICENSE.
Subject to the terms and conditions of this
Agreement and upon Licensee’s full payment of
the applicable fees, the Software shall be
licensed, not sold, to Licensee by MAXdbt. The
“License” granted hereunder shall be
perpetual, non-exclusive, and non-sublicensable,
and is defined as Licensee’s right to:
(a) For the number of copies licensed,
Licensee may Use one (1) copy of the Software.
“Use” shall mean Licensee may install, use,
access, run, or otherwise interact with the
Software in accordance with the applicable
documentation and the license grant specified
by MAXdbt. The Software may not be installed,
accessed, displayed, run, shared, or used
concurrently on or from different computers,
including a workstation, terminal, or other
digital electronic devise.
(b) For the number of copies licensed,
Licensee may make one copy (in
machine-readable form only) of each copy of
the Software licensed hereunder solely for
backup or disaster recovery purposes. However,
Licensee must reproduce each such copy without
modification, including all copyright and
other proprietary notices that are on the
original copy.
3.2 Maintenance.
During any Maintenance Period and for the
applicable fees, MAXdbt shall provide the
maintenance services as listed in this
Paragraph 3.2. However, for some Software
dial-in access to Licensee’s system may be
necessary in order for MAXdbt to perform some
maintenance services. “Maintenance Period”
shall be defined as the one (1) year period
beginning on the date of the first invoice for
the Software or from the conclusion of any
previous Maintenance Period, provided Licensee
is current on all fees due. Maintenance fees
shall be subject to an annual billing cycle.
Either party may elect not to renew
maintenance services by terminating
maintenance in writing, in which case MAXdbt
will no longer be responsible for providing
maintenance. Payment of any and all past
maintenance fees, plus a re-instatement fee of
25% of the annual maintenance fee, shall be
required before maintenance will be reinstated
after it has lapsed. Maintenance services
shall consist of the following:
MAXdbt shall make Software corrections,
enhancements and upgrades available to
Licensee if and when it makes them generally
available under a maintenance subscription.
MAXdbt shall respond to unlimited
communications from Licensee that report
software failures not previously reported to
MAXdbt.
MAXdbt shall respond to a reasonable number
communications from Licensee’s Technical
Coordinators that request consultation on
the operational/technical aspects of the
Software.
For all Software MAXdbt’s support service
shall be available by email on business days
between the hours of 8:00 a.m. and 5:00 p.m.
EST. During those hours, MAXdbt shall
respond to inquiries within twenty-four (24)
hours of receipt of such inquiry.
3.3 Limited Warranty.
MAXdbt warrants that it or its licensors
retain(s) all intellectual property rights in
the Software and any accompanying written
materials provided by MAXdbt, including but
not limited to copyright, and that it has the
legal right to grant Licensee the License
granted under this Agreement. MAXdbt also
warrants for a period of thirty (30) days from
the delivery date of the Software that (i) the
media provided by MAXdbt, if any, on which the
Software is recorded will be free from
material defects in materials and workmanship
under normal use, and (ii) the operation of
the Software, as provided by MAXdbt, will
substantially conform to MAXdbt’s published
documentation for the Software. In the event
Licensee notifies MAXdbt during the warranty
period that the Software does not meet these
standards, MAXdbt shall, at its sole option
and expense, either replace the media, refund
the purchase price, or repair or replace the
Software as Licensee’s sole and exclusive
remedy.
THIS LIMITED WARRANTY IS THE ONLY WARRANTY
PROVIDED BY MAXDBT WITH RESPECT TO THE
SOFTWARE LICENSED UNDER THIS SECTION 3, AND
MAXDBT EXPRESSLY DISCLAIMS ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT
NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
