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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 SUPERSEDE ANY OTHER WRITTEN AGREEMENT BETWEEN YOU AND NDS SYSTEMS LC.
This agreement (the “Agreement”) is made between NDS Systems LC. (“NDS”) 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.
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. NDS 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. NDS 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 NDS, 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 NDS OR A NDS REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. NDS’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 NDS FOR THE SOFTWARE THAT CAUSED THE DAMAGES. NO ACTION MAY BE BROUGHT AGAINST NDS 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 NDS 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 NDS of any known unauthorized use or disclosure of the Confidential Information and will cooperate with NDS in any litigation brought by NDS 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 NDS and any purported assignment or transfer without NDS’s consent shall be null and void.
1.7 Injunctive Relief. Licensee hereby expressly agrees that NDS, in addition to any other rights or remedies which NDS 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 NDS 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 NDS in writing.
1.12 General. This Agreement will be construed under the laws of the State of Florida. In the event there is a dispute concerning the subject matter of this Agreement, the proper venue shall be the County of Pinellas, State of Florida, 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.
The provisions of this Section 2 shall apply to Software licensed with no time limits.
2.1 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 NDS. The “License” granted hereunder shall be perpetual, non-exclusive, and non-sub licensable, 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 NDS. 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 device.
(b) For the number of copies licensed, Licensee may make copies (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.
2.2 Maintenance. During any Maintenance Period and for the applicable fees, NDS shall provide the services as listed in this Paragraph 2.2. However, for some services, dial-in access to Licensee’s system may be necessary in order for NDS to perform some 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 services in writing, in which case NDS 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 services will be reinstated after it has lapsed. Maintenance services shall consist of the following:
NDS shall make Software corrections, enhancements and upgrades available to Licensee if and when it makes them generally available under a Maintenance subscription.
NDS shall respond to unlimited communications from Licensee that report software failures not previously reported to NDS.
NDS’s Maintenance service shall be available via telephone on business days between the hours of 8:00 a.m. and 6:00 p.m. EST. NDS’s Maintenance service inquiries shall be available via email or the Internet 24/7. NDS shall put forth best efforts to respond by the next business day to inquiries of receiving such.
2.2a Installation Support. NDS shall respond at no charge for a 30-day period after purchase of license to a reasonable number of communications from Licensee’s Technical Coordinators that request consultation on the installation of the Software. An hourly service fee will be charged for consultations on the operational/technical aspects of the Software.
2.3 Limited Warranty. NDS warrants that it or its licensors retain(s) all intellectual property rights in the Software and any accompanying written materials provided by NDS, including but not limited to copyright, and that it has the legal right to grant Licensee the License granted under this Agreement. NDS also warrants for a period of thirty (30) days from the delivery date of the Software that (i) the media provided by NDS, 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 NDS, will substantially conform to NDS’s published documentation for the Software. In the event Licensee notifies NDS during the warranty period that the Software does not meet these standards, NDS shall, at its sole option and expense, 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 NDS WITH RESPECT TO THE SOFTWARE LICENSED UNDER THIS SECTION 3, AND NDS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Xephr is a registered trademark of NDS Systems, LC.
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