This Electronic End User License Agreement (the "Agreement") is a legal agreement between you (either an individual or an entity), the licensee, and Aurigma, Inc. (the "Licensor"), regarding the software and service titled "Image Uploader Flash" that you about to download, downloaded, or otherwise obtained through other resources or media, or through a network in object code form or other related services, including without limitation (a) all of the contents of the files, including Flash control, disk(s), CD-ROM(s) or other media with which this Agreement is provided and including all forms of code, such as Source Code and Object Code as provided and in a form that is provided by Licensor to you (the "Software"), (b) all successor upgrades, revisions, patches, enhancements, fixes modifications, copies, additions or maintenance releases of the Software, if any, licensed to you by the Licensor (collectively, the "Updates") provided that the Updates shall not include new subsequent releases of the Software bearing a new first numeral such as 7.0 or 8.0 ("New Releases") but include any minor revisions of the Software version indicated by a change in the decimal numeral, such as 7.5 or 7.6, and (c) related user documentation and explanatory materials or files provided in written, "online" or electronic form (the "Documentation" and together with the Software and Updates, the "Product").
For the avoidance of doubt, by way of example, but not exclusion, if a specific file is provided by Licensor in Object Code only, the Source Code for such files shall not be deemed a part of the Software provided by Licensor to you. For purposes hereof "Source Code" shall mean the human-readable form of the computer programming code and related system documentation including all comments and any procedural code such as job control language and "Object Code" shall mean computer programs assembled or compiled in magnetic or electronic binary form on software media, which are readable and usable by machines, but not generally readable by humans without reverse-assembly, reverse-compiling, or reverse-engineering.
You are subject to the terms and conditions of this End User License Agreement whether you access or obtain the Product directly from the Licensor, or through any other source. For purposes hereof, "you" or "Licensee" means the individual person installing or using the Product on his or her own behalf (i.e. Permitted User (as such term defined below)); or, if the Product is being downloaded or installed on behalf of an organization, such as an employer, "you" means the organization for which the Product is downloaded or installed and it is represented hereby that such organization has authorized the person accepting this agreement to do so on its behalf. For purposes hereof the term "organization", without limitation, includes any partnership, limited liability company, corporation, association, joint stock company, trust, joint venture, labor organization, unincorporated organization, or governmental authority.
By accessing, downloading, storing, loading, installing, executing, displaying, copying the Product into the memory of a computer or otherwise benefiting from using the functionality of the Product in accordance with the Documentation ("Operating"), you agree to be bound by the terms of this Agreement. If you do not agree to the terms and conditions of this Agreement, the Licensor is unwilling to license the Product to you. In such event, you may not Operate or use the Product in any way.
For the purposes of this Agreement, "Licensor Site" shall mean the Internet website maintained by or on behalf of Licensor from which the Software is available for download pursuant to a license from Licensor. The Licensor Site is currently located at www.aurigma.com.
You agree that the Product and the authorship, systems, ideas, methods of operation, documentation and other information contained in the Product, are proprietary intellectual properties and/or the valuable trade secrets of the Licensor or its suppliers and/or licensors and are protected by civil and criminal law, and by the law of copyright, trade secret, trademark and patent of the United States, other countries and international treaties. You may use trademarks only insofar as to identify printed output produced by the Product in accordance with accepted trademark practice, including identification of trademark owner's name. Such use of any trademark does not give you any rights of ownership in that trademark. The Licensor and/or its suppliers own and retain all right, title, and interest in and to the Product, including without limitations any error corrections, enhancements, Updates or other modifications to the Software, whether made by the Licensor or any third party, and all copyrights, patents, trade secret rights, trademarks, and other intellectual property rights therein. Your possession, installation or use of the Product does not transfer to you any title to the intellectual property in the Product, and you will not acquire any rights to the Product except as expressly set forth in this Agreement. Except as otherwise agreed by the parties, all copies of the Product made or distributed hereunder must contain the same proprietary notices that appear on and in the Product originally provided to you. Except as stated herein, this Agreement does not grant you any intellectual property rights in the Product and you acknowledge that the License, as further defined herein, granted under this Agreement only provides you with a right of limited use under the terms and conditions of this Agreement. You hereby acknowledge and agree that Aurigma, Inc. is the sole owner of the trademark "Aurigma®" and that you will not interfere with Aurigma, Inc.'s rights in the trademark, including challenging its use, registration of, or application to register such trademark, alone or in combination with other words, anywhere in the world, and that you will not harm, misuse, or bring into disrepute any Aurigma, Inc.'s trademark. The goodwill derived from using any part of Aurigma, Inc.'s trademark exclusively inures to the benefit of and belongs to Aurigma, Inc. Except for the limited right to use Aurigma's trademarks in connection with the Use of the Product as customary pursuant to the industry standards, no other rights of any kind are granted hereunder, by implication or otherwise with regard to such trademarks. Any additional third-party trademarks, which are not licensed hereunder and not under Aurigma, Inc.'s control, are subject to applicable third-party terms and conditions. Notwithstanding any provision to the contrary herein, nothing in this Agreement shall be construed as to grant you any rights or licenses with regard to such third-party trademarks or to entitle you to use such third party trademarks.
You acknowledge that the source code for the Product is proprietary to the Licensor or its suppliers and/or licensors and constitutes trade secrets of the Licensor or its suppliers and/or licensors. Except as otherwise specifically provided herein, you agree not to disassemble, decompile or "unlock", decode or otherwise reverse-translate or reverse-engineer, or attempt in any manner to reconstruct or discover any source code or underlying algorithms of the Product or any part thereof provided solely in Object Code form but you may change, add or delete any files of the licensed copy of the Products and you may adapt or modify the Source Code solely for purposes of Operating a licensed copy of the Product and as expressly permitted pursuant to the type of the License purchased hereunder provided that you may not, in any event, remove or alter any copyright notices or other proprietary notices on any copies of the Product, whether so modified or not, and further provided that any such change, addition, deletion, adaptation or modification voids any express warranty provided herein and terminates any right to support services.
You agree that, unless otherwise specifically provided herein the Product, including the specific design and structure of individual programs and the Product, constitute confidential proprietary information of the Licensor or its suppliers and/or licensors. You agree not to transfer, copy, disclose, provide or otherwise make available such confidential information in any form to any third party. For purposes hereof, "License Key" shall mean a file or a unique sequence of digit and/or symbols provided to you by the Licensor confirming the purchase of the license from the Licensor, which may carry the information about the License, i.e. its type, the user name and the number of licenses purchased, and enabling the full functionality of the Product in accordance with the License granted under this Agreement. You agree to implement reasonable security measures to protect such confidential information provided however, that you may make and distribute unlimited copies of the trial version of Product in object code only, including copies for commercial distribution, as long as each copy that you make and distribute contains this Agreement subject to end user's acceptance before the first use, and the same copyright and other proprietary notices pertaining to the Product that appear in the Product and further provided, that in connection with the distribution of the trial version of the Product you do not charge any fees without Licensor's prior written consent. Notwithstanding the foregoing, any embedded License Key information in the html source shall not be deemed a public disclosure or a violation of this Agreement. If you download the Software from the Internet or similar on-line source, you must include the copyright notices resident on the Software with any on-line distribution and on any media you distribute that includes the Software.
The Licensor grants you the non-exclusive and non-transferable license to store, load, install, execute, and display (to "Use") the specified version of the Software on a specified number of computers, workstations or servers strictly in accordance with the Specifications of the Software (i.e. to upload electronic files), provided that, such Use is deemed to be processed with (i) a single server if such server has not more than 2 CPUs, having not more than eight (8) "cores" per each CPU, for which the Software was designed and/or (ii) a single virtual cloud storage (VCS), if such VCS does not transmit more than 10 TB of data (each a "Client Device") pursuant to the terms and conditions of this Agreement ("License") and you hereby agree and accept such License as follows:
In order to Operate the Product you may require additional third-party software which is not licensed hereunder and not under Licensor's control. Notwithstanding any provision to the contrary herein, nothing in this Agreement shall be construed as to grant you any rights or licenses with regard to such third-party software or to entitle you to use such software.
If you use different versions of the Product or different language editions of the Product, if you receive the Product on multiple media, if you otherwise receive multiple copies of the Product, or if you received the Product bundled with other software, the total permitted number of your Client Devices and/or Domain connectors and server connectors on which all versions of the Product are installed shall correspond to the number of licenses you have obtained from the Licensor provided that unless the licensing terms and the License Key provides otherwise, each purchased license entitles you to install and Use the Product on one (1) Client Device and/or Domain connectors and server connectors and implemented solely with one (1) Domain. You may not rent, bundle with other products or materials, lease, sublicense, lend or transfer any versions or copies of the Product regardless of whether you use the Product or not without Licensor's written consent.
Upon request and paying an appropriate annual subscription fees, Licensor will provide you with Licensor's online technical support and maintenance services ("Help Desk and Maintenance Support Services") for a period of one (1) year period, provided that you may extend the Help Desk Support and Maintenance Services, as available, by providing at least thirty (30) day notice to Licensor and paying for the appropriate annual subscription fees to Licensor per applicable terms and conditions set forth on the Licensor Site. Among other benefits of the Help Desk Support Maintenance and Support Services is that, during the term thereof, you may download free Updates and New Releases to the Product when and as the Licensor publishes them in its website or through other online services. If a particular version of the Product is an Update to a previous version of the Product, you must possess a valid license to such previous version in order to Use the Update and/or New Releases. You may continue to use the previous version of the Product on Licensee System after you receive the Update and/or New Releases in order to facilitate the transition to the Update and/or New Releases, provided that the Update and/or New Releases and the previous version are installed on the same Client Device. Notwithstanding anything to the contrary herein, you hereby acknowledge and agree that any obligation that Licensor may have with regard to supporting the previous version of the Product shall end upon availability of the Update and/or New Releases (i.e. in lieu of Licensor's resolving issues with regard to the previous version, you may be asked to install an Update and/or New Releases). Notwithstanding any provision to the contrary herein, except as specifically provided herein, nothing in this Agreement shall be construed as to grant you any rights or licenses with regard to the Updates and/or New Releases of the Product or to entitle you to any Updates and/or New Release. This Agreement does not obligate the Licensor to provide any Updates and/or New Release. Notwithstanding the foregoing, any Updates and/or New Release that you may receive become part of the Product and the terms of this Agreement apply to them (unless this Agreement is superceded by a further Agreement accompanying such Update or modified version of to the Product).
Licensor, solely at its own discretion, upon Licensee's written request and payment of the applicable fees, may create a customized version of the Product ("Customized Product") in accordance with the specifications provided by Licensee and agreed on by the Licensor. Notwithstanding anything contrary herein and for avoidance of doubt, Licensee hereby expressly agrees, that all right, title and interest to Customized Product and its derivative materials developed by the Licensor pursuant to this Section 2.5, including without limitations, a revision, modification, translation, abridgement, condensation, expansion, or any other form in which Product may be recast, transformed, or adapted ("Customization Materials") shall (i) solely belong to and be owned by the Licensor, and (ii) if applicable, vest in the Licensor immediately and irrevocably upon its creation and the Licensor shall have and enjoy any and all proprietary rights in and to the Customization Materials and Customized Product under all federal, state, and international intellectual property laws (including, without limitation, the Copyright Act of 1976, as amended) and laws of any other applicable jurisdiction.
Nothing contained in this Agreement allows you to bundle, merge or otherwise combine the Product or any portion thereof with your own application or application of any third party for any reason whatsoever. You may bundle, merge or otherwise combine the Product with your own application or application of any third party for which you legally obtained a license from such third party upon Licensor's written consent, which can be withheld at Licensor's sole discretion, and entering into an OEM agreement provided to you by Licensor ("OEM Agreement").
Licensee shall maintain and enforce on its site or other applicable site where the Product is Operated, a privacy policy in accordance with industry standards and "terms of use" or "terms of service" as to which Licensee's customers must explicitly agree to prior to any use. Such documents shall detail, describe and restrict the use of the Products by site's customer and visitors to the rights granted to Licensee herein and provide protection, at least as restrictive of Licensor's proprietary rights, including without limitation, intellectual property rights and remedies, as this Agreement.
3.1. The term of this Agreement ("Term") shall begin when you download, explicitly agree to the terms hereof, start Using the Product or install the Product (whichever is earlier) and shall continue, unless otherwise terminated pursuant hereto, in perpetuity or for the term specified in the License granted hereunder. The Licensor may terminate this Agreement by offering you a superseding Agreement for the Product or any replacement or modified version of or upgrade or New Release of the Product and conditioning your continued use of the Product or such replacement, modified or upgraded version or New Release on your acceptance of such superseding Agreement. This Agreement may be also terminated by the Licensor immediately and without notice if you fail to comply with any of your obligation or conditions of this Agreement. Without prejudice to any other rights, this Agreement will terminate automatically if you fail to comply with any of the limitations or other requirements described herein. Upon any termination or expiration of this Agreement, you must immediately cease use of the Product and destroy all copies of the Product.
3.2. No Rights Upon Termination. Upon termination of this Agreement you will no longer be authorized to Operate or use the Product in any way.
3.3. Material Terms and Conditions. You specifically agree that each of the terms and conditions of this Section 3 are material and that failure of you to comply with these terms and conditions shall constitute sufficient cause for Licensor to immediately terminate this Agreement and the License granted under this Agreement. The presence of this Section 3.3 shall not be relevant in determining the materiality of any other provision or breach of this Agreement by either party hereto.
Except as otherwise agreed by Licensor in writing, notwithstanding anything to the contrary herein, you may not Operate, Use, or modify the Product in any way as to form the basis for creating a product that provides the same, or substantially the same, functionality as the Product; and in the event you develop any modifications, enhancements, derivative works and/or extensions to the Product, either independently or jointly with Licensor, such modifications, enhancements, derivative works and/or extensions and all rights associated therewith will be the exclusive property of Licensor. You will not grant, either expressly or impliedly, any rights, title, interest, or licenses to any such modifications, enhancements, derivative works and/or extensions to any third party. You will, however, be entitled to use such modifications, enhancements, derivative works and/or extensions under the terms set forth in this Agreement. You hereby assign all right, title and interest in and to such modifications, enhancements, derivative works and/or extensions to the Product to Licensor. You also agree to execute, acknowledge and deliver to Licensor all documents and do all things Licensor deems necessary or desirable, at no cost to but at Licensor expense, to enable Licensor to obtain and secure such modifications, enhancements, derivative works and/or extensions anywhere in the world. You agree to secure all necessary rights and obligations from relevant employees or third parties in order to satisfy the above obligations.
In addition to the other requirements set forth in this Section 4, you hereby agree to indemnify, hold harmless, and defend Licensor from and against any and all liabilities, damages, losses, costs and expenses (including reasonable attorneys' fees) arising from or related to any claim, action, proceeding or allegation that arises or results, either directly or indirectly, from the use and distribution of any of your software application product(s), components or Results by any third party, including without limitation any of your customers and/or end-users.
Except as otherwise agreed by Licensor in writing, under no circumstances you shall sell, loan, rent, lease, loan, license, sublicense, publish, display, distribute, or otherwise transfer to a third party the Product, any copy or use thereof, in whole or in part, without Licensor's prior written consent, provided that if such non-waivable right is specifically granted to you under applicable law in your jurisdiction you may transfer your rights under this Agreement permanently to another person or entity, provided that a) you also transfer this Agreement, the Product, all accompanying printed materials, and all other software or hardware bundled or pre-installed with the Product, including all copies, Updates and prior versions, to such person or entity; b) retain no copies, including backups and copies stored on a Client Device; and c) the receiving party accepts the terms and conditions of this Agreement and any other terms and conditions upon which you legally purchased a license to the Product. Notwithstanding the foregoing, you may not transfer education, pre-release, or "not for resale" copies of the Product. In no case you may permit third parties to benefit from the use or functionality of the Product via a timesharing, service bureau or other arrangement, except to the extent such use is specified in the application price list, purchase order or product packaging for the Product.
Except as otherwise specifically provided for in this Agreement, you may not use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, otherwise reverse engineer, or otherwise reduce any party of the Product to human readable form or transfer the licensed Product, or any subset of the licensed Product, nor permit any third party to do so, except to the extent the foregoing restriction is expressly prohibited by applicable law. Notwithstanding the foregoing sentence, decompiling the Software is permitted to the extent the laws of your jurisdiction give you the non-waivable right to do so to obtain information necessary to render the Software interoperable with other software; provided, however, that you must first request such information from the Licensor and the Licensor may, in its discretion, either provide such information to you (subject to confidentiality terms) or impose reasonable conditions, including a reasonable fee, on such use of the Software to ensure that the Licensor's and its suppliers and/or licensors proprietary rights in the Software are protected. You may not modify, or create derivative works based upon the Product in whole or in part. Any such unauthorized use shall result in immediate and automatic termination of this Agreement and the License granted hereunder and may result in criminal and/or civil prosecution. Neither Product's binary code nor source may be used or reverse engineered to re-create the program algorithm, which is proprietary, without written permission of the Licensor. All rights not expressly granted here are reserved by Licensor and/or its suppliers and licensors, as applicable.
Except as specifically provided in this Agreement, you may not give, make available, give away, sell or otherwise transfer your registration License Key or any copy thereof to a third party. Product's License Key may not be distributed, except as provided herein, outside of the area of legal control of the person or persons who purchased the original License, without written permission of the Licensor. Doing so will result in an infringement of copyright. The Licensor retains the right of claims for compensation in respect of damage which occurred by your giving away the License Key or registration code contained therein. This claim shall also extend to all costs which the Licensor or its licensors incur in defending themselves.
You shall not extract or Use any functionality of this Software other than as part of normal Operation of the Product described in the Documentation and as integral part of Operation and functionality of the Product as a whole.
You may not remove any proprietary notices or labels on the Product. The Product shall always retain and maintain all electronic prominent copyright, logos and other notices (e.g. "Copyright © 2010 Aurigma, Inc. and its licensors. All rights reserved" and/or "Powered by Aurigma"), including without limitation Thawte and other digital certificates as originally placed by Licensor. You may not copy the Product except as expressly permitted in Section 2 above.
Except as otherwise specifically provided herein, you may not transfer or assign any of the rights granted to you under this Agreement or any of your obligations pursuant hereto.
You agree that in Operating the Product and in using any report or information derived as a result of Operating this Product, you will comply with all applicable international, national, state, regional and local laws and regulations, including, without limitation, privacy, copyright, export control and obscenity law.
Solely for the purpose of preventing unlicensed use of the Product, the Software may install on your computer technological measures that are designed to prevent unlicensed use, and the Licensor may use this technology to confirm that you have a licensed copy of the Product. The update of these technological measures may occur through the installation of the Updates. The Updates will not install or may fail to Operate if installed on unlicensed copies of the Product. If you are not using a licensed copy of the Product, you are not allowed to install the Updates. The Licensor will not collect any personally identifiable information from your computer during this process.
The Licensor warrants that for the larger of (x) sixty (60) days and (y) the minimum warranty period required by non-waivable provision of applicable law (the "Warranty Period"), from the earlier of (i) original purchase of the media on which the Product is contained, or (ii) the date the License Key is provided to you by Licensor, the Product will be free from defects in materials and workmanship and that the Product will perform substantially in accordance with the Documentation or generally conform to the Product's specifications published by the Licensor. Non-substantial variations of performance from the Documentation do not establish a warranty right. THIS LIMITED WARRANTY DOES NOT APPLY TO TRIAL AND EVALUATION VERSIONS, UPDATES, PRE-RELEASE, TRYOUT, PRODUCT SAMPLER, OR NOT FOR RESALE (NFR) COPIES OF PRODUCT. To make a warranty claim, you must return the Product to the location where you obtained it along with proof of purchase within the applicable Warranty Period of the license fee you paid for the Product. THE LIMITED WARRANTY SET FORTH IN THIS SECTION GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE ADDITIONAL RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.
The Licensor and its suppliers' entire liability and your exclusive remedy for any breach of the foregoing warranty shall be at the Licensor's option: (i) return of the purchase price paid for the license, if any, (ii) replacement of the defective media in which the Product is contained or replacement of the conforming version of the Product, including, at the option of the Licensor, an upgrade to a later version or release of the Product, or (iii) correction of the defects, "bugs" or errors within reasonable period of time. You must return or make available the defective media and/or the Product to the Licensor at your expense with a copy of your receipt. This limited warranty is void if the defect has resulted from accident, abuse, or misapplication. Any replacement media will be warranted for the remainder of the original warranty period.
EXCEPT FOR THE FOREGOING LIMITED WARRANTY AND FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT TO WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO YOU IN YOUR JURISDICTION, THE PRODUCT IS PROVIDED "AS-IS" WITHOUT ANY WARRANTY WHATSOEVER AND THE LICENSOR MAKES NO PROMISES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE, REGARDING OR RELATING TO THE PRODUCT OR CONTENT THEREIN OR TO ANY OTHER MATERIAL FURNISHED OR PROVIDED TO YOU PURSUANT TO THIS AGREEMENT OR OTHERWISE. YOU ASSUME ALL RISKS AND RESPONSIBILITIES FOR SELECTION OF THE PRODUCT TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE PRODUCT. THE LICENSOR MAKES NO WARRANTY THAT THE PRODUCT WILL BE ERROR FREE OR FREE FROM INTERRUPTION OR FAILURE, OR THAT IT IS COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, SATISFACTORY QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCT AND THE ACCOMPANYING WRITTEN MATERIALS OR THE USE THEREOF. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. YOU HEREBY ACKNOWLEDGE THAT THE PRODUCT MAY NOT BE OR BECOME AVAILABLE DUE TO ANY NUMBER OF FACTORS INCLUDING WITHOUT LIMITATION PERIODIC SYSTEM MAINTENANCE, SCHEDULED OR UNSCHEDULED, ACTS OF GOD, TECHNICAL FAILURE OF THE SOFTWARE, TELECOMMUNICATIONS INFRASTRUCTURE, OR DELAY OR DISRUPTION ATTRIBUTABLE TO VIRUSES, DENIAL OF SERVICE ATTACKS, INCREASED OR FLUCTUATING DEMAND, AND ACTIONS AND OMISSIONS OF THIRD PARTIES. THEREFORE, THE LICENSOR EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY REGARDING SYSTEM AND/OR SOFTWARE AVAILABILITY, ACCESSIBILITY, OR PERFORMANCE. THE LICENSOR DISCLAIMS ANY AND ALL LIABILITY FOR THE LOSS OF DATA DURING ANY COMMUNICATIONS AND ANY LIABILITY ARISING FROM OR RELATED TO ANY FAILURE BY THE LICENSOR TO TRANSMIT ACCURATE OR COMPLETE INFORMATION TO YOU.
YOU ASSUME THE ENTIRE COST OF ANY DAMAGE RESULTING FROM YOUR USE OF THE PRODUCT AND THE INFORMATION CONTAINED IN OR COMPILED BY THE PRODUCT, AND THE INTERACTION (OR FAILURE TO INTERACT PROPERLY) WITH ANY OTHER HARDWARE OR SOFTWARE WHETHER PROVIDED BY THE LICENSOR OR A THIRD PARTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE LICENSOR OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF GOODWILL, WORK STOPPAGE, HARDWARE OR SOFTWARE DISRUPTION IMPAIRMENT OR FAILURE, REPAIR COSTS, TIME VALUE OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCT, OR THE INCOMPATIBILITY OF THE PRODUCT WITH ANY HARDWARE SOFTWARE OR USAGE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL LICENSOR'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES IN ANY ONE OR MORE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE EXCEED THE AMOUNT PAID BY YOU FOR THE PRODUCT. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT THAT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
The Product and accompanying Documentation are deemed to be "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", respectively, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights, including any use, modification, reproduction, release, performance, display or disclosure of the Product and accompanying Documentation, 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.
If you are a U.S. person or entity or if you are otherwise subject to U.S. laws and regulations, you acknowledge and agree that the Product may be subject to restrictions and controls imposed by the Export Administration Act and the Export Administration Regulations of the United States (the "Acts"). You agree and certify that neither the Product nor any direct product thereof is being or will be used for any purpose prohibited by the Acts. You may not Operate, download, export, or re-export the Product (a) into, or to a national or resident of, any country to which the United States has embargoed goods, or (b) to anyone on the United States Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By Using the Product, you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country or on any such list. You acknowledge that it is your sole responsibility to comply with any and all government export and other applicable laws and that the Licensor has no further responsibility for such after the initial license to you. You warrant and represent that neither the U.S. Commerce Department, Bureau of Export Administration nor any other U.S. federal agency has suspended, revoked or denied your export privileges.
You hereby expressly consent to the Licensor's processing of your personal data (which may be collected by the Licensor or its distributors) according to the Licensor's current privacy policy as of the date of the effectiveness hereof which is incorporated into this Agreement by reference (see http://www.aurigma.com/privacy-policy). By entering into this Agreement, you agree that the Licensor may collect and retain information about you, including your name, email address and credit card information. The Licensor employs other companies and individuals to perform functions its behalf. Examples include fulfilling orders, delivering packages, sending postal mail and e-mail, removing repetitive information from customer lists, analyzing data, providing marketing assistance, processing credit card payments, and providing customer service. They have access to personal information needed to perform their functions, but may not use it for other purposes. The Licensor publishes a privacy policy on its web site and may amend such policy from time to time in its sole discretion. You should refer to the Licensor's privacy policy prior to agreeing to this Agreement for a more detailed explanation of how your information will be stored and used by the Licensor. If "you" are an organization, you will ensure that each member of your organization (including employees and contractors) about whom personal data may be provided to the Licensor has given his or her express consent to the Licensor's processing of such personal data. Personal data will be processed by the Licensor or its distributors in the country where it was collected, and possibly in the United States, European Union and Russian Federation. The laws of such jurisdictions regarding processing of personal data may be less or more stringent than the laws in your jurisdiction.
This Agreement shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Virginia without reference to conflicts of law rules and principles. To the extent permitted by law, the provisions of this Agreement shall supersede any provisions of the Uniform Commercial Code as adopted or made applicable to the Products in any competent jurisdiction. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly disclaimed and excluded. If you are a resident of the United States for purpose of determination of personal jurisdiction, the federal and state courts within the Commonwealth of Virginia shall have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement. You agree that this Agreement is to be performed in the Commonwealth of Virginia and that any action, dispute, controversy, or claim that may be instituted based on this Agreement, or arising out of or related to this Agreement or any alleged breach thereof, shall be prosecuted exclusively in the state and federal courts in of the Commonwealth Virginia and you, to the extent permitted by applicable law, hereby waive the right to change venue to any other state, county, district or jurisdiction; provided, however, that the Licensor as claimant shall be entitled to initiate proceedings in any court of competent jurisdiction. If you are a non-US resident you hereby agree that any dispute, controversy or claim arising or concerning this Agreement shall be determined and settled by arbitration in accordance with the International Chamber of Commerce accordance with the Rules of Arbitration of the International Chamber of Commerce (the "Rules"). The claimant party shall appoint one arbitrator and the respondent party shall appoint one arbitrator, and the two arbitrators so appointed shall appoint the third arbitrator, in accordance with the provisions of the Rules. The place of arbitration shall be Washington, DC, USA. The language of the arbitration shall be English. Any award granted by the arbitrator(s) shall be final and binding upon the involved parties and shall constitute the sole and exclusive remedy for any dispute between the involved parties regarding the issue at dispute resolved by such arbitration.
No action, regardless of form, arising out of the transactions under this Agreement, may be brought by either party hereto more than one (1) year after the cause of action has occurred, or was discovered to have occurred, except that an action for infringement of intellectual property rights may be brought within the maximum applicable statutory period.
This Agreement is the entire agreement between you and supersedes any other prior agreements, proposals, communications or advertising, oral or written, with respect to the Product or to subject matter of this Agreement provided that the Licensor and you may limit, modify or changes the applicability of the terms of this Agreement by a prior, contemporaneous or subsequent written agreement by referencing this Section 9.3 of the Agreement and expressly providing for such limitation, modification or changes. You acknowledge that you have read this Agreement, understand it and agree to be bound by its terms. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, void, or unenforceable for any reason, in whole or in part, such provision will be more narrowly construed so that it becomes legal and enforceable, and the entire Agreement will not fail on account thereof and the balance of the Agreement will continue in full force and effect to the fullest extent permitted by law. No waiver of any breach of any provisions of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach and no waiver will be effective unless made in writing. Notwithstanding any provisions to the contrary herein, the provisions concerning the confidential information, Licensee's obligations with respect to intellectual property rights or any duties, liabilities or obligations which by the terms hereof or in context are to survive termination, shall survive the termination or expiration of this Agreement and such termination or expiration shall not release Licensee of its obligations regarding such survived provisions.
Should you have any questions concerning this Agreement, or if you desire to contact the Licensor for any reason, please contact our Customer Department at: info@aurigma.com.
Copyright © 2002-2010 Aurigma, Inc., and its licensors. All rights reserved. The Product, including the Software and any accompanying Documentation, are copyrighted and protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Aurigma® is a US registered trademark of Aurigma, Inc. Any other third-party trademarks, which are not licensed hereunder and not under Aurigma, Inc.'s control, are properties of the respective third party owners and licensees and are subject to applicable third-party terms and conditions.