IMPORTANT:
READ CAREFULLY
Two
license agreements are presented below.
1.
Sodius Evaluation Agreement
2.
Sodius Global License and Maintenance Agreement
If
you are obtaining the Program, as defined herein, for purposes of productive
use (other than evaluation, testing, trial "try or buy," or
demonstration): By clicking on the "Accept" button below, You accept
the Sodius Global License and Maintenance Agreement, without modification.
If
you are obtaining the Program for the purpose of evaluation, testing, trial
"try or buy," or demonstration (collectively, an
"Evaluation"): By clicking on the "Accept" button below,
You accept both (i) the Sodius Evaluation Agreement (the "Evaluation
Agreement"), without modification; and (ii) the Sodius Global License and
Maintenance Agreement (the "License Agreement"), without
modification.
The
Evaluation Agreement will apply during the term of Your Evaluation.
The
License Agreement will automatically apply if You elect to retain the Program
after the Evaluation (or obtain additional copies of the Program for use after
the Evaluation) by entering into a separate procurement order (“Order”) with
Sodius.
The
Evaluation Agreement and the License Agreement are not in effect concurrently;
neither modifies the other; and each is independent of the other.
The
complete text of each of these two license agreements are as follows.
Evaluation Agreement
BY
DOWNLOADING, INSTALLING, COPYING, ACCESSING, OR USING THE PROGRAM YOU AGREE TO
THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF
ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT
THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO
THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS,
-
DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, OR USE THE PROGRAM; AND
-
PROMPTLY RETURN THE PROGRAM AND PROOF OF ENTITLEMENT TO THE PARTY FROM WHOM YOU
ACQUIRED IT TO OBTAIN A REFUND OF THE AMOUNT YOU PAID. IF YOU DOWNLOADED THE
PROGRAM, CONTACT THE PARTY FROM WHOM YOU ACQUIRED IT.
1. Licenses.
1.1 Subject
to the terms and conditions of this Agreement, Sodius, S.A.S., a corporation
existing under the laws of the France with offices at 1 rue Andre Gide – 75015
– Paris, France (“Sodius”) hereby grants You the following non-exclusive and
non-transferable license for 15 days to install and execute the object code
version of the software and all patches, bug fixes and Updates, if any, thereto
supplied by Sodius to You during the term of this Agreement (collectively, the
"Program");
1.2 The licenses granted under this Agreement are expressly
conditioned on your compliance with each of the following conditions:
a. You shall use the Program solely for evaluation purposes, for not more than 15 days after downloading the Program, and shall not otherwise use it for the benefit of any third parties, including without limitation, your subsidiaries or affiliates;
b. All copies of the Program must
retain Sodius's copyright and trademark notices; and,
c. You must at all times adhere to the
terms of this Agreement.
2. Warranties and
Disclaimer. THE PROGRAM(S)
IS PROVIDED “AS IS” WITH NO WARRANTIES OF ANY KIND. SODIUS DISCLAIMS ALL
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES
AS TO THE MERCHANTABILITY, TITLE, FITNESS FOR ANY PARTICULAR PURPOSE OR
NON-INFRINGEMENT OF THE PROGRAM OR ANY SERVICES FURNISHED HEREUNDER. IN NO EVENT SHALL SODIUS BE LIABLE FOR ANY
DAMAGES, DIRECT OR IJNDIRECT, INCLUDING LOST OR ANTICIPATED PROFITS, OR ANY
INCIDENTAL, EXEMPLARY, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, REGARDLESS
OF WHETHER SODIUS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS
OF HOWEVER ANY ALLEGED DAMAGES WERE CAUSED.
YOU UNDERSTAND, ACKNOWLEDGE AND ASSUME ALL LIABILITY AND RISK AS TO THE
QUALITY AND PERFORMANCE OF THE PROGRAM(S).
3. Third Party Software. The Program may contain Programs, as defined in the Eclipse Public
License – v 1.0 (“Public License”) and You agree to comply with the terms of
such Public License to the extent applicable.
Such Program(s) are provided “as is” and You acknowledges and agrees
that all Contributors, as defined in the Public License” shall have no
liability whatsoever relating to your use of the Program(s), that any provision
set forth herein that is inconsistent with the Public License is offered by
Sodius, alone, and that the source code for any Program(s) create by Sodius is
available to You upon request.
4. Term and Termination.
This Agreement shall commence as of the Effective Date and shall remain in
effect for 15 days. In addition, Sodius
may terminate this Agreement and any licenses for convenience at any time, with
our without notice. Upon termination of
this Agreement, You shall destroy and/or no longer use all Program in your
possession or under your control together with all copies thereof in any
form. Termination shall not affect
obligations that accrued prior to the effective date of termination. Sections 2, 3, 4, 5, 6, 7, 8, 9, and 12 shall
survive the termination of this Agreement.
6. Indemnification. You agree to indemnify, defend and hold Sodius harmless from any and
all damages arising from your use of the Program.
7. No
Waiver. Neither party shall by mere lapse of time
without giving notice or taking other action hereunder be deemed to have waived
any breach by the other party of any of the provisions of this Agreement.
Further, the waiver by either party of a particular breach of this Agreement by
the other party shall not be construed as, or constitute, a continuing waiver
of such breach, or of other breaches of the same or other provisions of this
Agreement.
8. Severability. If
any provision of this Agreement shall be held illegal, unenforceable, or in
conflict with any law of a federal, state, or local government having
jurisdiction over this Agreement, the validity of the remaining portions or
provisions hereof shall not be affected thereby.
9. Exports. You agree not to export
or transmit, directly or indirectly, any technical data or products received
from Sodius except in full compliance with all U.S. Export Administration
Regulations and the import/export rules of any other country. Diversion
contrary to
10. Compliance
with Law. Each party shall comply with all applicable
laws and regulations of governmental bodies or agencies in its performance
under this Agreement.
11. No
Assignment. This Agreement and the licenses granted
hereunder may not be assigned, sub-licensed or transferred by You without the
prior written consent of Sodius.
12. Governing Law. This
Agreement shall be governed by and determined in accordance with the laws of
France, without regard to its conflict of laws provisions, and You hereby
submit to the exclusive jurisdiction of the courts located in France. The rights and obligations of the parties under this
Agreement shall not be governed by the provisions of the United Nations
Convention on Contracts for the International Sale of Goods ("the
Convention"). Rather the rights and obligations of the parties shall be
governed as provided in this License Agreement. You acknowledge that the Convention does not
apply to this License Agreement or to the resolution of any disputes arising
out of or related to this License Agreement.
13. General. This
Agreement is the complete agreement between the parties with respect to the
subject matter hereof and supersedes any and all prior agreements and
understandings. No terms or provisions
of this Agreement may be varied, extended or modified, except by a written
instrument specifically referring to and executed in the same manner as this
Agreement. This Agreement may be signed
by the parties in separate counterparts which shall together constitute one and
the same agreement.
License Agreement
BY
DOWNLOADING, INSTALLING, COPYING, ACCESSING, OR USING THE PROGRAM YOU AGREE TO
THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF
ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT
THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO
THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS,
-
DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, OR USE THE PROGRAM; AND
-
PROMPTLY RETURN THE PROGRAM AND PROOF OF ENTITLEMENT TO THE PARTY FROM WHOM YOU
ACQUIRED IT TO OBTAIN A REFUND OF THE AMOUNT YOU PAID. IF YOU DOWNLOADED THE
PROGRAM, CONTACT THE PARTY FROM WHOM YOU ACQUIRED IT.
1. Licenses.
1.1 Subject
to the terms and conditions of this Agreement, Sodius, S.A.S., a corporation
existing under the laws of the France with offices at 1 rue Andre Gide – 75015
– Paris, France (“Sodius”) hereby grants to You the following non-exclusive and
non-transferable license for the term specified in the Order, which is
incorporated herein by reference upon signature of the Parties.
a.
To
install and execute the object code version of the software specified under the
heading "Program" in the Order and all patches, bug fixes and Updates
thereto supplied by Sodius to You during the term of this Agreement
(collectively, the "Program") and such Program shall be installed as
specified in Order and located at the site specified in Order (the
"Site");
b. To make a reasonable number of copies of the Program for Your own archival or backup use.
1.2 The licenses granted under this Agreement are expressly conditioned
on Your compliance with each of the following conditions:
a. You shall install and execute the Program only on the Equipment at the Site, or on such other computer equipment or at such other site as Sodius may approve in writing in advance;
b. You shall use the Program solely to manage the operations of Your own business and develop applications (“Applications”), and shall not otherwise use it for the benefit of any third parties, including without limitation, Your subsidiaries or affiliates, except as specified herein;
d. All copies of the Program made by You
must retain Sodius's copyright and trademark notices; and
e. You shall permit Sodius or its
authorized representatives reasonable access to Your facilities during regular
business hours to inspect Your Site in order to ensure Your compliance with the
terms of this Section 1.2.
1.3 Provided You are current on all fees payable, You may
change the Site to another location, provided (i) any applicable fee is paid by
You, (ii) the prior use is discontinued, and (iii) You continue to use the Program
under the terms of this Agreement. You shall give Sodius written notice no less
than thirty (30) days prior to such relocation, including the new address. Such new location shall be the Site.
2. Delivery;
Installation; Acceptance.
2.1 Provided that
License has paid the applicable License Fees, Sodius shall, on or around the
date specified under the heading "Installation Date" in Order (the
"Installation Date"):
a. enable one (1) object code version of the Program and one (1) copy of the documentation specified under the heading "Documentation" in Order (the "Documentation") to be deliver to You; and
2.2 You shall be deemed to have accepted the Program upon
delivery.
3. Maintenance and Support. If You so elect on Order, Sodius shall
perform the following maintenance and technical support services (the
"Maintenance and Support Services") commencing on the Installation
Date:
a. Sodius shall supply to You bug fixes, patches and Updates
to the Program as such Updates are made available to Sodius's general client
base at no additional charge. For the
purposes of this Agreement, "Updates" are enhancements to the
relevant component of the Program and are signified by increments of the
numeral to the right of the decimal point of the component version number.
b. Sodius shall provide You with telephone support, Monday
through Friday, during Sodius's regularly scheduled business days, excluding generally
recognized holidays.
4. Fees. You shall pay
the license fees for the Program (the "License Fees"), the fees for
the Maintenance and Support Services (the "Maintenance and Support
Fees"), and the subscription fees (the “Subscription Fees”), if any, as set
forth in Order.
5. Payments.
5.1 All License Fees
and Subscription Fees are due on the Effective Date, and any subsequent
Subscription Fees are due at least 30 days prior to the renewal term for such
subscription license and receipt of invoice. The Maintenance and Support Fees are due
annually, in advance, beginning on the Effective Date and thereafter on each
anniversary of the Effective Date.
Sodius shall invoice You for the Expenses and any other payments due
under this Agreement no more often than once per calendar month. Payment shall be due within thirty (30) days
following receipt by You of such invoices.
All payments shall be made in
5.2 All
payments not made when due shall be subject to late charges of the lesser of
(i) one and one-half percent (1.5%) per month of the overdue amount or (ii) the
maximum amount permitted under applicable law.
6. Taxes. You shall pay
all sales, use and excise taxes relating to, or under, this Agreement,
exclusive of taxes based on or measured by Sodius's net income, unless You are
exempt from the payment of such taxes and provides Sodius with evidence of such
exemption.
7. Third Party Software.
7.1 You acknowledge and agree that the software
specified under the heading “Necessary Third Party Software” on the Order (the
"Necessary Third Party Software") and additional Sodius Programs
under the heading “Additional Sodius Software” is necessary for the installation
and operation of the Program and must be licensed separately by You. You agree that the Necessary Third Party
Software is not the subject of this Agreement, and Sodius shall not be
responsible for the installation or maintenance of the Necessary Third Party
Software, and makes no representations or warranties regarding the Necessary
Third Party Software whatsoever. Any
fees for the Necessary Third Party Software shall be borne by You and paid
directly to the licensor of the Necessary Third Party Software.
7.2 The Program may contain Programs, as defined in the Eclipse
Public License – v 1.0 (“Public License”) and You agree to comply with the
terms of such Public License to the extent applicable. Such Program(s) are provided “as is” and You
acknowledge and agree that all Contributors, as defined in the Public License”
shall have no liability whatsoever relating to Your use of the Program(s), that
any provision set forth herein that is inconsistent with the Public License is
offered by Sodius, alone, and that the source code for any Program(s) create by
Sodius is available to upon Your request.
8. Representations; Limited Warranties.
8.1 Your Warranty. You represent and warrant that all necessary
corporate proceedings have been taken to authorize the transactions
contemplated by this Agreement and that it shall abide by the terms and
condition of this Agreement.
8.2 Sodius Warranty. Sodius represents and warrants that (i) all
necessary corporate proceedings have been taken to authorize the transactions
contemplated by this Agreement, and (ii) it is the owner or an authorized
licensee of the Program including all intellectual property rights therein,
under U.S. copyright, patent, trademark, trade secret, and other applicable
U.S. law.
8.3 Software Warranty. For a period of ninety (90) days
following the Installation Date and during the term of Maintenance and Support
Services, if any, obtained by You, Sodius shall use reasonable efforts to
correct any component of the Program that causes a reproducible error that
result in (i) a total loss of functionality of the Program (i.e.,
"crashing"), (ii) the generation of error messages, or (iii) the
generation of errors in automatic data creation or calculations, provided such error is reported to
Sodius by You in a writing that describes such error in detail. Sodius shall have no obligation to provide
corrections or replacements in the event (i) You modify the Program (or any
component thereof) without Sodius's prior written consent; (ii) the error is
caused in whole or in part by persons other than Sodius, including without
limitation, Your failure to properly enter data; or (iii) the error is caused
in whole or in part by Your installation or use of the Program in association
with operating environments and platforms other than those specified by
Sodius. In the event that Sodius
determines that Your report of an error is incorrect, Sodius may charge You for
Sodius's time at Sodius's published rates then in effect.
8.4 DISCLAIMER. EXCEPT AS SPECIFICALLY SET FORTH IN THIS
SECTION 11, SODIUS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES AS TO THE MERCHANTABILITY,
FITNESS FOR ANY PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THE PROGRAMS OR
SERVICES FURNISHED HEREUNDER. IN NO
EVENT SHALL Sodius BE LIABLE FOR ANY LOST OR ANTICIPATED PROFITS, OR ANY
INCIDENTAL, EXEMPLARY, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, REGARDLESS
OF WHETHER SODIUS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SODIUS DOES
NOT WARRANT THAT THE PROGRAMS WILL OPERATE UNINTERRUPTED OR ERROR-FREE.
8.5 Limitation. In no event shall Sodius be liable to You for damages in excess of a portion of the License Fees paid to Sodius determined by amortizing such License Fees on a straight-line basis over five years.
9. Non-Solicitation of Sodius Employees. You
agree that You shall not, for a period of two (2) years following the Effective
Date, directly or indirectly employ, offer to employ, or solicit any other
contractual or financial arrangement with, any person who has been an employee
of or independent contractor to Sodius, without first obtaining the prior
written approval of Sodius.
10. Term; Termination.
10.1 Term. This Agreement shall commence as of the
Effective Date and shall remain in effect until terminated as provided herein.
10.2 Termination of Maintenance and Support
Services. Sodius may terminate the
Maintenance and Support Services or may modify the Maintenance and Support Fees
by providing You written notice at least thirty (30) days prior to an
anniversary of the Effective Date. You may
elect to terminate the Maintenance and Support Services by providing Sodius
written notice at least sixty (60) days prior to an anniversary of the
Effective Date. In the event of such
termination, Sodius shall no longer be obligated to provide the Maintenance and
Support Services, and You shall no longer be obligated to pay the Maintenance
and Support Fees. In the event that You have
terminated the Maintenance and Support Services, You may elect to have Sodius
recommence the provision of the Maintenance and Support Services, provided that
You pay to Sodius (i) all fees attributable to prior periods for which You elected
not to receive the Maintenance and Support Services, and (ii) the then-current
fees for the Maintenance and Support Services.
10.3 Termination
for Insolvency. This Agreement and
all licenses granted hereunder shall automatically terminate if You (i) admits
in writing its inability to pay its debts generally as they become due, (ii)
makes a general assignment for the benefit of creditors, (iii) institutes
proceedings to be adjudicated a voluntary bankrupt, or consents to the filing
of a petition of bankruptcy against it, (iv) seeks reorganization under any
bankruptcy act, or consents to the filing of a petition seeking such
reorganization, or (v) has a decree entered against it by a court of competent
jurisdiction appointing a receiver, liquidator, trustee, or assignee in
bankruptcy or in insolvency covering all or substantially all of its property
or providing for the liquidation of its property or business affairs.
10.4 Termination
for Default. Should either party
commit a material breach of its obligations hereunder, or should any of the
representations of either party in this Agreement prove to be untrue in any
material respect, the other party may, at its option, terminate this Agreement,
by thirty (30) days written notice of termination (or, in the event of failure
by You to make any payment when due, fifteen (15) days written notice of
termination), which notice shall identify and describe the basis for such
termination. If, prior to expiration of such period, the defaulting party cures
such default, termination shall not take place.
10.5 Effect
of Termination. Upon termination of
this Agreement, You shall destroy all Program and Documentation in its
possession or under its control together with all copies thereof in any
form. Termination shall not affect
obligations that accrued prior to the effective date of termination. The obligations of the parties under Sections
11.3, 11.4, 12, 13.5, 14, 15, 25, 26 and 27 shall survive the termination of
this Agreement.
11. Proprietary
Rights and Information. You acknowledge Sodius's proprietary rights in
the Program and the Documentation and shall use its best efforts to protect and
defend the proprietary nature of the Program and the Documentation. You shall own all rights, title and interest
to any Applications. Sodius retains all
rights not expressly granted. You shall
not disassemble, decompile, reverse engineer, copy, modify, transcribe, store,
translate, sell, lease, or otherwise transfer or distribute any of the Program
or the Documentation, in whole or in part, without prior authorization in
writing from Sodius. Title to all Program
and the Documentation shall at all times remain solely with Sodius. In the event of any breach of this Section
14, You agree that Sodius would suffer irreparable harm and shall therefore be
entitled to obtain injunctive relief against You.
12. Confidential
Information.
13. Publicity. Neither party shall issue a press release
announcing the business relationship established by this Agreement without the
prior written consent of the other party.
Sodius may, however, disclose publicly (i) that You are a customer of
Sodius, and (ii) the results of any tests or quality assurance evaluations
conducted by You on the Program. Upon the request of Sodius, You shall serve as
a reference for Sodius and allow other customers of Sodius, who are not
competitors of You, to visit Your facilities, during reasonable business hours
and upon reasonable prior notice, to observe the operation of the Program being
used by You pursuant to the license granted to You under this Agreement.
14. Indemnification. Sodius shall indemnify and hold You harmless from and against any
claims, actions, or demands resulting from the actual infringement by the Program
of any patent, trademark, copyright, or other intellectual property right of
any third party. You shall permit Sodius
to replace or modify any affected Program so as to avoid infringement, or to
procure the right for You to continue its use of such items. If neither of such
alternatives is reasonably possible, the infringing items shall be returned to
Sodius, and Sodius's sole liability shall be to refund a portion of License
Fees paid therefor by You determined by amortizing the License Fees on a
straight line basis over three years.
Sodius shall have no obligation hereunder for or with respect to claims,
actions, or demands alleging infringement which arise by reason of (i) the
combination of Program with any software or hardware not supplied by Sodius, or
(ii) the failure of You to install bug fixes, patches or Upgrades provided by
Sodius. The foregoing indemnities are
conditioned on prompt notice of any claim, action, or demand for which
indemnity is claimed, complete control of the defense and settlement thereof by
Sodius, and the cooperation of You in such defense.
15. No Agency.
The parties hereto are independent contractors and nothing in this
Agreement shall create or imply any agency relationship between the parties,
nor shall the Agreement be deemed to constitute a joint venture or partnership
between the parties. Neither party shall
have authority to bind or otherwise obligate the other in any manner
whatsoever.
16. Notice. All
notices and other communications required or permitted to be given under this
Agreement shall be in writing and shall be considered effective when delivered
in person or by courier or when deposited with a recognized express delivery
service or in the U.S. mail as certified mail, return receipt requested,
postage prepaid, and addressed to the party at the address noted above, unless
by such notice a different address shall have been designated in writing.
17. No
Waiver. Neither party shall by mere lapse of time
without giving notice or taking other action hereunder be deemed to have waived
any breach by the other party of any of the provisions of this Agreement.
Further, the waiver by either party of a particular breach of this Agreement by
the other party shall not be construed as, or constitute, a continuing waiver
of such breach, or of other breaches of the same or other provisions of this
Agreement.
18. Severability. If
any provision of this Agreement shall be held illegal, unenforceable, or in
conflict with any law of a federal, state, or local government having jurisdiction
over this Agreement, the validity of the remaining portions or provisions
hereof shall not be affected thereby.
19. Force
Majeure. Neither party shall be in default if failure
to perform any obligation hereunder is caused solely by supervening conditions beyond
that party's control, including acts of God, civil commotions, strikes, labor
disputes, and governmental demands or requirements.
20. Exports. You agree not to export
or transmit, directly or indirectly, any technical data or products received
from Sodius except in full compliance with all U.S. Export Administration
Regulations and the import/export rules of any other country. Diversion
contrary to
22. Compliance
with Law. Each party shall comply with all applicable
laws and regulations of governmental bodies or agencies in its performance
under this Agreement.
23. No
Assignment. This Agreement and the licenses granted
hereunder may not be assigned, sub-licensed or transferred by You without the
prior written consent of Sodius.
24. Governing Law. This
Agreement shall be governed by and determined in accordance with the laws of
France, without regard to its conflict of laws provisions, and You hereby
submit to the exclusive jurisdiction of the courts located in France. The rights and obligations of the parties under this
Agreement shall not be governed by the provisions of the United Nations
Convention on Contracts for the International Sale of Goods ("the
Convention"). Rather the rights and obligations of the parties shall be
governed as provided in this License Agreement. You acknowledge that the Convention does not
apply to this License Agreement or to the resolution of any disputes arising
out of or related to this License Agreement.
25. General. This
Agreement (including the attached Exhibits) is the complete agreement between
the parties with respect to the subject matter hereof and supersedes any and
all prior agreements and understandings.
No terms or provisions of this Agreement may be varied, extended or
modified, except by a written instrument specifically referring to and executed
in the same manner as this Agreement.
This Agreement may be signed by the parties in separate counterparts
which shall together constitute one and the same agreement.