ePhiphony Incorporated
SOFTWARE LICENSE AGREEMENT
Version 1.0
1. GRant. This Software License Agreement (the "License Agreement") is a legal agreement between you and ePhiphony Incorporated. Carefully read this License Agreement. Use of any software or any related documentation (collectively, the "Software") made available to you by ePhiphony Incorporated, in any form or media, constitutes your acceptance of these terms. Subject to the provisions contained in this Software License Agreement, ePhiphony Incorporated ("Licensor") grants to you ("Licensee") a nontransferable, nonexclusive license for the use of the Software specified in the associated Order Agreement (the "Order"), according to the terms and conditions below.
2. license for a single end-user. Unless the Order specifies that Licensee is licensing the Software for two or more users, Licensor grants Licensee, the right to install the Software on a single computer owned and controlled by Licensee for use only by one user, either Licensee, if Licensee is an individual, or an employee of Licensee, if Licensee is a company or organization. That user will be considered an "Eligible End-User" of the Software.
3. license for Multiple end-users. If and only if the Order specifies that Licensee is licensing the Software for two or more users, then sections 3.1 through 3.4 apply.
3.1 Upon delivery of the Software to Licensee, Licensor will provide Licensee with a License Key (the "Key"), which designates the maximum number of the Eligible End-Users, as specified in the Order, that may concurrently use the Software.
3.2 An "Eligible Contractor" is any person or entity who contracts with Licensee to provide consulting, programming, inventory management, or financial services, provided that in the absence of further authorization from Licensor, to qualify as an Eligible Contractor, such person or entity must provide such services, insofar as they pertain to the Software, solely to Licensee for Licensee's sole account, and Licensee must cause each such entity to be bound by, and comply with, the restrictions and obligations applicable to Licensee under this License Agreement.
3.3 An "Eligible End-User" is any individual person who is affiliated with Licensee as (a) an employee, or (b) an Eligible Contractor. Licensee warrants that Licensee will take any and all steps necessary to prevent use of the Software by anyone who is not an Eligible End-User, and to limit the number of Eligible End-Users concurrently using the software so as not to exceed the maximum number of Eligible End-Users specified in the Key.
3.4 Licensor grants Licensee the right to execute the Software only in the Licensee business, and only on computers authorized under section 10.1.
4. two editions. Licensor may choose to distribute the Software in an Evaluation and a Standard Edition, both Editions subject to the License Agreement.
5. Evaluation edition. Sections 5.1 through 5.5 apply only to a license for an Evaluation Edition.
5.1 The Evaluation Edition may, at the discretion of Licensor, have limited functionality compared to the Standard Edition.
5.2 Licensee may use an Evaluation Edition only for a limited "Evaluation Period", which will be specified by Licensor in the Key. If the Evaluation Edition is obtained by download from Licensor's website, then the Evaluation Period begins on the date the Software is first downloaded by Licensee.
5.3 Unless Licensee licenses and pays for a Standard Edition of the Software during the Evaluation Period, Licensee agrees to discontinue the use of such Evaluation Edition promptly upon the expiration of the Evaluation Period.
5.4 Licensee acknowledges and agrees that the Evaluation Edition of the Software will be permitted, at the sole discretion of Licensor, to automatically disable itself and become unusable after the Evaluation Period, and to thereafter deny Licensee access to any data previously entered into the Software.
5.5 Licensee has no rights to maintenance and support for an Evaluation Edition.
6. Standard edition. Sections 6.1 through 6.3 apply only to a license for a Standard Edition.
6.1 Effective Purchase Date. The "Effective Purchase Date" of a Standard Edition is the date that a Key for the Standard Edition is downloaded by Licensee from Licensor's website, or the date that the Software is shipped from a source chosen by Licensor to Licensee, whichever date is applicable.
6.2 Limited Return Policy.
(a) Within thirty (30) days of the Effective Purchase Date, Licensee may receive a full refund of any portion of the purchase price of the Software already received by Licensor from Licensee, exclusive of any shipping and handling charges, for any reason, by contacting Customer Service at ePhiphony during ePhiphony's normal business hours, at 1-877-TRU-SOUND (1-877-878-7686), and requesting a refund from the agent. Licensee will be required to provide the agent with the license number of the Software upon request.
(b) Licensee agrees that, immediately upon receiving authorization for a refund, to uninstall all versions of the Software from Licensee's computers, storage systems, and any other devices, and destroy any media, such as CDs or DVDs, if any, upon which the Software was delivered to Licensee.
(c) Licensee acknowledges and agrees that the Licensor, in its sole discretion, after providing authorization to Licensee for a refund under this section 6.2, may remotely disable the Standard Edition of the Software and cause the Software to become unusable.
6.3 Maintenance and Support.
(a) For one (1) year after the Effective Purchase Date, Licensor will provide Licensee with the following maintenance and support at no additional charge:
· software enhancements, upgrades and improvements, when and if developed and released by Licensor, and at the sole discretion of Licensor; and
· reasonable assistance in use of the Software via telephone during the first thirty (30) days from the date of the Software order to Licensee through a single employee of Licensee designated in the Order (the "Designated Employee"); the Designated Employee may be changed by Licensee upon written notice received by Licensor.
(b) Licensee agrees that the determination of the extent of technical support to be provided by Licensor rests exclusively with Licensor in its discretion, and that Licensor is not required to correct any particular error or defect in the Software or Licensee's use of the Software.
(c) Maintenance and support do not cover hardware; operating system, network, or third party software; nor do they cover issues resulting from Licensee's unauthorized use, misuse, misapplication or modification of the Software.
(d) Maintenance and support will be provided only for the latest major release version of the Software and any subsequent minor releases. A major release of the software will be designated with a whole-number version number (e.g., version 2 or version 2.0). Examples of version numbers for minor releases are 2.1 and 2.3.4. Licensor will, in its sole discretion, determine whether a release is a major release or a minor release, and so designate by assigning an appropriate version number.
7. Taxes
7.1 The license fee does not include applicable federal, state or local sales, use, property, excise, value added, ad valorem, or similar taxes that may be levied upon Licensor as a result of sale or delivery of any product or part under this License Agreement. All such taxes will be assumed and paid by Licensee. Licensor reserves the right to have Licensee pay Licensor for any such taxes as they fall due, for remittance to the appropriate authority. If a resale certificate or other document is required in order to exempt a sale or license fee from taxes, Licensee will furnish Licensor, at Licensor's request, with appropriate documentation prior to shipment by Licensor.
7.2 Licensee agrees to indemnify and hold harmless Licensor from all claims and liability arising from Licensee's failure to report or pay such taxes.
8. Unauthorized Copying.
8.1 Licensee may not make any copies of the Software except as authorized herein.
8.2 Documentation that accompanies the Software is provided solely to support Licensee's authorized use of the Software. Licensee may not use, copy, modify, or distribute the Documentation, or any copy, adaptation, transcription, or merged portion thereof, except as expressly authorized by Licensor by separate written agreement.
8.3 All copies of the Software, including any original copy received from Licensor, shall remain subject to all terms of the License Agreement, and Licensee shall ensure such copies include any copyright, trademark, trade secret, patent, and any other proprietary notice set forth in the Software as originally delivered from Licensor to Licensee.
9. retention of rights by licensor. Licensor retains all ownership of the Software, including all copies of the Software received by Licensee from Licensor or made by Licensee. Copies received by Licensee from Licensor have not been sold to Licensee, but are licensed under this License Agreement. Except as expressly provided by this License Agreement, Licensor retains all intellectual property rights to the Software, including rights under applicable law pertaining to copyrights, trademarks, trade secrets, and patents. If Licensee purchased a Standard Edition, then Licensee owns the magnetic or other tangible media, if any, on which the Software was originally or subsequently recorded or fixed. Licensor shall own all right, title, and interest (including all associated intellectual property rights) in and to all customizations, enhancements, modifications, improvements, derivations, or other changes thereto made by Licensor (alone or with others) and relating to the Software provided by Licensor. Licensee agrees to take such further action, and to obtain or sign such further agreements or acknowledgements, as Licensor may reasonably request to give effect to this paragraph.
10. Restricted Use
10.1 Computer Use. Licensee shall use the Software under the License Agreement only on computers which are both owned or leased by Licensee, and controlled by Licensee.
10.2 Unauthorized Uses. Licensee agrees to use the Software only as indicated hereunder and may not modify, adapt, translate, rent or sublicense the Software or use it for any commercial timesharing, Internet service, or service bureau purpose.
10.3 Reverse Engineering. The Software is protected by intellectual property laws, including copyright laws. Licensee agrees not to create, or attempt to create, or permit to help others to create, the source code from the Software furnished pursuant to the License Agreement. Licensee agrees to not reverse engineer, disassemble, decompile or otherwise reduce the Software to human-readable form, disable any functionality which limits the use of the Software, create derivative works from the Software, or disclose confidential interfaces to the Software.
10.4 United States Government Restricted Rights. The Software and documentation are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the United States Government, its agencies, and/or instrumentalities is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software Clause (DFARS 252.227-7013, October 1988), or the Commercial Computer Software – Restricted Rights (48 CFR 52.227-19), as applicable. Contractor/manufacturer is ePhiphony Incorporated, 4115 Durham Court, Eagan, Minnesota 55122.
11. License Termination
11.1 Any of the following events will terminate the License Agreement: expiration of the Evaluation Period of an Evaluation Edition; request by Licensee for a refund pursuant to section 6.1; or for any reason, upon delivery by Licensee of written notice to Licensor at the address found in section 10.4. Except as provided above under Licensor's limited return policy, all license and support fees are non-refundable. Licensor may in its discretion terminate the License Agreement upon written notice to Licensee if Licensee fails to comply with any provision of the License Agreement, or if Licensee initiates or participates as a plaintiff in any lawsuit or administrative action, regarding any matter whatsoever, in which Licensor is a defendant.
11.2 Upon termination by Licensee or by Licensor, Licensee warrants that Licensee will uninstall and destroy the Software and take steps sufficient to ensure that the Software is no longer in use or usable.
11.3 All liability for breach of the License Agreement, and sections 7 through 15 of this License Agreement, shall survive termination and will apply even if any limited remedy provided in this License Agreement is found to have failed of its essential purpose..
12. Limited Warranty
12.1 The media on which the Software is furnished is warranted to be free of defects in workmanship and material under normal use for a period of sixty (60) days from the date of order. The sole responsibility of Licensor and Licensee's exclusive remedy under the warranty will be to receive a replacement of the media free from defects in workmanship and materials. To obtain replacement, Licensee must return the defective media with proof of order. Media damaged by accident, abuse or misuse is not covered under the limited warranty.
12.2 Licensee and Licensee alone is responsible for determining which Software meets Licensee's particular needs, for installing the Software, and for the results obtained. Because Licensee may evaluate and thereafter return the Software in compliance with Licensor's limited return policy described in section 6.2, the Software is licensed "as is" without warranty as to its performance, except for the media warranty provided in section 12.1. LICENSOR MAKES NO OTHER WARRANTIES EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, WITH RESPECT TO THE SOFTWARE AND ALL SUCH WARRANTIES ARE EXPRESSLY DISCLAIMED. FURTHER, LICENSOR DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE SOFTWARE OR WRITTEN MATERIALS IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR SHALL CREATE ANY WARRANTY OR IN ANY WAY EXPAND THE LIMITED WARRANTY PROVIDED UNDER SECTION 12.1. THIS WARRANTY GIVES LICENSEE SPECIFIC LEGAL RIGHTS. LICENSEE MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE.
12.3 IN NO EVENT SHALL LICENSOR BE RESPONSIBLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF REVENUE OR PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA OR OTHER LOSS ARISING OUT OF THIS LICENSE AGREEMENT, REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, AND EVEN IF LICENSOR HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSOR'S ENTIRE LIABILITY, AND LICENSEE'S EXCLUSIVE REMEDY FOR DAMAGES, ARISING OUT OF THE LICENSE AGREEMENT, WHETHER BASED IN CONTRACT, TORT, PRODUCT LIABILITY, OR ANY OTHER THEORY, SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY LICENSEE TO LICENSOR FOR THE SOFTWARE LICENSE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MIGHT NOT APPLY TO LICENSEE. THERE ARE NO IMDENMIFICATIONS BY LICENSOR OF LICENSEE FOR LICENSEE'S LIABILITY, IF ANY, TO THIRD PARTIES.
13. TRANSFERS.
13.1 Assignment by Licensor. The License Agreement may be assigned by Licensor without restriction.
13.2 Assignment by Licensee. The License Agreement is personal to Licensee, and may not be assigned, sublicensed or otherwise transferred by Licensee without the prior written consent of Licensor. Any attempt to transfer this License Agreement by Licensee without such consent shall be ineffective. This provision shall not, however, prohibit Licensee from assigning its rights and delegating its obligations under this License Agreement to its corporate parent, another subsidiary of such parent, or a subsidiary of Licensee; or to a third party as part of a transfer of substantially the entire portion of Licensee's business to which this License Agreement relates.
14. Future Additions. The terms and conditions of this License Agreement also apply to any Software product or documentation later provided by Licensor to Licensee that is not expressly covered by a subsequent license agreement.
15. Export Control Terms. Any downloading or use of Software from Licensor's servers involves products and/or technical data that is subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. By downloading or using any software from Licensor's servers, Licensee agrees to comply strictly with all such laws, and acknowledges that Licensee has the responsibility to obtain any required licenses to export, re-export, or import Software. Licensee agrees to indemnify and hold harmless Licensor from all claims and liability arising from Licensee's failure to comply with such laws and license requirements.
16. MISCELLANEOUS PROVISIONS
16.1 If a part of the License Agreement is held unenforceable or invalid or prohibited under law, it shall be struck from the License Agreement and shall not affect the enforceability of the other parts of the License Agreement.
16.2 The License Agreement shall be construed and enforced in accordance with the laws of the State of Minnesota which are applicable to the construction and enforcement of contracts between parties resident in Minnesota which are entered into and fully performed in Minnesota. ANY ACTION OR PROCEEDING BROUGHT BY EITHER PARTY HERETO AGAINST THE OTHER ARISING OUT OF OR RELATED TO THE LICENSE AGREEMENT SHALL BE BROUGHT IN A STATE OR FEDERAL COURT OF COMPETENT JURISDICTION LOCATED IN DAKOTA COUNTY, STATE OF MINNESOTA AND BOTH PARTIES HEREBY CONSENT TO THE JURISDICTION AND VENUE OF SUCH COURTS FOR THAT PURPOSE.
16.3 In the event either party commences a legal proceeding to enforce the License Agreement, the prevailing party in such action shall have the right to recover reasonable attorneys' fees and costs from the other party, to be fixed by the court in the same action.
16.4 Licensor shall not be liable for any loss, penalty, damages or be held for breach or failure to perform any aspect of the License Agreement when the failure to perform is due in whole or in part to causes outside of Licensor's reasonable control, including, but not limited to, Licensee's acts or omissions; judicial action; acts of civil or military authority; war; terrorist activity; sabotage, civil unrest; shortages of energy, raw materials, labor, or equipment; delays in transportation; or natural disasters.
17. Merger. This License Agreement, together with the associated Order, these general terms and conditions, and any addendums attached hereto, constitute the entire agreement between the parties relating to the subject matter hereof, and supersedes all prior and contemporaneous oral or written representations or communications between the parties. This agreement may not be modified or amended, nor any provision waived, except in writing executed by the appropriate designated officers or other authorized representative of the parties hereto. Any variation in the terms and conditions contained in this agreement (including, but not limited to, the inclusion of Licensee's own terms and conditions in any purchase order or other document issued by Licensee in response to and/or referencing this agreement) shall not be deemed to be a part of this agreement and shall not be binding upon Licensor unless set forth in writing and executed by the appropriate designated officer of Licensor. Subject to the limitations expressed herein, this License Agreement will be binding upon and inure to the benefit of the parties hereto, their successors, legal representatives, and assigns.