SOFTWARE LICENSE AGREEMENT
IMAGIX IS WILLING TO LICENSE THE ACCOMPANYING SOFTWARE TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS LICENSE AGREEMENT. READ THE TERMS AND CONDITIONS OF THIS LICENSE CAREFULLY BEFORE INSTALLING THIS SOFTWARE. BY INSTALLING THIS SOFTWARE, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE NOT WILLING TO BE BOUND BY THIS AGREEMENT, RETURN THE SOFTWARE AND LICENSE UNUSED WITHIN FIFTEEN (15) DAYS OF PURCHASE FOR A REFUND OF THE LICENSE FEE PAID.
1. License. Customer is granted a non-exclusive and non-transferable license ("License") for use of the Imagix 4D product ("Software") and related explanatory written materials ("Documentation"), by the number of users and the class of computer hardware for which the corresponding fee has been paid. Floating licenses shall be permitted to be used within one local network. A client of the floating license can access only the license server of the local network to which it is connected. A client of the floating license is not allowed to access the license server of another local network via a gateway.
2. Maintenance. Software maintenance includes technical support and any updates of the Software during the maintenance contract period. Users of installations that are under maintenance contract have the right to ask questions about the use of the software and to report any problems, by email, phone or other means. Imagix Corporation ("Imagix") or its reseller will answer such questions and will resolve the possible problems within a reasonable period.
If the functionality of the Software is extended with new essential features, Imagix retains the right to determine whether the new features are a new product and/or a new element of the product that is excluded from the updates provided under the maintenance contract.
The maintenance contract is an indispensable condition to the replacement of license keys when changing computers or license servers. For the replacement of a license key, Imagix or its reseller can require a written confirmation of the destruction of the former installation and license key.
Maintenance can be extended only for the whole license pool at one site, and only while a current maintenance contract exists. Maintenance can not be extended for only a subset of the licenses. Maintenance can not normally be renewed once the maintenance contract has expired.
3. Restrictions. Software is copyrighted and title to all copies is retained by Imagix and/or its licensors. Customer shall not modify, adapt or in any other way create a derivative version of the Software nor shall Customer decompile, disassemble, decrypt, extract, or otherwise reverse engineer the Software.
4. Confidentiality. Software is confidential and proprietary information of Imagix and/or its licensors. Customer shall take adequate steps to protect Software from unauthorized disclosure or use.
5. Warranty. Imagix warrants and represents that it has the right to enter this license agreement ("Agreement") and to deliver the Software. Imagix further warrants that for a period of ninety (90) days from date of receipt of the Software by Customer, the Software will perform in substantial accordance with the Documentation. Imagix further warrants that for the same ninety (90) day period, the media on which Software is furnished will be free of defects in materials and workmanship under normal use. Otherwise, the Software is licensed "as is" without a warranty of any kind. This warranty extends only to Customer as the original licensee. Customer's exclusive remedy and Imagix's entire liability under this warranty will be the correction of defects in media or replacement of the media, or, if correction or replacement is not reasonably achieved by Imagix, the refund to Customer of the license fee paid, upon return of Software.
6. Disclaimer of Warranty. Except as specified in this license, all express or implied conditions, representations and warranties, including any implied warranty of merchantability, fitness for a particular purpose, or non-infringement, are hereby excluded to the extent allowed by applicable law.
7. High Risk Activities. Software is not designed or licensed for use in conjunction with on-line control equipment in hazardous environments such as operation of nuclear facilities, aircraft navigation or control, or direct life support machines. Imagix specifically disclaims any express or implied warranty of fitness for High Risk Activities.
8. Limitation of Liability. In no event will Imagix be liable for any lost revenue, profit or data, or other special indirect, consequential, incidental or punitive damages however caused and regardless of theory of liability arising out of the use or inability to use the software, even if Imagix has been advised of the possibility of such damages. In no event shall Imagix's liability to Customer, whether in contract, tort (including negligence), or otherwise, exceed the license fee paid by Customer for Software. The foregoing limitations shall apply even if the above warranty fails of its essential purpose.
9. Termination. This License is effective until terminated. Customer may terminate this License at any time by destroying all copies of Software including any documentation. This License will terminate immediately without notice from Imagix if Customer fails to comply with any provision of this License. Upon termination, Customer must destroy all copies of Software.
10. Export Regulations. Software, including technical data, 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. Customer agrees to comply strictly with all such regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export, or import Software.
11. U.S. Government Restricted Rights. If Customer is acquiring Software including accompanying documentation on behalf of the U.S. Government, the following provisions apply. The software provided in connection with this Agreement has been developed entirely at private expense. As defined in FAR section 2.101, DFARS section 252.227-7014(a)(1) and DFARS section 252.227-7015 (or any equivalent or subsequent agency regulation thereof), such as "commercial items", "commercial computer software" and/or "commercial computer software documentation". Consistent with DFARS section 227.7202 and FAR section 12.212, and to the extent required under U.S. federal law, the minimum restricted rights as set forth in FAR section 52.227-19 (or any equivalent or subsequent agency regulation thereof), any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by this Agreement and shall be prohibited except to the extent expressly permitted by this Agreement.
12. Governing Law. This Agreement is governed by the laws of the State of Oregon, U.S.A.
13. Severability. If any of the above provisions are held to be in violation of applicable law, void, or unenforceable in any jurisdiction, then such provisions are herewith waived to the extent necessary for the Agreement to be otherwise enforceable in such jurisdiction. However, if in Imagix's opinion deletion of any provisions of the License by operation of this paragraph unreasonably compromises the rights or liabilities of Imagix or its licensors, Imagix reserves the right to terminate the License and refund the fee paid by Customer as Customer's sole and exclusive remedy.
14. Integration. This Agreement is the entire agreement between Customer and Imagix relating to Software and: (i) supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to its subject matter; and (ii) prevails over any conflicting or additional terms of any quote, order, acknowledgment, or similar communication between the parties during the term of this Agreement. No modification to this agreement will be binding, unless in writing and signed by a duly authorized representative of each party.