SAPIEN
TECHNOLOGIES, INC. END-USER LICENSE AGREEMENT
ATTENTION: THIS
IS A LICENSE, NOT A SALE. THE ENCLOSED SOFTWARE IS LICENSED ON THE TERMS SET
FORTH BELOW. THE LICENSE DEFINES WHAT YOU CAN DO WITH THE SOFTWARE AND CONTAINS
LIMITATIONS ON WARRANTIES AND REMEDIES AVAILABLE TO YOU.
IMPORTANT:
Carefully read this SAPIEN Technologies, Inc. ("SAPIEN")
End-User License Agreement (this "Agreement") before
installing the accompanying SAPIEN software (the "Software"). The
Software is defined to include, without limitation, the accompanying computer
programs and all component parts, models, image textures, images, photographs,
animations, video, audio, music, text, catalog content, and applets
incorporated into such software, the media and related documentation, whether
provided in printed or electronic form, any upgrades, and this Agreement.
Installation of the Software constitutes your acknowledgment that you have read
this Agreement and agree to its terms. If you do not agree to the terms of this
Agreement, SAPIEN is unwilling to license the Software to you. In such event,
you should promptly (in any event within 30 days) return the complete Software
to the place from which you obtained it for a full refund.
1. GRANT OF
LICENSE.
Generally. The registered end-user of the
Software (the "Customer") is hereby granted a single (or such
greater number as is specified in writing by SAPIEN) User License for
the Software. SAPIEN licenses its Software for use by a Customer whose
installation is on an individual machine (an "Individual") as
well as by a Customer whose installation is through a software distribution
method (an "Enterprise"). For purposes of any User License
granted to a Customer, a "User" is a person who is an
Individual, or who is an employee or subcontractor of an Enterprise or an
Individual. The terms of the license are different depending on the type of
Customer, as detailed below:
If the
Customer is an Individual: Each User License entitles the Individual to install the Software into
permanent memory on such number of non-enterprise computers or workstations, to
a maximum of five (5), as are personally used by the designated User. The
Software may not be used by anyone other than such designated User nor be
"in use" on such number of non-enterprise computers or workstations,
to a maximum of five (5), as are personally used by the designated User. Software is "in use" on a
computer or workstation when it is loaded into temporary memory on such device.
The Individual may designate a successor User for the User License, so long as
the Software is deleted from all computers and workstations of the previous
User prior to installation on the computers or workstations of such successor
User.
If the
Customer is an Enterprise: Each User License entitles the Enterprise to install the Software into
permanent memory on such number of computers or workstations, to a maximum of
five (5), as are personally used by the designated User. The Software may not
be used by anyone other than the designated User nor be "in use" on
more than a maximum of five (5) computers, as are personally used by the
designated User. Software is "in use" on a computer or workstation
when it is loaded into temporary memory on such device. The Enterprise may
designate a successor User for the User License, so long as the Software is
deleted from any computer or workstation of the previous User prior to
installation on the computer or workstation of such successor User.
Evaluation
Licenses. If the
Software has been installed without specifying or containing a registration key
("Evaluation Software"), the Customer shall have the right to
use the Software pursuant to the terms of this Agreement only for the
evaluation period specified upon startup (the "Evaluation Period").
To use the Software following the expiration of the Evaluation Period, a
registration key must be obtained from SAPIEN. The Customer may not re-install
the Evaluation Software on the same computer, but may install the Evaluation
Software on another computer.
2. DESCRIPTION
OF OTHER RIGHTS AND LIMITATIONS.
Limitations
on Reverse Engineering, Decompilation, and Disassembly. The Customer may not reverse engineer,
decompile, or disassemble the Software, except and only to the extent that such
activity is expressly permitted by applicable law notwithstanding this
limitation.
Limitations
on Repackaging. The
Customer may not, without the express written consent of SAPIEN, change,
manipulate or repackage the Software for use in software management or
distribution systems.
Separation
of Components. The Software
is licensed as a single product. The Customer may not rent or lease the
Software, or any portion or component thereof. Included components specifically
marked as ÒredistributableÓ can be distributed royalty free with end-user
applications or scripts, provided that these components are necessary for end
user applications or scripts to function. The copyright statements in these
components and their digital signatures must remain intact and without any
modification. These components may not be distributed or sold individually
without the end-user application or script.
Software
Transfer. Subject to the
limitations below, the Customer may permanently transfer all rights under this
Agreement and the Software, provided that the Customer retains no copies,
transfers all of the Software, and the recipient agrees to the terms of this
Agreement. ANY SUCH TRANSFER OF THE SOFTWARE REQUIRES THE WRITTEN CONSENT
OF, AND REGISTRATION OF THE TRANSFER WITH, SAPIEN. Such consent and
registration will not be unreasonably withheld by SAPIEN and may be applied for
by contacting SAPIEN Technologies, Inc. at 841 Latour Court, Suite D, Napa , CA
, 94558 , Attention: Software Transfers. If the Software is an upgrade from
another SAPIEN product, the Customer may use or transfer the Software only in
conjunction with the original product, unless the Customer destroys the
original product. Notwithstanding the foregoing, without SAPIENÕs prior
consent, the Customer may transfer to others complete copies of the Evaluation
Software (but not any copies which have been enabled through use of a
registration key or which are otherwise not time limited), so long as such
transferee receives a complete copy of the Evaluation Software, including all
documentation, and expressly agrees to be bound by the terms of this Agreement.
Use of
Content. All
copyrighted image textures, and other images and catalog content licensed with
the Software are licensed for use solely in connection with the CustomerÕs use
of the Software, and not for resale. Except as expressly permitted under this
Agreement or specifically agreed to in writing by SAPIEN, the Customer shall
not copy, distribute or sell any portion or component of the Software,
including models, image textures, images or catalog content, in any file
format, as part of another software product, image, shape, 3D model library or
product, or software product similar to the Software.
Limitations
on Use. The Customer
shall not use the Software, or any related content licensed under this
Agreement to (a) create obscene or defamatory work, or (b) to in any way
violate the trademark, tradename, copyright or other intellectual property
rights of any third party. The Customer may not copy the printed materials
accompanying the Software, except as necessary to enable a permitted transfer
of the Evaluation Software.
Termination. This Agreement shall continue for so
long as the Customer uses the Software, including any upgrades. However, upon
any violation of any of the provisions of this Agreement, the CustomerÕs rights
and licenses to use the Software shall automatically terminate and the Customer
shall be obligated to destroy all of its copies of the Software and all of its
component parts. Limitations on warranties, customer remedies, and limitations
on use will survive any such termination to the extent applicable.
Ownership. The Software is protected by copyright
laws and international copyright treaties, as well as other intellectual
property laws and treaties. The Software is licensed—not sold. This Agreement
confers no title or ownership in the Software and no rights in any associated
source code or any accompanying printed materials. Ownership of all
intellectual property rights in the Software remains with SAPIEN and its
licensors. Any rights not granted under this Agreement are reserved by SAPIEN
and its licensors.
Third
Party Rights. Portions of
the Software may have been developed by a third party software supplier named
in the copyright notices included with the Software. Any such third party
software supplier shall, together with SAPIEN, be authorized to hold the
Customer responsible for any copyright infringement by the Customer or
violation by the Customer of this Agreement.
Export
Controls. The Customer
acknowledges that the export of the Software is governed by the export control
laws of the United States of America and other countries. The Customer agrees
to comply with all such export control laws.
3. UPGRADES;
OTHER SOFTWARE. If the Software is an upgrade of a SAPIEN product, then,
subject to the second to last paragraph of Section 6 ("Order of
Precedence"), this Agreement shall apply to the original product as well
as the Software. If the Customer rightfully has or hereafter rightfully obtains
any other SAPIEN software product which is not subject to a written license
agreement with SAPIEN for such product, then the terms and conditions of this
Agreement also shall apply to such software.
4. U.S.
GOVERNMENT RESTRICTED RIGHTS. If the Customer is an agency and/or
instrumentality of the United States of America, all Software is provided
subject to the restrictions applicable to other end users in accordance with
the terms of this Agreement and as provided in DFARS 227.7202-1(a) and
227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (Oct. 1988), FAR
12.212(a)(1995), FAR 52.227-19, or FAR 52.227-14 (Alt III), as applicable.
5. WARRANTIES
AND LIMITATIONS ON LIABILITY. SAPIEN warrants that, subject to the terms below,
for a period of ninety (90) days from the date of the Customer's purchase of
the Software from SAPIEN or its authorized distributor (the ÒWarranty PeriodÓ)
the Software will operate substantially in accordance with the specifications
published by SAPIEN for such Software. SAPIEN does not warrant that the
operation of the Software shall be uninterrupted or error free. If during the
Warranty Period SAPIEN receives notice from the Customer that the Software does
not operate substantially in accordance with such specifications, then SAPIEN
shall use reasonable commercial efforts to repair or replace such Software. If
SAPIEN is unable, within a reasonable time, to repair or replace the Software
as specified above, the Customer shall be entitled to a refund of the purchase
price upon return of the Software to the entity from which it was purchased.
The foregoing warranty shall not apply to defects resulting from: (a) improper
or inadequate maintenance by the Customer; (b) Customer supplied software or
interfaces; (c) modification or misuse; or (d) operation outside of the
environmental specifications for the Software.
THE WARRANTY
SET FORTH ABOVE IS EXCLUSIVE AND NO OTHER WARRANTY, WHETHER WRITTEN OR ORAL, IS
EXPRESSED OR IMPLIED. SAPIEN SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF
SATISFACTORY QUALITY, NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ACCURACY OF INFORMATION
THE REMEDIES
PROVIDED HEREIN ARE THE CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES. IN NO EVENT
SHALL SAPIEN OR ANY OF ITS LICENSORS BE LIABLE FOR DIRECT, INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING LOSS OF PROFITS)
WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SAPIEN HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY
FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. Such limitations on
liability shall not apply with respect to any claim that the Software directly
caused bodily injury or death.
6.
MISCELLANEOUS.
Choice of Law. If the Customer acquired the Software in the United
States, this Agreement is governed by the laws of the State of California USA,
without reference to its conflict of laws rules. If the Software was acquired
outside the United States, then, to the extent permitted by applicable local
law, this Agreement is governed by the laws of the State of California USA,
without reference to its conflict of laws rules.
Severability. Any term of this Agreement which is
held to be invalid by a court of applicable jurisdiction will be deleted, but
the remainder of this Agreement will not be affected.
Jurisdiction. This Agreement shall be deemed to have
been entered into in Napa , California , and the federal and state courts with
jurisdiction in Napa , California , USA shall have exclusive jurisdiction for
the submission of any claims or disputes arising out of this Agreement or in
connection with the Software. The Customer and SAPIEN hereby consent to
exclusive jurisdiction and venue in such courts with respect to any claims or
disputes arising out of this Agreement or in connection with the Software
Order
of Precedence. If the
Customer and SAPIEN have entered into a separate software license agreement
with respect to this Software, then the provisions of such agreement shall take
precedence over any contradictory provision contained in this Agreement.
Complete
Agreement. Subject to the
immediately preceding paragraph, this Agreement represents the complete
agreement concerning the matters covered hereby. It may be amended only by a
writing executed by the Customer and SAPIEN.