Version 1, 1 February 2011
This Software Agreement ("Agreement") is between You (either an individual or an entity), the Licensee, and Darhon Software ("Darhon"). The Agreement authorizes You to use the Licensed Software specified in Clause 1.3 below, which may made available to You by Darhon on a CD-ROM, sent to You by electronic mail, or downloaded from Darhon's Web pages or Servers or from other sources, as determined by Darhon, under the terms and conditions set forth below. This is an agreement on licensee rights and not an agreement for sale. Darhon continues to own the copies of the Licensed Software, which is the subject of this Agreement, and any other copies that You are authorized to make pursuant to this Agreement.
Read this Agreement carefully before installing, downloading, or using the Licensed Software. By installing the software, downloading, and/or using the Licensed Software, You agree to the terms and conditions of this Agreement. If You do not agree to all of the terms and conditions of this Agreement, promptly cancel the installation or downloading, or destroy or return the Licensed Software and accompanying documentation to Darhon. YOU AGREE THAT YOUR USE OF THE LICENSED SOFTWARE ACKNOWLEDGES THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
1. Definitions
1.1 "Documentation" shall mean any documents, drawings, models, layouts and/or any other IPR that are documented in any media and that have been provided by Darhon to Licensee.
1.2 "IPR" shall mean any and all artifacts and knowledge related to the Licensed Software, to the extent either generated in connection with the evaluation or use of the Licensed Software, incorporated and/or used in the design or function of any result of such evaluation or use and/or developed and/or discovered during such evaluation or use, including without limitation the components, prototypes, documents, designs and computer software, as well as ideas, inventions, patents (including utility models), and designs (whether or not capable of registration), chip topography rights and other like protection, copyrights (including software copyright of source code, object code, executable code etc.), trademarks, know how, sui generis rights to data or databases and any other form of statutory protection of any kind and applications for any of the foregoing respectively as well as any trade secrets.
1.3 As used in this Agreement, the term "Licensed Software" means, collectively: (i) the software copyrighted by Darhon Software or third parties (excluding Open Source Software), which is delivered to Licensee (ii) all the contents of the disk(s), CD-ROM(s), electronic mail and its file attachments, or other media with which this Agreement is provided, including the object code form of the software delivered via a CD-ROM, electronic mail, or Web page (iii) digital images, stock photographs, clip art, or other artistic works ("Stock Files") (iv) related explanatory written materials and any other possible documentation related thereto ("Documentation"); (v) fonts, and (vi) upgrades, modified versions, updates, additions, and copies of the Software (collectively "Updates"), if any, licensed under this Agreement.
1.4 "Pre-Existing IPR" shall mean any IPR that has not been either generated in connection with the evaluation or use of the Licensed Software, incorporated and/or used in the design or function of any result of such evaluation or use and/or developed and/or discovered during such evaluation or use.
1.5 "Third Party Software" shall mean software created by neither of the Parties.
2. Period and scope of the licensee's permitted use
2.1 The Licensee shall be entitled to exploit the license granted to it by Darhon under and in accordance with this Agreement for personal and business use (the "Purpose").
2.2 Darhon may choose to deliver, at its sole discretion, updates for the Licensed Software. In addition darhon may choose, at its exclusive discretion, to make available, either as downloadable modules from a dedicated website or as electronic deliveries via e-mail, to the Licensee the subsequent updates of the Licensed Software as well as any subsequent directly related minor upgrades, if any. As a prerequisite to the making available of any subsequent upgrades and/or updates, Darhon may require, at its sole discretion, the Licensee to accept additional terms and conditions in connection with the delivery and prior to any use of any such subsequent upgrades and/or updates made available to the Licensee by Darhon. The Parties may also separately agree on the licensing of any future releases of the Licensed Software, if any, to be part of the Agreement by concluding a necessary amendment to the Agreement and by agreeing on the respective terms and conditions.
3. Grant of rights
3.1 Subject to the terms and conditions of this Agreement, Darhon grants to Licensee, and Licensee hereby accepts, non-transferable, non-sublicenseable, non-exclusive, limited license to install and use Licensed Software on the local hard disk(s) or other permanent storage media, copy, run and utilize the Licensed Software in object code form solely for the Purpose. In addition, Licensee may make copies of the Licensed Software and distribute them without cost and without any commercial purpose.
3.2 Parts of the Licensed Software may be supplied by third parties and may be subject to separate license terms. The Licensee shall accept any such license terms applicable to Third Party Software that may be introduced as part of the installation of the Licensed Software.
4. Limitations of license and loan
4.1 Licensee shall have no right to disclose, sell, market, commercialise, sub-license, rent, lease, re-license or otherwise transfer to any other party, whatsoever, the Licensed Software or any part thereof, or use the Licensed Software for any purpose or in any manner that is not expressly permitted in this Agreement.
4.2 Licensee shall not modify or develop any derivative works of the Licensed Software unless specifically authorized by this Agreement. Licensee may not reverse engineer, decompile, or disassemble any part of the Licensed Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
4.3 Licensee undertakes to have written personal agreements between Licensee and its employees (if any) having access to the Licensed Software or any related information for the purpose of ensuring compliance with the terms and conditions of this Agreement.
4.4 Misuse of the Licensed Software or data generated by the Licensed Software is strictly prohibited by Darhon, and may violate the laws. Licensee is solely responsible for any misuse of the Licensed Software under this Agreement and Licensee agrees to indemnify Darhon for any liability or damage related in any way to Licensee's use of the Licensed Software in violation of the same. Licensee is also responsible for using the Licensed Software in accordance with the limitations of this Agreement. Licensee will indemnify and hold Darhon harmless for any claims arising out of the use of the Licensed Software or data generated by the Licensed Software on devices belonging to the Licensee or any of Licensee's customers or any third party that has been provided access to the Licensed Software or data generated by the Licensed Software, except to the extent those claims arise out of the Darhon's breach of this Agreement.
4.5 There are no implied licenses or other implied rights granted under this Agreement, and all IPR and rights, save for those licenses expressly granted to the Licensee hereunder, shall remain with and vest in Darhon. Darhon shall retain at all times a right to license, market, develop, modify and customize the Licensed Software. The non-exclusive rights granted to Licensee under this Agreement should not be construed as a limitation on any activities of Darhon in the use of the Licensed Software and the marketing or licensing of the Licensed Software, and Darhon retains all of its rights, title and interest in the IPR, the Licensed Software and in any derivative works thereof. Except for the rights and licenses granted to Licensee herein, Licensee shall not take any action inconsistent with such title and ownership.
5. Feedback
Licensee may provide Darhon comments, suggestions, opinions and the like as feedback on the characteristic, performance, functionality and use of the Licensed Software (the "Feedback"). Feedback includes without limitation materials as well as ideas or know how (whether presented orally, in written form or otherwise). Any Feedback submitted by the Licensee or any of its employees or subcontractors shall, after submission to Darhon, be owned by Darhon. Darhon shall receive, upon submission of Feedback, a worldwide, perpetual, irrevocable, fully paid-up, royalty-free, exclusive, transferable, sub-licenseable license to use, copy, modify, make available, incorporate in any products or services of Darhon, sublicense, distribute and otherwise make use of the Feedback and to create derivative works thereof to the extent and in such manner as Darhon deems fit at its exclusive discretion. For the sake of clarity, the license granted to Darhon above in this Clause 5 shall include rights and licenses to any Pre-existing IPR of Licensee deemed necessary by Darhon to exercise its rights relating to the Feedback.
6. Exclusions of warranties
6.1 LICENSEE ACKNOWLEDGES THAT THE LICENSED SOFTWARE IS PROVIDED "AS IS" AND DARHON AND/OR ITS LICENSORS DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR THAT THE LICENSED SOFTWARE WILL NOT INFRINGE ANY THIRD PARTY PATENTS, COPYRIGHTS, TRADEMARKS OR OTHER RIGHTS.
6.2 THERE IS NO WARRANTY BY DARHON AND/OR ITS LICENSORS OR BY ANY OTHER PARTY THAT THE LICENSED SOFTWARE WILL MEET THE LICENSEE'S REQUIREMENTS OR THAT THE OPERATION OF THE LICENSE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. LICENSEE ASSUMES ALL RESPONSIBILITY AND RISK FOR THE SELECTION OF THE LICENSED SOFTWARE TO ACHIEVE LICENSEE'S INTENDED RESULTS AND FOR THE INSTALLATION, USE, AND RESULTS OBTAINED FROM IT.
6.3 THIS AGREEMENT CREATES NO OBLIGATIONS ON THE PART OF DARHON OTHER THAN AS SPECIFICALLY SET FORTH HEREIN.
7. Limitation of liability
7.1 IN NO EVENT SHALL DARHON, ITS EMPLOYEES, LICENSORS OR AGENTS BE LIABLE FOR ANY LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, PROPERTY DAMAGE, LOSS OF PROFITS, INTERRUPTION OF BUSINESS OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, ECONOMIC, COVER, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, AND WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, OR OTHER THEORY OF LIABILITY, ARISING OUT OF THE USE OF OR INABILITY TO USE THE LICENSED SOFTWARE, EVEN IF THE OTHER PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. Technical support
8.1 In connection with the delivery of the Licensed Software under this Agreement, Darhon may make technical support relating to the Licensed Software available to the Licensee e.g. by providing access to a dedicated support website, but Darhon has no obligation whatsoever to furnish the Licensee with any technical support unless separately agreed in writing between Licensee and Darhon.
8.2 In the event Darhon provides the Licensee with any technical support under subsection 8.1 above without a separate written agreement, such provision shall not (i) obligate Darhon to continue to provide any technical support, (ii) enable the Licensee to make any claims regarding the quality, timeliness or other characteristics of the technical support being provided, (iii) create any obligation for Darhon to enter into a written support agreement with the Licensee.
8.3 Any technical support that may be provided by Darhon shall be provided without warranties of any kind, unless separately agreed in writing between the Parties.
9. Term and termination
9.1 The Agreement shall become effective upon Acceptance by Licensee as set forth above. Any terms and conditions that by their nature or otherwise reasonably should survive a termination or an expiry of the Agreement shall be deemed to survive. Such terms and conditions include but are not limited to the obligations set forth in Clauses 1-8, 10.
9.2 Darhon will have the right to terminate the Agreement for any reason at any time, in its sole discretion, with a prior written notice of thirty (30) days.
9.3 Upon expiry or termination of the Agreement Licensee shall return all information received and materials made available by Darhon under this Agreement, including but not limited to Licensed Software, to Darhon immediately.
10. Miscellaneous
10.1 Licensee and Darhon are independent Parties. Nothing in this the Agreement shall be construed to make either Party an agent, employee, franchisee, joint venture or legal representative of the other Party. Neither Party will have nor represent itself to have any authority to bind the other Party or act on its behalf. Nothing in these General Conditions or the Agreement shall constitute or imply any promise or intention by Darhon to enter into any other business arrangement with Licensee.
10.2 If any provision of the Agreement or its Appendices is held invalid, all other provisions shall remain valid unless such validity would frustrate the purpose of the Agreement, this Agreement and its Appendices shall be enforced to the full extent allowable under applicable law.
10.3 Licensee shall bear all costs that it may incur in connection with the use of the Licensed Software.