THIS END USER LICENSE AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU AND APPOSITE TECHNOLOGIES LLC (“APPOSITE”). BY DOWNLOADING, INSTALLING, COPYING, ACCESSING OR USING THIS SOFTWARE, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR 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, ARE NOT AT LEAST 18 YEARS OF AGE, OR DO NOT HAVE AUTHORITY TO ENTER THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL, COPY, ACCESS OR USE THIS SOFTWARE, AND PROMPTLY RETURN THIS SOFTWARE AND PROOF OF ENTITLEMENT TO THE PARTY FROM WHOM YOU ACQUIRED THEM.
a. “Documentation” means published user manuals and other explanatory materials provided by Apposite relating to the Software or the Hardware.
b. “Hardware” means the Apposite-branded hardware product on which the Software is designed to run.
c. “Software” means the computer software (regardless of format or media in which distributed) designed to run on the Hardware.
d. “Modifications” means any applicable upgrades, modified versions, updates, bug fixes, patches, or other modifications to the Software made generally available by Apposite to its customers.
e. “Product” means the Apposite-branded product comprised of the Hardware, the Software, and the Documentation.
f. “Legacy Product” means any Product purchased prior to August 1, 2017.
g. “License Period” means for any Product that is not a Legacy Product, the license period identified on the relevant order form or receipt upon your purchase of the Product or the Software, including any purchased extension thereto.
h. “Warranty Period” means (a) for any Legacy Product, the period during which you maintain a continuous, active subscription to Apposite maintenance services, or (b) for any Product that is not a Legacy Product, the License Period, unless such Product has a perpetual license, in which case the Warranty Period shall be five (5) years from the date of purchase of the Product from Apposite unless extended by purchase of maintenance services.
2. LICENSE GRANT.
Conditioned upon compliance with the terms and conditions of this Agreement, Apposite hereby grants you the following licenses (collectively, the “License”):
a. With respect to any Product that is not a Legacy Product, for the relevant License Period, a nonexclusive, nonsublicensable, nontransferable license to use the Software and Modifications solely as embedded in the Hardware, and to use the Documentation solely in conjunction with the Software, Modifications, and Hardware; and
b. With respect to any Legacy Product, a perpetual, nonexclusive, nonsublicensable, nontransferable license to use the Software solely as embedded in the Hardware, and to use the Documentation solely in conjunction with such Software and Hardware, and to use any Modifications released by Apposite and installed on the Hardware during the Warranty Period.
This license is not a sale. The Software may contain open source or third-party software, subject to separate license terms. Acknowledgements, licensing terms and disclaimers for such materials are contained in the Documentation, and your use of such material is governed by their respective terms and not by the License.
Apposite and its licensors retain ownership of all intellectual property rights in and to the Software and Documentation, including any copies, improvements, enhancements, derivative works and modifications thereof. The Software and Documentation are protected by United States and international copyright and other intellectual property laws and international trade provisions. Your rights to use the Software and Documentation are limited to those expressly granted by this Agreement. No other rights with respect to the Software or any related intellectual property rights are granted or implied.
Except as otherwise expressly provided under this Agreement, you shall not directly or authorize any third party to:
a. copy the Software, except as necessary for archival or backup purposes only;
b. transfer, assign, sublicense, rent, lease, lend, or otherwise transfer your license rights to any other person or entity;
c. install or use the Software on any computing device other than the Hardware;
d. modify or adapt the Software or Documentation or create derivative works based upon the Software or Documentation;
e. reverse engineer, disassemble, decompile, decrypt, or otherwise attempt to derive the source code of the Software, except to the extent otherwise expressly permitted under applicable law notwithstanding this restriction; or
f. remove, alter, cover or obfuscate any of the trademarks, trade names, logos, patent or copyright notices or markings, or add any other notices or markings to or on the Software, Documentation, or Hardware without the express written authorization of Apposite.
Apposite shall have no obligation to support the Software except as provided in Apposite’s Customer Support Terms and Conditions, which is incorporated by reference into this Agreement.
6. LIMITED WARRANTY.
Apposite warrants that, for the duration of the Warranty Period, the Hardware will be free of any defects in materials and workmanship under normal use and the Software will perform substantially in accordance with the Documentation. This limited warranty extends only to the original user of the Product. This limited warranty is void if failure of the Hardware or Software to conform to the warranty has resulted from improper installation, testing, misuse, neglect, accident, fire or other hazard, a virus, or any breach of this Agreement. Apposite and its suppliers’ entire liability and your sole and exclusive remedy shall be, at Apposite’s sole discretion, to: (i) repair the Software or Hardware; (ii) provide replacement Hardware or Software; or (iii) refund the purchase price and terminate this Agreement. This limited warranty applies only if the Product is returned to Apposite, freight and insurance prepaid, in accordance with Apposite’s Return Material Authorization (RMA) procedures. Any repaired or replaced Software or Hardware will be subject to this same limited warranty for the remainder of the original Warranty Period or thirty (30) days, whichever is greater. THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, AND APPOSITE DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY BY JURISDICTION.
7. LIMITATION OF LIABILITY.
REGARDLESS WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL APPOSITE OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION, ANY LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY OR WHETHER ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT AND EVEN IF APPOSITE OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL APPOSITE OR ITS SUPPLIERS’ LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY, OR OTHERWISE, EXCEED THE PRICE PAID FOR THE PRODUCT. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
8. TERM AND TERMINATION.
This Agreement takes effect upon your use of the Software and remains effective until terminated. You may terminate it at any time by destroying all copies of the Software and Documentation in your possession. The licenses granted by Apposite herein will terminate immediately if you fail to comply with any term or condition of this Agreement. You agree on termination of the licenses to cease all use of the Software and Documentation. In addition, the provisions of the sections “U.S. Government Restricted Rights” and “Export” shall survive termination of this Agreement.
The Product, including the underlying technology, is subject to U.S. export control laws, and may be subject to export or import regulations in other countries. You may not export or import the Product and the underlying technology, directly or indirectly, in violation of these laws. You agree to comply strictly with all such laws and regulations and acknowledge that you have the responsibility to obtain such licenses to export, re-export, or import as may be required.
10. U.S. GOVERNMENT RESTRICTED RIGHTS.
All Software and Documentation provided pursuant to this Agreement qualifies as “commercial computer software” and “commercial computer software documentation” pursuant to FAR 12.212 and DFAR 227.7202. The Software and Documentation are being licensed to U.S. Government end users only as commercial items and with only those rights as are granted to all other end users pursuant to the terms and conditions of this agreement.
11. GENERAL PROVISIONS.
This Agreement will be governed by and construed in accordance with the laws of the State of California without reference to its conflicts of law provisions. Any dispute arising out of or relating to this Agreement shall be subject to the exclusive jurisdiction and venue of the courts sitting in Los Angeles, California. This Agreement shall not be governed by either the Uniform Computer Information Transactions Act (UCITA) or the United Nations Convention on Contracts for the International Sale of Goods (CISG), the application of which is expressly excluded. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or any portion thereof, to be unenforceable, the remainder of this Agreement shall continue in full force and effect. This Agreement constitutes the entire agreement between the parties with respect to the Product and supersedes all prior or contemporaneous understandings regarding such subject matter, whether written or oral, and supersedes any conflicting or additional terms contained in any purchase order or elsewhere, all of which terms are excluded. No amendment to or modification of this Agreement are binding unless in writing and signed by Apposite.