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<br />No Modifications/Reverse Engineering. Except as defined in the MAPENGINE
<br />Administrator's Guide, Licensee shall not alter, modify, enhance, adapt, reverse
<br />engineer, make works derived from the Licensed Software or attempt to generate or
<br />access the source code for the Licensed Software, whether by converting,
<br />tran 19, decompiling, disassembling or merging any part of the Licensed
<br />Soft , with any other software or otherwise.
<br />
<br />Inst: on. If Licensee has not purchased installation Services from ACTIVEG,
<br />Licensee shall be responsible for installing the Licensed Software and shall follow
<br />ACTIVEG's written instructions for said installation process.
<br />
<br />3. Protection and Security
<br />
<br />Confidential Information. By virtue of this Agreement, the parties may have
<br />access to information that is confidential to one another ("Confidential
<br />Information"). Confidential Information shall include the Licensed Software and
<br />all other information clearly marked as confidential. A party's Confidential
<br />Information shall not include information which: (a) is or becomes a part of the
<br />public domain through no act or omission of the other party; (b) was in the other
<br />party's lawful possession prior to the disclosure and had not been obtained by the
<br />other party either directly or indirectly from the disclosing party; (c) is lawfully
<br />disclosed to the other party by a third party without restriction on disclosure; or (d)
<br />is independently developed by the other party.
<br />
<br />Nondisclosure. The parties agree, both during the term of this Agreement and for a
<br />period of three (3) years after termination of this Agreement and for all licenses
<br />granted hereunder, to hold each other's Confidential Information in confidence.
<br />The parties agree not to make each other's Confidential Information available in
<br />any form to any third party or to use each other's Confidential Information for any
<br />purpose other than the implementation of this Agreement. Each party shall limit
<br />access to the other party's Confidential Information to its employees and agents
<br />whose responsibility require such access, and each party shall take all reasonable
<br />steps to ensure that Confidential Information is not disclosed or distributed by its
<br />employees or agents in violation of the provisions of this Agreement. Each party
<br />shall take at least the same precautions to protect the confidentiality of the other
<br />party's Confidential Information as it takes to protect its own Confidential
<br />Inform1tion.
<br />
<br />Thi lrtv Beneficiarv. Licensee understands that the Licensed Software may
<br />con third party software ("Third Party Software") and that ACTIVEG's
<br />Iiceu,uls shall be third party beneficiaries of this Agreement and shall be entitled to
<br />enforce Licensee's obligations hereunder, provided, however that ACTIVEG's
<br />licensors shall not be liable or responsible for any of ACTIVEG's covenants or
<br />obligations under this Agreement, and Licensee's sole rights or remedies with
<br />respect to this Agreement shall be against ACTIVEG.
<br />
<br />Indemnification bv Licensee. Licensee shall indemnify and hold harmless
<br />ACTIVEG and its officers, directors, employees and agents, from and against any
<br />and all damages and costs incurred by ACTIVEG in any claim, action or
<br />proceeding brought by any of ACTIVEG's licensors against ACTIVEG which
<br />arises from or relates to Licensee's failure to comply with its obligations under this
<br />Agreement.
<br />
<br />Comoliance with Laws. Licensee shall comply with all applicable laws, including,
<br />without limitation, the export control laws of the United States of America and
<br />prevailing regulations which may be issued from time to time by the United States
<br />Department of Commerce and Office of Munitions Control, U.S. Department of
<br />State, concerning the exporting, importing re-exporting of the Licensed Software.
<br />Without limiting the generality of the foregoing, Licensee shall not export or re-
<br />export the Licensed Software or the direct product thereof in violation of the
<br />regulations of the United States Department of Commerce or the U.S. Export
<br />Administration Act or without the prior written consent of ACTIVEG.
<br />
<br />4. Default aud Termination
<br />
<br />Termination bv ACTIVEG. ACTIVEG may terminate this Agreement
<br />immediately upon notice to Licensee if: (i) Licensee fails to comply with any term
<br />or condition of this Agreement (other than Sections 2 and 3) and such non-
<br />con -- nce is not corrected to ACTIVEG's satisfaction within thirty (30) days after
<br />wri' notice of the non-compliance is given by ACTIVEG to Licensee, (ii)
<br />Licl : is liquidated or dissolved, or becomes insolvent, or suffers a receiver or
<br />trus 0 be appointed for it, or makes an assignment for the benefit of creditors or
<br />institutes or has instituted against it any proceeding under any law relating to
<br />bankruptcy or insolvency or the reorganization or relief of debtors, or (iii) Licensee
<br />fails to comply with any of the provisions of Section 2 or 3 of this Agreement. In
<br />
<br />Rev. 1/2001
<br />
<br />the event of any termination of this Agreement, all sums owed to ACTIVEG shall
<br />become immediately due and payable without notice or demand.
<br />
<br />Termination bv Licensee. Licensee may terminate this Agreement at any time
<br />upon notice to ACTIVEG, provided, however, that ACTIVEG shall not be
<br />obligated to refund to Licensee any fees paid by Licensee to ACTIVEG hereunder,
<br />unless licensee terminates because of a breach ofthis Agreement by ACTIVEG.
<br />
<br />5. Limited Warranty and Limitation of Liability
<br />
<br />Performance Warranty. ACTIVEG warrants that for ninety (90) days from the date
<br />of shipment of each copy of the Licensed Software ("Warranty Period"), that copy
<br />of the Licensed Software will perform substantially in accordance with the user
<br />documentation provided by ACTIVEG relating to that copy of the Licensed
<br />Software. ACTIVEG's obligation under this warranty for non-conformance with
<br />this warranty shall be either (a) to use reasonable efforts to correct any non-
<br />conformity in accordance with the procedure set forth in Section 1 of this
<br />Agreement, or (b) upon return of the non-conforming copy of the Licensed
<br />Software, to refund the License Fee paid by Licensee for the copy of the Licensed
<br />Software and terminate the license therefor. Any replacement copy of the Licensed
<br />Software will be warranted for the remainder of the original warranty period or
<br />thirty (30) days from the date of shipment to Licensee, whichever is longer.
<br />
<br />Media Warranty. ACTIVEG warrants that the tapes, diskettes or other media on
<br />which the Licensed Software is delivered will be free of defects in materials and
<br />workmanship under normal use during the Warranty Period. During the Warranty
<br />Period, Licensee may return defective media to ACTIVEG and it will be replaced
<br />without charge. Replacement of media shall be Licensee's sole remedy in the
<br />event of a media defect.
<br />
<br />Limitation on Warranties. ACTIVEG shall have no liability under the foregoing
<br />warranties to anyone other than Licensee or to the extent that : (a) Licensee has
<br />failed to report in writing to ACTIVEG any defect claimed to be a non-
<br />conformance with the warranty within ninety (90) days after the shipment date, or
<br />(b) in non-conformance with the warranty has resulted from (i) accident, misuse or
<br />neglect of the Licensed Software; (ii) acts or omissions by someone other than
<br />ACTIVEG, (iii) combination of the Licensed Software with products, material or
<br />software not provided by ACTIVEG or not intended for combination with the
<br />Licensed Software; (iv) failure by Licensee to incorporate and use any
<br />Enhancement or New Release which ACTIVEG has provided to Licensee under
<br />ACSP or otherwise without additional cost, or (v) the claimed defect is in a
<br />Superseded Release of the Licensed Software. In no event may you bring any
<br />claim, action or proceeding arising out of the warranty set forth in this Section 5
<br />more than one year after the date on which the non-conformance with the warranty
<br />occurred or was discovered.
<br />
<br />Disclaimer. THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 5
<br />ARE THE ONL Y WARRANTIES MADE BY ACTIVEG AND ITS LICENSORS
<br />WITH RESPECT TO THE LICENSED SOFTWARE FURNISHED
<br />HEREUNDER; ACTIVEG MAKES NO OTHER WARRANTIES, EXPRESS,
<br />IMPLIED OR ARISING BY CUSTOM OR TRADE USAGE, AND
<br />SPECIFICALLY DISCLAIMS THE WARRANTIES OF MERCHANTABILITY
<br />AND FITNESS FOR A PARTICULAR PURPOSE.
<br />
<br />Limitation of Liabilitv. ACTIVEG's liability, whether in contract, tort, or
<br />otherwise, arising out of or in connection with the Licensed Software furnished
<br />hereunder or otherwise under this Agreement shall not exceed the depreciated
<br />value of the License Fees paid to ACTIVEG by Licensee for the copy of the
<br />Licensed Software giving rise to the liability for the period of time during which
<br />the claim arose. The depreciated value of the License Fees shall be determined by
<br />the straight line method, for a five year life, applied to the License Fees actually
<br />paid by Licensee for the relevant Licensed Software.
<br />
<br />IN NO EVENT SHALL ACTIVEG OR ITS LICENSORS BE LIABLE FOR ANY
<br />SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL OR
<br />TORT DAMAGES, INCLUDING WITHOUT LIMITATION ANY DAMAGES
<br />RESULTING FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS OR
<br />LOSS OF BUSINESS ARISING OUT OF OR IN CONNECTION WITH ANY
<br />LICENSED SOFTWARE FURNISHED BY ACTIVEG OR THE
<br />PERFORMANCE OF THE LICENSED SOFTWARE, EVEN IF ACTIVEG HAS
<br />BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
<br />
<br />Allocation of Risk. The provisions of this Section 5 allocate the risks under this
<br />Agreement between ACTIVEG and Licensee. ACTIVEG's pricing reflects this
<br />allocation of risk and the limitation of liability specified herein.
<br />
<br />Copyright @ 2001, activeG, LLC
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