Read this agreement carefully.
BY CLICKING ON THE “I AGREE” BUTTON OR INSTALLING OR USING ALL OR ANY PORTION OF THE SOFTWARE, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU.
IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, CLICK “I DON’T AGREE”. YOU WILL NOT BE GIVEN ACCESS TO THE SOFTWARE UNLESS YOU ACCEPT THE TERMS OF THIS AGREEMENT.
IF YOU WISH TO USE the Software AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT. THE LICENSES GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.
IF YOU HAVE ENTERED INTO A SEPARATE WRITTEN LICENSE AGREEMENT WITH Shipa corp FOR USE OF THE SOFTWARE, THE TERMS AND CONDITIONS OF SUCH OTHER AGREEMENT SHALL PREVAIL OVER ANY CONFLICTING TERMS OR CONDITIONS IN THIS AGREEMENT.
This license agreement (“Agreement”) is between Shipa Corp, a Delaware corporation (“Vendor”) and the customer (individual or entity) that has installed or procured the licensed software for use as an end user (“you”). This Agreement covers any computer software program(s) from Vendor delivered herewith (“Software”) and supporting technical documentation provided with the Software (“Documentation”).
Effective Date: means the earlier of the date you sign an Order Form or the date on which the Software is first made available to you.
Order Form: means any order on Vendor’s standard order form which is executed by Vendor and you and which references this Agreement. Each Order Form which references this Agreement shall be deemed a part of this Agreement.
Software: means the Vendor software product(s) provided in connection with this Agreement in object code form (or as otherwise specified in any related Order Form). “Software” does not include any Third Party Application. Unless otherwise noted, the Software and Documentation are referred to collectively herein as “Software”.
Third Party Application: means any third party software application that is packaged using, combined with, or incorporated with the Software.
Third Party License: means a separate license agreement between you and a third party governing your use of the Third Party Application.
2.1 Grant of License.
(a) Subject to all of the terms and conditions of this Agreement, Vendor grants you a non-transferable, non-sublicensable, non-exclusive license to use the Software, but only in accordance with (i) the Documentation, (ii) this Agreement and (iii) any license term, subscription term or other user, computer, field of use or other restrictions set forth in the applicable Order Form or otherwise specified upon purchase.
(b) Any Third Party Application is licensed to you separately under the terms and conditions of the Third Party License.
2.2 Installation and Copies. Vendor shall deliver the Software and Documentation by disk or other media or make it available for download in electronic form. Vendor shall also provide you with electronic passwords or other enabling mechanisms if necessary to permit the licensed usage of the Software. All subscriptions shall commence, and delivery shall be deemed to occur, simultaneously with the commencement and delivery of the Third Party Application under the terms and conditions of the Third Party License. You may copy and install the Software only to the same extent that you are permitted to copy and install the Third Party Application under the terms and conditions of the Third Party License.
2.3. License Restrictions. You shall not: (a) modify, translate, adapt, reverse engineer, decompile, disassemble, or otherwise translate or create derivative works based on the Software, except solely to the extent expressly permitted by applicable law and with advance notice of such activity to Vendor; (b) use the Software to provide any facility management, time sharing, service bureau, or other similar services to third parties; (c) rent, lease or sublicense the Software to a third party; (d) remove any product identification, proprietary, copyright or other notices contained in the Software; (e) separate the Software from any Third Party Application with which it has been packaged, combined, or incorporated, or (f) disclose or distribute: (i) benchmarks or other comparisons relating to the Software or (ii) any information relating to the results of your use of the Software (including relating to performance, function, or deficiencies of the Software) or contained in any documentation, report, or questionnaire of Vendor.
- Ownership. Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided herein, Vendor and its suppliers have and will retain all rights, title and interest (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Software and all copies, modifications and derivative works thereof. You acknowledge that you are obtaining only a limited license right to the Software and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to you under this Agreement or otherwise.
- Termination of Agreement.
4.1 Term. This Agreement is effective as of the Effective Date and expires upon the earlier to occur of the following (the “Term”): (a) at such time as all license and service subscriptions hereunder have expired in accordance with their own terms or (b) upon the termination or expiration of the Third Party License. Either party may terminate this Agreement (including all related Order Forms) if the other party: (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days)). Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
4.2 Termination. Upon any expiration or termination of this Agreement, you shall cease any and all use of any Software and destroy all copies thereof and so certify to Vendor in writing.
4.3 Survival. Sections 2.3 (License Restrictions), 3 (Ownership), 4 (Termination of Agreement), 5 (Disclaimer of Warranties), 6 (Limitation of Remedies and Damages), 7 (Confidential Information), 8 (Export Compliance) and 9 (General) shall survive any termination or expiration of this Agreement.
- Disclaimer of Warranties. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND ALL SERVICES ARE PROVIDED TO you “AS IS” AND WITH ALL FAULTS. NEITHER VENDOR NOR ITS LICENSORS MAKES ANY OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE OR DOCUMENTATION, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF title, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, or non-infringement. Vendor accepts no liability whatsoever with respect to the third party application. You agree to contact the relevant third party with respect to any issues regarding the Third party application.
- Limitation of Remedies and Damages.
6.1 Neither you nor Vendor (Including Vendor’s suppliers) SHALL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. THIS SECTION 6.1 SHALL NOT APPLY TO you WITH RESPECT TO ANY CLAIM ARISING UNDER THE SECTIONS TITLED “Grant of License,” “LICENSE RESTRICTIONS” OR “CONFIDENTIAL INFORMATION”.
6.2 The parties agree that the limitations specified in this Section 6 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
- Confidential Information. Any software, documentation or technical information provided by Vendor (or its agents) shall be deemed “Vendor Confidential Information” without any marking or further designation. Except as expressly authorized herein, you will hold in confidence and not use or disclose any Vendor Confidential Information. You acknowledge that disclosure of Vendor Confidential Information would cause substantial harm to Vendor that could not be remedied by the payment of damages alone and therefore that upon any such disclosure by you, Vendor shall be entitled to appropriate equitable relief in addition to whatever remedies it might have at law.
- Export Compliance. You acknowledge that the Software is subject to export restrictions by the United States government and import restrictions by certain foreign governments. You shall not, and shall not allow any third-party to, remove or export from the United States or allow the export or re-export of any part of the Software or any direct product thereof: (i) into (or to a national or resident of) any embargoed or terrorist-supporting country; (ii) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (iii) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (iv) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. You agree to the foregoing and warrant that you are not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Software is further restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology, or for terrorist activity, without the prior permission of the United States government.
9.1 Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Vendor may assign this Agreement to any affiliate or to any assignee of all or substantially all of Vendor’s assets (whether pursuant to a merger, change of control or otherwise). You may not assign or transfer this Agreement, in whole or in part, without Vendor’s written consent. Any attempt to transfer or assign this Agreement without such written consent will be null and void.
9.2 Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
9.3 Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Unless waived by Vendor in its sole discretion, the jurisdiction and venue for actions related to the subject matter hereof shall be the California State and United States federal courts located in San Francisco, California, and both parties hereby submit to the personal jurisdiction of such courts.
9.4 Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
9.5 Notices and Reports. Any notice or report hereunder shall be in writing. If to Vendor, such notice or report shall be sent to Shipa Corp, Attn: Legal. If to you, such notice or report shall be sent to the address you provided upon placing your order. Notices and reports shall be deemed given: (i) upon receipt if by personal delivery; (ii) upon receipt if sent by certified or registered U.S. mail (return receipt requested); or (iii) one day after it is sent if by next day delivery by a major commercial delivery service.
9.6 Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived.
9.7 Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. No provision of any purchase order or in any other business form employed by you will supersede the terms and conditions of this Agreement, and any such document issued by a party hereto relating to this Agreement shall be for administrative purposes only and shall have no legal effect. Notwithstanding the foregoing, if you have entered into a separate written license agreement signed by Vendor for use of the Software, the terms and conditions of such other agreement shall prevail over any conflicting terms or conditions in this Agreement.
9.8 Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
9.9 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events, which occur after the signing of this Agreement and which are beyond the reasonable control of the parties, such as strikes, blockade, war, terrorism, riots, natural disasters, refusal of license by the government or other governmental agencies, in so far as such an event prevents or delays the affected party from fulfilling its obligations and such party is not able to prevent or remove the force majeure at reasonable cost.
9.10 Government End-Users. The Software and Documentation provided under this Agreement are commercial computer software programs developed solely at private expense. As defined in U.S. Federal Acquisition Regulations (FAR) section 2.101 and U.S. Defense Federal Acquisition Regulations (DFAR) sections 252.227-7014(a)(1) and 252.227-7014(a)(5) (or otherwise as applicable to you), the Software and Documentation licensed in this Agreement are deemed to be “commercial items” and “commercial computer software” and “commercial computer software documentation.” Consistent with FAR section 12.212 and DFAR section 227.7202, (or such other similar provisions as may be applicable to you), any use, modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. government (or any agency or contractor thereof) shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.
9.11 Injunctive Relief. You understand and agree that, notwithstanding any other provision of this Agreement, your breach of the provisions of this Agreement will cause Vendor irreparable damage for which recovery of money damages would be inadequate, and that Vendor shall therefore be entitled to obtain timely injunctive relief to protect Vendor’s rights under this Agreement in addition to any and all remedies available at law.
9.12 Third-Party Code. If designated in the Documentation, the Software may contain or be provided with certain third-party code (including code which may be made available to you in source code form). Ownership, use, warranty and modification rights with respect to any such designated code shall be as expressly set forth in the Documentation.
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