PLEASE CAREFULLY READ THIS SOFTWARE END USER LICENSE AGREEMENT (“LICENSE AGREEMENT”) BEFORE INSTALLING OR OTHERWISE USING THE TAMR CATALOG SOFTWARE (THE “SOFTWARE”) AND DOCUMENTATION (THE “DOCUMENTATION”) DELIVERED TO YOU BY TAMR, INC., A DELAWARE CORPORATION WITH A BUSINESS ADDRESS AT 66 CHURCH STREET, CAMBRIDGE, MASSACHUSETTS 02138, USA (“LICENSOR”).
BY CLICKING ON THE “ACCEPT” BUTTON, AND/OR DOWNLOADING OR USING THE SOFTWARE, YOU ARE STATING THAT (1) YOU HAVE READ THIS AGREEMENT, AGREE TO ALL OF ITS TERMS, AND CONSENT TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT, AND (2) YOU HAVE DOWNLOADED THE SOFTWARE OR IT HAS BEEN DELIVERED TO YOU AND IS IN YOUR POSSESSION. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “DO NOT ACCEPT” BUTTON AND/OR DO NOT DOWNLOAD OR USE THE SOFTWARE.
IF YOU ARE ACCEPTING THIS LICENSE AGREEMENT ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY, YOU REPRESENT AND WARRANT THAT: (I) YOU HAVE FULL LEGAL AUTHORITY TO BIND YOUR EMPLOYER, OR THE APPLICABLE ENTITY, TO THE LICENSE AGREEMENT; (II) YOU HAVE READ AND UNDERSTAND THIS LICENSE AGREEMENT; AND (III) YOU AGREE, ON BEHALF OF THE PARTY THAT YOU REPRESENT, TO THIS LICENSE AGREEMENT.
ACCEPTANCE OF THIS LICENSE AGREEMENT IS REQUIRED AS A CONDITION TO PROCEEDING WITH ACCESS AND USE OF THE SOFTWARE AND DOCUMENTATION. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THE LICENSE AGREEMENT OR IF YOU DO NOT HAVE THE LEGAL AUTHORITY TO BIND YOUR EMPLOYER OR THE APPLICABLE ENTITY, YOU MUST IMMEDIATELY RETURN OR DESTROY THE SOFTWARE AND DOCUMENTATION.
AS USED IN THIS LICENSE AGREEMENT, THE TERM “LICENSEE” MEANS YOU AND/OR YOUR EMPLOYER AS APPLICABLE.
IN CONSIDERATION OF THE PREMISES AND THE MUTUAL COVENANTS CONTAINED HEREIN, YOU AND LICENSOR HEREBY AGREE AS FOLLOWS:
THIS LICENSE AGREEMENT GOVERNS LICENSEE’S USE OF THE SOFTWARE AND DOCUMENTATION.
2. License Grant
The Software and Documentation are provided to Licensee at no charge and are licensed, not sold to Licensee. No ownership of any part of the Software and Documentation is hereby transferred to Licensee. Subject to (i) the terms and conditions of this License Agreement, (ii) any additional license restrictions and parameters contained on Licensor’s quotation, website, or order form (“Order Form”), Licensor hereby grants Licensee a personal, non-assignable, non-transferable and non-exclusive license to install, access and use the Software (in object code form only) and Documentation for Licensee’s internal business purposes only. All rights relating to the Software and Documentation that are not expressly licensed in this License Agreement, whether now existing or which may hereafter come into existence are reserved for Licensor. Licensee shall not remove, obscure, or alter any proprietary rights notices (including without limitation copyright and trademark notices), which may be affixed to or contained within the Software or Documentation.
Licensee will not, directly or indirectly, (a) copy the Software or Documentation in any manner or for any purpose; (b) install, access or use any component of the Software or Documentation for any purpose not expressly granted in Section 2 above; (c) resell, distribute, publicly display or publicly perform the Software or Documentation or any component thereof, by transfer, lease, loan or any other means, or make it available for use by others in any time-sharing, service bureau or similar arrangement; (d) disassemble, decrypt, extract, reverse engineer or reverse compile the Software, or otherwise attempt to discover the source code, confidential algorithms or techniques incorporated in the Software; (e) export the Software or Documentation in violation of any applicable laws or regulations; (f) modify, translate, adapt, or create derivative works from the Software or Documentation; (g) circumvent, disable or otherwise interfere with security-related features of the Software or Documentation; (h) use the Software or Documentation for any illegal purpose, in any manner that is inconsistent with the terms of this License Agreement, or to engage in illegal activity; (i) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels on, or embedded in, the Software or Documentation; or (j) provide access to the Software or Documentation to third parties.
a. Licensor may terminate this License Agreement and Support with or without notice at any time for any reason, including without limitation if Licensee materially breaches this License Agreement or takes any action in derogation of Licensor’s or its licensor’s rights in or to any component of the Software or Documentation.
b. Upon termination, Licensee shall cease all use of the Software and Documentation. All provisions of Sections 3, 4b, 5, 6, 7 and 9 of the License Agreement shall survive termination.
5. Warranty Disclaimer
THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” AND LICENSOR MAKES NO AND DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT OF THIRD PARTIES’ INTELLECTUAL PROPERTY RIGHTS OR OTHER PROPRIETARY RIGHTS. NEITHER THIS LICENSE AGREEMENT NOR ANY DOCUMENTATION FURNISHED UNDER IT IS INTENDED TO EXPRESS OR IMPLY ANY WARRANTY THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED, TIMELY, OR ERROR-FREE.
6. Limitation of Liability
a. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT WILL LICENSOR BE LIABLE FOR ANY LOST PROFITS, REVENUE OR DATA, OR OTHER INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ARISING OUT OF OR RELATED TO THE SOFTWARE OR DOCUMENTATION OR THE USE THEREOF. FURTHER, NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL LICENSOR’S TOTAL LIABILITY TO LICENSEE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED ONE HUNDRED DOLLARS ($100). THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY, EVEN IF LICENSOR HAS BEEN ADVISED, OR IS OTHERWISE AWARE, OF THE POSSIBILITY OF DAMAGES OR IS NEGLIGENT. LICENSEE AND LICENSOR AGREE THAT THE DISCLAIMERS OF SECTION 5 AND THE LIMITATION OF LIABILITY OF THIS SECTION 6 ARE REASONABLE.
b. SOME STATES DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL, SPECIAL, PUNITIVE, OR OTHER INDIRECT OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS OF SECTIONS 5 AND 6 OF THE LICENSE AGREEMENT MAY NOT APPLY TO LICENSEE. IN SUCH STATES, THE LIABILITY OF LICENSOR SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
7. Confidentiality; Security
The Software and Documentation (collectively, “Confidential Information”) constitute Licensor’s proprietary and confidential information, whether or not it is identified in writing as “Confidential.” Licensee will not (i) use any such Confidential Information in any way, for its own account or the account of any third party, except as expressly permitted under this Agreement, or (ii) disclose any such Confidential Information to any third party, other than furnishing such Confidential Information to its employees who are required to have access to the Confidential Information in connection with the performance of this Agreement, provided, that such employees are bound by written confidentiality obligations consistent with the terms and conditions of this Section 7. Licensee will not allow any unauthorized person access the Confidential Information, and Licensee will take all action reasonably necessary to protect the confidentiality of such Confidential Information, including implementing and enforcing procedures to minimize the possibility of unauthorized access, use or copying of such Confidential Information. In the event that Licensee is required by law to make any disclosure of any of the Confidential Information, by subpoena, judicial or administrative order or otherwise, Licensee will first give written notice of such requirement to Licensor, and will permit Licensor to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to Licensor in seeking to obtain such protection. Information will not be deemed Confidential Information hereunder to the extent that Licensee can demonstrate that such information: (a) is known to Licensee prior to receipt from Licensor directly or indirectly from a source other than one having an obligation of confidentiality to Licensor; (b) becomes known (independently of disclosure by Licensor) to Licensee directly or indirectly from a source other than one having an obligation of confidentiality to Licensor; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by Licensee. Because the unauthorized access, use, transfer or dissemination of any Confidential Information provided by Licensor to Licensee may diminish substantially the value of such materials and may irreparably harm Licensor, if Licensee breaches the provisions of this Section 7, Licensor will, without limiting its other rights or remedies, be entitled to equitable relief, including but not limited to injunctive relief, without the necessity of posting any bond.
a. If any term or condition of this License Agreement is deemed to be illegal or unenforceable under any rule of law, all other terms shall remain in force. Further, such provision will be reformed only to the extent necessary to make it enforceable and the term or condition which is held to be illegal or unenforceable shall remain in effect as far as possible in accordance with the intention of the parties.
b. Nothing in this License Agreement shall be construed to place the parties hereto in an agency, employment, franchise, joint venture, or partnership relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained shall give rise or is intended to give rise to any rights of any kind to any third parties. Neither party will represent to the contrary, either expressly, implicitly or otherwise.
c. All disputes, claims or controversies arising out of this License Agreement, or the negotiation, validity or performance of this License Agreement, or the transactions contemplated hereby shall be governed by and construed in accordance with the laws in force in the Commonwealth of Massachusetts without regard to its rules of conflict of laws. Each of the parties hereto hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of Commonwealth of Massachusetts and of the United States of America located in the Commonwealth of Massachusetts (the “Massachusetts Courts”) for any litigation among the parties hereto arising out of or relating to this License Agreement, or the negotiation, validity or performance of this License Agreement, waives any objection to the laying of venue of any such litigation in the Massachusetts Courts and agrees not to plead or claim in any Massachusetts Courts that such litigation brought therein has been brought in any inconvenient forum or that there are indispensable parties to such litigation that are not subject to the jurisdiction of the Massachusetts Courts. The United Nations Convention on Contracts for the International Sale of Goods is hereby excluded and shall not apply.
d. Licensee may not assign this License Agreement without the prior written consent of Licensor. Any purported assignment in contravention of this section is null and void. A transfer of a controlling interest in the equity of Licensee shall be deemed an assignment for purposes of this subsection. Subject to the foregoing, this License Agreement will bind and inure to the benefit of any successors or assigns.
e. Licensee acknowledges that portions of the Software may be subject to US export control laws, including the US Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Licensee agrees to comply strictly with all such laws and regulations.
f. The Software, other than the Open Source Software, was developed at private expense and consists of “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in Section 12.212 of the Federal Acquisition Regulation and Section 227.7202 of the Defense Federal Acquisition Regulation Supplement. Accordingly, any use, duplication or disclosure by the Government or any of its authorized users is governed solely by the terms of this Agreement. If for any reason, Sections 12.212 or 227.7202 are deemed not applicable, then the Government’s rights to use, duplicate or disclose the Software are limited to “Restricted Rights” as defined in 48 CFR Section 52.227-19 or DFARS 252.227-7014, as applicable.
g. This License Agreement constitutes the entire agreement between the parties regarding the subject matter hereof, and it supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions contained on printed forms submitted with purchase orders, sales acknowledgments or quotations. This License Agreement may not be modified or waived, in whole or part, except in writing and signed by an officer or duly authorized representative of both parties. Failure or delay by either party to enforce any provision of this License Agreement will not be deemed a waiver of future enforcement of that or any other provision.
h. Any notice of communication from one party to the other will be by email, addressed to Licensor at email@example.com and to Licensee at the address on the Order or Website Form, or such other address as either party may from time to time designate in writing to the other party.