EffectiveDate”).
RECITALS
A. Company wishes to have Amino providemaintenance and support services for such products and Software in accordancewith the selected Service Level and pursuant to the terms and conditions ofthis Agreement.
NOW, THEREFORE, the parties agree asfollows:
1. Definitions
“Affiliates”means each and any subsidiary or holding company of either party and each andany subsidiary of a holding company of either party.
“ConfidentialInformation” means all information which would reasonably be consideredconfidential, including information of commercial value, in whatever form ormedium, disclosed by either party or any of its Affiliates to the other partyor any of its Affiliates including commercial or technical know-how,technology, information pertaining to business operations and strategies, andinformation pertaining to pricing and marketing and, for clarity, including (inthe case of Amino) information relating to the Covered System, Software andServices, whether or not such information is marked confidential orproprietary.
“Contract Year”means the Initial Support Period or an individual Renewal Period, whichever iscurrent.
“Documentation”means any documentation provided by Amino to Company in relation to the CoveredSystem, Software or Services, including without limitation technicaldocumentation, specifications and operations manuals.
“Expenses” hasthe meaning set out in Section 10.2.
“Fees” means thefees for the Services according to the Service Level and, where applicable, thefees for any requested Optional Services.
“Initial SupportPeriod” means the period from the Effective Date until the following 31stDecember.
“LicenseAgreement” means the License Agreement set forth in Exhibit A.
“MaintenanceServices” means the services described in Section 5 and the Service Level.
“OptionalServices” means any of the services set out in Section 6.
“Product” meansthe Amino product(s) forming part of the Covered System
“Renewal Period”has the meaning set out in Section 16.
“Service Level”means the service level selected by the Company (by means of its purchaseorder, or by payment of the applicable Fee, or otherwise in writing) from theset of available levels all as set forth in Exhibit B.
“Software” meansthe Amino software comprised in the Products.
“Services” meansthe Support Services, the Maintenance Services, and any agreed OptionalServices.
“Site” means theCompany location(s).
“Support Period”means the Initial Support Period together with any subsequent Renewal Periods.
“SupportServices” means the services described in Section 4 and the Service Level.
“SupportWebsite” means the URL notified to Company from time to time.
“Updates” meansSoftware updates and enhancements as described in Section 5.
2. Incorporation of Documents
The followingdocuments are attached hereto and, by this reference, incorporated in thisAgreement:
• Exhibit A: License Agreement
• Exhibit B: Services Description
3. Coverage
3.1. Exclusions.Covered System does not include any: hardware, operating systems and othersystem software, Company-developed software, and third-party software (exceptany third-party software embedded in the Software) other than as expresslylisted as the Covered System. Support for all such items should be obtaineddirect from the relevant third party.
4. Description of Support Services
4.1. SupportServices. During the Support Period, and subject to compliance by Companywith the terms of this Agreement, including without limitation payment of theFees, Amino will provide the Support Services for the Covered System including onlythose Support Services selected by Company including, where specified in the selectedsupport level[JM2] ;.
4.1.1 Web Support. Amino will make available to Company the Support Website forCompany to raise support requests for the Covered System. The Support Websiteis monitored in accordance with the Service Level. Company agrees (subject toSection 4.3) that it shall use the Support Website to notify Amino of eachproblem associated with the Covered System and related Documentation for whichit requires the Support Services.
4.1.2. TelephoneSupport. If it forms part of the Service Level, Amino shall also provide Companywith a contact telephone number which shall be monitored by Amino within thehours specified in Exhibit B for the Service Level.
4.1.3. RemedialSupport Response. Upon receipt by Amino of notice from Company through theSupport Website (or by telephone if telephone support is provided) of an error,defect, malfunction or nonconformity in the Covered Systems, Amino shall useits commercially reasonable efforts to respond as set forth in Exhibit B inaccordance with the Service Level. For the avoidance of doubt, the statedresponse times (if any) shall not apply to versions of the Software supplied aspre-release, evaluation or trial. Where no response time is stated, Amino mayprovide a correction in the next scheduled Update, but shall not be in defaultof this Agreement if no correction or Update is provided. Company agrees that acorrection may include a rollback to a previously released version of theSoftware.
5. Description of Maintenance Services
5.1. Maintenance Services. During the SupportPeriod, Amino will maintain the Covered System by providing Updates. AllUpdates provided to Company by Amino pursuant to the terms of this Agreementshall be subject to the terms and conditions of the License Agreement betweenthe Parties or, if no such license agreement exists, the License Agreement setforth in Schedule A. Updates will be provided on an as-available basis and mayinclude:
(a) Bug fixes (corrections);
(b) Enhancements to existing features of theCovered Systems.
Updates do not include:
(a) Extensionsof the Covered System including to
(i) different hardwareplatforms;
(ii) differentaccessories;
(iii) different operatingsystem platforms;
(iv) different ThirdParty components; and
(b) New functions such as
(i) new functionality;
(ii) new applications;and
(iii) new support anddiagnosis tools.
5.2. UpdateDistribution. Updates to the Covered Systems and Documentation will beprovided in electronic format downloadable by Company from the Support Website.
5.3. LegacySupport. Amino will provide Maintenance Services for the current release ofSoftware and at least the previous 2 releases of the Software. After this time,Amino shall have no further responsibility for supporting and maintaining anyprior releases of Software.
5.4. UnauthorizedModifications. Amino shall have no responsibility for the correctness,performance, or any resulting incompatibilities of current or future releasesof the Covered Systems if the Company has made changes to the Covered System oroperating environment without prior written approval by Amino. Amino assumes noresponsibility for the operation or performance of any Company-written or thirdparty application.
5.5. ServicesNot Included. Maintenance Services do not include:
(a) custom programming services;
(b) on-site support, including installationof hardware or software;
(c) support of any software other thanCovered Systems;
(d) any other activity set forth in Section 6of this Agreement; any other activity not expressly set forth herein.
6. Optional Services
6.1. Company may request the provision ofOptional Services set out in this Section 6. Acceptance of such request shallbe at Amino’s sole discretion. Payment for Optional Services will be inaccordance with Section 11.2.
6.2. On-SiteSupport. Company may request with reasonable notice that Amino deploypersonnel to the Site to provide support services beyond those covered underthis Agreement (“On-Site Support”). On-Site Support may range from problemdiagnosis and resolution to system administration and tuning, and/orinstallation of hardware and software. Company will be billed for labor,including travel time, on a time and materials basis at Amino’s then currentstandard rates, plus Expenses.
6.4. Training.Amino offers a number of training options that can be tailored to the needs ofCustomer. Fees for training are available on request.
7. Accessto Company Systems & Facilities
7.1. Company acknowledges that provision of theServices is conditional upon provision by Company to Amino of access to thesystem(s) running the Covered Systems, including, but not limited to,passwords, system data, file transfer capabilities, and remotelog-in-capabilities. Amino will use such access only for the purposes of thisAgreement and will comply with Company’s security procedures provided to Aminoin writing. Information accessed by Amino agents or employees as a result ofaccessing Company’s systems shall be deemed Confidential Information.
8. Problem Reporting and Tracking Procedures
When submitting requestsfor use of the Services, Company shall use the methods of communicating theserequests listed as part of there selected Support Services. Requests submittedthrough other methods will not be deemed valid and will not count towardscompliance with the Service Level Agreement.
9. Data Backup.
Companyacknowledges that the Services do not include data backup, and that it mustmaintain regular and appropriate data backups. In the event of any loss,destruction, damage or corruption of Company data caused by the Covered Systemor Services, Amino, as its sole obligation and liability and as Company’s soleremedy, will use commercially reasonable efforts to restore the Company datafrom the then most current backup of such Company data made available to Aminoby Company. SAVE AS SET OUT ABOVE AMINO HAS NO OBLIGATION OR LIABILITY FOR ANYLOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF COMPANY DATA.
10. Fees
10.1. Fees.Fees for the Services provided under this Agreement are as set forth in orderand/or order acknowledgement to which this agreement is appended. Amino mayrevise the Fees at the commencement of each Renewal Period subject to 30 days’notice in writing.
10.2. Expenses.Company agrees to reimburse Amino for reasonable expenses related to theperformance of Services. Expenses may include, but are not limited to, chargesfor materials, freight, travel (including lodging and associated expenses),printing and documentation, and other out-of- pocket expenses reasonablyrequired for performance. Travel and travel-related expenses and individualexpenses in excess of US$500 require the prior approval of Company.
11. Payment
11.1. Company shall pay the Fees for the ServiceLevel in accordance with the payment schedule set forth in the latter of therelevant quotation, order and/or order acknowledgement to which this Agreementis appended or linked or, if no payment schedule is stated therein, they shallbe paid annually in advance.
11.2. The Fees for any Optional Services and anyassociated Expenses will be payable by Company within 30 days of the end of themonth in which such Optional Services are rendered whether or not a purchaseorder has been issued by Company.
11.3. A service charge of 1.5% per month will beapplied to all invoices which are past due. Such charges shall apply from the date Company is notified that theamount is past due.
12. Taxes
Company shall,in addition to the other amounts payable under this Agreement, pay all salesand other taxes, national or otherwise,however designated, which are levied or imposed by reason of transactionscontemplated by this Agreement, except those which arise as a result of income,including withholding taxes or similar deductions. Without limiting theforegoing, Company shall promptly pay to Amino an amount equal to any suchitems actually paid, or required to be collected or paid by Amino.
13. Confidentiality
13.1. Each party agrees to keep confidential allConfidential Information of the other party and to use such ConfidentialInformation exclusively for the purposes of this Agreement or exercise of therights granted under this Agreement, and to disclose the same only to those ofits employees, agents, contractors and sub-contractors pursuant to thisAgreement (if any) to whom and to the extent that such disclosure is strictlynecessary for the purposes of this Agreement or exercise of the rights grantedunder this Agreement.
13.2. Without limiting the scope of the precedingclause, each party shall:
(a) protect and safeguard theConfidential Information against unauthorized use, copying, publication ordisclosure; and
(b) comply with any other reasonablesecurity measures notified to each party in writing from time to time.
13.3. These restrictions shall not apply toinformation which each party can demonstrate:
(a) prior to receiptthereof from the other party was in its possession and at its free disposal; or
(b) is subsequently disclosed to each partywithout any obligations of confidence by a third party who has not derived itdirectly or indirectly from the other; or
(c) is or becomes generally available to thepublic through no act or default of such party or of its employees, agents,contractors or sub-contractors; or
(d) was independentlydeveloped by it without reference to the Confidential Information; or
(e) is required by law or a court or othercompetent authority to be disclosed; provided that in such case it shallpromptly notify the other party in writing and in such detail as it mayreasonably require of such requirement for disclosure and shall assist theother party in any lawful efforts to prevent or limit the disclosure.
13.4. Each party shall procure that all itsemployees, agents, contractors and sub-contractors pursuant to this Agreement(if any) who have access to any Confidential Information shall treat suchConfidential Information in a manner that is consistent with this Section 13.Without limitation, Company shall ensure that each such employee, agent,contractor and sub-contractor shall be subject to written obligations ofconfidentiality consistent with this Section 13.
13.5. Each party shall immediately inform theother in writing upon becoming aware of any breach or anticipated breach ofthis clause, or that any Confidential Information has been lost, stolen ormisplaced or upon having reason to believe that an employee or another personhas gained unauthorized access to any Confidential Information and shall takesuch steps as the other party may reasonably require in order to minimize theloss or damage which may result from such breach.
13.6. This Section 13 shall survive anytermination or expiration of this Agreement.
14. Limited Warranty
14.1. Amino warrants that it will perform theServices with reasonable care and skill. If Amino is shown to be in breach ofsuch warranty in relation to particular Services, it shall, as the Company’sexclusive remedy, at its own cost and as soon as reasonably practicable,re-perform the relevant Services.
14.2. Any Software, including without limitationUpdates, delivered to the Customer pursuant to this Agreement is providedsubject to the warranties and remedies expressly set out in the LicenseAgreement.
15. Disclaimer Warranty; Exclusion of Liability
15.1. Nothing in this Agreement shall exclude orrestrict the liability of either party to the other for any liability thatcannot be excluded or limited by law.
15.2. SUBJECT TO CLAUSE 15.1, THE LIABILITY OFAMINO TO COMPANY FOR DIRECT LOSS IN CONTRACT, TORT OR OTHERWISE ARISING OUT OFOR IN CONNECTION WITH THIS AGREEMENT OR COMPANY’S USE OF THE COVERED SYSTEM ORTHE DOCUMENTATION SHALL BE LIMITED IN RESPECT OF ALL CLAIMS DURING THE CONTRACTYEAR TO THE FEES PAID OR PAYABLE BY COMPANY TO AMINO PURSUANT TO THIS AGREEMENTDURING THE RELEVANT CONTRACT YEAR.
15.3. SUBJECT TO CLAUSE 15.1, IN NO CIRCUMSTANCESSHALL AMINO BE LIABLE TO COMPANY WHETHER IN CONTRACT, TORT, NEGLIGENCE, BREACHOF STATUTORY DUTY OR OTHERWISE IN RESPECT OF:
(a) LOSS OF PROFITS,ANTICIPATED SAVINGS, REVENUE, GOODWILL OR BUSINESS OPPORTUNITY;
(b) ANY INDIRECT, CONSEQUENTIAL, FINANCIALOR ECONOMIC LOSS OR DAMAGE, COSTS OR EXPENSES, WHATEVER OR HOWEVER ARISING OUTOF OR IN CONNECTION WITH THIS AGREEMENT OR COMPANY’S USE OF THE COVERED SYSTEM.
16. Term and Termination
16.1 This Agreement shall commence on theEffective Date and, unless terminated earlier in accordance with this Section16, shall continue for the Initial Support Period and thereafter the Servicesshall be automatically renewed for successive period of 12 months (each a“Renewal Period”).
16.2 This Agreement may be terminated
(a) by either party upon sixty (60)days’ notice prior to the expiration of the Initial Support Period or any subsequentRenewal Period;
(b) by either party upon a default ormaterial breach of the other party, such default remaining uncured for thirty(30) days from the date of written notice from the non- defaulting party to theother specifying such default;
(c) upon the bankruptcy or insolvencyof either party; or
(e) if the License Agreement isterminated.
17. Consequences of Termination
17.1. Company shall pay to Amino, within 30 daysof termination, all undisputed sums due under this Agreement.
17.2. Amino shall cease to provide the Services.
17.3. Termination of this Agreement for Servicesshall not affect the rights or obligations of either party under the LicenseAgreement.
17.4. The following clauses survive termination:11, 12, 13, 15, 17 and 18.
18. General
18.1. The relationship of the parties under thisAgreement is that of independent contractors and, subject as otherwiseexpressly provided in this Agreement, neither party is the agent of the otherfor any purpose and neither party shall make any representation, give anywarranty or enter into any contractual or other commitment purporting to bebinding on the other.
18.2. Each party acknowledges that it is bound bythe terms of this Agreement and further agrees that it is the entire agreementbetween the parties, which supersedes and merges all prior proposals,understandings and all other agreements, oral and written, between the partiesrelating to the subject matter of this Agreement. This Agreement may not bemodified or altered except by a written instrument duly executed by bothparties.
18.3. If the whole or any part of any provisionof this Agreement shall be held to be invalid, illegal or unenforceable, thevalidity, legality and enforceability of the remaining provisions shall in noway be affected or impaired thereby.
18.4. The headings in this Agreement are forconvenience only and are not intended to have any legal effect; all referencesto Sections are references to clauses in this Agreement; references to a“person” shall be deemed to include an individual, a company, a limitedliability partnership or an unincorporated business or other body or legalperson or group of legal persons; and words such as “in particular”,“including” or other words indicating that examples falling within more generalwording follow shall not be construed as limiting in any way the scope of thecorresponding more general wording.
18.5. The waiver or failure of either party toexercise in any respect any right provided for herein shall not be deemed awaiver of any such rights or operate so as to bar the exercise or enforcementthereof at any subsequent time or times.
18.6. This Agreement shall be binding upon andinure to the benefit of the parties’ respective successors and permittedassigns. Neither party may assign this Agreement and/or any of its rightsand/or obligations hereunder without the prior written consent of the otherparty and any such attempted assignment shall be void, except that:
(a) eitherparty may assign this Agreement and/or any of its rights and/or obligationshereunder, upon written notice to the other party to another entity in theevent of that party’s merger or consolidation with another entity, without theconsent of the other party, provided that the assignee is capable of fulfillingand intends to fulfill the obligations of the assigning party under thisAgreement; and
(b) Aminomay assign this agreement to any of its Affiliates.
18.7. This Agreement shall be governed by andconstrued in all respects in accordance with the laws of the State of Californiawithout regard to its conflict of laws provisions and the parties submit to theexclusive jurisdiction of the courts of San Francisco County, San Francisco,California in respect of any dispute or claim arising out of or relating tothis Agreement. If any provision of this Agreement is found to be unenforceableor invalid, that provision will be limited or eliminated to the minimum extentnecessary so that this Agreement will otherwise remain in full force and effectand enforceable.
18.8. This Agreement is not intended to confer abenefit on any third party and no third party shall have any right to enforceor to benefit under any of the provisions of this Agreement.
By using theSoftware (as defined below) provided by Amino Technologies (US), LLC. A Delaware limited liability company withregistered offices at 20823 Stevens Creek Boulevard, Suite 400, Cupertino, CA95014, USA (“Amino”) in connectionwith use of any Products (as defined below) the Company as a licensee below (“Licensee”) acknowledges it has read this Software License Agreement (“Agreement”),understood it, and agrees to its terms.
1. Definitions
“ConfidentialInformation” means the Software (excluding any Open Source), the Documentation,and all information which would reasonably be considered confidential,including know-how, technical data, commercial and marketing information, inall forms (physical, non-physical, human or machine readable or otherwise)obtained by Licensee directly or indirectly from Amino pursuant to or in thecourse of this Agreement or prior to and in contemplation of it, together with the results of Licensee’s evaluation ofsuch information and any reproductions of any of the foregoing; whether or notsuch information is marked confidential or proprietary.
“Documentation”means any hard or soft copy documentation provided by Amino to Licensee inrelation to the Software (including documentation pertaining to Products so faras it relates to the Software) including any updates provided by Amino fromtime to time, and including any part or copy thereof.
“End User” meansa person who has obtained a Product, for which the Software is intended,directly or indirectly from Licensee.
“IntellectualProperty Rights” means patents, rights to inventions, copyright and relatedrights, trade marks, business names and domain names, rights in goodwill rightsin designs, database rights, and all other intellectual property rights, ineach case whether registered or unregistered and all similar or equivalentrights or forms of protection which subsist or will subsist now or in thefuture in any part of the world.
“Open Source”means any element of software that is distributed under an open source, publicsource, or freeware license, which includes
(a) any license approvedby the Open Source Initiative or any similar license,
(b) any license that meets the “OpenSource Definition” or the “Free Software Definition” of the Free SoftwareFoundation, and
(c) to the extend not included in theforgoing (a) and (b) any software licensed subject to terms requiring as acondition of its use that the source code of the same software be madeavailable to each licensee thereof(“Open Source License Terms”).
“Product” meansthe products purchased by Licensee from Amino, as listed in the relevant quote,Exhibit, Support and Software Maintenance Agreement, or other contractdocumentation (as applicable) agreed by the parties.
“Software” meansthe software licensed to Licensee under this Agreement, as listed in therelevant quote, Exhibit, Support and Maintenance Agreement, or other contractdocumentation (as applicable) agreed by the parties.
“Update” meansany updates, enhancements or new releases of the Software issued to Licensee.
2. Grant of Limited License.
2.1. Amino hereby grants to Licensee, on andsubject to the terms of this Agreement, a limited, non-transferable, non-assignable, non-sublicensable, non-exclusive license to use the Software solelyin connection with the Products for the purposes set out in Section 2.4. Use ofthe Software in conjunction with non-Amino products is not permitted.
2.2. The Software is licensed not sold. AllIntellectual Property Rights whatsoever subsisting in or in relation to theSoftware are and shall remain the property of Amino or its licensors, andnothing in this Agreement shall transfer to Licensee any right, title, licenseor interest in or to any such Intellectual Property Rights unless expresslygranted herein. All rights not expressly granted herein are reserved by Aminoand its licensors.
2.3. Licensee acknowledges that the Softwaremay contain Open Source subject to Open Source License Terms. Such Open Sourceis provided to Licensee on and subject to the terms of the applicable OpenSource License Terms.
2.4. By accepting the terms of this Agreementand/or downloading the Software, Licensee shall acquire only such non-exclusivelicense (as set out in Section 2.1) as is strictly necessary for it to:
(a) use the Software in connection with thespecific Product for which it is intended, and for the purpose for which it isdesigned and intended by Amino, and in accordance with the Documentation;
(b) distribute the Software to End Users foruse as permitted by (a) above and in accordance with Section 4.2;
(c) install and use the Software onLicensee’s network as necessary to use the Software in accordance with (a) and (b)above.
3. Term.The term of this Agreement shall begin on the Effective Date written below orthe date on which Software is first used by Licensee, whichever is the earlier.The term shall continue initially for a period of one (1) year, and shallautomatically renew for successive one (1) year periods unless terminated inaccordance with Section 12.
4. Restrictions.
4.1. Except as expressly permitted by thisAgreement (and, in the case of Open Source, the applicable Open Source LicenseTerms), Licensee shall not:
(a) remove, delete, obscure or copy anyIntellectual Property Rights contained on or in the Software or the Documentationas provided by Amino or access or use the Software in any manner or for anypurpose that infringes, misappropriates or otherwise violates any IntellectualProperty Rights or other right of any third party, or that violates anyapplicable law;
(b) reproduce, modify, adapt, reverseassemble, reverse engineer or decompile any Software, or copy thereof, in wholeor in part (except as provided by applicable law);
(c) input, upload, transmit or otherwiseprovide to or through the Software, any information or materials that areunlawful or injurious, or contain,transmit or activate any harmful code;
(d) damage, destroy, disrupt, disable,impair, interfere with or otherwise impede or harm in any manner the Software or Amino’s provisionof the Software to any third party, in whole or in part;
(e) sell, lease,transfer or otherwise make available to others the Software, or any copythereof;
(f) apply anytechniques to derive any trade secrets embodied in the Software; or
(g) otherwise access or use, or permit anyother person to access or use, the Software beyond the scope of the licensegranted by this Agreement.
4.2. Licensee shall ensure that access by EndUsers to the Software is only provided on terms consistent with the End UserLicense Agreement set out in Schedule 1 to this Agreement.
4.3. Licensee shall take all appropriateactions to ensure that:
(a) the Software is notcopied by Licensee (except as allowed herein) or by any third parties, and
(b) the Software is notused in any equipment other than the Products.
4.4. Licensee shall secure and protect theSoftware and copies thereof from disclosure. In the event that Licensee becomesaware that any Software or copies are being used in a manner not permitted bythis Agreement, Licensee shall immediately notify Amino in writing of suchfact. Licensee will fully cooperate with Amino so as to enable Amino to enforceits proprietary and property rights in the Software.
4.5. Licensee agrees that it shall keep secureand maintain confidential any key or materials intended for the purposes ofsecuring the Products or Software, and that it shall promptly implement anyUpdate to the Software or recommendation provided by Amino for the purposes ofsecurity.
4.6. Licensee agrees that it shall not use theSoftware, or supply the Software for use in, any aircraft or spacecraft, or inany military or naval missile, or in any guidance or control or air trafficcontrol system relating to any aircraft, spacecraft, military or naval missile.Licensee shall indemnify and hold Amino harmless from and against all actions,claims, losses, costs, damages and expenses whatsoever arising out of or inconnection failure to comply with this Section.
5. Confidentiality[JM1]
5.1. Licensee agrees to keep confidential allConfidential Information and to use such Confidential Information exclusivelyonly for the purposes of this Agreement or for exercise of the rights grantedunder this Agreement, and to disclose the same only to those of its employees,agents, contractors and sub-contractors (if any) to whom and to the extent thatsuch disclosure is strictly necessary for the purposes of this Agreement orexercise of the rights granted under this Agreement.
5.2. Without limiting the scope of Section 5.1,Licensee shall:
(a) protect and safeguard theConfidential Information against unauthorized use, copying, publication ordisclosure;
(b) ensure that all its employees,agents, contractors and sub- contractors who have access to any ConfidentialInformation shall treat such Confidential Information in a manner that isconsistent with this Section 5 and shall be subject to written obligations ofconfidentiality; and
(c) comply with any other reasonablesecurity measures notified to Licensee by Amino in writing from time to time.
5.3. Section 5.1 shall not apply to informationwhich Licensee can demonstrate by documentary evidence:
(a). priorto receipt thereof from Amino was in the possession of Licensee and at its free disposal; or
(b). issubsequently disclosed to Licensee without any obligations of confidence by athird party who has not derived it directly or indirectly from Amino; or
(c). is orbecomes generally available to the public through no act or default of Licenseeor of its employees, agents, contractors or sub-contractors; or
(d). wasindependently developed by Licensee without reference to the ConfidentialInformation; or
(e). isrequired by law or a court or other competent authority to be disclosed;provided that in such case Licensee shall promptly notify Amino in writing andin such detail as Amino may reasonably require of such requirement fordisclosure and shall assist Amino in any lawful efforts to prevent or limit thedisclosure.
5.4. Licensee shall immediately inform Amino inwriting upon becoming aware of any breach of Section 5.1 or 5.2 or that anyConfidential Information has been lost, stolen or misplaced or upon havingreason to believe that an employee or another person has gained unauthorizedaccess to any Confidential Information and shall at its own cost and at Amino’sdirection take such steps as Amino may require in order to minimize the losswhich Amino may otherwise suffer as a result of such breach.
5.5. Licensee understands and acknowledges thatany disclosure or misuse of any Confidential Information may cause Aminoirreparable harm, the amount of which may be difficult to ascertain and thatdamages may not be an adequate remedy for any breach by the Licensee of theprovisions of this Agreement. Accordingly, without prejudice to any other rightsor remedy Amino may have, Licensee acknowledges that Amino shall be entitled toapply for the remedies of injunction, specific performance and other equitablerelief for any threatened or actual breach of the provisions of this Agreement.
6. Limited Warranty.
6.1. Amino does not warrant that the Softwarewill meet the Licensee’s requirements, or that the operation of the Softwarewill be uninterrupted or error free. Licensee is responsible for determiningthe appropriate use of the Software and its associated Documentation as well asthe results obtained by use thereof. Amino warrants only that the mediacontaining the Software will be free from damage or physical defects whendistributed to Licensee. The sole, exclusive remedy for breach of this warrantyis that Amino will replace the defective media if returned to Amino withinninety (90) days after delivery to Licensee.
6.2. Evaluationor Pre-Release Software. In the case of Software which is identified as“evaluation”, “engineering”, “test”, “pre-release” or words of similar meaning:SUCH SOFTWARE IS PROVIDED ‘AS IS’ WITHOUT ANY WARRANTY WHATSOEVER, THE WARRANTYIN SECTION 6.1 SHALL NOT APPLY AND AMINO HEREBY EXCLUDES ALL LIABILITES IN RELATION TO SUCH SOFTWARE TO THE MAXIMUM EXTENT PERMITTED BY LAW.
6.3. Disclaimerof warranties for third party software. Amino may deliver third partysoftware required by Licensee in conjunction with the Software. AMINO DOES NOTWARRANT AS TO THE OPERATION OF SUCH THIRD- PARTY SOFTWARE: SUCH THIRD-PARTYSOFTWARE IS PROVIDED ‘AS IS’ WITHOUT EXPRESS OR IMPLIED WARRANTIES, INCLUDINGWARRANTIES OF NON- INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULARPURPOSE. ANY WARRANTY IN RELATION TO SUCH THIRD-PARTY SOFTWARE SHOULD BEOBTAINED DIRECT FROM THE RELEVANT THIRD PARTY.
6.4. Generalwarranty disclaimer. UNLESS EXPRESSLY AGREED IN WRITING, SOFTWARE ISPROVIDED WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES THAT IT WILL OPERATE INCONNECTION OR COMBINATION WITH ANY SOFTWARE, OR SYSTEM OR EQUIPMENT NOTPROVIDED BY AMINO.
6.5. InformationSecurity. AMINO DOES NOT WARRANT THAT THE SOFTWARE, AND/OR ANY APPLICATIONRELIANT ON THE SOFTWARE, SHALL BE SECURE AGAINST ANY THEFT OR PIRACY OFCONTENT, OR AGAINST ANY LOSS OR THEFT OF THE PERSONAL INFORMATION (INCLUDINGSENSITIVE PERSONAL INFORMATION) OF LICENSEE OR OF ANY END USER AND AMINO HEREBYDISCLAIMS ALL LIABILITES IN RELATION TO THE FOREGOING TO THE MAXIMUM EXTENTPERMITTED BY LAW.
7. NOOTHER WARRANTIES. THE WARRANTY STATED IN SECTION 6.1 IS THE ONLY WARRANTYGIVEN IN RESPECT OF THE SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLELAW, AMINO DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDINGBUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR APARTICULAR PURPOSE, AND NON-INFRINGEMENT WITH RESPECT TO THE SOFTWARE ANDDOCUMENTATION IF ANY. NO VERBAL OR WRITTEN INFORMATION GIVEN BY AMINO, ITS
AGENTS OREMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THEWARRANTY IN SECTION 6.1.
8. NOLIABILITY FOR CONSEQUENTIAL OR OTHER DAMAGES. LICENSEE ASSUMES THE ENTIRECOST OF ANY DAMAGE RESULTING FROM THE INFORMATION CONTAINED IN OR COMPILED BYTHE SOFTWARE. NEITHER AMINO NOR ITS SUPPLIERS SHALL BE LIABLE FOR INDIRECT,SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGES RESULTING FROM THE USE OFTHE SOFTWARE OR ARISING OUT OF ANY BREACH OF ANY EXPRESS OR IMPLIED WARRANTY ONTHE SOFTWARE.
9. LIMITATION OF LIABILITY.
9.1. SUBJECT TO SECTION 8 THE LIABILITY OFAMINO TO LICENSEE FOR ANY LOSS OR DAMAGE ARISING OUT OF OR IN CONNECTION WITHTHIS AGREEMENT OR LICENSEE’S USE OF THE SOFTWARE OR THE DOCUMENTATION SHALL BELIMITED WITH RESPECT TO ALL CLAIMS TO THE TOTAL AMOUNT IN FEES PAID BY LICENSEEFOR THE SOFTWARE HEREUNDER.
10. U.S.Government-Restricted Rights. The Software and any Documentation are deemedto be “commercial computer Software” and “commercial computer Softwaredocumentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section12.212, as applicable. Any use, modification, reproduction release,performance, display or disclosure of the Software and accompanyingdocumentation by the U.S. Government will be governed solely by the terms ofthis Agreement and will be prohibited except to the extent expressly permittedby the terms of this Agreement.
11. ExportRestrictions. Licensee may not export, or re-export the Software, Services,or anything related thereto, or any direct product thereof in violation of anyrestrictions, laws or regulations of the United States Department of Commerce, theUnited States Department of Treasury Office of Foreign Assets Control, or anyother United States or foreign agency or authority. As defined in FAR section2.101, the Software and documentation are “commercial items” and according toDFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computersoftware” and “commercial computer software documentation.” Consistent withDFAR section 227.7202 and FAR section 12.212, any use modification,reproduction, release, performance, display, or disclosure of such commercialsoftware or commercial software documentation by the U.S. Government will begoverned solely by the terms of this Agreement and will be prohibited except tothe extent expressly permitted by the terms of this Agreement.
12. Termination
12.1. Amino may terminate this Agreement witheffect from the expiry of the then current term by providing at least ninety (90)days prior notice to Licensee in writing.
12.2. Licensee may terminate this Agreement atany time by providing notice to Amino in writing that it has ceased to use theSoftware and Documentation. This Agreement will terminate:
(a) at any time thatLicensee no longer uses the Software or
(b) if Licensee violate any of theterms of this Agreement. Upon termination, Licensee agrees to destroy or returnto Amino all copies of the Software and Documentation under its control and,upon Amino’s request, to certify in writing that all known copies, includingbackup copies, have been destroyed.
12.3. The following Sections shall survivetermination: 1, 4, 5, 7, 8, 11 and 13.
13. General.
13.1. This Agreement and any dispute or claimarising out of or in connection with it or its subject matter or formation(including non-contractual disputes or claims) shall be governed by andconstrued in all respects in accordance with the laws of the State ofCalifornia without regard to its conflict of laws provisions and the partiessubmit to the exclusive jurisdiction of the courts of San Francisco County, SanFrancisco, California.
13.2. Amino may modify the Software at any timein its sole discretion upon notice to Licensee. Licensee agrees that suchnotification shall constitute sufficient notice of any change to the Software.Licensee’s continued use of the Software following notice of such change shallbe deemed to be its acceptance of any such change. If Licensee does not agreeto any such change, it must immediately stop using the Software and notifyAmino that Licensee is terminating this Agreement.
13.3. Subject to the foregoing, any notice givenhereunder by either party to the other shall be in writing and shall be servedby sending it by registered or recorded delivery post to the address of theother party given in this Agreement, or by facsimile transmission or email.Unless the contrary is proved, notices so sent by post shall be deemed receivedtwo (2) working days after posting and notices so sent by facsimiletransmission or email and so confirmed shall be deemed received the nextworking day.
13.4. Other than as expressly set forth herein,this Agreement shall not be assigned, transferred, subcontracted, sublicensedor delegated in whole or in part by the Licensee without the prior writtenconsent of Amino. Amino may assign, transfer, subcontract, sublicense ordelegate its rights and obligations under this Agreement, whether in whole orin part, without Licensee’s consent.
13.5. This Agreement is the complete andexclusive statement of the mutual understanding of the parties and supersedesand cancels all previous written and oral agreements, communications and otherunderstandings relating to the subject matter of this Agreement, and that allwaivers and modifications must be in a writing signed by both parties, exceptas otherwise provided herein.
13.6. If the whole or any part of any provisionof this Agreement is determined to be illegal, void or unenforceable under anylaw that is applicable to this Agreement, or if any competent authority orcourt of competent jurisdiction in a final decision so determines, thisAgreement shall continue in force save that such provision (or the relevantpart of it) shall be deemed to be deleted from this Agreement with effect from thedate of such agreement or decision or such earlier date as the parties may inwriting agree.
13.7. The headings in this Agreement are forconvenience only and are not intended to have any legal effect; all referencesto Sections are references to Sections in this Agreement; references to a“person” shall be deemed to include an individual, a company, a limitedliability partnership or an unincorporated business or other body or legalperson or group of legal persons; andwords such as “in particular”, “including” or other words indicating thatexamples falling within more general wording follow shall not be construed aslimiting in any way the scope of the corresponding more general wording.
13.8. A failure by either party hereto toexercise or enforce any rights conferred upon it by this Agreement shall not bedeemed to be a waiver of any such rights or operate so as to bar the exerciseor enforcement thereof at any subsequent time or times. No waiver shall be effective unless it is made in writingand is signed by an authorized representative of the waiving party.
13.9. This Agreement (including the Schedules andthe latter of any quotation, order and/or order acknowledgement to which thisAgreement is appended or linked) constitutes the entire understanding betweenthe parties in relation to the subject-matter of this Agreement. The Licenseeconfirms that it has not been induced to enter into this Agreement by anyrepresentation made by or on behalf of Amino.
13.10. This Agreement is not intended to confer abenefit on any third party, and no third party shall have any right under anyof the provisions of this Agreement.
13.11. Therelationship of the parties under this Agreement is that of independentcontractors and, subject as otherwise expressly provided in this Agreement,neither party is the agent of the otherfor any purpose and neither party shall make any representation, give any warranty or enter into any contractualor other commitment purporting to be binding on the other
Note to Licensee (not tobe reproduced) – Licensee shall ensure, in its terms of service with itscustomers or as otherwise appropriate, that software is distributed toEnd-Users under terms equivalent to and no less restrictive than the followingwith appropriate insertions as to applicable law and jurisdiction.
End UserLicense
By using thesoftware provided by us (“Software”) you acknowledge that you have read thisSoftware License Agreement (“Agreement”), understand it, and agree to itsterms. If you do not agree, you may not use the Software.
1. Grantof Limited License. Subject to your compliance in all material respectswith the terms and conditions of this Agreement, you are granted a limited,non-transferable, non-assignable, non-sublicensable, non-exclusive license touse the Software solely in connection with the Products intended by us. Anyother use of the Software is not permitted.
2. Restrictions.
2.1. Exceptas expressly permitted by this Agreement, you shall not:
(a) use, copy, print, modify, adapt, createderivative works from, market, deliver, rent, lease, sublicense, make, havemade, assign, pledge, transfer, sell, offer to sell, import, reproduce,distribute, publicly perform, publicly display or otherwise grant rights to theSoftware, or any copy thereof, in whole or in part, except as expresslypermitted under this Agreement;
(b) reverse engineer, disassemble, decompileor translate the Software, or otherwise attempt to derive the source code,architectural framework or the data records of the Software, or authorize anythird party to do any of the foregoing;
(c) access the Software for purposes ofdeveloping, marketing, selling or distributing any product or service thatcompetes with or includes features substantially similar to the Software;
(d) loan, resell or distribute the Software,or any part thereof, in any way; or
(e) use the Software in any way that does notcomply with all applicable laws and regulations.
3. Ownership.The Software is licensed, not sold, to you for your use only under the termsand conditions of this Agreement. We or our licensors own all rights, title andinterest in the Software (including, but not limited to all copyrights,patents, patent applications, trade secrets, trademarks, source code, text andany images, photographs, icons, graphics, animations, video, audio, music, andall other materials incorporated within the Software), and the Software isprotected by copyright and other intellectual property laws and treaties. Allrights not expressly granted herein are reserved by us and our licensors.
4. OpenSource Software. The Software may include open source software components.These open source components are provided to you on and subject to the terms ofthe applicable open source license, which are available on request.
5. NOWARRANTY. YOUR USE OF THE SOFTWARE IS AT YOUR SOLE RISK. THE SOFTWARE ISPROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THEMAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WE EXPRESSLY DISCLAIM ALLWARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISINGFROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING, BUT,NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY,MERCHANTABLE QUALITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE ANDNON-INFRINGEMENT. WE MAKE NO WARRANTY THAT:
(a) THE SOFTWARE WILL MEET YOURREQUIREMENTS OR THAT IT WILL OPERATE IN CONNECTION OR COMBINATION WITH ANYSOFTWARE, SYSTEM OR EQUIPMENT NOT PROVIDED BY US;
(b) THE SOFTWARE WILL BEERROR-FREE; OR
(c) THE RESULTS THAT MAY BE OBTAINEDFROM USE OF THE SOFTWARE WILL BE ACCURATE OR RELIABLE.
6. LIMITATIONOF LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT WE SHALL NOT BE LIABLE FOR ANYINDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES,INCLUDING, BUT NOT LIMITED TO, DAMAGES ARISING FROM ANY TYPE OR MANNER OFCOMMERCIAL, BUSINESS OR FINANCIAL LOSS, EVEN IF WE HAD ACTUAL OR CONSTRUCTIVEKNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCHDAMAGES WERE FORESEEABLE. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALLCLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SOFTWAREEXCEED THE AMOUNT YOU HAVE PAID FOR THE SOFTWARE. NOTHING IN THIS AGREEMENTSHALL EXCLUDE OR RESTRICT THE LIABILITY OF US TO YOU FOR ANY LIABILITY THATCANNOT BE EXCLUDED OR LIMITED BY LAW.
7. U.S.Government-Restricted Rights. This section applies to use of the Softwareby a branch or agency of the United States Government. The Software and anyaccompanying documentation consist of “commercial computer software” and“commercial computer software documentation,” respectively, pursuant to DFARSection 227.7202 and FAR Section 12.212, as applicable. Any use, modification,reproduction release, performance, display or disclosure of the Software andaccompanying documentation by the United States Government will be governedsolely by the terms of this Agreement and will be prohibited except to theextent expressly permitted by the terms of this Agreement.
8. ExportRestrictions. You may not export, or re-export the Software
(a) into, or to a national or residentof, any country to which the United States has embargoed goods, or
(b) to anyone on the United StatesTreasury Department’s list of Specially Designated Nationals or the U.S.Commerce Department’s Table of Deny Orders. By using the Software, you arerepresenting and warranting that you are is not located in, under the controlof, or a national or resident of any such country or on any such list.
9. Termination.This Agreement is effective until terminated by you or by us. You may terminatethis Agreement at any time by destroying or returning to us all copies of theSoftware and associated documentation. Your rights under this Agreement shallterminate automatically without notice from us if you violate any of the termsof this Agreement. Upon termination of this Agreement, all rights granted toyou under this Agreement shall immediately terminate, but all other provisionsshall survive termination.
10. Changesto the Software. We reserve the right to modify or discontinue, temporarilyor permanently, the Software or any documentation related to the Software andmay amend or modify this Agreement at any time in its sole discretion uponnotice to you. Your continued use of the Software following notice of suchchange shall be deemed to be its acceptance of any such change. If you do notagree to any such change, you must immediately stop using the Software andnotify us that you are terminating this Agreement.
11. GoverningLaw. This Agreement, its subject matter and formation, is governed by andconstrued and enforced in accordance with the laws of the State of California,without reference to conflict of laws principles. The United Nations Conventionon Contracts for the International Sale of Goods is specifically excluded fromapplication to this Agreement.
12. Jurisdiction.Any dispute or claim (including non-contractual disputes or claims) arising outof or relating in any way to this Agreement, its subject matter or formation,or your use of the Software shall be subject to the exclusive jurisdiction ofthe Courts of San Francisco County, San Francisco, CA.
13. General
13.1. This Agreement is the entire agreementbetween you and us concerning use of the Software. It supersedes any prior orcontemporaneous oral or written negotiations or any agreements between you andus with respect to the Software and any supporting documentation.
13.2. You may not assign any of your rights orobligations under this Agreement to another party.
13.3. Any failure by us to exercise or enforceany right or provision of this Agreement shall not constitute a waiver of suchright or provision.
13.4. If any provision of this Agreement is heldto be invalid or unenforceable under applicable law, then such provision shallbe construed, limited, modified, or if necessary, severed to the extentnecessary to eliminate its invalidity or unenforceability without in any wayaffecting the remaining parts of this Agreement.
