License Agreement for Macrofocus High-D
IMPORTANT! READ CAREFULLY: THIS IS A LEGAL AGREEMENT. BY DOWNLOADING, INSTALLING, COPYING, SAVING ON YOUR COMPUTER, OR OTHERWISE USING THIS SOFTWARE, YOU (LICENSEE, AS DEFINED BELOW) ARE BECOMING A PARTY TO THIS AGREEMENT AND YOU ARE CONSENTING TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU SHOULD NOT DOWNLOAD, INSTALL AND USE THE SOFTWARE.
1. PARTIES
(a) "Licensor" means Macrofocus GmbH, having its principal place of business at Hochstrasse 69, CH-8044 Zurich, Switzerland, registered with the Commercial Register of the Canton of Zurich, number CH-020.4.021.341-2.
(b) "Licensee" means the individual or legal entity specified in the License Certificate. For legal entities, "Licensee" includes any entity which controls, is controlled by, or is under common control with Licensee. For purposes of this definition, "control" means (i) the power, direct or indirect, to cause the direction or management of such entity, whether by contract or otherwise, or (ii) ownership of fifty percent (50%) or more of the outstanding shares or beneficial ownership of such entity.
2. DEFINITIONS
(a) "Authorized User" means (i) if Licensee is an individual, solely Licensee; (ii) if Licensee is a legal entity, any employee, independent contractor and other temporary worker authorized by Licensee to use the Software while performing duties within the scope of their employment or assignment. Non-human devices that utilize the Software without interaction are counted as users.
(b) "Software" means software program known as Macrofocus High-D in binary form, including its documentation, any third party software programs that are owned and licensed by parties other than Licensor and that either integrated with or made part of Macrofocus High-D (collectively, "Third Party Software").
(c) "License Certificate" means evidence of a license provided by Licensor to Licensee in electronic or printed form.
(d) "License Key" means a unique key-code that enables a single Authorized User to use the Software at a time. Only Licensor and/or its representatives are permitted to produce License Keys for the Software.
(e) "Client" means a computer device used by Authorized User for running the Software.
3. OWNERSHIP
(a) The Software is the property of Licensor or its suppliers. The Software is licensed, not sold. Title and copyrights to the Software, in whole and in part and all copies thereof, and all modifications, enhancements, derivatives and other alterations of the Software regardless of who made any modifications, if any, are, and will remain, the sole and exclusive property of Licensor and its suppliers.
(b) The Software is protected by Swiss Copyright Law and International Treaty provisions. Further, the structure, organization, and code embodied in the Software are the valuable and confidential trade secrets of Licensor and its suppliers and are protected by intellectual property laws and treaties. Licensee agrees to abide by the copyright law and all other applicable laws of Switzerland including, but not limited to, export control laws.
4. GRANT OF LICENSE
Subject to the terms, conditions, and limitations set forth in this Agreement, Licensor hereby grants to Licensee a limited, non-exclusive, non-transferable license to use the Software as follows and as permitted by the license type described in this license agreement. The license type is specified in the License Certificate or invoice.
(a) Licensee may:
(i) install and use the version of the Software that has been specified in the License Certificate on multiple Clients and operating systems, provided that the number of distinct users never exceeds the number of Authorized Users specified in the License Certificate. A distinct user is a user who uses the software at least once a month;
(ii) make one back-up copy of the Software solely for archival purposes.
(b) Licensee may not:
(i) sell, redistribute (except as set forth in Paragraph 5 herein), encumber, give, lend, rent, lease, sublicense, or otherwise transfer the Software, or any portions of the Software, to anyone without the prior written consent of Licensor;
(ii) reverse engineer, decompile, disassemble, modify, translate, make any attempt to discover the source code of the Software, or create derivative works from the Software;
(iii) allow the use of the same License Key by multiple Authorized Users on different Clients or operating systems at a time. The Software may contain a feature preventing concurrent use of the same License Key by multiple Authorized Users on different Clients or operating systems.
5. LICENSE TYPES
(a) Commercial License: A Commercial License allows legal entities, including companies and organizations (both for-profit and non-profit), to use the Software for general commercial use.
(b) Personal License: A Personal License allows natural persons who purchased the Software using Licensee's own funds only. Notwithstanding anything to the contrary set forth above, Licensee may not use the Software, and this Agreement shall not be in effect, in the event that Licensee does not pay the Software license fee using Licensee's own funds, or if any third party pays the Software license fee, or if Licensee expects or receives reimbursement for the Software license fee from any third party.
(c) Academic License: Under the terms of an Academic License, the Software may only be used by a student or a faculty/staff member for educational purposes while actively studying or teaching at an educational institution and for no other purpose. An Academic License may not be shared or used at the same time on different devices. Academic Licenses may not be used for commercial, professional, or for-profit purposes.
(d) OEM License: An OEM License permits the creation of derived works using the Software. The Software may be used for the sole purposes of designing, developing, testing, and deploying derived works as application programs. An OEM License allows royalty-free deployment of the derived works.
(e) Evaluation License: An Evaluation License may be used only to review, demonstrate and evaluate the Software for a limited time period. The Trial Version of the Software may have limited features and will cease operating after a predetermined amount of time or number of uses based on an internal metering mechanism within the Evaluation License.
(f) Subscription License: If the Software product receipt specifies "Subscription License" then the license type is a Subscription License. The Subscription License is combined with other license types to limit the term of the license grant. The term of the Subscription License begins on the date of subscription specified in the product receipt and continues for the term specified in the product receipt. If the term is not specified in the product receipt then the term is ninety (90) days starting on the date of the receipt. The Subscription License will terminate if the Licensee fails to comply with any term or condition in this Agreement, including failure to pay associated fees when due. Licensee will not be entitled to a refund of amount paid for the license to use the Software, or any other amounts for any reason. Software with a Subscription License may contain a device that limits Software usage in accordance with the license.
6. THIRD PARTY SOFTWARE LICENSE
Third Party Software is licensed to Licensee in accordance with a separate license agreement(s) included with the Software, and subject to any restrictions set forth herein. Licensee agrees to abide by the terms and conditions of the Third Party Software license agreements. Licensor will have no responsibility with respect to any Third Party Software, and Licensee will look solely to the licensor(s) of the Third Party Software for any remedy. Licensor claims no right in the Third Party Software, and the same is owned exclusively by the licensor(s) of the Third Party Software. LICENSOR PROVIDES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, WITH RESPECT TO ANY THIRD PARTY SOFTWARE.
7. RESTRICTED USE DURING EVALUATION PERIOD
(a) Subject to the terms of this Agreement, Licensee is granted a right to use the Software for evaluation purposes without charge for a period of thirty (30) days from the date of installation of the Software unless otherwise specified ("Evaluation Period").
(b) Licensee's use of the Software during Evaluation Period shall be limited to the internal evaluation of the Software for the sole purpose of determining whether the Software meets Licensee's requirements and whether Licensee desires to continue use of the Software.
(c) Upon expiration of Evaluation Period, Licensee must obtain License Key for perpetual use of the Software or cease using the Software. The Software contains a feature that will automatically disable the Software upon expiration of Evaluation Period. Licensee may not disable, destroy, or remove this feature of the Software, and any attempt to do so will be in violation of this Agreement and will terminate Licensee's rights to use the Software.
8. LICENSE FEES AND PAYMENTS
Licensee will pay to Licensor the license fee and other charges and expenses as set forth in an appropriate invoice or other purchase documentation. Licensor may charge Licensee interest for any payment that is more than thirty (30) days past due at the rate of one and one-half percent (1.5%) per month or the highest amount allowed by law, whichever is lower.
9. UPGRADES
(a) Licensor will provide generally available new versions of Software to Licensee as follows:
(i) pursuant to the optional upgrade terms published on Licensor's web site at www.macrofocus.com. Upon obtaining License Key for a new version of Software from Licensor, Licensee shall destroy License Key provided by Licensor for a previous version of Software, or;
(ii) if Licensee has obtained an upgrade subscription for Software, Licensee will qualify for free upgrades during the initial 1-year upgrade subscription term. Licensee may renew an upgrade subscription for another 1-year period by paying to Licensor an applicable upgrade subscription renewal fee. Each subsequent upgrade subscription term will start on the day following the expiration of a previous upgrade subscription term regardless of the actual upgrade subscription renewal date. Upon obtaining License Key for a new upgrade subscription term from Licensor, Licensee shall destroy a License Key provided by Licensor for a previous upgrade subscription term.
(b) If not agreed otherwise in writing between Licensor and Licensee, upon upgrading to new version of the Software the relationship between parties shall be governed and amended (if applicable) by the terms and conditions of License agreement related to Software available at www.macrofocus.com on the day of upgrade purchase.
10. SUPPORT SERVICES
Licensor may provide you with support services related to the Software.
As part of these support services, Licensor may make available bug lists, planned feature lists, and other supplemental informational materials. Licensor MAKES NO WARRANTY OF ANY KIND FOR THESE MATERIALS AND ASSUMES NO LIABILITY WHATSOEVER FOR DAMAGES RESULTING FROM ANY USE OF THESE MATERIALS. FURTHERMORE, YOU MAY NOT USE ANY MATERIALS PROVIDED IN THIS WAY TO SUPPORT ANY CLAIM MADE AGAINST LICENSOR.
Any supplemental software code or related materials that Licensor provides to you as part of the support services, in periodic updates to the Software or otherwise, is to be considered part of the Software and is subject to the terms and conditions of this License Agreement.
With respect to any technical information you provide to Licensor as part of the support services, Licensor may use such information for its business purposes without restriction, including for product support and development.
11. LIMITED WARRANTY
(a) If Licensee has paid a license fee for the Software, then for a period of thirty (30) days from the date of receipt of the Software, Licensor warrants the Software against any defects resulting from the electronic transmission process, and that any Software media supplied by Licensor will be free from defects in materials and workmanship ("Limited Warranty").
(b) Licensor's, and its suppliers' and resellers', entire liability and Licensee's exclusive remedy will be, at Licensor's option, either (i) return of the price paid, or (ii) repair or replacement of the Software that does not meet Licensor' Limited Warranty. This Limited Warranty is void if failure of the Software has resulted from accident, abuse, or misapplication. Any replacement Software will be warranted for an additional thirty (30) days. Outside the United States, neither these remedies nor any product support services offered by Licensor are available without proof of purchase from an authorized international source.
(c) EXCEPT FOR THE FOREGOING LIMITED WARRANTY, THE SOFTWARE IS PROVIDED TO LICENSEE "AS IS" AND WITHOUT WARRANTIES. LICENSOR MAKES NO WARRANTY AS TO ITS USE OR PERFORMANCE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR, AND ITS SUPPLIERS AND RESELLERS, DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, WITH REGARD TO THE SOFTWARE, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES. THIS LIMITED WARRANTY GIVES LICENSEE SPECIFIC LEGAL RIGHTS. LICENSEE MAY HAVE OTHERS, WHICH VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION.
12. DISCLAIMER OF DAMAGES
(a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, LICENSORS, SUPPLIERS OR RESELLERS BE LIABLE TO LICENSEE UNDER ANY THEORY FOR ANY DAMAGES SUFFERED BY LICENSEE OR ANY USER OF THE SOFTWARE, OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR SIMILAR DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER ) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
(b) IN ANY CASE, LICENSOR'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY LICENSEE FOR THE SOFTWARE UNDER THIS AGREEMENT.
13. EXPORT REGULATIONS
Licensee agrees and accepts that the Software may be subject to import and export laws of any country, including those of Switzerland, the European Union, and United States (specifically the Export Administration Regulations (EAR)). Licensee acknowledges that it is not a citizen, national, or resident of, and is not under control of the governments of Cuba, Iran, North Korea, Sudan or Syria and is not otherwise a restricted end-user as defined by applicable export control laws. Further, Licensee acknowledges that it will not download or otherwise export or re-export the Software or any related technical data directly or indirectly to the above-mentioned countries or to citizens, nationals, or residents of those countries, or to any other restricted end user or for any restricted end-use.
14. TERMINATION
(a) Except as otherwise provided in License Certificate, the license granted herein shall be perpetual.
(b) If Licensee fails to comply with the terms and conditions of this Agreement, this Agreement and Licensee's right and license to use the Software will terminate immediately. Licensee may terminate this Agreement at any time by notifying Licensor. Upon the termination of this Agreement, Licensee must delete the Software from its computers and archives.
(c) LICENSEE AGREES THAT UPON TERMINATION OF THIS AGREEMENT FOR ANY REASON, LICENSOR MAY TAKE ACTIONS SO THAT THE SOFTWARE NO LONGER OPERATES.
15. MARKETING
Licensee agrees to be identified as a customer of Licensor and that Licensor may refer to Licensee by name, trade name and trademark, if applicable, and may briefly describe Licensee's business in Licensor's marketing materials, on Licensor's web site, in public or legal documents. Licensee hereby grants Licensor a license to use Licensee's name and any of Licensee's trade names and trademarks solely pursuant to this marketing section.
16. GENERAL
(a) Licensor reserves the right at any time to cease the support of the Software and to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the Software.
(b) This Agreement, including the Third Party Software license agreements, constitutes the entire agreement between the parties concerning Licensee's use of the Software, and supersedes any and all prior or contemporaneous oral or written representations, communications, or advertising with respect to the Software. No purchase order, other ordering document or any hand written or typewritten text which purports to modify or supplement the printed text of this Agreement or any schedule will add to or vary the terms of this Agreement unless signed by both Licensee and Licensor.
(c) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach. The provisions of this Agreement which require or contemplate performance after the expiration or termination of this Agreement will be enforceable notwithstanding said expiration or termination.
(d) This Agreement will be governed by the laws of Switzerland, without reference to conflict of laws principles. Licensee agrees that any litigation relating to this Agreement may only be brought in, and will be subject to the jurisdiction of, any Court of Switzerland.
(e) Titles are inserted for convenience only and will not affect in any way the meaning or interpretation of this Agreement. If any provision of this Agreement is held invalid, the remainder of this Agreement will continue in full force and effect. Either Licensor or Licensee may assign this Agreement in the case of a merger or sale of substantially all of its respective assets to another entity. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and assigns.
For exceptions or modifications to this Agreement, please contact Licensor at:
Address: Heilighüsli 16, CH-8053 Zurich, Switzerland
E-mail: sales@macrofocus.com