By installing the Licensed Software that you have selected to license from Microdea Inc. ("MICRODEA") on the applicable Order form, you are agreeing for yourself or on behalf of the entity licensing the Licensed Software and Documentation (defined below) ("CLIENT") that CLIENT will be bound by the terms and conditions of this End User License Agreement ("EULA") and that you have the authority to bind the entity licensing the Licensed Software and Documentation. If CLIENT does not agree to all the terms of this EULA, do not install the Licensed Software. The “Effective Date” for this EULA shall be the day the Software is installed.
- "Authorized User" means an employee, contractor, registered student, research assistant, partner or agent of CLIENT authorized by CLIENT to use the Licensed Software.
- "Authorized Reseller" means an authorized distributor, authorized reseller, or dealer of the Licensed Software.
- "Concurrent Authorized Users" means Authorized Users who use the Licensed Software at the same time in accordance with the terms of this EULA.
- "Confidential Information" has the meaning set forth in Section 7 of this EULA.
- "Documentation" means the user's manuals and supporting documentation, which may be in printed or electronic form, provided with the Licensed Software under this EULA.
- "License Fee" means the applicable fee for which CLIENT licenses the Licensed Software.
- "License Period" means a perpetual term unless terminated as provided below.
- "Licensed Software" means the specific software licensed by CLIENT under the terms of this EULA (as specified in the Order), including any Updates and Upgrades thereto.
- "MICRODEA Enhancements" means any Update's or Upgrade's to the Licensed Software
- "Order" document confirming the licenses and services purchased by CLIENT
- "Technical Support Terms" means the terms governing MICRODEA's then-current standard
- Help Desk Support and Upgrade Assurance Services Policy for the Licensed Software.
- "Third-Party Software" means certain software (including open source software) supplied by third parties that MICRODEA provides access to as part of the Licensed Software.
- "Update" means a revision to the Licensed Software or patch that improves the functionality of the Licensed Software, and may contain new features or enhancements, which is not an Upgrade.
- "Upgrade" means a subsequent version of the Licensed Software that MICRODEA designates as a new release and makes generally commercially available
2. LICENSE GRANTS, THIRD-PARTY SOFTWARE, RESTRICTIONS AND OWNERSHIP.
2.1 Licenses. Subject to the terms and conditions of this EULA, MICRODEA grants to CLIENT a perpetual, revocable, non-exclusive, non-assignable, non-transferable license, without the right to sublicense, to use the Licensed Software(including any MICRODEA Enhancements thereto), in object-code form only, within a local area network solely for CLIENT's internal business, research, or educational purposes and only as authorized in this EULA. CLIENT is authorized by MICRODEA to install the Licensed Software Server components on as many servers that the Client has purchased licenses for, and may install the Licenses Software Client components on an unlimited number of machines as long as the specific number of Concurrent or Named Authorized Users for which CLIENT has paid the applicable License Fee is not exceeded.
CLIENT is permitted to make the Documentation available via a local area network to Authorized Users. Except as otherwise expressly provided herein, CLIENT may not reproduce or distribute the Documentation in any manner, whether physically or electronically. CLIENT shall not, nor permit any third party to, including, without limitation, any Authorized User, to make the Documentation publically available or to publish such on any publicly accessible web site.
2.2 Third-Party Software. Where Third-Party Software is included in the Licensed Software it is subject to various other terms and conditions imposed by the MICRODEAs of such Third-Party Software. Third-Party Software is subject to, and governed by, the respective Third-Party Software licenses, except that this Section 2.2 (Third-Party Software) and Section 4.1 (No Warranty) and Section 8 (Limitation on Liability) of this EULA also govern CLIENT's use of the Third-Party Software. CLIENT agrees to comply with the terms and conditions contained in all such Third-Party Software licenses. ABBYY Canada Inc. provides Third Party Software and is a third-party beneficiary of this EULA. Applicable open source licenses are referenced in the text file of the Licensed Software.
2.3 Restrictions. CLIENT shall not, nor permit any person (including any Authorized User) to: (i) reverse engineer, reverse compile, decrypt, disassemble, or otherwise attempt to derive the source code of the Licensed Software (except to the extent that this restriction is expressly prohibited by law); (ii) modify, translate, or create derivative works of the Licensed Software; (iii) sublicense, resell, rent, lease, distribute, market, commercialize, or otherwise transfer rights or usage to the Licensed Software (except as expressly permitted under this EULA); (iv) remove, modify, or obscure any copyright notices or other proprietary notices or legends appearing on or in the Licensed Software, or any portion thereof; (v) transfer, use, or export the Licensed Software in violation of any applicable laws, rules, or regulations of any government or governmental agency; (vi) use the Licensed Software or any system services accessed through the Licensed Software to disrupt, disable, or otherwise harm the operations, software, hardware, equipment, and/or systems of a business, institution, or other entity, including, without limitation, exposing the business, institution, or other entity to any computer virus, trojan horse, or other harmful, disruptive, or unauthorized component; (vii) embed the Licensed Software in any third-party applications, unless otherwise authorized in writing in advance by an officer of MICRODEA; or (viii) use or access the Licensed Software or Documentation to build or support, and/or assist a third party in building or supporting, products or services competitive to MICRODEA. CLIENT shall use the Licensed Software only for its own internal business operations, and not for the operation of a service bureau or timesharing service, or otherwise for the benefit of a third party.
2.4 Ownership. MICRODEA shall retain all right, title, and interest, including all intellectual property rights, in and to the Licensed Software, MICRODEA Enhancements, customization and Documentation provided to CLIENT under this EULA. CLIENT will not remove, alter, or destroy any form of copyright notice, proprietary markings, or confidential legends placed upon or contained within the Licensed Software, MICRODEA Enhancements or Documentation, or any component thereof. All suggestions, enhancements requests, feedback, recommendations or other input provided by CLIENT or any other party relating to the Licensed Software shall be owned by MICRODEA, and CLIENT hereby does and shall make all assignments and take all reasonable acts necessary to accomplish the foregoing ownership. Any rights not expressly granted herein are reserved by MICRODEA.
3. TECHNICAL SUPPORT.
3.1 Technical Support. To the extent CLIENT subscribes for technical support, it shall be provided in accordance with MICRODEA's Technical Support Terms. Any MICRODEA Enhancements to the Licensed Software are subject to the license contained in Section 2.1
4. LIMITED WARRANTY; WARRANTY DISCLAIMER.
4.1 Warranty. For thirty (30) days from the Effective Date, MICRODEA warrants that the Licensed Software will materially function and perform in accordance with the Documentation.
4.2 Remedy for Breach of Warranty. MICRODEA will repair or replace the Licensed Software at no charge so that it materially complies with the Documentation. If MICRODEA cannot repair or replace it, MICRODEA will refund the amount shown on your Order for the Licensed Software. You must uninstall the Licensed Software and return any Documentation to MICRODEA. The foregoing is CLIENT's sole remedy, and MICRODEA's sole obligation, with respect to a breach of the warranty.
4.3 No Warranty. EXCEPT FOR THE LIMITED WARRANTY EXPRESSLY SET FORTH IN SECTION 4.1 ABOVE, THE LICENSED SOFTWARE, DOCUMENTATION, AND SUPPORT SERVICES ARE PROVIDED TO CLIENT ON AN "AS IS" AND "WHERE IS" BASIS AND WITHOUT WARRANTY OF ANY TYPE OR KIND. MICRODEA HEREBY EXPRESSLY DISCLAIMS AND EXCLUDES ALL WARRANTIES AND CONDITIONS, WHETHER STATUTORY, EXPRESS, IMPLIED, OR OTHERWISE, WITH RESPECT TO THE LICENSED SOFTWARE, DOCUMENTATION AND SUPPORT SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.
5. TERM AND TERMINATION.
5.1 Term. This EULA shall commence on the Effective Date and shall continue in effect until terminated as set forth below.
5.2 Termination. CLIENT may terminate this EULA at any time upon thirty (30) days' prior written notice to MICRODEA. MICRODEA may terminate this EULA immediately without notice if CLIENT breaches any term of this EULA, including, without limitation, breaching the scope of the license granted or confidentiality obligations under this EULA.
5.3 Effect of Expiration or Termination. Upon expiration or termination of this EULA, (i) the rights and licenses granted to CLIENT pursuant to this EULA shall automatically and immediately terminate and (ii) CLIENT shall immediately cease using the Licensed Software. Any clauses that are intended to survive termination will survive termination of this EULA and will continue in full force and effect.
6. FEES AND PAYMENT.
6.1 Fees and Payment Terms. This EULA is between CLIENT and MICRODEA solely. The applicable License Fee is specified on the Order form between MICRODEA and CLIENT. All fees paid to MICRODEA are non-refundable. MICRODEA may terminate this EULA and/or invalidate CLIENT's access to the Licensed Software if the billing or contact information is false, fraudulent, or invalid. CLIENT will pay all taxes, including sales, use, personal property, value-added, excise, customs fees, import duties, stamp duties, and any other similar taxes and duties, including penalties and interest, imposed by the legal jurisdiction in which the CLIENT business operates.
6.2 Please note that License fees are due within 30 days of invoice issuance, and invoices should/will be issued immediately upon CLIENTS’s signed acceptance of the document. Failure to pay these fees in a timely fashion may/will result in a discontinuance to service and/or the CLIENTS’s ability to utilize the purchased product.
6.3 Additional software purchases. During the License Period, CLIENT shall pay to MICRODEA or the specific Authorized Reseller the then-current rate for any licenses for additional modules, customization or user licenses. This fee shall be charged or invoiced to CLIENT on the date such additional Concurrent Authorized Users are added to CLIENT's account.
6.4 Concurrent Authorized User Accounting. CLIENT shall maintain business practices and records necessary to manage the number of Authorized Users and compliance with the terms of this EULA. If MICRODEA determines that CLIENT has more Concurrent Authorized Users than CLIENT has paid for, CLIENT shall immediately pay MICRODEA the applicable additional fees.
CLIENT and MICRODEA agree to maintain the confidentiality of any confidential or proprietary information of one party (the "disclosing party") received by the other party (the "receiving party") during, or prior to entering into, this EULA that the receiving party should know is considered confidential or proprietary by the disclosing party based on the circumstances surrounding the disclosure, including, without limitation, non-public technical and business information ("Confidential Information"). The Licensed Software is copyrighted and shall be deemed MICRODEA's Confidential Information. The Documentation is copyrighted material of MICRODEA. This section shall not apply to any information that is or becomes publicly available through no breach of this EULA by the receiving party or is independently developed by the receiving party without access to or use of the Confidential Information of the disclosing party. The foregoing confidentiality obligations will not restrict either party from disclosing Confidential Information of the other party pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to enable the other party to seek a protective order or otherwise limit such disclosure. The receiving party of any Confidential Information of the disclosing party agrees not to use the disclosing party's Confidential Information for any purpose except as necessary to fulfill its obligations and exercise its rights under this EULA. The receiving party shall protect the secrecy of and avoid disclosure and unauthorized use of the disclosing party's Confidential Information to the same degree that it takes to protect its own confidential information of similar nature (but in no event less than reasonable care).
8. INDEMNIFICATION AND LIMITATION OF LIABILITY.
8.1 Indemnification. MICRODEA shall defend, or at its option settle, or pay any damages finally awarded in any claim, suit or proceeding brought against CLIENT on the issue that the Licensed Software infringes any Canadian or US copyright, trade secret or trademark of any third party, subject to the limitations set forth herein; but only if CLIENT notifies MICRODEA promptly in writing of such claim, suit or proceeding and gives MICRODEA sole control of any defense or settlement negotiations, and, at MICRODEA’s expense, gives MICRODEA proper and full information and assistance at MICRODEA’s request. MICRODEA’s indemnification does not apply if:
(i) such claim or action would have been avoided but for modifications of the Licensed Software, or portions thereof, made after delivery to CLIENT; (ii) such claim or action would have been avoided but for the combination or use of the Licensed Software, or portions thereof, with other products, processes or materials not supplied or specified in writing by MICRODEA; (iii) CLIENT continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; or (iv) CLIENT’s use of the Licensed Software is not strictly in accordance with the terms of this EULA. CLIENT will be liable for all damages, costs, expenses, settlements and attorneys’ fees related to any claim of infringement arising as a result of (i)-(iv) above. If a third party's claim endangers or disrupts CLIENT's use of the Licensed Software, MICRODEA shall, at MICORDEA'S option and at no charge to CLIENT, (a) obtain a license so CLIENT may continue use of the Licensed Software; (b) modify the Licensed Software to avoid the infringement; (c) replace the Licensed Software with a compatible, functionally equivalent and non-infringing product; or (d) refund to CLIENT the amount paid for the Licensed Software as depreciated on a straight-line sixty (60) month basis.
THE FOREGOING PROVISIONS OF THIS SECTION STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF MICRODEA, AND THE EXCLUSIVE REMEDY OF CLIENT, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE LICENSED SOFTWARE.
8.2 Consequential Damages Waiver. IN NO EVENT SHALL MICRODEA, ITS EMPLOYEES or AGENTS HAVE ANY LIABILITY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS EULA, REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF ANY REPRESENTATIVE OF MICRODEA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF THIS EULA OR ANY LIMITED REMEDY HEREUNDER.
8.3 Limitation of Liability. IN NO EVENT SHALL MICRODEA'S LIABILITY ARISING OUT OF OR RELATED TO THIS EULA EXCEED: (I) IF THE LICENSED SOFTWARE IS LICENSED FROM MICRODEA DIRECTLY, THE LICENSE FEES PAID BY CLIENT TO MICRODEA FOR THE LICENSED SOFTWARE, OR (II) IF THE LICENSED SOFTWARE IS LICENSED THROUGH AN AUTHORIZED RESELLER, THE LICENSE FEES PAID BY CLIENT TO THE APPLICABLE AUTHORIZED RESELLER, AS APPLICABLE. NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF THIS EULA OR ANY LIMITED REMEDY HEREUNDER.
9. U.S. GOVERNMENT END USERS.
The Licensed Software under this EULA is "commercial computer software" as that term is described in DFAR 252.227-7014(a) (1). If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms and this EULA as specified in 48 C.F.R. 12.212 (Computer Software) and 12.111(Technical Data) of the Federal Acquisition Regulations ("FAR") and its successors. If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this EULA as specified in 48 C.F.R. 227.7202 of the DOD FAR Supplement and its successors.
Except as expressly provided herein, CLIENT may not assign or transfer any of its rights under this EULA (including its licenses with respect to the Licensed Software and Documentation) without the prior written consent of MICRODEA. This EULA will be governed by and construed in accordance with the laws of the Province of Ontario and the federal Canadian laws applicable therein, and CLIENT and MICRODEA agree to submit to the personal and exclusive jurisdiction of the courts located in Toronto, Ontario, Canada. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this EULA. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. If any provision of this EULA is found void and unenforceable, it will be replaced to the extent possible by MICRODEA with a provision that comes closest to the meaning of the original provision. This EULA and the documents referenced in this EULA, constitute the entire EULA between CLIENT and MICRODEA relating to its subject matter and all terms herein and supersedes all prior or contemporaneous EULAs or understandings. This EULA may be modified or changed only in writing signed by authorized representatives of CLIENT and MICRODEA. Notices hereunder shall be in writing and addressed to CLIENT at the address provided when purchasing this license or, in the case of MICRODEA, when addressed to MICRODEA Inc., Attn: CEO, 85 Enterprise Blvd. Markham, Ontario Canada L6G 0B5.