DESKEW TECHNOLOGIES, LLC – END USER LICENSE AGREEMENT FOR GIG PERFORMER (“THE SOFTWARE”)
1. License Grant. Subject to the terms and conditions of this Agreement, DESKEW hereby grants you a non-exclusive, non-transferable right to reproduce and use a reasonable number of copies of the Software and the accompanying Documentation solely for your internal evaluation purposes during the term of this Agreement (as set forth in Section 3 below). You may install each authorized copy of the Software only on the computer, workstation, personal digital assistant, pager, “smart phone,” or other electronic device for which the Software was designed.
2. Ownership Rights. The Software is protected by United States copyright laws and international treaty provisions. DESKEW and its suppliers retain all right, title, and interest in and to the Software, including all copyrights, patents, trade secret rights, trademarks, and other intellectual property rights therein. Your possession, installation, or evaluation of the Software does not transfer to you any title to the intellectual property in the Software. All rights in the Software and Documentation not expressly granted to you in this Agreement are reserved by DESKEW and its suppliers.
3. Restrictions. You may not rent, lease, loan, resell, or otherwise redistribute the Software or Documentation to any third party. You may not permit any third party to benefit from the use or functionality of the Software via a timesharing, service bureau, or other arrangement. You may not transfer (by assignment, sublicense, operation of law, or otherwise) any of the rights granted to you under this Agreement; and any purported transfer will be null and void and result in immediate termination of this Agreement. You may not reverse engineer, decompile, or disassemble the Software, except to the extent (if at all) the foregoing restriction is expressly prohibited by applicable law. You may not modify, or create derivative works based upon, the Software or Documentation, in whole or in part. You may not copy the Software or Documentation, except as expressly permitted in Section 1 above. You may not remove any proprietary notices or labels on the Software or Documentation. The Software may contain a usage tracking mechanism for purposes of monitoring license compliance. You agree not to (a) disable or block the operation of this tracking mechanism and (b) delete tracking information that may be stored with the Software. DESKEW reserves the right to review such usage tracking information for the purpose of verifying your compliance with this Agreement.
4. Warranty Disclaimer. THE SOFTWARE IS PROVIDED “AS IS.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DESKEW DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED OR STATUTORY, WITH RESPECT TO THE SOFTWARE AND THE DOCUMENTATION, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. Without limiting the generality of the foregoing, the Software is not fault-tolerant and is not designed or intended for use in hazardous environments requiring fail-safe performance, such as the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, direct life-support machines, and any other application in which the failure of the Software could lead directly to death, personal injury, or severe physical or property damage. You assume full responsibility for the installation of, use of, and results obtained from the Software. Without limiting the foregoing, DESKEW makes no warranty that the Software will be error-free.
5. Limitation of Liability and Indemnification. IN NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, IN CONTRACT, OR OTHERWISE, WILL DESKEW OR ITS SUPPLIERS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DAMAGES WHATSOEVER, INCLUDING DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY NATURE ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SOFTWARE OR DOCUMENTATION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF DESKEW HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS OF LIABILITY WILL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION.
6. United States Government. The Software and Documentation are deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Software and Documentation by the United States Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by this Agreement.
7. Export Controls. You are advised that the Software is subject to the U.S. Export Administration Regulations. You will not directly or indirectly export, import, or transfer Software contrary to U.S. or other applicable laws, and will not cause, approve, or assist others to do so. You represent and agree that (a) neither the United States Bureau of Export Administration nor any other federal agency has suspended, revoked or denied your export privileges, and (b) you are not located in or a resident of any other country to which the United States has embargoed goods.
8. Miscellaneous. This Agreement is governed by the laws of the United States and the State of New York, without regard to conflict of laws principles. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. Any dispute between the parties arising out of or related to this Agreement shall be settled by final, binding arbitration utilizing the dispute resolution procedures of the American Arbitration Association (AAA) in San Francisco, CA. Notwithstanding the foregoing, DESKEW may bring suit in any appropriate forum for any breach of Sections 1, 2, 5 or 10 or otherwise for infringement or misappropriation of its intellectual property rights. BY AGREEING TO ARBITRATION, THE PARTIES UNDERSTAND THAT THEY ARE WAIVING CERTAIN RIGHTS AND PROTECTIONS WHICH MAY OTHERWISE BE AVAILABLE IN COURT, INCLUDING, WITHOUT LIMITATION, THE RIGHT TO A JURY TRIAL. DESKEW will be entitled to immediate injunctive relief (in addition to all other remedies it may have) in the event of any breach, or threatened breach, of Section 2 or Section 5 by Licensee. No right or remedy of DESKEW under this Agreement will be deemed waived unless such waiver is in writing and signed by an authorized representative of DESKEW. If any provision of this Agreement is held invalid, such provision will be deemed modified so that it is valid and enforceable to the maximum extent allowed under applicable law and the remainder of this Agreement will continue in full force and effect. The parties confirm that it is their wish that this Agreement has been written in the English language only and if this Agreement is translated into any other language, the English version will prevail. This Agreement is the entire agreement between the parties and supersedes any other written or oral communications or understandings with respect to the Software. This Agreement may not be modified except by a written document signed by authorized representatives of each party that expressly states their intention to amend this Agreement.