UNITED SIGNALS & SYSTEMS (USS), INC.
SOFTWARE LICENSE AGREEMENT
for
Higher-Order Spectral Analysis (HOSA) Toolbox
LICENSEE MAY RECEIVE A FULL REFUND IF WITHIN THIRTY (30) DAYS FROM THE DATE OF DELIVERY (THE “ACCEPTANCE PERIOD”) LICENSEE DOES NOT ACCEPT THE TERMS AND CONDITIONS OF THIS LICENSE OR IF LICENSEE TERMINATES THIS LICENSE FOR ANY REASON, WITHIN THE ACCEPTANCE PERIOD.
LICENSE GRANT. United Signals & Systems (US&S), Inc. (“Vendor”) hereby grants to Licensee a nonexclusive license to install and operate the Program and accompanying Documentation as provided herein. The licensed Program and Documentation including Error Corrections and Enhancements are, and shall at all times remain, the property of Vendor and/or its licensors, and Licensee shall have no right, title, or interest therein, except as expressly set forth in this Agreement.
DEFINITIONS.
Affiliate. A person or legal entity which is controlled by, or controls, or is under common control with Licensee. Control means (i) beneficial ownership of at least fifty percent (50%) of the voting securities of a corporation or other business organization with voting securities, or (ii) a fifty percent (50%) or greater interest in the profits or capital of a partnership or other business organization without voting securities.
Documentation. The user guides and instructional material, if any, accompanying delivery of the Program as may be updated from time to time. Documentation will be delivered in electronic format.
Enhancement. A change or addition to the Program, other than an Error Correction, that improves its function, adds new function, or enhances its performance.
Error Correction. A change to the Program that is in a form that allows its application to the Program to reestablish material conformity with the description of the Program’s operation in the related Documentation.
Individual License. The installation and operation of the Program on a single designated computer, where Program use is restricted to a single person at any given time. Remote access is permitted, however this does not expand the licensed use beyond a single person at any given time.
Initial Subscription Term. A twelve month period starting from the date of the first day of the month after the month in which the Individual License is purchased (e.g., if the purchase date is October 12, then the Initial Subscription Term is from November 1 through the end of October of the following year).
Internal Operations. The use of the Program by employees of Licensee or an Affiliate for the purpose of performing services on behalf of the Licensee or Affiliate, or in the performance of services for Third Parties who engage Licensee or an Affiliate for such services. As used herein, “employees” includes student interns and consultants of Licensee or its Affiliates.
License. Vendor grant to Licensee of a nonexclusive right to install and operate the Program as an Individual License.
Perpetual License. Vendor grant to Licensee to have the right to use the Programs indefinitely.
Program. The HOSA computer software delivered hereunder.
Third Party. Any person or legal entity which is not Licensee, Vendor, or an Affiliate.
INSTALLATION AND USE. By accepting the terms and conditions of the Agreement, Licensee agrees to be bound by the obligations and restrictions of the Individual License.
The Program may be installed on a backup computer (while the designated computer is disabled) or on a replacement computer. Replacements include both permanent and temporary use at the same or different site. Temporary use at a different site may include installation for use at home by Licensee’s employees, provided Licensee permits such home use and Licensee otherwise complies with the terms of this Agreement and causes its employees to so comply, including full compliance with all applicable laws and regulations relating to import and export of technical data and computer software.
Licensee shall use the Program only for Internal Operations. Licensee may not sell, license, sublicense, rent, or make the Program available for use by any Third Parties.
Licensee shall not provide access to the Program via a Web application.
Licensee shall not provide multi-user access to the Program by calling the Program as a server from other programs without procuring specific rights to do so.
Licensee may make backup copies of the Program as necessary to support the use of the Program in accordance with this Agreement. Licensee may not remove any copyright, trademark, proprietary rights, disclaimer or warning notice included on or embedded in any part of the Program. All copies of Program shall contain all copyright and proprietary notices as in the original.
Vendor supplies its Program and Documentation in archival form by means of electronic distribution.
Licensee shall not decompile, disassemble or otherwise reverse engineer the Program. For European Union Licensees, the following rights apply:
EUROPEAN UNION: Licensee may only decompile, disassemble, or otherwise reverse engineer the Program where any such act is necessary to create an independent program that is interoperable with the Program or with another program or to observe, study, or test the functioning of the Program solely in order to understand the ideas and principles that underlie any element of the Program (“the Permitted Objective”) and provided that:
(a) this may only be done if the information necessary to achieve the Permitted Objective has not already been made available or has not been provided by Vendor within a reasonable time of a written request to Vendor to provide such information;
(b) the compilation, disassembly, or reverse-engineering is confined to those parts of the Program necessary to achieve the Permitted Objective;
(c) the information gained is not used for anything other than the Permitted Objective and is not disclosed to any other person except as may be necessary to achieve the Permitted Objective; and
(d) the information obtained is not used to create a program substantially similar in its expression to the Program including, but not limited to, expressions of the Program in other computer languages, or for any other act restricted by copyright in the Program.
Except as expressly provided by this Agreement, Licensee may not alter, adapt, modify, translate, convert, or create works derivative of the Program without the consent of Vendor.
All copies of the Program and Documentation, whether made by Licensee or otherwise, shall be subject to the terms of this Agreement.
Licensee shall take appropriate action by instruction, agreement, or otherwise with any persons permitted access to the Program, so as to enable Licensee to satisfy its obligations under the terms of this Agreement.
FEDERAL ACQUISITION. This provision applies to all acquisitions of the Program and Documentation by or for the federal government of the United States. By accepting delivery of the Program, the government hereby agrees that this software qualifies as “commercial” computer software within the meaning of FAR Part 12.212, DFARS Part 227.7202-1, DFARS Part 227.7202-3, DFARS Part 252.227-7013, and DFARS Part 252.227-7014. The terms and conditions of this Agreement shall pertain to the government’s use and disclosure of the Program and Documentation, and shall supersede any conflicting contractual terms or conditions. If this license fails to meet the government’s minimum needs or is inconsistent in any respect with federal procurement law, the government agrees to return the Program and Documentation, unused, to Vendor.
MAINTENANCE AND SUPPORT. During the Initial Subscription Term, Vendor shall: deliver subsequent releases of the Program that are not charged for separately; exert reasonable efforts to both (a) provide, within a reasonable time, workarounds for any material programming errors in the current release of the Program that are directly attributable to Vendor, and (b) correct such errors in the next available release, provided Licensee provides Vendor with sufficient information to identify the problems. During this same Initial Subscription Term, Licensee shall also be entitled to receive technical support by fax or electronic mail regarding the installation and/or use of the licensed Program and their interaction with hardware, operating environments, and other software products. Primary support will be by electronic mail, and secondarily by fax. After the Initial Subscription Term, Licensee must contact the Vendor about Maintenance and Support subscriptions. Vendor reserves the option to discontinue, in whole or in part, offering Maintenance and Support subscriptions for any Program or platform.
TERM. This is a Perpetual License, subject to the TERMINATION provisions in this Agreement. LICENSEE UNDERSTANDS AND AGREES THAT THE MAINTENANCE AND SUPPORT OF EACH PERPETUAL LICENSE WILL TERMINATE UPON EXPIRATION OF THE INITIAL SUBSCRIPTION TERM INCLUDED WITH THE PURCHASE OF THE LICENSE. Thereafter, Licensee must contact the Vendor about Maintenance and Support subscriptions.
TERMINATION. Vendor may terminate this license grant, by written notice to Licensee if Licensee breaches any material term of this license, including failure to pay any license fees due, and Licensee has not cured such breach within sixty (60) days of written notification. Licensee may terminate this license at any time, for any reason. Licensee shall not be entitled to any refund if this license is terminated, except for license fees paid for any Program for which the Acceptance Period has not expired at the time of termination. Upon termination, Licensee shall promptly return all but archival copies of the Program and Documentation in Licensee’s possession or control, or promptly provide written certification of their destruction.
EXPORT CONTROL. The Program may be subject to U.S. export control laws. Notwithstanding any other term of this Agreement or third party agreement, Licensee’s rights under this Agreement may not be exercised by Licensee or any Third Party in violation of such laws and regulations, nor may this Agreement be transferred to any party where doing so would result in such a violation. The terms of any limitation on the use, transfer or re-export of the Program and Documentation imposed by Vendor in any Destination Control Statement or other document for the purpose of export control shall prevail over any term in this Agreement.
TAXES, DUTIES, CUSTOMS. Absent appropriate exemption certificate(s), Licensee shall pay all taxes, duties, or customs, except for taxes based on Vendor net income.
USE OF NAME AND TRADEMARKS. Licensee shall not use the name, trade names or trademarks of Vendor or any of its Affiliates in any advertising, promotional literature or any other material, whether in written, electronic, or other form, distributed to any Third Party, except in the form provided by Vendor, and then solely for purposes of identifying Vendor Program.
ASSIGNMENT. This license is nontransferable to a Third Party without Vendor consent, which shall not be unreasonably withheld. This license may be transferred to an Affiliate provided that Vendor is notified in writing of the transfer and the Affiliate accepts these same terms and conditions.
LIMITATION OF LIABILITY. THE PROGRAM SHOULD NOT BE RELIED ON AS THE SOLE BASIS TO SOLVE A PROBLEM WHOSE INCORRECT SOLUTION COULD RESULT IN INJURY TO PERSON OR PROPERTY. IF THE PROGRAM IS EMPLOYED IN SUCH A MANNER, IT IS AT THE LICENSEE’S OWN RISK AND VENDOR EXPLICITLY DISCLAIMS ALL LIABILITY FOR SUCH MISUSE TO THE EXTENT ALLOWED BY LAW. VENDOR’ S LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM NEGLIGENCE OR FOR ANY OTHER MATTER IN RELATION TO WHICH LIABILITY BY LAW CANNOT BE EXCLUDED OR LIMITED SHALL NOT BE EXCLUDED OR LIMITED. EXCEPT AS AFORESAID, (A) ANY OTHER LIABILITY OF VENDOR (WHETHER IN RELATION TO BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE) SHALL NOT IN TOTAL EXCEED THE AMOUNT PAID TO VENDOR UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE CLAIM IN QUESTION, FOR THE PROGRAM WITH RESPECT TO WHICH THE LIABILITY IN QUESTION ARISES, AS INSTALLED ON THE DESIGNATED COMPUTER(S) OR DESIGNATED SERVER(S) FOR WHICH USE OF THE PROGRAM IS LICENSED HEREUNDER; AND (B) VENDOR SHALL HAVE NO LIABILITY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL LOSS (WHETHER FORESEEABLE OR OTHERWISE AND INCLUDING LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF OPPORTUNITY, AND LOSS OF USE OF ANY COMPUTER HARDWARE OR SOFTWARE). SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO LICENSEE.
LIMITED WARRANTY/LIMITATION OF REMEDIES. Vendor warrants that Vendor or its licensors has the right to grant the license rights hereunder. Vendor warrants that the physical media provided shall be free from defects in material and workmanship for a period of ninety (90) days from delivery, or it will be replaced by Vendor at no cost to Licensee. Vendor further warrants, for a period of one (1) year from delivery, that each copy of the Program will conform in all material respects to the description of such Program’s operation in the Documentation. In the event that the Program does not operate as warranted, Licensee’s exclusive remedy and Vendor’s sole liability under this warranty shall be a) the correction or workaround by Vendor of major defects within a reasonable time, or b) should such correction or workaround prove neither satisfactory nor practical, termination of the relevant license and refund of the initial license fee paid to Vendor for the Program. All requests for warranty assistance should be directed to Vendor. EXCEPT AS EXPRESSLY PROVIDED BY THIS AGREEMENT (OR AS IMPLIED BY LAW WHERE THE LAW PROVIDES THAT THE PARTICULAR TERMS IMPLIED CANNOT BE EXCLUDED BY CONTRACT), ALL OTHER CONDITIONS, WARRANTIES, OR OTHER TERMS (INCLUDING ANY WITH REGARD TO INFRINGEMENT, MERCHANTABLE QUALITY, OR FITNESS FOR PURPOSE) ARE EXCLUDED. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE. THIS WARRANTY GIVES LICENSEE SPECIFIC LEGAL RIGHTS AND LICENSEE MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. LICENSEE ACCEPTS RESPONSIBILITY FOR ITS USE OF THE PROGRAM AND THE RESULTS OBTAINED THEREFROM.
GENERAL. To the extent any law, treaty, or regulation is in conflict with this Agreement, the conflicting terms of this Agreement shall be superseded only to the extent necessary by such law, treaty, or regulation. If any provision of this Agreement shall be otherwise unlawful, void, or otherwise unenforceable, that provision shall be enforced to the maximum extent permissible. In either case, the remainder of this Agreement shall not be affected. This Agreement will be governed by and construed and enforced in accordance with the laws of California, excluding its choice of law rules. The parties agree that the U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. This Agreement contains the entire understanding of the parties and may not be modified or amended except by written instrument, executed by authorized representatives of Vendor and Licensee.
4