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THIS IS A LEGAL AGREEMENT (“AGREEMENT”) BETWEEN YOU AND AISCALER, (“LICENSOR”). PLEASE READ THIS AGREEMENT CAREFULLY. IF THE SOFTWARE IS TO BE USED FOR BUSINESS PURPOSES, (COLLECTIVELY “LICENSEE”), TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, CLICK “I DO NOT ACCEPT” AND YOU WILL NOT BE PERMITTED TO DOWNLOAD THE SOFTWARE.
1. License Grant. Licensor grants to Licensee a worldwide, nonexclusive, nontransferable, license to use the AISCALER software (the “Software”). Licensee is permitted to make a single copy of the Software for backup purposes. Except as expressly authorized above or as permitted by applicable law, Licensee will not: copy, in whole or in part, Software or any related documentation; modify the Software; reverse compile, reverse engineer, disassemble or reverse assemble all or any portion of the Software; rent, lease, license, sublicense, distribute, transfer or sell the Software; or create derivative works of the Software. Licensee obtains no rights in the Software except those given in this limited license.
2. Ownership. The Software, any related documentation and all intellectual property rights therein are owned by Licensor, its affiliates and/or its suppliers. The Software is licensed, not sold. Copyright laws and international copyright treaties, as well as other intellectual property laws and treaties, protect the Software. Licensee will not remove, alter or destroy any copyright, proprietary or confidential notices placed on the Software or any related documentation. Licensee agrees that aspects of the Software, including the specific design and structure of individual programs, constitute trade secrets and/or copyrighted or patented material of Licensor, its affiliates and/or its suppliers. Licensee agrees not to disclose, provide, or otherwise make available such trade secrets or material in any form to any third party without the prior written consent of Licensor. Licensee agrees to implement reasonable security measures to protect such trade secrets and material.
3. Annual Maintenance. Use of AISCALER software after year one requires an annual maintenance fee of 20% of the original software license cost. This maintenance must be paid on the anniversary date of the purchase or may be pro-rated to meet budget requirements o Licensee. Maintenance entitles Licensee to updates and technical fixes for the AISCALER product. If License fee is not paid on an annual basis than Licensees must terminate use of the AISCALER product and destroy the software and any applicable copies.
4. NO WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO ANY STATUTORY WARRANTIES THAT CANNOT BE EXCLUDED, THE SOFTWARE AND ANY RELATED DOCUMENTATION ARE PROVIDED TO LICENSEE “AS IS.” LICENSOR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS AND EXCLUDES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW ALL REPRESENTATIONS, ORAL OR WRITTEN, TERMS, CONDITIONS, AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY AND NONINFRINGEMENT. WITHOUT LIMITING THE ABOVE, LICENSEE ACCEPTS THAT THE SOFTWARE MAY NOT MEET LICENSEE’S REQUIREMENTS, OPERATE ERROR FREE, OR IDENTIFY ANY OR ALL ERRORS OR PROBLEMS, OR DO SO ACCURATELY. LICENSEE USES THE SOFTWARE AT HIS/HER OWN RISK. This Agreement does not affect any statutory rights Licensee may have as a consumer.
5. EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR, ITS AFFILIATES OR ITS SUPPLIERS BE LIABLE TO LICENSEE, LICENSEE’S CUSTOMERS, OR OTHER USERS, FOR damages of any kind including, WITHOUT LIMITATION, DIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES OF ANY KIND ARISING OUT OF THE LICENSE OF, USE OF, OR INABILITY TO USE THE SOFTWARE (INCLUDING, WITHOUT LIMITATION, DATA LOSS OR CORRUPTION, ECONOMIC LOSS, LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF CONFIDENTIAL INFORMATION, BUSINESS INTERUPTION, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY OF REASONABLE CARE OR NEGLIGENCE) EVEN IN THE EVENT OF THE FAULT, TORT, STRICT LIABILITY, BREACH OF CONTRACT, BREACH OF STATUTORY DUTY OR BREACH OF WARRANTY OF LICENSOR, ITS AFFILIATES OR SUPPLIERS AND EVEN IF LICENSOR, ITS AFFILIATES OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE FORESEEABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTIAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY.
6. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR’S LIABILITY EXCEED THE LICENSE FEE PAID BY LICENSEE OR US$5.00, WHICHEVER IS GREATER. THIS LIMITATION OF LIABILITY AND RISK IS REFLECTED IN THE PRICE OF THE SOFTWARE. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR LIMIT LICENSOR’S LIABILITY TO LICENSEE FOR ANY LIABILITY THAT CANNOT, AS A MATTER OF APPLICABLE LAW, BE EXCLUDED OR LIMITED.
7. INDEMNIFICATION. BY ACCEPTING THIS AGREEMENT, LICENSEE AGREES TO INDEMNIFY AND OTHERWISE HOLD HARMLESS LICENSOR, ITS OFFICERS, EMPLOYEES, AGENTS, SUBSIDIARIES, AFFILIATES, SUPPLIERS AND OTHER PARTNERS FROM ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF, OR RELATING TO, OR RESULTING FROM LICENSEE’S USE OF THE SOFTWARE OR ANY OTHER MATTER RELATING TO THE SOFTWARE.
8. Termination. Licensor may immediately terminate this Agreement and the license granted hereunder if Licensee fails to comply with the terms and conditions of this Agreement. Upon such termination, Licensee must immediately cease using the Software, destroy or delete all copies of the Software and upon the request of Licensor, certify the destruction or deletion of the Software. Licensee may terminate this Agreement and the license granted hereunder at any time by destroying or deleting all copies of the Software. ALL DISCLAIMERS, LIMITATIONS OF LIABILITY AND ANY OTHER PROVISIONS INTENDED TO SURVIVE TERMINATION WILL SURVIVE ANY TERMINATION AND CONTINUE IN FULL FORCE AND EFFECT.
9. International Trade Compliance. The Software and any related technical data is subject to the customs and export control laws and regulations of the Republic of Ireland (“Ireland”) and may also be subject to the customs and export laws and regulations of the country in which the download.
10. Governing Law. The laws of the Republic of Ireland, without regard to conflicts of laws principles, govern this Agreement. If applicable law does not permit the parties to agree to the governing law, the laws of the country in which Licensee downloads or acquires the Software govern this Agreement. To the extent permitted by applicable law, any dispute arising under this Agreement or relating to the Software shall be resolved by a court of proper jurisdiction in Dublin Ireland. Licensee and Licensor irrevocably submit to the jurisdiction of such courts and waive any and all objections to jurisdiction a party may have under applicable law. Notwithstanding the foregoing, if the Software is downloaded or acquired in the People’s Republic of China, any dispute arising under this Agreement or relating to the Software shall be resolved by binding arbitration, held in Dublin Ireland, under the Judicial Arbitration and Mediation Services (JAMS) International Arbitration Rules.
11. Legal Effect. This Agreement describes certain legal rights. Licensee may have other rights under applicable law. This Agreement does not change Licensee’s rights under applicable law if such laws do not permit the Agreement to do so.
12. Miscellaneous. This Agreement constitutes the entire agreement between Licensor and Licensee and governs Licensee’s use of the Software, superseding any prior agreement between Licensor and Licensee relating to the subject matter hereof. Any change or modification to this Agreement will only be valid if it is in writing and signed on behalf of Licensor and Licensee. A failure by either party to enforce its rights under this Agreement is not a waiver of those rights or any other rights it has under this Agreement. The parties disclaim the application of the United Nations Convention on the International Sale of Goods. The terms of this Agreement are severable. If any term is unenforceable for any reason, that term will be enforced to the fullest extent possible, and the Agreement will remain in effect. The Software and any related technical data are provided with restricted rights. Use, duplication, or disclosure by the U.S. Government is subject to the restrictions as set forth in subparagraph (c)(1)(iii) of DFARS 252.227-7013 (The Rights in Technical Data and Computer Product) or subparagraphs (c)(1) and (2) of 48 CFR 52.227-19 (Commercial Computer Product – Restricted Rights), as applicable. To the extent permitted by applicable law, Licensee may not assign this Agreement, and any attempted assignment will be null and void. AISCALER, the AISCALER logo, and other AISCALER and Maxtor names and logos are the trademarks of AISCALER Limited or its affiliates.
13. Contact Information. Any inquiries regarding this Agreement or the Software may be addressed to Licensor contact found on the website, aiscaler.com.