1. Definition. The term “Product” includes all copies of documents, digital data, software, and other materials as identified on the download link, Web page, or other packaging, both distinct parts and composite packages thereof.
2. ACCEPTANCE. BY RECEIVING, ACCESSING, DOWNLOADING OR USING THE PRODUCT, YOU ACKNOWLEDGE THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, UNDERSTAND THEM, AND AGREE TO BE BOUND BY THEM. WE RECOMMEND THAT YOU PRINT A COPY OF THIS AGREEMENT FOR YOUR RECORDS. “YOU” MEANS THE NATURAL PERSON OR THE ENTITY THAT IS AGREEING TO BE BOUND BY THIS AGREEMENT, AND EMPLOYEES AND THIRD PARTY CONTRACTORS THAT PROVIDE SERVICES TO YOU. YOU SHALL BE LIABLE FOR ANY FAILURE BY SUCH EMPLOYEES AND THIRD PARTY CONTRACTORS TO COMPLY WITH THE TERMS OF THIS AGREEMENT.
IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MUST NOT ACCESS, DOWNLOAD, INSTALL OR USE THE PRODUCT.
YOU HEREBY REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND YOUR ORGANIZATION, IF ANY, TO BE THE “LICENSEE” REFERRED TO IN THIS AGREEMENT. IF NO SUCH ORGANIZATION EXISTS, THEN YOU INDIVIDUALLY SHALL BE DEEMED TO BE THE “LICENSEE”.
3. Intellectual Property.
- Authorized Rights. Subject to the terms and conditions set forth in this Agreement, Energistics grants to Licensee and Licensee accepts a non-exclusive, non-transferable, worldwide license to use, display, modify and create derivative works prepared from the Product (“Derivative Works”), and to distribute, market and license such Derivative Works in both source code and object code form with respect to software, under terms and conditions consistent with the terms and conditions of this Agreement. Licensee shall not distribute, market or sell the Product in its unmodified or stand-alone form.
- Rights in Derivative Works. Licensee shall own all rights in modifications and derivative works of the Product prepared by or for Licensee. All rights in the Product, or any portion thereof, which remain in any such modification or derivative work, shall remain with Energistics or its supplier and shall remain subject to the terms of this agreement. Each copy or portion of the Product (including each Derivative Work) shall include the intellectual property notice or notices appearing in or on the corresponding portions of such materials as published and/or provided by Energistics hereunder.
- Trademarks. Licensee shall not use, display or register any identifying mark, trademark, service mark or domain name owned by, or used to identify any product or service of, Energistics for any reason, whether in the name of any Derivative Work or otherwise, except that Licensee shall be required, in each copy of each Derivative Work, to include the following notification visibly and prominently: “The following Energistics (c) products were used in the creation of this work: [list].”
- Title. Title, ownership and all intellectual property rights in and to the Product shall remain with Energistics and/or its suppliers.
4. DISCLAIMER OF WARRANTY. THE PRODUCT IS PROVIDED FREE OF CHARGE, AND, THEREFORE, ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION THE WARRANTIES THAT IT IS FREE FROM DEFECTS, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE OR NON-INFRINGING. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PRODUCT IS BORNE BY LICENSEE. SHOULD THE PRODUCT PROVE DEFECTIVE IN ANY RESPECT, LICENSEE AND NOT ENERGISTICS OR ITS SUPPLIERS OR RESELLERS ASSUMES THE ENTIRE COST OF ANY SERVICE AND REPAIR. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE PRODUCT IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
5. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ENERGISTICS OR ITS SUPPLIERS BE LIABLE FOR ANY PUNITIVE, EXEMPLARY, MULTIPLE, INDIRECT, SPECIAL INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
IN ANY CASE, ENERGISTICS’ ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF TEN U.S. DOLLARS, WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF ENERGISTICS TO THE EXTENT APPLICABLE LAW PROHIBITS THE LIMITATION OF DAMAGES IN SUCH CASES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE.
6. Termination. This agreement is effective until terminated. The Licensee may terminate it at any time. In addition, without prejudice to any other rights, upon a material breach of the obligations under this Agreement by Licensee, Energistics shall have the right, upon written notice to Licensee, to terminate this Agreement if Licensee fails to cure such breach within thirty (30) days after receipt of written notice thereof. Upon termination, Licensee shall delete all copies of the Product in its possession and control and cease all use and distribution of the Product, and any Derivative Works thereof, including all documents, software, and other materials, and erasing all copies residing on computer equipment. Any sublicenses for Derivative Works distributed prior to termination shall survive termination of this Agreement.
7. Export. Licensee shall not export or re-export the Product except in compliance with United States export laws and regulations.
8. Governing Law. This agreement shall be governed by the laws of the State of Texas, without reference to its choice of law rules, and excluding any application of the United Nations Convention on Contracts for the International Sale of Goods.
(a) This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof provided that this Agreement shall be superseded by any written, signed agreement between the parties relating to the Products no matter when executed. (b) This Agreement may be amended only by a writing signed by both parties. (c) If any provision in this Agreement should be held illegal or unenforceable by a court having jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this Agreement if no such modification is possible, and other provisions of this Agreement shall remain in full force and effect. (d) The language of this Agreement is English. (e) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof. (f) This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns.