The CACE PILOT Software Single-Seat License Agreement
CACE Technologies, Inc.
NOTICE TO CUSTOMER: PLEASE READ THIS CONTRACT CAREFULLY. BY DOWNLOADING OR USING ALL OR ANY PORTION OF THE CACE TECHNOLOGIES CACE PILOT SOFTWARE, INCLUDING ANY UPDATE THERETO, YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. YOU AGREE THAT THIS AGREEMENT, INCLUDING ALL ATTACHMENTS AND EXHIBITS, CONSTITUTES THE COMPLETE AND EXCLUSIVE UNDERSTANDING BETWEEN US, AND SUPERSEDES ALL PRIOR SALES PROPOSALS, NEGOTIATIONS, AGREEMENTS, AND OTHER REPRESENTATIONS OR COMMUNICATIONS, WHETHER ORAL OR WRITTEN. THIS AGREEMENT IS ENFORCEABLE AGAINST YOU AND ANY LEGAL ENTITY THAT OBTAINED THE SOFTWARE OR ON WHOSE BEHALF IT IS USED. IF YOU DO NOT AGREE, DO NOT USE THIS SOFTWARE. IF YOU ACQUIRED THE SOFTWARE ON TANGIBLE MEDIA (E.G. CD) WITHOUT AN OPPORTUNITY TO REVIEW THIS LICENSE AND YOU DO NOT ACCEPT THIS AGREEMENT, YOU MAY OBTAIN A REFUND OF THE AMOUNT YOU ORIGINALLY PAID UNDER THE FOLLOWING CONDITIONS: YOU (A) DO NOT USE THE SOFTWARE AND (B) RETURN IT WITH ALL THE PACKING MATERIALS TO THE LOCATION FROM WHICH IT WAS OBTAINED WITHIN FIFTEEN (15) DAYS OF THE PURCHASE DATE.
This Software License Agreement (the “Agreement”) is made by and between CACE Technologies, Inc. and you, the customer. In this Agreement, the customer will be referred to as “you” and “your”; CACE Technologies, Inc, will be referred to as “CACE” or as “we”, “us” and “our”.
I. What You are Purchasing: The CACE PILOT Software Single-Seat License.
You are purchasing a Single-Seat License to use The CACE PILOT Software (as defined below). The Order Form (either on the CACE Website or hardcopy) you are completing describes the CACE PILOT Software you will receive in connection with this Agreement and is incorporated by reference and made a part of this Agreement. Throughout this Agreement, the word “purchase” shall mean to “purchase a license”, as the software is always licensed, not sold.
II. How to Buy: Information You Must Include (and Must Not Include) in Your Order
As long as this Agreement is acknowledged and agreed to, you may purchase CACE PILOT Software Single-Seat Licenses by submitting to CACE (and having CACE accept) your completed Order Form. You must complete all required fields on the Order Form. As described in the Order Form, your License purchase relates to a specific release of the CACE PILOT Software.
Other than the Order Form you submit, no other document from you will change or add to or delete any of the terms and conditions of any purchase. If you are required by your company to use purchase orders that refer to additional terms and conditions to effect your purchase, then you must specifically state on the face of your purchase order the following: “Despite any other terms and conditions printed on or referred to in this purchase order, this order shall be governed solely by the terms and conditions of the Software License Agreement between this company and CACE Technologies, Inc.”
III. Definitions
CACE PILOT Documentation means any manuals, handbooks, and other publications provided to you under this Agreement, in hard copy, electromagnetic, or other forms that describe the functions, capabilities, specifications and use of the CACE PILOT Software.
The CACE PILOT Software means the product that includes the CACE PILOT Software Distribution, CACE PILOT Executables, and CACE PILOT Documentation. The CACE PILOT Software is proprietary to CACE and is provided to you in exchange for the fees and subject to the license and other terms, specified in this Agreement.
Effective Date means the date on which you purchased the CACE PILOT Software and your acceptance of the terms of this Software License Agreement.
License means the license to use the CACE PILOT Software granted in Article IV, Section 1.
Update means a subsequent release of the CACE PILOT Software. CACE makes Updates available to CACE PILOT Licensees who have purchased a CACE PILOT Update Subscription (not described in this Agreement) with CACE. Updates do not include any release or alternate or subsequent product that CACE licenses and is sold separately from the CACE PILOT Software.
IV. License and Other Terms And Conditions
YOU AGREE THAT THESE LICENSE TERMS AND CONDITIONS SHALL CONTROL THIS AGREEMENT, AND SHALL SUPERSEDE ANY TERMS AND CONDITIONS THAT MIGHT ACCOMPANY ANY PURCHASE ORDER (OR ANY OTHER PURCHASE OR SALES DOCUMENT) FROM YOU.
1. The CACE PILOT Software Single-Seat License
1.1 Scope of Single-Seat License. CACE grants to you a perpetual, fully-paid, non-exclusive, non-transferable, nonsublicensable, revocable Single-Seat License to use the CACE PILOT Software that you purchased from CACE Technologies, Inc. or any of its authorized representatives. You are authorized to use a single copy of the CACE PILOT Software that is Registered with CACE Technologies and Activated and Installed on a single computer owned by you (Single-Seat License). The process of Registration, Activation, and Installation is governed by the CACE PILOT Software Installer/Uninstaller that is included with the CACE PILOT Software.
1.2 Restrictions on License. All titles, trademarks, and copyright and restricted rights notices shall be reproduced in all copies of the CACE PILOT Software. You will not, directly or through others: (a) modify or create derivative works of the CACE PILOT Software nor translate or part the CACE PILOT Software into any other computer or human language without the prior written consent of CACE; (b) disassemble, reverse engineer or decompile the CACE PILOT Software or otherwise attempt to discover any portion of the object or source code or trade secrets related to the CACE PILOT Software; or (c) reproduce the CACE PILOT Software without CACE’s copyright and trademark notices.
1.3 Ownership; Proprietary Rights. The CACE PILOT Software provided hereunder is licensed, not sold, to you, and any and all rights not specifically granted to you by this Agreement remain with CACE and its suppliers. The CACE PILOT Software is protected by patent, copyright, trademark, trade secret and other proprietary rights of CACE and its suppliers, and you acquire no rights, express or implied, in the CACE PILOT Software other than those specified in this Agreement. No title to, or ownership of, any Software or copyright, trademark, trade secret, or other proprietary rights in any Software are transferred to you under this Agreement. All modifications, adjustments, or error corrections to the CACE PILOT Software become part of the CACE PILOT Software and remain the exclusive property of CACE.
2. Copyright Notices; No Prohibited Combination with Open Source Software; Compliance with License Terms and Laws. You agree that you will not remove, alter, cover or obfuscate any copyright notices or other proprietary rights notices placed on or embedded in the CACE PILOT Software unless you are expressly authorized to do so by CACE. You acknowledge and agree that you will ensure that any and all CACE PILOT Software provided to you by CACE is not used, copied, modified, distributed or combined with any other software, in any case so as to (i) create, or purport to create, obligations, limitations, or restrictions on the part of CACE; (ii) grant, or purport to grant, to any third party any rights to, or immunities under, any CACE intellectual property or proprietary rights; (iii) require or condition the use of the CACE PILOT Software on the disclosure, licensing, delivery, or of any source code for any portion of such CACE PILOT Software; or (iv) in any way in conflict with the rights and obligations stated in any Third Party Software license or with any provision of applicable law.
3. You Agree to Pay us for our Products and Services; Substitutability. You agree to pay our Fees and any applicable taxes. You agree to pay us for the Single-Seat Licenses you are purchasing, at the time you accept the terms of this Agreement. Subject to Section 6(a), all payments are not cancelable and not refundable. Fees charged by us do not include any sales, use, excise, value-added, or similar taxes (except in CA and any other state in which CACE has an office or where it may be required), and do not include any duties or fees payable on the delivery of the CACE PILOT Software and Wireless Adapter in countries other than the United States. Any such taxes, duties, or fees are your sole responsibility and shall be either added to our invoice or paid directly by you as required by the jurisdiction in which you are located.
4. Termination. You can terminate this Agreement for any reason upon written notice to us; however, except as stated in Section 6(a), all fees paid are not subject to cancellation and are not refundable. We may terminate this Agreement at any time upon notice to you for cause, which shall include breach by you of this Agreement. In the case of non-payment by you of any fees, we can terminate this Agreement unless you pay such fees in full within ten (10) days after written notice. Sections 1.1, 1.2, 1.3, 2, 4, 5, 6(b), 6(c) 6(d), and 7 thru 11 of Article IV of this Agreement, and all accrued rights to payment, shall survive termination. In the event of termination of this Agreement by CACE for any reason, (i) your rights to use the CACE PILOT Software shall immediately terminate, (ii) you will cease use of any and all CACE PILOT Software, (iii) you will return or destroy any copies you have in your possession of such CACE PILOT Software and (iv) any and all licenses by CACE hereunder shall revert in their entirety to CACE. Termination is not an exclusive remedy, and all other remedies will be available whether or not termination occurs.
5. Indemnification by You. You agree to, at your expense, indemnify and hold CACE harmless from and against any and all liabilities, losses, actions, damages, or claims (including all reasonable expenses, costs, and attorneys fees) that result from your misappropriation of any intellectual property rights contained in the CACE PILOT Software, or your violation of any of the terms of the Sections of this Agreement.
6. Warranty and Disclaimers.
(a) Our Promises Regarding our Software. We warrant to you, and you only, that for a period of ninety (90) days from the Effective Date, the CACE PILOT Software, when used as anticipated by this Agreement, will be capable of functioning substantially in accordance with the CACE PILOT Documentation published by us at the time of delivery to you of such CACE PILOT Software. If we breach this warranty, our sole obligation shall be to remedy it in one of the following ways. At our discretion, we will either: repair or replace the defective CACE PILOT Software Distribution to enable it to perform substantially in accordance with such CACE PILOT Documentation; or upon your written request, terminate this Agreement and, after receiving the CACE PILOT Software, refund to you the fees paid by you to us. This warranty will not apply if you fail to implement all Updates to the CACE PILOT Software made available to you.
(b) We Make No Warranty With Respect to Third Party Products. ANY Third Party HARDWARE AND Software ARE distributed by CACE on an “AS IS” basis, without any warranty PROVIDED by or on behalf of CACE. PLEASE REFER TO THE APPLICABLE THIRD PARTY SOFTWARE LICENSE OR WARRANTY INFORMATION FOR ANY WARRANTY THAT MAY BE OFFERED OR DISCLAIMED BY THE LICENSOR OF SUCH SOFTWARE.
(c) WE MAKE NO OTHER PROMISES. EXCEPT AS STATED IN SECTION 6(a), WE MAKE NO OTHER WARRANTIES OR REPRESENTATIONS AS TO ANY SOFTWARE PROVIDED HEREUNDER, AND HEREBY DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE DO NOT WARRANT THAT ANY SOFTWARE USE WILL BE UNINTERRUPTED OR ERROR FREE.
(d) HIGH RISK ACTIVITIES. The CACE PILOT Software is not designed, manufactured or intended for use or resale as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, air traffic control, or direct life support machines, in which the failure of the Software or Hardware could lead directly to death, personal injury, or severe physical or environmental damage (“High Risk Activities”). Accordingly, we specifically disclaim any express or implied warranty of fitness for High Risk Activities.
7. OUR LIABILITY IS LIMITED. BY ENTERING INTO THIS AGREEMENT, YOU AGREE THAT, DESPITE ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, CACE WILL NOT BE LIABLE OR OBLIGATED WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY: (I) FOR ANY AMOUNTS IN EXCESS OF THE TOTAL OF THE FEES PAID TO US HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING ANY CLAIM; (II) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; OR (III) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA. DESPITE ANY OTHER PROVISION OF THIS AGREEMENT, WE SHALL NOT BE LIABLE NOR OBLIGATED WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY: (I) FOR ANY MATTER BEYOND OUR REASONABLE CONTROL, OR (II) FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR LOST PROFITS, EVEN IF WE ARE INFORMED OF THEIR POSSIBILITY. THESE LIMITATIONS SHALL APPLY DESPITE THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. ANY ACTIONS BASED ON OR ARISING OUT OF THIS AGREEMENT MUST BE BROUGHT WITHIN ONE YEAR OF THE DATE OF TERMINATION OF THIS AGREEMENT.
8. Publicity. Neither party may issue press releases or endorsements which reference the other party or make any use of the other party’s name, logo or trademark without the prior written consent of the other party.
10. U.S. Government Users. The CACE PILOT Software is "Commercial Items," as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 and 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the CACE PILOT Software is being provided to U.S. Government end users (1) only as a Commercial Item, and (2) with only those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement.
11. Miscellaneous.
(a) You may not assign, transfer, or sublicense any obligations or benefit under this Agreement without the written consent of CACE.
(b) We agree that we are independent contractors and neither of us has the right or authority to assume or create any obligation or responsibility on behalf of the other.
(c) All notices under this Agreement shall be in writing, and shall be deemed given when personally delivered or three (3) days after being sent by prepaid certified or registered mail to the address of the party to be noticed as set forth herein or such other address as such party last provided to the other by written notice.
(d) No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise.
(e) If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
(f) This Agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of, the State of California and the United States without regard to the conflict of law provisions thereof. The United Nation’s Convention on Contracts for the International Sale of Goods is expressly excluded from application to this Agreement. The sole venue for all disputes relating to this Agreement shall be in Sacramento County, California.
(g) This Agreement may be executed in any number of counterparts, each of which shall be considered an original, but all of which together will constitute one and the same instrument.
(h) This Agreement may be modified, replaced or rescinded only in writing, and signed by a duly authorized representative of each party.
(i) References in this Agreement, or any of its attachments, to a capitalized term shall have the meaning set forth in this Agreement.
(j) Headings herein are for convenience of reference only and shall in no way affect interpretation of the Agreement.