SOFTWARE LICENSE AGREEMENT FOR TURBOCAP SOFTWARE
CACE TECHNOLOGIES, INC.
NOTICE
TO CUSTOMER: PLEASE READ THIS CONTRACT
CAREFULLY. BY DOWNLOADING OR USING ALL
OR ANY PORTION OF THE CACE TECHNOLOGIES TURBOCAP 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 ANY AMOUNT YOU ORIGINALLY PAID IF YOU (A) DO NOT USE THE SOFTWARE AND
(B) RETURN IT, TOGETHER WITH THE TURBOCAP GIGABIT ETHERNET BOARD, WITH PROOF OF
PAYMENT, 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 as 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: TurboCap
Software License and TurboCap Gigabit
Ethernet Board.
You
are purchasing a License to use TurboCap Software (as
defined below), together with a TurboCap
Ethernet Board. The Order Form you are
completing in connection with Agreement describes the TurboCap
Software you are receiving in connection with this Agreement and is
incorporated by reference and made a part of this Agreement. Throughout this Agreement, wherever you are
paying for access to software, the word "purchase" shall be deemed to
mean "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 in effect, you may continue to purchase additional
Software Licenses to support additional TurboCap Gigabit Boards to your account
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 TurboCap Software and a specific model of the TurboCap
Gigabit Ethernet Board.
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
pre-printed 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
TurboCap 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 TurboCap
Software.
TurboCap Adapter means the TurboCap
Gigabit Ethernet Board that you are purchasing together with your
license to the TurboCap
Software.
TurboCap Software means the TurboCap driver
and TurboCap Application API and TurboCap
Documentation. The TurboCap
Software is proprietary to CACE and is provided to you in exchange for the
payments and subject to the license and other terms specified in this
Agreement. TurboCap
Software includes any error corrections, bug fixes, modifications, enhancements
made to the TurboCap Software.
Effective Date means the first date on
which you accept the terms of this Software License Agreement.
License means the license to use
the TurboCap Software granted in Article IV, Section
1.
Update means a subsequent
release of the TurboCap Software that CACE makes
generally available to its customers who have purchased Updates. Updates do not include any release or
alternate or subsequent product that CACE licenses separately from the TurboCap Software.
IV. License and Other
Terms And Conditions
YOU AGREE
THAT THESE LICENSE AND SUBSCRIPTION 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. TurboCap
Software License
1.1 Scope of License. CACE grants to you a perpetual, worldwide,
fully-paid, non-exclusive, non-transferable, nonsublicensable,
revocable license to use the TurboCap Software that
you obtain under this Agreement, solely for use together with the TurboCap Gigabit Ethernet Board.
1.2 Restrictions on
License.
All titles, trademarks, and copyright and restricted rights notices shall be
reproduced in any
copies of the TurboCap Software. You will not, directly or through others:
(a) modify or create derivative works of the TurboCap
Software nor translate or port the TurboCap Software
into any other computer or human language without the prior written consent of
CACE; (b) disassemble, reverse engineer or decompile the TurboCap
Software or otherwise attempt to discover any portion of the object or source
code or trade secrets related to the TurboCap
Software; or (c) reproduce the TurboCap Software
without CACE's copyright and trademark notices.
1.3 Ownership;
Proprietary Rights.
Any TurboCap Software provided hereunder is licensed,
not sold, to you and any and all rights not specifically granted to you by this
Agreement, remain in CACE and its suppliers.
The TurboCap Software and TurboCap
Adapter are protected by patent, copyright, trademark, trade secret and other
proprietary rights of CACE and its suppliers, and you do not acquire any
rights, express or implied, in the TurboCap Software
or the TurboCap Gigabit Ethernet Board,
other than those specified in this Agreement.
No title to or
ownership
of any TurboCap 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 TurboCap Software,
will become part of the TurboCap Software and will
remain the exclusive property of CACE.
2. TurboCap
Gigabit Ethernet Board. You
expressly acknowledge that the TurboCap
Gigabit Ethernet
Board
is not manufactured by CACE, and that CACE makes no representations or
warranties regarding the functionality or
use of the TurboCap
Gigabit Ethernet Board.
3. 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 TurboCap Software unless you
are expressly authorized to do so by CACE.
You acknowledge and agree that you will ensure that any and all TurboCap 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
or distribution of TurboCap Software on, the
disclosure, licensing, delivery or distribution of any source code for any
portion of such TurboCap Software; or (iv) or in any
way in conflict with the rights and obligations stated in any Third Party Software
license or with any provision of applicable law.
4. You Agree to Pay us for our Products and
Services; Substitutability. You Will Pay our
Fees and any Applicable Taxes. You agree
to pay us for the Licenses and TurboCap
Gigabit Ethernet Board you are
purchasing, at the time you accept the terms of this
Agreement. Subject to Section 7(a), all
payments are
non-cancelable and non-refundable. Fees charged by us do not include any sales,
use, excise, value-added, or similar
taxes, and do not include any duties or fees payable
on the delivery of the TurboCap Software and TurboCap
Gigabit Ethernet Board in countries other than
the
responsibility and shall be either added
to our invoice or paid directly by you as required by the jurisdiction in
which you are located.
5. Termination. You can terminate this Agreement for any
reason upon written notice to us; however, except as stated in Section 7(a),
all fees paid are noncancelable and
nonrefundable. 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 such notice. Sections 1.2, 1.3, 2,
3, 5, 6, 7(b), 7(c) 7(d), and 8-12 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 TurboCap Software shall
immediately terminate, (ii) you will cease use of any and all TurboCap Software, (iii) you will return or destroy any
copies you have in your possession of such TurboCap
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.
6. Indemnification by You. You agree to, at your expense, indemnify and
hold harmless CACE 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 TurboCap Software or the TurboCap Gigabit Ethernet Board, or your
violation of any of the terms of
Sections 3 or 10 of this Agreement.
7. Warranty and Disclaimers.
(a) Our
Promises Regarding our Software. We
warrant to you, and you only, that for a period of thirty (30) days from the
Effective Date, the TurboCap Software, when used as
anticipated by this Agreement, will be capable of functioning substantially in
accordance with the TurboCap Documentation published
by us at the time of delivery to you of such TurboCap
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 TurboCap Software or TurboCap Gigabit Ethernet Board to enable it to
perform substantially in accordance with such
TurboCap Documentation; or upon your written
request, terminate this Agreement and, after receiving the TurboCap
Gigabit
Ethernet Board (s) and TurboCap 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 TurboCap Software made
available to you.
(b)
We Make No Warranty With Respect to
Third Party Products. ALL THIRD
PARTY HARDWARE AND SOFTWARE, INCLUDING THE TURBOCAP GIGABIT ETHERNET
BOARD, 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 7(a), WE MAKE NO OTHER WARRANTIES OR REPRESENTATIONS AS TO
ANY SOFTWARE OR HARDWARE 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 OR HARDWARE
WILL BE UNINTERRUPTED OR ERROR FREE.
(d)
HIGH RISK ACTIVITIES. The TurboCap
Software and TurboCap Gigabit Ethernet
Board are 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.
8. 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.
9. 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. You Will Comply with
Export Regulations and other Applicable Laws.
You agree that the TurboCap Software will not
be shipped, transferred or exported into any country or used in any manner
prohibited by the United States Export Administration Act or any other
applicable laws, restrictions or regulations (collectively the
"Laws"). In addition, if the TurboCap Software is identified as export controlled items
under any export Laws, you represent and warrant that you are not a citizen, or
otherwise located within, an embargoed nation (including without limitation
Iran, Iraq, Syria, Sudan, Libya, Cuba, North Korea, and Serbia) and that you
are not otherwise prohibited under any Laws from receiving or using the
Software.
11.
12. 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
(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.