MPulse Maintenance Software Products (“Licensed Software”) are licensed by MPulse Maintenance Software, a division of SpecTech, Inc. (“Licensor”), located at 555 Conger St., PO Box 22906, Eugene, OR 97402, to the purchaser (“End-User”) for use under the following terms. Licensor reserves any right not expressly granted to the End-User.
License. Licensor hereby grants to End-User a nonexclusive license to be use concurrently by the number of users for which license fees shall have been paid. Licensor reserves any right not expressly granted to the End-User.
Transfer of License. The License Software and all the rights under this Agreement may be transferred to a third party with a copy of this Agreement and all documentation, provided (i) the End-User gives Licensor written notice of the transfer (including in such notice the identity of the transferee), and (ii) that the transferee reads and agrees to accept the terms and conditions of this Agreement. Any prohibited assignment shall be null and void.
Restrictions. The End-User may NOT adapt, modify, translate, sublicense, rent, lease, loan, resell for profit, assign or otherwise distribute copies of the Licensed Software to any third party. The End-User may NOT create derivative works based on the Licensed Software or any part thereof. The End-User may NOT de-compile, reverse engineer, disassemble or otherwise reduce the License Software to a human readable form.
Confidential Information. The Licensed Software and it documentation (“Confidential Information”) are the sole and exclusive trade secrets of Licensor. End-User may use the Confidential Information during the term of this Agreement as permitted hereunder. The End-User acknowledges that the Licensed Software contains valuable confidential information and trade secrets and that unauthorized use or copying are harmful to Licensor. The End-User agrees to use its best efforts and to take all reasonable steps to safeguard the License Software to ensure that no unauthorized person(s) shall have access thereto and that no unauthorized copy, publication, disclosure or distribution in whole or in part, in any form, shall be made.
The following information shall not be considered confidential information: (i) information which is or becomes public domain through no fault or act of the End-User; (ii) information which is independently developed by End-User without the use of or reliance on Licensor's Confidential Information; (iii) information which was provided to End-User under no duty of confidentiality to Licensor; or (iv) information which is required to be disclosed by End-User under law, provided, however, End-User has give prior notice thereof to Licensor.
Term and Termination. This Agreement is effective until terminated. This Agreement will terminate immediately without notice from Licensor if the End-User fails to comply with any of its provisions. Upon termination the End-User must remove all copies of the License Software from End-User's computers and destroy the License Software and its documentation and all copies thereof. The End-User may terminate this Agreement at any time upon written notice to Licensor.
U.S. Government Restricted Rights. The Licensed Software and documentation are provided with Restricted Rights. Use, duplication or disclosure by the Government is subject to restrictions set forth in subparagraph (c)(1) of The Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1)(ii) and (2) of Commercial computer Software - Restricted Rights at 48 CFR 52.227-19, as applicable. For the purpose of the foregoing regulation, the Contractor/Manufacturer is MPulse Maintenance Software, a division of SpecTech, LLC, 555 Conger St., PO Box 22906, Eugene, OR 97402.
Representation and Warranties. Licensor represents and warrants to End-User that: Licensor owns or has the lawful right from others to grant the rights to the Licensed Software set forth herein; as of its shipment date from Licensor, Licensor has no knowledge the Licensed Software infringes any third party intellectual property rights, such as patents, copyrights, trade secrets or trademarks, in the United States; and the media containing the Licensed Software will be free from defects in material and workmanship under normal use and service for a period of 60 days from shipment of the Licensed Software.
If the Licensed Software is found to infringe any third party intellectual property right in a Legal Action, at Licensor's sole discretion and expense, Licensor may: obtain a license from such third party for End-User's benefit; replace or modify the Licensed Software so that it is no longer infringing; or if neither of the foregoing is commercially feasible, terminate this Agreement and refund the license fee paid by End-User with due allowance for the term of End-User's actual use thereof and with no further liability to End-User.
ALL LICENSED SOFTWARE IS PROVIDED TO THE END USER “AS IS.” LICENSOR EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THE LICENSED SOFTWARE IS OR WILL BE FREE OF ERRORS. LICENSOR ALSO DISCLAIMS ANY COMMITMENT TO PROVIDE MAINTENANCE OR SUPPORT OF THE LICENSED SOFTWARE IN THE ABSENCE OF A SEPARATE SOFTWARE MAINTENANCE AGREEMENT. FURTHERMORE, THE LICENSED SOFTWARE MAY BE DERIVED FROM OR INCLUDE SOFTWARE FROM THIRD PARTY LICENSORS, WHO MAKE NO WARRANTY, EXPRESS OR IMPLIED, REGARDING THE LICENSED SOFTWARE AND WHO WILL NOT UNDERTAKE TO PROVIDE ANY INFORMATION OR SUPPORT REGARDING THE LICENSED SOFTWARE.
THE WARRANTIES SET FORTH ABOVE WITH RESPECT TO THE LICENSED SOFTWARE ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WHICH ARE HEREBY DISCLAIMED BY LICENSOR AND ITS THIRD PARTY LICENSORS, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR ITS DEALERS, VARS, DISTRIBUTORS, EMPLOYEES OR AGENTS SHALL IN ANY WAY EXTEND, MODIFY OR ADD TO THE FORGOING WARRANTY.
Indemnification. Licensor hereby agrees to indemnify, defend and hold End-User harmless from any third party suit, claim or other legal action (“Legal Action”) that alleges the Licensed Software infringes any U.S. patent, copyright or trade secret, including any reasonable costs or legal fees thereby incurred by End-User. However, End-User shall give written notice of any Legal Action to Licensor within fifteen (15) days of End-User's first knowledge thereof, and any failure by End-User to give such notice to Licensor shall terminate Licensor's duty of indemnification hereunder. Licensor shall have sole and exclusive control of the defense of any Legal Action, including the choice of direction of any counsel. End-User shall not settle or compromise any Legal Action without the written consent of Licensor.
LIMITATION OF REMEDIES. IN NO EVENT WILL LICENSOR, OR ITS DIRECTORS, OFFICERS, EMPLOYEES, OR DISTRIBUTORS BE LIABLE TO THE END-USER FOR ANY CONSEQUENTIAL, INCIDENTAL, OR INDIRECT, SPECIAL OR EXEMPLARY (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA OR BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR ACCOMPANYING DOCUMENTATION, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSOR'S LIABILITY TO THE END-USER (IF ANY) FOR ACTUAL DIRECT DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO, AND IN NO EVENT SHALL EXCEED, THE AMOUNT ORIGINALLY PAID TO LICENSOR FOR THE LICENSE OF THE SOFTWARE.
Enhancements. From time to time Licensor may, at its sole discretion, advise the End-User of updates, upgrades, enhancements or other improvements or new releases of the Licensed Software (collectively, “Enhancements”), and may license the End-User to use such Enhancements upon payment of price as may be established by Licensor from time to time. All such enhancements to the License Software provided to the End-User shall also be governed by the terms of this Agreement.
General. This Agreement will be governed by and construed in accordance with the laws of the State of Oregon, and shall inure to the benefit of Licensor and End-User and their successors, assigns and legal representatives. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable to any extent under applicable law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this Agreement will remain in full force and effect. Any notices or other considerations to be sent to Licensor must be sent by U.S. certified mail to MPulse Maintenance Software, PO Box 22906, Eugene, OR 97402. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and all prior proposals, agreements, representations, statements and undertakings are hereby expressly canceled and superseded. This Agreement may not be changed or amended except by a written instrument executed by a duly authorized officer of Licensor.
ACKNOWLEDGMENT. BY ACCEPTING THIS SOFTWARE, THE END-USER ACKNOWLEDGES THAT THEY HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.