AGTEK Software License Agreement

Licensor wants to license Software Products to Licensee.
Licensee wants to obtain a license to use the Software Products for its internal business purposes, subject to the terms and conditions of this agreement.
Therefore, the parties agree as follows

Definitions

“Documentation” means whether in electronic or printed form, user’s guides, installation guides, reference guides, administrator’s guides, configuration guides and help guides either published online or delivered with a particular Software Product supplied by Licensor to Licensee. Not all of the previous types of Documentation are delivered with each Software Product.
“Licensee” means the Person to whom this license has been granted by Licensor.
“Licensor” or “AGTEK” means AGTEK Development Company, Inc.
“Person” means an individual, partnership, limited partnership, firm, body corporate, government, government body, agency, or instrumentality or unincorporated venture.
“Software Product” means computer software and all of the contents of the files, disks(s), CD-ROM(s) or other media with which this agreement is provided, including any templates, data, printed materials, and “online” or electronic Documentation, all copies, and any upgrades, modified versions, and updates (which will be provided if the Software Product is covered under a current Software Maintenance Support Agreement) of the Software Product.

License Grant

This agreement grants Licensee a single non-exclusive and non-assignable license to load and use the Software Product on one or more computers operated by Licensee, provided that use by the Licensee shall not be on more than one computer at a time. Licensee agrees not to rent, loan, or otherwise temporarily transfer the Software Product for use on computers not operated by Licensee.
Licensee may copy the Software Product into any machine-readable or printed form solely for backup purposes in support of Licensee’s licensed use of the Software Product.

Transfer

Licensee may transfer the Software Product and license within Licensee’s Company (intra- company transfer) as set forth in AGTEK’s Software Transfer Policy (applicable for all Licensors under this agreement). A copy of the AGTEK Software Transfer Policy is available upon request. If Licensee does transfer a seat or seats of the Software Product, Licensee must at the same time either transfer all copies, modifications, or merged portions of the seat(s) being transferred, in whatever form, to the same party, or Licensee must destroy those seats not transferred. “Company” includes Licensee’s own company or a company or organization in which the transferring entity owns a fifty percent (50%) or greater interest.
Licensee may not transfer the Software Product and license to another company or entity (inter-company transfer). If Licensee does transfer possession of any copy of the Software Product to another party except as expressly provided in this agreement, the license is automatically terminated.

Licensee Obligations

Licensee must ensure that all Software Products are installed and always remain on computers that are utilizing the Software Products for the purpose of Licensee’s business purposes.
Licensee must reproduce and include the copyright notice on any copy, modification, or portion of the Software Product merged into another software program.

License Restrictions

Licensee may not reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, underlying user interface techniques or algorithms of the Software Product by any means whatsoever, directly or indirectly, or disclose any of the foregoing.
Licensee may not use, copy, modify, sell, or transfer the Software Product, or any copy, in whole or in part, except as expressly provided for in this agreement.
Licensee may not circumvent the licensing, keys, files, and/or policy.
Licensee may not offer the Software Product for use in a service bureau, or time-sharing environment or fee for service or access, e- commerce or online basis.

Additional Information

If the Software Product is purchased as an upgrade or provided as an update to a previous version of licensed software, the Software Product may be used only to replace the previous version, and no additional license is granted. The Software Product and the previous version may not be separately used or transferred to a third party.
For the continued use of some Software Products, it may be necessary for Licensee to reregister and obtain new license keys from time to time.

Data Protection

The following data is collected in the Software Products for the following purposes:
Unauthorized use of the Software Products.
Licensor takes measures to stop unauthorized use of Software Products and/or the licensing mechanism thereof. The Software Product may include security mechanisms that are able to detect installations and/or use of unauthorized copies of Licensor’s products. Data relating to such unauthorized use of the Software Products may be transmitted to Licensor. The data collected in this section may contain limited personal data.

Software Analytics

Licensor collects software analytics for measurement, analysis and reporting for the purposes of understanding and optimizing the software.

Usage Reports

As applicable, to facilitate billing and usage purposes (particularly with leased Software Products), Licensor collects data for the purpose of assembling usage reports and/or where the Software Product supports the tracking of workflows, the Software Product itself may retain personal data in order to deliver the functionality in the Software Product.
Other than necessary for enforcement of this license under 8(a)(1) or as required in order to deliver the functionality in the Software Product pursuant to 8(a)(3), no personal data is collected or transmitted under this section. By using the Software Products, Licensee acknowledges and consents to collection of all data under this Section as well as the transmission to Licensor, of the data described in (a), (b) and (c) above. Licensee further warrants that the necessary mechanisms are in place to obtain all necessary disclosures and consents from any employees or third parties accessing the Software Products and that Licensee has obtained such consents prior to allowing employees or third parties to use the Software Products.

Audit

Licensor has the right, during Licensee’s normal business hours, to audit the Licensee’s use of the licensed Software Product and Licensee’s compliance with the provisions of this agreement. Licensor must give Licensee thirty (30) days advance written notice prior to an audit.
The right of audit shall be limited to once per calendar year. Prior to the start of an audit, Licensor’s personnel, or nonparty personnel under the direction of Licensor, will sign a non-disclosure agreement to be provided by Licensee. During the audit, such personnel, or nonparty personnel, if applicable, will be provided reasonable access to both Licensee’s records and personnel. The cost of the audit shall be paid by Licensor unless the results of the audit indicate that Licensee has underpaid fees to Licensor, in which case, the Licensee agrees to promptly pay Licensor such fees at the price previously agreed to for such licensed Software Product and further agrees to bear all costs associated with the audit.

Documentation

Licensor provides standard online Documentation for Software Products. Licensee has the right to print online Documentation as needed for Licensee’s internal purposes.

Term

The license is effective until terminated. Licensee may terminate this license at any time by destroying the Software Product together with all copies, in any form. The license will also terminate upon conditions set forth elsewhere in this agreement or upon (i) Licensee’s failure to comply with any term or condition of this agreement, (ii) any unauthorized transfer of possession of the licensed Software Product or any copy, derivative incorporation thereof, (iii) circumvention of the Software Product protection device, if any exists, or this agreement, or (iv) if Licensee fails to pay the appropriate license fee(s). Upon termination of this agreement, Licensee agrees to return to Licensor, or, at Licensor’s request, destroy the Software Product together with all copies, in any form.

Disclaimer of Warranties
THE SOFTWARE PRODUCT AND DOCUMENTATION ARE PROVIDED “AS IS” AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. LICENSOR MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE PRODUCT AND DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET LICENSEE’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

Limitation of Damages
IN NO EVENT WILL LICENSOR BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
IN NO EVENT WILL LICENSOR’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO LICENSOR UNDER THIS AGREEMENT IN YEAR PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

Export
The Software Product may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. Licensee shall not, directly or indirectly, export, re-export, or release the Software Product to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.

Responsibility for Usage
Licensee acknowledges and agrees that Licensee is responsible to ensure that any Persons allowed by Licensee to access the Software Products or Documentation shall be made aware of all appropriate provisions of this agreement and software license contained in this agreement, including, but not limited to, those provisions regarding ownership; nondisclosure; confidentiality; licensing and limitations of usage; disclaimer; limitation of damages; compliance and export control and governing law. Licensee agrees to commit its best efforts to cause any Persons accessing the Software Products or Documentation to prevent any violation of either the licensed rights granted in this agreement or Licensor’s or relevant third party’s applicable copyrights, trade secrets, or other proprietary rights and to ensure compliance with the provisions of this agreement. Licensee assumes liability for any such violation by Persons allowed by Licensee to access the Software Products or Documentation as if such violation resulted directly from the action, negligence, or misconduct of Licensee.

Restricted Rights for Government Use
If the Software Product is acquired directly or indirectly on behalf of a unit or agency of the United States Government, this provision applies. For civilian agencies: The Software Product was developed at private expense and is “restricted computer software” submitted with restricted rights in accordance with subparagraphs (a) through (d) of the Commercial Computer Software – Restricted Rights clause at 52.227-19 of the Federal Acquisition Regulations (“FAR”) and its successors and is unpublished and all rights are reserved under the copyright laws of the United States. For units of the Department of Defense (“DoD”): The Software Product is “commercial computer software” as defined at DFARS 252.227-7014 and the rights of the Government are as specified at DFARS 227.7202-3.

Assignment
Any attempt to sublicense, assign, or transfer the license or the Software Product except as expressly provided in this agreement is void.

Severability
Whenever possible, each provision of this agreement and each related document shall be interpreted in such a manner as to be effective and valid under applicable law. However, if any provision of this agreement or any related document shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this agreement or such related document.

Dispute Resolution
For any controversy or claim that may arise out of or in relation to this agreement or with respect to breach thereof, the parties agree to initially seek to solve the matter amicably through discussions between the upper management of Licensor and Licensee. Should the parties fail to resolve such controversy, claim, or breach by amicable arrangement and/or compromise within thirty (30) days of the dispute being brought to the attention of parties’ upper management, then the parties may, at their sole discretion, seek resolution through non-binding mediation. If either party is not satisfied with the result of the non- binding mediation, such party may seek legal recourse through the courts in the jurisdiction chosen in this agreement. No party may commence litigation in relation to any dispute arising out of this agreement until it has attempted to settle the dispute by negotiation and mediation, and the mediation has terminated, or the other party refused to participate in the mediation. Any time period stated in this section may be reduced for the sole purpose of avoiding the expiration of the statute of limitations for the event made the basis of the controversy.

Governing Law and Jurisdiction
This agreement will be governed by the laws of the State of California. Exclusive Jurisdiction and venue for any dispute arising from this agreement or relating to the Software Product shall be in the United States District Court for the Northern District of California, or the state courts for Alameda County, California. The parties waive the application of the United Nations Commission on International Trade Law and United Nations Convention on Contracts for the International Sale of Goods as to the interpretation or enforcement of this agreement.

Non-disclosure
Licensee agrees that it will hold all parts of the Software Product and Documentation in confidence and will not sell, transfer, loan or make disclosure of the Software Product to any of its partners and third parties, unless specifically provided for in this agreement.

Force Majeure
Neither party shall be responsible for a delay in or failure to perform if caused by: acts of God or the public enemy; compliance with any order, rule, regulation, decree, or request of any governmental authority, agency, or person purporting to act therefore; acts of war, public disorder, rebellion, terrorism, or sabotage; floods, hurricanes, or other storms; strikes or labor disputes; or any other cause, whether or not of the class or kind specifically named or referred to in this agreement, not within the reasonable control of the party affected. The party who is prevented from performing by force majeure shall remedy such cause as soon as reasonably possible.

Applicability
This agreement (including as it may be incorporated into a purchase or master agreement) constitute the entire agreement and understanding between the parties with respect to the software license restrictions.

Support Services
Maintenance of licensed Software Products may be provided at a separate charge and in accordance with AGTEK’s standard maintenance options and the then current Software Maintenance Support Agreement, a copy of which is available upon request.

Open Source Software
Some products may contain open source software, which is licensed pursuant to the terms of the applicable open source license agreement. Nothing contained in this agreement shall restrict any rights provided specifically for any open source software by the open source licensor; however, any rights that are broader than those granted in this agreement shall be applicable solely to the open source software component. Additional open source license information may be found in the About Box or Readme Files of the applicable Software Product.
ANY OPEN SOURCE SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL LICENSOR, THE AUTHORS OR COPYRIGHT HOLDERS OF THE OPEN SOURCE SOFTWARE BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE OPEN SOURCE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE OPEN SOURCE SOFTWARE.
NOTWITHSTANDING THE LIMITATION OF DAMAGES STATED ABOVE FOR SOFTWARE PRODUCTS, IN NO EVENT WILL LICENSOR, ANY COPYRIGHT HOLDER, OR ANY OTHER PARTY WHO MODIFIES AND/OR CONVEYS THE OPEN SOURCE SOFTWARE AS PERMITTED UNDER ITS LICENSE, BE LIABLE TO LICENSEE FOR DAMAGES, INCLUDING ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE OPEN SOURCE SOFTWARE (INCLUDING BUT NOT LIMITED TO LOSS OF DATA OR DATA BEING RENDERED INACCURATE OR LOSSES SUSTAINED BY LICENSEE OR THIRD PARTIES OR A FAILURE OF THE OPEN SOURCE SOFTWARE TO OPERATE WITH ANY OTHER PROGRAMS), EVEN IF LICENSOR, SUCH HOLDER OR OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

If the disclaimer of warranty and limitation of liability provided above for the open source software cannot be given local legal effect according to their terms, reviewing courts shall apply local law that most closely approximates an absolute waiver of all civil liability in connection with the open source software, unless a warranty or assumption of liability accompanies a copy of the open source software in return for a fee.
Nothing in the immediately foregoing clauses affects any stated warranty in this agreement with regard to the Software Product(s) as a whole.