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Terms of Use Acceptance of Terms End User License Agreement *** IMPORTANT – PLEASE READ CAREFULLY BEFORE YOU DOWNLOAD OR USE THE SOFTWARE *** THIS DOCUMENT (THE “AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN HEXAGRID AND IT'S PARTNER'S AND YOU (THE “CUSTOMER”). THE SOFTWARE THAT YOU ARE DOWNLOADING AND/OR USING (THE “SOFTWARE”) IS THE EXCLUSIVE PROPERTY OF HEXAGRID AND IT'S PARTNER'S OR ITS LICENSORS AND IS PROTECTED BY UNITED STATES AND INTERNATIONAL INTELLECTUAL PROPERTY LAWS. THE SOFTWARE IS COPYRIGHTED AND LICENSED (NOT SOLD). HEXAGRID AND IT'S PARTNER'S IS ONLY WILLING TO LICENSE THE SOFTWARE SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND ANY USE OF THE SOFTWARE OUTSIDE THE SCOPE OF SUCH TERMS AND CONDITIONS IS PROHIBITED. BY CLICKING ON THE “ACCEPT” BUTTON AT THE END OF THIS DOCUMENT OR BY DOWNLOADING, INSTALLING, COPYING, EXECUTING OR OTHERWISE USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU ARE NOT WILLING TO BE BOUND BY THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD OR USE THE SOFTWARE. IF YOU ARE USING THE SOFTWARE IN YOUR CAPACITY AS EMPLOYEE OR AGENT OF A COMPANY OR ORGANIZATION, THEN ANY REFERENCES TO THE “CUSTOMER” IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY AND NOT TO YOU IN YOUR PERSONAL CAPACITY. YOU WARRANT THAT YOU ARE AUTHORIZED TO LEGALLY BIND THE CUSTOMER. IF YOU ARE NOT SO AUTHORIZED, THEN NEITHER YOU NOR THE CUSTOMER MAY USE THE SOFTWARE IN ANY MANNER WHATSOEVER. 1. LICENSE. 1.1 Subject to the terms and conditions of this Agreement, HexaGrid and it's Partner's hereby grants Customer a personal, non-exclusive, non-transferable, non-sublicensable license to execute the Software only as authorized in this Agreement. 1.2 Customer may use one copy of the Software activated by a license key on a single socket owned, leased, or otherwise controlled by you, at a single time. If you have multiple license keys for the Software, you may make and use as many copies of the Software as you have license keys. For purposes of this Agreement, “use” of the software means loading the Software into the temporary or permanent memory of a computer. Installation of the Software on a network server solely for distribution to other computers is not “use” of the Software, and is permitted, as long as you have a license key for each socket to which the Software is distributed. The Software may not be used on or distributed to a greater number of sockets than you have license keys. If you use or distribute the Software to multiple users, you must ensure that the number of sockets does not exceed the number of license keys you have obtained, or you will be in breach of this Agreement. 1.3 The Software will be available to you for use upon your receipt of one or more license keys. Upon acceptance of this Agreement, you may obtain one or more license keys by paying the requisite license fees. The license fees paid to you are paid in consideration of the license granted under this Agreement. HexaGrid and it's Partner's does not refund license fees. By accepting this Agreement you fully understand that once license fee payment is made to HexaGrid and it's Partner's you will have no recourse for receiving a refund of any part of the fees. 1.4 The Software includes certain components licensed from third parties (“Third Party Components”). Some of these Third Party Components are subject to an open source license, which is generally included with the source code for such Third Party Component (“Third Party License”). Your license rights with respect to individual Third Party Components are defined by the terms of any applicable Third Party License; nothing in this Agreement shall restrict, limit, or otherwise affect any rights or obligations you may have, or conditions to which you may be subject, under such Third Party License. Some of the Third Party Components (“GPL Components”) are licensed under the GNU General Public License as published by the Free Software Foundation (“GPL”). 1.5 By virtue of this Agreement, Customer acquires only the right to use the Software in accordance with this Section 1, and does not acquire any other rights or ownership interests. All rights, title and interest in and to the Software, including without limitation any improvements suggested by Customer or by Customer’s usage of the Software, shall at all times remain the property of HexaGrid and it's Partner's. Nothing in this Agreement shall be deemed to grant Customer, either directly or by implication, estoppel or otherwise, any license or rights other than those expressly granted in this Section 1. 2. UPDATES AND SUPPORT. This Agreement does not grant Customer rights to any improvements, modifications, enhancements or updates to the Software. Such updates and other support services may be separately purchased from HexaGrid and it's Partner's in accordance with the HexaGrid and it's Partner's Technical Support Policy. Use of such improvements, modifications, enhancements or updates to the Software shall be governed by the terms and conditions of such Policy. 3. CONFIDENTIAL INFORMATION. 3.1 By virtue of this Agreement, Customer may have access to some or all of the following information (collectively, the "Confidential Information"): (a) The Software, including the API therefor and the documentation associated therewith; (b) The results of benchmarks or other performance tests, run either by HexaGrid and it's Partner's or Customer; and (c) Any other information, in whatever form, received by Customer from HexaGrid and it's Partner's which is identified as being proprietary or confidential or which is not generally known or available to others in the trade. 3.2 Customer acknowledges that the Confidential Information constitutes a valuable asset of HexaGrid, Inc, Customer shall hold the Confidential Information in strict confidence and shall utilize it only in accordance with the terms of this Agreement. Except as expressly permitted by this Agreement, Customer shall limit the use of and access to the Confidential Information to its employees or agents whose use of or access to the Confidential Information is necessary for Customer's use of the Software in accordance with this Agreement. Customer shall, by all appropriate means, prevent unauthorized disclosure, publication, display or use of any Confidential Information. Upon expiration or termination of this Agreement, Customer will immediately destroy any copies of the Confidential Information in its possession or control, and will, if requested by HexaGrid and it's Partner's, certify in writing that all Confidential Information has been so destroyed. 3.3 Customer shall not remove any copyright, proprietary rights or confidentiality notice included in or affixed to any Confidential Information, and shall reproduce all such notices on any copies of Confidential Information which Customer shall make. 3.4 Customer agrees that the Software shall not be used for any purpose other than as expressly authorized by this Agreement. Customer shall not prepare any derivative works of the Software, or develop a competing product or service based upon the Software. Customer shall not disassemble, decompile or otherwise reverse engineer the Software or any portion thereof. If Customer requires information necessary to achieve interoperability between the Software and other programs, please contact HexaGrid and it's Partner's. 3.5 The Software will contact HexaGrid and it's Partner's when you connect to the Internet so that HexaGrid and it's Partner's can confirm which version of the Software you are using and advise you if there is a more current version available. Your Internet Protocol (IP) address is logged by HexaGrid and it's Partner's, but this address will only be used to generate aggregate statistics. 4. WARRANTY. 4.1 HexaGrid and it's Partner's warrants to Customer that, for ninety (90) days from the effective date of this Agreement, the Software will perform substantially in accordance with the applicable user documentation. As HexaGrid and it's Partner's’s sole obligation for any breach of the warranty contained in this Section 4.1, and as Customer’s exclusive remedy, HexaGrid and it's Partner's will, at HexaGrid and it's Partner's’s option, (a) use commercially reasonable efforts to remedy any non-conformance of the Software with the warranty set forth herein, or (b) return the license fee paid by Customer for the applicable copy of the Software and terminate the license granted for such copy. 4.2 THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 4 ARE THE ONLY WARRANTIES MADE BY HEXAGRID AND IT'S PARTNER'S WITH RESPECT TO THE SOFTWARE AND ANY SERVICES PROVIDED BY HEXAGRID AND IT'S PARTNER'S, AND ARE IN LIEU OF, AND HEXAGRID AND IT'S PARTNER'S HEREBY DISCLAIMS, ANY AND ALL OTHER WARRANTIES, CONDITIONS OR REPRESENTATIONS (WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN), INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, INFORMATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE (WHETHER OR NOT HEXAGRID AND IT'S PARTNER'S KNOWS OR HAS REASON TO KNOW OF SUCH PURPOSE), WHETHER ARISING BY LAW, CUSTOM, USAGE IN THE TRADE OR BY COURSE OF DEALING. HEXAGRID AND IT'S PARTNER'S WARRANTY SHALL NOT BE ENLARGED, DIMINISHED OR AFFECTED BY HEXAGRID AND IT'S PARTNER'S PROVIDING SERVICES IN CONNECTION WITH THE SOFTWARE. IN ADDITION, HEXAGRID AND IT'S PARTNER'S EXPRESSLY DISCLAIMS ANY WARRANTIES TO ANY PERSON OTHER THAN CUSTOMER. 5. INDEMNITY. Customer shall indemnify and hold harmless HexaGrid and it's Partner's and its officers, directors, employees, agents, representatives, subsidiaries and affiliates, from and against any and all claims, demands, damages, liabilities, losses and expenses (including without limitation all attorneys fees, costs and expenses) of any kind whatsoever, arising directly or indirectly out of any representation, action or omission by Customer that is inconsistent with the terms of this Agreement. 6. LIMITATION OF LIABILITY. 6.1 IN NO EVENT SHALL HEXAGRID AND IT'S PARTNER'S BE LIABLE TO CUSTOMER FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR FOR SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES OF ANY KIND, WHETHER BASED ON CONTRACT, TORT (INCLUDING WITHOUT LIMITATION, NEGLIGENCE), WARRANTY, GUARANTEE OR ANY OTHER LEGAL OR EQUITABLE GROUNDS, EVEN IF HEXAGRID AND IT'S PARTNER'S HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 6.3 No action arising in connection with the Software, any of the Services provided under this Agreement, or this Agreement may be brought by Customer more than one year after the date on which the claim giving rise to such action first occurred. 6.4 Portions of the Software may be derived from or incorporate third-party software and no such third party warrants the Software, assumes any liability in connection with the Software or undertakes to furnish any support or information relating to the Software. All such third parties are intended third-party beneficiaries of this Agreement. 6.5 Customer acknowledges that HexaGrid and it's Partner's has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties. The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose. 7. TERMINATION. 7.1 This Agreement is effective upon your acceptance of the Agreement, or upon your downloading, accessing, and using the Software, even if you have not expressly accepted this Agreement. This Agreement shall continue in effect until terminated. 7.2 Without prejudice to any other rights, this Agreement will terminate automatically if you fail to comply with any of the limitations or other requirements described herein. You may terminate this Agreement any time by: (1) providing written notice of your decision to terminate the Agreement to HexaGrid and it's Partner's. HexaGrid and it's Partner's may terminate this Agreement if you breach any provision of the Agreement by giving you written notice of your breach and HexaGrid and it's Partner's’s decision to terminate the Agreement. 7.3 Sections 3, 4.2, 5, 6, 7 and 8 of this Agreement shall survive termination or expiration of this Agreement. 8. GENERAL. 8.1 Customer shall comply with all applicable export laws and regulations. 8.2 HexaGrid and it's Partner's reserves the right to use technical means to verify that Customer’s use of the Software comports with the terms of this Agreement and to terminate any unauthorized use of the Software 8.3 If Customer is an agency of the United States federal government (the “Government”), or a prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other arrangement with the Government, Customer hereby acknowledges, in accordance with Section 12.212 of the Federal Acquisition Regulations ("FAR"), that its use, duplication and disclosure of the Software are governed by, and subject to, this Agreement. If, for any reason, FAR §12.212 is not applicable, Customer hereby acknowledges that its use, duplication and disclosure of the Software are subject to the Commercial Computer Software Restricted Rights clause, FAR §52.227.19(c). Contractor/manufacturer is HexaGrid and it's Partner's, Inc., 900 Chelmsford St., Lowell, MA 01851. 8.4 The parties to this Agreement are independent parties and nothing herein shall be construed as creating an employment relationship between the parties. Neither party is an agent or representative of the other party and neither party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability, or to otherwise bind, the other party. The Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the parties or to impose any liability attributable to such a relationship upon either party. 8.5 This Agreement shall inure to the benefit of and be binding upon the parties hereto, their successors and permitted assigns. Customer may not assign this Agreement without the prior written consent of HexaGrid and it's Partner's. HexaGrid and it's Partner's may assign any of its rights or delegate any of its duties under this Agreement to any person or entity. 8.6 HexaGrid and it's Partner's shall not be liable for any delays in performance of or failure to perform any of its obligations hereunder due to causes beyond its reasonable control, including, without limitation, fire, strike, war, riots, acts of any civil or military authority, acts of God, judicial action, unavailability or shortages of labor, materials or equipment, failure or delays in delivery of vendors and suppliers or delays in transportation. 8.7 The laws of the State of Missouri shall govern this Agreement without giving effect to applicable conflict of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed and shall not apply. The parties agree that the jurisdiction and venue of any action with respect to this Agreement shall be in a court of competent subject matter jurisdiction located in the State of Missouri, and each of the parties hereby agrees to submit itself to the exclusive jurisdiction and venue of such courts for the purpose of any such action. 8.8 The covenants and agreements of Customer in Sections 1 and 3 of this Agreement are of a special and unique character, and Customer acknowledges that money damages alone will not reasonably or adequately compensate HexaGrid and it's Partner's for any breach of such covenants and agreements. Therefore, Customer expressly agrees that in the event of the breach or threatened breach of any such covenants or agreements, in addition to other rights or remedies which HexaGrid and it's Partner's may have, at law, in equity, or otherwise, HexaGrid and it's Partner's shall be entitled, without posting a bond or other security, to injunctive or other equitable relief compelling specific performance of, and other compliance with, the terms of such Sections. 8.9 Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement 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. 8.10 No waiver of any provision of this Agreement, or any rights or obligations of either party under this Agreement, shall be effective, except pursuant to a written instrument signed by the party or parties waiving compliance, and any such waiver shall be effective only in the specific instance and for the specific purpose stated in such writing. The failure of either party to require the performance of any term of this Agreement or the waiver of either party of any breach under this Agreement shall not operate or be construed as a waiver of any other provision hereof, nor shall it be construed as a waiver of any subsequent breach by the other party hereto. The remedies herein reserved shall be cumulative and in addition to any other remedies in law or equity. 8.11 The Agreement constitutes the entire understanding and agreement of the parties with respect to its subject matter, and supersedes any and all prior or contemporaneous representations, understandings and agreements, whether oral or written, between the parties relating to the subject matter of this Agreement, all of which are merged in this Agreement; provided, however, that this Agreement shall not supersede the terms of any signed license agreement between Customer and HexaGrid and it's Partner's relating to the Software (a "Signed Agreement"). In case of any discrepancy between this Agreement and a Signed Agreement, the terms of the Signed Agreement shall prevail. *** YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. *** |
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