SOFTWARE LICENSE AGREEMENT
JKI TOOLKITS FOR LabVIEW
JAMES KRING, INC.
NOTICE TO CUSTOMER: PLEASE READ THIS CONTRACT CAREFULLY. BY DOWNLOADING, INSTALLING OR USING ALL OR ANY PORTION OF THE JKI PRODUCT, INCLUDING ANY UPDATE THERETO, YOU AKNOWLEDGE AND AGREE THAT 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. YOU FURTHER AGREE THAT 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 TO THESE TERMS, DO NOT INSTALL, DOWNLOAD NOR USE THIS SOFTWARE.
This Software License Agreement (the ''Agreement'') is made by and between James Kring, Inc. and you as the customer. In this Agreement, you, as an individual as well as any legal entity that obtained the Software or on whose behalf it is used, will be referred to as the ''Customer'', ''you'' and ''your''; James Kring, Inc. will be referred to as ''JKI'' or as ''we'', ''us'', and ''our''.
WHEREAS, JKI has developed and is willing to supply the computer software, documentation, and related materials that you are downloading and which form all or a part of the JKI Products known as the ''JKI Toolkits for LabVIEW'' (''the JKI Product'') subject to the terms and conditions stated herein;
WHEREAS, you desire to have access to the JKI Product, and you are willing to use the JKI Product in accordance with the terms of this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants hereinafter set forth, you agree as follows:
1. License to the JKI Product; License Restrictions.
1.1 Scope of License. JKI grants to you a personal, worldwide, non-exclusive, non-transferable (except as permitted under Section 13(a)), perpetual (except as revocable under Section 7) license to use the JKI Product that you obtain under this Agreement, in accordance with the documentation and instructions supplied by JKI, and as follows: (a) for your own internal use, development, testing and evaluation purposes; and/or (b) to copy, modify, create derivative works of, and distribute the JKI Product, through multiple tiers of licensees, only in executable form and only as part of or together with a software or other product developed by you or on your behalf (the ''Customer Product''). These grants of license are contingent upon your payment of the associated license fee for the JKI Product (the ''License Fee'') and your compliance with the terms of this Agreement. For purposes of this Agreement and as reasonably applicable, all modifications, adjustments, enhancements, bug fixes, error corrections or other updates (including any major or minor revisions, which are the ''Updates'') made by or on behalf of JKI to the JKI Product will become part of the JKI Product.
1.2 License Restrictions. YOU ARE NOT AUTHORIZED TO DISTRIBUTE THE JKI PRODUCT YOU OBTAIN HEREUNDER ON A STANDALONE BASIS (I.E., FOR USE OR DISTRIBUTION INDEPENDENT OF THE CUSTOMER PRODUCT). THE JKI PRODUCT SHALL BE INCORPORATED INTO THE CUSTOMER PRODUCT SUCH THAT JKI TRADE SECRET AND/OR SOURCE CODE INFORMATION IS NOT NOR IS LIKELY TO BE EXPOSED TO SUBLICENSEES NOR ANY THIRD PARTY; FOR EXAMPLE, THE CUSTOMER PRODUCT SHALL NOT BE A SOFTWARE LIBRARY OR ''THIN WRAPPER'' ON TOP OF THE JKI PRODUCT THAT EXPOSES THE FUNCTIONALITY OR SOURCE CODE OF THE JKI PRODUCT TO ANY THIRD PARTY. YOU WILL NOT MODIFY, DISTRIBUTE OR COMBINE THE JKI PRODUCT WITH ANY OTHER SOFTWARE SO AS TO (I) CREATE, OR PURPORT TO CREATE, OBLIGATIONS, LIMITATIONS, OR RESTRICTIONS ON THE PART OF JKI; OR (II) REQUIRE OR CONDITION THE USE OR DISTRIBUTION OF SUCH SOFTWARE OR PRODUCT ON, THE DISCLOSURE, LICENSING, DELIVERY OR DISTRIBUTION OF ANY SOURCE CODE FOR ALL OR ANY PORTION OF THE JKI PRODUCT.
YOU AGREE THAT YOU WILL IMPOSE SIMILAR RESTRICTIONS TO THOSE CONTAINED IN THIS AGREEMENT ON ANY RESELLER, SUBLICENSEE, OR OTHER THIRD PARTY TO WHOM YOU REDISTRIBUTE, SUBLICENSE OR OTHERWISE MAKE AVAILABLE THE JKI PRODUCT.
1.3 Ownership; Proprietary Rights. You acknowledge that the JKI Product, any Updates thereto and their structure and organization are owned by JKI and its suppliers. Accordingly, and except as expressly allowed under this Agreement, you agree (a) not to remove, alter or obscure in any way any proprietary rights notices (including copyright notices and messages indicating the code is JKI property) of JKI or its suppliers on or within the copies of the JKI Product furnished to you by JKI, and (b) that the Customer Product will include in its About Box or other applicable written documentation the notice that the Customer Product ''includes the JKI Toolkits for LabVIEW, © (year) JKI. All rights reserved.''
The JKI Product is licensed, not sold, to you and any and all rights not specifically granted to you by this Agreement, remain in JKI and its suppliers. The JKI Product is protected by copyright, trademark, trade secret and other proprietary rights of JKI, and you do not acquire any rights, express or implied, in the JKI Product, other than those specified in this Agreement. No title to or ownership of the JKI Product, nor any copyright, trademark, trade secret or other proprietary rights in the JKI Product, are transferred to you under this Agreement. All modifications, adjustments, enhancements, bug fixes, error corrections or other updates (including any ''Updates'') to the JKI Product will become part of the JKI Product and will remain the exclusive property of JKI.
2. Use of Third Party Software
JKI will endeavor to provide you with a list of the Third Party Software and notice of the associated Third Party Software license(s) and terms as of your receipt of the JKI Product; for this information, please refer to the JKI Product documentation available at http://jkisoft.com/manuals/. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE AND DISTRIBUTION OF ANY SUCH THIRD PARTY SOFTWARE IS SUBJECT TO THE TERMS OF THE APPLICABLE THIRD PARTY SOFTWARE LICENSE(S), AND THAT YOU ARE RESPONSIBLE FOR YOUR COMPLIANCE WITH THE TERMS OF SUCH THIRD PARTY SOFTWARE LICENSE(S). YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, PRIOR TO USING THE THIRD PARTY SOFTWARE FOR ANY OTHER PURPOSE, AND IN ANY CASE BEFORE COPYING, MODIFYING, OR DISTRIBUTING ANY THIRD PARTY SOFTWARE, YOU WILL CONFIRM THAT YOU HAVE ALL NECESSARY RIGHTS AND PERMISSIONS TO DO SO FROM THE APPLICABLE THIRD PARTY LICENSOR (THE ''LICENSOR''), WHICH CONFIRMATION MAY INCLUDE OBTAINING A SEPARATE LICENSE FROM THE LICENSOR EXPRESSLY AUTHORIZING YOU TO DO SO.
3. You Will Not Use nor Disclose Our Confidential Information.
Confidential Information hereunder includes, but is not limited to: JKI Product specifications, JKI Product source code, trade secrets, know-how, inventions (whether or not patentable), techniques, processes, programs, ideas, algorithms, schematics, testing procedures, software design and architecture, internal documentation, design and function specifications, product requirements, analysis and performance information, benchmarks, software documents, and other non-public technical, business, product, marketing and financial information, plans and data of JKI (the ''Confidential Information''). You agree that all Confidential Information is the confidential property of JKI and, except with JKI's prior written consent or as required (and then only to the extent required) by law, you agree to use any Confidential Information you obtain only as permitted by this Agreement, and not to disclose any Confidential Information to third parties. Notwithstanding the foregoing, you may disclose Confidential Information only to those of your employees and consultants as is necessary for the use expressly and unambiguously licensed hereunder, and only after such employees and contractors have agreed in writing to be bound by the obligations of nondisclosure at least as restrictive as those contained in this Agreement. Your nondisclosure obligations hereunder shall not apply to information you can document: (i) is generally available to the public other than through breach of this Agreement; (ii) is rightfully disclosed to you by a third party without any associated obligation of confidentiality; or (iii) is independently developed by you without use of or reference to any JKI Confidential Information. Because of the unique and proprietary nature of the Confidential Information, you understand and agree that JKI's remedies at law for your breach of your obligations under this Section may be inadequate and that JKI shall be entitled to seek equitable relief (including without limitation provisional and permanent injunctive relief and specific performance). Nothing stated herein shall limit any other remedies provided under this Agreement or available to JKI at law. Upon expiration or termination of this Agreement for any reason, you will return or destroy all copies of all JKI Confidential Information in your possession or control.
4. Communications and Feedback.
4.1 Feedback. In the course of your use of the JKI Product and in connection with any related support or other services that may be offered to you by JKI (the ''Services), you may provide JKI with comments and feedback regarding your use and evaluation of the JKI Product, including any defects found therein and any recommendations for changes or modifications to the JKI Product (the ''Feedback''). Such Feedback may include, but will not be limited to, any communications from you to JKI, including (i) any messages, content, materials or other communications posted to the http://jkisoft.com, http://jameskring.com or any other website(s) owned or maintained by JKI; and/or (ii) relating to your use and evaluation of the JKI Product. Feedback may include communications regarding: (1) which portions of the JKI Product have been used, (2) the nature of that use, (3) the extent or amount of use, (4) any errors or difficulties discovered and (5) the characteristic conditions and symptoms of the errors and difficulties. You acknowledge and agree that (i) JKI may use, in any manner and for any purpose, the information gained as a result of your use and evaluation of the JKI Product, including but not limited to the Feedback; (ii) any corrections, modifications, upgrades or improvements to the JKI Product based on such Feedback or other input shall be owned and retained entirely by JKI; and (iii) JKI shall have no obligation to correct, upgrade, modify, or otherwise support or maintain the JKI Product pursuant to this license.
4.2 Assignment. If you are ever held or deemed to hold any right, title or interest (including, without limitation, any intellectual property rights, moral rights or trade secret rights) in or to: (a) the JKI Product (including any changes, modifications or corrections thereto) and/or (b) the Feedback, whether by virtue of your provision of Feedback to JKI or otherwise, then you hereby irrevocably assign to JKI all such right, title and interest. Such assignment includes all rights in or to any invention, work of authorship, mask work, idea, information, feedback or know-how (whether or not patentable) that is conceived, learned or reduced to practice in the course of performance under this Agreement and any patent rights, copyrights (including moral rights; provided that any non-assignable moral rights are waived to the extent permitted by law), trade secret rights, mask work rights, sui generis database rights and all other intellectual and industrial property rights of any sort with respect thereto that in any way relate to or constitute the Feedback or the JKI Product. In the event that any such rights (including, by way of example and without limitation, ''moral rights,'' or other similar rights) cannot be assigned, you hereby agree to waive enforcement worldwide of such rights against JKI and hereby grant to JKI an exclusive, fully paid, worldwide, irrevocable, perpetual license, with right to sublicense through multiple tiers of sub-licensees, to use, reproduce, create derivative works of, publicly perform, publicly display, transfer, assign and distribute in any medium or format, whether now known or later developed, any and all property that is subject to such rights. You agree to take any action reasonably requested by JKI to evidence, perfect, obtain, maintain, enforce or defend the foregoing, including executing any and all documents necessary to implement and confirm the letter and intent of this Agreement.
5. NO WARRANTY OR PROMISES; HIGH RISK ACTIVITIES
5.1 NO WARRANTY OR PROMISES. Your right of termination and refund described in Section 7 constitutes your sole and exclusive remedy with respect to any dissatisfaction with the JKI Product. THE JKI PRODUCT, ANY UPDATES THERETO, AND ALL THIRD PARTY SOFTWARE IS DISTRIBUTED BY JKI ON AN ''AS IS'' BASIS, WITHOUT ANY WARRANTY PROVIDED BY OR ON BEHALF OF JKI. PLEASE REFER TO THE APPLICABLE THIRD PARTY SOFTWARE LICENSE FOR ANY WARRANTY THAT MAY BE OFFERED OR DISCLAIMED BY THE LICENSOR OF SUCH SOFTWARE. WE MAKE NO OTHER WARRANTIES OR REPRESENTATIONS AS TO ANY SOFTWARE PROVIDED HEREUNDER, AND WE 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 JKI PRODUCT OR ANY THIRD PARTY SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
5.2 HIGH RISK ACTIVITIES. THE JKI PRODUCT IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE IN CONNECTION WITH HAZARDOUS OR ''HIGH RISK'' ACTIVITIES OR WITH APPLICATIONS THAT REQUIRE FAIL-SAFE PERFORMANCE (TOGETHER, ''HIGH RISK'' ACTIVITIES). HIGH RISK ACTIVITIES INCLUDE BUT ARE NOT LIMITED TO ACTIVITIES OR APPLICATIONS RELATING TO THE OPERATION OF NUCLEAR FACILITIES, AIR TRAFFIC CONTROL, AEROSPACE OPERATIONS, OR DIRECT LIFE SUPPORT MACHINES, AND ANY OTHER ACTIVITIES OR APPLICATIONS IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. ACCORDINGLY, WE SPECIFICALLY DISCLAIM ANY AND ALL EXPRESS OR IMPLIED WARRANTIES OF FITNESS FOR HIGH RISK ACTIVITIES, AND YOU AGREE THAT JKI WILL HAVE NO LIABILITY OR RESPONSIBILITY RELATING TO YOUR USE OR OPERATION OF THE SOFTWARE IN CONNECTION WITH HIGH RISK ACTIVITIES.
6. INDEMNIFICATION BY YOU. YOU AGREE TO, AT YOUR EXPENSE, INDEMNIFY AND HOLD HARMLESS JKI FROM AND AGAINST ANY AND ALL LIABILITIES, LOSSES, ACTIONS, DAMAGES, OR CLAIMS (INCLUDING ALL REASONABLE EXPENSES, COSTS, AND ATTORNEYS FEES) THAT RESULT FROM YOUR DIRECT OR INDIRECT MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS CONTAINED IN ANY SOFTWARE; YOUR VIOLATION OF ANY APPLICABLE LAW; OR YOUR USE OF THE SOFTWARE IN CONNECTION WITH ANY HIGH RISK ACTIVITIES.
7. Termination. You may terminate your license(s) to the JKI Product within thirty (30) days of your receipt of a purchased license to the JKI Product for any reason or no reason and receive a refund for the License Fee you have paid with respect to such purchased license (a ''Customer Termination''). This Agreement may be terminated by JKI immediately upon notice of any breach by you of the provisions of this Agreement. Upon any termination, all licenses granted hereunder shall terminate and you shall immediately cease all use and redistribution of the JKI Product. Upon any termination, you shall immediately destroy all copies of the JKI Product, together with any and all documentation regarding the JKI Product, any other Confidential Information and any and all copies and extracts of the foregoing. All other terms of this Agreement shall remain in effect following termination.
8. OUR LIABILITY IS LIMITED. BY DOWNLOADING, INSTALLING AND/OR USING THE JKI PRODUCT, YOU AGREE THAT, DESPITE ANY OTHER PROVISION OF THIS AGREEMENT OR OTHERWISE, JKI 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 LICENSE 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, LOST DATA 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, OR RELATING TO THE SOFTWARE SUPPLIED HEREUNDER, MUST BE BROUGHT WITHIN ONE YEAR OF THE DATE OF TERMINATION OF THIS AGREEMENT.
9. Payment. You agree to pay us the License Fee(s) for the JKI Products you are purchasing concurrently, at the time you accept the terms of this Agreement, or as JKI may otherwise agree in writing. All payments are non-cancelable and non-refundable, except for your right of refund upon Customer Termination as described in Section 7. 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 software in countries other than the United States. Any such taxes, duties, or fees shall be either added to our invoice or paid directly by you. You will not, however, be liable for taxes imposed on us based on our income.
10. Publicity. Except as provided under Section 4 hereof, 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.
11. You Will Comply with Export Regulations and other Applicable Laws; Transfer of Personal Data. On your own behalf and on behalf of your sublicensees and any third parties to whom you redistribute or make available the JKI Product: You agree that the 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 all or any portion of the Software is identified as an export controlled item 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. If you reside in any part of the European Union or any other jurisdiction in which the transfer of your personal data may apply, you expressly consent to the transfer of any personal or other data identifying or relating to you or the entity on whose behalf you are accepting this Agreement.
You agree that you will impose similar restrictions to those contained in this Agreement on any reseller, sublicensee, or other third party to whom you redistribute, sublicense or otherwise make available the JKI Product.
12. U.S. Government Users. The JKI Product is a ''Commercial Item,'' 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 JKI Product 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.
(a) You may not assign, transfer, or sublicense any obligations or benefit under this Agreement without the written consent of JKI. This restriction shall not apply to any redistribution of software as provided under a separate Third Party Software license allowing for such redistribution.
(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 has provided to the other.
(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 San Francisco 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 constitutes the entire agreement between us pertaining to the subject matter hereof, and any and all written or oral agreements previously existing between the parties are expressly cancelled. This Agreement may be modified, replaced or rescinded only in writing, and signed by a duly authorized representative of each party.
(i) In any action to enforce this Agreement the prevailing party will be entitled to reasonable costs and attorneys' fees. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
14. BASIS OF BARGAIN. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL, BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.