|
END USER LICENSE AGREEMENT FOR
ACTIVEQUALITY SOURCE CODE LICENSE |
| |
|
IMPORTANT: READ CAREFULLY
BEFORE YOU INSTALL OR USE THIS SOFTWARE: This End User
License Agreement ("EULA") is a legal agreement between You
(either an individual or a single business entity) ("You")
and Open Mind Solutions Inc. ("We") for the software
identified above. Open Mind Solutions is the author and
holder of the copyrights for ActiveQuality Software ("Software").
The Software includes the object code and source code, the
associated media, any printed materials, any updates, and
any "online" or electronic documentation, as applicable. By
accessing, installing, copying or otherwise using the
Software, You agree to be bound by the terms of this EULA.
If you do not agree to the terms of this EULA, We are
unwilling to license the Software to you. In such an event,
You may not access, use or copy the Software, and you should
promptly contact WE for instructions concerning the return
of the Software. WRITTEN ASSENT IS NOT A PREREQUISITE TO THE
VALIDITY OR ENFORCEABILITY OF THIS EULA. |
| |
|
GRANT OF LICENSE |
| |
|
Subject to
the payment of all applicable fees, and the terms and
conditions of this EULA, WE hereby grants to You a limited,
non-sub licensable, non-exclusive, non-transferable right to
install the Software and the accompanying documentation,
solely for your individual use. |
| |
|
Copies. You may make a
reasonable number of backup copies of the Software. All
copies are subject to the provisions of this AGREEMENT. You
must maintain an accurate record of the location of the
copies of the Software that we may inspect at any time. You
must include our copyright notice on all copies. Otherwise,
you may copy the server portion of the Software on a single
server computer (the "designated server computer") or in a
"Cluster" which includes the designated server computer. A
"Cluster" means two or more server computers which are
interconnected. Use in a Cluster is only permitted if no
module of the Software is active on more than one server
computer at any given time. You will notify us in advance in
the event you intend to relocate or change the designated
server computer. You may also maintain a separate
non-productive backup, disaster recovery and testing
server. You may not have more than one active installation
of the Software on the designated server computer (or a
Cluster) unless you purchase additional Software licenses. |
| |
|
c. Company Restrictions. You
may use the Software only to process your data or data of
your "Affiliates." An "Affiliate" is an entity which is
Controlled By you and which has its own set of accounting
records. "Controlled By" means ownership of at least 50% of
the voting shares. The Software may not be used to process
the data of any other entity or to operate a service bureau. |
| |
|
PERMITTED CUSTOMIZATIONS |
| |
|
WE hereby also grants to You a
non-sub licensable, non-exclusive, non-transferable right to
create, "Permitted Customizations" to the source code and
object code components of the Software Product covered by
this EULA (the "Included Code") solely for Your internal use
under the terms and conditions of this EULA. "Permitted
Customizations" are (a) customizations You make directly to
the Included Code or (b) custom software You develop which
accesses or interacts with the Included Code. You may only
create Permitted Customizations that extend the
functionality of the Software, but that do not replace,
diminish or eliminate the need for the Software. The
Permitted Customizations shall not misappropriate, infringe
or violate any rights of Open Mind Solutions, or any other
third party intellectual property rights including, but not
limited to, patent, copyright, trademark or trade secrets
rights. You may not create Permitted Customizations unless
You have purchased the corresponding source code version of
the Software. |
| |
|
PERMITTED CUSTOMIZATIONS DO
NOT INHIBIT OPEN MIND SOLUTION'S RIGHT TO INNOVATE: |
| |
|
In an effort to provide You
the opportunity to enhance and customize our Software, WE
will make the Included Code available to you. You may then
create Permitted Customizations that extend the
functionality of the Software as set forth the section
above. Independently, WE are also continually innovating and
improving our software to meet the needs of our customers.
You acknowledge that, while You should have the ability to
own Your Permitted Customizations, WE must not be prevented
from continuing to develop and enhance its software in any
respect, even if such modifications may be similar to Your
Permitted Customizations in functionality, appearance or
otherwise. Therefore, if WE develop any modifications, which
may be similar to Your Permitted Customizations, You agree
not to make any claim against Open Mind Solutions for
infringement of any of Your rights in or to Your Permitted
Customizations. WE may not directly incorporate into its
modifications any original source code independently
developed by you. You acknowledge that the covenant by You
in this section is material basis for Open Mind Solution's
agreement to license You the rights to access and customize
the Included Source Code. |
| |
|
TERM: |
| |
|
Regardless of the location of
the Software, You are responsible for strict compliance with
any and all of the terms and conditions of this EULA. This
EULA will terminate automatically if You fail to comply with
any of the limitations or other requirements described
herein, and such termination shall be in addition to and not
in lieu of any criminal, civil or other remedies available
to Open Mind Solutions. When this EULA terminates, You must
immediately cease using the Software and destroy all copies
of the Software (including any Included Source Code within
Permitted Customizations) and the Documentation. You may
terminate this EULA at any point by destroying all copies of
the Software (including any Included Code within Permitted
Customizations) and the Documentation. |
| |
|
OWNERSHIP OF THE SOFTWARE: |
| |
|
The Software and Documentation
are protected by international copyright laws and
international treaty provisions. Open Mind Solutions, retain
all title and all rights and interest in the Software,
including, but not limited to, the Included Source Code, and
all copies, versions, customizations, compilations and
derivative works thereof (by whomever produced) and all
related documentation; the Open Mind Solutions trademarks,
service marks, trade names, icons and logos; any and all
copyright rights, patent rights, trade secrets rights and
other intellectual property and proprietary rights thought
the world; and all Confidential Information. You acknowledge
that Your possession, installation, or use of the Software,
or your creation of any permitted Customizations, does not
transfer to you any ownership, title, or registrable
interest of any kind to the intellectual property in the
Software or the Included Source Code, and that You will not
acquire any rights to the Software or the Included Source
Code except as expressly set forth in this EULA. |
| |
|
OWNERSHIP OF PERMITTED
CUSTOMIZATIONS: |
| |
|
Notwithstanding the section
above You retain all title to, and all rights and interest
in, Your permitted Customizations, exclusive of any Open
Mind Solutions Included Code, and only to the extent that
Your Customizations are new, different or added to
underlying Software. |
| |
|
SUBMISSIONS: |
| |
|
Should You decide to submit
any materials to Open Mind Solutions via electronic mail,
through or to Open Mind Solutions websites, or otherwise,
whether as feedback, data, questions, comments, ideas,
concepts, techniques, suggestions or the like, You agree
that such submissions are unrestricted and shall be deemed
non-confidential upon submission. You grant to Open Mind
Solutions a non-exclusive, royalty-free, worldwide,
perpetual, irrevocable license, with the right to
sublicense, to use, copy, transmit, distribute, create
derivative works of, commercialize, display and perform such
submissions. |
| |
|
INDEMNIFICATION: |
| |
|
You agree to defend, indemnify
and hold harmless to Open Mind Solution and its directors,
officers, employees, affiliates, sub licensees, and agents
from and against all claims, defense costs (including
reasonable expert and attorney’s fees), judgments and other
expenses arising out of or on account of: (a) alleged
infringement or violation of any patent, trademark,
copyright, trade secret or other proprietary right with
respect to the modification and customization performed by
You or on Your behalf; or (b) any negligent act, omission or
willful misconduct by You or on Your behalf in the
performance of this EULA. |
| |
|
CONFIDENTIALITY: |
| |
|
You agree that the Software,
including, but not limited to, all source and object code
components, screen shots and displays, graphical user
interfaces, algorithms, formulae, data structures, scripts,
application programming interfaces and protocols, and the
Documentation (collectively the “Confidential Information”)
are trade secrets of Open Mind Solutions and are owned by
Open Mind Solutions. You agree to retain all Confidential
Information in strict confidence at least with the same
amount of diligence that You exercise in preserving the
secrecy of Your most valuable information, but in no event
less than reasonable diligence. You agree to: (a) only
disclose Confidential Information to Your employees and
agents to the extent required to use the Software under the
terms of this EULA and not to disclose or disseminate the
Confidential Information to any third party without the
prior written consent of Open Mind Solutions, (b) use the
Confidential Information solely for Your benefit as provided
for herein and not to allow any third party to benefit from
the Confidential Information, and (c) bind your employees
and agents, by terms no less restrictive than those set
forth herein, to maintain the confidentiality of such
Confidential Information. Notwithstanding the disclosure of
any Confidential Information for any reason, such
Confidential Information shall continue to be owned by Open
Mind Solutions. |
| |
| |
|
SUPPORT: |
| |
|
Support for the Software is
available through our support program. All license and
application support fees will be paid. |
| |
|
APPLICABLE LAW. |
| |
|
This AGREEMENT is governed by
the laws of the Country where Open Mind Solutions has
Offices, see contact information, in respect of any dispute
which may arise hereunder. The United Nations Convention on
Contracts for the International Sale of Goods will not apply
to this AGREEMENT. |
| |
|
ENTIRE AGREEMENT. |
| |
|
This AGREEMENT (including any
addendum or amendment there to) is the entire agreement
relating to the Software and Source Code, and the support
services (if any) and it supersedes all prior or
contemporaneous oral or written communications, proposals
and representations with respect to the Software or any
other subject matter covered by this AGREEMENT. To the
extent the terms of our policies or programs for support
services conflict with the terms of this AGREEMENT, the
terms of this AGREEMENT will control. In the event that any
of the terms of this AGREEMENT are in conflict with any rule
of law or statutory provision or otherwise unenforceable
under the laws or regulations of any government or
subdivision thereof, such terms will be deemed stricken from
this AGREEMENT. The parties will replace a severed
provision by a provision which is closest to the original
intent of the parties. |
| |
| |
|
THE SOFTWARE AND SOURCE CODE
ARE LICENSED, NOT SOLD. |
|
