This End User License Agreement (this “Agreement”) is by and between Infinio Systems, Inc., a Delaware corporation (“Infinio”) and you (“Licensee”). This Agreement is a contract between Infinio and Licensee and sets forth the terms and conditions covering Licensee’s use of the Software (defined below). BY CHECKING THE BOX INDICATING YOU HAVE READ AND AGREED TO THIS AGREEMENT, YOU FULLY ACCEPT AND AGREE TO ALL OF THE PROVISIONS OF THIS AGREEMENT. CHECKING THIS BOX OR INSTALLING OR USING THE SOFTWARE CONSTITUTES YOUR ACCEPTANCE OF THIS AGREEMENT AND ESTABLISHES A BINDING AGREEMENT BETWEEN YOU AND INFINIO. ACCEPTANCE OF THIS AGREEMENT IS REQUIRED AS A CONDITION TO INSTALLING AND USING THE SOFTWARE. IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT (A) DO NOT CHECK THIS BOX AND DO NOT INSTALL OR USE THE SOFTWARE, AND (B) CONTACT INFINIO WITHIN THREE DAYS TO ARRANGE FOR A RETURN OF THE SOFTWARE.
Background: This Agreement contemplates the licensing of Infinio’s software application Infinio AcceleratorTM (together with any updates, modifications or other releases that may be provided by Infinio hereunder, the “Software”) under either (1) a “Software License,” which is a license permitting use of the Software solely for Licensee’s internal business use during the term specified in the applicable Order Form (the “License Term”), or (2) a “Trial License,” which is a license permitting use of the Software solely for Licensee’s evaluation of the Software for an initial “free trial” period of (a) twelve (12) months from the date of installation of the Software for a limited functionality version of the Software, or (b) thirty (30) days from the date of installation of the Software with full functionality, or such other period as Infinio expressly authorizes in writing (in either case, the “Trial Period”). For purposes of this Agreement, an “Order Form” means a document acceptable to Infinio in which Licensee requests a license to specific Software, for a defined License Term, authorizing use with a stated the number of CPU sockets. All orders are subject to and incorporate the terms of this Agreement, and no additional terms included in any Order Form shall be binding on Infinio, and the terms and conditions of this Agreement will supersede all inconsistent terms set forth in any Order Form except as expressly agreed in writing signed by both Licensee and Infinio. An Order Form may be (i) Licensee’s purchase order accepted by Infinio, (ii) an Infinio quotation accepted and signed by Licensee, (iii) any form which was meant to represent an order, signed by Licensee and accepted by Infinio, or (iv) Infinio’s credit card purchase receipt. “Documentation” means the technical information published by Infinio on its public website (located at http://www.infinio.com) or within the Infinio customer portal, accessible by Licensee via the Infinio public website.
(a) If Licensee has purchased a Software License, then subject to the terms and conditions of this Agreement, Infinio hereby grants, and the Licensee hereby accepts, a non-exclusive, non-transferable license, without the right to sublicense, to install and use the Software (as defined above), in object code form only, during the License Term, solely for Licensee’s internal use, but only in accordance with this Agreement, the software license key issued by Infinio, and the Documentation, and only for use with the number of CPU sockets for which Licensee has purchased a Software License under an Order Form.
(b) If Licensee has acquired a Trial License, then Infinio hereby grants, and the Licensee hereby accepts, a non-exclusive, non-transferable license, without the right to sublicense, to install and use the Software, in object code form only, during the Trial Period, solely for evaluation purposes in connection with Licensee’s determination of whether or not to purchase a Software License, or such other purpose as Infinio expressly authorizes in writing.
2. Restrictions: The Software is provided in object code form only and shall be deployed on Licensee’s own internal computer networks solely for Licensee’s internal use. Licensee shall not copy the Software and/or Documentation or remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels on, or embedded in, the Software and/or Documentation. Except as may otherwise be required under the terms of the licenses applicable to third party components incorporated in the Software, Licensee shall not, directly or indirectly, modify, reverse engineer, decompile, or disassemble the Software or otherwise or attempt to derive the source code of the Software. Licensee shall not transfer, lease, distribute, assign, license, sell or otherwise commercially exploit the Software or make the Software available to a third party. Following the Trial Period, Licensee shall not use the Software in connection with CPU sockets beyond the number of such sockets for which Licensee has purchased a Software License.
(a) Trial Licenses. With respect to Trial Licenses, this Agreement shall continue for the duration of the Trial Period. At the end of the Trial Period, this Agreement shall terminate automatically unless Licensee purchases a Software License and receives a key from Infinio, in which case this Agreement shall continue for the License Term specified in the Order Form and the license key.
(b) Software Licenses. Software Licenses purchased by Licensee shall have the License Term set forth in the applicable Order Form, and, unless the License Term is perpetual, shall automatically renew at the expiration of the License Term unless Licensee gives Infinio notice of non-renewal not less than sixty (60) days prior to the end of the then current License Term.
(c) Termination. Notwithstanding the foregoing, this Agreement and the licenses granted hereunder will terminate immediately, without prior notice from Infinio, if Licensee fails to comply with any provision of this Agreement. Upon termination or expiration of this Agreement, Licensee must return or destroy all copies of the Software, the license keys, and all materials provided for or with the Software. Sections 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13 and 14 will survive any expiration or termination of this Agreement.
4. Ownership and Title: The Software is, and at all times shall remain, the property of Infinio. Licensee acknowledges that as between Licensee and Infinio, Infinio is the owner of all right, title and interest, both tangible and intangible, in and to the Software and all Documentation and other materials associated therewith, including all patent, copyright, trade secret, trademark, and other intellectual property rights. Except for the express license grant in Section 1, no right, title or interest in the Software is transferred to Licensee, and irrespective of any use of the words “purchase,” “sale” or like terms hereunder no right, title, interest or any other ownership rights are being conveyed to Licensee with regard to the Software under this Agreement or otherwise. All patent, copyright, trade secret, trademark, and other intellectual property rights, and all trademarks, service marks, trade names, logos, branding and other business identifiers associated with the Software are owned by Infinio or its licensors, and no right to use any of the foregoing is granted to Licensee. Any feedback including, without limitation, potential changes, modifications, additions, restructuring, or deletions, suggested for the Software by Licensee or its employees shall be the exclusive property of Infinio, together with all intellectual property and other rights therein. Licensee hereby assigns and will assign to Infinio all right, title and title in and to the feedback. Licensee acknowledges that certain components of the Software are licensed to Infinio by third party licensors, and that the terms set forth herein are offered solely by Infinio and not by any such third party licensor.
5. Maintenance Services: If Licensee has purchased from Infinio Software maintenance and support (“Maintenance Services”), the terms that govern such Maintenance Services are set forth in Infinio System’s Maintenance Terms & Conditions, a copy of which is available at http://www.infinio.com/community-support/support/maintenance-terms-and-conditions or such other site as Infinio may designate. Infinio may update or revise the terms from time to time.
6. Disclaimer of Warranties: THE SOFTWARE IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND. INFINIO DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS RELATING TO THE SOFTWARE WHETHER EXPRESS, IMPLIED, OR ARISING BY CUSTOM OR TRADE USAGE, INCLUDING, BUT NOT LIMITED TO, ANY REPRESENTATION, WARRANTY, OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT.
7. Limitation of Liability: IN NO EVENT WILL INFINIO BE LIABLE TO LICENSEE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, BUSINESS INTERRUPTION AND LOST DATA, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF INFINIO KNOWS OR HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. THE CUMULATIVE LIABILITY OF INFINIO TO LICENSEE FOR ALL CLAIMS RELATING TO THE SOFTWARE AND ANY SERVICES, IN CONTRACT, TORT, OR OTHERWISE, SHALL BE LIMITED TO PROVEN DIRECT DAMAGES BUT SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID TO INFINIO HEREUNDER BY THE LICENSEE FOR THE SOFTWARE AND ANY SUCH SERVICES GIVING RISE TO THE LIABILITY. Licensee understands that Licensee is exclusively responsible for the supervision, management and control of Licensee’s use of the Software. Infinio does not warrant that use of the Software will be uninterrupted or error free, or that program errors will be corrected. No claim or action, regardless of form, arising out of this Agreement may be brought by Licensee more than one year after the events which gave rise to the claim or action became or should have become known.
8. Related Software: Licensee is responsible for providing any additional software, equipment or services that are required to operate the Software.
9. Taxes: Licensee agrees to pay (and to reimburse Infinio on request if Infinio is required to pay) any sales, use, value-added or other tax (excluding tax on Infinio’s net income) or other withholding, duty, fee or charge of any kind or nature that is levied or imposed by any governmental authority on Licensee’s use or license of the Software and Maintenance Services.
10. Confidentiality; Security:
(a) The Software, license keys, and Documentation (collectively, “Confidential Information”) constitute Infinio’s proprietary and confidential information. Licensee will not (i) use any such Confidential Information in any way, for its own account or the account of any third party, except for the exercise of its rights and performance of its obligations under this Agreement, or (ii) disclose any such Confidential Information to any party, other than furnishing such Confidential Information to its employees who are required to have access to the Confidential Information in connection with the exercise of its rights and performance of its obligations under this Agreement, provided that such employees are bound by written confidentiality obligations consistent with this Agreement. Licensee will not allow any unauthorized person access to the Confidential Information, and Licensee will take all action reasonably necessary to protect the confidentiality of such Confidential Information, including implementing and enforcing procedures to minimize the possibility of unauthorized use or copying of such Confidential Information. In the event that Licensee is required by law to make any disclosure of any of Infinio’s Confidential Information, by subpoena, judicial or administrative order or otherwise, Licensee shall first give written notice of such requirement to Infinio, and shall permit Infinio to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to Infinio in seeking to obtain such protection. Because the unauthorized access, use, transfer or dissemination of any Confidential Information may diminish substantially the value of such materials and may irreparably harm Infinio, if Licensee breaches the provisions of this Section 10, Infinio will, without limiting its other rights or remedies, be entitled to equitable relief, including but not limited to injunctive relief, without the necessity of posting any bond or proving actual damage.
(b) Licensee acknowledges that Infinio may collect, receive or derive certain data and information in connection with and regarding Licensee’s use of the Software. Licensee agrees that Infinio may use such data and information in connection with improving the Software or Infinio’s other products or services, or for any other lawful purpose, provided, however, that Infinio will not disclose such data or information without Licensee’s prior consent, other than to its employees or consultants, or as part of an aggregate set of data or information that does not specifically identify Licensee.
11. Miscellaneous: This Agreement, the Software and/or related Documentation and any modifications thereto may not be assigned or in any way transferred without the prior written consent of Infinio. The terms of this Agreement shall be construed in accordance with the substantive laws of the Commonwealth of Massachusetts, United States of America, without giving effect to its principles of conflict or choice of law. The parties hereto waive any statute, law, or regulation that might provide an alternative law or forum. Infinio and Licensee exclude the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act from this Agreement. If any provision of this Agreement is held to be in conflict with any applicable rule of law or statutory provision or are otherwise unenforceable under the applicable laws or regulations, such provision shall be constructed by limiting or reducing it so as to be enforceable to the maximum extent compatible with the applicable law as it shall then appear. This Agreement represents the entire understanding between the parties with respect to its subject matter and supersedes all prior written and oral communications. A waiver by either party of its rights hereunder shall not be binding unless contained in a written agreement signed by an authorized representative of the party waiving its rights. The non-enforcement or waiver of any provision on one occasion shall not constitute a waiver of such provision on any other occasions unless expressly so agreed in writing.
12. Export Control: Licensee acknowledges that the Software is subject to US export control laws, including the US Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Licensee agrees to comply strictly with all such laws and regulations, and agrees not to export, re-export, or transfer the Software (i) to Cuba, Iran, North Korea, Sudan, Syria, or any other country that is subject to comprehensive U.S. economic sanctions, or to the governments of such countries, wherever located; (ii) to persons or entities on the Specially Designated Nationals List of the Office of Foreign Assets Control, U.S. Department of the Treasury, or the Denied Persons, Entity, or Unverified Lists of the Bureau of Industry & Security, U.S. Department of Commerce; (iii) to any person or entity engaged in the development or production of nuclear, biological, or chemical weapons, missiles, or unmanned aerial vehicles; or (iv) to any person or entity you have reason to believe may transfer or deploy the Software to or for any of the foregoing persons, entities, or uses.
13. Restricted Rights: The Software constitute “commercial items” as that term is defined at 48 C.F.R. 2.101 (October 1995) consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and are provided to the U.S. Government only as a commercial end item. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202, all U.S. Government End Users acquire the Software and its associated documentation with only those rights set forth therein.
14. Notices: Any notice required or given hereunder shall be in writing and addressed to Infinio or to Licensee, as the case may be, at the party’s principal place of business and shall be deemed given (i) upon receipt if by personal delivery, (ii) upon acknowledgement of receipt if sent by electronic mail, or (iii) upon receipt if by next day delivery by a major commercial delivery service.
15. Publicity. Licensee grants Infinio the non-exclusive right to use Licensee’s name and company logo in connection with Infinio’s marketing efforts, including displaying same on its customer lists and website.