CONFIRMATION REGARDING USE OF PRODUCTS

Transcription

1 CONFIRMATION REGARDING USE OF PRODUCTS Customer s use of the Products constitutes Customer s agreement to all the terms and conditions set forth in this Confirmation Regarding Use of Products (the Confirmation ). Customer acknowledges that the Intellectual Property Rights (defined below) in and to the Products are owned by NetAgent Inc. and/or its affiliates (collectively the Licensor ). 1. PRODUCT INFORMATION Software and Devices: Software programs and hardware devices specified in the application (or additional applications, collectively the Application ), together with this Confirmation is provided, as well as (i) all patch files which include updates, corrections, amended or supplemented versions; and (ii) advanced versions which may be made available with or without additional fees. Patch files and advanced versions will be provided at any time at the discretion of the Licensor. Documents: All manuals, users guides, instructions and other material provided to Customer in order to or in connection with the use of the Software or Devices (either in hard copy or soft copy made available electronically), as well as the terms of use and other information contained in the Website ( Products: Software, Devices and Documents 2. LICENSE AND USE The Customer received a limited, non-exclusive, non-transferable, non-sublicensable and revocable license ( License ) to use the Software and Documents. Customer may use the Products only in compliance with any and all applicable laws, regulations and ordinances. Customer is not permitted to use and thus it will not use the Products or any part thereof unless it agrees to strictly observe the Confirmation. Customer may use the Software only on the Devices. 3. LIMITATIONS Without limiting the generality of the foregoing sentence, Customer is expressly prohibited from taking the following actions: (a) sell, rent, lease, or lend, share, transfer, assign, distribute or create any security interest on the Products or any part thereof with or without compensation.

2 (b) (c) (d) (e) (f) duplicate, reverse engineer, decompile, disassemble, modify, merge, alter or rearrange the Products or any part thereof. attempt to discover the source code or structure, sequence and organization of the Software or any portion thereof. separate the Devices and Software. remove, alter or obscure any identification, trademark, copyright, proprietary or other notices or legends from the Products. create any derivative work. 4. INTELLECTUAL PROPERTY RIGHTS 4.1. All title and intellectual property rights (including, without limitation, all copyrights, patents, trade secrets, trademarks, service marks, know how, collectively Intellectual Property Rights ) in and to the Products, and any technology derived through the use of the Products (whether in violation of this Confirmation or not) are owned by the Licensor Customer shall not cause or permit anything which may damage or endanger any Intellectual Property Rights of Licensor or its respective title to such rights or assist anyone to damage or endanger such rights. Customer agrees to notify Licensor if Customer suspects any infringement of such rights and to take such action as Licensor shall direct in relation to such infringement No license, sublicense or other right other than the License is granted herein, either expressly or by implication, estoppel or otherwise under any Intellectual Property Right of Licensor whether or not they relate or pertain to any part of the Products. 5. LIMITED WARRANTY OF HARDWARE 5.1 Licensor warrants all Devices against defects in materials and workmanship under ordinary use for the period listed on the Application (the Warranty Period ). The Warranty Period is one (1) year from the date on the Application if the Device is purchased. 5.2 The limited warranty does not apply if: (a) the Product is not registered. (b) the defect was caused by accident, fire, or other external causes, alterations, repair or commercial use. 2

3 (c) if the defect was caused due to misuse, abuse, neglect, improper installation or improper maintenance, or use in violation of this Confirmation. (d) in case of natural disaster such as earthquake, flood or lightening. (e) if there is material breach including non- payments. (f) outside the Warranty Period. 5.3 In case the limited warranty does not apply, a replacement will be available for purchase. 6. TERM AND TERMINATION 6.1. The initial term of the License is described in the Application. Customers purchased the Devices may extend the term of License and continue to use the Products for successive periods of twelve (12) months each by submitting an Application therefor (subject to approval). For other customers, the License shall automatically renew for successive periods of twelve (12) months each, unless either party shall have given notice of termination at least two (2) months prior to the expiration of the then current term, in which case termination will take place at the end of the then current term. No license fees shall be refundable (except on case of termination pursuant to Section 6.3) The License shall terminate immediately upon notice by Licensor in the event the Customer materially fails to comply with any of the terms of this Confirmation The License shall terminate immediately upon notice by Licensor in the event Licensor cease to have the right to grant the License Upon expiration or earlier termination of the term of the License for any reason, all License and rights granted hereunder shall immediately cease, and Customer shall cease to use or utilize the Products. Fees shall be payable if Customer continues to use the Products after any expiration or termination. 7. ACKNOWLEDGMENT BY CUSTOMER; INDEMNIFICATION 7.1. Customer acknowledges that Licensor cannot guarantee the Software is 100% error free or works 24/7. Software is provided on the AS IS and AS AVAILABLE basis. 3

4 7.2. Customer shall immediately upload all patch files upon notice by Licensor. Customer acknowledges that failure to do so may cause adverse effects on the performance of the Products EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, LICENSOR HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, IN REGARD TO THE PRODUCTS OR ANY PART THEREOF, OR ITS PERFORMANCE, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE Customer acknowledges that it may collect information which is personal, confidential, proprietary, illegal, unlawful or of other nature. Licensor shall not be responsible for any information in any form which is collected or resulted through use of the Products or otherwise in connection with the License ( Collected Information ). Customer shall use or not use any such Collected Information at its absolute discretion and risk. Licensor has not offered, is not offering or will not offer any advice, legal or otherwise, with respect to the use of the Products or accumulation, collection, storage or use of the Collected Information. Customer must make its own independent investigation as to the legality, lawfulness, appropriateness or other aspects of use of the Products or any Collected Information Customer shall indemnify, defend and hold harmless Licensor, its respective former and current officers, directors, employees, agents and representatives (each an Indemnified Party ) from and against any and all loss (including consequential loss), liability, claims, damage, cost or expense (including reasonable expenses of investigation and reasonable attorneys fees) ( Damages ) suffered or incurred by any of the Indemnified Parties based on a claim arising out of or in connection with the use by Customer of the Products, or accumulation, collection, storage, use or non-use, disposal, transfer, transmission of any Collected Information ( Claim ) The Indemnified Party shall give prompt notice to Customer if it incurred any Damages as to which indemnification may be claimed hereunder. The indemnity hereunder shall also cover the fees and expenses of separate counsel of the choice of each of the Indemnified Parties in connection with such Claim. Customer shall not settle any Claim without prior written consent of Licensor. 8. GENERAL PROVISIONS 8.1. Governing Law. The License and this Confirmation will be governed and construed in accordance with the laws of the State of New York without giving effect to its conflict of laws principles. Any action, suit or proceeding in connection with the License or any of the terms and conditions included in this Confirmation shall be brought exclusively in the federal or state courts of New York, and both parties consent to the jurisdiction thereof. 4

5 Nothing herein shall be construed to prevent Licensor from taking any action before any court or tribunal in order to protect its Intellectual Property Right Severability. If any provision of this Confirmation is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way Entire Confirmation; Waiver; Amendment. This Confirmation may be amended by Licensor by revising, updating, changing or replacing the Documents. No other amendment is effective unless expressly agreed in writing by the Licensor. This Confirmation as amended by Licensor from time to time pursuant to this Section 8.3, together with the Application, sets forth the entire understanding of the parties, and supersedes any and all prior or contemporaneous oral or written understandings between the Licensor and Customer, as to the subject matter of this Confirmation. Any waiver by either party of a breach of any provision contained herein must be in writing, and no such waiver shall be construed as a waiver of any succeeding breach of such provision or a waiver of the provision itself Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL LICENSOR BE LIABLE WITH RESPECT TO THE PRODUCTS, SERVICES OR ANY SUBJECT MATTER OF THIS CONFIRMATION UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL THEORY FOR ANY INCIDENTAL, SPECIAL, INDIRECT OR PUNITIVE CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OF ANY KIND Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATED TO THIS CONFIRMATION Notices. Any notice required or permitted hereunder shall be given at the addresses specified the Application or such other address notified pursuant to this Section 8.6. Unless otherwise specified, such notice shall be deemed given: upon personal delivery; if sent by fax or , upon confirmation of receipt; or if sent by courier, three (3) days after the date of dispatch Independent Contractors. The parties hereto shall be deemed to have the status of independent contractors, and nothing in this Confirmation shall be construed to place either party or its personnel in a relationship of employer-employee, principal-agent, partners or joint venturers with the other party. Neither party is authorized or shall have the power to bind the other party in any manner whatsoever, make any representations or warranties on the other s behalf, and neither party shall hold itself out as having the capacity to do so. 5

6 8.8. Assignment. Customer may not assign any right or obligation hereunder without the express prior written consent of Licensor. Any assignment or attempt thereof in violation hereof shall be null and void Survival. Provisions of at least Sections 3, 4, 5, 6.1, 6.4, 7 and 8 shall survive any expiration or termination of this Confirmation Construction. The parties acknowledge that each party and its counsel have reviewed and revised this Confirmation and that any rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Confirmation. 6