MPI software license agreement
END USER LICENSE AGREEMENT FOR MPI TECH SOFTWARE
The Software is protected by intellectual property laws and treaties. Any references hereunder to "sales" or "acquisition" or like terms notwithstanding, the Software is licensed, not sold, and rights granted hereunder are limited to the Software in object code only. No source code rights are granted hereby. The End User may not assign or otherwise transfer this EULA to any other party, without specific written permission from MPI Tech.
1. GRANT OF LICENSE.
Under copyright law the End User are not permitted to install or run the Software product ('the Software') or use the electronic material ('the Documentation') supplied to the End User without the permission of the Owner. In consideration of the End User accepting the terms of this agreement the Owner grants the End User a non-exclusive right ('the License') to install and run the Software and use the Documentation as permitted by this Agreement. All references to the Software mean the object code only of the program(s) comprising the Software. The End User has no rights to distribute, copy, reverse-engineer, modify or adapt the Software unless such rights are clearly and specifically granted herein.
1.1 General License to Install and Use Software Product.
1.1.1 The End User may use the Software and the Documentation in connection with a single computer or such other number of computers as may be specifically licensed and for which license fees have been paid, as reflected on license records generated in connection with the acquisition of the Software ("License Record");
1.1.2 The End User may load the Software and use it only on a single computer which is under the control or such other number of computers as may be specifically licensed and also under the End User control.
1.1.3 The End User may use the Software for its personal use or in its business or profession. The license granted hereunder may not be shared and permitting unauthorised access to, copying or use of the Software and the Documentation is beyond the scope of the license and is therefore a breach of this Agreement.
1.2 Additional License Permitting Use of Software under a Subscription or Service Agreement. If The End User licensed the Software under a subscription ("Subscription Product"), the following additional licensing terms apply and supersede any inconsistent provision under section 1.1: During the term of The End User subscription only, The End User may install the Software on a single computer which is under its control or such other number of computers as may be specifically licensed and also under its control. The initial subscription period begins on the date The End User first activate its copy of the Subscription Product and ends at the end of the subscription period, as set forth under the License Record. The End User cannot use the Subscription Product on any computer after its subscription expires unless The End User renew or extend its subscription. By renewing or extending its subscription, The End User will be entitled to continue using the Subscription Product for a specified period of time beyond the date when its previous subscription would have otherwise ended. All the terms and conditions of this EULA will continue to apply to its use of the Subscription Product during any subsequent renewal periods unless otherwise specified. Separation of Component Parts: The Software Product is licensed as a single product and its component parts may not be separated, except as may be provided in the Documentation, unless expressly authorized by MPI Tech in writing.
1.3 Updates, Enhancements and Supplemental Software. No Software maintenance or support is included in the calculation of license fees paid in consideration for this EULA. Any rights The End User may be granted for Software maintenance or support, including updates, patches, enhancements, modifications or other support services related to the Software ("Support Services") are beyond the scope of this EULA and will be the subject of and governed by a separate maintenance or support agreement (if any) between The End User and MPI Tech or licensed MPI Tech 'resellers, distributors or OEM providers' (Resellers), and may be subject to the payment of additional fees. Support Services provided by MPI Tech or its Resellers are governed by the policies and programs adopted from time to time by MPI Tech or by those Resellers offering such services, as described in the Documentation, or in other materials furnished by MPI Tech or its Resellers.
1.4 Reservation of Rights. All rights not expressly granted are retained by MPI Tech.
2. ADDITIONAL RIGHTS, TERMS AND LIMITATIONS
2.1 License Fees. All license fees (and, if applicable, subscription or service fees) The End User have paid are non-refundable, except in connection with a return of the Software as provided in the initial paragraph of this EULA or under section 6.1.
2.2 Intellectual Property Rights. All title and intellectual property rights in and to the Software and all elements and components, the accompanying printed materials, and any copies of the Software are owned by MPI Tech or its suppliers/licensors. If this Software contains documentation that is provided only in electronic form, the End User may print ten copies of such electronic documentation. The End User may not copy the printed materials accompanying the Software. MPI Tech retains all rights in and to any copy, translation, modification, enhancement, improvement, development, adaptation or derivative works of the Software, including all unauthorised work.
2.3 Copy Protection. The Software may incorporate copy protection technology to prevent the unauthorised copying of the Software or may require original media for use of the Software on the Device. It is unlawful and prohibited to make unauthorised copies of the Software or to circumvent any copy protection technology included in the Software.
2.4 Rental, leasing or commercial hosting. The End User may not rent, lease, lend or provide commercial hosting services to third parties with the Software, without MPI Tech's express written authorization.
2.5 Compliance. The End User agree to supervise and control use of the Software to ensure compliance with all terms and limitations under this EULA (including but not limited to compliance with the laws and regulations of all applicable jurisdictions in which The End User use the Software) and to maintain accurate records of the number and location of all users and copies of the Software and the number of storage devices used in connection with the Software (Compliance Data"). In this connection, The End User also agrees to the following:
2.5.1 The End User agree to provide to MPI Tech with summaries of updated Compliance Data, in a form reasonably required by MPI Tech, within thirty (30) days of any written request, and to furnish therewith written certification that its use of the Software at the time of the request complies with this EULA. As an alternative to such written reports or certification, and at MPI Tech's sole option, The End User agree to enable and to allow MPI Tech to collect, via a Web interface, ONLY the record of the number of installed clients
2.5.2 The End User agree to allow MPI Tech or its agents full access, on 14 days' notice and during normal business hours, to all of the devices on which the Software is loaded or from which it may be accessed "Devices"), and to the site or sites on which Devices are located, to monitor its compliance with this section 2.5 and the other terms of this EULA.
2.5.3 The End User agree to make all relevant employees, agents, advisers, consultants, group-companies, affiliates, sub-contractors and other parties who have use of or access to the Software aware of the provisions of this Agreement prior to such use or access, and shall ensure compliance by such users with this EULA.
2.6 The End User acknowledge that in the event that the End User have been granted a licence pursuant to this agreement for a Subscription Product we may without notice enable the Subscription Product so that it shall cease to operate at the end of the licence term in any event.
3. TERM AND TERMINATION
3.1 This EULA shall terminate automatically on the date (if any) specified on the License Record, unless extended by the prior mutual consent of the parties in writing. If no date is specified on the License Record, this EULA shall be perpetual subject to termination in accordance with subsections 3.2 below. The End User may terminate this EULA at any time by destroying the Software and the Documentation together with all copies in any form. However, no license fee paid or owing for the Software shall be refunded or abated by virtue of such unilateral termination.
3.2 Furthermore, the License to use the Software will terminate automatically if The End User fails to comply with any term of this EULA. Unless applicable license fees are paid in full, this EULA and all licenses granted hereunder will also terminate without further action and may also terminate on notice by MPI Tech if The End User become unable to pay its debts or are otherwise insolvent, bankrupt, appoint an Administrator, cease trading, become the subject of any liquidation or winding up action in any jurisdiction, enter into any arrangement with its creditors other than for the purpose of a solvent reorganisation or become the subject of any action under which a receiver or administrator is appointed by a court, regulatory agency or other authority or in the event that any local equivalent of the aforesaid arise in any jurisdiction. Upon expiration or termination of the EULA for any reason The End User will immediately destroy the Software together with all copies in any form, including copies on its hard and back-up disks. Any use of any copies of the Software after expiration or termination of the License is unlawful.
3.3 Termination of this EULA shall be without prejudice to the accrued rights and liabilities of either party.
The End User agree to defend, indemnify and hold harmless MPI Tech, its subsidiaries, affiliates, distributors, licensors, suppliers, officers, directors, employees and agents from any third party claims, damages, liabilities, costs and fees (including reasonable attorney fees) arising from its use of the Software as well as from its failure to comply with any term of this EULA. The End User agrees that MPI Tech shall have no liability whatsoever for any use The End User make of the Software.
5. US GOVERNMENT RESTRICTED RIGHTS.
This Software is commercial computer software and the related documentation is commercial computer software documentation. Thus, if The End User are an agency, department, or other entity of the United States Government ("Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of the Software, or any related documentation of any kind, including technical data or related manuals, is restricted in accordance with Federal Acquisition Regulation 12.212 for civilian agencies and Defence Federal Acquisition Regulation Supplement 227.7202 for military agencies to the extent said regulations apply to solicitations within the scope of said regulations. The use of the Software and related documentation is further restricted in accordance with the terms of this Agreement, or any modification hereto.
MPI Technologies Inc., a US subsidiary of MPI Tech Group, is located at
MPI Tech, 4952 Warner Avenue, Suite 301, Huntington Beach, CA 92649-5506, USA.
6. LIMITED WARRANTY
6.1 Limited warranty for software acquired in the US, EU and Canada: MPI Tech warrants that the Software, when used properly, will perform substantially as described in the accompanying materials and documentation for a period of thirty (30) days from the date of receipt and that the media on which the Software is recorded will be free from defects in material and workmanship under normal use for the same period.
If an implied warranty or condition is created by the End User state/jurisdiction and federal/national or state/provincial law prohibits disclaimers of it, the End User may also have an implied warranty or condition, but only as to defects discovered during the period of this limited warranty (thirty days). as to any defects discovered after the thirty (30) day period, there is no warranty or condition of any kind. Some states/jurisdictions do not allow limitations on how long an implied warranty or condition lasts, so the above limitation may not apply to The End User.
Any supplements or updates to the SOFTWARE PRODUCT, including without limitation, any (if any) service packs or hot fixes provided to the End User after the expiration of the initial thirty (30) days Limited Warranty period are not covered by any warranty or condition, express, implied or statutory.
6.1.1 Limitation on remedies; no consequential or other damages. The end user exclusive remedy for any breach of this limited warranty is as set forth below. Except for any refund elected by MPI Tech, the end user are not entitled to any damages, including but not limited to consequential damages. The terms of Section 8 below ("Exclusion of Incidental, Consequential and Certain Other Damages") are also incorporated into this Limited Warranty. Some states/jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to the End User. This Limited Warranty gives the End User specific legal rights. The End User may have others which vary from state/jurisdiction to state/jurisdiction.
6.1.2 The end user exclusive remedy. The entire liability of MPI Tech and its suppliers and the End User exclusive remedy relative to any Software, that does not meet this Limited Warranty and that is returned to the original place of purchase with a copy of the End User proof of purchase, shall be, at MPI Tech's sole option exercised subject to applicable law, either (a) return of the price paid (if any) for the Software, or (b) repair or replacement of the Software. The End User will receive the remedy elected by MPI Tech without charge, except that the End User are responsible for any expenses the End User may incur (e.g. cost of returning the Software to MPI Tech). This Limited Warranty is void if failure of the Software has resulted from accident, abuse, misapplication, abnormal use or a virus. Any replacement Software will be warranted for the remainder of the original warranty period or twenty (20) days, whichever is longer. To exercise the End User remedy, contact MPI Tech in writing at one of the following addresses:
MPI Tech A/S, Midtager 29, DK-2605 Brøndby, Denmark.
MPI Tech SAS, 40, Rue du Général Malleret-Joinville, BP 88, 94402 Vitry Sur Seine Cedex, France
6.2 Limited warranty for software products acquired outside the EU, US and Canada. For the limited warranties and special provisions pertaining to the end user particular jurisdiction, please refer to the warranty provided to the end user with the software documentation. If no special and separate warranty is applicable, the warranties of MPI Tech and its suppliers shall be limited as provided herein to the fullest extent allowed under the laws of the applicable jurisdiction. MPI Tech hereby excludes all implied warranties to the fullest extent allowed by law in each jurisdiction in which the software is used under this EULA.
7. General disclaimer of warranties.
The limited warranty that appears in section 6 above is the only express warranty made to the end user and is provided in lieu of any other express warranties (if any) created by any documentation or packaging. Except for the limited warranty and to the maximum extent permitted by applicable law, MPI Tech and its suppliers provide the software and support services (if any) as is and with all faults, and hereby disclaim all other warranties and conditions, either express, implied or statutory, including, but not limited to, any (if any) implied warranties, duties or conditions of merchantability, of fitness for a particular purpose, of accuracy or completeness or responses, of results, of workmanlike effort, of lack of viruses and of lack of negligence, all with regard to the software, and the provision of or failure to provide support services. Also, there is no warranty or condition of title, quiet enjoyment, quiet possession, correspondence to description or non-infringement with regard to the software.
8. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES.
To the maximum extent permitted by applicable law, in no event shall MPI Tech or its suppliers be liable for any special, incidental, indirect, or consequential damages whatsoever. MPI Tech shall not be liable for the following types of loss in any event, be they direct or consequential damages for loss of profits or confidential or other information, for business interruption, for personal injury, for loss of privacy, for failure to meet any duty including of good faith or of reasonable care, for negligence, and for any other pecuniary or other loss whatsoever and any other loss arising out of or in any way related to the use of or inability to use the software product, the provision of or failure to provide support services, or otherwise under or in connection with any provision of this EULA, even in the event of the fault, tort (including negligence), strict liability, breach of contract or breach of warranty of MPI Tech or any supplier, and even if MPI Tech or any supplier has been advised of the possibility of such damages.
9. LIMITATION OF LIABILITY AND REMEDIES.
Notwithstanding any damages that the end user might incur for any reason whatsoever (including, without limitation, all damages referenced above and all direct or general damages), the entire liability of MPI Tech and any of its suppliers under any provision of this EULA and the end user exclusive remedy for all of the foregoing (except for any remedy of repair or replacement elected by MPI Tech with respect to any breach of the limited warranty) shall be limited to the greater of 110% of the amount actually paid by the end user for the software or US $250.00. The foregoing limitations, exclusions and disclaimers (including sections 6, 7, and 8, above) shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
10. APPLICABLE LAW.
If the End User acquired this Software in the United States, Canada, or any country of South America, and unless expressly prohibited by local law, this EULA shall be governed and construed under California (USA) law (without regard to its conflicts of laws provisions) as such law applies to agreements between Californian residents entered into and to be performed within California. The sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be the State and Federal courts in California.
If the End User acquired this Software in any other country, and unless expressly prohibited by local law, this EULA shall be governed by the laws of Switzerland (Code Suisse des Obligations) by the Court in Geneva.
The End User consent and submit to the jurisdiction of the applicable courts, as provided above, and agree to service of process in accordance with the applicable court rules. The party prevailing in any dispute under this Agreement shall be entitled to its costs and legal fees.
11. GENERAL PROVISIONS.
This Agreement and the terms of any License Record provided to the End User (if any) combine to represent the complete agreement concerning this license between the parties and supersedes all prior agreements and representations between them. This EULA may be amended only in writing executed by both parties. If any provision of this EULA is held to be illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary to make it legal and enforceable and this Agreement shall otherwise remain in full force and effect and enforceable. The failure of MPI Tech to act with respect to a breach of this EULA by The End User or others does not constitute a waiver and shall not limit MPI Tech's rights with respect to such breach or any subsequent breaches. This EULA is personal to the End User and may not be assigned or transferred for any reason whatsoever without MPI Tech's prior written consent and any action or conduct in violation of the foregoing shall be void and without effect. MPI Tech expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder.
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.
Questions concerning this Agreement should be sent to the either of the addresses set forth below. Any notices or correspondences will only be effective if sent to such address:
MPI Tech A/S, Midtager 29, 2605 Broendby, Denmark.
MPI Tech SAS, 40, Rue du Général Malleret-Joinville, BP 88, 94402 Vitry Sur Seine Cedex, France