Aimpoint Digital's End User License Agreement
Definition
This License Agreement (“Agreement”) is entered on date of software download (“Effective Date”), between Aimpoint Digital LP, a Florida limited partnership with offices at 6901 Professional Parkway East, Suite 104, Sarasota, Florida 34240 (“Provider”), and user of supplied software or application (“Customer”). Downloading or usage of software is considered acceptance of these terms and conditions.
Whereas, Aimpoint Digital LP has developed the software or web application with reference to these terms, which includes computer software and, as applicable, associated media, printed materials, and online or electronic documentation (the “Software” or “Software Application”), and which Aimpoint Digital is willing to license to you, subject to the terms and conditions provided below.
NOW, THEREFORE, in consideration of the promises of each party to the other set forth herein, the parties hereto agree as follows:
License Terms
Subject to the terms and conditions set forth herein and provided that you fulfil your obligations hereunder, Provider grants you a non-exclusive, non-transferable, limited license to use the Software for non-production purposes only. You may install, execute, employ, utilize, display, perform and use the Software Application for your own internal evaluation and not as a service bureau.
Limitations
You may NOT: (i) use or copy the Software Application except as provided in this Agreement or as expressly permitted by applicable law notwithstanding this limitation; (ii) rent or lease the Software Application to any third party; (iii) assign this Agreement or transfer the Software Application without the express written consent of Aimpoint Digital; (iv) modify, adapt, or translate the Software Application in whole or in part except as provided in this Agreement; (v) reverse engineer, decompile, or disassemble the Software Application.
Termination
Provider may terminate your license to use the Software at any time without notice for any reason. Upon termination, you must immediately cease all use of the Software and destroy all copies of the Software in your possession or control.
Governing Law, Integration, Modification
The licensing entity for this Agreement is Aimpoint Digital, LP, a Florida limited partnership having an address for notice purposes of 6901 Professional Parkway East, Sarasota, FL, 34240.All disputes arising out of or in relation to this Agreement shall be submitted to the exclusive jurisdiction of the courts of New York.
This is the entire Agreement between us relating to the Software Application, and supersedes any prior purchase order, communications, advertising, or representations concerning the Software Application. No change or modification of this Agreement will be valid unless it is in writing and is signed by both the Provider and the Customer.
Proprietary Rights
7.1 All right, title, and interest (including, without limitation, all copyrights, trade secret rights, and patent rights, if any, throughout the world) in and to the Software Application, the accompanying media and printed materials, and any copies of the Software Application are owned by Aimpoint Digital or its licensors (copies of the Software Application are licensed, on a subscription basis, to you and not sold to you). The Software Application is protected by intellectual property and copyright laws and international treaty provisions. Therefore, you must treat the Software Application like any other copyrighted material, subject only to the limited, non-exclusive license granted by this Agreement.
5.1. US. Government Restricted Rights. The Software Application is provided with “RESTRICTED RIGHTS”. Use, duplication or disclosure by the Government is subject to restrictions set forth in FAR 52.227-14 or its successor. Use of the Materials by the Government constitutes acknowledgment of Aimpoint Digital’s rights in the Software Application.
7.3 Export Restrictions. You may not use or otherwise export or re-export the Software Application except as authorized by United States law. In particular, but without limitation, the Software Application may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List.
Exclusion of Certain Damages
NEITHER PARTY SHALL BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE APPLICATION, EVEN IF AIMPOINT DIGITAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY DOES NOT APPLY TO EITHER PARTY’S CONFIDENTIALITY OBLIGATIONS OR COMPANY’S INDEMNIFICATION OBLIGATIONS.
Disclaimer of Warranty
YOU ACKNOWLEDGE AND AGREE THAT THE SOFTWARE APPLICATION IS PROVIDED ON AN “AS IS’ AND “AS AVAILABLE” BASIS, AND THAT YOUR USE OF OR RELIANCE UPON THE SOFTWARE APPLICATION IS AT YOUR SOLE RISK AND DISCRETION. AIMPOINT DIGITAL AND ITS AFFILIATES HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, AND GUARANTIES REGARDING THE APPLICATION, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FURTHERMORE, AIMPOINT DIGITAL AND ITS AFFILIATES MAKE NO WARRANTY THAT (I) THE APPLICATION WILL MEET YOUR REQUIREMENTS; (II) THE APPLICATION WILL BE UNINTERRUPTED, ACCURATE, RELIABLE, TIMELY, SECURE, OR ERROR-FREE; (III) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL ACCESSED OR OBTAINED BY YOU THROUGH THE APPLICATION WILL BE AS REPRESENTED OR MEET YOUR EXPECTATIONS; OR (IV) ANY ERRORS IN THE APPLICATION WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM AIMPOINT DIGITAL OR FROM THE SOFTWARE APPLICATION SHALL CREATE ANY REPRESENTATION, WARRANTY, OR GUARANTY.
Indemnification
8.1. Indemenification. Provider, at its own expense, shall defend, indemnify and hold Customer and its directors, officers and employees harmless from all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) insofar as such Losses (or actions in respect thereof) are related to: (i) a claim that the Software Application infringes any patent, copyright, trade secret, database right, or other intellectual property or proprietary right of any third party; (ii) a claim that the Software Application breaches an open source or any other third party license agreement; or (iii) any injury or damage caused by the Software Application or by Provider to persons or property. Customer agrees to give Provider the opportunity to defend or negotiate a settlement of any claim, and to cooperate, to the extent reasonable with Provider, at Provider’s sole expense, in defending or settling such claim. Provider shall not have the right, without Customer’s prior written consent, to settle any claim if such settlement (i) contains a stipulation to or admission or acknowledgement of, any liability or wrongdoing (whether in contract, tort or otherwise) or the incurrence of any costs or expenses, on the part of Customer; (ii) imposes any obligation upon Customer; or (iii) would otherwise have a material adverse effect on Customer’s business, as determined by Customer. Customer reserves the right, at its own expense, to participate in the defense of any matter otherwise subject to indemnification by Provider.
8.2. Notice. Provider shall give Customer prompt written notice of any action against Provider that could, if successful, have an adverse impact on Customer. Customer shall give Provider prompt written notice of any action related to any claim described in the Section titled “Indemnification,” of which it becomes actually aware (provided, however, that any failure by Customer to so promptly give notice to Provider will not relieve Provider of its indemnification obligations hereunder, except to the extent that it has been materially damaged thereby).
8.3. Indemnification Exception. Provider’s indemnification obligation does not apply if the alleged violation, infringement, or misappropriation solely results from Customer’s unauthorized (i) modification or enhancement of the Software Application; or (ii) use of the Software Application in combination with other products not provided or approved by Provider where the violation, infringement, or misappropriation would not have occurred from use of the Software Application but for such combination.
Entire Agreement
This Agreement constitutes the entire agreement between Customer and Provider regarding the use of the Software Application and supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions, whether oral or written, between the parties.
Severability
If any provision of this Agreement is found to be invalid, illegal, or unenforceable, the remaining provisions shall continue in full force and effect.
Waiver
No waiver of any provision of this Agreement shall be deemed a further or continuing waiver of such provision or any other provision, and Provider’s or Customer’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
Termination
Either party may terminate this Agreement upon ten (10) days’ written notice to the other party. Either party may terminate this Agreement immediately upon notice to the other party, for such party’s material breach. Upon termination of the Agreement, Customer will return the Software Application to Provider or delete the Software Application from its systems, at Customer’s option.