This is the sale of a license to use software, not a sale of software. This product is provided under this Agreement (as defined below) which is a legal agreement between you and the Licensor (as defined below) that defines what you (either an individual or a single entity) may and may not do with the NedGraphics software, and contains limitations, warranties and remedies.
Please read this Agreement carefully before installation or use of the NedGraphics software. Your installation or use of the NedGraphics software indicates your acknowledgement that you have read and understood this Agreement and agree to all of its terms. If you do not agree or accept all terms and conditions of this Agreement, promptly delete any copies of NedGraphics software on your system(s) and return any NedGraphics software to the Licensor. Licensor reserves the right to modify the terms of this Agreement with future releases of new or existing products, at which point you will be asked to agree to the modified agreement. By installing or using the NedGraphics software, you acknowledge that you are authorized to accept the terms and conditions of this Agreement for yourself and any entity on behalf of which you are licensing the NedGraphics software.
“The Agreement” refers to this license agreement.
“NedGraphics software” refers to any and all software that this license accompanies, including all auxiliary data and all documentation, whether printed, provided on disk, or provided online.
“Licensor” refers to NedGraphics Software B.V. with principal offices located at Groenekanseweg 70, 3732 AG De Bilt, The Netherlands.
“Geography” refers to the country in which the software was purchased.
Subject to the payment of the applicable license fees and your compliance with the terms and conditions of this Agreement, the Licensor hereby grants to you a non-exclusive, non-transferable, non-sublicensable right to use the number of copies of the NedGraphics software licensed which license is revocable upon termination of this Agreement in accordance with Section 2 below.
You may install the NedGraphics software in a single location on a hard disk or other storage device; or you may install and use the NedGraphics software on a file server for execution over your networks; and you may make backup copies of the NedGraphics software. You may make only as many copies of the NedGraphics software in machine-readable form as are required for backup purposes, provided that the Licensor’s copyright notice and proprietary legend are included.
You may transfer the NedGraphics software from one computer to another over your networks, or relocate the NedGraphics software on your sites, but you may not use more copies than are licensed over the networks or make more copies than are licensed for use on your networks or sites (exclusive of backup copies as provided for above). Your ability to transfer the NedGraphics software is limited to the Geography in which your software was purchased.
You may use the NedGraphics software in object code form only for your own business operations at your sites or networks. NedGraphics software may not be copied, photocopied, reproduced, translated, modified, or reduced to any electronic medium or machine-readable form except, in whole or in part, as permitted hereunder or expressly authorized by the Licensor.
This Agreement is effective for an unlimited duration unless and until earlier terminated as set forth herein. This Agreement will terminate automatically if you fail to comply with any of the terms, conditions, limitations or other requirements described herein or in your contract of sale. Upon any termination or expiration of this Agreement, you shall destroy all copies of the Software. In the event that this Agreement is terminated for any reason the price paid for the software is not refundable.
In the event that the Maintenance agreement has been cancelled, expires or otherwise terminates for any reason, the License provided for herein shall contemporaneously terminate without any further action by NedGraphics and Customer shall immediately cease all use of the Software. In the event Customer wishes to restart using the Software, then the Customer must re-license the software, pay any past due Maintenance fees, and enter into a new Maintenance agreement with NedGraphics. Additional charges may apply for all hardware or third party products as applicable. NedGraphics reserves the right to charge a re-installation fee (at the then current rate) to upgrade the system to the current version of the Software. In the event of any termination of the License in accordance herewith Customer shall immediately remove all Software from Customer systems, and return all original and copies of the Software media and documentation to NedGraphics.
Should Customer wish to cease the License of the Software, Customer shall provide NedGraphics ninety (90) days written notice in advance of the renewal term of that fact, remove all Software from Customer systems, and return all original and copies of the Software media and documentation to NedGraphics. Software Maintenance will cease at the end of that ninety (90) day notice period.
This license is limited to the version of the NedGraphics software delivered by Licensor and does not include subsequent versions, upgrades, updates, modifications or revisions, unless a separate maintenance contract is purchased. Licensor shall not provide any maintenance or support except as provided for in a separate maintenance contract which you have purchased (if any).
The NedGraphics software and all modifications and derivations thereof, and all intellectual property rights therein are owned in their entirety by the Licensor, and its structure, organization and code are the valuable trade secrets of the Licensor. The NedGraphics software is protected by all applicable International Treaty provisions. You shall not to modify, adapt, translate, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the NedGraphics software. You may use trademarks only to identify printed output produced by the NedGraphics software, in accordance with accepted trademark practice, including identification of trademark owner’s name. Such use of any trademark does not give you any rights of ownership in that trademark. Except as stated above, this License does not grant you any intellectual property rights in the NedGraphics software. Your possession, installation, or use of the NedGraphics software does not transfer to you any title to the intellectual property in the NedGraphics software, and you will not acquire any rights to the NedGraphics software except as expressly set forth in this Agreement. All copies of the NedGraphics software made hereunder must contain the same proprietary notices that appear on and in the NedGraphics software.
You shall not sell, lease, license, rent, loan, resell or otherwise transfer (except as set forth in Section 12), with or without consideration, the NedGraphics software. You shall not to permit any third party (other than third parties under contract with you which contains nondisclosure obligations no less restrictive than those set forth herein) to use the NedGraphics software in any form and shall use all reasonable efforts to ensure that no improper or unauthorized use of the NedGraphics software is made. You shall not permit third parties to benefit from the use or functionality of the NedGraphics software via a timesharing, service bureau or other arrangement, except to the extent such use is specified in the applicable price list, purchase order, or product packaging for the NedGraphics software. You shall not transfer any of the rights granted to you under this Agreement (except as set forth in Section 12). You may not reverse engineer, decompile, or disassemble the NedGraphics software. You shall not modify, or create derivative works based upon, the NedGraphics software in whole or in part. You may not copy the NedGraphics software except as expressly permitted in Section 1 above. You may not remove any proprietary notices or labels on the NedGraphics software. All rights not expressly set forth hereunder are reserved by Licensor.
a. Limited Warranty. Licensor warrants that for ninety (90) days from the date of original purchase the media (e.g., diskettes) on which the NedGraphics software is contained will be free from defects in materials and workmanship.
b. Customer Remedies. Licensor’s sole obligation and your exclusive remedy with respect to the foregoing warranty shall be replacement of the defective media in which the NedGraphics software is contained. You must return the defective media to Licensor at your expense. This limited warranty is void if the defect has resulted from accident, abuse, or misapplication. Any replacement media will be warranted for the remainder of the original warranty period. Outside the United States, this remedy is not available to the extent Licensor is subject to restrictions under United States export control laws and regulations.
c. Warranty Disclaimer. Except for the limited warranty set forth herein, the NedGraphics software is provided “as is.” To the maximum extent permitted by applicable law, Licensor disclaims all warranties, either express or implied, including but not limited to implied warranties of merchantability, fitness for a particular purpose, and non-infringement with respect to the NedGraphics software. You assume responsibility for selecting the NedGraphics software to achieve your intended results, and for the installation of, use of, and results obtained from the NedGraphics software. Without limiting the foregoing provisions, Licensor makes no warranty that the NedGraphics software will be error-free or free from interruptions or other failures or that the NedGraphics software will meet your requirements.
Under no circumstances and under no legal theory, whether in tort, contract, or otherwise, shall Licensor or its suppliers be liable to you or to any other person for any indirect, consequential or purely financial damages of any character including, without limitation, damages for loss of goodwill, work stoppage, computer failure or malfunction, or for any and all other damages or losses. Without limiting or modifying the provisions of “Customer Remedies” under Section 6.b. above, in no event will Licensor be liable for any damages in excess of the list price Licensor charges for a license to the NedGraphics software, even if Licensor shall have been advised of the possibility of such damages. This limitation of liability shall not apply to liability for death or personal injury to the extent that applicable law prohibits such limitation.
The NedGraphics software is not fault-tolerant and is not designed or intended for use in hazardous environments requiring fail-safe performance, including without limitation, in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, direct life-support machines, or any other application in which the failure of the NedGraphics software could lead directly to death, personal injury, or severe physical or property damage (collectively, “High Risk Activities”). Licensor expressly disclaims any express or implied warranty of fitness for High Risk Activities.
Third Party Claims. To the extent permitted by law, Licensor must defend, indemnify, and hold you harmless against damages, losses, costs, expenses (including reasonable attorney’s fees) and other liabilities arising out of claims, demands, suits, or causes of action by third parties (collectively ‘Claims’), arising out of or in connection with this Agreement which result from the infringement of any intellectual property rights of third parties caused by Licensor or resulting from your use of the NedGraphics software. Licensor will not be liable for damage to third parties to the extent such damage was caused by your negligence, wilful misconduct, or breach of any term or condition of this Agreement. In the event the NedGraphics software is held to constitute an infringement, Licensor, at its own expense, will use reasonable efforts to (as elected by Licensor in its sole discretion): (i) procure for you the right to continue to use the NedGraphics software; (ii) modify the NedGraphics software so that it is non-infringing; or (iii) provide functionally equivalent replacement software to you. Licensor has the right to control the defense of any Claim. Upon Licensor’s request, you will reasonably cooperate in such defense and Licensor must reimburse you for your reasonable out-of-pocket expenses in providing such cooperation. You will provide prompt notification of any Claim to Licensor. THE FOREGOING PROVISIONS OF THIS SECTION 9 STATE THE ENTIRE LIABILITY AND OBLIGATION OF LICENSOR, AND YOUR EXCLUSIVE REMEDY, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHT BY THE NEDGRAPHICS SOFTWARE, AND YOU HEREBY EXPRESSLY WAIVES ANY OTHER SUCH LIABILITIES OR REMEDIES.
This Section 9 will survive termination of this Agreement.
a. In case the NedGraphics software is stolen, lost or destroyed you can apply to Licensor for a new copy of the NedGraphics software. Licensor will provide a new copy at your expense. Media will be replaced in reasonable quantities at Licensor’s expense.
b. In case the NedGraphics hardware protection device gets stolen, destroyed or lost, you will have to buy a new hardware protection device and a new license from Licensor.
c. In case the NedGraphics hardware protection device system gets damaged while having its serial number clearly identifiable and the hardware protection device is returned to Licensor, Licensor will provide a replacement hardware protection device at your expense. No new license needs to be purchased from Licensor for this replacement protection device.
d. In case the NedGraphics software protection license gets stolen, destroyed or lost, you will have to buy a new license from Licensor.
This Agreement shall be governed and construed in accordance with the laws of the State of New York, U.S.A., without regard to the principles and applications of choice of law provisions, foreign laws, or international treaties. All parties to this Agreement do hereby submit to the personal jurisdiction of the New York United States District Court which shall be the exclusive forum for all disputes governed under this Agreement provided that all jurisdictional requirements are met and appeal is not limited.
This Agreement sets forth all rights for the user of the NedGraphics software. Licensor reserves the right to periodically audit you to ensure that you are not using any NedGraphics software in violation of this Agreement. During your standard business hours and upon prior written notice, Licensor may visit you and you will make available to Licensor or its representatives any records pertaining to the NedGraphics software. The cost of any requested audit will be solely borne by Licensor, unless such audit discloses an underpayment or amount due to Licensor in excess of five percent (5%) of the initial license fee for the NedGraphics software or you are using the NedGraphics software in an unauthorized manner, in which case you shall pay the cost of the audit. This Agreement represents the complete and exclusive agreement between Licensor and you concerning your use of the NedGraphics Software and all related matters and supersedes all prior agreements, negotiations, or understandings between Licensor and you in any way relating to these matters. No other terms, conditions, representations, warranties or guarantees, whether written or oral, express or implied, will form a part of this Agreement or have any legal effect whatsoever. This Agreement may not be modified except by a written addendum issued and executed by a duly authorized representative of Licensor. No provision hereof shall be deemed waived unless such waiver shall be in writing and signed by Licensor or a duly authorized representative of Licensor. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect. The parties confirm that it is their wish that this Agreement has been written in the English language only. You shall not assign this Agreement and all of its rights hereunder without the prior written consent of Licensor which may be granted or withheld in Licensor’s sole discretion.
Licensor and its affiliated companies take all legal steps to eliminate piracy of their software products. We pursue (both civilly and criminally) those who do so using all legal means available, including public and private surveillance resources. In this context, the Software may include a security mechanism that can detect the installation or use of illegal copies of the Software, and collect and transmit data about those illegal copies. Data collected will not include any customer data created with the Software. By using the Software, you consent to such detection and collection of data, as well as its transmission and use, if an illegal copy is detected.
Licensor also reserves the right to use a hardware lock device, license administration software, and/or a license authorization key to control access to the Software. You may not take any steps to avoid or defeat the purpose of any such measures. Use of any Software without any required lock device or authorization key provided only by Licensor is prohibited. If you are using an illegal copy of our software and do not consent to the collection and transmission of such data (including to the United States), cease using the illegal version and contact Licensor. to obtain a legally licensed copy.
You agree that we are permitted to collect, analyze, and utilize data and other information relating to the provision, use and performance of various aspects of the Products and Service, (but excluding personal data and any customer content) and we will be free to: (i) use such information and data to improve and enhance our Products and Services and for other development, diagnostic and corrective purposes; and (ii) disclose such data and information in an aggregated in de-identified form in connection with our business and without any attribution or identification to you.