IMPORTANT – READ CAREFULLY: MICRO SYSTEMATION AB (“MSAB”) IS WILLING TO LICENSE THE MSAB PRODUCT(S) TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS LICENSE AGREEMENT. PLEASE READ THE FOLLOWING TERMS CAREFULLY. DOWNLOADING, OPENING THE PACKAGE CONTAINING AN MSAB PRODUCT, INSTALLING, OR OTHERWISE USING THE PRODUCT WILL INDICATE YOUR ASSENT TO THE FOLLOWING TERMS AND CONDITIONS (“EULA”). IF YOU DO NOT AGREE TO THESE TERMS, THEN MSAB IS UNWILLING TO LICENSE THE PRODUCT TO YOU AND YOU MUST RETURN ALL MSAB SOFTWARE, HARDWARE, AND MATERIALS TO MSAB.
- Grant of License
Your ability to agree to this EULA with MSAB and use the software, hardware, materials and accompany documentation associated with one or more of the MSAB products listed on Appendix A (as may be amended from time-to-time by MSAB) (hereinafter the “Product”), is conditioned upon you agreeing to the business terms with MSAB to acquire a right to use the Product and payment of all applicable fees associated with the Product. References to “you” or “user” mean the individual end user licensee of the Product. Subject to the foregoing, your use of the Product shall be subject to the terms and conditions of this EULA including the grant of license below.
Conditioned on your continued compliance with the terms and conditions of this EULA, MSAB grants you a personal, revocable, limited, non-exclusive, nontransferable license to use the Product only for the purposes for which MSAB has permitted, including at all times in compliance with all applicable laws, and only during the term of its license agreement with you. This Agreement grants a license to (a) use a single instance of the Product subject to the permissible number or copies corresponding to your payment of all applicable fees, on a non-sublicensable basis, (b) make a single copy of the user manual and phone manual for internal business use only, and (c) download, install, and use all Product upgrades provided to you by MSAB which shall be governed by the terms of this EULA. Any rights granted hereby are licensed and not sold or otherwise transferred or assigned to you or any third party. MSAB also reserves the right to change or modify the Product in its sole discretion. You are solely responsible at all times for ensuring that your use of the Product is in compliance with all applicable laws.
In addition to any other remedies available to MSAB, a breach of this section shall therefore also entitle MSAB to seek equitable relief, including temporary or permanent injunctive relief as well as monetary damages, to protect its interest herein.
Ownership of the Product and any related intellectual property rights therein shall remain at all times with MSAB. You have no ownership rights in the Product. Rather, you have a license to use the Product as long as this EULA remains in full force and effect. Other than as expressly set forth herein, nothing in this EULA shall be construed as granting any right or license to you under or with respect to any patent, copyright, trademark, trade secret or other intellectual property of MSAB. Except as set forth herein, any other use of the Product by any other person or entity is strictly forbidden and is a violation of this Agreement. The Product contains material that is protected by copyright law, international agreements and other applicable laws. You may not remove any proprietary notice of MSAB or any of its licensors from any copy of the Product.
Use of the Product (or supporting hardware) requires a copy protection key(s) given to you by MSAB (the “Copy Protection Key”). The Copy Protection Key enables your use of the Product and is valid for one (1) copy of the Product. You may only use the Copy Protection Key on the same device in which you use the Product and you may not make the Copy Protection Key or the Product accessible over a public or private network. You may not publish, display, disclose, sell, rent, lease, modify, store, loan, distribute, or modify or create derivative works of the Product, or any part thereof, or copy the Product onto any public or distributed network, or delete or change any proprietary notices appearing on the Product including the Copy Protection Key. You may not assign, sublicense, convey or otherwise transfer, pledge as security or otherwise encumber the rights and licenses granted hereunder. You may not copy, reverse engineer, decompile, reverse compile, translate, adapt, or disassemble the Product, or any part thereof, nor shall you attempt to create source code from the object or executable code for the Product. You may not market, co-brand, private label, or otherwise permit third parties to link to the Product, or any part thereof. You may not use the Product, or any part thereof, for the benefit of any other person or entity (except that you may permit use by your contractors to whom you have outsourced your operations that relate to the use of the Product provided they only use the Product for your internal business purposes (on behalf of your business and not the business of another entity). You may not modify, or create a derivative version of the Product. Moreover, you may not merge the Product with another program, except as may be specifically described in the accompanying documentation. Notwithstanding the foregoing, any and all modifications to or customizations, configurations, or derivative versions of the Product are subject to this EULA and MSAB’s ownership rights to and in the Product. You may not use the Product apart from the devices on which the Product is embedded or made available to you by MSAB.
- Proprietary Rights
The Product including any and all associated software, hardware, materials, and documentation are “confidential information” of MSAB. Unauthorized use by you of the Product, or its associated software, hardware, materials and documentation will diminish the value of such information and its related rights and will constitute a material breach of this EULA. In addition to any other remedies available to MSAB, a breach of this Agreement shall therefore also entitle MSAB to seek equitable relief, including temporary or permanent injunctive relief as well as monetary damages, to protect its interest herein.
The Product may contain Open Source Software. This license does not apply to Open Source Software contained in the Product. Rather, the terms and conditions in the applicable Open Source Software license shall apply to the Open Source Software. If and to the extent there is a conflict between this Agreement and the license terms for any Open Source Software, the Open Source Software license terms control as to the software covered by those terms. “Open Source Software” means any software that is distributed as “free software”, “open source software,” or under a similar licensing or distribution model, including without limitation the GNU General Public License (GPL) (including the GNU Affero GPL License), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), BSD licenses, the Artistic License, the Netscape Public License, the Sun Community Source License (SCSL), the Sun Industry Standards License (SISL), and the Apache License
- Representations and Warranties
You represent and warrant that: (a) you are authorized to enter into this EULA and perform its obligations; (b) you shall agree to abide by the terms and conditions of this EULA; and (c) the information, reports, and records provided you provide to MSAB in connection with your use of the Product are accurate. EXCEPT AS SET FORTH IN THIS SECTION 5, TO THE MAXIMUM EXTENT PERMITTED BY LAW, MSAB DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, WARRANTIES OF TITLE, AGAINST INTERFERENCE WITH ENJOYMENT OF INFORMATION, OF NON-INFRINGEMENT, OF QUALITY AND FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY THAT THE INFORMATION IS ACCURATE OR COMPLETE. MSAB DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE PRODUCT WILL MEET ANY REQUIREMENTS OR NEEDS YOU MAY HAVE, OR THAT THE PRODUCT WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED FASHION, OR THAT ANY DEFECTS OR ERRORS IN THE PRODUCT WILL BE CORRECTED, OR THAT THE PRODUCT IS COMPATIBLE WITH ANY PARTICULAR PLATFORM. THE ENTIRE RISK AS TO THE AVAILABILITY, QUALITY, AND PERFORMANCE OF THE PRODUCT IS WITH YOU. MSAB IS NOT RESPONSIBLE FOR THE PERFORMANCE OF ANY THIRD PARTY SERVICE OR COMPLIANCE WITH ANY THIRD PARTY CONTRACTS WITH REGARDS TO ANY PRODUCTS, SERVICES OR DATA ACCESSIBLE FROM A WIRELESS PHONE OR ANY OTHER ELECTRONIC DEVICE WITH WHICH THE PRODUCT MAY BE USED OR ACCESSED. FURTHER, MSAB IS NOT RESPONSIBLE FOR YOUR OR A THIRD PARTY´S USE OF ANY PROPRIETARY OR PERSONALLY IDENTIFIABLE INFORMATION OBTAINED OR ACCESSED FROM ANY SUCH DEVICE.SOME JURISDICTIONS DO NOT ALLOW THE WAIVER OR EXCLUSION OF IMPLIED WARRANTIES SO THEY MAY NOT APPLY TO YOU. IF THIS EXCLUSION IS HELD TO BE UNENFORCEABLE BY A COURT OF COMPETENT JURISDICTION, THEN ALL EXPRESS AND IMPLIED WARRANTIES SHALL BE LIMITED IN DURATION TO A PERIOD OF THIRTY (30) DAYS FROM THE DATE OF PURCHASE OF THE PRODUCT, AND NO WARRANTIES SHALL APPLY AFTER THAT PERIOD.
- Limitation of Liability
IN NO EVENT WILL MSAB OR ITS SUPPLIERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT, OR FOR ANY CLAIM BY ANY OTHER PARTY, EVEN IF MSAB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MSAB’S AGGREGATE LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS EULA OR OTHERWISE WITH RESPECT TO THE PRODUCT AND DOCUMENTATION OR OTHERWISE SHALL NOT EXCEED THE SUM PAID FOR THE PRODUCT AND THE OTHER MATERIAL. BECAUSE SOME STATES/COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
- Export Restrictions
THIS EULA IS EXPRESSLY MADE SUBJECT TO ANY APPLICABLE LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS ON THE EXPORT OF THE PRODUCT OR INFORMATION ABOUT SUCH PRODUCT WHICH MAY BE IMPOSED FROM TIME TO TIME. YOU SHALL NOT EXPORT THE PRODUCT OR INFORMATION ABOUT THE PRODUCT WITHOUT COMPLYING WITH SUCH LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS. YOU AGREE TO INDEMNIFY MSAB AGAINST ALL CLAIMS, LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES, INCLUDING REASONABLE ATTORNEYS’ FEES, TO THE EXTENT SUCH CLAIMS ARISE OUT OF ANY BREACH OF THIS SECTION 7.
“ISP” IS THE SWEDISH AGENCY FOR NON-PROLIFERATION AND EXPORT CONTROLS, WHICH CONTROLS THE EXPORT OF PRODUCTS THAT MAY HAVE BOTH A CIVILIAN AND A MILITARY USE (“DUAL-USE PRODUCTS”). MANY OF MSAB’S PRODUCTS MAY BE DESIGNATED AS SUCH A DUAL-USE PRODUCT, THUS, MSAB IS OBLIGATED TO COMPLY WITH SUCH ISP REQUIREMENTS. MSAB RESERVES THE RIGHT TO REQUIRE CUSTOMERS WHO PURCHASE A DUAL-USE PRODUCT TO AGREE TO ADDITIONAL RESTRICTIONS ON EXPORT OUTSIDE OF THEIR ORIGINAL NATION STATE.
You agree to defend, indemnify, and hold harmless MSAB and all of its affiliates, employees, agents, directors, officers, employees, shareholders, attorneys, successors, and assigns, from and against any and all third party claims, proceedings, damages, injuries, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees and litigation expenses), relating to or arising from your breach of your respective express obligations, (including your obligation to use the Product in compliance with applicable laws), representations, or warranties in the Agreement. You shall use reasonable efforts to cooperate with MSAB in defense of any claim, and You acknowledge and agree that MSAB reserves the exclusive right, in its sole discretion, to participate in any claim and assume, at Your sole expense or such other cost sharing arrangement agreeable to MSAB, the control, defense, and/or settlement of any matter otherwise subject to this indemnification obligation.
This EULA shall continue in effect for as long as you pay all applicable fees owed to MSAB for your use of the Product in a timely manner. Any outstanding balances owed to MSAB for your use of the Product remaining more than 30 calendar days past due shall give rise to a material breach of the Agreement and MSAB may, in addition to any other remedies available at law or in equity, terminate immediately the right to use the Product. Termination can be initiated by MSAB in accordance with the foregoing without further notice to you.
You may terminate this EULA at any time by destroying or returning to MSAB all copies of the Product in your possession or under your control including the Copy Protection Key. Your right to use the Product terminates automatically if you violate any part of this EULA. Upon notification of termination, you agree to destroy or return to MSAB all copies of the Product, including the Copy Protection Key, and to certify in writing that all known copies, including backup copies, have been destroyed. All provisions relating to proprietary rights shall survive the termination of this EULA.
- Special Procedure for U.S. Government Sales
The Product is provided to the United States of America and/or any other country and its or their respective instrumentalities, agencies, or offices, regardless of form (collectively, the “Government”) with RESTRICTED RIGHTS and LIMITED RIGHTS (as applicable). Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause at D.F.A.R.S. 252.227-7013, subparagraphs (b), (c)(2) and (g) of the Rights in Data – General clause at 48 C.F.R. 52.227-14, or subparagraphs (b)(1) and (2) of the Commercial Computer Software–Restricted Rights at 48 C.F.R. 52.227-19, as applicable. The Product and accompanying documentation is commercial in nature and was not first produced in the performance of any Government contract. Accordingly, the Product and documentation available through MSAB are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. For any use of the Product or documentation that would require compliance by MSAB with a particular government requirement not identified herein or that would affect MSAB’s rights, the applicable government entity, agency, or office must notify MSAB of said government requirement and obtain a waiver or exemption from such requirements for the benefit of MSAB before any government access to the Product or documentation.
- Additional Terms
Additional notices, terms, and conditions for Microsoft Windows apply to your use of the Products to the extent such Products contain Microsoft Windows. Please review or visit such additional terms by visiting www.microsoft.com. You agree to abide by such other notices, terms, and conditions, as applicable. If there is a conflict between this EULA and the terms and conditions for Microsoft Windows, MSAB shall resolve any conflict in good faith in its sole discretion but the latter terms shall generally control with respect to your use of Microsoft Windows.
This EULA shall be construed, interpreted and governed by the laws of the Commonwealth of Virginia, U.S.A. without regard to its conflicts of laws provisions. The exclusive forum for any dispute arising out of or relating to this EULA shall be the federal or state courts located in Virginia, U.S.A., including the Eastern District of Virginia, with each party agreeing that it is subject to personal jurisdiction in such forum. This EULA along with any information submitted on the MSAB website related to the purchase of the Product shall constitute the entire agreement between the parties hereto. If there is any conflict between the terms and conditions of this EULA and the information submitted on the MSAB website, the terms and conditions of this EULA shall control as it relates to use of the Product. All other conflicts shall be resolved by MSAB in good faith. This EULA, the rights granted hereunder, and Product shall not be assigned by you without the prior written consent of MSAB. In the event of such approval, you agree to deliver all copies of the Product to the transferee along with this EULA, and the transferee must accept the terms and conditions of this EULA as a condition to any transfer, and your license to use the Product terminates upon transfer. Any waiver or modification of this EULA shall only be effective if it is in writing and signed by both parties hereto. If any part of this EULA is found invalid or unenforceable by a court of competent jurisdiction, the remainder of this EULA shall be interpreted so as to reasonably affect the intention of the parties. MSAB is not bound by any provision of any purchase order, receipt, acceptance, confirmation, correspondence, or otherwise, unless MSAB specifically agrees to the provision in writing.
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