KavaChart Enterprise License
VISUAL ENGINEERING, INC. ("VE") IS WILLING TO LICENSE THE SOFTWARE ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS SOFTWARE LICENSE AGREEMENT.
SOFTWARE LICENSE AGREEMENT
1. Parties. The parties to this Agreement are you, the licensee ("You") and VE. If You are not acting on behalf of Yourself as an individual, then "You" means Your company or organization.
2. The Software. The Software licensed under this Agreement consists of computer programs, data compilation(s), and documentation referred to as (i) KavaChart ProServe, (ii) KavaChart Enterprise Edition, or (iii) if You have received the complete source code to the Enterprise Edition, then the Software shall be referred to as the KavaChart Enterprise Source Code Edition, (the 'Software').
3. Use License.
3.1 Basic Grant. Subject to the terms and conditions hereof, this license permits You to install the Software on a single computer for the purpose of development, testing and to copy and install the Software's server framework, class files, server objects or portions thereof on one server ('Server License') for purposes of development, testing or deployment. The server may be the same computer or a different computer from that used for development purposes. The Software's source code ('Source Code') must be installed on the same computer as the Software used for development and testing. Source Code may be compiled into byte code and it may be modified by You but doing so may limit the extent to which VE can provide technical support. Source Code is restricted to Your internal use and shall be considered Confidential Information (as defined below). You may make one copy the Software, including Source Code, if applicable, for archival purposes, provided that any copy must contain the original Software's proprietary notices in unaltered form. You may transfer the Software from a computer or workstation to another computer or workstation provided that once the transfer is complete You either uninstall or destroy the Software on the computer from which the transfer is made.
3.2 Permitted Uses; Requirements For Additional Licenses. Subject to the terms and conditions hereof, You may use the Software to develop, run and deploy applications that are designed by You to operate in conjunction with the Software. Under certain conditions, Your use of the Software may require that You obtain an additional Server License(s) for internal use and/or an Application Distribution License for commercial distribution, as more specifically set forth below.
Subject to applicable additional licensing requirements described below, You may:
a. Develop client-side or desktop applications, and deploy these applications, royalty free and without a Deployment License; provided, however, such applications are for internal use and deployed solely within Your company or organization.
b. Develop applications, which execute (run) entirely or in part on a server, and are for internal use and deployment solely within Your company or organization. The Software or any portion thereof, including but not limited to the imaging framework, server objects, servlets, or class files, that execute on a server when used in conjunction with Your internal use application, requires a Server License for each and every server on which the Software executes. By way of illustration with no implied limitation, a server from which internal use applications are downloaded is not subject to a server license, however a server used to periodically update client-side or desktop applications is subject to a server license.
c. Develop and distribute commercial applications only in object code (bytecode) form (not Source Code), including but not limited to client-side, desktop, server-side and applet applications. Applications, when distributed by You or Your agent(s) to third party end-users, are to the extent of such distribution considered commercial applications and You must purchase a one-time, fully paid-up, Application Distribution license. An Application Distribution license is required for each commercial application and includes updates and upgrades to the same application. However, separately priced upgrades (enhancements) or new applications are subject to a new Application Distribution license. By way of illustration without limitation, a server-side application that is distributed as a commercial product and also used by You internally, requires both an Application Distribution license for commercial distribution and a Server License for each server on which the Software executes internally.
d. Develop and/or use the Software's applets (Applets) royalty free and without the need for any other license, when such Applets are viewed as part of a browser page, by the public or registered users of Your site, and accessed from a single domain or collection of domains owned and or controlled by You; provided, however, no content fees, access fees, syndication fees, or other fees are charged by you to access pages which include the Applets. To the extent You do charge a fee, of any kind, for others to access pages, which include Applets, then such use shall be considered a commercial application and You must purchase an Application Distribution license.
3.3 Restrictions. You may not: (i) incorporate all or part of the Software in any toolkit, development kit or other application that attempts to duplicate or in the opinion of VE substitute for the Software, (ii) incorporate the Software in an application unless Your application adds significant and primary functionality to the Software, (iii) expose, document or make public the Software's Application Programmer's Interface (API), (iv) use, copy, modify, alter, or transfer, electronically or otherwise, the Software, including documentation, except as expressly permitted in this Agreement, (v) reverse engineer, decompile, or disassemble the Software, except to the extent this restriction is expressly prohibited by applicable law; (vi) remove or obscure any proprietary rights notices or labels on the Software.
3.4 License Term For Use License. The term of the use license granted herein for the registered version of the Software shall be perpetual unless terminated by written notice by You for convenience or terminated by either party for material breach. Immediately upon termination of this license for any reason, You shall destroy or return to VE all copies of the Software, including documentation.
4. Evaluation License. If You have downloaded or otherwise received an evaluation version of the Software, You are authorized to use the Software, free of charge, for evaluation purposes during the evaluation period of thirty (30) days. During the evaluation period, You may copy the Software for archival purposes, provided that any copy must contain the original Software's proprietary notices in unaltered form. At the end of the evaluation period You must either purchase a license(s) to use the Software or remove and destroy or return the Software to VE. Your use of the Software for any purpose after the expiration of the evaluation period is not authorized. The evaluation copy of the Software is subject to the terms and conditions of this Agreement except that the Software is provided to You 'AS IS' with no support, warranty, or other obligation to You.
5. Purchase of Additional Licenses. Registered users of the Software may purchase license rights for additional authorized use of the Software in accordance with VE's then-current pricing schedule. Such additional licenses shall be governed by the terms and conditions hereof. You agree that, absent VE's express written acceptance thereof, the terms and conditions contained in any purchase order or other document issued by You to VE for the purchase of additional licenses, shall not be binding on VE to the extent that such terms and conditions are additional to or inconsistent with those contained in this Agreement.
6. Confidential Information. You acknowledge that the Software and Source Code embodies valuable trade secrets and confidential information proprietary to VE ('Confidential Information'). As the recipient of Confidential Information, You agree to the following provisions:
a. You will not use Confidential Information for any purpose other than as set forth in this Agreement,
b. You will use the same degree of care You use to protect Your own confidential information but in no event less than reasonable care to prevent unauthorized use, dissemination or publication of confidential information,
c. You may disclose Confidential Information to employees, contractors or agents provided they have executed and delivered to You an agreement containing terms and conditions substantially similar to those stated herein, You agree to promptly notify VE of any unauthorized disclosure of Confidential Information.
d. This Agreement imposes no obligation on You regarding Confidential Information which (i) was in Your possession, or known by You without an obligation to maintain confidentially prior to Your receipt of Confidential Information, (ii) is or becomes generally known to the public without violation of this Agreement, (iii) is obtained by You from a third party, without an obligation to keep such information confidential, or (iv) is independently developed by You without use of the Confidential Information.
e. Disclosure of Confidential Information will not be prohibited, if You give VE prior notice and such disclosure is: (i) compelled pursuant to a legal, judicial, or administrative proceeding, or (ii) otherwise required by law.
7. Support and Updates. For a period of thirty (30) days from the date of purchase, You shall have access to technical support and updates to the Software free of charge. After such period VE shall not provide support and/or Software updates unless You have purchased an annual Support and Update Subscription in accordance with VE's then-current pricing schedule. VE reserves the right to modify and/or enhance the Software and/or documentation without obligation to notify You of such changes.
a. Error Corrections: VE shall exercise commercially reasonable efforts to correct significant errors reported by You in the current unmodified release of the Software. in accordance with the following priority levels reasonably assigned to such error by VE. If a reported error has caused the Software to be inoperable or if Your notice to VE states that the reported error is substantial and material with respect to Your use of the Software, and VE can reproduce such error and/or in VE's reasonable judgment concurs with Your assessment, VE shall use its best commercial efforts to correct such error or to provide expeditiously a software patch or bypass around such error.
b. Updates and Enhancements: On an if-and-when-available basis, VE shall provide You with access to updates, upgrades, and new releases of the Software, which are not designated by VE as new software products for which it charges a separate fee. Software, including documentation, provided to You as an update is subject to the terms and conditions of this Agreement. You may not update more copies of the Software than You have purchased annual Support and Update Subscriptions.
c. Technical Support: VE shall endeavor to answer questions and provide general technical assistance related to Your use of the Software (via telephone, e-mail, fax or on-line chat).
8. Ownership. VE and its suppliers own the Software and all intellectual property rights embodied therein, including copyrights and valuable trade secrets embodied in the Software's design and coding methodology. The Software is protected by United States copyright laws and international treaty provisions. This Agreement provides You only a limited use license, and no ownership of any intellectual property.
9. Limited Warranty; Limitation of Liability. VE warrants only to You that the Software shall perform substantially in accordance with accompanying documentation under normal use for a period of thirty (30) days from the purchase date. The entire and exclusive liability and remedy for breach of this Limited Warranty shall be, at VE's option, either (i) return of the license fees paid for the Software, or (ii) replacement of defective Software and/or documentation provided the Software and/or documentation is returned to VE or destroyed. EXCEPT FOR THE LIMITED EXPRESS WARRANTY PROVIDED ABOVE, NEITHER VE NOR ANY OF ITS SUPPLIERS OR RESELLERS MAKES ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND VE AND ITS SUPPLIERS SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, AND DATA ACCURACY. THERE IS NO WARRANTY OR GUARANTEE THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE, OR THAT THE SOFTWARE WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE, QUALITY, ACCURACY, PURPOSE, OR NEED. YOU ASSUME THE ENTIRE RISK OF SELECTION, INSTALLATION, AND USE OF THE SOFTWARE. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE SOFTWARE IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER. No action for the above Limited Warranty may be commenced after one (1) year following the expiration date of the warranty.
10. Local Law. If implied warranties may not be disclaimed under applicable law, then ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO THE PERIOD REQUIRED BY APPLICABLE LAW. Some states do not allow limitations on how long an implied warranty may last, so the above limitations may not apply to You. This warranty gives You specific rights, and You may have other rights which vary from jurisdiction to jurisdiction.
11. Limitation of Liability. INDEPENDENT OF THE FORGOING PROVISIONS, IN NO EVENT AND UNDER NO LEGAL THEORY, INCLUDING WITHOUT LIMITATION, TORT, CONTRACT, OR STRICT PRODUCTS LIABILITY, SHALL VE OR ANY OF ITS SUPPLIERS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER MALFUNCTION, OR ANY OTHER KIND OF COMMERCIAL DAMAGE, EVEN IF VE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. IN NO EVENT SHALL VE'S LIABILITY FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, EXCEED THE AMOUNT OF THE PURCHASE PRICE PAID FOR THE SOFTWARE LICENSE.
12. Export Controls. You agree to comply with all export laws and restrictions and regulations of the United States or foreign agencies or authorities, and not to export or re-export the Software or any direct product thereof in violation of any such restrictions, laws or regulations, or without all necessary approvals. As applicable, each party shall obtain and bear all expenses relating to any necessary licenses and/or exemptions with respect to its own export of the Software from the U.S. Neither the Software nor the underlying information or technology may be electronically transmitted or otherwise exported or re-exported (i) into Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria or any other country subject to U.S. trade sanctions covering the Software, to individuals or entities controlled by such countries, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department's Table of Denial Orders. By downloading or using the Software, You agree to the foregoing and represent and warrant that You comply with these conditions.
13. U.S. Government End-Users. The Software is a "commercial item," as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the Software with only those rights set forth herein.
14. Licensee Outside The U.S. If You are located outside the U.S., then the following provisions shall apply: (i) Les parties aux presentes confirment leur volonte que cette convention de meme que tous les documents y compris tout avis qui siy rattache, soient rediges en langue anglaise (translation: "The parties confirm that this Agreement and all related documentation is and will be in the English language."); and (ii) You are responsible for complying with any local laws in Your jurisdiction which might impact Your right to import, export or use the Software, and You represent that You have complied with any regulations or registration procedures required by applicable law to make this license enforceable.
15. Assignment. You may not assign the Software or any rights under this Agreement without the prior written consent of VE, which consent shall not be unreasonably withheld. A condition to any transfer or assignment shall be that the recipient agrees to the terms of this Agreement. Any attempted transfer or assignment in violation of this provision shall be null and void.
16. Severability. If any provision of this Agreement is declared invalid or unenforceable, such provision shall be deemed modified to the extent necessary and possible to render it valid and enforceable. In any event, the unenforceability or invalidity of any provision shall not affect any other provision of this Agreement, and this Agreement shall continue in full force and effect, and be construed and enforced, as if such provision had not been included, or had been modified as above provided, as the case may be.
17. Arbitration. Except for actions to protect intellectual property rights and to enforce an arbitrator's decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the rules of the American Arbitration Association (.AAA.) then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in San Jose, California, and may be conducted by telephone or online. The arbitrator shall apply the laws of the State of California, USA to all issues in dispute. The controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Enforcement of any award or judgment shall be governed by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Should either party file an action contrary to this provision, the other party may recover attorney's fees and costs up to $1000.00.
18. Jurisdiction And Venue. The courts of Santa Clara County in the State of California, USA and the nearest U.S. District Court shall be the exclusive jurisdiction and venue for all legal proceedings that are not arbitrated under this Agreement.
19. Force Majeure. Neither party shall be liable for damages for any delay or failure of delivery arising out of causes beyond their reasonable control and without their fault or negligence, including, but not limited to, Acts of God, acts of civil or military authority, fires, riots, wars, embargoes, Internet disruptions, hacker attacks, or communications failures. Notwithstanding anything to the contrary contained herein, if either party is unable to perform hereunder for a period of thirty (30) consecutive days, then the other party may terminate this Agreement immediately without liability by ten (10) days written notice to the other.
20. Miscellaneous. This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement and merges all prior communications, representations, and agreements. This Agreement may be modified only by a written agreement signed by the parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. This Agreement shall be construed under the laws of the State of California, USA, excluding rules regarding conflicts of law. The application the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. This license is written in English, and English is its controlling language.