ISX ™

END-USER LICENSE AGREEMENT

 

IMPORTANT — READ THIS LICENSE AGREEMENT BEFORE USING THE ISX SOFTWARE. YOUR SIGNATURE ON THIS AGREEMENT IS REQUIRED. NONETHELESS, YOUR VENDOR’S FAILURE TO INSIST UPON RECEIVING A SIGNED COPY OF THIS AGREEMENT SHALL NOT INVALIDATE THESE TERMS AND CONDITIONS. YOUR RECEIPT OF THE SOFTWARE, WITHOUT MORE, ALSO CONSTITUTES YOUR AGREEMENT TO THE TERMS AND CONDITIONS OF THIS LICENSE. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, RETURN THE SOFTWARE AND ALL ACCOMPANYING MATERIALS TO YOUR VENDOR WITHIN TEN BUSINESS DAYS; YOUR MONEY WILL BE REFUNDED AND THIS AGREEMENT WILL BE RESCINDED.

NATURE OF THE TRANSACTION. THE ISX SOFTWARE IS LICENSED TO YOU BY INTERPRETIVE INFORMATION SYSTEMS, LLC. ("IIS"), A CORPORATION ORGANIZED UNDER THE LAWS OF THE STATE OF DELAWARE, USA. THE ISX SOFTWARE IS NOT BEING SOLD TO YOU. NEITHER IIS NOR YOUR VENDOR IS SELLING OR TRANSFERRING TITLE TO THE LICENSED SOFTWARE TO YOU. YOUR LICENSE OF THE LICENSED SOFTWARE WILL NOT COMMENCE UNTIL YOU, THE LICENSEE, HAVE EXECUTED THIS AGREEMENT AND RETURNED IT TO AN AUTHORIZED REPRESENTATIVE OF YOUR VENDOR. FOR PURPOSES OF THIS END-USER LICENSE AGREEMENT, "YOU" MEANS THE END USER AND LICENSEE HEREUNDER OF THE ISX SOFTWARE. "ISX SOFTWARE’ OR "LICENSED SOFTWARE" MEANS ANY SOFTWARE SUPPLIED TO YOU BY YOUR VENDOR AND REFERRED TO AS "ISX SOFTWARE," AS MAY BE FURTHER DESCRIBED IN APPENDIX A, "CUSTOMER-SPECIFIC INFORMATION"

  1. License. In consideration of the covenants herein, IIS grants you a nonexclusive license to use the ISX Software in machine-readable form, identified in Exhibit A, which together constitute the "Licensed Software," subject to the following terms and conditions.

  2. Scope of Rights. You may:
      • Install the Licensed Software in your own facility at the location specified in Attachment A;

      • Use the Licensed Software on the computer specified by type, model, serial number and Guest/Host operating systems specified in Attachment A;
      • Make one copy of the Licensed Software in machine-readable, object code form, for nonproductive backup purposes only, provided that IIS's proprietary legend is included.

       

You may not:
      • use, copy, modify, or distribute the Licensed Software (electronically or otherwise), or any copy, adaptation, transcription, or merged portion thereof, except as expressly authorized by IIS. You may not reverse assemble, reverse compile, or otherwise attempt to ascertain the source code for the Licensed Software.
      • transfer, lease, assign, or sublicense the Licensed Software except for a transfer of the Licensed Software in its entirety to (1) a successor in interest of your entire business who assumes the obligations of this Agreement or (2) any other party who is reasonably acceptable to IIS, enters into a substitute version of this Agreement, and pays an administrative fee intended to cover attendant costs.
      • install the Licensed Software in any other computer system or use it at any other location without IIS's express consent (which will not be unreasonably withheld). Note that a different password and expiration date will be necessary for using the software on a different computer.

 

  1. Taxes. You are solely responsible for payment of any taxes (including sales, use, intangible, and property taxes) resulting from your acceptance of this license and your possession and use of the Licensed Software, exclusive of taxes based on IIS's or your vendor’s income. If the laws of your jurisdiction require that IIS or your vendor include value-added taxes or any similar tax in the price of the Licensed Software, IIS or your vendor, as the case may be, shall do so. You agree to hold harmless IIS or your vendor from all claims and liability arising from your failure to report or pay such taxes.

  2. Support. IIS shall support the Licensed Software in accordance with its standard support policies in effect at any particular time. IIS reserves the right to offer support only for the most current version of the Licensed Software, including any updates or patches regarding which you are notified and which are supplied to you by IIS.

  3. Upgrades and patches. If, in its sole discretion, IIS deems it appropriate to supply upgrades and patches to the Licensed Software from time to time during the term of the license granted hereunder, IIS may do so. Any upgrades or patches shall be supplied at no cost to you.

  4. Your Responsibilities. You are responsible for selecting an operator who is qualified to operate the Licensed Software on your own equipment. You are also responsible for ensuring a proper environment and proper utilities for the computer system on which the Licensed Software will operate, including an uninterrupted power supply.

  5. Indemnification. If a third party claims that the Licensed Software infringes its patent, copyright, or trade secret, or any similar intellectual property right, IIS will defend you against that claim at IIS's expense and pay all damages that a court finally awards, provided that you promptly notify IIS in writing of the claim, and allow IIS to control, and cooperate with IIS in, the defense or any related settlement negotiations. If such a claim is made or appears possible, you agree to permit IIS to modify or replace the Licensed Software. If IIS determines that none of these alternatives is reasonably available, you agree to return the Licensed Software upon IIS's written request, and you will then receive a payment equal to your net book value for the Licensed Software determined in accordance with generally accepted accounting principles. In such case, the credit or payment will be the limit of IIS’s liability to you arising out of the termination of your license hereunder. IIS has no obligation for any claim based on your modification of the Licensed Software or its combination, operation, or use with any product, data, or apparatus not specified or provided by IIS. THIS PARAGRAPH STATES IIS'S ENTIRE OBLIGATION TO YOU WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.

  6. Limited Warranty and Limitation of Liability. IIS warrants, for your benefit alone, that the Licensed Software conforms in all material respects to the specifications for the current version of the Licensed Software set forth at Attachment A. This warranty shall apply only to the most current version of the Licensed Software issued by IIS from time to time. IIS assumes no responsibility for the use of superseded, outdated, or uncorrected versions of the Licensed Software. IIS is not responsible for obsolescence of the Licensed Software that may result from changes in your requirements.

    7. As your exclusive remedy for any material defect in the Licensed Software for which IIS is responsible, IIS shall attempt through reasonable effort to correct or cure any reproducible defect by supplying a patch or a bypass. In the event IIS does not correct or cure such nonconformity or defect after it has had a reasonable opportunity to do so, your exclusive remedy shall be the refund of the amount paid as the license fee hereunder. IIS shall not be obligated to correct, cure, or otherwise remedy any nonconformity or defect in the Licensed Software if you have made any changes whatsoever to the Licensed Software, if the Licensed Software has been misused or damaged in any respect, or if you have not reported to IIS the existence and nature of such nonconformity or defect promptly upon discovery thereof.

    EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, IIS DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS, AND WARRANTIES WITH RESPECT TO THE LICENSED SOFTWARE, INCLUDING ITS CONDITION, ITS CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS, ANY NEGLIGENCE, AND ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE.

    Except for indemnification for claims of infringement as set forth above, the cumulative liability of IIS to you for all claims relating to the Licensed Software and this Agreement, including any cause of action sounding in contract, tort, or strict liability, shall not exceed the total amount of all license fees paid to IIS hereunder, or the fair market value of your annual license for the ISX software, whichever is greater. This limitation of liability is intended to apply without regard to whether other provisions of this Agreement have been breached or have proven ineffective.

    IIS shall have no liability for loss of data or documentation.

    In no event shall IIS be liable for any loss of profits; any incidental, special, exemplary, or consequential damages; or any claims or demands brought against you, even if IIS has been advised of the possibility of such claims or demands. This limitation upon damages and claims is intended to apply without regard to whether other provisions of this Agreement have been breached or have proven ineffective.

  7. Term of Agreement; Termination. Your license of the Licensed Software shall become effective upon delivery of the Licensed Software and related password to you, and shall continue until the expiration date listed in Attachment A, unless sooner terminated as provided herein or renewed for another period. Note that a new password will be required for each renewal.

    8. Upon termination of this Agreement, all rights granted to you will terminate and revert to IIS. Promptly upon termination of this Agreement for any reason or upon discontinuance or abandonment of your possession or use of the Licensed Software, you must return or destroy, as requested by IIS, all copies of the Licensed Software in your possession (whether modified or unmodified), and all other materials pertaining to the Licensed Software (including all copies thereof). You agree to certify your compliance with such restriction upon IIS's request.

    If you use, copy, or modify the Licensed Software or if you transfer possession of any copy, adaptation, transcription, or merged portion of the Licensed Software to any other party in any way not expressly authorized by IIS, your license is automatically terminated.

  8. Miscellaneous. Unless otherwise agreed to in writing by the parties or required by local law, this Agreement shall be deemed to be entered into in the State of New York, United States of America, and shall be governed by and construed in accordance with the laws of the State of New York. The United Nations Convention on the Sale of Goods shall not apply to this transaction in any event.

  9. Entire agreement. THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF IIS'S OBLIGATIONS AND RESPONSIBILITIES TO YOU AND SUPERSEDES ANY OTHER PROPOSAL, REPRESENTATION, OR OTHER COMMUNICATION BY OR ON BEHALF OF IIS RELATING TO THE SUBJECT MATTER HEREOF. No modification of this Agreement shall be binding unless it is in writing and is signed by an authorized representative of the party against whom enforcement of the modification is sought.

  10. Notices. Any notices required or permitted under this Agreement shall be in writing and delivered in person or sent by any form of physical delivery which results in a return receipt, or by fax or electronic mail, if a copy of the transmittal information is retained.

  11. Partial Invalidity. In the event that any of the terms of this Agreement is or becomes or is declared to be invalid or void by any court or tribunal of competent jurisdiction, the remaining terms of this Agreement shall remain in full force and effect.

 

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