End User License Agreement (EULA)
SIFT™ End User License Agreement
THIS IS AN END-USER LICENSE AGREEMENT (THE “LICENSE”) FOR Avrio Software Inc. (“AVRIO SOFTWARE”) SOFTWARE AND DOCUMENTATION (COLLECTIVELY, THE “SOFTWARE PRODUCT”). PLEASE READ THE TERMS AND CONDITIONS OF THIS LICENSE CAREFULLY. BY BOTH PARTIES EXECUTING THIS LICENSE IN WRITING, YOU ACCEPT AND AGREE TO THESE TERMS . IF YOU DO NOT ACCEPT AND AGREE TO THESE TERMS IN THEIR ENTIRETY DO NOT EXECUTE THIS AGREEMENT IN WRITING. BY ACCEPTING THIS LICENSE, YOU ARE BOUND BY THE TERMS AND CONDITIONS SET FORTH HEREIN, INCLUDING THE WARRANTY DISCLAIMERS AND LIMITATION OF LIABILITY PROVISIONS.
- LICENSE GRANT. AVRIO SOFTWARE hereby grants the Purchaser (“Customer,” “You,” or “Ordering Activity”) a revocable, nontransferable, and non-exclusive license to use the Software Product strictly in accordance with the terms of this License in machine-readable, object code form only. This License shall extend to all updates, upgrades, and revisions supplied by AVRIO SOFTWARE or its affiliates, unless otherwise determined by AVRIO SOFTWARE.
1.1 Customer may install and access the registered version of the Software Product on an unlimited number of systems owned by Customer.
1.2 Customer may use the Software Product to process data only within the limitations of the data usage allowed per the terms of the license agreement.
1.3 Customer is licensing the Software Product for end use only and not for resale or distribution, which is prohibited.
1.4 The License shall be effective until terminated. Upon the termination of this License Agreement, (a) all rights granted to Customer hereunder cease; (b) Customer shall no longer be authorized to use or possess the Software Product; (c) Software Product license keys shall be terminated; and (d) Customer shall no longer be able to use or access the Software Product. The provisions of Sections 2, 3, 4, 5, 6, 9, 10, 11, 12, and 13 will survive the termination of this License Agreement.
- COPYRIGHT; AVRIO SOFTWARE’S RIGHTS
2.1 Customer shall not, alone, through any employee, agent, representative, or third party (or allow an employee, agent, representative, or third party): (a) modify the Software Product, application programming interfaces (APIs), Software Product development kits (SDKs), HTML, Cascading Style Sheet (“CSS”), any new releases, modifications and enhancements thereto, and any images, video, audio, text, and “applets” incorporated into the Software Product or any visual design elements provided or made available as part of the Software Product; (b) reverse compile, reverse assemble, reverse engineer or otherwise translate all or any portion of any Software Product; (c) copy, duplicate, replicate, use in whole or in part, or create derivative works from any element of the user interface, user experience, or features, of the Software Product; (d) share, disclose, or permit use of AVRIO SOFTWARE user names or passwords or otherwise allow parties that are not contractually obligated to Customer to use any Software Product on a time sharing, service bureau, application service provider (ASP), rental or other basis; (e) make copies of the Software Product, except for archival purposes; (e) remove, alter or deface (or attempt any of the foregoing) proprietary notices, labels or marks in any Software Product; (f) distribute any copy of any Software Product to any third party, including without limitation selling any Product with embedded Software Product in a secondhand market; (g) use the Software Product other than as authorized by AVRIO SOFTWARE; (h) deactivate, modify or impair the functioning of any disabling code in any Software Product; (i) circumvent or disable AVRIO SOFTWARE’s copyright protection mechanisms or license management mechanisms in the Software Product; (j) tamper with the Software Product or modify another website so as to falsely imply that it is associated with the Software Product, AVRIO SOFTWARE, or any other software or service provided by AVRIO SOFTWARE; (k) use the Software Product in violation of any applicable law or to support any illegal activity; (l) use the Software Product to violate the rights of any third party; or (m) attempt any of the foregoing.
2.2 Customer hereby acknowledges and agrees that: (i) all intellectual property rights subsisting in or relating to the Software Product, throughout the world, including but not limited to any and all (a) trademarks, service marks, domain names, twitter domains, usernames, passwords, trade dress, logos, and other brand or source distinctions, look and feel, user interface, user experience, including without limitation related registrations and applications for registration, and any and all goodwill related thereto; (b) copyrights in any and all works of authorship, including without limitation, computer programming, source code, and object code, user interfaces, and documentation, user manuals and other written materials relating to such code, copyright registrations, applications therefor, and moral rights; (c) trade secrets, know-how, specifications and drawings; (d) designs, ideas and inventions, including without limitation patents, patent applications and statutory invention registrations or certificates of invention; (e) divisions, continuations, renewals and re-issuances of the foregoing; and (f) other intellectual property rights of any type (collectively, the “AVRIO SOFTWARE IP”) are and shall remain at all times the exclusive property of AVRIO SOFTWARE; (ii) AVRIO SOFTWARE IP may not be exploited, reproduced or used by Customer except as expressly permitted in this license; (iii) Customer shall not have or acquire, nor seek any right, title or interest in or otherwise become entitled to any AVRIO SOFTWARE IP by developing, taking delivery of, making payment for, integrating, distributing or otherwise using AVRIO SOFTWARE IP.
2.3 All promotional, technical, and other documentation provided to Customer by AVRIO SOFTWARE is proprietary and confidential information of AVRIO SOFTWARE and is and shall remain the exclusive property of AVRIO SOFTWARE (“AVRIO SOFTWARE Proprietary Information”). Customer shall not, without AVRIO SOFTWARE ‘s advance written consent, copy, reproduce, disclose to a third party, or use such AVRIO SOFTWARE Proprietary Information, except as expressly permitted by AVRIO SOFTWARE.
- NO WARRANTIES; DISCLAIMERS. AVRIO SOFTWARE warrants that the SOFTWARE PRODUCT will, for a period of sixty (60) days from the date of your receipt, perform substantially in accordance with SOFTWARE PRODUCT written materials accompanying it. EXCEPT AS EXPRESSLY SET FORTH IN THE FOREGOING, THE SOFTWARE PRODUCT AND ANY RELATED SERVICES OR PRODUCTS PROVIDED TO YOU BY AVRIO SOFTWARE OR ITS AFFILIATES ARE PROVIDED AS IS AND WITHOUT WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, QUALITY, ACCURACY, OR THAT THE SOFTWARE PRODUCT WILL MEET YOUR REQUIREMENTS OR IS FREE FROM DEFECTS. USE OF THE SOFTWARE PRODUCT IS AT YOUR SOLE RISK. NEITHER AVRIO SOFTWARE, NOR ITS AFFILIATES, RESPECTIVE REPRESENTATIVES, EMPLOYEES, AGENTS, OR LICENSORS WARRANT THAT USE OF THE SOFTWARE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE. AVRIO SOFTWARE DISCLAIMS ANY AND ALL WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SOFTWARE PRODUCT, AND ANY AND ALL LIABILITY RELATED TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION, SERVICE, OR OTHER DATA PROVIDED THROUGH THE SOFTWARE PRODUCT.
3.1 AVRIO SOFTWARE HEREBY DISCLAIMS ANY AND ALL LIABILITY RELATED TO THE ACCURACY, VALIDITY, SUBSTANCE, RELIABILITY OR EFFECTIVENESS OF THE SOFTWARE PRODUCT.
3.2 THE EXTENT OF AVRIO SOFTWARE LIABILITY HEREUNDER IS LIMITED EXCLUSIVELY TO REPLACEMENT OF YOUR COPY OF THE SOFTWARE PRODUCT WITH ANOTHER COPY OR REFUND OF THE AMOUNTS PAID TO AVRIO SOFTWARE FOR USE OF THE SOFTWARE PRODUCT.
- LIMITATION OF LIABILITY. CUSTOMER AGREES THAT UNDER NO CIRCUMSTANCES WILL AVRIO SOFTWARE BE LIABLE FOR (I) ANY INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES (HOWEVER ARISING), INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT, OPPORTUNITIES, LOSS OF USE, INTERRUPTION OF BUSINESS, LOSS OF BUSINESS INFORMATION OR DATA, OR LOSS OF REVENUES OR DAMAGES TO BUSINESS OR REPUTATION ARISING FROM THE USE, PERFORMANCE, OR NON-PERFORMANCE OF THE SOFTWARE PRODUCT, WHETHER OR NOT AVRIO SOFTWARE HAS BEEN ADVISED OR MADE AWARE OF THE POSSIBILITY OF SUCH LOSS; OR (II) ANY COSTS OF PROCUREMENT OF SUBSTITUTE OR REPLACEMENT GOODS AND SERVICES, LOSS OF USE, LOSS OF OR CORRUPTION TO DATA, BUSINESS INTERRUPTION, LOSS OF PRODUCTION, LOSS OF REVENUES, LOSS OF CONTRACTS, LOSS OF GOODWILL, OR ANTICIPATED SAVINGS OR WASTED MANAGEMENT AND STAFF TIME, ARISING OUT OF THE USE OF THE SOFTWARE PRODUCT. THIS LIMITATION SHALL BE VALID NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY. THE SOFTWARE IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE OR RESALE IN ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, WHERE ANY FAILURE OF THE SOFTWARE COULD LEAD DIRECTLY OR INDIRECTLY TO SIGNIFICANT PROPERTY DAMAGE, DATA LOSS OR DISCLOSURE, DEATH, PERSONAL INJURY, OR PHYSICAL DAMAGED. The foregoing limitation of liability shall not apply to (1) personal injury or death resulting from Licensor’s negligence; (2) for fraud; or (3) for any other matter for which liability cannot be excluded by law.
- EXPORT RESTRICTIONS
5.1 Customer agrees not to export or re-export this Software Product or information pertaining thereto to any country for which a U.S. government agency requires an export license or other governmental approval without first obtaining such license or approval.
5.2 Use, duplication, or disclosure by the Government is subject to restrictions set forth herein or in the clause at FAR 52.227-14 when applicable.
- MAINTENANCE. Customer is responsible for installing Updates (as defined below) of the Software Product on a regular basis upon release of such Updates, updating all non-AVRIO SOFTWARE software used in conjunction with the Software Product, and regularly upgrading any hardware and memory on the system in which Customer uses the Software Product. The term “Updates” as used herein means modifications to the Software Product which contain corrections of errors and minor functionality enhancements, or which add bug fixes or patches to the Software Product.
- SUPPORT. AVRIO SOFTWARE, in its sole discretion, may, but is not required to, provide Customer with support services related to the Software Product (the “Support Services”). Such Support Services shall be subject to a separate agreement and applicable fees.
- SEVERABILITY. If any provision in this License is held invalid for any reason, such invalidity shall not affect the remaining provisions of this License, which shall continue in full force and effect to the full extent permitted by law.
- CHOICE OF LAW; FORUM. The validity, construction, and interpretation of this License shall be solely and exclusively governed by and construed in accordance with the laws of the State of Delaware.
- ENTIRE AGREEMENT. This License, together with any underlying GSA Schedule Contract, Schedule Pricelist, or Purchase Order(s), sets forth the entire agreement between Customer and AVRIO SOFTWARE with respect to the subject matter hereof and all other agreements, representations, communications and understandings, both oral and written, are superseded hereby. To the extent that there are any varying or additional terms contained on any written notification or document, the terms of this License shall govern except that a Government Purchase Order, the underlying GSA Schedule Contract, or Schedule Pricelist shall supersede the terms in this License.
- NO WAIVER. The failure or delay by AVRIO SOFTWARE to enforce any of its rights hereunder or to take action against any party in the event of any breach of this License shall in no way be deemed a waiver of any subsequent or further actions in the event of a future or other breach of the License.
- ASSIGNMENT. Customer and AVRIO SOFTWARE may not assign all or part of this License without the other party’s prior written consent.
- PAYMENT. The Price paid by Customer for the license and the payment terms are as described on the order page, in accordance with the GSA Pricelist where applicable.
- QUESTIONS. All questions concerning this License shall be directed to AVRIO SOFTWARE by filling out the “Contact Us” form on our website as follows: www.avriosoft.io/contact-us
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The Vendor recognizes that Federal agencies are subject to the Freedom of Information Act, 5 U.S.C. 552, which requires that certain information be released, despite being characterized as “confidential” by the vendor. When the end user is an instrumentality of the U.S. Government, neither this Rider, the Manufacturer’s Specific Terms nor the Schedule Price List shall be deemed “confidential information” notwithstanding marking to that effect.
Notwithstanding the terms of the Federal, State, and Local Taxes Clause, the contract price excludes all State and Local taxes levied on or measured by the contract or sales price of the services or completed supplies furnished under this contract. The vendor shall state separately on its invoices taxes excluded from the fees, and the Customer agrees either to pay the amount of the taxes (based on the current value of the equipment) to the contractor or provide evidence necessary to sustain an exemption, in accordance with FAR 52.229-1 and FAR 52.229-3.
Nothing contained herein shall be construed in derogation of the U.S. Department of Justice’s right to defend any claim or suit brought against the U.S. pursuant to its jurisdictional statute 28 U.S.C. § 516.
Recourse against the United States for any alleged breach of this agreement must be made under the terms of the Federal Tort Claims Act or as a dispute under the contract disputes clause (Contract Disputes Act) as applicable. The Contractor shall proceed diligently with performance of this contract, pending final resolution of any request for relief, claim, appeal, or action arising under the contract, and comply with any decision of the Contracting Officer.