END USER LICENSE AGREEMENT
IMPORTANT: PLEASE, READ CAREFULLY The present End User License Agreement of the ProxyVan company (“Agreement”) is a legal Agreement between “you” (natural person or legal entity) and the ProxyVan company that conducts business under the name of the ProxyVan (“ProxyVan”) subdivision, with regard to the ProxyVan software product(s) (“SOFTWARE PRODUCT”), delivered under this Agreement, including computer software, object code copies, and the entire contents of files, disk(s), CD(s), and other media, to which this Agreement applies, including any samples, printed materials, online or electronic documentation. All copies of the SOFTWARE PRODUCT and all Updates of the SOFTWARE PRODUCT (if any) are provided to you under the ProxyVan license according to the present Agreement. Any software, including any open source components and/or New versions provided along with the SOFTWARE PRODUCT subject to a separate End user license agreement are provided to you pursuant to the conditions of such license agreement. By installing, copying, downloading, accessing, or using the SOFTWARE PRODUCT in any way, you agree to abide by this Agreement that has priority over any other document and regulates your usage of the SOFTWARE PRODUCT, except for the case if you and ProxyVan have reached an arrangement to sign a license agreement with ProxyVan that applies directly to providing the corresponding SOFTWARE PRODUCT (PRODUCTS) under a privately negotiated transaction, in which case such signed License agreement has priority and regulates your use of the SOFTWARE PRODUCT. You agree that this Agreement is enforceable against you, as any agreed written contract signed by you. If you do not agree with the terms and conditions of this Agreement, you have no right to, and must not, download, install, or use the SOFTWARE PRODUCT.
1.0 DEFINITIONS. When used in this Agreement, the following terms have the below mentioned meanings, and other capitalized terms used in this Agreement have meanings specified for them in this Agreement:
1.1 “Core” is a physical server processor able to respond to the basic control computer commands, and to perform these commands. The central processing unit (CPU) can have one or several Cores, and specific server can have several sockets, each of which can contain several Cores.
1.2 “Desktop version of the SOFTWARE PRODUCT” is an independent application that is controlled from the local disk and does not require network connection for its work.
1.3 “Installation manual” is a computer file in Microsoft Word or Adobe PDF format, or a text file containing information that can be needed to the User to install or to operate the SOFTWARE PRODUCT.
1.4 “Basic license” is a license(s) for the SOFTWARE PRODUCT provided to you for the general industrial use subject to conditions laid down in this Agreement.
1.5 “Additional license” is a license(s) for the SOFTWARE PRODUCT provided by ProxyVan for individual SOFTWARE PRODUCTS in addition to the Basic licenses for specific purposes. Each Additional license requires a Basic license, and the validity period of the Additional license should not exceed the validity period of the corresponding Basic license.
1.6 “System” is a place of physical location or operation, where the SOFTWARE PRODUCT is located and operated on an individual server, or to which the ProxyVan has assigned a single operational identification number (“Site identifier”).
1.7 “Update” any modified version, patch, or revision of the SOFTWARE PRODUCT.
1.8 “New version” means any new release of the SOFTWARE PRODUCT arising from architectural, major, or minor changes of the SOFTWARE PRODUCT. New versions may be provided with separate Agreement. The Agreement provided with the New version, replaces all Agreements or signed license agreement relating to the previous versions of the SOFWARE PRODUCT.
1.9 “User” means you or a natural person being your employee. Your contractor who needs to use the SOFTWARE PRODUCT temporarily in order to render services on your behalf, can also act as a User.
1.10 “Internet version of the SOFTWARE PRODUCT” is a web-service based SOFTWARE PRODUCT accessed by the user solely through the World Wide Web, Internet, or Intranet.
1.11 “XML files” are XML (eXtensible Markup Language) files generated by the SOFTWARE PRODUCT (when appropriate).
1.12 “XSL Style Sheets” is an XSL (eXtensible Stylesheet Language) view of the class of XML files that, when included into the SOFTWARE PRODUCT, describe, how class elements are converted into XML document (extensible markup language) using the list of formatting commands.
2.0 LICENSING. Providing that you do not violate any terms and conditions of this Agreement, the ProxyVan hereby grants you limited non-exclusive license for installation and use of the SOFTWARE PRODUCT, in object code form only, strictly for your internal purposes, and in strict accordance with this Agreement. The License should not be transferred to other persons, unless otherwise expressly specified in this Agreement. You accept complete responsibility for your choice of the SOFTWARE PRODUCT with regard to achieving the intended objectives, for its installation and operation, and for results obtained using the SOFTWARE PRODUCT.
2.1 Minimum requirements. The SOFTWARE PRODUCT can require that your System should meet certain minimum requirements to the software, hardware, and/or parameters of the Internet connection. Specific minimum requirements to the software, hardware, and/or Internet connection parameters depend on the SOFTWARE PRODUCT and on the license type, and can be provided by ProxyVan upon demand.
2.2 License type and mode. SOFTWARE PRODUCTS are provided with Basic licenses or Additional licenses. There exist two (2) types of Basic licenses and seven (7) types of Additional licenses that are described below. Depending on your license, it can be used either in Concurrent access mode, or in Individual access mode. Type and mode of a license for the SOFTWARE PRODUCT, to which you are subscribed or which you have obtained, is defined (according to the abbreviations stated below) in the product description stated in the offer, price quotation, or on the SOFTWARE PRODUCT package, and is verified by the ProxyVan licensing system, if the SOFTWARE PRODUCT contains the electronic license management tool. Unless otherwise specified, the mode and type of your license is the Basic license with Individual access. Every license of the SOFTWARE PRODUCT is covered by this Agreement.
2.2.1 Basic licenses are described below: (a) Concurrent access (CA) mode allows Users to send to the server, and to obtain from the server, all available licenses for the SOFTWARE PRODUCT. At any time, you can start so many instances of the SOFTWARE PRODUCT, as allow the existing licenses. If the SOFTWARE PRODUCT can work offline, as specified in the Installation manual, the User can obtain a license from the System for the purpose of its mobile or home use; then the total amount of licenses will be decreased, until the license will be sent back to the System. If the SOFTWARE PRODUCT can not work offline, then an Individual access License is required in order to use the SOFTWARE PRODUCT on mobile or home computer. If the expected number of Users of the SOFTWARE PRODUCT exceeds the number of licenses, and no license management tool is embedded into the SOFTWARE PRODUCT, then it is necessary to use a reasonable mechanism or process to ensure that the number of persons that simultaneously use the SOFTWARE PRODUCT would not exceed the number of licenses. You agree to use the licensing mechanism, license files, hardware keys, and other protection devices related with the SOFTWARE PRODUCT, and undertake not to attempt to switch off, decompile, or replicate such devices. (b) Individual access (IA) mode allows storing a single instance of the SOFTWARE PRODUCT on the hard disk and its downloading for use on a single specific workstation, or, in case of a software developed for use on a mobile device, for use on a single specific mobile device.
2.2.2 Additional licenses are described below: (a) Redundant license (BCK) is intended solely for “cold standby”, when it is necessary to switch the SOFTWARE PRODUCT manually to the Additional license in case of Basic license failure. (b) Developer license (DEV) is a license for the Internet version of the SOFTWARE PRODUCT that is provided solely in addition to the Basic license for such SOFTWARE PRODUCT for the purpose of development and testing of your web-site created using the SOFTWARE PRODUCT only. Developer licenses should not be used for production purposes (i.e., for web-sites used to the full extent). (c) Load balancing license (LOB is a license for the Internet version of the SOFTWARE PRODUCT intended solely to be used as a second or additional license in a web group in order to balance the load of the Basic license on several servers represented by one (1) IP address. (d) Replicating license (RDT) is intended solely for “hot standby”, when it is necessary to switch the SOFTWARE PRODUCT automatically to the Additional license in case of Basic license failure. (e) Test license (TST) is intended solely for the purposes of testing. In addition, ProxyVan also allows using the Test license to conduct free training on test servers with total duration of no more than thirty (30) days per year. (f) Training license (TRN) is intended solely for the purposes of training. (g) Secondary license (SEC or TFB) is intended solely for non-production use for the purpose of training, development, testing, transfer to another resource, backup, etc. The number of Secondary licenses should not exceed the number of purchased Basic licenses.
2.3 Updates and New versions. If the SOFTWARE PRODUCT represents an Update o New version for the previous version of the SOFTWARE PRODUCT, then it is necessary to have the valid license for such previous version in order to use the Update of New version. The SOFTWARE PRODUCT and any its previous version can’t be used by any third party or be transferred to it. All Updates and New versions are provided to you basing on license exchange, and are covered by all terms and conditions of this Agreement provided with the last version of the SOFTWARE PRODUCT. Using the Update or New version you (i) agree to voluntarily refuse of your right to use any previous versions of the SOFTWARE PRODUCT, except where the previous version is required to migrate to the Update or New version; and (ii) acknowledge and agree that all obligations that ProxyVan might have with regard to support of the previous version(s) of the SOFTWARE PRODUCT cease from the date when the Update becomes available. If an Update is provided, you commit to take prompt actions in order to install such Update according to ProxyVan guidelines. If you fail to do this, you acknowledge that the SOFTWARE PRODUCT may work incorrectly, and you will not be able to use all available functions of the SOFTWARE PRODUCT. In such case, ProxyVan shall not be liable for additional expenses incurred by you due to your not having installed such Update.
3.0 RIGHTS AND LIMITATIONS. You can get acquainted with individual exceptions and additional conditions concerning the SOFTWARE PRODUCT GeoMedia Viewer, Beta versions of software products, Trial software and Training software listed in the end of this Agreement.
3.1 YOU HAVE THE FOLLOWING RIGHTS UNDER YOUR LICENSE: 3.1.1 You are entitled to make one copy of the SOFTWARE PRODUCT medium in machine readable or printed form solely for the backup. ProxyVan retains title to all copies created by the User. You are not entitled to transfer the rights for the backup copy except for the cases when you transfer all rights for the SOFTWARE PRODUCT and license, as enacted by Section 3.1.2. Any other copying of the SOFTWARE PRODUCT, any use of copies in number exceeding the number of copies that you are entitled to use and for which you have paid, as well as any distribution of the SOFTWARE PRODUCT that is not explicitly allowed by this Agreement, violates this Agreement, as well as the federal law and provisions of the existing applicable legislation.
3.1.2 You are entitled to transfer the SOFTWARE PRODUCT and license within your company (corporate transfer) subject to the Software Transfer Rules of the ProxyVan department for security, management, and infrastructure (SG&I) (“SG&I Software Transfer Rules”) and provisions of this Agreement. Upon request, ProxyVan can provide SG&I Rules on software transfer. If you transfer the SOFTWARE PRODUCT, it is necessary either transfer all copies, modifications, and combinations of software components in the same time to the same party in any form, or to destroy all above mentioned objects that were not transferred.
3.1.3 For the Internet version of SOFTWARE PRODUCTS: (a) You are entitled to use a range of web sites and to provide a range of web services to your users-customers under one license. (b) You are entitled to distribute modules of web pages (e.g., ActiveX controls, Java applications and applications, Enhanced Compressed Wavelet (ECW) modules) among Users. (c) You are entitled to load this Internet version of the SOFTWARE PRODUCT on several computers inside a group acting as a single web server providing that you have obtained the corresponding number of Licenses for load distribution or number of Cores from the ProxyVan, and the total number of used map servers or the number of Cores does not exceed the number of licenses. (d) Unless otherwise specified in the Installation manual, your are entitled to copy and distribute the Java script source files for the card type support of the output vector of the Internet version of the SOFTWARE PRODUCT and your interrelated web sites, and you also can perform derivative works solely for internal use only.
3.1.4 Unless otherwise specified in the Installation manual, you are entitled to use XSL Stylesheets and derivative works for SOFTWARE PRODUCTS containing XLS Stylesheets for the view of XML Files solely with the purpose of providing XML Files and their derivative works (jointly referred to as “XML Products”) for your enterprise. You are not entitled to distribute XSL Stylesheets and XML products separately. XSL Stylesheets can't be used for creating defamatory, dishonoring, fraudulent, obscene, indecent or pornographic materials, or any materials that violate intellectual property rights of third parties or are illegal due to any other reason. All XSL Stylesheets delivered along with the SOFTWARE PRODUCT are and will remain the property of the ProxyVan.
3.1.5 For SOFTWARE PRODUCTS delivered together with the Application Programming Interface (API) and/or configuration settings, unless otherwise specified in the Installation manual, you are entitled to use API to develop your own add-ins for SOFTWARE PRODUCTS, and to use configuration settings for configuring the SOFTWARE PRODUCT, but only within the framework provided by the API and/or configuration settings. If the ProxyVan does not transfer you any rights for its intellectual property (as per the definition of this term given in Section 6.1.2) by granting you permission for developing your own add-ins using API or for software configuring using configuration settings, you hereby agree and acknowledge that the ProxyVan reserves all rights for its SOFTWARE PRODUCT, API, and configuration settings. The ProxyVan does not provide any representations and warranties with respect to such add-ins and/or configurations and, to the extent permitted by applicable law, the ProxyVan and its suppliers disclaim all warranties, both explicit and implied, in regard to such add-ins and/or configurations, including implied warranties of merchantability, fitness for a particular purpose, use in high risk conditions, and non-infringement. Your usage of such add-ins and/or configurations is performed at your own risk, and you hereby agree to indemnify and hold harmless the ProxyVan and its suppliers from liability related with such add-ins and/or configurations.
3.1.6 You solely bear the responsibilities and risks with regard to replication of any systems, software, applications, and data, as well as proper use of the SOFTWARE PRODUCT.
3.1.7 At any time you should preserve, reproduce, and include all copyright notices, patents, trademarks, and genuineness on all copies, modifications, and parts of the SOFTWARE PRODUCT, which includes its installation, operation, acquisition of a license from the server, sending a license to the server, and/or merge with another program.
3.2 THE FOLLOWING IS PROHIBITED UNDER YOUR LICENSE: 3.2.1 You are not entitled to sell, lease, deliver under license, rent out, lend, or otherwise transfer the SOFTWARE PRODUCT or any its copy, modification, or combination of software elements to another company or legal entity (i.e., carry out an inter-company transfer), or other person. Any such unauthorized transfer results in automatic and immediate termination of license.
3.2.2 You are not entitled and cannot authorize any other person to decompile, disassemble, or otherwise perform reverse engineering of the SOFTWARE PRODUCT.
3.2.3 You are not entitled and cannot authorize any other person to bypass any engineering constraints of the SOFTWARE PRODUCT.
3.2.4 You are not entitled and cannot authorize any other person to publish the SOFTWARE PRODUCT for copying and use by other persons.
3.2.5 You are not entitled and cannot authorize any other person to use, copy, modify, distribute, deliver under license, or transfer the SOFTWARE PRODUCT or any its copies, modifications, or combinations of software elements, wholly or partially, except as otherwise explicitly provided by this Agreement.
3.2.6 You are not entitled and cannot authorize any other person to re-use components of the SOFTWARE PRODUCT with a software different from the one, for which you were granted a license, or on other computers. License is granted for the SOFTWARE PRODUCT as for a single product.
3.2.7 You are not entitled and cannot authorize any other person to bypass any licensing mechanism of the SOFTWARE PRODUCT or licensing rules.
3.2.8 You are not entitled and cannot authorize any other person to use or study the SOFTWARE PRODUCT for any purposes adverse to the interests of the ProxyVan.
3.2.9 You are not entitled and cannot authorize any other person to use the SOFTWARE PRODUCT in any way that does not meet terms and conditions explicitly provided in this Agreement.
3.2.10 For the Desktop version of SOFTWARE PRODUCTS with Individual access: (i) You are not entitled to use the SOFTWARE PRODUCT for web-oriented applications. (ii) You are not entitled to allow several users to use the SOFTWARE PRODUCT on one workstation simultaneously.
3.2.11 You are not entitled and cannot authorize or allow any other person to use the Developer license for production purposes (i.e., for a fully operated web site).
3.2.12 You are not entitled and cannot authorize or allow any other person to communicate to a third party any results of check tests of the SOFTWARE PRODUCT. Sample or demo data set(s), as well as corresponding scenarios of program runs, delivered with individual SOFTWARE PRODUCTS (“Sample data”) are provided solely to instruct the User with respect to operation of the SOFTWARE PRODUCT, for which such Sample data are supplied. Sample data are provided under license together with the SOFTWARE PRODUCT and should not be redistributed, provided under license, sold, transferred, used, or otherwise employed for production purposes without prior written consent from ProxyVan.
3.2.13 The SOFTWARE PRODUCT is not hundred percent (100%) fail safe. The SOFTWARE PRODUCT is not intended and designed for use in any situation when any error or fault of the SOFTWARE PRODUCT can result in death or severe injury of any person or in severe material, property, or ecological damage (“High risk conditions”). You are not entitled to operate the SOFTWARE PRODUCT under High risk conditions or in relation with such conditions. Operation under High risk conditions is STRICTLY PROHIBITED. Operation under High risk conditions included, for example, the following: aircraft handling or other mass transportation facilities, nuclear or chemical sites, as well as Class III medical devices. Hereby you agree not to operate the SOFTWARE PRODUCT under High risk conditions or in relation with such conditions.
3.2.14 For the Internet version of SOFTWARE PRODUCTS: (a) You are not entitled to use the Internet version of SOFTWARE PRODUCTS to operate the software as a service or hosting without prior written consent from ProxyVan. (b) You are not entitled to use the Load distribution license (LOB) for the Internet version of the SOFTWARE PRODUCT separately from its Basic license. (c) You are not entitled to use Basic licenses (and their corresponding Load distribution licenses) that were ordered or supplied under one component number (e.g., “product name: WORKGROUP”), for other companies or organizations, or at different physical geographical address. (d) Limitations with respect to the Core concerning the ProxyVan APOLLO SOFTWARE PRODUCT: license fees and installation restrictions with respect to the ProxyVan APOLLO SOFTWARE PRODUCT are based on the number of Cores on the server where ProxyVan APOLLO SOFTWARE PRODUCTS are installed. For each product, a license as a unit can be granted for four (4) Cores, up to a maximum of thirty two (32) Cores. You are responsible for determination of the number of Cores on your host-server and for ordering licenses for the required number of Cores. Each license for the ProxyVan APOLLO SOFTWARE PRODUCT can be only installed on one server. For example, the license as a unit for 8 Cores does not entitle you to install two instances of the component, one on two four core servers. In the virtualized data processing environment, where the hyper-threading technology of “virtual machines” or other similar technologies are created “virtual processors” that may not correspond to physical Cores of the server, your usage rights depend on the ratio between the number of Cores for which you are granted the license, the number of physical Cores on the host server, and the number of processors available for the ProxyVan APOLLO SOFTWARE PRODUCT in the virtualized environment, as follows: if the number of Cores for which you are granted a license, is equal or exceeds the number of physical Cores on the host server, then additional virtual processors created using hyper threading or other methods of multitasking support of the physical Core, do not violate your license restrictions. However, if you want to install the ProxyVan APOLLO SOFTWARE PRODUCT on a host server where the number of physical Cores exceeds the number of Cores, for which you were granted the license, you are entitled to use the ProxyVan APOLLO SOFTWARE PRODUCT only within the “guest” virtual machine that has access to such maximum number of processors (virtual, physical, or both) that is less or equal to the number of Cores, for which you were granted the license.
3.3 Exemption of liability by you. You agree to indemnify and hold harmless the ProxyVan from liability related with any causes for an action, any claims, expenses, costs, and/or damage caused to the ProxyVan due to your or any User's violation of any restrictions and prohibitions specified in this Agreement.
4.0 VALIDITY TERM. This Agreement is valid till its cancellation or till the expiry of your subscription for the software or its lease without its renewal. This Agreement can be terminated (а) by you, by means of returning the original SOFTWARE PRODUCT to the ProxyVan company, or by means of deleting the SOFTWARE PROTUCT permanently together with all its copies, modifications, or combinations of SW components in any form; (b) by the ProxyVan company, in case of your violation of any terms and conditions of this Agreement or in case of your failure to pay the corresponding license or subscription fee(s); (с) at the moment when you install the New version transferred under new license agreement that covers the New version of the SOFTWARE PRODUCT; and (d) at the end of the validity term of the corresponding license files, if the granted license is temporary. You agree to stop using and delete permanently the SOFTWARE PRODUCTS (and all copies, modification, combinations of elements of the SOFTWARE PRODUCT in any form, as well as all components of the SOFTWARE PRODUCT) upon the termination of this Agreement or expiry of your subscription for the software (depending on which date is earlier) and to present the ProxyVan company the written confirmation of the fact of such deletion.
5.0 CHECKS. ProxyVan is entitled to check (during your normal business hours) your use of the SOFTWARE PRODUCT and your compliance with terms and provisions of this Agreement. ProxyVan must notify you about the check thirty (30) days before it. The right for checking can be exercised two times per calendar year. Before the beginning of the check, ProxyVan employees sign a reasonable non-disclosure agreement offered by you. During the check, you must provide the ProxyVan employees with reasonable access to your records and personnel. Costs related with the check are incurred by the ProxyVan, except for the cases when check results show that you have outstanding payments to the ProxyVan, in which case you agree to make such payments immediately to the ProxyVan according to fees previously agreed with respect to the license for the SOFTWARE PRODUCT or subscription for the software plus percents for such non-paid amounts since the initially set due date at the rate of two percent (2%) per month, or at the maximum rate allowed by the applicable legislation (depending on which amount is smaller), and you agree to bear all expenses related with the check.
6.0 INTELLECTUAL PROPERTY.
6.1 Ownership. 6.1.1 Software. ALL SOFTWARE PRODUCTS BELONG TO THE ProxyVan AND OTHER THIRD PARTIES AND ARE PROTECTED BY COPYRIGHT LAWS AND INTERNATIONAL AGREEMENTS. AT ANY TIME, ProxyVan AND SUCH THIRD PARTIES RESERVE THE PROPERTY RIGHTS FOR SOFTWARE PRODUCTS AND ALL COPIES, MODIFICATIONS, AND COMBINATIONS OF ELEMENTS OF SOFTWARE PRODUCTS. According to this Agreement, SOFTWARE PRODUCTS are provided under license, and not sold. The ProxyVan and other third parties retain all property rights for all SOFTWARE PRODUCTS, including all intellectual property rights for all SOFTWARE PRODUCTS. All rights that are not explicitly granted to you under this Agreement or other applicable license agreement for the third party software or according to corresponding terms and conditions, are retained by the ProxyVan and such third parties. This agreement does not provide for delivery of any source text, unless otherwise agreed by the ProxyVan company in writing. Additional information on ProxyVan patents, including the list of registered patents relevant for the ProxyVan SOFTWARE PRODUCTS, is available at: www.ProxyVan.com/patents.
6.1.2 Intellectual property. You acknowledge and agree that the ProxyVan and third party manufacturers own all rights for trade names of ProxyVan and corresponding third party manufacturers, and this Agreement does not provide you any rights for use of such trade names. Besides, you confirm and acknowledge that ProxyVan company and third party manufacturers own (when this provision is applicable) all property rights and proprietary rights for all types of the intellectual property related with the SOFTWARE PRODUCT, including patents, trademarks, inventions (liable or not liable to registration), trade secrets, concepts, ideas, methods, technological processes, formulas, algorithms, logical design, screen displays, schemes, source and output computer program (together referred to as “Intellectual property”). If you raise a patent claim towards the ProxyVan or any third party manufacturer with respect to patents that, in your opinion, are violated by the SOFTWARE PRODUCT, the validity of your patent license provided by the ProxyVan or any third party manufacturer(s) for the SOFTWARE PRODUCT is automatically terminated.
6.2 Violation of the Intellectual property rights. 6.2.1 Protection of rights by the ProxyVan. If, in the opinion of the ProxyVan, the SOFTWARE PRODUCT can probably become, or becomes, the subject of a claim of violation of any Intellectual property rights duly granted in USA, the ProxyVan may at its sole discretion and at its own expenses (a) to grant you a right to continue using the SOFTWARE PRODUCT; (b) to modify the SOFTWARE PRODUCT so that it would not violate such rights but retain its functionality; (c) to replace the SOFTWARE PRODUCT with a SOFTWARE PRODUCT that does not violate such rights, but retains the functionality; or(d) to pay you the compensation proportionally to the actual amount paid by you to the ProxyVan for the SOFTWARE PRODUCT.
6.2.2 Exemption of liability by you. If any legal trials (actions, claims, or reclamations) are based (entirely or partially) on modifications, improvements, or add-ins performed by you or by any natural or legal person on your behalf, or on your usage of the SOFTWARE PRODUCT in combination with other products that are not provided by the ProxyVan, you agree to indemnify and protect, at your own expenses, all property rights of the ProxyVan for the SOFTWARE PRODUCT, as well as the honest name and reputation of the ProxyVan in good faith and as if the claim were brought against you. You commit to reimburse the ProxyVan all costs of defense, including all reasonable expenses for the legal assistance incurred by the ProxyVan in course of the defense of such actions, and to pay any amount that should be paid by the ProxyVan under the court decision. You are obliged to conduct such defense with the help of the consultant selected by you, and the ProxyVan must cooperate with this consultant to the required extent and at your expenses. You alone must monitor the course of this defense, but you must allow the ProxyVan to participate in its defense, to reasonable extent, and you are obliged to cooperate with the ProxyVan, to reasonable extent, in order to settle any lawsuit. In spite of the above stated, the ProxyVan is entitled at any time to decide to take over the defense of the ProxyVan at the ProxyVan’s expenses, and you are obliged to cooperate and to assist in transferring such defense to the ProxyVan, as well as in the context of such defense.
6.3 DISCLAIMER OF WARRANTIES WITH RESPECT TO INTELLECTUAL PROPERTY AND LIMITATION OF LIABILITY. RESTRICTED WARRANTIES WITH RESPECT TO THE INTELLECTUAL PROPERTY SPECIFIED IN THIS AGREEMENT ARE PROVIDED INSTEAD OF ALL OTHER WARRANTIES, BOTH EXPLICIT OR IMPLIED, RELATED TO VIOLATION OF INTELLECTUAL PROPERTY RIGHTS, AND THESE RESTRICTED WARRANTIES CONCERNING THE INTELLECTUAL PROPERTY, ALONG WITH THE MENTIONED REMEDIES, REPRESENT COMPLETELY THE WARRANTIES AND LIABILITIES OF THE ProxyVan WITH RESPECT TO THE VIOLATIONS OF THE INTELLECTUAL PROPERTY RIGHTS. RESTRICTED WARRANTY CONCERNING THE INTELLECTUAL PROPERTY PROVIDES YOU WITH CERTAIN LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS THAT MAY DIFFER DEPENDING ON JURISDICTION. IF ANY PART OF THIS DISCLAIMER OF EXPLICIT AND IMPLIED WARRANTIES AND RESTRICTION OF LIABILITY IS HELD INVALID, THE ProxyVan DISCLAIMS EXPLICIT AND IMPLIED WARRANTIES AND LIMITS ITS LIABILITY TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW. IF THE LAW APPLICABLE TO THIS AGREEMENT PROVIDES FOR WARRANTIES AND LIABILITY TO LARGER EXTENT, THE ProxyVan PROVIDES WARRANTY FOR THE SOFTWARE PRODUCT AND ASSUMES LIABILITY TO THE MINIMUM EXTENT REQUIRED BY THE SPECIFIED LAW.
7.0 RESTRICTED WARRANTY 7.1 The ProxyVan company warrants the absence defects in material and quality of the media with the delivered SOFTWARE PRODUCT for the period of thirty (30) days, provided that the SOFTWARE PRODUCT is used under normal conditions and in strict compliance with terms and conditions of this Agreement. You oblige to notify immediately the ProxyVan company about any unauthorized use, repair, modification, or misuse of the SOFTWARE PRODUCT, as well as about any suspicious defects of media with the delivered SOFTWARE PRODUCT.
7.2 The ProxyVan confirms that it has the right to grant this license.
7.3 THE ABOVE MENTIONED RESTRICTED WARRANTY REPLACES ALL OTHER WARRANTIES, BOTH EXPLICIT AND IMPLIED, AND REPRESENTS THE ProxyVan’S WARRANTY IN ITS ENTIRETY. RESTRICTED WARRANTY CONCERNING THE INTELLECTUAL PROPERTY PROVIDES YOU WITH CERTAIN LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS THAT MAY DIFFER DEPENDING ON JURISDICTION. IF THIS WARRANTY SECTION DOES NOT COMPLY WITH THE LOCAL LEGISLATION, THE MINIMUM WARRANTY PERIOD IS APPLIED SET BY THE LEGISLATION OF YOUR JURISDICTION.
8.0 LIMITATION OF WARRANTY. ALL WARRANTIES PROVIDED UNDER THIS AGREEMENT ARE DEEMED INVALID IF THE DEFECT OF THE PRODUCT COVERED BY THE WARRANTY RESULTS DIRECTLY OR INDIRECTLY FROM UNAUTHORIZED USE OR MISUSE OF THE PRODUCT COVERED BY THE WARRANTY, INCLUDING, BUT OT LIMITED TO, USE OF PRODUCT COVERED BY THE WARRANTY UNDER ABNORMAL WORKING CONDITIONS, UNAUTHORIZED MODIFICATION OR REPAIR OF THE PRODUCT COEVERED BY THE WARRANTY, OR FAILURE TO PERFORM THE ROUTINE MAINTENANCE OF THE PRODUCT COVERED BY THE WARRANTY. EXCEPT FOR CASES EXPRESSELY STATED IN THIS AGREEMENT, THE ProxyVan AND ITS SUPPLIERS WAIVE ALL WARRANTIES, EXPLICIT OR IMPLIED, RELATED WITH THE SOFTWARE PRODUCT, TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW, INCLUDING, BUT OT LIMITED TO, IMPLIED WARRANTY OF MERCHANTABILITY, USEFUL LIFE, FITNESS FOR PARTICULAR PURPOSE, USE IN HIGH RISK CONDITIONS, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. THE ProxyVan DOES NOT GUARANTEE THE CONFORMANCE OF ANY SOFTWARE PRODUCT TO YOUR REQUIREMENTS AND DOES NOT GUARANTEE UNDER ANY CIRCUMSTANCES THE FAILURE-FREE OR ERROR-FREE OPERATION OF ANY SOFTWARE PRODUCT. THE SOFTWARE PRODUCT IS PROVIDED “AS IS”, AND YOU ALONE ASSUME THE RISK OF USING THIS SOFTWARE PRODUCT. IF ANY PART OF THIS LIMITATION OF EXPLICIT OR IMPLIED WARRANTY IS DEEMED INVALID, THE ProxyVan DISCLAIMS EXPLICIT OR IMPLIED WARRANTY TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW. IF THE LAW APPLICABLE TO THIS AGREEMENT PROVIDES FOR WARRANTIES AND LIABILITY TO LARGER EXTENT, THE ProxyVan PROVIDES WARRANTY FOR THE SOFTWARE PRODUCT AND ASSUMES LIABILITY TO THE MINIMUM EXTENT REQUIRED BY THE SPECIFIED LAW.
9.0 LIMITATION OF LIABILITY. YOU ASSUME ENTIRE AND ABSOLUTE LIABILITY FOR THE USE OF THE SOFTWARE PRODUCT. ProxyVan OR ITS SUPPLIERS ARE NOT LIABLE IN ANY CASE, AND, TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW, DISCLAIM LIABILITY FOR ANY ACTUAL, INCIDENTAL, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES RELATED TO THE LOSS OF USE OR LOSS OF PRODUCTION, LOSS OF REVENUE OR PROFIT, LOSS OF DATA, LOSS OF BUSINESS INFORMATION, PRODUCTION DOWNTIME, THIRD PARTY CLAIMS, OR ANY OTHER MONETARY DAMAGE) RESULTING FROM THIS AGREEMENT AND/OR USE OR THE LOSS OF USE OF THE SOFTWARE PRODUCT, EVEN IF THE ProxyVan COMPANY WAS NOTIFIED OF THE POSSIBILITY OF SUCH LOSSES. THE ProxyVan UNDER NO CIRCUMSTANCES ASSUMES THE LIABILITY FOR ANY CLAIMS, LOSSES, OR ANY OTHER LIABILITY RESULTING FROM, OR RELATED WITH, DOWNLOADING, VIEWING, USING, COPYING, DISTRIBUTING, OR DISCLOSING ANY SAMPLE DATA PROVIDED BY THE ProxyVan COMPANY, INCLUDING, BUT NOT LIMITED TO, ANY CLAIMS, LIABILITY, DIRECT, INDIRECT, INCIDENTAL, ACTUAL, EXEMPLARY, OR CONSEQUENTIAL LOSSES, DATA LOSS OR CORRUPTION RESULTING TO, OR RELATED WITH, THE USAGE OR OTHER OPERATIONS WITH THE SAMPLE DATA. FULL LIABILITY OF THE ProxyVan COMPANY RESULTING FROM, OR RELATED WITH, THIS AGREEMENT, IS LIMITED BY THE AMOUNT ACTUALLY PAID BY YOU TO THE ProxyVan COMPANY FOR THE SOFTWARE PRODUCT OR FOR THE SUBSCRIPTION FOR THE SOFTWARE PRODUCT DISPUTED AT THE TIME WHEN THE INITIAL EVENT OCCURRED THAT BECAME THE REASON FOR FILING THE CLAIM. UNLESS OTHERWISE PROVIDED FOR BY THE APPLICABLE LAW, NO CLAIM, REGARDLESS OF ITS FORM, RESULTING FROM, OR RELATED WITH, THIS AGREEMENT CANNOT BE FILED BY YOU LATER THAN ONE (1) YEAR FROM THE INITIAL EVENT REPRESENTING THE REASONG FOR ASSERTING THE CLAIM. AS THE EXCLUSION OR LIMITATION OF LIABILITY IS PROHIBITED IN SOME JURISDICTIONS, THE ABOVE STATED LIMITATION MAY BE NOT APPLICABLE TO YOU. IF ANY PART OF THIS SECTION IS DEEMED INVALID, THE ProxyVan LIMITS ITS LIABILITY TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW.
9.1 If the SOFTWARE PRODUCT does not comply substantially with the restricted warranty stated in this Agreement, the full liability of the ProxyVan company, and your sole remedy, are, exclusively and entirely at the discretion of the ProxyVan company, (i) modification, repair, or replacement of the SOFTWARE PRODUCT, or (ii) termination of this Agreement and proportional compensation of the actual amount paid by you to the company for the SOFTWARE PRODUCT for the period of time when the SOFTWARE PRODUCT did not comply substantially with the restricted warranty stated in this Agreement. With respect to any replacement, Update, and (or) New version produced during the validity term of the initial warranty period, warranty is only valid during the remaining part of the initial warranty period. Until the ProxyVan company completes to take actions in the context of some of the above stated remedies, such non-completed remedy cannot be deemed failing to achieve its main purpose.
9.2 The ProxyVan acts on behalf of its suppliers solely for the purpose of disclaiming, excluding, and/or restricting liabilities, warranty, and responsibility, as provided for in this Agreement, and not with respect to other matters or for any other purposes.
10.0 LIMITATIONS
10.1 Restricted rights concerning USA government organizations. Provisions of this section 10.1 apply also if the SOFTWARE PRODUCT (including any Updates, New versions, documentation, or technical data concerning such SOFTWARE PRODUCT) is licensed, purchased, bought by subscription, or otherwise obtained, directly or indirectly, by an institution or GENCY of the USA government or on its behalf.
10.1.1 For civil organizations: The SOFTWARE PRODUCT was developed at private expenses and is a “bounded computer software” provided with limited rights according to the Federal Acquisition Regulations (“FAR”), 52.227-19, sub-paragraphs (a)–(d) (“Commercial software — Limited rights”).
10.1.2 For agencies of the Department of Defense: The SOFTWARE PRODUCT was developed at private expenses and is a “commercial computer software” provided with limited rights according to the Defense Federal Acquisition Regulation Supplement (“DFARS”), DFARS 227.7202-3 (“Rights concerning commercial computer software or commercial computer software documentation”).
10.1.3 Notice: This SOFTWARE PRODUCT is a “Commercial software product” as per the definition given in DFARS 252.227-7014 (“Rights concerning non-commercial computer software”) and FAR 12.212 (“Computer software”), including “technical data” as per definition given in DFARS 252.227-7015 (“Technical data”) and FAR 12.211 (“Technical data”). Any use, modification, reproduction, publication, execution, demonstration, or disclosure of this “Commercial computer software” should be performed in strict accordance with the standard commercial license of the manufacturer accompanying the main government order and representing its integral part. The manufacturer is the ProxyVan and any corresponding third party developer(s) of the software. This SOFTWARE PRODUCT is not published, and all rights for it are retained according to the USA copyright law.
10.1.4 Rights retained by the government: MrSid technology embedded into the SOFTWARE PRODUCT was partially developed under the project of the Los Alamos National Laboratory executed with funding from the US government and under the leadership of the University of California (“the University”); exclusive commercial license for this technology belongs to the LizardTech, Inc. The MrSID technology is used under license granted by the LizardTech company. The MrSID technology is protected by the US Patent No. 5,710,835. Procedures for acquisition of patents in other countries are initiated. The US government and the University retain rights for the MrSID technology, including, but not limited to, the following: (a) The US government has a non-exclusive non-transferable, irrevocable, paid license for use and executed use all over the world of inventions under the US Patent No. 5,710,835, for or on behalf of the United States, and has other rights according the 35 United States Code § 200-212 and executive regulations in force on application of these norms; (b) if LizardTech rights for the MrSID technology terminate during the validity term of this Agreement, you may continue using the SOFTWARE PRODUCT. Any provisions of this license that can, from the point of view of a reasonable person, perform such function, will in this case protect the rights of the University and/or the US government; and (c) the University is not obliged to provide any know how, technical support or technical data to MrSID technology users, and does not provide any warranties or representations with respect to the validity of the US Patent No. 5,710,835, as well as concerning the non-infringement of any patents or other property rights by the MrSID technology. More detailed information concerning these provisions can be requested at: LizardTech, 1008 Western Ave., Suite 200, Seattle, WA 98104.
10.2 Export limitations. This SOFTWARE PRODUCT, including any technical data relating to this SOFTWARE PRODUCT comes within the purview of USA laws and regulations concerning the export control including, but not limited to, the USA Export Control Act. Deviations contradicting the USA legislation are not allowed. This SOFTWARE PRODUCT including any technical data relating to the SOFTWARE PRODUCT and any production derivative from this SOFTWARE PRODUCT cannot be exported or re-exported, directly or indirectly (in particular, using the remote access) if it is transferred to:
10.2.1 Cuba, Iran, North Korea, Sudan, Syria, or any citizen of these countries.
10.2.2 Any natural or legal person listed in any list of the US government concerning blocked legal and natural persons, including, but not limited to, “List of blocked and unverified natural and legal persons of the US Department of Commerce” (www.bis.doc.gov/complianceandenforcement/liststocheck.htm), “Specially Designated Nationals list of the US Department of the Treasury” (www.treas.gov/offices/enforcement/ofac/) and “US Department of State List concerning persons deprived of the export right” (http://www.pmddtc.state.gov/compliance/debar.html).
10.2.3 Any organization, if you know or if you have reasons to believe that the final use of the product is related with design, development, production, or use of rockets, chemical, biological, or nuclear weapons or other nuclear technologies not covered by the International Atomic Energy Agency warranty or having dual purpose.
10.2.4 Any organization, if you know or if you have reasons to believe that an illegal transfer would take place. If the SOFTWARE PRODUCT obtained by you is marked on the medium as ITAR regulated, this means that this SOFTWARE PRODUCT is defined as a defense article according to US International Traffic in Arms Regulations (ITAR). In order to export such SOFTWARE PRODUCT from the United States, a license issued by the Directorate of Defense Trade Controls (DDTC) of the US Department of State is required, or the product should be exempted from the necessity to obtain the export license from ITAR. This ПРОГРАММНЫЙ ПРОДУКТ cannot be oversold, redirected, or transferred to any country or to any end user, or used in any country or by any end user, without permission provided by the existing license, or without exemption from the necessity to obtain the license from ITAR. According to provisions of this Agreement, this SOFTWARE PRODUCT can be used in other countries or by other end users in case of reception of prior written approval from DDTC. You agree to indemnify and hold harmless the ProxyVan company in case of any actions, claims, expenses, and/or damages for the ProxyVan resulting from your or any User's violation of export restrictions stated in this Agreement. Any questions concerning export or re-export of the SOFTWARE PRODUCT or ITAR restrictions, if any, should be sent to the Export Compliance Department of the ProxyVan company located at: 305 ProxyVan Way, Madison, Alabama, United States 35758, or to the following email address: exportcompliance@ProxyVan.com.
10.3 Territorial limitation of use. Without special written permission of the ProxyVan company, it is strictly prohibited to use the SOFTWARE PRODUCT outside the country where the license was issued for it.
10.4 Non-disclosure. You understand that the ProxyVan owns information and data that are of commercial value for the current business of the ProxyVan company, including, but not limited to, intellectual property that was developed, created, or discovered by the ProxyVan company, or that has become known or was transferred to the ProxyVan company (“Confidential information”). The ProxyVan considers such Confidential information private and confidential. You are obliged to treat the Confidential information of the ProxyVan company, and any information and data provided by the ProxyVan company in any form, as private and confidential and to maintain it as such, as you would treat your own private and confidential information, however, taking proper care in any case, and to comply with all license requirements, copyright laws, patent laws, commerce, laws, trade secret laws, to the extent that they can apply to any Confidential information of the ProxyVan company or other information or data provided by the ProxyVan company.
11.0 GENERAL PROVISIONS 11.1 Completeness of the agreement. You confirm that you have read this Agreement, understand it, and agree with its terms and conditions. Besides, you agree that this Agreement represents complete and sole statement of the agreement between you and the ProxyVan company regarding this Agreement, and that this Agreement replaces any offer or preliminary agreement, both oral or written, and any other communications between you and the ProxyVan company with respect to the subject of this Agreement. Amendments can be introduced to this Agreement by means of a written document signed by you and the ProxyVan company; but some SOFTWARE PRODUCTS of the ProxyVan company and their New versions can come within the purview of additional or other (depending on circumstances) terms and conditions contained in the Appendix to the Agreement or in a separate Agreement provided together with the corresponding SOFTWARE PRODUCT or its New version. Any reproduced copy of this Agreement made by means of reliable facilities (e.g., printing, photocopying or faxing), is considered original.
11.2 Separability of provisions. In all possible cases each of provisions of this Agreement is interpreted in such a way that it would be effective and stays valid according to the applicable law. However, if any provision of this Agreement is prohibited or not valid according to the applicable legislation, such provision becomes void only within the limits of such prohibition or non-validity, and the remaining part of such provision or remaining provisions of this Agreement do not lose legal effect.
11.3 Headings. Different headings are included in this Agreement solely for convenience and do not influence the meaning or interpretation of this Agreement or any section or provision of this Agreement.
11.4 No waiver. Any frustration of this Agreement by any party does not constitute the ground for refusal of legal remedies that the party may have in relation with any violation of provisions of this Agreement, and does not influence the right of such party to use these remedies.
11.5 Notifications. Any notification or another message (“Notification”) required or permitted by this Agreement is out into written and is delivered by hand or sent via email, fax, by overnight delivery, express mail, insured or registered letter, with prepaid postage and with advice of delivery. Notification delivered by hand is considered delivered only if this is confirmed in written by the person to whom it is transferred. Notification sent by email or fax is considered delivered at the moment of sending, provided that the receiver sends a written confirmation of message receipt to the sender. Notification sent via overnight delivery or express mail is considered delivered within twenty four (24) hours since the moment of sending. Notification sent by insured or registered letter is considered delivered within forty eight (48) hours after its mailing. If the beginning of any term in this Agreement is related with the delivery of Notification to one or several parties, this terms only starts after all required Notifications will be considered delivered. The address of the ProxyVan company for receipt of Notifications: ProxyVan, 305 ProxyVan Way, Madison, Alabama 35758, Attn: Legal Department, 256-730-2333.
11.6 Assignment. None of the parties has a right to assign any its right and to transfer any its obligation under this Agreement without prior written consent of the other party, except for cases when the ProxyVan can assign its rights and obligations under this Agreement without your consent: (i) to an organization purchasing all or majority of assets of the ProxyVan company or division of the ProxyVan company that provides the production or services ass per this Agreement; (ii) to an organization purchasing all or majority of the production or of the product portfolio as per this Agreement; or (iii) to any affiliated company, branch, or legal successor in the result of a merger or purchase of the ProxyVan company. Any your attempt to sub-license, to assign, or to transfer the license or the SOFTWARE PRODUCT, except for cases explicitly set out in this Agreement, has no force and results in immediate termination of the license.
11.7 Other software products of the ProxyVan company. If you have, or if you, use other SOFTWARE PRODUCTS of the ProxyVan companies, please, read carefully this Agreement and all its terms and provisions, as the provisions can differ.
11.8 Restricted type of relationship. You and ProxyVan enter into relationship of independent contracting parties, and neither you nor your agents have no authority to bind the ProxyVan company by any obligations.
11.9 Applicable legislation, place of jurisdiction, and jurisdiction. This Agreement is interpreted and executed in any respect in accordance with the Alabama state legislation and is considered accepted in the city of Madison, Alabama, USA. You and the ProxyVan agree that any legal action or proceeding that result directly or indirectly from, or are relevant to, this Agreement, will be initiated in the district court of the Madison district, Alabama (USA), or in the district court of the Northern region of Alabama, North-Eastern administrative district, USA. You and the ProxyVan company agree to submit to this jurisdiction and agree that these courts are the proper place for resolution of cases or for procedural actions. This Agreement is not regulated by collision laws of any jurisdiction or by the UN Convention on Contracts for International Sale of Goods, and their application is explicitly excluded.
11.10 WAIVER OF JURY TRIAL. HEREBY THE ProxyVan COMPANY AND YOU WAIVE TO THE FULLEST EXTENT PERMITTED BY THE APPLICABLE LAW ANY RIGHT THAT YOU MIGHT HAVE WITH RESPECT TO THE POSSIBILITY TO APPEAL TO A JURY TRIAL WITH RESPECT TO ANY PROCEDURAL ACTION THAT RESULTS DIRECTLY OR INDIRECTLY FROM, OR IS RELEVANT TO, THIS AGREEMENT. THE ProxyVan AND YOU (I) CONFIRM THAT NO REPRESENTATIVE, AGENT, OR TRUSTEE OF THE OTHER PARTY DECLARED EXPRESSLY OR IN ANY OTHER WAY THAT, IN CASE OF A LAWSUIT, THIS OTHER PARTY WILL NOT EXERT EFFORTS TO ENSURE COMPLIANCE WITH THE ABOVE MENTIONED WAIVER; AND (II) ACKNOWLEDGE THAT CONCLUSION OF THIS AGREEMENT BETWEEN THE ProxyVan COMPANY AND YOU WAS ENTAILED, AMONG OTHER MATTERS, BY THE MUTUAL WAIVER OF RIGHTS AND REPRESENTATIONS WITH RESPECT TO THIS WAIVER OF A JURY TRIAL
11.11 Court injunction and the cumulative remedy. You acknowledge and agree that your violation of this Agreement can cause irreparable damage to the ProxyVan company, with respect to which it would be difficult to adjust the money compensation of losses, or such legal remedy would be insufficient. You agree that the ProxyVan is entitled, among its other rights and legal remedies, to seek to obtain a court injunction related with any your violation of this Agreement, and you expressly renounce all objections concerning the fact that the ProxyVan company has or may have sufficient legal remedy with respect to any such violation. Rights and legal remedies stated in this Agreement are cumulative and associated, and can be applied separately, in turn, or simultaneously.
11.12 Fees and expenses of trustees. In case of any procedural action caused by this Agreement or related to it, the party that has prevailed in the action, is entitled to obtain compensation for reasonable fees and expenses of its trustees in relation of all such procedural actions, including legal processes and appeals at all levels.
11.13 Official language. The prevailing language of this Agreement is the English language. If you have obtained the translation of this Agreement into another language, it was provided solely for your convenience.
11.14 USE OUTSIDE USA. If you are located outside USA, then you are subject to the following provisions of this section: (i) Les parties en présence confirment leur volonté que cette convention de même que tous les documents y compris tout avis qui s’y rattachent, soient redigés en langue anglaise (Translation: “The Parties confirm that this Agreement and all relating documentation are, and will be, drawn up in English”); and (ii) you are liable for compliance with all local laws of your jurisdiction that may affect your right to import, export, or use the SOFTWARE PRODUCT, and you declare that you comply with all and any regulations or have completed registration procedures required as per the applicable legislation in order to ensure full compliance with this Agreement.
11.15 Validity term. Provisions of this Agreement that require or consider the discharge of obligations after the expiry of the validity term or termination of this Agreement, remain enforceable in spite of the mentioned expiration of validity or termination.
THE LICENSE AGREEMENT BETWEEN THE ProxyVan COMPANY AND THE END USER RELATED TO SOME TYPES OF PRODUCTS This Appendix is applicable to you if the “SOFTWARE PRODUCT” utilizes the below mentioned types of products. If it is applicable, then this Appendix (“Appendix”) defines the terms of use of the SOFTWARE PRODUCT by the Licensee that supplement the provisions of the END USER LICENSE AGREEMENT (“EULA”) provided to the Licensee at the moment of purchase. This Appendix is applicable to you only if you use any of product types that are stated below by the ProxyVan company or through the mediation of the ProxyVan company. To the extent that this does not contradict this Agreement, all terms of the EULA are employed with respect to the use of the SOFTWARE PRODUCT. If a contradiction arises between EULA terms and terms of this Appendix, this Appendix prevails. You can find the EULA text at https://sgisupport.ProxyVan.com/infocenter/index?page=support_policies.
1.0. Geospatial Desktop Program. This section is only applicable if the “SOFTWARE PRODUCT” represents a specific application suite referred to as “Geospatial Desktop Program”.
1.1. Definitions of terms. 1.1.1. “Effective date” is called the date when the License key or License keys are delivered to the Licensee, or the subsequent date specified in the Quotation.
1.1.2. “Existing products” are any types of software products of the ProxyVan company owned by the Customer before conclusion of this Agreement and duplicating one or several components of the Geospatial Desktop application suite that constitutes the subject of this Appendix.
1.1.3. “License key” is a unique key provided by the ProxyVan company to the Licensee for the purpose of starting the SOFTWARE PRODUCT.
1.1.4. “Licensee” is an individual or a separate legal entity authorized by the ProxyVan company to use the SOFTWARE PRODUCT in accordance with the EULA and this Appendix.
1.1.5. “Quotation” is a price quotation for the License for using the Licensed Software offered to the Licensee by the ProxyVan company or an authorized partner of the ProxyVan company, as well as for maintenance and support related to such software and provided for by this Agreement.
1.2. Licensing. Providing that you do not violate any terms or provisions of the EULA or this Appendix, the ProxyVan company hereby provides you a limited, non-exclusive license for installation and use of the SOFTWARE PRODUCT only in form of an output computer program, solely for the use within your organization and in strict accordance with the EULA and this Appendix. The license cannot be transferred to other parties, except for cases explicitly specified in the EULA. You assume the entire responsibility for the choice of the SOFTWARE PRODUCT for the purpose of reaching the desired targets, as well as for installation of the SOFTWARE PRODUCT, for its use, and for results obtained with its help.
1.2.1. License type and mode of its usage: The SOFTWARE PRODUCT licensed as per this Appendix is used in the concurrent access mode (CA) in accordance with section 2.2.1(a) of the EULA.
1.3. Validity term. This Appendix and rights granted to the Licensee as per this Appendix and the EULA, come into effect on the Effective date, and remain effective for twelve (12) months. This Agreement can be renewed in accordance with the section 2.1 below. New License keys and/or installation media are issued every year upon the renewal of this Agreement.
Approximately thirty (30) days before the license expiry, the ProxyVan company may offer a Quotation to the Licensee in order to renew the validity of a license or licenses for the subsequent period at prices provided for by the Quotation of renewal prices. The Licensee confirms that, if the license or licenses will not be renewed after this period expires, then all rights and licenses provided to the Licensee by the EULA and this Appendix will void after the end of the period specified above in the section 1.3.
1.4. Existing products of the customer. This Agreement does not cover any types of Existing products of the ProxyVan company held by the Customer.
1.4.1. Any Existing products should be subject to a separate maintenance agreement with the ProxyVan company. The Customer, at his/her sole discretion, may not renew the maintenance agreement for the Existing products only after the expiration of the validity term of any maintenance agreement applicable to the Existing products. This Appendix does not allow for premature termination of validity of a maintenance agreement for the Existing products.
2.0. Geospatial SDK. This section only applies if the “SOFTWARE PRODUCT” is Geospatial Portal SDK.
2.1. License restrictions relating to Sencha company production. You undertake not to distribute the production of the Sencha Products company in standalone form. You undertake not to grant license rights, consultations, practical training, and other services related to standalone operation of the Sencha company. You undertake not to allow for development or use of the Sencha company by third parties on standalone basis. Instances of the Sencha company are licensed, but not sold. You are not entitled to: (a) modify the production of the Sencha company, or allow or encourage its modification by any third party; (b) to lease or sell the Sencha company production, or otherwise provide access to this production to any third party; (c) to use the Sencha company production in any way in order to stipulate the development, marketing, or sale of production that can compete with the Sencha company production; (d) modify, delete, or restrict any copyright declarations or notices, or other property rights contained in the Sencha company production; (e) distribute the Sencha company production except for cases when this is allowed by this Appendix; (f) grant any other parties permissions, encourage or assist them in performing any of the above mentioned actions. You undertake not to reverse engineer, decompile, or disassemble, or otherwise attempt to derive the source program code of the Sencha company production. You are entitled to make only one copy of the Sencha company production, solely for the purpose of backup.
2.2. Use limitations. You are entitled to use the Geospatial Portal SDK and Sencha company production only in combination with the Geospatial Portal. For the avoidance of doubt, the pronoun “you” in the text of this Agreement means an individual person. Only one person can use one licensed instance of the Geospatial Portal SDK production, and you are not entitled to allow anybody else to use the Geospatial Portal SDK production.
3.0. Remote Content Management. This section only applies if the “SOFTWARE PRODUCT” represents the Remote Content Management, and if the SOFTWARE PRODUCT uses the DotNetZip library.
3.1. “Depositor” refers to any person that distributes its deposit in accordance with this license.
3.2. If you make a patent claim concerning patent rights that, according to your statement, are infringed by the software, then your patent license granted by such depositor into the software terminates automatically.
4.0. IMAGINE GeoPDF PUBLISHER. This section only applies if the “SOFTWARE PRODUCT” is IMAGINE GeoPDF PUBLISHER production.
4.1. Guaranty clause. Regardless of any contradicting provisions of this Appendix, no warranty is provided with respect to performance characteristics of the IMAGINE GeoPDF PUBLISHER production. For the sake of clarity, we repeat that the IMAGINE GeoPDF PUBLISHER production is provided “AS IS” basing on the delivery of goods.
4.2. Limitation of liability. The ProxyVan company, its licensors and suppliers do not incur liability for any claims or reclamations related with the IMAGINE GeoPDF PUBLISHER production or resulting from its use by you, regardless of how they are brought.
4.3. Acceptance. The IMAGINE GeoPDF PUBLISHER production is assumed accepted after you have installed it.
4.4. Use limitations. You are entitled to use the GeoPDF PUBLISHER production only for your commercial corporate purposes, but you are not entitled to use the IMAGINE GeoPDF PUBLISHER production in order to create any files, except for files in GeoPDF format.
5.0. Euclideon technology. This section only applies if the “SOFTWARE PRODUCT” is represented by APOLLO, ERDAS IMAGINE, Geospatial Portal, or GeoMedia WebMap product types. Final versions of these SOFTWARE PRODUCTS contain embedded Euclideon technology, and intellectual property rights for such technology belong to the Euclideon company. By installing and using such SOFTWARE PRODUCTS, you undertake not to modify any software of the Euclideon company and not to reverse engineer, decompile, or disassemble it, as well as not to delete, conceal, and modify any declarations or notices of patent rights, trademarks, author’s rights or trade names.
6.0. mTransformer. mTransformer production of the myVR Software AS company is delivered together with products included into program suites Hexagon Geospatial Provider Suite and Platform Suite. mTransformer production can be installed on any computer and can be used within the organization that has obtained a valid license for use of any products contained in program suite Provider Suite or Platform Suite.
7.0. ADDITIONAL CONDITIONS FOR SPECIFIC SOFTWARE PRODUCTS.
7.1. GeoMedia Viewer software product — Additional conditions. License distributed specifically for the GeoMedia Viewer software product allows saving copies on a hard drive and loading them for working on one or several workstations. The GeoMedia Viewer software product may be freely copied, transferred, transmitted, and leased, both inside and outside your company.
7.2. Beta versions of software products — Additional conditions. If the SOFTWARE PRODUCT that you have obtained under this Agreement is a pre-commercial release or beta-version of the software product (“Beta version of the software product”) then the following additional conditions apply. This section replaces all other terms and conditions concerning the Beta version of the software product to the extent to which any provision of this section contradicts any other provisions of this Agreement, but only to the extent that is necessary to eliminate this contradiction. You undertake to hold confidential all information concerning the Beta version of the software product, as well as your use and acquaintance with such information and the Beta version of the software product (collectively: “Information on the Beta version of the software product”), with as much care as you would hold confidential your own similar information, but you should not go beyond reasonable care under any circumstances; you are also not entitled to disclose such information on the Beta version of the software product to any natural or legal person for whatever reason and at any time without prior written consent of the ProxyVan company; however, it is assumed that you may communicate the Information on the Beta version of the software product to those your representatives that really need such information to take part in the offered acquaintance and testing (“Beta testing”) of the Beta version of the software product, if this representative was made aware of provisions of this Agreement before such communication. You undertake not to use any Information on the Beta version of the software product for whatever reason and for whatever other purpose except for the purpose of Beta testing. You undertake not to use otherwise the Information on the Beta version of the software product and not to include any Information on the Beta version of the software product into any work or production. You acknowledge that the Beta version of the software product is a pre-release beta version that does not represent a final production of the ProxyVan company may contain faults, errors, and other drawbacks that can result in system failure, or any other failures, or data loss. BETA VERSION OF THE SOFTWARE PRODUCT IS PROVIDED “AS IS”, AND THE ProxyVan COMPANY WAIVES ALL WARRANTIES AND OBLIGATIONS BEFORE YOU IN ANY FORM. You are entitled to use the Beta version of the software product only for information and testing, but not for general production use. You acknowledge that the ProxyVan company did not provide you any promises or warranties that the issue of the Beta version of the software product or any its part will be announced in advance, or they will become available to anybody in future, that the ProxyVan assumes no direct or implied liability to you with respect to announcement or issue of the Beta version of the software product, and that it is probable that the ProxyVan will not issue products similar or compatible with the Beta version of the software product. In accordance with that, you acknowledge that any research or development that you carry out with respect to the Beta version of the software product, or any products related with the Beta version of the software product, is performed at your own risk. During the period of validity of this Agreement, you will provide the ProxyVan company, at its request, with the obtained results of the Beta testing including error or defect reports. Upon receipt of a later non-released Beta version of the software product, or after release of a public commercial version of the SOFTWARE PRODUCT by the ProxyVan company, you agree to return or completely delete all earlier Beta versions of the software product received from the ProxyVan company. You agree that you will return or delete all non-released Beta versions of the software product within thirty (30) days from the date of completion of the Beta testing, provided that such date is earlier than the date of the first commercial delivery of the public commercial software product by the ProxyVan company.
7.3. Evaluation software — Additional conditions. If the SOFTWARE PRODUCT received by you under this Agreement is intended specifically for evaluation purposes (“Evaluation software”), then this paragraph applies during the entire period until you purchase the license or full retail version of the SOFTWARE PRODUCT. This section replaces all other terms and conditions concerning the Evaluation software to the extent to which any provision of this section contradicts any other provisions of this Agreement, but only to the extent that is necessary to eliminate this contradiction. You are entitled to use the Evaluation software only for information and testing, but not for general production use. You acknowledge that the Evaluation software can have limited functionality and/or can work during a limited period of time. The ProxyVan licenses the Evaluation software on “AS IS” basis, solely for evaluation purposes, in order to help you make a decision about purchase. If the Evaluation software version has a limited period of validity, then the program will stop functioning after a specific time period after its installation (“Expiry date”). On such Expiry date, the license for the Evaluation software terminates, and you will not be able to use the SOFTWARE PRODUCT, if you will not purchase a license for the full retail version of the SOFTWARE PRODUCT. You acknowledge that such Evaluation software stops its work on the Expiry date, and, correspondingly, access to any files or results created with this Evaluation software, or to products related with the Evaluation software, will be performed totally at your own risk.
7.4. Training SOFTWARE PRODUCT — Additional conditions. If the SOFTWARE PRODUCT received by you under this Agreement is a Training SOFTWARE PRODUCT (and, in such case, either a certain training fee is paid for the training SOFTWARE PRODUCT, or the SOFTWARE PRODUCT is obtained in relation with your participation in an ProxyVan's program intended for educational or research institutions, or it is obtained under an educational grant provided by the ProxyVan company), then you are not entitled to use the SOFTWARE PRODUCT, unless you, according to your jurisdiction, are an End user in the area of training. You are entitled to use the Training SOFTWARE PRODUCT solely for the purpose of education and research. Use of the Training SOFTWARE PRODUCT for the commercial and general production purposes is expressly forbidden. Additional terms and provisions, as well as the definition of an End user in the area of training, are detailed in the documentation on the educational policy of the ProxyVan company. This documentation can be requested from the ProxyVan company.
7.5. ImageStation and Geospatial SDI software — Additional conditions. Some SOFTWARE PRODUCTs in the area of ImageStation and Geospatial SDI contain one or several dynamic link libraries (DLL) that were created, at least, partially, using an open source code as per the Open license of the Code project (CPOL) 1.02, the text of which is available at: http://www.codeproject.com/info/cpol10.aspx. By installation and use of these SOFTWARE PRODUCTS, you agree that provisions of the CPOL license are applied to parts of such DLLs developed using the open source code under the CPOL license.
7.6. ECW Module for a browser — Additional conditions. The SOFTWARE PRODUCT that represents an Enhanced Compression Wavelet (ECW) module for the browser (“Module for the browser”) is intended for use as a module for the browser that allows viewing images created with the ECW technology in browsers Microsoft Internet Explorer, Google Chrome, and Mozilla Firefox (“Browser”). Browsers are not included into Browser modules. You are entitled to make and install as many copies of Modules for the browser as you need, as modules of legally licensed Browsers owned by you or controlled by you. If you have a valid license for the server SOFTWARE PRODUCT ProxyVan Enhanced Compression Wavelet (ECWP) (“ECWP Server software”), you are also entitled to transfer copies of the Module for the browser to other persons for whom you want to provide access to images on your ECWP server, provided that you include this Agreement into transferred copies. All copies of the Module for the browser provided according to the above stated provisions, are deemed authorized copies. You are only entitled to install and use the Module for the browser for the Browser to be able to display images that are created with the ECW technology and accessed via your licensed ECWP server software. The Module for the Browser is only licensed for scientific, commercial, governmental, and educational purposes, and cannot be used for private, domestic, or family purposes.
8.0. AAIC and RINAV — this appendix is applied if the Software product also uses AAIC or RINAV products. 8.1. Limitations on use. Licensee cannot use on AAIC or RINAV license on more than four (4) workplaces simultaneously. If the Licensee wants to use AAIC or RINAV on more than four (4) workplaces simultaneously, the Licensee can buy additional licenses. SGI11062014 DJQ880650