Software License Agreement
THE TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE AGREEMENT (“AGREEMENT”) GOVERN YOUR USE OF THE SOFTWARE UNLESS YOU AND CADWELL LABORATORIES, INC. (“CADWELL”) HAVE EXECUTED A SEPARATE AGREEMENT.
Cadwell is willing to license the Software to you only upon the condition that you accept all the terms contained in this Agreement. If you install or use the Software or keep it for 30 days after the date of purchase, then you have indicated that you understand this Agreement and accept all of its terms. If you do not accept all the terms of this Agreement, then Cadwell is unwilling to license the Software to you.
1. Grant of License. Subject to your compliance with the terms and conditions of this Agreement, Cadwell grants you a perpetual, non-exclusive and non-transferable license to install and use the Object Code, and any Updates, on computers located at your buildings or facilities, solely for your internal business purposes- “Object Code” means the fully compiled version of the software described in the user guide(s) accompanying this Agreement (the ‘Documentation”) that can be executed by a computer and used by an end user without further compilation (such software and Documentation collectively comprising the “Software”). “Updates” means modifications made by Cadwell to the Software, that Cadwell generally makes available at no additional charge to its customers when Cadwell has determined, at Cadwell’s sole discretion, to release a periodic software update. You may make a single copy of the Software for backup purposes, provided that you reproduce on it all copyright and other proprietary notices that are on the original copy of the Software. Cadwell reserves all rights in the Software not expressly granted to you in this Agreement.
2. Restrictions. Except as expressly specified in this Agreement, you may not: (a) copy or modify the Software or (b) transfer, sublicense, lease, lend, rent or otherwise distribute the Software to any third party. You acknowledge and agree that portions of the Software, including, without limitation, the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets of Cadwell and its licensors. Accordingly, you agree not to disassemble, decompile or otherwise reverse engineer the Software, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition.
3. Ownership. The Software is licensed, not sold. You own the media on which the Software is recorded, but Cadwell retains ownership of the Software, including all intellectual property rights therein. The Software is protected by United States copyright law and international treaties. You will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on the Software as delivered to you.
4. Term. This Agreement remains effective until terminated. You may terminate it at any time by destroying all copies of the Software in your possession or control. This Agreement will automatically terminate without notice if you breach any term of this Agreement. Upon termination, all licenses granted hereunder will immediately terminate and you must promptly destroy all copies of the Software in your possession or control.
Software License Agreement
5. Limited Warranty. Cadwell warrants that for thirty (30) days following the date of purchase, the media on which the Software is provided will be free from defects in materials and workmanship under normal use. As your sole and exclusive remedy and Cadwell’s entire liability for any breach of this limited warranty, Cadwell will promptly replace the defective media, at no charge.
6. DISCLAIMER. THE LIMITED WARRANTY SET FORTH IN SECTION 5 IS IN LIEU OF, AND CADWELL EXPRESSLY DISCLAIMS, ALL OTHER WARRANTIES AND CONDITIONS, EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM CADWELL OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. Some jurisdictions do not allow limitations on how long an implied warranty last, so the above limitation may not apply to you. All warranties implied by statute are limited to the duration of the express warranty set forth above. This warranty gives you specific legal rights, and you may also have other rights which vary by jurisdiction.
7. Limitation of Liability. CADWELL’S TOTAL LIABILITY TO YOU FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID TO CADWELL BY YOU FOR THE SOFTWARE. IN NO EVENT WILL CADWELL BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SOFTWARE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT CADWELL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you.
8.1. Definition. “Confidential Information” means: (a) the Software and (b) any business or technical information of Cadwell that, if disclosed in writing, is marked “confidential” or “proprietary” at the time of disclosure, or, if disclosed orally, is identified as “confidential” or “proprietary” at the time of disclosure, and is summarized in a writing sent by Cadwell to you within thirty (30) days of such disclosure.
8.2. Exclusions. Confidential Information does not include information that: (a) is or becomes generally known to the public through no fault of or breach of this Agreement by you; (b) is rightfully known by you at the time of disclosure without an obligation of confidentiality; (c) is independently developed by you without use of the Confidential Information; or (d) you rightfully obtain from a third party without restriction on use or disclosure.
8.3. Use and Disclosure Restrictions. You will not use the Confidential Information except as necessary for the performance of this Agreement and will not disclose such Confidential Information to any third party except to those of your employees and subcontractors that need to know such Confidential Information for the purpose of performing this Agreement, provided that each such employee and subcontractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective as those set forth herein. You will use all reasonable efforts to maintain the confidentiality of all such Confidential Information in your possession or control, but in no event less than the efforts that you ordinarily use with respect to your own proprietary information of similar nature and importance. The foregoing obligations will not restrict you from disclosing Confidential Information: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that you give reasonable notice to Cadwell to contest such order or requirement; or (b) on a confidential basis to your legal or financial advisors.
Software License Agreement
9. Government Users. The Software and Documentation are “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212. Any use, duplication or disclosure of the Software or the Documentation by or on behalf of the U.S. Government is subject to restrictions as set forth in this Agreement. Manufacturer is Cadwell Laboratories, Inc.
10. Export Law. You agree to comply fully with all U.S. export laws and regulations to ensure that neither the Software nor any technical data related thereto, nor any direct product thereof, are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.
11. General. This Agreement will be governed by and construed in accordance with the laws of the State of Washington, without regard to or application of conflicts of law rules or principles. The United Nations Convention on Contracts for the international Sale of Goods will not apply. You may not assign or transfer this Agreement or any rights granted hereunder, by operation of law or otherwise, without Cadwell’s prior written consent, and any attempt by you to do so, without such consent, will be void and of no effect. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. All notices or approvals required or permitted under this Agreement will be in writing and delivered by confirmed facsimile transmission, by overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. All notices or approvals will be sent to the addresses set forth in the applicable ordering document or invoice or to such other address as may be specified by either party to the other in accordance with this section. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by authorized representatives of both parties. If any provision of this Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible and the other provisions will remain in full force and effect. This Agreement is the complete and exclusive understanding and agreement between the parties regarding its subject matter, and supersedes all proposals, understandings or communications between the parties, oral or written, regarding its subject matter. Any terms or conditions contained in your purchase order or other ordering document that are inconsistent with or in addition to the terms and conditions of this Agreement are hereby rejected by Cadwell and will be deemed null and of no effect. The headings in this Agreement are intended solely for convenience of reference and shall be given no effect in the construction or interpretation of this Agreement.
12. Contact Information. If you have any questions regarding this Agreement, you may contact Cadwell at (800) 245-3001.