End User License Agreement
Orca3D Software License Agreement
NOTICE: PLEASE READ THIS LICENSE AGREEMENT CAREFULLY BEFORE INSTALLING OR USING THE SOFTWARE. BY INSTALLING OR USING THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, PROMPTLY RETURN THE UNUSED SOFTWARE.
1. RESTRICTED LICENSE. This License Agreement grants you (whether an entity or a person, hereinafter referred to as the “Customer”) the non-exclusive, non-transferable, right to use the SOFTWARE for the stipulated License Fee for the applicable TERM. The TERM of this license is specified at the time of purchase, and may be Annual, Perpetual, or otherwise.
2. LICENSE RESTRICTIONS. The SOFTWARE, along with all security features, shall be used only as stated herein. Customer may not transfer or assign to another party or location the rights under this License Agreement, the SOFTWARE, or any accompanying Documentation without the prior written consent of Orca3D, LLC (Licensor). This license includes the right to use one copy of the SOFTWARE on any single computer, provided the SOFTWARE is only used on one computer at a time. The SOFTWARE is “in use” on a computer when it is loaded into temporary memory (RAM) or installed into the permanent memory of a computer (e.g., a hard disk, CD-ROM, or other storage device). If the SOFTWARE is permanently installed on the hard disk drive or other storage device of a computer (other than a network server) and one person uses that computer more than eighty percent (80%) of the time, then that person may also use the SOFTWARE on a portable or home computer by requesting an additional License Key from the Licensor. Customer may not use the SOFTWARE for commercial time-sharing or rental use. Customer may make one (1) copy of the SOFTWARE solely for backup, archival or disaster recovery purposes. Customer may not modify, decompile, disassemble, reverse engineer, reverse translate or prepare derivative works of the SOFTWARE in whole or in part at any time for any reason.
3. COPYRIGHT. The SOFTWARE is owned by Licensor and is protected by U.S. copyright laws and international treaty provisions. This License Agreement does not transfer any ownership in the SOFTWARE, Documentation, trademarks, or other Licensor proprietary property rights.
4. WARRANTY. Licensor warrants that it is the owner of the SOFTWARE and Documentation and that the SOFTWARE and Documentation do not infringe any U.S. patent, copyright, or trade secret rights of any third party. Licensor further warrants for a period of thirty (30) calendar days from the date of shipment that (i) the media on which a copy of the SOFTWARE is provided to Customer will be free from defects in material and workmanship under normal use, and (ii) the SOFTWARE will perform substantially in accordance with the Documentation.
5. CUSTOMER REMEDIES. Licensor’s entire liability for breach of warranty and the Customer’s exclusive remedy for breach of warranty shall be, at Licensor’s option and expense, either (a) repair or replacement of the SOFTWARE or media that does not meet
the warranty or (b) return of the price paid. This warranty is void if failure of the SOFTWARE has resulted from accident, abuse, or misapplication from any party other than Licensor. EXCEPT AS EXPRESSLY STATED IN ARTICLE 4, LICENSOR DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO AGENT, DEALER, OR DISTRIBUTOR IS AUTHORIZED TO MODIFY OR REVISE THIS WARRANTY.
6. LIMITATION OF LIABILITY. IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF DATA, OR LOSS OF GOODWILL ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, LICENSOR’S TOTAL LIABILITY TO CUSTOMER AND ANY THIRD PARTIES SHALL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER FOR THE LICENSED SOFTWARE HEREUNDER.
7. INDEMNITY. In the event that a claim is brought against Customer alleging that the SOFTWARE or Documentation infringes a U.S. patent, copyright, or trade secret, Licensor agrees to defend such claim and to indemnify and hold Customer harmless for any damages or costs awarded against Customer. Customer shall give Licensor prompt written notice of any such claim, shall allow Licensor to control the defense and settlement of such claim, and shall reasonably cooperate with Licensor in the defense and settlement thereof. If an injunction or order is obtained against Customer’s use of the SOFTWARE, or if, in Licensor’s reasonable opinion, the SOFTWARE is likely to become the subject of a claim of infringement or violation of a U. S. patent, copyright, or trade secret, then Licensor will, at its option and expense: (i) procure for Customer the right to continue using the SOFTWARE; (ii) replace or modify the SOFTWARE so that it becomes non-infringing; or (iii) return the unamortized cost of the SOFTWARE to Customer based on a thirty-six (36) month pro rata schedule.
8. TECHNICAL SUPPORT/SOFTWARE MAINTENANCE. Licensor provides remote technical support for the SOFTWARE free of charge via its website. All maintenance releases for the same version of the SOFTWARE purchased will be provided free of charge (i.e., the maintenance release will have the same first version number of the release purchased). If the Customer with a Perpetual license desires any new release of a SOFTWARE version (indicated by a change in the the first version number), the payment of an upgrade fee will be required. If a Customer has a valid Annual license, the new release of a SOFTWARE version will be provided free of charge.
9. TERMINATION OF LICENSE. This License Agreement may only be terminated by Licensor upon providing at least ten (10) calendar days’ prior written notice to Customer of any violation or default of the terms of this License Agreement by Customer. Customer shall be allowed to remedy any such violation or default within the 10-day period to Licensor’s reasonable satisfaction. Upon termination for Customer’s default, all
copies of the SOFTWARE and Documentation shall be immediately returned to Licensor or destroyed. If Customer destroys all SOFTWARE and Documentation, it will notify Licensor in writing that such destruction has taken place and that the SOFTWARE will not be used or reactivated by Customer in the future. Customer may terminate this License Agreement at any time by returning all SOFTWARE and Documentation to Licensor or destroying all SOFTWARE and Documentation and notifying Licensor as above. Any termination under this provision (whether by Licensor or Customer) shall be without rebate or any reduction in the amount owed or paid. Any cause of action or claim accrued or to accrue because of any breach or default shall survive termination of this License Agreement. Articles 2, 3, 4, 5, 6, 7, 12, and 14 shall survive any expiration or termination of this License Agreement.
10. TAXES. Any prices and fees for SOFTWARE or services exclude any applicable sales, use, excise, value added, or other taxes or assessments which are or may hereinafter be levied or imposed by any federal, state, local or other public taxing authority, howsoever designated. Any such taxes or assessments (except for Licensor income taxes) levied or imposed as a result of this License Agreement shall be the Customer’s obligation solely, and the Customer shall be responsible for all such payments.
11. FORCE MAJEURE. Except for any payment obligations, neither party shall be in default for any delay or failure to perform hereunder due to causes beyond its reasonable control and without its fault or negligence.
12. GOVERNING LAW/ARBITRATION. If you are a State Agency in the United States, this License Agreement shall be governed by and construed under the laws of your State. If you are a United States Federal Agency, this License Agreement shall be governed by and construed under United States Federal Law. Otherwise, this License Agreement shall be governed by and construed under the laws of the State of Maryland, U.S.A., excluding its conflict of laws principles. Any dispute, controversy, or claim, arising out of or relating to this License Agreement or a breach thereof, shall be finally resolved by arbitration. Such arbitration shall be the parties’ exclusive remedy (except for cases of urgent equitable relief). The arbitration shall be in accordance with the rules of the American Arbitration Association (AAA) then in effect on the date of this Agreement by one arbitrator appointed in accordance with such rules. In the event of any conflict between the rules and this clause, the provisions of this clause shall govern. Unless the parties otherwise mutually agree in writing, the place of arbitration shall be Annapolis, Maryland, U.S.A. The arbitration shall be conducted in the English language. The parties shall pay their own arbitration expenses and shall equally share the arbitrator’s costs and fees and the arbitrator shall allocate such costs equally between the parties as part of the award.
13. LIMITED LICENSE FOR TRIAL RELEASE. Licensor hereby grants Customer a limited, non-exclusive, non-transferable right to use the SOFTWARE at no-charge for the limited purpose of evaluating whether to purchase the SOFTWARE. This trial release license contains the following requirements/restrictions: The SOFTWARE will run for fifteen (15) calendar days after installation. Upon the expiration of this 15-day period, the
Customer shall either (i) purchase an ongoing license by paying the stipulated License Fee, which shall be subject to the terms and conditions of this License Agreement, or (ii) promptly remove or uninstall the SOFTWARE and return it to Licensor, or, at the Licensor’s option, destroy the SOFTWARE and certify to such destruction.
14. EXPORT COMPLIANCE. Customer agrees to comply with all applicable import/export laws, including the Export Administration Regulations, as amended (15 CFR, Parts 730-744), arising or related to its performance under this License Agreement. The SOFTWARE is categorized as ECCN 8D992 under the Export Administration Regulations (15 CFR § 730-774) issued by the U.S. Department of Commerce, and may not be used in or exported/re-exported to Cuba, Iran, Libya, North Korea, Sudan, Syria, or any country to which the United States embargoes goods. The same restriction applies to persons, no matter where they are located, that appear on the Table of Denial Orders, the Entity List, or the List of Specially Designated Nationals. An export license issued by the U.S. Department of Commerce or an EAR exception may be required prior to export or transfer of this information to certain parties or end uses. Diversion contrary to U.S. law is prohibited.
15. NOTICE TO U.S. GOVERNMENT END USERS. The SOFTWARE and Documentation are "commercial items," as that term is defined at 48 C.F.R. Part 2.101, consisting of "Commercial Computer Software" and "Computer Software Documentation," as such terms are defined in 48 C.F.R. Part 252.227-7014(a)(1) and 48 C.F.R. Part 252.227-7014(a)(5), and used in 48 C.F.R. Part 12.212 and 48 C.F.R. Part 227.7202, as applicable. Consistent with 48 C.F.R. Part 12.212, 48 C.F.R. Part 252.227-7015, 48 C.F.R. Part 227.7202-1 through 227.7202-4, 48 C.F.R. Part 52.227-19, and other relevant sections of the Code of Federal Regulations, as applicable, the Commercial Computer Software and Computer Software Documentation are distributed and licensed to U.S. Government end users (a) only as commercial items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
16. MISCELLANEOUS. If any portion of this License Agreement shall be held to be illegal or otherwise void and invalid, the remaining portion of the License Agreement shall not be affected, and it shall remain in full force and effect. This License Agreement constitutes the exclusive and entire understanding between Licensor and Customer with respect to the SOFTWARE. This License Agreement supersedes any prior proposals, bids, quotes, representations, agreements, or any other understandings, whether oral or written, regarding the SOFTWARE or the relationship between Licensor and Customer and may only be modified by a written agreement executed by authorized representatives of both parties. Licensor hereby rejects any additional or inconsistent terms and conditions offered by Customer at any time and irrespective of Licensor’s commencement of performance or shipment, or the acceptance of payment, hereunder. Purchase orders or other similar unilateral documents issued by the Customer shall be for the Customer’s internal use only and shall not be binding on Licensor or otherwise affect or amend this License Agreement whatsoever.
17. THIRD PARTY NOTICES AND CONDITIONS. The SOFTWARE may include or utilize certain software (the “TurksHead and Archimedes Libraries”) which are owned by Orca3D, LLC, the source code of which is licensed under the GNU Lesser General Public License, Version 2.1 (February 1999). The license for the TurksHead and Archimedes Libraries can be found at http://www.gnu.org/licenses/old-licenses/lgpl-2.1.html. The Customer acknowledges and agrees that this GNU Lesser General Public License is fully applicable to the use of those portions of the SOFTWARE that consist of or are derived from the TurksHead and Archimedes Libraries.