SONOPLOT END-USER LICENSE AGREEMENT
PLEASE READ THIS END-USER LICENSE AGREEMENT CAREFULLY. IF YOU DO NOT AGREE TO ALL THE TERMS, YOU ARE NOT PERMITTED TO OPEN, DOWNLOAD, INSTALL, COPY, OR USE THE SOFTWARE, EVEN IF IT HAS BEED PRELOADED ON TO THE INSTRUMENT.
THIS "END-USER LICENSE AGREEMENT" IS A LEGAL AGREEMENT BETWEEN THE “LICENSEE” OR “YOU” AND SONOPLOT. BY DOWNLOADING OR BY USING THE SOFTWARE, LICENSEE REPRESENTS, WARRANTS, AND AGREES THAT IT HAS READ, UNDERSTOOD, AND AGREES TO BE BOUND TO THE TERMS OF THIS AGREEMENT.
This End-User License Agreement agreement may be updated periodically; the most current version is posted at www.sonoplot.com.Your continued use of the Software following such posting constitutes your acceptance of its terms.
1. Definitions: “Software” means any Licensor computer program (in object code) of the SonoPlot Microplotter (the “Instrument”) and/or computer software which may have been preloaded by SonoPlot on to the Instrument or separately provided, all permitted reproductions of the Software, and all upgrades, enhancements or improvements. “Documentation” means the SonoPlot provided instructions and directions for use with the Software.
2. License. Subject to this Agreement and its terms and conditions, Licensor hereby grants Licensee a nonexclusive, nontransferable, nonsublicensable, limited, and revocable license only to install and/or use the Software on SonoPlot’s Instrument for Licensee’s internal business purposes for the number of SonoPlot Instruments. License rights are subject to Licensee’s full and uninterrupted compliance with this Agreement. Licensee may copy the Documentation as necessary for Licensee’s internal use. Licensee may not use the Software with any equipment other than the Instrument. Licensee may not loan, rent, lease, license, sublicense or distribute the Software or any copies thereof. Other software, if any, provided by others, is provided WITHOUT WARRANTY OF ANY KIND.
The Software is licensed, not sold, to Licensee. Licensee hereby acknowledges that no title or ownership in the Software is being transferred or assigned, and this Agreement does not represent a sale of any individual rights in the Software to Licensee. Licensor retains all right, title, and interest to the Software, including, but not limited to, all copyrights, trademarks, trade secrets, trade names, proprietary rights, patents, titles and computer codes. Licensee agrees to prevent any unauthorized copying of the Software. Software is protected by U.S. copyright and trademark law and applicable laws and treaties throughout the world. Software may not be copied, reproduced, or distributed in any manner or medium, in whole or in part, without prior written consent from Licensor. Any persons copying, reproducing, or distributing all or any portion of the Software in any manner or medium, will be willfully violating the copyright laws and may be subject to civil and criminal penalties in the U.S. and their country of origin. Be advised that U.S. copyright violations are subject to statutory penalties. The Software contains certain licensed materials, for which other licensors may also assert their rights against you in the event of any violation of this Agreement. All rights not expressly granted under this Agreement are reserved by Licensor and, as applicable, its licensors.
3. Further Restrictions. Except for the limited license expressly granted in Section 2 herein, Licensee has no other rights in the Software, whether express, implied, arising by estoppel or otherwise. Further restrictions regarding Licensee’s use of the Software are set forth below. Licensee may not:
- modify or create derivative works of the Software;
- distribute, publish, display, sublicense, assign or otherwise transfer the Software;
- decompile, reverse engineer, disassemble or otherwise reduce the Software to a human-perceivable form (except as allowed by applicable law);
- alter or remove any copyright, trademark or patent notice(s) in the Software; or
- use the Software to: (i) develop inventions directly derived from confidential information to seek patent protection; (ii) assist in the analysis of Your patents and patent applications; or (iii) odify existing patents.
- sublicense the Software or Documentation to any third party.
If Licensee wishes to obtain interface information relating to the Software, to achieve interoperability, a request should be made in writing to SonoPlot.
4. Limited Warranty. SonoPlot warrants to Licensee for a period of ninety (90) days from the date of purchase or download from SonoPlot or its agent that the software program licensed from it will perform in substantial conformance to its documentation. SonoPlot warrants the media containing software against failure during the warranty period. No updates are required to be provided, but SonoPlot may choose to provide updates in its sole discretion. The foregoing warranty applies only to failures in operation of the Software that are reproducible in standalone form and does not apply to: (i) Software that is modified or altered by Licensee that is not authorized by SonoPlot; (ii) Software that is otherwise operated in violation of this Agreement or other than in accordance with the Documentation; or (iii) failures that are caused by other software or hardware products. To the maximum extent permitted under applicable law, as SonoPlot’s entire liability, and as Licensee’s exclusive remedy for any breach of the foregoing warranty, SonoPlot will, at its sole option and expense, promptly repair or replace any Software that fails to meet this limited warranty or, if SonoPlot is unable to repair or replace the Software, refund to Licensee the applicable license fees paid upon return, if applicable, of the nonconforming item to SonoPlot. The warranty is void if failure of the Software has resulted from accident, abuse, or misapplication. Any replacement Software under this limited warranty will be warranted for thirty (30) days. Other software, if any, provided by others, is provided WITHOUT WARRANTY OF ANY KIND.
5. Warranty Disclaimer; Limitation of Liability. The warranty set forth above in paragraph 4 is the only warranty provided to Licensee and except thereof ALL SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. SONOPLOT DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, THAT THE SOFTWARE WILL RUN UNINTERRUPTED OR ERROR-FREE OR WARRANTIES ARISING FROM CUSTOM OF TRADE OR COURSE OF USAGE. THE ENTIRE RISK ASSOCIATED WITH THE USE OF THE SOFTWARE IS ASSUMED BY LICENSEE. Local law In some jurisdictions may limit the foregoing limitation of liability.
SONOPLOT ITS AGENT AND DEALERS WILL NOT, UNDER ANY CIRCUMSTANCES BE LIABLE TO LICENSEE FOR ANY PUNITIVE, DIRECT, INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM USE OF THE SOFTWARE OR THIS AGREEMENT EVEN IF SONOPLOT AND ITS AGENTS AND DEALERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SONOPLOT'S TOTAL LIABILITY TO LICENSEE FOR ALL DAMAGE, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) EXCEED THE LICENSE FEES ACTUALLY PAID DURING THE 12-MONTH PERIOD PRIOR TO THE DATE ON WHICH THE CLAIM AROSE, OR IF GRATER THE PURCHASE PRICE OF THE INSTRUMENT. THESE DISCLAIMERS OF LIABILITY WILL NOT BE AFFECTED IF ANY LIMITED REMEDY PROVIDED HEREIN FAILS OF ITS ESSENTIAL PURPOSE. LICENSEE AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS SONOPLOT AND ITS LICENSOR DEALERS AND AGENTS AND ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES AFFILIATES OR AGENTS FROM AND AGAINST ANY AND ALL DAMAGE, LIABILITY AND OTHER EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) RESULTING FROM LICENSEE USE OF THE SOFTWARE OR VIOLATION OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
6. Termination. This Agreement will terminate immediately without notice from SonoPlot or judicial resolution if (1) Licensee fails to comply with any provisions of this Agreement, or (2) Licensee provides SonoPlot with notice that Licensee would like to terminate this Agreement. Upon termination of this Agreement, Licensee must delete or destroy all copies of the Software. Upon termination or expiration of this Agreement, all provisions survive except for Section 2.
7. U.S. Government License Rights. The Software was developed at private expense, and is provided with “RESTRICTED RIGHTS”. Use, duplication or disclosure by the government is subject to restrictions as set forth in FAR 52.227-14 and DFARS 252.227-7013 et seq. or its successor. The use of Software by the government constitutes an acknowledgment of SonoPlot’s proprietary rights in the Software. If Licensee is acquiring Software on behalf of the U.S. government, the Government shall have only “Restricted Rights” in the Software as defined in the Federal Acquisition Regulations (FARs) in Clause 52.227.19 (c) (2). If Licensee is acquiring the Software on behalf of the Department of Defense, the Software shall be classified as “Commercial Computer Software” and the Government shall have only “Restricted Rights” as defined in Clause 252.227-7013 (c) (1) of DFARs. Notwithstanding the foregoing, SonoPlot grants the U.S. Government and others acting in its behalf permission to use and distribute the Software in accordance with the terms specified in this license.
8. Export Compliance: The Software may be subject to the U.S. Export Administration Regulations and may be subject to similar laws, regulations, or requirements in other countries. Customer agrees to comply with the U.S. Export Administration Regulations and such other laws, regulations, or requirements as may apply to your receipt, re-export and use of the Product provided to you. This provision shall survive the termination of this contract.
9. Entire Agreement. This Agreement constitutes the entire agreement concerning the matters covered and may be amended only by a writing executed by both parties. In the event the parties have negotiated a signed agreement covering the matters contained herein, then the signed agreement shall control.
10. Construction and Governing Law and Jurisdiction; The headings used in this Agreement are for convenience only and will not be referred to in connection with the construction or interpretation of this Agreement.
This Agreement is in the English language only, which language shall be controlling in all respects. All notices under this Agreement shall be in the English language.
If any provision of this Agreement is held to be invalid or unenforceable, the remainder of this Agreement shall continue in full force and effect and will be interpreted to reflect the original intent of the parties.
This Agreement shall be governed by the laws of the State of Wisconsin, excluding (a) its conflict of law rules that would result in the application of the law of any other jurisdiction, and (b) the United Nations Convention for the International sale of Goods. The federal and state courts located in Madison Wisconsin shall have exclusive jurisdiction with respect to any dispute arising under this Agreement. Licensee acknowledges that its breach of this Agreement may cause irreparable damage and agree that SonoPlot shall be entitled to seek injunctive relief under this Agreement, as well as such further relief as may be granted by a court of competent jurisdiction.