Kinetium Products License Agreement

IMPORTANT! READ THIS LICENSE AGREEMENT (HEREAFTER "AGREEMENT") BEFORE CLICKING ON THE "ACCEPT" BUTTON, BREAKING THE SEAL ON THE PROGRAM MEDIA PACKAGE, ENTERING "YES" IN RESPONSE TO THE ELECTRONIC LICENSE ACCEPTANCE INQUIRY, INSTALLING, USING, OR ELECTRONICALLY DOWNLOADING THE PRODUCT. ANY OF THE ABOVE ACTIONS INDICATE ACCEPTANCE OF, AND LEGALLY BINDS YOU AND/OR YOUR COMPANY ("LICENSEE"), AND KINETIUM INC. ("KINETIUM"), TO THE TERMS AND CONDITIONS SET FORTH BELOW. IF LICENSEE DESIRES TO NEGOTIATE NEW OR DIFFERENT TERMS, CONTACT KINETIUM'S CONTRACTS DEPARTMENT AT THE EMAIL ADDRESS [ contracts at (@) kinetium.com ] BEFORE TAKING ANY OF THE ABOVE ACTIONS.

1. GENERAL GRANT OF LICENSE. Kinetium grants to Licensee a nonexclusive license to use solely for Licensee's internal business purposes, the enclosed software programs and method descriptions (including any link-time and run-time modules), user documentation, and/or development process documentation (including, but not limited to documentation on computer readable media), collectively ("Product") in the countries for which the applicable license fees were paid. Licensee may not rent, lease or use the Product in a service bureau capacity. The Product shall not be accessed by users other than the authorized users, including users accessing the Product via a Web browser, for whom the applicable license fees have been paid. Licensee may not assign or otherwise transfer this license except upon notice in connection with a sale of all or substantially all Licensee's business assets. Any such assignment of residual property shall be subject to the terms and conditions stated herein. After any such assignment, assigning Licensee shall have no rights with regard to the Products licensed hereunder. Licensee shall inform all users of the Product of the terms and conditions of this Kinetium Products License Agreement. Title to and full ownership of all copies of the Product remain with Kinetium or Kinetium's licensors and are protected by United States copyright laws, patent laws, and various international treaties.
   1. KINETIUM PROCESS LICENSES. With regard to Kinetium Process licenses for use of any Kinetium Process or Method Product, the number of authorized users shall be the total number of project members on all projects utilizing the process (i.e. all Licensee projects referring to the process or method documentation, or using any of the process or method templates). A license fee must be paid to cover each member of every project using the Kinetium Process.
2. AUTHORIZATION PROCEDURES AND CODES. Many Kinetium Products require periodic authorization procedures and codes in order to enable such Product for use or access by licensed users, based on information including, but not limited to, the user's work email address, web site password, serial number, license ID, host I.D. of the installation computer and the number of authorized concurrent users. The Product may contain such authorization procedures or codes, and access to the Product by Licensee may be disabled if installed on a computer with a different serial number or if used by other than the authorized and licensed users or by greater than the authorized number of concurrent users. Licensee agrees to such authorization procedures and codes, and agrees to provide current, accurate identification, contact, and other information as part of these procedures. Licensee agrees to immediately notify Kinetium of any breach of these procedures or codes.
3. COPIES. Unless expressly authorized by Kinetium in writing, Licensee may not copy or modify the Product (or any derivative work, if applicable) or create local copies of web-based Products, except (a) to create derivative works authorized in writing by Kinetium, or (b) to create a derivative work of the computer readable documentation of Product usage. Any such derivative work of computer readable documentation, shall contain material proprietary to Kinetium (or Kinetium's licensor), and shall not be copied or distributed without the express written consent of Kinetium. Licensee may not copy documentation without the express written consent of Kinetium. Licensee may not copy, reproduce, or modify any Product templates except for use within projects which have properly licensed the use of Product.
4. TERM AND TERMINATION. This license shall be valid from the date purchased by Licensee and is perpetual unless terminated by mutual consent, by Licensee's election, or by Kinetium upon thirty (30) days written notice of Licensee's un-remedied material breach of this Agreement. In the event of any termination of this Agreement, Licensee will immediately return to Kinetium all copies of the Product and other Kinetium provided materials and certify to Kinetium that any and all copies of the Product have been erased from computer memory.
5. UPDATES AND SUPPORT. This Agreement does not grant Licensee rights to any improvements, modifications, enhancements, updates to the Product, or other support services, unless agreed to separately in writing. Such updates may be purchased separately from Kinetium and may be mandatory for some Kinetium Products. The purchase of updates does not increase the number of authorized users for the Product. Use of such improvements, modifications, enhancements or updates to the Product shall be governed by the terms and conditions contained herein. Kinetium may update License terms as it updates different versions of the Product.
6. LIMITED WARRANTIES; INDEMNIFICATION. Kinetium warrants the media on which the Product is furnished to Licensee to be free of defects in materials and workmanship and that the Product will substantially operate according to specifications published by Kinetium for a period of ninety (90) days from the date of purchase.

   Kinetium shall have no liability for any infringement of patents, copyrights, or other intellectual property rights, trademarks or trade secret resulting from: compliance with Licensee's designs, specifications, or instructions; modifications of said Product by any party other than Kinetium other than in accordance with Kinetium's instructions; or use of said Product other than as specified in relevant Kinetium publications.

   Kinetium's sole liability and Licensee's exclusive remedy for breach of any warranties shall be, at Kinetium's option, (a) to repair or replace Licensee's defective media or Product or (b) to refund the license fee paid for the Product and cancel this Agreement. Any modification of the Product by any person other than a Kinetium representative or any use of the Product with infringing software or data will void this warranty.

   Kinetium does not warrant that the functions contained in the Product will meet LICENSEE'S requirements or that the Product will be error-free. Except as provided in this section, KINETIUM EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE MEDIA AND PRODUCT, INCLUDING, WITHOUT LIMITATION, (i) THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, and (ii) ANY WARRANTY ABOUT UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE AVAILABILITY OF PRODUCT OR MEDIA SUCH AS OVER THE INTERNET. THE FOREGOING STATES KINETIUM'S AND ITS LICENSORS' ENTIRE LIABILITY FOR COPYRIGHT, TRADE SECRET, PATENT OR OTHER INTELLECTUAL PROPERTY RIGHT INFRINGEMENT BY PRODUCT FURNISHED HEREUNDER. IN NO EVENT SHALL KINETIUM OR ITS LICENSORS BE LIABLE TO LICENSEE OR A THIRD PARTY FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES INCLUDING LOST PROFITS, LOST DATA AND THE LIKE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EVEN IF KINETIUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

7. LICENSEE RESPONSIBILITIES. Licensee agrees not to reproduce, deactivate or bypass the security procedures used with the Product. Licensee agrees to preserve and respect all copyright, patent, proprietary rights and confidentiality notices and restricted rights legends included in the Product. Licensee agrees not to disassemble or reverse-compile the Product or any portion thereof. Licensee further agrees not to disclose, transfer, or otherwise provide to any third party any portion of the Product without the express written permission of Kinetium. Licensee hereby acknowledges that Licensee is aware of the fact that the Product contains professional and confidential know-how and, therefore, shall not be made available to third parties, except as specified herein.

   Licensee will be responsible for all taxes including, but not limited to, sales, use, withholding, value-added and excise taxes assessed or levied by any jurisdiction arising out of the performance of this Agreement, except for taxes based on the net income of Kinetium.

8. EXPORT CONTROLS. The Product is subject to all applicable export laws in accordance with the U.S. Export Administration Regulations and Licensee hereby agrees that neither the technical data nor the direct product thereof is intended to be shipped, either directly or indirectly to any embargoed countries nor used for or in support of any prohibited activities.
9. GENERAL. This Agreement represents the complete and exclusive statement of the agreements concerning the license between the parties, supersedes all prior agreements and understandings, and may be modified only in writing signed by Licensee and Kinetium. The acceptance of any purchase order or payment by Licensee is expressly made conditional on Licensee's assent to fully comply with all applicable laws and regulations, the terms and conditions set forth herein, and any terms or conditions contained in Licensee's purchase order or other writing pertaining to this license that are inconsistent with this Agreement are hereby rejected. If any provision of this Agreement is held to be unenforceable or illegal under certain circumstances for any reason, such decision shall not affect the validity or enforceability of such provisions under other circumstances or the remaining provisions hereof and such provisions shall be reformed only to the extent necessary to make them enforceable under such circumstances. This Agreement shall be governed by and construed under Texas law.