IMPORTANT NOTICE: PLEASE READ CAREFULLY BEFORE INSTALLING THE SOFTWARE: These terms and conditions are a legal agreement between you and GeoSoftware C.V., Bordewijklaan 58, 2591XR Den Haag, The Netherlands (“Licensor”) (“Agreement”).
BY INSTALLING THIS SOFTWARE, YOU AGREE TO THESE TERMS AND CONDITIONS, WHICH WILL BIND YOU AND YOUR EMPLOYEES. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, WE ARE UNWILLING TO LICENSE THE SOFTWARE TO YOU, AND YOU MUST: (1) DISCONTINUE INSTALLATION OF THE SOFTWARE; (2) RETURN THE MEDIA ON WHICH THE SOFTWARE IS STORED AND ALL ACCOMPANYING DOCUMENTATION PROMPTLY TO THE GEOSOFTWARE REPRESENTATIVE WHO PROVIDED THE SOFTWARE.
1. Definitions
“Confidential Information” means any confidential, proprietary or trade secret information, and other information reasonably to be understood as Confidential Information disclosed by Licensor to Customer.
“Customer” means you and the company or other legal entity that you are authorized to represent that accepts, and is bound by, this Agreement.
“Intellectual Property Rights” means patents, copyrights, registered and unregistered design rights, trademarks, trade secrets, knowhow, database rights and all other similar or corresponding rights (whether registered or unregistered) and all applications for the same, whether under U.S., foreign or international law.
“Software” means the GeoSoftware product(s) in object code form, the documentation and data supplied with it, and if applicable, the associated media, printed materials, and license keys or dongles (if any).
2. Software License
Licensor hereby grants to Customer, and Customer accepts a non-exclusive, non-transferable, temporary evaluation license (“License”) to use the Software solely for the purpose of internal evaluation in accordance with the terms of this Agreement. Customer may not use the Software to provide services to third parties, or otherwise on a service bureau or a time-sharing basis. Customer may not make any modifications or enhancements to Software, create any derivative works of Software, or merge or separate Software or any component thereof. Customer shall not, nor attempt to, reverse compile, disassemble or otherwise reverse engineer the Software. Customer shall not allow the Software to become the subject of any charge, lien or encumbrance. Licensor specifically reserves all rights not expressly granted hereunder.
3. Term and Termination
This Agreement shall come into force on the date the license key is sent to Customer and shall continue for a period of 30 days unless terminated earlier. Licensor may, without prejudice to its other rights or remedies, terminate this Agreement immediately if Customer is in breach of any of its obligations under this Agreement. Upon expiration or termination of a license, Customer’s right to use the Software licensed hereunder shall end, and Customer shall: (i) within 5 days after termination or expiration of the license return or destroy (at Licensor’s election) all Software and all copies thereof and erase all Software from the memory of its computer(s) and storage devices or render it non-readable; and (ii) certify in writing that Customer has satisfied such obligations.
Customer acknowledges that if Customer commits a breach which adversely affects Licensor’s Intellectual Property Rights, such breach will give rise to irreparable injury to Licensor which would be inadequately compensated for in damages. Should Customer breach the provisions of this Agreement, or use the Software outside the scope of this Agreement, Licensor shall have the right to immediate and temporary relief by way of injunction or restraining order against any further use, access to or disclosure of the Software and Licensor’s proprietary information by Customer, with such temporary relief to remain in effect without bond while Licensor seeks a permanent injunction from a court of competent jurisdiction.
4. Proprietary Rights
Title to, ownership of, and all rights in patents, copyrights, trade secrets and other Intellectual Property Rights in Software, do not transfer to Customer and shall remain in Licensor and/or Licensor’s third-party vendors and suppliers. In addition, Licensor may furnish Customer with confidential and proprietary information (“Proprietary Information”) in connection with the provision of Software. Customer shall protect such Proprietary Information to the same degree it protects its own proprietary information, but with no less than a reasonable degree of care, and in any event shall not disclose it or permit access thereto to any contractor, consultant or other third party without the prior written consent of Licensor. Software licensed hereunder shall also be considered Proprietary Information and, except as specifically permitted herein, shall not be disclosed to any third party.
5. Limitation of Liability
CUSTOMER AGREES THAT LICENSOR SHALL NOT BE LIABLE FOR CONSEQUENTIAL, SPECIAL, INCIDENTAL OR EXEMPLARY DAMAGES ARISING OUT OF, PURSUANT TO OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF USE, PROFIT, DATA, BUSINESS, ANTICIPATED SAVINGS, GOODWILL OR ANY OTHER FINANCIAL LOSS WHICH MAY BE CAUSED, DIRECTLY OR INDIRECTLY, BY LICENSOR OR THE SOFTWARE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE LIKELIHOOD OF SUCH POTENTIAL DAMAGE OR LOSS. EXCEPT AS SET FORTH IN SECTION 6, LICENSOR SHALL HAVE NO LIABILITY TO CUSTOMER WITH RESPECT TO THE SOFTWARE OR THIS AGREEMENT.
6. Infringement Indemnity
Licensor will defend, indemnify and hold Customer harmless against claims of infringement by unmodified Software of a third party’s intellectual property rights, provided that: (i) Customer promptly (and in no event more than ten days after learning of such alleged infringement) notifies Licensor in writing; (ii) Customer gives Licensor the right to control the defense of such claims and all related settlement negotiations; and (iii) Customer fully cooperates with Licensor, at Licensor’s reasonable expense, in any defense or settlement of such claims. If a court of competent jurisdiction determines that Software has infringed a third party’s intellectual property rights, or if any Software, in Licensor’s opinion, is likely to become the subject of a claim of intellectual infringement, Licensor may, in its sole discretion: (i) replace the infringing Software with a non-infringing, functionally compatible product; (ii) modify the Software so that it becomes non-infringing; or (iii) obtain a license for Customer to use the allegedly infringing Software. If such options are not reasonably available to Licensor, Licensor may terminate the license for such Software and grant Customer a credit for the original amount charged therefore, less a reasonable license fee. Licensor’s indemnity obligations shall not apply to infringement arising from: (i) integration or combination of Software or the methods produced thereby with other software, materials, products or methods not supplied by Licensor, if the infringement would have been avoided in the absence of such integration or combination; or (ii) use of other than the current, unaltered version of the Software if the infringement would have been avoided by the use of such version. The foregoing states the entire obligation of Licensor with respect to the infringement of any intellectual property rights.
7. Warranty / Disclaimer
The Licensed Software is provided “as is” and LICENSOR does not warrant that the functions contained in Software will meet Customer’s requirements or will operate in the combinations which Customer selects for use, or that the operation of the Software will be uninterrupted or error free. LICENSOR HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS AND IMPLIED, INCLUDING WARRANTIES OF TITLE AND NON-INFRINGEMENT, AND IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8. Trade Compliance; Anti-Corruption
8.1. Customer shall comply with all applicable laws, ordinances and regulations relating to the import, export and re-export of prescribed commodities, software, information and technology, including but not limited to: (a) sanctions and restrictive measures restricting the countries and parties with whom Customer may have commercial dealings and the nature of those dealings; (b) controls under dual-use export controls or defense trade controls; and (c) import/export/customs authorizations and formalities.
8.2. Licensor may be prohibited from participating in or supporting boycotts of certain foreign countries if such boycotts are unsanctioned, discriminatory or unlawful under laws applicable to Licensor or the transaction in question; for this reason, neither party shall take (or be required to take) or refrain from taking any action that is impermissible or penalized under the laws of an applicable jurisdiction.
8.3. Customer represents and warrants that Software and Confidential Information will not be used for any purpose associated with chemical, biological or nuclear weapons, unsafeguarded nuclear activities, nuclear fuel cycle activities or missiles, rocket systems or unmanned vehicles, nor will they be transferred and/or resold if Customer knows or suspects that they are intended or likely to be used for such a purpose.
8.4. Customer represents, warrants and covenants that it, its directors, officers, employees, agents, assigns, subcontractors, representatives and/or consultants will not authorize or make any payments or gifts or any offers or promises of payments or gifts of any kind, directly or indirectly, in connection with this Agreement to: (a) any government official to influence the official for the purpose of obtaining or retaining business or securing some other improper advantage; and (b) any employee of a private company in order to improperly induce that employee to provide any competitive advantage to Licensor or Customer in selling products or services or in otherwise doing business with that company.
8.5. Customer represents and warrants that neither it nor any of its directors, officers nor employees is an official, director, officer or employee of any government or government-controlled entity (including but not limited to state-owned enterprises, universities and institutes of higher learning), an official of a political party, or a candidate for political office. Customer represents and warrants that neither it, nor any person or entity owning or controlling it, is an entity and/or person on the U.S. and E.U. or other applicable sanctioned, denied party, specially designated national or restricted party lists.
8.6. The representations and warranties in this section 8 shall be deemed to be continuing in effect throughout the term of the Agreement. Customer shall promptly advise Licensor of any change in circumstances which may affect the continuing validity of the representations and warranties.
9. Governing Law
The License Agreement shall be governed by the laws of The Netherlands. Any dispute that cannot be resolved amicably shall be exclusively submitted to the appropriate court(s) in The Netherlands. The parties irrevocably submit to the jurisdiction of such courts.
10. General
The Agreement: (i) constitutes the complete and exclusive statement of the terms and conditions between the parties with respect to the matters set forth therein; (ii) is intended by the parties as a final expression of their agreement with respect to the terms thereof; and (iii) supersedes all other agreements, purchase orders, negotiations, representations, tender documents and proposals, written or oral. Licensor expressly rejects any terms in any purchase order or other Customer communications that are additional to, or different from, those set forth in the Agreement. Any modification of the Agreement must be in writing signed by authorized representatives of the parties and specifically identified as a modification thereof. The waiver or failure of either party to exercise in any respect any right provided for in the License Agreement shall not be deemed a waiver of any further right hereunder. If any provision of the Agreement is held unenforceable or inoperative by any court of competent jurisdiction, either in whole or in part, the remaining provisions shall be given full force and effect to the extent not inconsistent with the original terms of the Agreement.
