licenses/Arkeia

Arkeia (text/plain), 13.66 KB, created by Arnaud Spicht on 2005-07-26 16:08:18 UTC

			ARKEIA LICENSE AGREEMENT


IMPORTANT: YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS
before using Arkeia. If you do not agree with the license agreement you
should promptly delete all software downloaded from Arkeia Corp site, or
Arkeia software from your computer(s).

Downloading Arkeia INDICATES YOUR ACCEPTANCE OF THESE TERMS AND
CONDITIONS.

ARKEIA CORP. provides the Arkeia Corp program and user documentation
(collectively, the "Product") and licenses its use worldwide. Your
license of this Product is subject to the terms and conditions set forth
in this Agreement.

1. Grant of License. Arkeia Corp, as Licensor, grants to you, the
Licensee, a nonexclusive license to use, on a single computer, the copy
of the Product which accompanies this License Agreement. You may use the
Product only on one computer or computer terminal at a time. You may not
transfer the Product, or any part thereof, to any other party.

2. Proprietary Rights. Title, ownership rights, and intellectual
property rights in the Product belong to and shall remain with Licensor.
You acknowledge such ownership and intellectual property rights and
agree that you will not take any action to jeopardize, limit or
interfere in any manner with Licensor's ownership rights with respect to
the Product.

3. Copy Restrictions and Permitted Use. The Product is copyrighted. The
internal aspects and components of the programs are proprietary to
ARKEIA CORP. You may copy the programs and database only as necessary to
use them on a single computer as permitted by this License Agreement and
for back-up purposes. Any copy made for your use or back-up purposes
must include the same ARKEIA CORP copyright and other proprietary
notices as they appear on the copies which accompany this License
Agreement. You may not modify, adapt, translate, reverse engineer,
disassemble, decompile or otherwise attempt to derive the source code
for the Product (except to the extent applicable laws specifically
prohibit such restriction), or create derivative works based upon the
Product. Duplication of the Product for any purpose, other than back-up
protection, including duplication for any commercial purpose, is a
violation of the copyright laws of the United States of America and the
laws of other countries. Except as otherwise expressly permitted in this
Agreement, you may not: (i) sell, redistribute, encumber, rent, lease,
sublicense, or otherwise transfer rights to the Product; (ii) remove or
alter any trademark, logo, copyright or other proprietary notices,
legends, symbols or labels in the Product; or (iii) publish any results
of benchmark tests run on the Product to a third party without the
Licensor's prior written consent. YOU MAY NOT COPY, MODIFY OR TRANSFER
THE PRODUCT, OR ANY COPY, MODIFICATION OR MERGED PORTION, IN WHOLE OR IN
PART. IF YOU TRANSFER POSSESSION OF ANY COPY, MODIFICATION OR MERGED
PORTION OF THE PRODUCT TO ANOTHER PARTY, YOUR LICENSE IS AUTOMATICALLY
TERMINATED.

4. Termination. This License shall remain in effect until terminated.
You may terminate this License at any time by destroying the Product,
together with all copies, modifications and merged portions in any form.
Without limiting the generality of the foregoing, and without prejudice
to any other rights Licensor may have to terminate this Agreement,
Licensor may terminate this Agreement if you breach any of its terms and
conditions. You agree upon such termination to destroy the Product along
with all copies, modifications and merged portions in any form.

5. DISCLAIMER OF WARRANTY. THE PRODUCT IS PROVIDED ON AN "AS IS" BASIS,
WITHOUT WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION THE
WARRANTIES THAT IT IS FREE OF DEFECTS, MERCHANTABLE, FIT FOR A
PARTICULAR PURPOSE OR NON-INFRINGING. THE ENTIRE RISK AS TO THE QUALITY
AND PERFORMANCE OF THE PRODUCT IS BORNE BY YOU, AS LICENSEE. SHOULD THE
PRODUCT PROVE DEFECTIVE IN ANY RESPECT, LICENSEE AND NOT LICENSOR OR ITS
SUPPLIERS OR RESELLERS ASSUMES THE ENTIRE COST OF ANY SERVICE AND
REPAIR. IN ADDITION, THE SECURITY MECHANISMS IMPLEMENTED BY THE PRODUCT
HAVE INHERENT LIMITATIONS, AND YOU MUST DETERMINE THAT THE PRODUCT
SUFFICIENTLY MEETS YOUR REQUIREMENTS. THIS DISCLAIMER OF WARRANTY
CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE PRODUCT
IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.

YOU SHOULD NOT SUBSTITUTE THIS PRODUCT FOR YOUR OWN INDEPENDENT
JUDGMENT. ARKEIA CORP. ASSUMES NO LIABILITY FOR LOSSES INCURRED BY ANY
USE OF OR RELIANCE UPON THE PRODUCT. YOU ASSUME ALL RESPONSIBILITY FOR
THE SELECTION OF THE PRODUCT TO ACHIEVE YOUR INTENDED RESULTS, AND FOR
THE INSTALLATION, USE AND RESULTS OBTAINED FROM THE PRODUCT. ARKEIA DOES
NOT WARRANT THAT THE PRODUCT WILL MEET YOUR REQUIREMENTS, OR THAT THE
OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE. YOU ASSUME
ALL RISK AS TO THE QUALITY AND PERFORMANCE OF THE PRODUCT.

6. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, IN NO EVENT WILL ARKEIA CORP. OR ITS SUPPLIERS OR
RESELLERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES ARISING OUT OF YOUR USE OF OR INABILITY TO USE THE
PRODUCT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL,
LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION, WORK STOPPAGE,
COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER DIRECT, INDIRECT,
CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF THE USE OR INABILITY
TO USE THE PRODUCT, EVEN IF ARKEIA CORP. HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY,
REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR
OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN ANY CASE, LICENSOR'S ENTIRE
LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED IN THE
AGGREGATE THE SUM OF THE FEES THAT YOU PAID FOR THIS LICENSE (IF ANY)
AND FEES FOR SUPPORT OF THE PRODUCT RECEIVED BY ARKEIA CORP. UNDER ANY
SEPARATE SUPPORT AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE
EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS
EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE.

7. U.S. Government End Users. The Product is a "commercial item," as
that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of
"commercial computer software" and "commercial computer software
documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995).
Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through
227.7202-4 (June 1995), all U.S. Government End Users acquire the
Product with only those rights set forth herein. The Product is provided
with restricted rights. Use, duplication or disclosure by the Government
is subject to restrictions as set forth in FAR 52.227-19(c)(2) (May
1987) when applicable or the applicable provisions of the DOD FAR
supplement 252.227-7013 subdivision (a)(15) (April 1988) or subdivision
(a)(17) (April 1998).

8. Export Control. You agree to comply with all export laws and
restrictions and regulations of the United States or foreign agencies or
authorities, and not to export or re-export the Product or any direct
product thereof in violation of any such restrictions, laws or
regulations, or without all necessary approvals. As applicable, each
party shall obtain and bear all expenses relating to any necessary
licenses and/or exemptions with respect to its own export of the Product
from the U.S. Neither the Product nor the underlying information or
technology may be downloaded or otherwise exported or re-exported (i)
into Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria or any other
country subject to U.S. trade sanctions covering the Product, to
individuals or entities controlled by such countries, or to nationals or
residents of such countries other than nationals who are lawfully
admitted permanent residents of countries not subject to such sanctions;
or (ii) to anyone on the U.S. Treasury Department's list of Specially
Designated Nationals and Blocked Persons or the U.S. Commerce
Department's Table of Denial Orders. By downloading or using the
Product, you agree to the foregoing and represent and warrant that you
comply with these conditions.

If the Product is identified as being not-for-export (for example, on
the box, media or in the installation process), then, unless you have an
exemption from the United States government, the following applies:
EXCEPT FOR EXPORT TO CANADA FOR USE IN CANADA BY CANADIAN CITIZENS, THE
PRODUCT AND ANY UNDERLYING ENCRYPTION TECHNOLOGY MAY NOT BE EXPORTED
OUTSIDE THE UNITED STATES OR TO ANY FOREIGN ENTITY OR "FOREIGN PERSON"
AS DEFINED BY U.S. GOVERNMENT REGULATIONS, INCLUDING WITHOUT LIMITATION,
ANYONE WHO IS NOT A CITIZEN, NATIONAL OR LAWFUL PERMANENT RESIDENT OF
THE UNITED STATES. BY DOWNLOADING OR USING THE PRODUCT, YOU AGREE TO THE
FOREGOING AND WARRANT THAT YOU ARE NOT A "FOREIGN PERSON" OR UNDER THE
CONTROL OF A "FOREIGN PERSON."

9. High Risk Activities. The Product is not fault-tolerant and is not
designed, manufactured or intended for use or resale as on-line control
equipment in hazardous environments requiring fail-safe performance,
such as in the operation of nuclear facilities, aircraft navigation or
communication systems, air traffic control, direct life support
machines, or weapons systems, in which the failure of the Product could
lead directly to death, personal injury, or severe physical or
environmental damage ("High Risk Activities"). Accordingly, Licensor and
its suppliers specifically disclaim any express or implied warranty of
fitness for High Risk Activities. You agree that Licensor and its
suppliers will not be liable for any claims or damages arising from the
use of the Product in such applications.

10. Miscellaneous.

(a) This Agreement constitutes the entire agreement between the parties
concerning the subject matter hereof. (b) This Agreement may be amended
only by a writing signed by both parties. (c) Except to the extent
applicable law, if any, provides otherwise, this Agreement shall be
governed by the laws of the State of California, U.S.A., excluding its
conflict of law provisions. (d) Unless otherwise agreed in writing, all
disputes relating to this Agreement (excepting any dispute relating to
intellectual property rights) shall be subject to final and binding
arbitration in San Mateo County, California, under the auspices of
JAMS/EndDispute, with the losing party paying all costs of arbitration.
(e) This Agreement shall not be governed by the United Nations
Convention on Contracts for the International Sale of Goods. (f) If any
provision in this Agreement should be held illegal or unenforceable by a
court having jurisdiction, such provision shall be modified to the
extent necessary to render it enforceable without losing its intent, or
severed from this Agreement if no such modification is possible, and
other provisions of this Agreement shall remain in full force and
effect. (g) The controlling language of this Agreement is English. If
you have received a translation into another language, it has been
provided for your convenience only. (h) A waiver by either party of any
term or condition of this Agreement or any breach thereof, in any one
instance, shall not waive such term or condition or any subsequent
breach thereof. (i) The provisions of this Agreement which require or
contemplate performance after the expiration or termination of this
Agreement shall be enforceable notwithstanding said expiration or
termination. (j) You may not assign or otherwise transfer by operation
of law or otherwise this Agreement or any rights or obligations herein
except in the case of a merger or the sale of all or substantially all
of your assets to another entity. (k) This Agreement shall be binding
upon and shall inure to the benefit of the parties, their successors and
permitted assigns. (l) Neither party shall be in default or be liable
for any delay, failure in performance (excepting the obligation to pay)
or interruption of service resulting directly or indirectly from any
cause beyond its reasonable control. (m) The relationship between
Licensor and Licensee is that of independent contractors and neither
Licensee nor its agents shall have any authority to bind Licensor in any
way. (n) If any dispute arises under this Agreement, the prevailing
party shall be reimbursed by the other party for any and all legal fees
and costs associated therewith. (o) If any Licensor professional
services are being provided, then such professional services are
provided pursuant to the terms of a separate Professional Services
Agreement between Licensor and Licensee. You acknowledge that such
services are acquired independently of the Product licensed hereunder,
and that provision of such services is not essential to the
functionality of the Product. (p) The headings to the sections of this
Agreement are used for convenience only and shall have no substantive
meaning. (q) Licensor may use your name in any customer reference list
or in any press release issued by Licensor regarding the licensing of
the Product and/or provide your name and the names of the Product
licensed by you to third parties.

11. License Outside the U.S. If Licensee is located outside the U.S.,
then the provisions of this Section shall apply.

(i) Les parties aux presentes confirment leur volonte que cette
convention de meme que tous les documents y compris tout avis qui s'y
rattache, soient rediges en langue anglaise. (translation: "The parties
confirm that this Agreement and all related documentation is and will be
in the English language.")

(ii) You are responsible for complying with any local laws in its
jurisdiction which might impact its right to import, export or use the
Product, and you represent that you have complied with any regulations
or registration procedures required by applicable law to make this
license enforceable.

Arkeia
1808 Aston Avenue
Suite 220
Carlsbad, CA 92008 USA

http://www.arkeia.com/

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