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End User License Agreement
IMPORTANT - READ CAREFULLY: BY DOWNLOADING, INSTALLING OR RECEIVING THIS SOFTWARE OR OTHER MATERIALS PROVIDED BY ELANTECH, INC. ("ELANTECH"), YOU ACKNOWLEDGE THAT YOU HAVE READ THIS END USER LICENSE AGREEMENT ("AGREEMENT"), THAT YOU UNDERSTAND IT, AND THAT YOU AGREE TO BE BOUND BY ITS TERMS. ELANTECH IS WILLING TO LICENSE THE LICENSED TECHNOLOGY (AS DEFINED HEREIN) TO YOU OR THE ENTITY FOR WHICH YOU ARE INSTALLING THIS SOFTWARE ("LICENSEE") ONLY UPON THE CONDITION THAT LICENSEE ACCEPTS ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. IF LICENSEE DOES NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN LICENSEE SHOULD PROMPTLY EXIT THIS PAGE WITHOUT DOWNLOADING, INSTALLING OR RECEIVING THE LICENSED TECHNOLOGY. 1. Definitions. "Documentation" shall mean any technical instructions or other documentation related to the Software available at ElanTech’s website and provided to Licensee pursuant to this Agreement. "Licensed Technology" shall mean the Software, the Documentation and any related intellectual property rights, including without limitation, patents, trademarks, trade secrets and trademarks. "Software" shall mean any software available at ElanTech’s website and provided to Licensee pursuant to this Agreement. 2. Grant of License. During the term hereof, ElanTech grants to Licensee a non-exclusive, non-sublicenseable, non-transferable right and limited use license (i) to download, install, use and execute one (1) copy of the Licensed Technology on one (1) personal computer at Licensee’s facilities solely for Licensee’s internal business purposes; (ii) to make one (1) copy of the Software solely for backup and archival purposes; and (iii) to make a reasonable number of copies of the Documentation solely for Licensee’s internal business purposes. 3. Restrictions. Any rights not expressly granted by ElanTech to Licensee are reserved by ElanTech, and all implied licenses are disclaimed. Except as otherwise stated herein, Licensee shall not (i) reverse engineer, decompile, reverse compile, translate, adapt, or disassemble or otherwise access the source code to the Licensed Technology, or any part thereof; (ii) copy the Licensed Technology, or any part thereof, in any form, except as set forth in Section 2(ii) and (iii) herein; (iii) publish, display, disclose, sell, rent, lease, modify, store, loan, distribute, or create compilations or derivative works of the Licensed Technology, or any part thereof; (iv) assign, sublicense, convey, transfer, pledge as security or otherwise encumber the rights and licenses granted hereunder; (v) use the Licensed Technology in any fashion that may infringe any patent, copyright, trademark, trade secret or other intellectual property or proprietary rights of ElanTech, its third party suppliers or any other third party; (vi) use the Licensed Technology over a network or distribute any portion of the Licensed Technology to other computers over a network, except as set forth in Section 2(i) herein; (vii) make available any portion of the Licensed Technology through electronic mail or the Internet; or (viii) save, store or otherwise archive the Licensed Technology or any part thereof, except as set forth in Section 2(ii) herein. Licensee may not cause, assist or permit any third party to do any of the foregoing. 4. Ownership. Licensee acknowledges that ElanTech or its suppliers retain all right, title and interest in and to the Licensed Technology and any and all copyrights, trademarks, patents, trade secrets and other intellectual property and proprietary rights therein. Licensee agrees that it has no right, title or interest in or to the Licensed Technology or any copies thereof. Rather, Licensee has a license to use the Licensed Technology as long as this Agreement remains in full force and effect. Except as set forth herein, any other use of the Licensed Technology by any other entity is strictly forbidden and is a violation of this Agreement. Licensee may not remove or obscure the copyright notice or other notices contained in the Licensed Technology. 5. Term and Termination. This Agreement shall continue in effect unless otherwise terminated in accordance with the terms and conditions set forth herein. Licensee may terminate this Agreement at any time by destroying or returning to ElanTech all copies of the Licensed Technology in Licensee’s possession or under Licensee’s control. Licensor may terminate this Agreement at any time upon Licensee’s violation of any part of this Agreement or for any other cause or reason. Upon notification of termination, Licensee agrees to destroy or return to ElanTech the Licensed Technology and any Confidential Information (as defined herein) and to certify in writing that it has complied with this Section 5. All provisions relating to confidentiality and intellectual property and proprietary rights shall survive the termination of this Agreement. 6. Warranty. 6.1 Licensee represents and warrants to ElanTech that Licensee is either: (i) an individual of at least eighteen (18) years of age or (ii) a duly authorized representative of an entity, including without limitation, a corporation, limited liability company, or partnership. Licensee further represents and warrants to ElanTech that: (i) Licensee’s use of the Licensed Technology complies in all respects with all applicable laws, statutes, regulations, ordinances and other rules; (ii) any and all information provided by Licensee to ElanTech is truthful and accurate; and (iii) Licensee’s use of the Licensed Technology shall not infringe any patent, copyright, trademark, trade secret or other intellectual property or proprietary rights of ElanTech, its third party suppliers or any other third party. 6.2 Licensee acknowledges and agrees that the use of the Licensed Technology is at Licensee’s sole risk. The Licensed Technology is provided to Licensee on an "AS IS" and "AS AVAILABLE" basis and without a warranty of any kind and, to the maximum extent permitted by law, ELANTECH AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, INFRINGEMENT AND TITLE. ELANTECH AND ITS SUPPLIERS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE LICENSED TECHNOLOGY WILL MEET ANY REQUIREMENTS OR NEEDS LICENSEE MAY HAVE, OR THAT THE LICENSED TECHNOLOGY WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED FASHION, OR THAT ANY DEFECTS OR ERRORS IN THE LICENSED TECHNOLOGY WILL BE CORRECTED, OR THAT THE LICENSED TECHNOLOGY IS COMPATIBLE WITH ANY PARTICULAR PLATFORM. SOME JURISDICTIONS DO NOT ALLOW THE WAIVER OR EXCLUSION OF SOME WARRANTIES SO THEY MAY NOT APPLY TO LICENSEE. IF THIS EXCLUSION IS HELD TO BE UNENFORCEABLE BY A COURT OF COMPETENT JURISDICTION, THEN ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES SHALL BE LIMITED IN DURATION TO A PERIOD OF THIRTY (30) DAYS FROM THE DATE OF THE LICENSE OF THE LICENSED TECHNOLOGY, AND NO WARRANTIES SHALL APPLY AFTER THAT PERIOD. 7. Indemnification. Licensee shall indemnify, defend and hold harmless ElanTech and its directors, officers, employees and agents from and against any and all claims, losses, damages, liabilities, costs and expenses, including reasonable attorneys’ fees, that arise out of, result from or are related to (i) a breach by Licensee of any warranty, representation or covenant set forth herein, (ii) Licensee’s negligence or willful misconduct, and (iii) any other claim resulting from or occasioned by the possession, use or operation of the Licensed Technology by Licensee. 8. Limitation of Liability. IN NO EVENT SHALL ELANTECH OR ITS SUPPLIERS BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) ARISING OUT OF THIS AGREEMENT, THE USE OF OR INABILITY TO USE THE LICENSED TECHNOLOGY, OR FOR ANY CLAIM BY ANY OTHER PARTY, EVEN IF ELANTECH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ELANTECH’S AND ITS SUPPLIERS’ AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE LICENSED TECHNOLOGY, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL NOT EXCEED TWO HUNDRED DOLLARS ($200). BECAUSE SOME STATES/COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE. 9. Confidentiality. At all times during the term of this Agreement and at all times thereafter, Licensee shall keep confidential and not disclose, directly or indirectly, and shall not use for the benefit of Licensee or any other third party any Confidential Information. "Confidential Information" means any trade secrets or confidential or proprietary information whether in written, digital, oral or other form which is unique, confidential or proprietary to ElanTech or its suppliers, including, but not limited to, Licensed Technology and any other materials or information related to the business or activities of ElanTech or its suppliers which are not generally known to others engaged in similar businesses or activities. Failure to mark any Confidential Information as confidential, proprietary or otherwise shall not affect its status as Confidential Information hereunder. 10. Export Restrictions. This Agreement is expressly made subject to any applicable laws, regulations, orders, or other restrictions on the export of the technology or information about the Licensed Technology which may be imposed from time to time. Licensee shall not export the Licensed Technology, information about the Licensed Technology or any product containing the Licensed Technology without complying with such laws, regulations, orders, or other restrictions. The Licensed Technology shall not be exported or re-exported (i) to Cuba, Iran, Iraq, Libya, North Korea, Rwanda, Sudan and Syria and any and all other persons and entities prohibited under the United States Export Administration Regulations, as amended from time to time, nor (ii) to any person or entity on the United States Department of the Treasury’s Office of Foreign Asset Control’s list of Specially Designated Nationals and Blocked Persons, as amended from time to time. Licensee agrees to indemnify and hold harmless ElanTech against all claims, losses, damages, liabilities, costs and expenses, including reasonable attorneys' fees, to the extent such claims arise out of any breach of this Section 10. 11. License to U.S. Government. In the event that the Licensed Technology or any part thereof is acquired by the U.S. Government or on its behalf, the Licensed Technology is furnished with "RESTRICTED RIGHTS," as defined in Federal Acquisition Regulation ("FAR") 52.217-19(c)(1) and (2) and DFAR 252.227-7013 to -7019, as applicable. Use, duplication or disclosure of the Licensed Technology by the U.S. Government and parties acting on its behalf is governed by and subject to the restrictions set forth in the above FAR and DFAR sections. 12. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED, INTERPRETED AND GOVERNED BY THE LAWS OF THE STATE OF MARYLAND OF THE UNITED STATES OF AMERICA, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES AND WITHOUT APPLICATION OF THE MARYLAND UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT AND INTERNATIONAL LAWS. THE PARTIES AGREE TO SUBMIT TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE STATE AND/OR FEDERAL COURTS WITHIN THE STATE OF MARYLAND REGARDING ANY DISPUTE AMONGST THE PARTIES UNDER THIS AGREEMENT. 13. General. This Agreement shall constitute the entire Agreement between the parties hereto. Any waiver of this Agreement shall only be effective if it is in writing and signed by both parties hereto. From time to time and immediately upon notice to Licensee, ElanTech may amend the then existing terms and conditions of this Agreement, and Licensee’s continued use of the Licensed Technology shall constitute acceptance of such amendments. Licensee may not modify the terms and conditions of this Agreement except by a written agreement signed by both parties hereto. This Agreement, the rights granted hereunder and the Licensed Technology shall not be assigned by Licensee without the prior written consent of ElanTech, which may be withheld at its sole discretion. This Agreement shall bind and inure to the benefit of the successors and assigns of the parties. If any part of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be interpreted so as to reasonably effect the intention of the parties. ElanTech is not bound by any provision of any purchase order, receipt, acceptance, confirmation, correspondence, or otherwise, unless ElanTech specifically agrees to the provision in writing.

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