End-User License Agreement
GRYFN, INC.
END-USER LICENSE AGREEMENT FOR
GRYFN PLOT EXTRACTION TOOL SOFTWARE
IMPORTANT: PLEASE READ THIS END-USER LICENSE AGREEMENT CAREFULLY. DOWNLOADING, INSTALLING OR USING THE SOFTWARE CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.
GRYFN, INC. (“GRYFN”), OR ITS AUTHORIZED LICENSOR, IS WILLING TO LICENSE THE SOFTWARE TO YOU OR THE BUSINESS ENTITY YOU REPRESENT (“LICENSEE”) UPON THE CONDITION THAT LICENSEE ACCEPTS ALL OF THE TERMS CONTAINED IN THIS END USER LICENSE AGREEMENT (“AGREEMENT”). BY DOWNLOADING, INSTALLING, OR USING THE SOFTWARE, YOU ARE BINDING YOURSELF AND THE BUSINESS ENTITY THAT YOU REPRESENT TO THE TERMS OF THIS AGREEMENT.
IF LICENSEE DOES NOT AGREE TO ALL OF THE TERMS OF THE AGREEMENT, THEN GRYFN IS UNWILLING TO LICENSE THE SOFTWARE TO LICENSEE AND (A) LICENSEE MAY NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE, AND (B) LICENSEE MAY RETURN THE SOFTWARE TO THE PLACE OF PURCHASE FOR A FULL REFUND, OR, IF THE SOFTWARE AND WRITTEN MATERIALS ARE SUPPLIED AS PART OF ANOTHER PRODUCT, LICENSEE MAY RETURN THE ENTIRE PRODUCT TO THE PLACE OF PURCHASE FOR A FULL REFUND. LICENSEE’S RIGHT TO RETURN AND REFUND EXPIRES 30 DAYS AFTER PURCHASE FROM LICENSOR AND APPLIES ONLY IF LICENSEE IS THE ORIGINAL END USER PURCHASER.
DEFINITIONS.
“Authorization Code” means any key, activation code or other mechanism required for use of the Software.
“Documentation” means written information (whether contained in user or technical manuals, training manuals, specifications or otherwise) pertaining to the Software and made available by GRYFN in any manner.
“Ordering Documents” means a sales quotation, purchase order, invoice, or other document identifying the Software that Licensee procures.
“Software” means the computer programs provided to Licensee by an approved source, and any upgrades, updates, bug fixes or modified versions thereto (collectively “Upgrades”).
LICENSE. Conditioned upon compliance with the terms and conditions of the Agreement, GRYFN grants to Licensee a nonexclusive license to use for Licensee’s internal use and specific business needs (“Scope”), the Software and Documentation for which Licensee has paid the required license fees as set forth on the applicable Ordering Documents from GRYFN or an authorized GRYFN licensor.
GENERAL LIMITATIONS. Licensee may install and use the Software on a single computer, install and store the Software on a storage device, such as a network server, install the Software on Licensee’s other computers over an internal network, or install on a third-party internet-based network server for use within the Scope, provided Licensee has purchased the appropriate licenses and adheres to the terms and conditions herein. Other than as specifically set forth herein, you may not make or distribute copies of the Software, use the Software for commercial network services, time sharing or remote processing services, or provide unlicensed end users with access to the Software functionality. Licensee may make one copy of the Software in machine-readable form solely for backup purposes. Licensee must reproduce on any such copy all copyright notices and any other proprietary legends on the original copy of the Software.
This is a license, not a transfer of title to the Software and Documentation, and GRYFN and/or its licensors retain ownership of all copies of the Software and Documentation. Licensee acknowledges that the Software and Documentation contain trade secrets, proprietary, or confidential information of GRYFN or its suppliers or licensors, including but not limited to the specific internal design and structure of individual programs and associated interface information. Except as otherwise expressly provided under the Agreement, Licensee shall have no right, and specifically agrees not to:
rent, lease, loan, sell, transfer, assign or sublicense its license rights to any other person or entity (other than in compliance with any GRYFN relicensing/transfer policy then in force), and Licensee acknowledges that any attempted transfer, assignment, sublicense or use shall be void;
make error corrections to or otherwise modify, alter or adapt the Software or create derivative works based upon the Software, or permit third parties to do the same;
translate, decipher, reverse engineer or decompile, decrypt, disassemble or otherwise reduce the Software to human-readable form, except to the extent otherwise expressly permitted under applicable law notwithstanding this restriction;
use or permit the Software to be used to perform services for third parties, whether on a service bureau or time-sharing basis or otherwise, without the express written authorization of GRYFN;
disclose, provide, or otherwise make available trade secrets, proprietary or confidential information contained within the Software and Documentation in any form to any third party without the prior written consent of GRYFN unless otherwise required by applicable law or court order. Licensee shall implement reasonable security measures to protect such trade secrets, proprietary or confidential information.
use more Software licenses at any given time than the total quantity authorized by Licensees.
SOFTWARE, UPGRADES AND ADDITIONAL COPIES. NOTWITHSTANDING ANY OTHER PROVISION OF THE AGREEMENT: (1) LICENSEE HAS NO LICENSE OR RIGHT TO MAKE OR USE ANY ADDITIONAL COPIES OR UPGRADES UNLESS LICENSEE, AT THE TIME OF MAKING OR ACQUIRING SUCH COPY OR UPGRADE, ALREADY HOLDS A VALID LICENSE TO THE ORIGINAL SOFTWARE AND HAS PAID THE APPLICABLE FEE FOR THE UPGRADE OR ADDITIONAL COPIES; AND (2) THE MAKING AND USE OF ADDITIONAL COPIES IS LIMITED TO NECESSARY BACKUP PURPOSES ONLY.
U.S. GOVERNMENT END-USER PURCHASERS. The Software and Documentation qualify as “commercial items,” as that term is defined at Federal Acquisition Regulation (“FAR”) (48 C.F.R.) 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212. Consistent with FAR 12.212 and DoD FAR Supp. 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any contract into which this Agreement may be incorporated, Government end user will acquire the Software and Documentation with only those rights set forth in this Agreement. Use of either the Software or Documentation or both constitutes agreement by the Government that the Software and Documentation are “commercial computer software” and “commercial computer software documentation,” and constitutes acceptance of the rights and restrictions herein.
LIMITED WARRANTY. Subject to the limitations and conditions set forth herein, GRYFN warrants that commencing from the date of shipment to Licensee and for a period no longer than sixty (30) days: (a) the media on which the Software is furnished will be free of defects in materials and workmanship under normal use; and (b) the Software shall perform in substantial conformity with the Documentation. Except for the foregoing, the Software is provided “AS IS.” This limited warranty extends only to the Licensee who is the original licensee. Licensee’s sole and exclusive remedy and the entire liability of GRYFN and its distributors or suppliers under this limited warranty will be (i) replacement of defective media; and/or (ii) at GRYFN’s option, repair, replacement, or refund of the purchase price of the Software license. In both cases, the remedy is subject to the condition that any error or defect constituting a breach of this limited warranty is reported to GRYFN or the party supplying the Software to Licensee if different than GRYFN, within the 30-day warranty period. GRYFN or the party supplying the Software to Licensee may, at its option, require return of the Software and/or Documentation as a condition to the remedy. In no event does GRYFN warrant that the Software is error-free or that Licensee will be able to operate the Software without problems or interruptions?
WARRANTY RESTRICTIONS. This warranty does not apply if the Software, (a) has been altered, except by GRYFN; (b) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by GRYFN; (c) has been subjected to abnormal physical or electrical stress, abnormal environmental conditions, misuse, negligence, or accident; (d) is licensed for beta, evaluation, testing or demonstration purposes; or (e) any Software for which GRYFN does not receive a license fee.
THIRD PARTY AND OPEN-SOURCE SOFTWARE. Portions of the software may include copyrighted third-party software provided under license. Such third-party software may include "free" or "open source" software licensed under separate terms from this EULA ("open-source software"). Such open-source software is distributed without any warranty, without even the implied warranty of merchantability or fitness for a particular purpose. GRYFN is not obligated to provide any warranty, maintenance, technical or other support for the open-source software or its use in the software. Attributions and license terms for third-party and open-source software are available in the software documentation.
DISCLAIMER OF WARRANTY. Except as specified in this warranty section, all express or implied conditions, representations, and warranties including, without limitation, any implied warranty or condition of title, merchantability, fitness for a particular purpose, non-infringement, satisfactory quality, non-interference, accuracy of informational content, or arising from a course of dealing, law, usage, or trade practice, are hereby excluded to the extent allowed by applicable law and are expressly disclaimed by GRYFN, its suppliers and licensors. To the extent an implied warranty cannot be excluded, such warranty is limited in duration to the express warranty period. Because some states or jurisdictions do not allow limitations on how long an implied warranty lasts, the above limitation may not apply. This warranty gives licensee specific legal rights, and licensee may also have other rights which vary from jurisdiction to jurisdiction. This disclaimer and exclusion shall apply even if the express warranty set forth above fails its essential purpose.
DISCLAIMER OF LIABILITIES - LIMITATION OF LIABILITY. Notwithstanding anything else in the agreement to the contrary, all liability of GRYFN, its affiliates, officers, directors, employees, agents, suppliers and licensors collectively, to licensee, whether in contract, tort (including negligence), breach of warranty or otherwise, shall not exceed the price paid by licensee to GRYFN or its authorized reseller for the software that gave rise to the claim.
This limitation of liability for software is cumulative and not per incident (i.e., the existence of two or more claims will not enlarge this limit). In no event will GRYFN, its affiliates, officers, directors, employees, agents, suppliers and licensors, be liable for any lost revenue, lost profit, or lost or damaged data, business interruption, loss of capital, cost to cover or for special, indirect, consequential, incidental, or punitive damages, howsoever arising, including, without limitation, in contract, tort (including negligence) or whether arising out of the use of or inability to use the software, even if, in each case, GRYFN, its affiliates, officers, directors, employees, agents, suppliers and licensors, have been advised of the possibility of such damages. Because some states or jurisdictions do not allow limitation or exclusion of consequential or incidental damages, the above limitation may not fully apply to licensee.
INDEMNITY. GRYFN shall defend or settle at its expense a claim or suit against Licensee arising out of or in connection with an assertion that the Software infringes any U.S. copyright or U.S. registered patent. GRYFN shall indemnify and hold Licensee harmless from and against the damages, costs and expenses (including, without limitation, reasonable legal and expert witness fees), if any, finally awarded in such suit or the amount of the settlement thereof, provided that GRYFN is notified in writing of the existence of such claim by Licensee within five (5) business days of Licensee’s first learning of the same, and provided that GRYFN is given full authority to control the defense, cost and settlement of the claim. GRYFN will not be obligated to defend or otherwise indemnify Licensee in any lawsuit or as to any claim which arises from or relates to: (1) any combination of the Software with another product not supplied by GRYFN; (2) if such a claim is based upon use of the Software for purposes for which it was not designed; or (3) if the Software has been modified by any party other than GRYFN. In lieu of the foregoing indemnification obligations, GRYFN shall have the option, at its expense, either to procure for Licensee the right to continue using the Software or to replace or modify the Software so that it becomes non-infringing, or to refund to Licensee the amount actually paid by the Licensee for the Software.
EXPORT RESTRICTIONS. The Software is subject to export controls under the laws and regulations of the United States of America, including but not limited to the U.S. Export Administration Regulations and U.S. Department of the Treasury, Office of Foreign Assets Control, and may be subject to additional export and import regulations of the country in which the software is obtained. You agree that you will comply with all applicable laws and regulations governing the export, import, reexport, transfer, and use, and that you have the responsibility to obtain any required authorization from the appropriate authority. If GRYFN receives notice that You are or You become identified as a sanctioned or restricted party under applicable law, then GRYFN will not be obligated to perform any of its obligations under this Agreement if such performance would result in violation of the sanctions or restrictions.
PROPRIETARY NOTICES. Licensee agrees to maintain and reproduce all copyright and other proprietary notices on all copies, in any form, of the Software and Documentation in the same form and manner that such copyright and other proprietary notices are included on the Software and Documentation. Except as expressly authorized in the Agreement, Licensee shall not make any copies or duplicates of any Software without the prior written permission of GRYFN.
WAIVER. The failure of GRYFN to insist on the performance of any of the terms or conditions of this Agreement or to exercise any right hereunder shall not be a waiver of such terms, conditions, or rights in the future, nor shall it be deemed to be a waiver of any other term, condition, or right under this Agreement.
MODIFICATION OF TERMS AND CONDITIONS. No terms and conditions other than those stated herein, and no modification of these terms or conditions, shall be binding on GRYFN without GRYFN’s written consent.
TERM AND TERMINATION. The Agreement and the license granted herein shall remain effective until terminated. Licensee may terminate the Agreement and the license at any time by destroying all copies of Software and any Documentation. Licensee’s rights under the Agreement will terminate immediately without notice from GRYFN if Licensee fails to comply with any provision of the Agreement. Upon termination, Licensee shall destroy all copies of Software and Documentation in its possession or control. All confidentiality obligations of Licensee and all limitations of liability and disclaimers and restrictions of warranty shall survive termination of this Agreement.
LICENSEE RECORDS. Licensee grants to GRYFN and its independent accountants the right to examine Licensee’s books, records and accounts during Licensee’s normal business hours to verify compliance of with this Agreement as it relates to the Software. In the event such audit discloses non-compliance with this Agreement, Licensee shall promptly pay to GRYFN the appropriate license fees, plus the reasonable cost of conducting the audit.
GOVERNING LAW. The Agreement shall be governed as follows:
For commercial entities, the laws of the State of Indiana without regard to its choice of law rules.
For U.S. state and local governments and/or higher education schools governed by state laws, contracts shall be governed by the laws of the state where they are located without reference to conflict of laws principles.
For the U.S. Government, contracts shall be governed by U.S. federal laws.
Contracts will not be governed by the United Nations Convention on Contracts for International Sale of Goods; this application is expressly excluded.
GENERAL PROVISIONS. If any part of the Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which will remain valid and enforceable according to its terms. This Agreement may only be modified by a writing signed by an authorized officer of GRYFN. The English version of this agreement will be the version used when interpreting or construing this Agreement.
NOTICE. Any notice relating to the Agreement should be sent by personal delivery or U.S. certified mail (return receipt requested) to the address provided below and will be effective upon receipt: GRYFN, Inc., ATTN: LEGAL, 3000 Kent Avenue, Suite 1531, West Lafayette, IN, USA.
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