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The following terms and conditions constitute the license agreement (the "Agreement") between you and Network Research Lab Limited.
1. DEFINITIONS
A. The term "LICENSEE" means you and does not include any subsidiary, affiliate, partner or other business related to or connected with you.
B. The term "NRLAB" means Network Research Lab Limited and includes only that business entity known as Network Research Lab Limited, and does not include any subsidiary, affiliate, partner, or other business related to or connected with Network Research Lab Limited, its officers, directors, employees, shareholders, representatives or any other entity.
C. The term "SOFTWARE" means any of the software provided to LICENSEE by NRLAB under this Agreement on compact disc, via a web-site, or on another medium or through another delivery mechanism, including any unenabled features thereof, and any associated user documentation. If LICENSEE is obtaining an update, then the term "SOFTWARE" also includes, any pre-existing software and data provided within earlier SOFTWARE releases, to the extent such earlier software and data is retained by, embodied in or in any way used or accessed by the upgraded SOFTWARE provided with this Agreement.
D. The term "LICENSORS" means any third parties that provided under license to NRLAB any portions of code and/or documentation, which SOFTWARE may contain or from which be derived.
E. The term "AUTHORIZED DISTRIBUTOR" means distributor authorized by NRLAB to distribute the SOFTWARE.
F. The term "CONFIDENTIAL INFORMATION" means:
(i) the SOFTWARE, in object and source code form, and any related technology, idea, algorithm or information contained therein and any trade secrets related to any of the foregoing;
(ii) either party's product plans, costs, prices and names; non-published financial information; marketing plans; business opportunities; personnel; research; development or know-how;
(iii) any information designated by the disclosing party as confidential in writing or, if disclosed orally, designated as confidential at the time of disclosure and placed in writing and given to the receiving party and designated as confidential in writing within thirty (30) days; and
(iv) the terms and conditions of this Agreement;
provided, however that "CONFIDENTIAL INFORMATION" will not include information that:
(i) is or becomes generally known or available by publication, commercial use or otherwise through no fault of the receiving party;
(ii) is known and has been placed in tangible form by the receiving party at the time of disclosure and is not subject to restriction;
(iii) is independently developed by the receiving party without use of the disclosing party's CONFIDENTIAL INFORMATION;
(iv) is lawfully obtained from a third party who has the right to make such disclosure; and
(v) is released for publication by the disclosing party in writing.
2. LICENSE GRANT
By this Agreement, NRLAB grants to LICENSEE a non-exclusive limited license to use the SOFTWARE on the terms and conditions outlined in this Agreement. Any features of the SOFTWARE unenabled by the protection mechanism of the SOFTWARE are unlicensed and LICENSEE agrees not to use or access such features.
Pursuant to this Agreement, LICENSEE may use the SOFTWARE on a single computer provided that at any given time the SOFTWARE will be used by no more than one (1) user.
LICENSEE may not use, copy, modify, distribute or transfer the SOFTWARE or any copy, or merged or combined portion thereof, in whole or in part, except as expressly provided for in this Agreement. If LICENSEE transfers possession of any copy, or merged or combined portion of the SOFTWARE, to another party except as expressly provided herein, this Agreement is automatically terminated.
3. COPY RESTRICTIONS
This SOFTWARE and documentation is protected by copyright laws and international treaty provisions. Unauthorized copying of the SOFTWARE in whole or in part is expressly forbidden. Subject to these restrictions, LICENSEE may:
A. load the SOFTWARE onto one (1) computer to support authorized use and
B. make one (1) copy of the SOFTWARE solely for backup purposes, provided all copyright and trademark notices will be included on the back-up copy.
LICENSEE may not copy any part of the documentation, nor modify, adapt, translate into any language, or create derivative works based on the documentation without the prior written consent of NRLAB.
4. OWNERSHIP OF THE SOFTWARE
NRLAB retains all rights, titles and interests in the SOFTWARE and any copy thereof, and reserves all rights not expressly granted to LICENSEE. This Agreement shall not be construed as conferring a license to or rights in any NRLAB patent, trademark or other intellectual property right owed to NRLAB. This Agreement is not a sale of the original SOFTWARE or of any copy thereof.
5. USE RESTRICTIONS
This SOFTWARE is licensed to LICENSEE for internal use only. LICENSEE acknowledges that the scope of the license(s) granted hereunder do not permit LICENSEE (and LICENSEE shall not allow any third party) to:
A. decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques or algorithms of the SOFTWARE by any means whatsoever, or disclose any of the foregoing;
B. provide, lease, lend, use for time sharing or service bureau purposes, or otherwise use or allow others to use the SOFTWARE for the benefit of third parties;
C. use the SOFTWARE in or with systems, devices or products intended for surgical implant into the body or other applications intended to support or sustain life or for any aviation, nuclear or military application or any other application in which the SOFTWARE or its failure, malfunction or inadequacy could directly or indirectly cause or contribute to personal injury or death or significant property damage;
D. modify, incorporate into or with other software, or create a derivative work of any part of the SOFTWARE;
E. disclose the results of any benchmarking of the SOFTWARE, or use such results for LICENSEE'S own competing software development activities, without the prior written permission of NRLAB; or
F. attempt to circumvent any use restrictions that are built in to the SOFTWARE.
If LICENSEE is located in a member nation of the European Community ("EC") or other jurisdiction that permits limited reverse engineering, LICENSEE may perform limited reverse engineering, but only after giving notice to NRLAB and only to the extent permitted by the EC software directive or other applicable law.
6. EXPORT
LICENSEE agrees not to knowingly, directly or indirectly, allow the SOFTWARE to be used in, or exported, transmitted, or sent to any country except in compliance with all applicable regulations or statutes.
7. PROTECTION OF CONFIDENTIAL INFORMATION
Each party will protect the other's CONFIDENTIAL INFORMATION from unauthorized dissemination and use with the same degree of care that each such party uses to protect its own like information. Neither party will use the other's CONFIDENTIAL INFORMATION for purposes other than those necessary to directly further the purposes of this Agreement. Neither party will disclose to third parties the other's CONFIDENTIAL INFORMATION without the prior written consent of the other party.
8. LICENSORS
NRLAB has assumed responsibility for the selection of code and documentation licensed to it by LICENSORS and its use in producing and licensing the SOFTWARE. LICENSORS disclaim all warranties with respect to the use of such code or documentation in the SOFTWARE, including, without limitation, any warranties of merchantability, fitness for a particular purpose, title and non-infringement.
9. LIMITED WARRANTY
For period of ninety (90) days from the date of first receipt by LICENSEE from NRLAB of the SOFTWARE or protection code or key to enable any features of SOFTWARE, NRLAB warrants that the compact disc or other medium, if any, on which the SOFTWARE is furnished will be free from defects in materials and workmanship under normal use. This warranty is limited to LICENSEE and is not transferable.
During the 90-day warranty period,
A. NRLAB will replace any compact disc not meeting the foregoing warranty and which is returned to NRLAB or an AUTHORIZED DISTRIBUTOR with adequate proof of purchase; or
B. if NRLAB or the AUTHORIZED DISTRIBUTOR is unable to deliver a replacement compact disc which is free of defects in materials or workmanship, LICENSEE may terminate this Agreement by returning the SOFTWARE, and licensing fee under this Agreement will be refunded to LICENSEE.
Any replacement compact disc will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer.
The foregoing warranty does not extend to any compact disc that has been damaged as a result of accident, misuse, abuse, or as a result of service or modification by anyone other than NRLAB or an AUTHORIZED DISTRIBUTOR.
NRLAB provides the SOFTWARE on an "as is" or "as available" basis.
Except as expressly set forth above, no other warranties, representations, promises or covenants, either express or implied, are made with respect to the SOFTWARE, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title and noninfringement, and NRLAB expressly excludes and disclaims all warranties not stated herein. LICENSEE assumes the entire risk as to the quality and performance of the SOFTWARE. Should the SOFTWARE prove defective, LICENSEE and not NRLAB or an AUTHORIZED DISTRIBUTOR shall assume the entire cost of necessary servicing, repair or correction. Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to LICENSEE in full, but shall be interpreted to apply to the maximum extent permissible under applicable law.
NRLAB does not warrant that the functions contained in the software will meet LICENSEE's requirements, or that the operation of the SOFTWARE will be uninterrupted or error-free or that NRLAB will correct any errors in the SOFTWARE or further develop the SOFTWARE.
This warranty gives LICENSEE specific legal rights, and LICENSEE may also have other rights, which vary from jurisdiction to jurisdiction. To the extent that the SOFTWARE is derived from third-party SOFTWARE, no such third party warrants the SOFTWARE, assumes any liability regarding use of the SOFTWARE or undertakes to furnish LICENSEE any support or information relating to the SOFTWARE.
10. RESPONSIBILITY OF LICENSEE
The LICENSEE is responsible for any decisions made and actions taken based on the use of the SOFTWARE. It is the LICENSEE's responsibility to ascertain the suitability of the SOFTWARE for any situation or application.
11. NRLAB'S LIABILITY
Under no circumstances shall NRLAB be liable to any party in an amount beyond the greater of ten (10) dollars of United States of America (USD) or the license fee paid by LICENSEE to NRLAB for the SOFTWARE covered by this Agreement.
LICENSEE's sole remedies and NRLAB's entire liability are as set forth above. In no event will NRLAB be responsible or liable to LICENSEE or any other person under any contract, any act of negligence, purported warranty, under the common law rule of strict liability or any other theory for any damages, including any special, incidental, indirect, exemplary or consequential damages, expenses, recall costs, business interruption damages, loss of or damage to information, damage to equipment, cost of procurement of substitute goods, services or technology, lost profits, savings or revenues, or any other damages arising out of the use of or inability to use the SOFTWARE. Some jurisdictions do not allow the limitation or exclusion of special, incidental or consequential damages, so the above limitations or exclusions may not apply to LICENSEE in full but shall be interpreted to apply to the maximum extent permissible under applicable law.
The LICENSEE is solely responsible for any use of SOFTWARE and under no circumstances shall NRLAB be held responsible or liable in any fashion for any acts, omissions or defaults by a LICENSEE.
12. INDEMNITY BY THE USER
LICENSEE shall protect, defend, indemnify and hold NRLAB, AUTHORIZED DISTRIBUTORS and LICENSORS, and their assigns and attorneys, accountants, employees, officers and directors harmless for any and all losses, liabilities, damages, judgements, claims, third party counterclaims, demands, actions, proceedings, costs and expenses (including reasonable attorney's fees) of every kind and character resulting from, relating to or arising out of:
A. use or inability of use of SOFTWARE; or
B. any legal action, including but not limited to any third-party counterclaim, or breach of any representation, warranty, covenant or agreement made by LICENSEE.
13. TAXATION
In the event that any taxes, duties, imposts assessments or charges are levied or payable because of this Agreement, then the LICENSEE shall pay such taxes, duties, imposts assessments and charges in full regardless of whether the LICENSEE is the chargeable person or not.
14. TIME MEASUREMENT
All time limits set forth in this Agreement shall be observed according to the time zone of the place where the event on which the time limit is based has occurred. For the purposes of time zone determination, the publications on NRLAB's website shall be considered as made in the city of Dublin, Ireland.
15. TERMINATION
This Agreement is effective until terminated. LICENSEE agrees upon termination of the Agreement to cease using the SOFTWARE and destroy the SOFTWARE together with all copies, partial copies and merged or combined portions thereof in any form and to certify the same to NRLAB.
This Agreement may be terminated due to the following reasons:
A. NRLAB may with or without cause at any time terminate the Agreement. In this case NRLAB will refund to LICENSEE license fees paid by LICENSEE to NRLAB or AUTHORIZED DISTRIBUTOR.
B. LICENSEE may also terminate it at any time by destroying the SOFTWARE together with all copies, modifications and merged portions thereof in any form. No license fees will be refunded in this case.
C. The Agreement will also terminate upon conditions set forth elsewhere in this Agreement or in the event of default or breach of any term or condition of this Agreement by LICENSEE. No license fees will be refunded in this case, unless provided otherwise.
16. INTELLECTUAL PROPERTY RIGHT INFRINGEMENT
In the event that a claim alleging infringement of an intellectual property right arises concerning the SOFTWARE (including but not limited to patent, trade secret, copyright or trademark rights), NRLAB in its sole discretion may elect to defend or settle such claim. NRLAB in the event of such a claim may also in its sole discretion elect to terminate this Agreement and all rights to use the SOFTWARE, and require the return or destruction of the SOFTWARE, with a refund of the fees paid for use of the SOFTWARE less a reasonable allowance for use and shipping.
17. REPRESENTATION
NRLAB has the right to enter into this Agreement. With the exception of any portion of the SOFTWARE that is licensed by NRLAB from its LICENSORS, the SOFTWARE is proprietary to NRLAB. NRLAB is not currently aware of any claim of infringement with respect to the SOFTWARE.
If LICENSEE is a corporation, partnership or other juristic entity, then the license to the SOFTWARE that is granted under this Agreement is expressly conditioned upon acceptance by a person who is authorized to sign for and bind the entity.
18. HEADINGS
Section headings are used in this Agreement for convenience of reference only and shall not affect the meaning of any provision of this Agreement.
19. WAIVER
The rights of either party hereto shall not be prejudiced or restricted by any indulgence or forbearance extending to the other party. Any waiver by either party of a breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver of any prior, concurrent or subsequent breach of the same or any other provision hereof by any party. No waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
20. TRANSFER
The SOFTWARE may be transferred to another party provided the other party agrees to accept the terms and conditions of this Agreement. If LICENSEE transfers SOFTWARE, LICENSEE must at the same time either transfer all copies, whether in printed or computer-readable form, to the same party or destroy any copies not transferred.
LICENSEE may not sublicense, assign, or transfer the license, the SOFTWARE, or disclose any trade secrets embodied in the SOFTWARE, except as expressly provided in this Agreement. Any attempt otherwise to sublicense, assign, or transfer any of the rights, duties, or obligations hereunder is null and void and have no force and effect and shall automatically terminate this Agreement. In the event of any such attempted transfer, sublicensing or assignment by LICENSEE, LICENSEE shall remain fully liable along with its transferee, sublicensee or assignee for all its obligations under this Agreement.
21. BENEFICIARY PARTIES
This Agreement is entered into for the benefit only of NRLAB and LICENSORS. All rights granted to LICENSEE and all obligations owed to NRLAB shall be enforceable by NRLAB and its LICENSORS. No other party may seek to enforce, or benefit from the provisions of this Agreement, or seek redress for any breach or other damage, alleged or proved, under this Agreement.
22. NO AGENCY
Neither party is, nor will it be deemed to be, an agent or legal representative of the other party for any purpose. In addition, none of the provisions of this Agreement shall be deemed to constitute a partnership between parties and neither party shall have any authority to bind the other party in any way, or hold itself out as having authority to do so.
23. APPLICABLE LAW
It is the express intention of the parties hereto that this Agreement and all rights, suits and special proceedings hereunder be construed in accordance with and under and pursuant to the laws of the Republic of Ireland, and that any action, special proceeding or other proceeding that may be brought arising out of, in connection with or by reason of this Agreement, the laws of the Republic of Ireland shall be applicable and shall govern to the exclusion of the law of any other forum, without regard to the jurisdiction on which any action or special proceeding may be instituted.
This Agreement will not be governed by the UN Convention on Contracts for the International Sale of Goods and that Convention is expressly excluded in its entirety from this Agreement.
24. CHOICE OF FORUM
It is the intention of the parties hereto that any action, special proceeding or other proceeding that may be brought arising out of, in connection with or by reason of this Agreement shall be brought and heard in the courts of the Republic of Ireland.
25. STATUTE OF LIMITATIONS
The parties hereto hereby agree that any cause of action arising out of or related to the SOFTWARE must commence within one (1) year after the cause of the action arose. Failure to commence such proceedings within that period will render the cause of action permanently barred.
26. SEVERABILITY
All agreements and covenants contained herein are severable. If any term, provision or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
27. ENTIRE AGREEMENT
This Agreement constitutes and embodies the entire understanding and agreement of the parties and supersedes and replaces any and all prior understandings, agreements and negotiations oral or written between the parties relating to the subject matter of this Agreement.
28. MODIFICATION
No modification of this Agreement will be binding unless in writing and signed by authorized representatives of each party.
Notwithstanding of the previous sentence, NRLAB reserves the right to review and change this Agreement at any time by posting an updated version of the Agreement in English on its website at http://www.nrlab.com. Such an updated version will replace the present Agreement as from the fifteenth (15) day after posting. LICENSEE is responsible for regularly reviewing that website for an updated version of the Agreement. Continued use of the SOFTWARE after replacement of this Agreement by an updated version of it shall constitute the LICENSEE's consent to be bound by the updated Agreement.
29. SURVIVAL
The provisions of Sections 5(A), 5(D), 5(E), 5(F), 7, 11, 12, 23, 24 and 25 shall survive termination of this Agreement.
30. ACCEPTANCE
By opening the packaging of the SOFTWARE, installing or using the SOFTWARE, LICENSEE indicates its acceptance of all the provisions of this Agreement and agrees to be bound by the terms of this Agreement.
In the event that LICENSEE does not agree with any of the provisions of this Agreement, LICENSEE shall not download, copy, install or use the SOFTWARE; if LICENSEE has received a copy of SOFTWARE on compact disc or another medium, that medium should be promptly returned unused to NRLAB or AUTHORIZED DISTRIBUTOR from which it has been received.
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