END USER LICENSE AGREEMENT AND LIMITED PRODUCT WARRANTY
PLEASE CAREFULLY READ THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (THE "EULA" OR "AGREEMENT") BEFORE INSTALLATION OF EQUORUM'S SOFTWARE PRODUCTS (THE "SOFTWARE"). YOUR INSTALLING, DOWNLOADING, USING OR COPYING THE SOFTWARE, CONSTITUTES ACCEPTANCE OF THESE TERMS AND CONDITIONS AND YOUR WILLINGNESS TO BE LEGALLY BOUND UNDER THE AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS LICENSE AGREEMENT, DO NOT INSTALL, DOWNLOAD, COPY OR USE THIS SOFTWARE, AND PROMPTLY RETURN THE DISK PACK, DOCUMENTATION, AND ALL MATERIALS TO EQUORUM WITHIN SEVEN (7) DAYS FOR A FULL REFUND OF THE LICENSE FEE LESS HANDLING CHARGES.
This End User License Agreement (the "EULA" or "Agreement") is made as of the day that you install the software (the "Effective Date"), and is between you (the "Licensee") and eQuorum Corporation, ("eQuorum"), a Georgia corporation with its principal place of business at 6285 Barfield Road, Atlanta, Georgia 30328.
In consideration of the mutual promises set forth herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties, intending to be legally bound, agree as follows:
1.GRANT OF LICENSE.Conditioned upon Licensee's compliance with the terms of this Agreement, which shall include any exhibits, attachments or addenda annexed hereto, eQuorum Corporation ("eQuorum") hereby grants to Licensee for the Term (as defined below), a limited, non-exclusive, non-transferable, revocable license to use the Software solely in accordance with the terms of this Agreement. For the purposes of this Agreement, "Software" means the software programs and documentation, and the number of authorized copies (seats) licensed hereunder, as agreed to in the Acceptance screen or as listed on the quotation(s) or purchase order(s) which is (are) incorporated herein. Subsequent and additional quotations or purchase orders may be agreed upon and executed by the parties from time to time, and shall be incorporated into this Agreement by reference. "Software" also includes any upgrades, improvements, or modifications to the Software and all associated documentation that are made generally available to eQuorum's other licensees and that Licensee is authorized to receive ("Updates"). Title and full ownership rights to any and all copies of the Software, and all intellectual property rights therein, shall remain with eQuorum. Licensee assumes responsibility for the selection of the Software to achieve Licensee's intended results, and for the installation, use and results obtained from the Software. THE SOFTWARE IS A PROPRIETARY PRODUCT OF EQUORUM AND IS PROTECTED BY COPYRIGHT, AND OTHER LAWS. TITLE TO THIS PRODUCT, AND ANY COPY, MODIFICATION, DERIVATIVE WORK, IMPROVEMENT OR MERGED PORTION OF THE PRODUCT, SHALL AT ALL TIMES REMAIN WITH eQuorum, WHETHER DEVELOPED INDIVIDUALLY BY LICENSEE OR THIRD PARTIES OR JOINTLY WITH EQUORUM. eQuorum grants no rights to the Software by implication, and reserves all rights in same, not expressly granted herein.2.USE OF SOFTWARE.Licensee may: (a) use one copy of the Software on a single central processing unit located in Licensee's office ("CPU") for Licensee's internal in-house use only by Licensee and its employees, but no others; (b) make two back-up copies of the Software only in machine readable (object code) or printed form provided that Licensee reproduces and affixes to all copies, modifications or portions merged into another program, all of eQuorum's copyright, trademark, and other proprietary legends contained on the original copy received by Licensee; and (c) merge the Software into another program for Licensee's own internal in-house use only by Licensee and its employees, but no others, on a single CPU (any portion of this Software merged into another program will continue to be subject to the terms and conditions of this Agreement).
eQuorum software authorization keys are generated using configuration information from the device upon which they are installed and are enabled for use only on that device. A new authorization key is required to reinstall the licensed software if licensee moves the software to a new device or re-installs the software on the same device after that device has been reconfigured. The issuance of new authorization keys is a service provided by eQuorum as part of an eQuorum software and support agreement.
Plot Station software, when delivered as a bundled component of ImageSite, is licensed only for access and use through the ImageSite user interface. The implementation of Plot Station to support WAN or Internet based distributed plotting requires the licensing of one or more additional Plot Station Server configurations or the ImageSite Enterprise Plotting Software License for this purpose. Plot Station output drivers are licensed for use with only the specific device model for which they are named and may not be used to drive other devices.
3.RESTRICTIONS.Licensee may not, or allow others to, use, copy, modify, reproduce, translate, adapt, sell, rent, sublicense, lease, generate revenue, use the Software in a service bureau or time-sharing arrangement, disclose, disassemble, reverse compile, reverse engineer, create derivative works of, divulge, publish, assign, pledge, or transfer the Software, or any copy, modification or merged portion, in whole or in part, except as expressly provided for in this Agreement without specific written authorization from eQuorum. If Licensee attempts to assign or transfer possession of any copy, modification or merged portion of the Software to another party without written consent of eQuorum, then this Agreement and the license granted hereunder is automatically terminated without notice. IN NO EVENT MAY LICENSEE TRANSFER THE SOFTWARE FOR USE OUTSIDE THE COUNTRY IN WHICH IT WAS ORIGINALLY LICENSED.
icensee may not, without specific written authorization from eQuorum, use a demonstration copy, evaluation copy or beta version of the Software (i) to generate income; (ii) to perform any of Licensee's business functions or (iii) for any purpose other than Licensee's own internal evaluation of the Software. Licensee may not deliver, operate or show the Software or demonstrate, evaluate or beta version of the Software to or for any third party without eQuorum's consent. Licensee agrees to the use of security mechanisms, hardware and/or software, with the Software by eQuorum, and authorizes eQuorum to instruct the security mechanism to prevent operation of all or part of the Software if you violate this Agreement.4.TRADEMARKS AND TRADE NAMES.Nothing in this Agreement confers upon either party any right to use the other party's trade names and trademarks except as set forth in this Agreement. All use of such marks by either party will inure to the benefit of the owner of such marks, and the use of such marks will be subject to specifications controlled by the owner for quality control purposes.
5.PROPRIETARY INFORMATION."Confidential Information" means information, other than Trade Secrets, that is of value to eQuorum and is treated as confidential. "Trade Secrets" means information of eQuorum which derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use, and includes any source code for software and software design documentation delivered hereunder, if any, in all forms. "Proprietary Information" means Trade Secrets and Confidential Information collectively, including, but not limited to business plans, product plans, technical and non-technical data, formulas, patterns, compilations, programs, devices, methods, techniques, drawings, processes, financial data, financial plans, product plans, or lists of actual or potential customers or suppliers of eQuorum, including the Software. Except as otherwise expressly set forth in this Agreement, Licensee will hold in confidence all Proprietary Information of eQuorum to the same extent and in at least the same manner as such party protects its own confidential or proprietary information, which shall in no event be less than reasonable care. Licensee shall not disclose, reproduce, distribute, transmit, reverse engineer, decompile, disassemble, or transfer, directly or indirectly, in any form, by any means, or for any purpose inconsistent with this Agreement, the Proprietary Information of eQuorum or any portion thereof in any form to, or for the use or benefit of, any person or entity without eQuorum's express written consent. Licensee shall, however, be permitted to disclose relevant aspects of the Proprietary Information only to its attorneys, accountants, officers, agents, subcontractors and employees to the extent such persons have a need to know such information for the purposes of performing such party's duties and obligations under this Agreement or by law; provided, however, that Licensee shall take all reasonable measures to ensure that Proprietary Information is not disclosed or duplicated in contravention of the provisions of this Agreement by such attorneys, accountants, officers, agents, subcontractors and employees. Licensee's obligations under this Agreement with regard to (a) Trade Secrets remain in effect for as long as such information shall remain a trade secret under applicable law, and (b) Confidential Information shall remain in effect for the term of this Agreement, and any extensions thereto, and five (5) years thereafter. The foregoing obligations shall not apply if and to the extent that Licensee establishes that: (i) the information communicated was already known to Licensee, without obligation to keep it confidential, at the time of its receipt directly or indirectly from eQuorum; (ii) the information communicated was received by Licensee in good faith from a third party lawfully in possession thereof and having no obligation to keep such information confidential; (iii) the information is independently developed by Licensee without use of any Proprietary Information received from eQuorum; or (iv) the information communicated was publicly known at the time of its receipt by Licensee or has become publicly known other than by a breach of this Agreement or other action by Licensee. In the event Licensee is required or requested by law, judicial order, any third party or governmental agency to disclose any Proprietary Information (including without limitation by verbal or written questions, interrogatories, requests for information or documents, subpoenas, or civil investigative demand or similar process), Licensee shall promptly notify eQuorum in writing of such requests or demand, in order to provide eQuorum with an opportunity to seek an appropriate protective order or other relief to prevent such disclosure. Licensee shall cooperate fully in all efforts to prevent disclosure of such Proprietary Information of eQuorum. Upon request by eQuorum or upon termination of this Agreement, Licensee shall return to eQuorum or destroy (if requested by eQuorum) any Proprietary Information in its possession or control and in all types of media and computer memory, and shall destroy any notes, memorandum, projections, reports or other documents prepared by either party that contain or otherwise reflect Proprietary Information of eQuorum. Upon request by eQuorum, Licensee shall provide to eQuorum a written certification signed by an officer of Licensee that it has complied with this Section.
6.TERM AND TERMINATION.This Agreement is effective beginning on the Effective Date, and shall remain in effect until the expiration of the term as set forth herein, unless renewed, extended or terminated earlier in accordance with this Agreement (the "Term"). The Agreement may be terminated by eQuorum if (i) Licensee breaches any warranty, representation or obligation under this Agreement, including but not limited to the failure to pay any amounts due to eQuorum hereunder; or (ii) Licensee files a petition in bankruptcy, makes an assignment for the benefit of creditors, seeks the protection of any bankruptcy laws or if a receiver for Licensee is appointed. Licensee may terminate this Agreement based upon a material breach of this Agreement by eQuorum, if such breach remains uncured for a period of thirty (30) days after receiving a written notice to cure said breach, unless the breach cannot be cured within thirty (30) days despite eQuorum's reasonable efforts, in which case, eQuorum must commence to cure the breach within thirty (30) days. Licensee agrees that upon the termination or expiration of this Agreement for any reason (i) all rights and licenses granted herein will terminate; (ii) eQuorum will have no further obligations hereunder, other than those which by their nature shall survive termination (if any) and (iii) Licensee will cease all use and destroy the Software together with all copies, documentation, modifications, improvements and merged portions in any form.
7.LIMITED WARRANTIES AND INDEMNIFICATIONS.
(7.1)EQUORUM WARRANTS THAT THE SOFTWARE WILL NOT INFRINGE THE VALID U.S. COPYRIGHT OF ANY THIRD PARTY. IN THE EVENT THAT THE SOFTWARE BECOMES, OR IN EQUORUM'S OPINION IS LIKELY TO BECOME, THE SUBJECT OF A CLAIM OF INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT, EQUORUM MAY AT ITS SOLE OPTION (1) SECURE FOR THE LICENSEE THE RIGHT TO CONTINUE USING THE SOFTWARE, (2) REPLACE OR MODIFY IT TO MAKE IT NON-INFRINGING, OR (3) TERMINATE THIS AGREEMENT AND REFUND A PRO RATA PORTION OF THE LICENSE FEES ACTUALLY PAID FOR USE OF THE SOFTWARE, BASED UPON A FIVE (5) YEAR STRAIGHT LINE DEPRECIATION SCHEDULE, WHICH SCHEDULE BEGINS ON THE EFFECTIVE DATE AND ENDS ON THE DATE THIS AGREEMENT IS TERMINATED. EQUORUM SHALL HAVE NO FURTHER LIABILITY OF ANY KIND TO LICENSEE; THE FOREGOING IS LICENSEE'S SOLE AND EXCLUSIVE REMEDY RELATING TO ANY SUCH INFRINGEMENT CLAIM.
(7.2)EQUORUM WARRANTS THAT DURING THE FIRST THIRTY (30) DAYS FOLLOWING DELIVERY OF THE SOFTWARE, THE SOFTWARE AS DELIVERED BY EQUORUM WILL PERFORM SUBSTANTIALLY IN ACCORDANCE WITH THE REFERENCE MANUALS SUPPLIED WITH THE SOFTWARE. EQUORUM'S SOLE OBLIGATION AND LIABILITY, AND LICENSEE'S SOLE AND EXCLUSIVE REMEDY UNDER THIS SECTION, SHALL BE AT EQUORUM'S OPTION TO REPLACE OR CORRECT THE SOFTWARE SO THAT IT SUBSTANTIALLY CONFORMS TO THE REFERENCE MANUALS, OR TO TERMINATE THIS AGREEMENT AND REFUND THE LICENSE FEES ACTUALLY PAID FOR USE OF THE SOFTWARE. IF LICENSEE IS OBTAINING COPIES OF THE SOFTWARE VIA DISKETTES OR CD, THEN THE FOLLOWING WARRANTY APPLIES: EQUORUM GRANTS LICENSEE A LIMITED WARRANTY THAT THE DISKETTE(S) AND/OR CD ON WHICH THE PROGRAM IS FURNISHED (IF ANY) IS SUBSTANTIALLY FREE FROM DEFECTS IN MATERIALS AND WORKMANSHIP UNDER NORMAL USE FOR A PERIOD OF THIRTY (30) DAYS FROM THE DATE OF SHIPMENT TO LICENSEE. EQUORUM'S ENTIRE LIABILITY, AND LICENSEE'S SOLE AND EXCLUSIVE REMEDY UNDER THIS WARRANTY SHALL BE THE REPLACEMENT OF ANY MEDIA DEFECTIVE IN MATERIALS.
(7.3)THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHERS. EQUORUM MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, INCLUDING (I) THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET LICENSEE'S REQUIREMENTS OR (II) THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS WITH LICENSEE EXCEPT AS SPECIFIED HEREIN. EXCEPT AS NOTED ABOVE, THE SOFTWARE IS PROVIDED "AS IS" WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WHICH ARE EXPRESSLY DISCLAIMED
(7.4)LICENSEE INDEMNIFICATION.Licensee shall defend, indemnify and hold eQuorum harmless against any and all liability, loss, damages, costs or expenses (including court costs and reasonable attorney fees) arising as a result of Licensee's breach under this Agreement, including without limitation, unauthorized disclosure of eQuorum's or third party Proprietary Information.
8.LIMITATION OF LIABILITY.IN NO EVENT WILL EQUORUM, IT'S SUPPLIERS OR INDEPENDENT CONTRACTORS OR ANY OF THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, REPRESENTATIVES, CONTRACTORS OR OTHER RELATED PARTIES BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, ANY LOST PROFITS, LOST SAVINGS, LOSS OF DATA, BUSINESS INTERRUPTION OR OTHER INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR ANY PART THEREOF, OR FOR ANY CLAIM BY ANY OTHER PARTY, EVEN IF EQUORUM OR THE AFORESAID PARTIES HAVE BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, PRODUCTS LIABILITY OR OTHERWISE. THE PARTIES AGREE THAT THIS LIMITATION OF LIABILITY SHALL SURVIVE AND CONTINUE IN FULL FORCE AND EFFECT DESPITE ANY TERMINATION OR EXPIRATION OF THE TERM. IN NO EVENT WILL THE LIABILITY OF EQUORUM AND THE AFORESAID PARTIES IN ANY WAY RELATING TO THIS AGREEMENT OR THE USE OF THE SOFTWARE, EXCEED THE LICENSE FEES ACTUALLY PAID TO EQUORUM BY LICENSEE OR BY EQUORUM'S DULY AUTHORIZED RESELLER FOR USE OF THE SOFTWARE UNDER THIS AGREEMENT WITH LICENSEE. FURTHERMORE, NO ACTION, CLAIM OR DEFENSE, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT OR RELATED TO THE SOFTWARE, OR ANY SERVICES RELATED THERETO, MAY BE BROUGHT OR ASSERTED BY LICENSEE MORE THAN ONE (1) YEAR AFTER SUCH CAUSE OF ACTION HAS ACCRUED.
9.NOTICES.All notices, requests, demands, and determinations under this Agreement shall be in writing and shall be deemed duly given: (i) when delivered by hand; (ii) two days after being given to an express courier with a reliable system for tracking delivery; (iii) when sent by confirmed facsimile with a copy sent by another means specified in this Section, or (iv) six days after the day of mailing, when mailed by United States mail, registered or certified mail, return receipt requested, postage prepaid, and addressed as follows:
If to eQuorum: eQuorum Corporation 6285 Barfield Road Atlanta, GA 30328 Attn: President Facsimile: (404) 497-8101 With a copy to: McKenna Long & Aldridge, LLP 303 Peachtree St., Suite 5300 Atlanta, GA 30308 Attn: Frank Benjamin (404) 527-4986 phone (404) 527-4198 fax If to: Licensee At the most recent address provided by Licensee to eQuorum or its authorized reseller.
10.ASSIGNMENTS.Licensee may not assign or delegate this Agreement in whole or in part, directly or indirectly without the prior written consent of eQuorum. Any assignment in contravention of this Section shall be null and void. This Agreement shall be binding upon a party's lawful successors and assigns.
11.COMPLIANCE WITH LAWS.Each party shall be responsible for compliance with applicable laws, rules, and regulations except that Licensee shall be solely responsible for complying with any applicable United States export laws, rules, and regulations.
12.FORCE MAJEURE.eQuorum will not be liable for failure to perform any of its obligations under this Agreement if such failure is caused by an event outside its reasonable control, including but not limited to, an act of God, war, or natural disaster (collectively, "Force Majeure").
13.SURVIVAL.Any and all provisions, promises and warranties contained herein which by their nature or effect are required or intended to be observed, kept or performed after termination of this Agreement will survive the termination of this Agreement and remain binding upon and for the benefit of the parties hereto.
14.U.S. GOVERNMENT RESTRICTED RIGHTS.The Software is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c) (1) (ii) of The Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c) (1) and (2) of the Commercial Computer Software - Restricted Rights at 48 CFR 52.227-19, as applicable. Contractor/manufacturer is eQuorum Corporation, 6285 Barfield Road, Atlanta, Georgia 30328, U.S.A.
15.GOVERNING LAW, VENUE AND JURISDICTION.This Agreement will be governed and interpreted in accordance with the substantive laws of the State of Georgia, without regard to conflicts of law principles.
16.MISCELLANEOUS.This Agreement does not operate as an acceptance of any conflicting or additional terms and conditions and will prevail over any conflicting or additional provision of any purchase order or any other instrument of Licensee, it being understood that any purchase order or other document issued by Licensee will be for Licensee's convenience only.
17.ENTIRE AGREEMENT.Licensee acknowledges that it has read this Agreement, understands it, and that it is the complete and exclusive statement of the parties' agreement, which supersedes any prior agreement, oral or written, and any other communication between the parties relating to the subject matter of this Agreement.
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