ORCANOS ON PREMISES SOFTWARE LICENSE AGREEMENT
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT CAREFULLY BEFORE DOWNLOADING OR USING THE SOFTWARE.
BY CLICKING ON THE “ACCEPT” BUTTON, OPENING THE PACKAGE, DOWNLOADING THE PRODUCT, OR USING THE EQUIPMENT THAT CONTAINS THIS PRODUCT, YOU ARE CONSENTING TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “DO NOT ACCEPT” BUTTON AND THE INSTALLATION PROCESS WILL NOT CONTINUE, RETURN THE PRODUCT TO THE PLACE OF PURCHASE FOR A FULL REFUND, OR DO NOT DOWNLOAD THE PRODUCT.
The Software, including but not limited to the code, updates, sample programs, license keys, associated files and documentations (collectively, the “Software”), is owned by Orcanos and is protected by international copyright and other laws.
The Software is licensed to you, not sold, and may be used by you only in accordance with the terms and conditions of this Agreement.
Any reproduction or redistribution of the Software not in accordance with this Agreement is expressly prohibited by law, and may result in severe civil and criminal penalties. Violations will be prosecuted to the maximum extent possible.
Orcanos shall provide via internet delivery (electronic software distribution) to Customer one (1) executable copy of the Software including copies of the documentation, and alphanumeric code(s) referred to as license keys which are necessary to enable, or “turn on”, the Software for use during the term of a license.
Delivery date of the Software from Orcanos to Customer or confirmation of Software payment receipt is the Effective date of this Agreement and shall be made part of this Agreement and incorporated hereto.
Orcanos represents that it either: (i) owns the Software and that it has the right to modify same and to grant Customer a license for its use, or (ii), in the case of proprietary software and/or databases belonging to others which are provided to Customer by Orcanos in connection with the Software, the same are licensed or sublicensed to Customer pursuant to the terms and conditions of the applicable license(s) provided with same, and Orcanos has the right to utilize the same in the Software and to sub-license its usage to Customer.
LICENSE GRANT AND RESTRICTIONS
Orcanos, Ltd. (“Orcanos”) and its suppliers grant to Customer (“Customer”) a nonexclusive and nontransferable license to use the QPack software (“Software”) in object code form: (i) installed in a single location on a hard disk or other storage device of up to the number of computers owned or leased by Customer for which Customer has paid a license fee (“Permitted Number of Computers”); or (ii) provided the Software is configured for network use, installed on a single file server for use on a single local area network for either (but not both) of the following purposes: (a) permanent installation onto a hard disk or other storage device of up to the Permitted Number of Computers; or (b) use of the Software over such network, provided the number of computers connected to the server does not exceed the Permitted Number of Computers. Customer may only use the programs contained in the Software (i) for which Customer has paid a license fee (or in the case of an evaluation copy, those programs Customer is authorized to evaluate) and (ii) for which Customer has received a product authorization key (“PAK”). Customer grants to Orcanos or its independent accountants the right to examine its books, records and accounts during Customer’s normal business hours to verify compliance with the above provisions. In the event such audit discloses that the Permitted Number of Computers is exceeded, Customer shall promptly pay to Orcanos the appropriate licensee fee for the additional computers or users. At Orcanos’ option, Orcanos may terminate this license for failure to pay the required license fee.
Customer may make one (1) archival copy of the Software provided Customer affixes to such copy all copyright, confidentiality, and proprietary notices that appear on the original.
EXCEPT AS EXPRESSLY AUTHORIZED ABOVE, CUSTOMER SHALL NOT: COPY, IN WHOLE OR IN PART, SOFTWARE OR DOCUMENTATION; MODIFY THE SOFTWARE; REVERSE COMPILE OR REVERSE ASSEMBLE ALL OR ANY PORTION OF THE SOFTWARE; OR RENT, LEASE, DISTRIBUTE, SELL, OR CREATE DERIVATIVE WORKS OF THE SOFTWARE.
Customer agrees that aspects of the licensed materials, including the specific design and structure of individual programs, constitute trade secrets and/or copyrighted material of Orcanos. Customer agrees not to disclose, provide, or otherwise make available such trade secrets or copyrighted material in any form to any third party without the prior written consent of Orcanos. Customer agrees to implement reasonable security measures to protect such trade secrets and copyrighted material. Title to Software and documentation shall remain solely with Orcanos.
RECORDS AND AUDIT
Customer agrees to maintain accurate records as necessary to verify Customer’s compliance with this Agreement and the use restrictions on the Software contained herein. Upon provision by Orcanos of at least ten (10) business days prior written notice, Customer shall provide to Orcanos or its designated representative, access to such records solely in order to verify such compliance If an audit reveals that Customer has exceeded the scope of its license (i) Customer shall pay the reasonable costs and expenses of such audit, and (ii) Customer shall pay for any such excess use (based on the license fees for the number of unauthorized users or licenses and the allocable software support and maintenance due for such) together with interest thereon at a rate of 1.5% per month, or the highest rate allowed by law, whichever is less. The unauthorized licenses will be thereafter included under software support and maintenance.
The Software is provided AS IS. This limited warranty extends only to Customer as the original licensee. Customer’s exclusive remedy and the entire liability of Orcanos and its suppliers under this limited warranty will be, at Orcanos or its service center’s option, repair, replacement, or refund of the Software if reported (or, upon request, returned) to the party supplying the Software to Customer. In no event does Orcanos warrant that the Software is error free or that Customer will be able to operate the Software without problems or interruptions.
This warranty does not apply if the software (a) has been altered, except by Orcanos, (b) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by Orcanos, (c) has been subjected to abnormal physical or electrical stress, misuse, negligence, or accident, or (d) is used in ultra hazardous activities.
DISCLAIMER. EXCEPT AS SPECIFIED IN THIS WARRANTY, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW.
IN NO EVENT WILL ORCANOS OR ITS SUPPLIERS BE LIABLE FOR ANY LOST REVENUE, PROFIT, OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE EVEN IF ORCANOS OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
In no event shall Orcanos’ or its suppliers’ liability to Customer, whether in contract, tort (including negligence), or otherwise, exceed the price paid by Customer.
The above warranty DOES NOT apply to any beta software, any software made available for testing or demonstration purposes, any temporary software modules or any software for which Orcanos does not receive a license fee. All such software products are provided AS IS without any warranty whatsoever.
Both parties may receive or learn nonpublic information about the other, including but not limited, to information and documents about: the other’s employees, vendors, customers, affiliates and competitors; information about the other’s methods of doing business, finances, goods and services, research and development, analysis, discoveries, inventions, improvements, source code, flow charts, logic diagrams, nonpublic data, databases and trade secrets; (collectively “Confidential Information”). Confidential information does not include: (i) information known to the recipient at the time of disclosure; (ii) information that is or becomes known to third parties not under an obligation of confidentiality; (iii) information learned from a third party not under an obligation of confidentiality; (iv) independently developed information; and (v) information required by law or regulation to be publicly disclosed, to the extent so disclosed. The Parties understand and acknowledge that the confidential information of each has been developed or obtained by the investment of significant time, effort and expense, and that the confidential information is a valuable, special and unique asset and thus has to be protected from improper disclosure.
Each party therefore agrees that: (i) it shall use the others Confidential Information only as required to perform the party’s duties as set forth in this Agreement or any other binding agreement entered into by and between Orcanos and Customer, and for no other purpose; (ii) it shall require its employees, contractors or other persons or entities who might gain access to the other party’s Confidential Information as a part of his/its work for the first party to sign an agreement that he, she or it will be bound to confidentiality requirements with respect to the other party’s Confidential Information that are at least as restrictive as those set forth here; (iii) it shall not disclose the other’s Confidential Information without the other’s express prior written consent; (iv) it shall take the same precautions to safeguard the other’s Confidential Information as it takes to safeguard its own and, in any event, at least those precautions that are considered reasonable in the industry, and (v) it shall return or destroy the others Confidential Information upon request.
The obligations of this section shall survive any contract entered into for as long as such information remains Confidential Information.
Customer will pay the License Fee within thirty (30) days after the Effective Date. All payments are non-refundable. Prices shown do not include any duties, sales, use, excise or similar taxes. All taxes shall be added to prices shown and Customer agrees to pay same. If Customer is exempt from paying such taxes or duties at the time such taxes or duties are levied or assessed, Customer can provide Orcanos with tax exemption certificates and related documents as required by federal, state, or local laws or regulations to enable the Customer to obtain a tax or duty non-payment, deferral, refund or credit.
Customer orders are accepted only by a duly authorized officer of Orcanos and executed by evidence of Software delivery, which date shall be made part of this Agreement and incorporated hereto. Customer agrees to make full payment of invoices in the manner agreed to in the invoice (such as currency in which payment is to be made, how payments by wire transfer or cheque are to be made, etc.) within thirty (30) days of the date of the invoice. In addition to other available remedies, a late payment service charge equal to 1.5% per month or the maximum charge allowed by applicable law, whichever is lower, shall be assessed on all amounts not paid when due. Customer agrees to pay all cost of collection, including attorney’s fees, incurred by Orcanos.
Customer grants Orcanos the right to include the Customer’s name as an organization that has purchased Orcanos software in product promotional material.
Customer can deny Orcanos this right by submitting a written request via email to [email protected], requesting to be excluded from product promotional material. Confirmation of such denial, via reply email, will be provided within 30 days and Orcanos shall make no further reference to the Customer product promotional material.
TERMINATION OF LICENSE
Either party may terminate this Agreement on written notice to the other party at any time, without prejudice to any other remedy it might have, if:
- The other party commits a material breach of this Agreement; or
- The other party becomes insolvent, is unable to pay its debts when due, or files for protection from its creditors, files a bankruptcy or insolvency proceeding, or has an involuntary bankruptcy or insolvency proceeding filed against it, or ceases to carry on business or a substantial part thereof.
Either party will have thirty (30) days to remedy a) or b) above. Termination in any event shall not relieve Customer of its obligations regarding the Confidentiality provisions contained in this Agreement.
This License is effective until terminated. Customer may terminate this License at any time by destroying all copies of Software including any documentation. This License will terminate immediately without notice from Orcanos if Customer fails to comply with any provision of this License. Upon termination, Customer must destroy all copies of Software.
Notwithstanding anything contained in this agreement to the contrary, this agreement shall be interpreted under, governed by and construed in all respects in accordance with the law of Israel and, for this purpose, we and you agree to submit to the exclusive jurisdiction of the courts of Israel.
Published 18 May 2015