ATTENTION: THIS IS A LICENSE, NOT A SALE. THIS SOFTWARE IS PROVIDED UNDER THE FOLLOWING AGREEMENT THAT SPECIFIES WHAT YOU MAY DO WITH THE SOFTWARE AND CONTAINS LIMITATIONS ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES, AND LIABILITIES.
IMPORTANT: BEFORE DOWNLOADING, INSTALLING, OR USING THIS SOFTWARE, PLEASE CAREFULLY READ THIS AGREEMENT WHICH CONTAINS THE TERMS AND CONDITIONS UNDER WHICH YOU ARE ACQUIRING A LICENSE TO USE THE SOFTWARE. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT PLEASE DO NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE AND PROMPTLY (I) RETURN OR DESTROY THE SOFTWARE, OR (II) IF YOU PAID A LICENSE FEE FOR THE SOFTWARE, RETURN THE SOFTWARE TO SAGETEA OR THE DISTRIBUTOR FROM WHOM YOU RECEIVED THE SOFTWARE FOR A REFUND. IF YOU DOWNLOAD, INSTALL, OR USE THE SOFTWARE, YOU WILL BE ACCEPTING THIS AGREEMENT, AND YOU WILL HAVE ACCEPTED AND AGREED TO THESE TERMS AND CONDITIONS. THIS SOFTWARE IS ALSO PROTECTED BY COPYRIGHT LAWS AND INTERNATIONAL COPYRIGHT TREATIES, AS WELL AS OTHER INTELLECTUAL PROPERTY LAWS. IF YOU ARE AN AGENT OR EMPLOYEE OF ANOTHER ENTITY YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY’S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER.
1. Definitions: In this Agreement:
“Affiliate” of SageTea Inc. means any corporation or other legal entity that SageTea Inc. directly or indirectly controls, is controlled by, or is under common control with. In this context, a party “controls” a corporation or other entity if it or any combination of it and/or its Affiliates owns more than fifty percent (50%) of the voting rights for the board of directors or other mechanism of control for such corporation or other entity;
“Agreement” means this SageTea Inc. Software License;
“SageTea Inc.” means 4428188 Canada Inc., c/o/b SageTea Inc. Group, and its successors and assigns, as applicable.
“Software” means the SageTea Inc. binary and/or bytecode software program, excluding the Third-Party Software (as defined below), that (i) is made available to You for download after acceptance of this Agreement, (ii) is packaged with this Agreement, or (iii) embeds this Agreement, and which SageTea Inc. binary and/or bytecode software program includes the storage media containing the software program, if any, and any printed, online, or electronic documentation or release notes;
“Your Invoice” means the invoice document provided to you by SageTea Inc. or one of its resellers; and
“You” or “Your” means both the individual or individuals obtaining or installing the Software and any entity on whose behalf such individual or individuals are acting. “You” includes any entity that by majority voting interest controls, is controlled by, or is under common control with You.
2. Grant of License: Subject to the terms and conditions of this Agreement and Your payment of the applicable license fees specified in Your Invoice, SageTea Inc. grants You a non-exclusive, non-transferable license to make an unlimited number of copies of the Software licensed hereunder for Your internal use in accordance with the Software’s accompanying documentation. All copies of the Software shall include all trademarks, copyright notices, restricted rights legends, proprietary markings and the like exactly as they appear on the copy of the Software originally provided to You. Binary, bytecode and source code versions of certain third-party software may be embedded in or delivered with the Software (“Third-Party Software”). If a separate license agreement for an item of third-party software is: delivered to You with the Software; included in the download package for the Software; or referenced in any material that is included in the download or distribution package for the Software, then such third-party software shall be Third-Party Software and such separate license agreement shall govern Your use of that item or version of such third-party software. Your right to use any Third-Party Software, third-party data, third-party software or other third-party content provided with the Software shall be limited to the use necessary to operate the Software as permitted by this Agreement. No other rights in the Software or Third-Party Software are granted to You. Notwithstanding the foregoing, in the case of Third-Party Software that is licensed pursuant to open source licenses that prohibit the imposition of any restrictions on use beyond those contained in such open source licenses, the restrictions on use contained in this Agreement shall not be applicable to such Third-Party Software.
3. Restrictions: You shall not reverse engineer, disassemble, reverse translate, decompile or in any other manner decode the Software except to the extent the foregoing restriction is expressly prohibited by applicable law notwithstanding a contractual obligation to the contrary. You shall not distribute, lease, rent, grant a security interest in, assign, or otherwise transfer the Software. You shall not modify or create any derivatives of the Software or merge all or any part of the Software with another program. You acknowledge that the Software contains confidential information and know-how and You shall not use such confidential information or know-how except to the extent necessary to exercise the rights granted to You under Section 2 of this Agreement. For greater certainty, You shall not disclose any performance, benchmarking, or feature-related information about the Software. You further agree not to disclose, transfer or otherwise provide to any third party any portion of the Software or confidential information or know-how, except as explicitly permitted herein. Any third-party software, data or content (including the Third-Party Software) included with or as a part of the Software may be used only with the Software unless otherwise authorized in writing by SageTea Inc..
4. Limited Warranties: SageTea Inc. warrants that the Software will perform substantially in accordance with its accompanying documentation for a period of ninety (90) days from the date the Software is licensed to You. SageTea Inc. does not, however, warrant that the Software will be free of all defects, errors, or inaccuracies. SageTea Inc. does not warrant that the Software will meet Your requirements. If the Software does not perform in accordance with the warranties set forth in this Section 4, Your exclusive remedy, upon presentation of Your receipt of purchase of a license for the Software, shall be, at SageTea Inc.’s sole option, to (i) return the license fees paid for the Software, or (ii) repair or replace the Software.
5. DISCLAIMER OF WARRANTIES: EXCEPT FOR THE EXPLICIT WARRANTIES PROVIDED IN SECTION 4, THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT ANY REPRESENTATIONS, CONDITIONS, OR WARRANTIES OF ANY KIND. WITHOUT LIMITATION, SAGETEA AND ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND DISTRIBUTORS DISCLAIM ANY EXPRESS OR IMPLIED REPRESENTATIONS, CONDITIONS, OR WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT, TITLE, SATISFACTORY QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE WHETHER ARISING BY STATUTE, COURSE OF DEALING, USAGE OF TRADE, OR OTHERWISE. EXCEPT AS OTHERWISE EXPLICITLY PROVIDED IN THIS AGREEMENT, THE ENTIRE RISK OF THE USE OF THE SOFTWARE SHALL BE BORNE BY YOU.
6. LIMITATION OF LIABILITY: NEITHER SAGETEA NOR ANY OF ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS, RESELLERS OR DISTRIBUTORS SHALL HAVE ANY LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES ARISING FROM THIS AGREEMENT, RELATED TO THE SOFTWARE, OR RELATED TO ANY SERVICES PROVIDED TO YOU BY SAGETEA (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS, RSELLERS AND DISTRIBUTORS) IN RELATION TO THE SOFTWARE FOR ANY INDIRECT, RELIANCE, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFIT, LOSS OF OR DAMAGE TO DATA OR OTHER COMMERCIAL OR ECONOMIC LOSS, WHETHER ARISING FROM CONTRACT, EQUITY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER THEORY OF LIABILITY, EVEN IF SAGETEA (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS, RESELLERS AND DISTRIBUTORS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THEY ARE FORESEEABLE. THE LIMITATIONS IN THIS SECTION SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM OR FUNDAMENTAL BREACH. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THESE LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT SHALL THE TOTAL CUMULATIVE LIABILITY OF SAGETEA (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS, RESELLERS AND DISTRIBUTORS) TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES ARISING FROM THIS AGREEMENT, RELATED TO THE SOFTWARE, OR RELATED TO ANY SERVICES PROVIDED TO YOU BY SAGETEA (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS AND DISTRIBUTORS) IN RELATION TO THE SOFTWARE, EXCEED THE LICENSE FEES PAID BY YOU FOR THE SOFTWARE.
THE DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT. YOU ACKNOWLEDGE THAT BUT FOR THE DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY, NEITHER SAGETEA NOR ANY OF ITS LICENSORS OR SUPPLIERS WOULD GRANT THE RIGHTS GRANTED IN THIS AGREEMENT.
7. Term: This Agreement shall continue for as long as You use the Software, however, it will terminate, without notice from SageTea Inc., if You fail to comply with any of its terms or conditions. If You are the subject of a direct or indirect acquisition or change of control or if You sell all or substantially all of Your assets, SageTea Inc. may terminate this Agreement immediately upon written notice to You. You must, upon termination, destroy all copies of the Software. You may terminate this Agreement by destroying all copies of the Software under Your control and notifying SageTea Inc. of such destruction. In addition to this Section, the Sections entitled Definitions, Limited Warranties, Disclaimer of Warranties, Limitation of Liability, Title, High-Risk Activities, Third-Party Beneficiaries, and General shall continue in force even after any termination of this Agreement.
8. Support and Updates: This Agreement does not grant You the right to any updates or enhancements of the Software or the right to receive any technical support in respect to the Software. Such updates and other technical support services, if available, may be purchased separately from SageTea Inc. in accordance with the SageTea Inc. technical support program. Use of such updates or enhancements shall be governed by the terms and conditions of this Agreement.
9. Title: All right, title, and interest (including all intellectual property rights) in, to, and under the Software (including all copies thereof) shall remain with SageTea Inc. and its licensors.
10. High-Risk Activities: The Software is not fault-tolerant and is not designed, manufactured or intended for use in or in conjunction with on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation systems, air traffic control, or direct life support machines. SageTea Inc., its Affiliates, licensors, suppliers, subcontractors and distributors specifically disclaim any express or implied representations, warranties or conditions for such uses.
11. U.S. Government End-Users: The Software is a “commercial item” as that term is defined at FAR 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are defined in FAR 12.212, and is provided to the U.S. Government only as a commercial end item. Government end users acquire the rights set out in this Agreement for the Software consistent with: (i) for acquisition by or on behalf of civilian agencies, the terms set forth in FAR12.212; or (ii) for acquisition by or on behalf of units of the Department of Defense, the terms set forth in DFARS 227.7202. Use of this Software and related documentation is further restricted by the terms and conditions of this Agreement.
12. Export Restrictions: The Software and related information are subject to export and import restrictions. By downloading, installing, or using the Software, You are representing and warranting that You are not located in, under the control of, or a national or resident of any country to which the export of the Software or related information would be prohibited by the laws and/or regulations of Canada or the United States. You are also representing and warranting that you are not an individual to whom the export of the Software or related information would be prohibited by the laws and/or regulations of Canada or the United States. You shall comply with the export laws and regulations of Canada and the United States that are applicable to the Software and related information and You shall comply with any local laws and/or regulations in Your jurisdiction that may impact Your right to export, import, or use the Software or related information, and You represent and warrant that You have complied with any such applicable laws and/or regulations. The Software shall not be used for any purposes prohibited by export laws and/or regulations, including, without limitation, nuclear, chemical, or biological weapons proliferation. You shall be responsible for procuring all required permissions for any subsequent export, import, or use of the Software or related information.
13. Intellectual Property: SageTea Inc. is a trademark or a registered trademark of SageTea Inc. in certain countries. All SageTea Inc. product names and logos are trademarks or registered trademarks of SageTea Inc.. in certain countries. All other company and product names and logos are trademarks or registered trademarks of their respective owners in certain countries.
15. Third-Party Beneficiaries: You are hereby notified that there may be third-party beneficiaries to this Agreement. To the extent that this Agreement contains provisions that relate to (i) the use by You of certain components of the Software in which such third parties have an interest, or (ii) services provided by Affiliates, licensors, subcontractors, and/or distributors of SageTea Inc.; such provisions are made expressly for the benefit of such third-party beneficiaries and are enforceable by such third-party beneficiaries in addition to being enforceable by SageTea Inc..
16. General: This Agreement is the entire agreement between You and SageTea Inc. in respect to the Software, superseding any other agreement or discussions, oral or written, and may not be changed except by a written license agreement with SageTea Inc. or a distributor of SageTea Inc.. The terms and conditions of this Agreement shall prevail over any pre-printed terms on any quotes, orders, purchase orders, or purchase order acknowledgements, and shall prevail over any other communications between the parties in relation to the Software and the Software shall be deemed to be licensed pursuant to the terms and conditions of this Agreement unless You have executed a written license agreement with SageTea Inc. or a distributor of SageTea Inc., in which case the Software shall be deemed to have been licensed pursuant to the terms and conditions of such written license agreement. You may not assign this Agreement whether voluntarily, by operation of law, or otherwise without SageTea Inc.’s prior written consent. SageTea Inc. may assign this Agreement at any time without notice. The failure of a party to claim a breach of any term of this Agreement shall not constitute a waiver of such breach or the right of such party to enforce any subsequent breach of such term. If any provision of this Agreement is held to be unenforceable or illegal, such decision shall not affect the validity or enforceability of such provisions under other circumstances or the remaining provisions of this Agreement and such remaining provisions shall be reformed only to the extent necessary to make them enforceable under such circumstances. This Agreement shall be governed by the laws of the Province of Ontario, Canada. No choice of laws rules of any jurisdiction shall apply to this Agreement. You shall only be entitled to bring any action or proceeding arising out of or relating to this Agreement, the Software or any services provided in respect to the Software in a court in Ottawa, Ontario, Canada, and You consent to the jurisdiction of such courts for any such action or proceeding. You waive all rights that You may have or that may hereafter arise to contest such jurisdiction of such courts for any action or proceeding brought by You. You hereby waive any right You may have to request a jury trial with respect to any action brought by You in connection with this Agreement, the Software or any services provided in respect to the Software. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded. The Uniform Computer Information Act does not apply to this Agreement.