FILPAL(M) Sdn. Bhd.
This License Agreement ("Agreement") is a legal contract between the legal entity you represent (e.g. your employer) ("Customer") and FILPAL ("Licensor") for the Software (as defined below). This Agreement applies to the registered version of FILPAL (M) Sdn. Bhd.
This Agreement applies to the registered version of FILPAL (M) Sdn. Bhd. For purposes of this license agreement, registered versions of FILPAL (M) Sdn. Bhd. constitute any use of FILPAL (M) Sdn. Bhd. that contains features that have been activated by a password supplied by Licensor, or are designed to be activated by a password supplied by Licensor.
For purposes of this Agreement, "installed on" refers to any PC that has executed the FILPAL Solutions installation procedure or any PC that has the capability of remotely accessing the software on a PC that has executed the installation procedure.
2. License Types and Restrictions
Evaluation/Trial License: Evaluation/Trial licenses are temporary licenses issued by Licensor for the purpose of evaluating software. Evaluation licenses are valid for 30 days only.
Stand-Alone License: Licenses available are in the form of monthly (30 days), yearly and perpetual. All 3 types of licenses are eligible for support and upgrades for up to one year. Maintenance may be purchased for support and upgrades after the first year. A registered copy of the software may either be used by a single person who uses the software personally on one computer, or installed on a single workstation used by multiple people. Customer is responsible to supply licensor with computer mac address for the purpose of generating specific computer license key.
Dealer License: Dealer licenses are temporary licenses issued by Licensor to Software reseller for the purpose of demo software. Dealer licenses are valid for 100 days only.
All users of the Software and Documentation must not be competitors of Licensor and (i) must be Customer's employees or Customer's contractors in each case whose permanent work location is within the Designated Site or (ii) students if Customer is an educational or research institution, provided such students are enrolled at such educational institution or working at such research institution as a part if their curriculum at an educational institution. The Software may only reside on the Designated Equipment that is physically located within the Designated Site. Customer may move the Software that is covered by a maintenance contract to a different Designated Site (and cease all use of the Software at the previous Designated Site) only upon Licensor's written approval. Customer shall not (i) permit any parent, subsidiary, affiliated entity or third party to use the Software, (ii) distribute, rent or lease the Software, or (iii) use the Software for third-party training or commercial or non-commercial time-sharing. Customer shall not use any components, models or libraries included in the Licensor's Software, or otherwise provided by Licensor to Customer in connection with the Software with any software products other than the Software.
All copies of the Software made by Customer under this Agreement shall include all copyright and other proprietary notices included in the Software. Customer shall not copy the Software other than as set forth herein. All copies of the Documentation must include all copyright and other proprietary notices included in the Documentation.
d. Reverse Engineering; Modifications; Tampering
Customer will not cause or permit (i) the disassembly, decompilation or reverse engineering of the Software or otherwise attempt to gain access to or discover the source code for the Software (or the underlying ideas, algorithms, structure or organization of the Software) or (ii) the modification, adaptation, translation or creation of derivative works based on the Software.
Customer agrees to not tamper with any security mechanisms of Licensor. Tampering with these mechanisms may result in partial or complete shutdown of Licensor. Such a shutdown resulting from intentional tampering shall constitute a forfeiture of license rights by Customer for the use of Licensor without compensation of any kind from Licensor. Licensor may, as its sole discretion, repair license files damaged by such tampering, but are not, at any time, under any obligation to repair such damaged files.
Customer shall only use the Software using a password created by Licensor and provided to Customer and shall not use the Software in any manner without such password. Licensor may update or replace such password periodically or implement an alternative licensing protection mechanism in its discretion, and Customer shall cooperate to comply with any such reasonable alternative licensing protection mechanism. Customer shall not distribute, make accessible, transmit or provide any such password to any third party or the public, use any passwords other than passwords provides directly by Licensor for the use of the Software or take any action to circumvent the passwords or any such alternative licensing protection mechanism, and any such action by Customer or any employee of Customer shall constitute a material breach of this Agreement.
3. Maintenance and Support
Maintenance consisting of upgrades and support is included for one year from the date of purchase. After one year, maintenance may be purchased annually. During the maintenance period, Licensor will to use reasonable efforts to collect all significant and reproducible programming errors and to repair or replace in its sole and absolute discretion. If Customer desires maintenance and support beyond such support, Customer must enter into a separate support agreement with Licensor and must pay Licensor's then-current maintenance and support fees.
a. License Fee. In consideration for the license granted by Licensor under this Agreement, Customer will pay the license fees set forth in the Purchase Order.
b. Payments. Excepts as otherwise set forth herein, all amounts due under this Agreement must be paid within the period specified on the Purchase Order in the currency specified by Licensor.
c. Acceptance. Customer will have fourteen (14) calendar days from receipt of the Software to accept or reject the Software. Customer may only reject the Software if the Software fails to substantially comply with the Documentation. The Software shall be deemed accepted by Customer on the earlier of Customer putting the Software if the commercial use or the expiration of such three hundred sixty-five (365) days period. If Customer rejects the Software, Licensor will, in Licensor's sole discretion, replace the Software or Licensor may refund to Customer the amounts paid by the Customer for the Software. If Licensor refunds the fees paid by Customer, then this Agreement shall terminate, Customer's licenses to the Software shall terminate and the terms in Section 9(c) shall apply. THE REMEDY PROVIDED FOR IN THIS SECTION SHALL BE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AND LICENSOR'S SOLE OBLIGATION IF CUSTOMER REJECTS THE SOFTWARE. LICENSOR WILL NOT HAVE LIABILITY FOR THE COST OF SUBSTITUTE SOFTWARE.
5. Protection of Licensed Materials
Licensor, or its licensors, shall retain all proprietary rights, including all copyright, patent, trade secret, trademark and all other intellectual property rights, in and to the Software, Documentation and any corrections, enhancements, or other modifications to the Software. Customer acknowledges that the licenses granted under this Agreement provide Customer only a right of limited use under the terms and conditions of this Agreement.
6. Software Updates
The Software may communicate with Licensor's servers for the purpose of checking for and performing updates and ensuring that Customer is using the Software with a valid key code or license file that Licensor has created and directly provided to Customer. This process does not collect any proprietary information. Licensor shall not provide any of the information it gather in connection with this process to any third party except (i) as may be required by law or legal process, or (ii) to enforce compliance with the key code to license file requirements described above.
7. No Obligation of Third Party Claims
Licensor, its officers, directors, owners, employees, independent contractors and reseller, will have no obligation, responsibility or liability whatsoever to defend, indemnify or hold Customer harmless from or against any third party claims, suits or actions related to, arising out or of connected with the use of the Software or Customer's exercise of the license granted in this Agreement or any damages, losses, liabilities, settlement amounts, costs or expenses related to such third party claims, suits or actions.
8. No warranty; Limitation of Liability
THIS SOFTWARE AND THE ACCOMPANYING FILES ARE PROVIDED "AS-IS" AND LICENSOR AND ITS LICENSORS PROVIDE NO OTHER WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE, AND LICENSOR AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Licensor does not warrant that the Software will meet Customer's requirements or be error free. Good data processing procedure dictates that any program be thoroughly tested with non-critical data before relying on it, and that the designs the software produces must be thoroughly tested prior to being used. The user must assume the entire risk of using the program.
ANY LIABILITY OF THE SELLER WILL BE LIMITED EXCLUSIVELY TO PRODUCT REPLACEMENT OR REFUND OF PURCHASE PRICE. NEITHER LICENSOR NOR ITS LICENSORS WILL BE LIABLE FOR ANY LOSS PROFITS, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Customer acknowledges that the amounts payable hereunder are based in part on these limitations, and further agrees that these limitations shall apply notwithstanding the failure of the essential purpose of any remedy. Licensor's total and cumulative liability arising out of or in connection with this Agreement shall not exceed the license fees paid by Customer hereunder.
For purposes of this Section, "SELLER" and/or "LICENSOR" shall include FILPAL (M) Sdn. Bhd., its officers, directors, owners, employees, independent contractors and reseller.
9. Term and Termination
a. Term. Each license granted in Section 2(a) hereunder shall be effective as of the Effective Date and shall continue in effect for the period set forth in the Purchase Order, which may be either fixed or perpetual, unless earlier terminated as set forth herein. In case of an evaluation license, the license will terminate upon expiration of the applicable evaluation period or the expiration of the password. The terms and conditions of this Agreement shall remain in effect until the last remaining license under this Agreement expires or is terminated.
b. Termination. Either party may terminate this Agreement and each of the licenses granted herein upon written notice to the other party if (i) the other party fails to comply with any of the terms of conditions of this Agreement, and such default is not cured within 365 days after written notice thereof to the other party, (ii) in the case of Licensor, if Customer fails to make any payment of license fees for the Software to Licensor or Licensor's reseller or distributor (as the case may be) within 365 days after the due date of such payment, or (iii) the other party becomes the subject of a voluntary or involuntary petition in bankruptcy or any voluntary or involuntary proceeding relating to insolvency, receivership, liquidation, or composition or assignment for the benefit of creditors. Licensor may terminate an evaluation license at any time.
c. Effect of Termination. Sections 1, 4 through 9, inclusive, and 10, and all payment obligations accruing prior to termination, shall survive termination of this Agreement. Within 5 days after termination or expiration of this Agreement, Customer will return or destroy, at Customer's expense, the Software, Documentation, license passwords and all copies thereof have been returned or destroyed. Nothing contained herein will limit any other remedies that either party may have default under this Agreement nor relieve either party of any obligations incurred prior to such termination.
a. Assignment. Customer may not assign or transfer this Agreement or any rights or obligations under this Agreement, in whole or in part, whether voluntarily, by operation of flaw or otherwise, without Licensor's prior written consent; provided, however, that such written consent shall not be unreasonably withheld if (i) in correction with an assignment in connection with a merger or acquisition of Customer or a sale of all or substantially all of Customer's assets or business to which this Agreement and the Software relates, (ii) maintenance and support obligations with respect to the Software are then in effect, and (iii) the assignee agrees in writing to be bound by all applicable terms and conditions of this Agreement. Any assignment or transfer of this Agreement made in contravention of the terms hereof shall be null and void. Licensor may assign this Agreement. Subject to the foregoing, this Agreement shall be binding on and inure to the benefit of the parties' respective successors and permitted assigns.
b. Severability; Waiver. If any of the provisions of this Agreement are held by a court to be invalid, they are, to that extent, deemed omitted. The waiver of one breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default.
c. Export Control. Customer acknowledges and agrees that the Software may be subject to restrictions and controls imposed. Customer agrees that it will not export or re-export either the Software or any directly related materials to or into any country in violation of such controls or any other laws, rules or regulations of any country, state or jurisdiction.
d. Entire Agreement; Modifications. This Agreement and the Purchase Order(s) represent the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings with respect to the subject matter hereof, whether written or oral. This Agreement may not be modified or amended except by written agreement of the parties.
e. Conflicting Documents. No terms, provisions or conditions of any purchase order, invoice or other business form or written authorization used by either party will affect the rights, duties or obligations of the parties hereunder, regardless of any failure of either party to object to such terms, provisions or conditions. Without limiting the foregoing, any terms or conditions appearing on Customer's purchase orders or similar documents will not add to or modify the terms and conditions of this Agreement.