END-USER LICENCE AGREEMENT (EULA)
ENKADIA SYNEXSIS SOFTWARE DEVELOPMENT KIT (SDK)
PLEASE READ THIS AGREEMENT BEFORE INSTALLING SYNEXSIS.
IF YOU KEEP IT FOR MORE THAN THIRTY (30) DAYS, YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT INSTALL, ACCESS, COPY OR OTHERWISE USE SYNESXIS. YOU MAY ONLY UNLOCK AND/OR USE SYNEXSIS AT SUCH TIME HAVE A CURRENT SUBSCRIPTION.
(1) DEFINITION OF TERMS
“Documentation“: any explanatory written or online material including, but not limited to, user guides, reference manuals and HTML files.
“Licensee“: shall refer to the individual licensee, whether as an individual programmer, company, or other organization.
“Synexsis“: All material in this distribution including, but not limited to, one or more of the following: source code, object code, byte code, dynamic-link libraries, shared libraries, static libraries, header files, executables, scripts, sample programs, utility programs, make files and Documentation.
“Licensed Software“: the Synexsis SDK for which Licensee has paid the applicable license fee and received an authorized unlock key.
“Software Development Kit (SDK)“: the set of access methods, whether provided by Enkadia, third parties, or developed by Licensee, through which the programmatic services provided by Synexsis are made available.
“End-User Software Product“: an application developed by Licensee intended for execution on a computer, that makes use of Synexsis in its implementation.
Synexsis contains certain runtime libraries and files intended for duplication and distribution by Licensee within End User Software Products to the user(s) of the End User Software Product(s) (the “Redistributable Components”). The Redistributable Components are those files specifically designated as being distributable as part of Synexsis.
SPECIAL LIMITED TERM TRIAL LICENSE
Enkadia grants to Licensee, subject to the terms of this Single User License Agreement (excluding Section 3, under which Licensee has no rights) a non-exclusive, non- transferable, non- concurrent limited internal use trial license for evaluation purposes only. This license is for a period of thirty (30) days, commencing from Licensee’s initial downloading date, to evaluate the Software. If the Software is acceptable, Licensee will be obligated to pay either a monthly or annual subscription fee per developer. Otherwise, Licensee shall immediately cease any further use of the Software and destroy all copies of the Software (including the original) and related Documentation provided to Licensee by Enkadia. The trial license may not be extended, renewed or reinstalled following the 30-day trial period.
The Software is owned by Enkadia and is protected by U.S. copyright laws and other laws and by international treaties. It is intended for use by a software programmer who has experience using development tools and class libraries.
(3) LICENSE GRANTS
Per-developer license. Subject to the terms and conditions of this Agreement, Enkadia grants to Licensee the perpetual, non-exclusive, non-transferable, world-wide license for one (1) developer to (i) install and use Synexsis on any number of computers, and (ii) use the associated user documentation and online help.
(b) Licensee may also:
(i) Make one backup copy of Synexsis solely for archival and disaster-recovery purposes, or transfer Synexsis to a hard disk and keep the original copy solely for archival and disaster-recovery purposes; and
(ii) Reproduce and distribute the Redistributable Components directly or indirectly for any number of applications to any number of end users and Licensee’s Authorized OEMs, VARs and Distributors, through customary distribution channels, world-wide, on a royalty free basis provided that such distribution is (i) in conjunction with an End User Software Product developed by Licensee using Synexsis and (ii) Synexsis is not the sole or primary component of such End User Software Product. (iii) The license rights granted under this Agreement do not apply to development and distribution of software development products or toolkits of any kind that are destined to be used by software developers other than Authorized Licensee(s).
Licensee has no rights to use Synexsis beyond those specifically granted in this section.
Enkadia holds no claim on end-user software product(s) developed by the Licensee.
(4) LICENSE RESTRICTIONS
EXPORT CONTROLS: If the Software is for use outside the United States of America, Licensee agrees to comply with all relevant regulations of the United States Department of Commerce and with the United States Export Administration Act to insure that the Software is not exported in violation of United States law.
Notwithstanding any provisions in this Agreement to the contrary, Licensee may not distribute any portion of the Software other than the Redistributable Components.
In addition, Licensee may not decompile, disassemble, or reverse engineer any object code form of any portion of the Synexsis SDK.
Licensee acknowledges and agrees that all right, title and interest in and to the Synexsis SDK, including all intellectual property rights therein, are the property of Enkadia, subject only to the licenses granted to Licensee under this Agreement. This Agreement is not a sale and does not transfer to the Licensee any title or ownership in or to the Software or any patent, copyright, trade secret, trade name, trademark or other proprietary or intellectual property rights related thereto.
Except for Licensee’s rights to distribute the Redistributable Components, Licensee may not rent, transfer, assign, sublicense or grant any rights in the Software, in full or in part, to any other person or entity without Enkadia’s written consent, except that this agreement may be assigned to a successor of Licensee in the case that all or substantially all of the assets or equity of Licensee are acquired by the successor.
(7) LIMITED WARRANTIES
Enkadia warrants to Licensee that Synexsis will substantially perform the functions described in the Documentation for a period of thirty (30) days after the date of delivery of Synexsis to Licensee. Enkadia’s sole and exclusive obligation, and Licensee’s sole and exclusive remedy, under this warranty is limited to Enkadia’s using reasonable efforts to correct material, documented, reproducible defects in Synexsis that Licensee describes and documents to Enkadia during the thirty (30) day warranty period. In the event that Enkadia fails to correct a material, documented, reproducible defect during this period, Enkadia may, at Enkadia’s discretion, replace the defective Licensed Software or refund to Licensee the amount that Licensee paid Enkadia for the defective Licensed Software and cancel this Agreement and the licenses granted herein
EXCEPT AS EXPRESSLY SET FORTH ABOVE, ENKADIA EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, RESULTS, OR OTHERWISE
(8) LIMITATION OF LIABILITY
IN NO EVENT SHALL ENKADIA BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS, REVENUES, DATA OR OTHER ECONOMIC ADVANTAGE) WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EVEN IF ENKADIA WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, THE TOTAL AMOUNT OF ENKADIA’S LIABILITY TO LICENSEE SHALL BE LIMITED TO THE AMOUNT USER PAID FOR THE USE OF THE SOFTWARE, IF ANY.
Enkadia reserves the right, at its sole discretion, to terminate this Agreement upon written notice if Licensee has breached the terms and conditions hereof. Licensee may terminate this Agreement at any time by ceasing to use Synexsis and by destroying all copies of Synexsis (including the original). Sections 4, 5, 6, 7, 8, 9 and 10 survive any termination of this Agreement and apply fully to any termination. Unless terminated as provided herein by either party, this Agreement shall remain in effect. Termination will not affect end user licenses of the End User Software Product which contain the Redistributable Components which were distributed by Licensee prior to termination.
Applicable Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of Nebraska without regard to conflict of laws principles and without regard to the 1980 U.N. Convention on Contracts for the International Sale of Goods. The federal and state courts of Illinois shall have exclusive jurisdiction and venue to adjudicate any dispute arising out of this Agreement, and Licensee expressly consents to (i) the personal jurisdiction of the state and federal courts of Illinois, and (ii) service of process being effected upon Licensee by registered mail.
Limitation of Actions. No action, regardless of form, may be brought by either party more than six (6) months after the cause of action has arisen. No such claim may be brought unless Enkadia has first been given commercially reasonable notice, a full written explanation of all pertinent details (including copies of all materials), and a good faith opportunity to resolve the matter.
Invalidity and Waiver. Should any provision of this Agreement be held by a court of law to be illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining provisions of this Agreement will not be affected or impaired thereby. The failure of any party to enforce any of the terms or conditions of this Agreement, unless waived in writing, will not constitute a waiver of that party’s right to enforce each and every term and condition of this Agreement.
U.S. Government Restricted Rights. Synexsis 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. The Manufacturer of the Synexsis SDK is Enkadia, 1628 Sunset Road, Lincoln, Nebraska 68506 USA.
LICENSEE ACKNOWLEDGES THAT HE HAS READ THIS AGREEMENT, UNDERSTANDS IT AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. LICENSEE FURTHER AGREES THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN LICENSEE AND ENKADIA WHICH SUPERSEDES ANY PROPOSAL OR PRIOR OR CONTEMPORANEOUS AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT