THIS AGREEMENT GOVERNS YOUR USE OF ANY SOFTWARE DEVELOPED BY JEOL RESONANCE INC. (“JRI”) AND/OR DISTRIBUTED BY JEOL UK LTD. (“JEOL UK”) AND ANY UPGRADES, MODIFIED VERSIONS, UPDATES, ADDITIONS, AND COPIES OF THE SOFTWARE FURNISHED TO YOU DURING THE TERM OF THE LICENSE GRANTED HEREIN (THE “SOFTWARE”). THIS AGREEMENT APPLIES REGARDLESS OF WHETHER THE SOFTWARE IS DELIVERED TO YOU AS AN EMBEDDED COMPONENT OF A JEOL LTD. (“JEOL”) PRODUCT (“PRODUCT”), OR WHETHER IT IS DELIVERED AS A STANDALONE SOFTWARE PRODUCT. FOR THE AVOIDANCE OF DOUBT IT IS HEREBY CLARIFIED THAT THIS AGREEMENT APPLIES TO PLUG-INS AND SIMILAR SOFTWARE COMPONENTS DEVELOPED BY JRI THAT CONNECT OR INTEGRATE A JEOL PRODUCT WITH THE PRODUCT OF A THIRD PARTY (COLLECTIVELY, “PLUG-INS”) FOR MANAGING OR CONFIGURING JEOL PRODUCTS OR THE PRODUCT OF A THIRD PARTY. PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE OPENING THE PACKAGE CONTAINING THE PRODUCT, OR BEFORE DOWNLOADING, INSTALLING, COPYING OR OTHERWISE USING THE STANDALONE SOFTWARE (AS APPLICABLE). THE SOFTWARE IS LICENSED (NOT SOLD). BY OPENING THE PACKAGE CONTAINING THE PRODUCT, OR BY DOWNLOADING, INSTALLING, COPYING OR USING THE SOFTWARE (AS APPLICABLE), YOU CONFIRM THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU ARE NOT WILLING TO BE BOUND BY THE TERMS OF THIS AGREEMENT, YOU SHOULD PROMPTLY RETURN THE UNOPENED PRODUCT PACKAGE OR YOU SHOULD NOT DOWNLOAD, INSTALL, COPY OR OTHERWISE USE THE SOFTWARE (AS APPLICABLE). “YOU” MEANS THE NATURAL PERSON OR THE ENTITY THAT IS AGREEING TO BE BOUND BY THIS AGREEMENT AND THEIR EMPLOYEES. YOU SHALL BE LIABLE FOR ANY FAILURE BY SUCH EMPLOYEES TO COMPLY WITH THE TERMS OF THIS AGREEMENT.
- License Grant. Subject to the terms of this Agreement, JEOL UK hereby grants to you, and you accept, a limited, nonexclusive, nontransferable license to install and use the Software in machine-readable, object code form only and solely for your internal business purposes (“Internal License”), provided, however, that an Academic License is restricted to Academic Use. “Academic Use” means use (i) by an individual employed by (or, with respect to academic institutions, enrolled in a course of study at) an accredited academic institution, organized and operated exclusively for the purpose of education or research, (ii) at the location of such academic institution, and (iii) solely for purposes directly related to teaching, training, degree-granting programs, and research and development that are part of the instructional functions of the institution. Without limiting the foregoing, Academic Licenses may not be used for commercial, professional or productive purposes, for commercial training or any other for-profit purposes. You agree that you will not sell, assign, license, sublicense, transfer, pledge, lease, rent or share your rights under this Agreement nor will you distribute copies of the Software or any parts thereof. Rights not specifically granted herein, are specifically prohibited.
- Evaluation Use. Notwithstanding anything to the contrary in this Agreement, if the Software is provided to you for evaluation purposes, as indicated on the website from which you download the Software, or otherwise, then you may use the Software only for internal evaluation purposes (“Evaluation Use”) for a maximum of 90 days or such other duration as may specified by JEOL UK or JEOL in writing at its sole discretion (the “Evaluation Period”). In the event the evaluation copy of the Software contains a feature that automatically disables it after expiration of the Evaluation Period, you agree not to disable, destroy or remove this feature of the Software, and any attempt to do so will be a material breach of this Agreement. If you elect not to purchase an Internal License or an Academic License, you agree to stop using the Software and to delete the Software for Evaluation Use received hereunder from all computers under your possession or control at the end of the Evaluation Period. In any event, your continued use of the Software beyond the Evaluation Period (if possible) shall be deemed your acceptance of an Internal License to the Software pursuant to the terms of this Agreement, and you agree to pay JEOL UK or JEOL any amounts due for any applicable license fees at our then-current list prices.
- Subscription Software. If you licensed the Software on a subscription basis, your rights to use the Software are limited to the subscription period. You have the option to extend your subscription. If you do not extend your subscription, after the expiration of your subscription, you are legally obligated to discontinue your use of the Software and completely remove the Software from your system or computer.
- Licensed Software that is lawfully purchased from JEOL UK or JEOL and is not (i) a Subscription license, (ii) provided for Evaluation Use, or (iii) otherwise limited to a finite term as indicated in a purchase order, if any, shall be deemed to have a Perpetual License Term.
- Feedback. Any feedback concerning the Software including, without limitation, identifying potential errors and improvements, recommended changes or suggestions (“Feedback”), provided by you to JEOL UK or JEOL will be owned exclusively by JEOL UK and considered JEOL UK’s confidential information. By providing Feedback to JEOL UK or JEOL, you hereby assign to JEOL UK all of your right, title and interest in any such Feedback, including all intellectual property rights therein. With regard to any rights in such Feedback that cannot, under applicable law, be assigned to JEOL UK, you hereby irrevocably waives such rights in favor of JEOL UK and grants JEOL UK under such rights in the Feedback, a worldwide, perpetual royalty-free, irrevocable, sub-licensable and non-exclusive license, to use, reproduce, disclose, sublicense, modify, make, have made, distribute, sell, offer for sale, display, perform, create derivative works of and otherwise exploit the Feedback without restriction. The provisions of this Section 4 will survive the termination or expiration of this Agreement.
- Limitations on Use. You agree that you will not: (a) copy, modify, translate, adapt or create any derivative works based on the Software; or (b) sublicense or transfer the Software, or include the Software or any portion thereof in any product; or (c) reverse assemble, disassemble, decompile, reverse engineer or otherwise attempt to derive source code (or the underlying ideas, algorithms, structure or organization) from the Software, in whole or in part; or (d) create, develop, license, install, use, or deploy any software or services to circumvent, enable, modify or provide access, permissions or rights which violate the technical restrictions of the Software; or (e) in the event the Software is provided as an embedded or bundled component of another product, you shall not use the Software other than as part of the combined product and for the purposes for which the combined product is intended; or (f) remove any copyright notices, identification or any other proprietary notices from the Software (including any notices of Third Party Software (as defined below); or (g) copy the Software onto any public or distributed network or use the Software to operate in or as a time-sharing, outsourcing, service bureau, application service provider, or managed service provider environment. It is hereby clarified that the prohibitions on modifying, or creating derivative works based on, any Software provided by JEOL UK, apply whether the Software is provided in a machine or in a human readable form.
- Intellectual Property Rights. You acknowledge and agree that this Agreement does not convey to you any interest in the Software except for the limited right to use the Software, and that all right, title, and interest in and to the Software, including any and all associated intellectual property rights, are and shall remain with JRI or its third-party licensors. You further acknowledge and agree that the Software is a proprietary product of JRI and/or its licensors and is protected under applicable copyright law.
- No Warranty. The Software, and any and all accompanying software, files, libraries, data and materials, are distributed and provided “AS IS” by JEOL UK or by its third-party licensors (as applicable) and with no warranty of any kind, whether express or implied, including, without limitation, any non-infringement warranty or warranty of merchantability or fitness for a particular purpose. Neither JEOL UK nor any of its affiliates (including but not limited to JEOL and JRI) or licensors warrants, guarantees, or makes any representation regarding the title in the Software, the use of, or the results of the use of the Software. Neither JEOL UK nor any of its affiliates (including but not limited to JEOL and JRI) or licensors warrants that the operation of the Software will be uninterrupted or error-free, or that the use of any passwords, license keys and/or its features will be effective in preventing the unintentional disclosure of information contained in any file. You hereby assume the entire risk of all use of the copies of the Software covered by this Agreement. JEOL UK and JRI do not make any representation or warranty, nor do JEOL UK or JRI assume any responsibility or liability or provide any license or technical maintenance and support for any operating systems, databases, or any other software component provided by a third-party supplier and with which the Software is meant to interoperate.
This disclaimer of warranty constitutes an essential and material part of this Agreement.
In the event that, notwithstanding the disclaimer of warranty above, JEOL UK and/or JEOL, JRI are held liable under any warranty provision, JEOL UK and/or JEOL, JRI shall be released from all such obligations in the event that the Software shall have been subject to misuse, neglect, accident or improper installation, or if repairs or modifications were made by persons other than by JEOL UK’s and/or JEOL’s, JRI’s authorized personnel.
- Limitation of Liability. Except to the extent expressly prohibited by applicable statutes, in no event shall JEOL UK and/or JEOL, JRI, or their principals, shareholders, officers, employees, affiliates, licensors, contractors, subsidiaries, or parent organizations (together, the “Concerned Parties”), be liable for any direct, indirect, incidental, consequential, special, or punitive damages whatsoever relating to the use of, or the inability to use, the Software, or to your relationship with, any of the Concerned Parties (including, without limitation, loss or disclosure of data or information, and/or loss of profit, revenue, business opportunity or business advantage, and/or business interruption), whether based upon a claim or action of contract, warranty, negligence, strict liability, contribution, indemnity, or any other legal theory or cause of action, even if advised of the possibility of such damages. If any Concerned Party is found to be liable to you or to any third party under any applicable law despite the explicit disclaimers and limitations under these terms, then any liability of such Concerned Party, will be limited exclusively to refund of any license or registration or subscription fees paid by you to JEOL UK or JEOL, JRI.
- Third Party Software. The Software includes software portions developed and owned by third parties (the “Third Party Software”). Third Party Software shall be deemed part of the Software for all intents and purposes of this Agreement; provided, however, that in the event that a Third Party Software is a software for which the source code is made available under an open source software license agreement, then, to the extent there is any discrepancy or inconsistency between the terms of this Agreement and the terms of any such open source license agreement, the terms of any such open source license agreement will govern and prevail. Third Party licensors and suppliers retain all right, title and interest in and to the Third Party Software and all copies thereof, including all copyright and other intellectual property associated therewith. In addition to the use limitations applicable to Third Party Software pursuant to Section 5 above, you agree and undertake not to use the Third Party Software as a stand-alone application or with applications other than the Software under this License Agreement.
- Source Code Offer under the Terms of GNU GPL. Should the Third Party Software contain any part that is governed by the terms of any versions of GNU GPL (hereinafter “GNU GPL”), JEOL UK hereby makes you an offer, valid for three years or as long as JEOL UK offers customer support, at JEOL UK’s sole discretion, for the Product or the Software, to provide you either (1) a copy of the Corresponding Source within the meaning of GNU GPL for such Third Party Software, on a durable physical medium customarily used for software interchange, for a price no more than JEOL UK’s reasonable cost of physically performing this conveying of source, or (2) access to copy of the Corresponding Source within the meaning of GNU GPL from a network server at no charge, depending on JEOL UK’s preference at the time of your request and the terms of the applicable GNU GPL license. You may exercise this option upon written request to JEOL UK LTD., attn. General Counsel, Riverbank House 2 Swan Lane London EC4R 3TT. If so required by the applicable GNU GPL this offer is valid to anyone in receipt of this information.
- Term and Termination. This Agreement is effective upon the first to occur of your opening the package of the Product, purchasing, downloading, installing, copying or using the Software or any portion thereof, and shall continue until terminated. However, sections 4-17 shall survive any termination of this Agreement. The licenses granted under this Agreement are not transferable and will terminate upon: (i) termination of this Agreement, or (ii) transfer of the Software, or (iii) in the event the Software is provided as an embedded or bundled component of another product, when the Software is un-bundled from such product or otherwise used other than as part of such product. If the Software is licensed on subscription basis, this Agreement will automatically terminate upon the termination of your subscription period if it is not extended.
- Indemnification. You shall defend JEOL UK, JRI and JEOL and hold JEOL UK, JRI and JEOL, their affiliates, directors, employees, and representatives harmless against any liabilities, losses, damages, demands, claims, suits, and proceedings as well as fees, expenses and other costs of any kind or nature, including, without limitation, any attorney fees, expert fees, filing fees, judgments, and settlement amounts associated therewith, as and when incurred, arising out of or related to your use of the Software or any breach or alleged breach by you or any of your affiliates, employees, representatives, agents or end-users of any obligation, representation or warranty contained in this Agreement and pay any amounts finally awarded or agreed to in settlement of any such claim.
- Export and Data Protection Law. The Software or any part thereof may be subject to export or import controls under applicable export/import control laws and regulations including such laws and regulations of the United States and/or Japan. You agree to comply with such laws and regulations, and, agree not to knowingly export, re-export, import or re-import, or transfer products without first obtaining all required government authorizations or licenses therefor. As required by U.S. law, you represent and warrant that you: (a) understand that certain of the controlled materials are of U.S. origin and subject to export controls under the U.S. Export Administration Regulations (the “EAR”); (b) are not located in or owned or controlled by any person or entity located in any country listed in Country Group E:1 in Supplement No. 1 to part 740 of the EAR; or by any person or entity listed on the U.S. Department of Treasury Office of Foreign Assets Control (“OFAC”) list of Specially Designated Nationals and Blocked Persons (“SDNs”) (and are not 50% or more owned or controlled by any one or more persons or entities identified on the SDNs list); (c) will not export, re-export or transfer the controlled materials to (1) any prohibited destination, (2) anyone who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government or (3) any end user who you know or have reason to know will use them in the design, development or production of nuclear, chemical or biological weapons, or rocket systems, space launch vehicles, or sounding rockets, or unmanned air vehicle systems or any other prohibited use under the EAR; and (d) understand and agree that if you are in the United States and export, re-export or transfer the controlled materials to eligible end users, you will, to the extent required by EAR Section 740.17(e), submit semi-annual reports to the U.S. Commerce Department’s Bureau of Industry and Security, that include the name and address (including country) of each transferee. Without prior authorization from the United States government, you shall not use the Software and the Product for, and shall not permit the Software and the Product to be used for, any purposes prohibited by United States law, including, without limitation, for any prohibited development, design, manufacture or production of missiles or nuclear, chemical or biological weapons. Furthermore, you hereby covenant and agree to ensure that your use of the Software is in compliance with all other foreign, federal, state, and local laws and regulations, including without limitation all laws and regulations relating to privacy rights, and data protection.
- US Government. To the extent you are the U.S. government or any agency or instrumentality thereof, you acknowledge and agree that the Software is a “commercial computer software” and “commercial computer software documentation” pursuant to applicable regulations and your use of the Software is subject to the terms of this Agreement.
- Federal Acquisition Regulation (FAR)/Data Rights Notice. JEOL UK’s commercial computer software is created solely at private expense and is subject to JEOL UK’s commercial license rights.
- Governing Law. This Agreement shall be construed and governed in accordance with the laws of Japan.
- Miscellaneous. If a judicial determination is made that any of the provisions contained in this Agreement is unreasonable, illegal or otherwise unenforceable, such provision or provisions shall be rendered void or invalid only to the extent that such judicial determination finds such provisions to be unreasonable, illegal or otherwise unenforceable, and the remainder of this Agreement shall remain operative and in full force and effect. In any event a party breaches or threatens to commit a breach of this Agreement, the other party will, in addition to any other remedies available to, be entitled to injunction relief. This Agreement constitutes the entire agreement between the parties hereto and supersedes all prior agreements between the parties hereto with respect to the subject matter hereof. The failure of any party hereto to require the performance of any provisions of this Agreement shall in no manner affect the right to enforce the same. No waiver by any party hereto of any provisions or of any breach of any provisions of this Agreement shall be deemed or construed either as a further or continuing waiver of any such provisions or breach waiver or as a waiver of any other provision or breach of any other provision of this Agreement.