IMPORTANT: PLEASE READ THIS END USER LICENSE AGREEMENT CAREFULLY. IT IS VERY IMPORTANT THAT YOU CHECK THAT YOU ARE PURCHASING KYMETA SOFTWARE OR EQUIPMENT FROM AN APPROVED SOURCE AND THAT YOU, OR THE ENTITY YOU REPRESENT (COLLECTIVELY, THE “CUSTOMER”) HAVE BEEN REGISTERED AS THE END USER FOR THE PURPOSES OF THIS KYMETA END USER LICENSE AGREEMENT. IF YOU ARE NOT REGISTERED AS THE END USER, YOU HAVE NO LICENSE TO USE THE SOFTWARE OR THE EQUIPMENT AND THE LIMITED WARRANTY IN THIS END USER LICENSE AGREEMENT DOES NOT APPLY. ASSUMING YOU HAVE PURCHASED FROM AN APPROVED SOURCE, INSTALLING OR USING KYMETA OR KYMETA-SUPPLIED SOFTWARE OR EQUIPMENT CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.
Kymeta Corporation (“Kymeta”) licenses the Software that is embedded in its equipment to you only upon the condition that you accept all of the terms contained in this end user license agreement plus any additional limitations set forth in a written license agreement executed by you and Kymeta (collectively, the “Agreement”). To the extent of any conflict between the terms of this end user license agreement and any agreement, the Agreement shall apply by installing or using the Software embedded in the products, you are representing that you agree to all of the terms of this end user license agreement. If you do not agree to all of the terms of the Agreement, then Kymeta is unwilling to license the Software to you and you may not install or use the Software. For the purposes of this end user license agreement, an “approved source” means (a) Kymeta; or (b) a distributor or systems integrator authorized by Kymeta to distribute/sell Kymeta equipment, Software and services within your territory to end users; or (c) a reseller authorized by any such distributor or systems integrator in accordance with the terms of the distributor’s agreement with Kymeta to distribute/sell the Kymeta equipment Software and services within your territory to end users.
For purposes of the Agreement, “Software” shall mean computer programs, including firmware and computer programs embedded in Kymeta equipment, as provided to Customer by an approved source, and any upgrades, updates, bug fixes or modified versions thereto (collectively, “Upgrades”), any of the same which has been relicensed under Kymeta’s Software transfer and re-licensing policy (as may be amended by Kymeta from time to time) or backup copies of any of the foregoing.
License. Conditioned upon compliance with the terms and conditions of the Agreement, Kymeta grants to Customer a nonexclusive and nontransferable license to use for Customer’s internal business purposes the Software and the Documentation for which Customer has paid the required license fees to an approved source. “Documentation” means written information (whether contained in user or technical manuals, training materials, specifications or otherwise) pertaining to the Software or equipment and made available by an approved source with the Software or equipment in any manner (including on-line). In order to use the Software, Customer may be required to input a registration number or product authorization key and register Customer’s copy of the Software on-line at Kymeta’s website to obtain the necessary license key or license file.
Customer shall use the Software solely as embedded in Kymeta equipment owned or leased by Customer and used for Customer’s internal business purposes. no other licenses are granted by implication, estoppel or otherwise.
For evaluation or beta copies for which Kymeta does not charge a license fee, the above requirement to pay license fees does not apply.
General Limitations. This is a license, not a transfer of title, to the Software and Documentation, and Kymeta retains ownership of all copies of the Software and Documentation. Customer acknowledges that the Software and Documentation contain trade secrets of Kymeta, its suppliers or licensors, including but not limited to the specific internal design and structure of individual programs and associated interface information. except as otherwise expressly provided under the Agreement, Customer shall use the Software only in connection with the use of Kymeta equipment purchased by the Customer from an approved source and Customer shall have no right, and Customer specifically agrees not to transfer, assign or sublicense its license rights to any other person or entity (other than in compliance with any Kymeta relicensing/transfer policy then in force), or use the Software on Kymeta equipment not purchased by the Customer from an approved source or on second-hand Kymeta equipment, and Customer acknowledges that any attempted transfer, assignment, sublicense or use shall be void; make error corrections to or otherwise modify or adapt the Software or create derivative works based upon the Software, or permit third parties to do the same; reverse engineer or decompile, decrypt, disassemble or otherwise reduce the Software to human-readable form, except to the extent otherwise expressly permitted under applicable law notwithstanding this restriction or except to the extent that Kymeta is legally required to permit such specific activity pursuant to any applicable open source license; publish any results of benchmark tests run on the Software; use or permit the Software to be used to perform services for third parties, whether on a service bureau or time sharing basis or otherwise, without the express written authorization of Kymeta; or disclose, provide, or otherwise make available trade secrets contained within the Software and Documentation in any form to any third party without the prior written consent of Kymeta. Customer shall implement reasonable security measures to protect such trade secrets.
To the extent required by law, and at Customer’s written request, Kymeta shall provide Customer with the interface information needed to achieve interoperability between the Software and another independently created program, on payment of Kymeta’s applicable fee, if any. Customer shall observe strict obligations of confidentiality with respect to such information and shall use such information in compliance with any applicable terms and conditions upon which Kymeta makes such information available.
Software, upgrades and additional copies. notwithstanding any other provision of the Agreement: (1) Customer has no license or right to make or use any additional copies or upgrades unless Customer, at the time of making or acquiring such copy or upgrade, already holds a valid license to the original Software and has paid the applicable fee to an approved source for the upgrade or additional copies; (2) use of upgrades is limited to Kymeta equipment supplied by an approved source for which Customer is the original end user purchaser or lessee or otherwise holds a valid license to use the Software which is being upgraded; and (3) the making and use of additional copies is limited to necessary backup purposes only.
Proprietary Notices. Customer agrees to maintain and reproduce all copyright, proprietary and other notices on all copies, in any form, of the Software in the same form and manner that such copyright and other proprietary notices are included on the Software. Except as expressly authorized in the Agreement, Customer shall not make any copies or duplicates of any Software without the prior written permission of Kymeta.
Term and Termination. The Agreement and the license granted herein shall remain in effect until terminated. Customer may terminate the Agreement and the license at any time by destroying all copies of Software and any Documentation. Customer’s rights under the Agreement will terminate immediately without notice from Kymeta if Customer fails to comply with any provision of the Agreement. Upon termination, Customer shall destroy all copies of Software and Documentation in its possession or control. All confidentiality obligations of Customer, all restrictions and limitations imposed on the Customer and all limitations of liability and disclaimers and restrictions of warranty shall survive termination of this Agreement. In addition, the provisions of the section titled “U.S. Government End User Purchasers” shall survive termination of the Agreement.
Export, Re-export, Transfer and Use Controls. The Software, Documentation and technology or product thereof (hereafter referred to as Software and technology), supplied by Kymeta under the Agreement are subject to export controls under the laws and regulations of the United States (U.S.) and any other applicable countries’ laws and regulations. Customer shall comply with such laws and regulations governing export, re-export, transfer and use of Kymeta Software and technology and will obtain all required U.S. and local authorizations, permits, or licenses. Kymeta and Customer each agree to provide the other information, support documents, and assistance as may reasonably be required by the other in connection with securing authorizations or licenses.
U.S. Government End User Purchasers. The Software and Documentation qualify as “commercial items,” as that term is defined at Federal Acquisition Regulation (“FAR”) (48 C.F.R.) 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation” as such terms are used in far 12.212. consistent with FAR 12.212 and DOD FAR SUPP. 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which the Agreement may be incorporated, Customer may provide to Government End User or, if the Agreement is direct, Government End User will acquire, the Software and Documentation with only those rights set forth in the Agreement. Use of either the Software or Documentation or both constitutes agreement by the government that the Software and Documentation are “Commercial Computer Software” and “Commercial Computer Software Documentation,” and constitutes acceptance of the rights and restrictions herein.
Identified Components; Additional Terms. The Software may contain or be delivered with one or more components, which may include third-party components, identified by Kymeta in the Documentation, readme.txt_file, or on www.Kymetacorp.com. (the “Identified Component(s)”) as being subject to different license agreement terms, disclaimers of warranties, limited warranties or other terms and conditions (collectively, “Additional Terms”) than those set forth herein. You agree to the applicable additional terms for any such Identified Component(s).
Limited Warranty. Subject to the limitations and conditions set forth herein, Kymeta warrants that commencing from the date of shipment to Customer (but in case ofle by an approved source other than Kymeta, commencing not more than ninety (90) days after original shipment by Kymeta), and continuing for a period of two (2) years : (a) the media on which the Software is furnished will be free of defects in materials and workmanship under normal use; and (b) the Software substantially conforms to the Documentation. The date of shipment of a product or equipment by Kymeta is set forth on the packaging material in which the product or equipment is shipped. except for the foregoing, the Software is provided “as is”. This limited warranty extends only to the Software purchased from an approved source by a Customer who is the first registered end user. Customer’s sole and exclusive remedy and the entire liability of Kymeta and its suppliers under this limited warranty will be (i) replacement of defective media and/or (ii) at Kymeta’s option, repair, replacement, or refund of the purchase price of the Software, in both cases subject to the condition that any error or defect constituting a breach of this limited warranty is reported to the approved source supplying the Software to Customer within the warranty period. Kymeta or the approved source supplying the Software to Customer may, at its option, require return of the Software and/or Documentation as a condition to the remedy. In no event does Kymeta warrant that the Software is error free or that Customer will be able to operate the Software without problems or interruptions. In addition, due to the continual development of new techniques for intruding upon and attacking networks, Kymeta does not warrant that the Software or any equipment, system or network on which the Software is used will be free of vulnerability to intrusion or attack.
Restrictions. This warranty does not apply if the Software, product or any other equipment upon which the Software is authorized to be used (a) has been altered, except by Kymeta or its authorized representative, (b) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by Kymeta, (c) has been subjected to abnormal physical or electrical stress, abnormal environmental conditions, misuse, negligence, or accident; or (d) is licensed for beta, evaluation, testing or demonstration purposes. The Software warranty also does not apply to (e) any temporary Software modules; (f) any Software that Kymeta expressly provides on an “as is” basis; (h) any Software for which an approved source does not receive a license fee; and (i) Software supplied by any third party which is not an approved source.
Disclaimer of Warranty. Except as specified in this warranty section, all express or implied conditions, representations, and warranties including, without limitation, any implied warranty or condition of merchantability, fitness for a particular purpose, non-infringement, satisfactory quality, non-interference, accuracy of informational content, or arising from a course of dealing, law, usage, or trade practice, are hereby excluded to the extent allowed by applicable law and are expressly disclaimed by Kymeta, its suppliers and licensors. To the extent that any of the same cannot be excluded, such implied condition, representation and/or warranty is limited in duration to the express warranty period referred to in the “limited warranty” section above. Because some states or jurisdictions do not allow limitations on how long an implied warranty lasts, the above limitation may not apply in such states. this warranty gives Customer specific legal rights, and Customer may also have other rights which vary from jurisdiction to jurisdiction. This disclaimer and exclusion shall apply even if the express warranty set forth above fails of its essential purpose.
Disclaimer of Liabilities – Limitation of Liability. If you acquired the Software in the United States, Latin America, Canada, Japan or the Caribbean, notwithstanding anything else in the Agreement to the contrary, all liability of Kymeta, its affiliates, officers, directors, employees, agents, suppliers and licensors collectively, to Customer, whether in contract, tort (including negligence), breach of warranty or otherwise, shall not exceed the price paid by Customer to any approved source for the Software that gave rise to the claim or if the Software is part of another product or equipment, the price paid for such other product or equipment. this limitation of liability for Software is cumulative and not per incident (i.e., the existence of two or more claims will not enlarge this limit).
If you acquired the Software in Europe, the Middle East, Africa, Asia or Oceania, notwithstanding anything else in the Agreement to the contrary, all liability of Kymeta, its affiliates, officers, directors, employees, agents, suppliers and licensors collectively, to Customer, whether in contract, tort (including negligence), breach of warranty or otherwise, shall not exceed the price paid by Customer to Kymeta for the Software that gave rise to the claim or if the Software is part of another product or equipment, the price paid for such other product or equipment. this limitation of liability for Software is cumulative and not per incident (i.e., the existence of two or more claims will not enlarge this limit). nothing in the Agreement shall limit (i) the liability of Kymeta, its affiliates, officers, directors, employees, agents, suppliers and licensors to Customer for personal injury or death caused by their negligence, (ii) Kymeta’s liability for fraudulent misrepresentation, or (iii) any liability of Kymeta which cannot be excluded under applicable law.
Disclaimer of Liabilities – Waiver of Consequential Damages and Other Losses. if you acquired the Software in the United States, Latin America, the Caribbean or Canada, regardless of whether any remedy set forth herein fails of its essential purpose or otherwise, in no event will Kymeta or its suppliers be liable for any lost revenue, profit, or lost or damaged data, business interruption, loss of capital, or for special, indirect, consequential, incidental, or punitive damages however caused and regardless of the theory of liability or whether arising out of the use of or inability to use Software or otherwise and even if Kymeta or its suppliers or licensors have been advised of the possibility of such damages. because some states or jurisdictions do not allow limitation or exclusion of consequential or incidental damages, the above limitation may not apply to you.
if you acquired the Software in Japan, except for liability arising out of or in connection with death or personal injury, fraudulent misrepresentation, and regardless of whether any remedy set forth herein fails of its essential purpose or otherwise, in no event will Kymeta, its affiliates, officers, directors, employees, agents, suppliers and licensors be liable for any lost revenue, profit, or lost or damaged data, business interruption, loss of capital, or for special, indirect, consequential, incidental, or punitive damages however caused and regardless of the theory of liability or whether arising out of the use of or inability to use Software or otherwise and even if Kymeta or any approved source or their suppliers or licensors have been advised of the possibility of such damages.
If you acquired the Software in Europe, the Middle East, Africa, Asia or Oceania, in no event will Kymeta, its affiliates, officers, directors, employees, agents, suppliers and licensors, be liable for any lost revenue, lost profit, or lost or damaged data, business interruption, loss of capital, or for special, indirect, consequential, incidental, or punitive damages, howsoever arising , including, without limitation, in contract, tort (including negligence) or whether arising out of the use of or inability to use the Software, even if, in each case, Kymeta, its affiliates, officers, directors, employees, agents, suppliers and licensors, have been advised of the possibility of such damages. because some states or jurisdictions do not allow limitation or exclusion of consequential or incidental damages, the above limitation may not fully apply to you. the foregoing exclusion shall not apply to any liability arising out of or in connection with: (i) death or personal injury, (ii) fraudulent misrepresentation, or (iii) Kymeta’s liability in connection with any terms that cannot be excluded under applicable law.
Customer acknowledges and agrees that Kymeta has set its prices and entered into the Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties.
Controlling Law, Jurisdiction. the Agreement and warranties (“Warranties”) shall be construed under the laws of the state of Washington, United States of America, notwithstanding any conflicts of law provisions; and the state and federal courts of King County, Washington shall have exclusive jurisdiction over any claim arising under the Agreement or Warranties. The parties specifically disclaim the application of the un convention on contracts for the international sale of goods. Notwithstanding the foregoing, either party may seek interim injunctive relief in any court of appropriate jurisdiction with respect to any alleged breach of such party’s intellectual property or proprietary rights. If any portion hereof is found to be void or unenforceable, the remaining provisions of the Agreement and Warranties shall remain in full force and effect. Except as expressly provided herein, the Agreement constitutes the entire agreement between the parties with respect to the license of the Software and Documentation and supersedes any conflicting or additional terms contained in any purchase order or elsewhere, all of which terms are excluded. The Agreement has been written in the English language, and the parties agree that the English version will govern.