ACCUSOFT CORPORATION SOFTWARE LICENSE AGREEMENT: VIRTUALVIEWER®
IMPORTANT NOTICE TO USER: PLEASE READ THIS LICENSE AGREEMENT CAREFULLY
ACCUSOFT CORPORATION (“ACCUSOFT”) SOFTWARE IS SUBJECT TO THE LICENSE TERMS CONTAINED IN THIS AGREEMENT. YOU MUST AGREE TO THESE LICENSE TERMS BEFORE DOWNLOADING, INSTALLING OR USING THIS SOFTWARE. PLEASE READ THIS AGREEMENT CAREFULLY AND THEN INDICATE YOUR AGREEMENT BY CLICKING ON THE BUTTON BELOW THAT STATES “I AGREE TO THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT.” IF YOU DO NOT AGREE TO COMPLY WITH THE TERMS OF THIS LICENSE AGREEMENT, THEN CLICK THE BUTTON BELOW THAT STATES “I DO NOT AGREE TO THE TERMS AND CONDITIONS OF THE LICENSE AGREEMENT,” AND DO NOT CONTINUE WITH THE DOWNLOAD, INSTALLATION OR USE OF THIS SOFTWARE, AND DESTROY ALL COPIES OF THE SOFTWARE AND SOFTWARE DOCUMENTATION IN YOUR POSSESSION OR CONTROL.
IF YOU HAVE BEEN ASKED TO DOWNLOAD, INSTALL OR USE THIS SOFTWARE ON BEHALF OF YOUR EMPLOYER OR ANOTHER THIRD PARTY WHO HAS PURCHASED THE LICENSE TO THIS SOFTWARE (“LICENSEE” “YOU’ OR “CUSTOMER”) , YOU MUST CONFIRM THE LICENSEE’S AGREEMENT TO THESE LICENSE TERMS BEFORE ACCEPTING THE TERMS OF THE LICENSE AGREEMENT (“AGREEMENT”) AND CONTINUING WITH YOUR DOWNLOAD, INSTALLATION, OR USE OF THE SOFTWARE, AND YOU HEREBY REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO ACCEPT THIS AGREEMENT ON BEHALF OF THE LICENSEE. IN THAT CASE,THE TERM “YOU” SHALL REFER TO BOTH YOU AND THE LICENSEE, AND THIS AGREEMENT SHALL BE ENFORCEABLE AGAINST YOU AS WELL AS ANY LEGAL ENTITY THAT OBTAINED THE SOFTWARE AND/OR ON WHOSE BEHALF IT IS USED.
ACCUSOFT IS ONLY WILLING TO LICENSE THIS SOFTWARE TO YOU UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. PLEASE READ THE TERMS OF THIS AGREEMENT CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING THE SOFTWARE. YOUR DOWNLOAD, INSTALLATION AND/OR USE OF THE SOFTWARE WILL INDICATE YOUR AGREEMENT TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, THEN ACCUSOFT IS UNWILLING TO LICENSE THE SOFTWARE TO YOU.
THE TERMS OF THIS LICENSE AGREEMENT GOVERN THE POSSESSION AND USE OF THE SOFTWARE. THEY SUPERSEDE AND TAKE PRECEDENCE OVER ANY TERMS CONTAINED IN ANY PURCHASE ORDER OR OTHER DOCUMENT THAT YOU MAY SUBMIT OR HAVE SUBMITTED IN CONNECTION WITH YOUR OBTAINING THIS SOFTWARE LICENSE.
1. OWNERSHIP OF THE VIRTUALVIEWER® SOFTWARE
1.1 YOU ARE BEING PROVIDED ACCESS TO THE VIRTUALVIEWER SOFTWARE UNDER A LICENSE ONLY. Accusoft and its suppliers own the Software and all intellectual property rights embodied therein, including trade secrets embodied in the Software’s design, code, and organization. All intellectual property rights in the Software shall remain solely and exclusively owned by Accusoft and its suppliers. Accusoft’s and its suppliers’ ownership of the Software is protected by law, including international copyright laws and treaty provisions.
1.2 “Distribution” (and “Distribute”) means Licensee’s internal or external distribution of the Software according to the number of core or client seat licenses specified on the applicable signed purchase or sales order and on Accusoft’s invoice to you, and whether by physical media, SaaS hosting by you, or otherwise (but regardless of method, at all times limited to the number of licenses purchased in connection with such Distribution License.)
1.3 “Documentation” means, collectively, Accusoft’s electronic and on-line user manuals, and also other types of written materials that are provided to Customer in electronic form with the Software and/or via Accusoft’s corporate website.
1.4 “Software” means the software to which access is being provided to you by Accusoft subject to your continued compliance with the Agreement terms hereof and includes (a) applicable Documentation for such Software, and (b) any new or updated releases, including any enhancements, extensions, or other modifications to the Software if and when available and which are provided to Licensee under Maintenance and Support Services. “Software” excludes any open source software components bundled with certain optional components and further described below.
1.5 “VirtualViewer” means Accusoft’s proprietary software application used for viewing, manipulating and converting images and documents.
1.6 Open source software components (“OSS Components”) are included in the following Accusoft products/options:
Alfresco Connector option (for VirtualViewer® HTML5 Java)
OpenOffice option (for RasterMaster® Java and VirtualViewer® HTML5 Java)
Such OSS Components are subject to separate open source software license agreements as set forth in the Documentation provided to you with the Software and, to the extent conflicting with the license terms in this Agreement with respect to the specific OSS Components, those separate open source software license agreements supersede the license terms in this Agreement. These OSS Components are and remain the sole and exclusive property of their authors/creators. Nothing in this Agreement shall restrict, limit, or otherwise affect any rights or obligations you may have under the license terms of the OSS Components. You acknowledge that OSS Components are provided to you by Accusoft on an “as is” basis, without warranty or representation of any kind, and Accusoft shall have no liability to you or any third party with respect to your downloading, installation or use of the OSS Components.
2. LICENSE GRANT
2.1 Subject to your continual compliance with the terms of this Agreement and provided that you have paid your license and any support and maintenance fees in full, you are hereby granted a non-exclusive, non-transferable, non-assignable license to install and use the Software in accordance with the provisions of this Agreement for the term, if any, specified in the applicable Accusoft invoice (“License”). All intellectual property and intellectual property rights pertaining to the Software shall remain solely and exclusively owned by Accusoft and its suppliers, and Accusoft grants you no rights whatsoever other than this Agreement and any License.
2.2 Your rights to use a specific version of the Software shall terminate if you install and use any subsequent version of the same Software.
2.3 The Software may include various applications, utilities and components, may support multiple platforms and languages, and may be provided to you as an electronic transmission or on a physical medium commonly used for software exchange. Nonetheless, the Software is designed and provided to you under a single License as a single product for use by a number of client seats or number of cores as permitted by this Agreement and any License.
3. RESTRICTIONS ON USE/DISCLOSURE
3.1 You may not copy the Software except (a) in connection with your licensed rights to use the same, and (b) for one copy which you make for archival/disaster-recovery purposes only.
3.2 You may not transfer your license to another user without Accusoft’s express written consent. Such consent shall not be unreasonably withheld, but you must not use it to circumvent the intent of the licensing requirement to limit access and use of the Software according to the number of Applications, Cores, and/or Client Seats specified on your License. Any such transferred copies shall retain all copyright and other proprietary legends where and as set forth in the original.
3.3 VirtualViewer includes Accusoft’s proprietary components and RasterMaster® technology, and Licensee’s use of such components and technology is strictly limited for use within VirtualViewer and may not be unbundled for other uses. For example, the underlying RasterMaster library may not be used to create a conversion application. Any such use would require a separate purchase of a RasterMaster SDK license and distribution licenses.
3.4 YOUR LICENSE TO THE SOFTWARE DOES NOT AUTHORIZE YOU TO, AND YOU MAY NOT AUTHORIZE A THIRD PARTY TO:
a) use the Software on behalf of any third party, including, without limitation, time-sharing, service bureau, lease, or other basis, except as otherwise explicitly permitted in this Agreement and any License;
b) modify, translate, or create derivative works based on the Software;
c) reverse engineer, decompile, or disassemble the Software, or otherwise attempt to determine the source code, logic, sequencing, or internal algorithms of the Software unless OSS Components are included whose license requires allowing these;
d) unbundle, strip out, or repackage the Software or any of its components for use on different computers, distribution, transfer, or resale except as may be expressly permitted herein;
e) merge, incorporate, or include the Software (or any portion thereof) with another product except to the extent permitted by this Agreement;
f) copy the Software, except as expressly provided herein;
g) remove, deface or obscure any copyright or other proprietary legends in or on the Software or OSS Components;
h) transfer, assign, or provide access to the Software (or any portion thereof) to any other person or entity without Accusoft’s express written consent ; or
i) use the Software to develop, integrate, market, or resell software applications, products, services or environments that are substantially similar to the Software in function or capabilities and therefore may compete with the Software.; or.
j) resell the Software as a stand-alone solution to End Users or to third parties either within or outside your organization without appropriate licensing.
3.5 You will take reasonable actions to restrict and control all use of the Software and to enforce all restrictions of use set forth in this Agreement.
3.6 Video Technologies Distribution. Software may contain video compression/decompression technologies such as H.265 that are covered by third-party patents. If so, Accusoft has obtained patent licenses covering Accusoft’s distribution of Software. However Accusoft’s licenses do not extend to your product. You are responsible for obtaining any required third-party patent licenses for distribution of your product containing any portions of Software that include these technologies. You will indemnify and hold Accusoft harmless from any and all patent claims that arise from distribution of your product containing any portions of Software that include these technologies.
3.7 All rights to use the Software are conditional and are immediately forfeited and terminated if you fail to comply with the terms of this Agreement.
4. SOFTWARE MAINTENANCE AND SUPPORT SERVICES
Except for subscription licenses, software maintenance and support services for the Software are not included in the price of the Software license but may be obtained separately at additional cost. For subscription licenses, Maintenance and Support Services are included with the Software subscription and in such cases the fees for the Maintenance and Support Services are included in the price of the Software as set forth on Accusoft’s invoice to Licensee related to the purchase of such Software license.
5. PAYMENT TERMS
Invoices are due and payable upon receipt and before product delivery unless Accusoft agrees to payment terms. Should Accusoft agree to payment terms, late payments shall be subject to a service charge equal to 1 ½% per month of the amount due or the maximum amount allowed by law, whichever is less (“Late Payment”). If any Late Payment charges are not paid as part of the Late Payment, then the Late Payment charges are themselves a Late Payment under the terms of this Agreement. During any period when there is an unpaid Late Payment, in addition to all other remedies available to Accusoft, any and all annual Maintenance and Support Services that would otherwise be available under this Agreement shall be suspended and shall not be provided to Customer. Customer shall have no right of refund, offset, or any claim of breach or damages of any kind resulting from this suspension.
License fees are non-refundable except as expressly provided herein. License and service fees are stated in U.S. dollars, exclusive of all applicable taxes, duties, or other governmental assessments. Licensee shall be liable for the payment of all such assessments (other than taxes based on Accusoft’s income) and shall indemnify Accusoft and pay directly or reimburse Accusoft for any penalties imposed on Accusoft by any applicable governmental entity as a result of Licensee’s failure to timely pay such assessments.
6. DISTRIBUTION REPORTS
6.1 Primary Contact Responsible for Reporting Distributions. You agree to identify a Primary Contact who shall have primary responsibility for the License and for receiving emailed Distribution reminder notices and for submitting all “Distribution Reports” of the number of Distribution Licenses used or distributed and reported according to the process further described herein. You may not change the Primary Contact without written notice to Accusoft.
6.2 Obligation to Report Distributions. During the term of this Agreement, you are required to submit distribution reports (“Distribution Reports,” or “Reports”) stating the number of Client Seat(s)/Core(s) that have been used during the previous calendar year, and you are required to pay additional license fees for Distributions that exceed the number purchased. Submission of these Reports is a material obligation of this License: a) whether the Software is Distributed externally or distributed internally within your organization, b) whether or not any additional license fees are due, c) whether or not the Software is under an active agreement for Maintenance and Support Services, or d) whether or not you made Distributions of the Software in the previous reporting period. If you have not made any Distributions since you were granted this license, you should also note that fact in your Distribution Report.
6.3 Excess Distribution. If you Distribute a number of licenses greater than the number of licenses granted to you, the excess licenses will be considered purchased in arrears, the twenty-five percent (25%) pre-distribution purchase discount built into the price list will not apply, and any other discounts that would normally apply to pre-distribution purchase of such Distribution licenses will not be offered.
6.4 Distribution Reminder Process and Due Dates. Reports are due within thirty (30) days following the end of each calendar year. Such Reports shall be due whether or not there have been any Distributions or other changes during the period covered by the report or whether or not any license fees are due. You shall submit Reports via an online form located at https://www.accusoft.com/LicenseReporting, or via email to firstname.lastname@example.org. As a convenience to you prior to each upcoming annual deadline, Accusoft will ordinarily send you an email reminder (“Reminder”) of this ongoing reporting obligation. It is your responsibility to ensure that email@example.com is added to your email system as a safe sender, and to notify Accusoft of any change to the Primary Contact to ensure that you receive Reminders. However you are required to submit Distribution Reports on this schedule even if you do not receive any reminder.
6.5 Effects of Violation. If you do not comply with the Reporting obligation of this license, Accusoft will attempt to send you commercially reasonable notice of this violation, and Accusoft will make a commercially reasonable effort to discuss the violation with you and to resolve such violation as a business matter (all of which may be sent via email to your Primary Contact). If, despite the foregoing, you fail to cure the violation, Accusoft shall have the right in its sole discretion to take any of the following actions: (i) cease to provide current maintenance and support services to you even if you have a current agreement for such services, (ii) refuse to offer additional licenses to you, or (iii) terminate this Agreement and any License pursuant to the terms of Section 9 (“Termination”) below.
6.6 Accusoft’s Right to Audit. Accusoft shall have the right, during regular business hours and upon reasonable notice, to audit your use of the Software and all relevant Distribution records to ensure compliance with the terms hereof.
7. TRADEMARKS; COPYRIGHTS; PUBLICITY
7.1 Any use of Accusoft’s trademarks or the trademarks of its licensors, whether registered or unregistered, without the express written authorization of Accusoft is prohibited.
7.2 Trademark and copyright notices for third party components are set forth in the Software.
7.3 Accusoft may identify you as a licensee in its marketing and promotional materials and activities.
8. US GOVERNMENT RESTRICTED RIGHTS
The Software is provided to United States federal agencies with RESTRICTED RIGHTS. The use, duplication or disclosure of the Software by the United States Government is subject to restrictions as set forth under subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause of DFARS 252.227 –19 or subparagraphs (c)(i) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227 – 19 as applicable. The Manufacturer is Accusoft Corporation, 4001 N. Riverside Drive, Tampa, FL 33603, USA.
9. COMPLIANCE WITH LAWS; EXPORT CONTROL
You agree that you will not download, upload, or otherwise export or re-export the Software or any portion thereof outside of the country into which delivery was made, as indicated by this Agreement and any License or on the applicable purchase order or sales order for the software license, or use the Software in violation of any applicable state, Federal or other applicable country or jurisdiction laws or regulations, including, without limitation, the export control laws of the United States Export Administration Act or any other export laws, restrictions, or regulations of any Federal agency of the United States (collectively, the “Export Laws”). In addition, if the Software is identified as an export-controlled item under the Export Laws, you represent and warrant that you are not a citizen of, or located within, an embargoed or otherwise restricted nation, and that you are not otherwise prohibited under the Export Laws from receiving the Software.
10.1 You acknowledge and agree that this Agreement (including your license to access, possess, and use the Software) shall terminate immediately and automatically in the event that (a) you cease paying your debts as they become due, (b) you enter into bankruptcy, insolvency, receivership or similar proceedings, or (c) you breach any term(s) of this Agreement, and (i) such breach is not by its nature curable, or (ii) you do not cure the breach within thirty (30) business days following your becoming aware of the same unless, after said thirty (30) days, you and Accusoft are engaged in good faith business discussions to cure the apparent breach and you ultimately resolve it to Accusoft’s reasonable satisfaction.
10.2 You may also elect to terminate this Agreement unilaterally at any time provided written notice is provided to Accusoft within thirty (30) business days of such event.
10.3 In the event of termination of this Agreement for any reason, you agree to promptly destroy all copies of the Software then in your possession or control, provide written confirmation of such destruction to Accusoft, and immediately cease all new manufacture and new internal and external distributions of the Software.
11. NO WARRANTY
You acknowledge that you have had the opportunity to test and evaluate the Software and that you hereby assume all risk and liability with respect to your decision to accept the license and use the Software. WITHOUT LIMITING THE FOREGOING, YOU UNDERSTAND AND AGREE THAT THE SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND, AND THAT, ACCUSOFT AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED WITH RESPECT TO THE SOFTWARE, INCLUDING, WTHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THOSE WHICH MAY BE IMPLIED THROUGH COURSE OF DEALING OR CUSTOM OF TRADE. WITHOUT LIMITING THE FOREGOING, YOU UNDERSTAND THAT ACCUSOFT DOES NOT WARRANT THAT YOUR OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL DEFECTS IN THE SOFTWARE WILL BE CORRECTED.
If implied warranties may not be disclaimed under applicable law, then SUCH IMPLIED WARRANTIES ARE LIMITED IN DURATION TO ninety (90) days FROM THE PURCHASE DATE of the Software license. Some states do not allow limitations on how long an implied warranty may last, so the above limitations may not apply to you.
12. LIMITATION ON LIABILITY
12.1 IN NO EVENT AND UNDER NO THEORY OF LAW, EQUITY, TORT, CONTRACT, OR OTHERWISE, SHALL ACCUSOFT OR ANY OF ITS SUPPLIERS BE LIABLE TO YOU OR ANY OTHER PERSON FOR (1) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA OR REVENUES, BUSINESS INTERRUPTION, OR COSTS OF COVER, LOSS OF GOOD WILL, OR SYSTEM DAMAGE, IN EACH CASE ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THIS AGREEMENT, EVEN IF ACCUSOFT OR ITS SUPPLIERS HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (2) DAMAGES OF ANY KIND IN EXCESS OF THE AMOUNT PAID BY YOU FOR THE SOFTWARE LICENSE ASSOCIATED WITH SUCH DAMAGES.
12.2 THE SOFTWARE IS NOT FAULT-TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN ON-LINE CONTROL EQUIPMENT OR SOFTWARE APPLICATIONS IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, INCLUDING, BUT NOT LIMITED TO, IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, OR AIR TRAFFIC CONTROL, OR WEAPONS SYSTEMS, OR DIRECT LIFE SUPPORT MACHINES, IN WHICH THE FAILURE OR INACCURACY OF THE SOFTWARE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE ("HIGH RISK ACTIVITIES"). ACCUSOFT AND ITS SUPPLIER(S) SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH-RISK ACTIVITIES.
12.3 You agree that this Agreement fairly allocates the risks between you and Accusoft, and that the terms of this Agreement, including the license fees to be paid for the Software, reflect the limited warranties, limitations of liability, and allocation of risk assumed by each party hereunder.
13. GENERAL; GOVERNING LAW; DISPUTE RESOLUTION
This Agreement shall be governed by and construed in accordance with the laws of the State of Florida without regard to conflicts of law provisions. You hereby consent to the exclusive jurisdiction of the state and federal courts sitting in the State of Florida and waive all objections to such venue, including the objection of forum non conveniens. You and Accusoft voluntarily and expressly agree that the United Nations Convention of Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to and are expressly excluded from any interpretation of this Agreement. In any matter brought to enforce this Agreement, the prevailing party may recover from the other its costs and reasonable attorney’s fees incurred, it being understood and agreed that prior to initiating any action, the parties will try to resolve any disputes through good faith discussions at the appropriate level.
Delivery of the Software and Documentation shall be via electronic download.
15. ENTIRE AGREEMENT; CONSTRUCTION
15.1 This Agreement constitutes the entire understanding between Accusoft and you with respect to your access to, possession of and use of the Software and supersedes any prior communications, representations, and agreements with respect to the same.
15.2 This Agreement may be modified only by a written agreement signed by you and Accusoft. No terms in any purchase order or other document delivered by you shall be deemed to amend the terms of this Agreement and any such additional or inconsistent terms shall be deemed unacceptable to and rejected by Accusoft.
15.3 If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable consistent with its original intent and economic effect; if such reformation is not possible, then the term shall be deemed severed. In either event, the other terms in this Agreement shall remain in full force and effect.
15.4 No waiver of a term or condition in this Agreement shall be effective unless in writing and signed by the waiving party; any such waiver shall be limited to the scope and terms of such written instrument.
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