IMPORTANT: READ CAREFULLY
Two license agreements are presented below.
1. Kalimetrix License Agreement for Evaluation of Programs
2. Kalimetrix International Program License Agreement
If you are obtaining the Program for purposes of
productive use (other than evaluation, testing, trial "try or buy,"
or demonstration): By clicking on the "Accept" button below, You
accept the Kalimetrix International Program License Agreement, without
modification.
If you are obtaining the Program for the purpose of evaluation, testing, trial
"try or buy," or demonstration (collectively, an
"Evaluation"): By clicking on the "Accept" button below,
You accept both (i) the KALIMETRIX International
License Agreement for Evaluation of Programs (the "Evaluation
License"), without modification; and (ii) the Kalimetrix International
Program License Agreement (the "KPLA"), without modification.
The Evaluation License will apply during the term of Your Evaluation.
The KPLA will automatically apply if You elect to
retain the Program after the Evaluation (or obtain additional copies of the
Program for use after the Evaluation) by entering into a procurement agreement
(e.g., the KALIMETRIX International Passport Advantage or the KALIMETRIX
Passport Advantage Express agreements).
The Evaluation License and the KPLA are not in effect concurrently; neither
modifies the other; and each is independent of the other.
The complete text of each of these two license agreements
follow.
International License Agreement for Evaluation of Programs
Part 1 - General Terms
BY DOWNLOADING, INSTALLING, COPYING, ACCESSING, OR USING THE PROGRAM YOU AGREE
TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF
ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT
THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO
THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS,
- DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, OR USE THE PROGRAM; AND
- PROMPTLY RETURN THE PROGRAM TO THE PARTY FROM WHOM YOU ACQUIRED IT. IF YOU
DOWNLOADED THE PROGRAM, CONTACT THE PARTY FROM WHOM YOU ACQUIRED IT.
"License Information" ("LI") is a document that provides
information specific to a Program. The Program's LI is available in a file in
the Program's directory, by the use of a system command, or as a booklet which
accompanies the Program. The LI may also be found at http://www.Kalimetrix.com/software/sla/ .
"Program" is the following, including the original and all whole or partial
copies: 1) machine-readable instructions and data, 2) components, 3)
audio-visual content (such as images, text, recordings, or pictures), 4)
related licensed materials, and 5) license use documents or keys, and
documentation.
"You" and "Your" refer either to an individual person or to
a single legal entity.
This Agreement includes Part 1 - General Terms, Part 2 - Country-unique Terms
(if any), and License Information and is the complete agreement between You and
KALIMETRIX regarding the use of the Program. It replaces any prior oral or
written communications between You and KALIMETRIX
concerning Your use of the Program. The terms of Part 2 and License Information
may replace or modify those of Part 1.
1. Entitlement
License
The Program is owned by KALIMETRIX or an KALIMETRIX
supplier, and is copyrighted and licensed, not sold.
KALIMETRIX grants You a nonexclusive license to use
the Program when You lawfully acquire it.
You may 1) use the Program only for internal evaluation, testing, or
demonstration purposes, on a trial or "try-and-buy" basis; and 2)
make and install a reasonable number of copies, including a backup copy, of the
Program to support such use. The terms of this license apply to each copy You make. You will reproduce all copyright notices and all
other legends of ownership on each copy, or partial copy, of the Program.
THE PROGRAM MAY CONTAIN A DISABLING DEVICE THAT WILL PREVENT IT FROM BEING USED
AFTER THE EVALUATION PERIOD ENDS. YOU WILL NOT TAMPER WITH THIS DISABLING
DEVICE OR THE PROGRAM. YOU SHOULD TAKE PRECAUTIONS TO AVOID ANY LOSS OF DATA
THAT MIGHT RESULT WHEN THE PROGRAM CAN NO LONGER BE USED.
You will 1) maintain a record of all copies of the Program and 2) ensure that
anyone who uses the Program (accessed either locally or remotely) does so only
for Your authorized use and complies with the terms of
this Agreement.
You may not 1) use, copy, modify or distribute the Program except as provided
in this Agreement; 2) reverse assemble, reverse compile, or otherwise translate
the Program except as specifically permitted by law without the possibility of
contractual waiver; or 3) sublicense, rent, or lease the Program.
The evaluation period begins when You agree to the terms of this Agreement and
ends 1) as of the duration or date specified in the License Information, or 2)
when the Program automatically disables itself. There is no charge for the use
of the Program for the duration of the evaluation period. Unless KALIMETRIX
specifies in the License Information that You may
retain the Program, You will destroy the Program and all copies made of it
within ten days of the end of the evaluation period. If KALIMETRIX specifies
that You may retain the Program, and You elect to do
so, the Program will be then subject to a different license agreement, that
will be provided to You at that time. In addition, a charge may apply.
KALIMETRIX may terminate Your license if You fail to
comply with the terms of this Agreement. If KALIMETRIX does so, You must destroy all copies of the Program.
2. No Warranty
SUBJECT TO ANY STATUTORY WARRANTIES WHICH CANNOT BE EXCLUDED, KALIMETRIX MAKES
NO WARRANTIES OR CONDITIONS EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, REGARDING THE PROGRAM OR
TECHNICAL SUPPORT, IF ANY.
The exclusion also applies to any of KALIMETRIX's Program developers and
suppliers.
Manufacturers, suppliers, or publishers of non-KALIMETRIX Programs may provide
their own warranties.
KALIMETRIX does not provide technical support, unless KALIMETRIX specifies otherwise.
3. Limitation of Liability
Circumstances may arise where, because of a default on KALIMETRIX's part or
other liability, You are entitled to recover damages
from KALIMETRIX. In each such instance, regardless of the basis on which You
may be entitled to claim damages from KALIMETRIX, (including fundamental
breach, negligence, misrepresentation, or other contract or tort claim), KALIMETRIX
is liable for no more than 1) damages for bodily injury (including death) and
damage to real property and tangible personal property and 2) the amount of any
other actual direct damages up to the charges for the Program that is the
subject of the claim.
This limitation of liability also applies to KALIMETRIX's Program developers
and suppliers. It is the maximum for which they and KALIMETRIX are collectively
responsible.
UNDER NO CIRCUMSTANCES IS KALIMETRIX, ITS PROGRAM DEVELOPERS OR SUPPLIERS
LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY:
1. LOSS OF, OR DAMAGE TO, DATA;
2. SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL
DAMAGES; OR
3. LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR
CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO
YOU.
4. General
1. Nothing in this Agreement affects any statutory rights of consumers that
cannot be waived or limited by contract.
2. In the event that any provision of this Agreement is held to be invalid or
unenforceable, the remaining provisions of this Agreement remain in full force
and effect.
3. You may not export the Program.
4. You agree to allow KALIMETRIX to store and use Your
contact information, including names, phone numbers, and e-mail addresses,
anywhere they do business. Such information will be processed and used in
connection with our business relationship, and may be provided to contractors,
Business Partners, and assignees of KALIMETRIX for uses consistent with their
collective business activities, including communicating with You (for example,
for processing orders, for promotions, and for market research).
5. Neither You nor KALIMETRIX will bring a legal action under this Agreement
more than two years after the cause of action arose unless otherwise provided
by local law without the possibility of contractual waiver or limitation.
6. Neither You nor KALIMETRIX is responsible for failure to fulfill any
obligations due to causes beyond its control.
7. This Agreement will not create any right or cause of action for any third
party, nor will KALIMETRIX be responsible for any third party claims against You except, as permitted by the Limitation of Liability
section above, for bodily injury (including death) or damage to real or
tangible personal property for which KALIMETRIX is legally liable.
5. Governing Law, Jurisdiction, and Arbitration
Governing Law
Both You and KALIMETRIX consent to the application of the laws of the country
in which You acquired the Program license to govern, interpret, and enforce all
of Your and KALIMETRIX's rights, duties, and obligations arising from, or
relating in any manner to, the subject matter of this Agreement, without regard
to conflict of law principles.
The United Nations Convention on Contracts for the International Sale of Goods
does not apply.
Jurisdiction
All of our rights, duties, and obligations are subject to the courts of the
country in which You acquired the Program license.
Part 2 - Country-unique Terms
AMERICAS
ARGENTINA: Governing Law, Jurisdiction, and Arbitration (Section 5): The
following exception is added to this section:
Any litigation arising from this Agreement will be settled exclusively by the
Ordinary Commercial Court of the city of Buenos Aires.
BRAZIL: Governing Law, Jurisdiction, and Arbitration (Section 5): The following
exception is added to this section:
Any litigation arising from this Agreement will be settled exclusively by the
court of Rio de Janeiro, RJ.
CANADA: Limitation of Liability (Section 3): The following replaces item 1 in
the first paragraph of this section:
1) damages for bodily injury (including death) and physical harm to real
property and tangible personal property caused by KALIMETRIX's negligence; and
General (Section 4): The following replaces the terms in item 7:
7. This Agreement will not create any right or cause of action for any third
party, nor will KALIMETRIX be responsible for any third party claims against
You except as permitted by the Limitation of Liability section above for bodily
injury (including death) or physical harm to real or tangible personal property
caused by KALIMETRIX's negligence for which KALIMETRIX is legally liable.
Governing Law, Jurisdiction, and Arbitration (Section 5): The phrase "the
laws of the country in which You acquired the Program license" in the
Governing Law subsection is replaced by the following:
the laws in the Province of Ontario
PERU: Limitation of Liability (Section 3): The following is added at the end of
this section:
In accordance with Article 1328 of the Peruvian Civil Code, the limitations and
exclusions specified in this section will not apply to damages caused by KALIMETRIX's
willful misconduct ("dolo") or gross
negligence ("culpa inexcusable").
UNITED STATES OF AMERICA: General (Section 4): The following is added to this
section:
U.S. Government Users Restricted Rights - Use, duplication or disclosure
restricted by the GSA ADP Schedule Contract with the KALIMETRIX Corporation.
Governing Law, Jurisdiction, and Arbitration (Section 5): The phrase "the
laws of the country in which You acquired the Program license" in the
Governing Law subsection is replaced by the following:
the laws of the State of New York, United States of America
ASIA PACIFIC
AUSTRALIA: No Warranty (Section 2): The following is added:
Although KALIMETRIX specifies that there are no warranties, You may have
certain rights under the Trade Practices Act 1974 or other legislation and are
only limited to the extent permitted by the applicable legislation.
Limitation of Liability (Section 3): The following is added:
Where KALIMETRIX is in breach of a condition or warranty implied by the Trade
Practices Act 1974, KALIMETRIX's liability is limited to the repair or
replacement of the goods, or the supply of equivalent goods. Where that
condition or warranty relates to right to sell, quiet possession or clear
title, or the goods are of a kind ordinarily acquired for personal, domestic or
household use or consumption, then none of the
limitations in this paragraph apply.
Governing Law, Jurisdiction, and Arbitration (Section 5): The phrase "the
laws of the country in which You acquired the Program license" in the
Governing Law subsection is replaced by the following:
the laws of the State or Territory in which You acquired the Program license
CAMBODIA, LAOS, and VIETNAM: Governing Law, Jurisdiction, and Arbitration
(Section 5): The phrase "the laws of the country in which You acquired the
Program license" in the Governing Law subsection is replaced by the
following:
the laws of the State of New York, United States of America
The following is added to this section:
Arbitration
Disputes arising out of or in connection with this Agreement shall be finally
settled by arbitration which shall be held in Singapore in accordance with the
Arbitration Rules of Singapore International Arbitration Center ("SIAC
Rules") then in effect. The arbitration award shall be final and binding
for the parties without appeal and shall be in writing and set forth the
findings of fact and the conclusions of law.
The number of arbitrators shall be three, with each side to the dispute being
entitled to appoint one arbitrator. The two arbitrators appointed by the parties
shall appoint a third arbitrator who shall act as chairman of the proceedings.
Vacancies in the post of chairman shall be filled by the president of the SIAC.
Other vacancies shall be filled by the respective nominating party. Proceedings
shall continue from the stage they were at when the vacancy occurred.
If one of the parties refuses or otherwise fails to appoint an arbitrator
within 30 days of the date the other party appoints its, the first appointed
arbitrator shall be the sole arbitrator, provided that the arbitrator was
validly and properly appointed.
All proceedings shall be conducted, including all documents presented in such
proceedings, in the English language. The English language version of this
Agreement prevails over any other language version.
HONG KONG S.A.R. and MACAU S.A.R. of China: Governing Law, Jurisdiction, and
Arbitration (Section 5): The phrase "the laws of the country in which You
acquired the Program license" in the Governing Law subsection is replaced
by the following:
the laws of Hong Kong Special Administrative Region of China
INDIA: Limitation of Liability (Section 3): The following replaces the terms of
items 1 and 2 of the first paragraph:
1) liability for bodily injury (including death) or damage to real property and
tangible personal property will be limited to that caused by KALIMETRIX's
negligence; and 2) as to any other actual damage arising in any situation
involving nonperformance by KALIMETRIX pursuant to, or in any way related to
the subject of this Agreement, KALIMETRIX's liability will be limited to the
charge paid by You for the individual Program that is the subject of the claim.
General (Section 4): The following replaces the terms of item 5:
If no suit or other legal action is brought, within three years after the cause
of action arose, in respect of any claim that either party may have against the
other, the rights of the concerned party in respect of such claim will be
forfeited and the other party will stand released from its obligations in
respect of such claim.
Governing Law, Jurisdiction, and Arbitration (Section 5): The following is
added to this section:
Arbitration
Disputes arising out of or in connection with this Agreement shall be finally
settled by arbitration which shall be held in Bangalore, India in accordance
with the laws of India then in effect. The arbitration award shall be final and
binding for the parties without appeal and shall be in writing and set forth
the findings of fact and the conclusions of law.
The number of arbitrators shall be three, with each side to the dispute being
entitled to appoint one arbitrator. The two arbitrators appointed by the
parties shall appoint a third arbitrator who shall act as chairman of the
proceedings. Vacancies in the post of chairman shall be filled by the president
of the Bar Council of India. Other vacancies shall be filled by the respective
nominating party. Proceedings shall continue from the stage they were at when
the vacancy occurred.
If one of the parties refuses or otherwise fails to appoint an arbitrator
within 30 days of the date the other party appoints its, the first appointed
arbitrator shall be the sole arbitrator, provided that the arbitrator was
validly and properly appointed.
All proceedings shall be conducted, including all documents presented in such
proceedings, in the English language. The English language version of this
Agreement prevails over any other language version.
JAPAN: General (Section 4): The following is inserted after item 5:
Any doubts concerning this Agreement will be initially resolved between us in
good faith and in accordance with the principle of mutual trust.
MALAYSIA: Limitation of Liability (Section 3): The word "SPECIAL" in
item 2 of the third paragraph is deleted:
NEW ZEALAND: No Warranty (Section 2): The following is added:
Although KALIMETRIX specifies that there are no warranties, You may have
certain rights under the Consumer Guarantees Act 1993 or other legislation
which cannot be excluded or limited. The Consumer Guarantees Act 1993 will not
apply in respect of any goods which KALIMETRIX provides, if You
require the goods for the purposes of a business as defined in that Act.
Limitation of Liability (Section 3): The following is added:
Where Programs are not acquired for the purposes of a business as defined in
the Consumer Guarantees Act 1993, the limitations in this Section are subject
to the limitations in that Act.
PEOPLE'S REPUBLIC OF CHINA: Governing Law, Jurisdiction, and Arbitration
(Section 5): The phrase "the laws of the country in which You acquired the
Program license" in the Governing Law subsection is replaced by the
following:
the laws of the State of New York, United States of America (except when local
law requires otherwise)
PHILIPPINES: Limitation of Liability (Section 3): The following replaces the
terms of item 2 of the third paragraph:
2. special (including nominal and exemplary damages), moral, incidental, or
indirect damages or for any economic consequential damages; or
Governing Law, Jurisdiction, and Arbitration (Section 5): The following is
added to this section:
Arbitration
Disputes arising out of or in connection with this Agreement shall be finally
settled by arbitration which shall be held in Metro Manila, Philippines in
accordance with the laws of the Philippines then in effect. The arbitration
award shall be final and binding for the parties without appeal and shall be in
writing and set forth the findings of fact and the conclusions of law.
The number of arbitrators shall be three, with each side to the dispute being
entitled to appoint one arbitrator. The two arbitrators appointed by the
parties shall appoint a third arbitrator who shall act as chairman of the
proceedings. Vacancies in the post of chairman shall be filled by the president
of the Philippine Dispute Resolution Center, Inc. Other vacancies shall be
filled by the respective nominating party. Proceedings shall continue from the
stage they were at when the vacancy occurred.
If one of the parties refuses or otherwise fails to appoint an arbitrator
within 30 days of the date the other party appoints its, the first appointed
arbitrator shall be the sole arbitrator, provided that the arbitrator was
validly and properly appointed.
All proceedings shall be conducted, including all documents presented in such
proceedings, in the English language. The English language version of this
Agreement prevails over any other language version.
SINGAPORE: Limitation of Liability (Section 3): The words "SPECIAL"
and "ECONOMIC" are deleted from item 2 of the third paragraph.
General (Section 4): The following replaces the terms of item 7:
Subject to the rights provided to KALIMETRIX's suppliers and Program developers
as provided in Section 4 above (Limitation of Liability), a person who is not a
party to this Agreement shall have no right under the Contracts (Right of Third
Parties) Act to enforce any of its terms.
EUROPE, MIDDLE EAST, AFRICA (EMEA)
No Warranty (Section 2): In the European Union, the following is added at the
beginning of this section:
In the European Union, consumers have legal rights under applicable national
legislation governing the sale of consumer goods. Such rights are not affected
by the provisions of this Section 3.
Limitation of Liability (Section 3): In Austria, Denmark, Finland, Greece,
Italy, Netherlands, Norway, Portugal, Spain, Sweden and Switzerland, the
following replaces the terms of this section in its entirety:
Except as otherwise provided by mandatory law:
1. KALIMETRIX's liability for any damages and losses that may arise as a
consequence of the fulfillment of its obligations under or in connection with
this agreement or due to any other cause related to this agreement is limited
to the compensation of only those damages and losses proved and actually
arising as an immediate and direct consequence of the non-fulfillment of such
obligations (if KALIMETRIX is at fault) or of such cause, for a maximum amount
equal to the charges You paid for the Program.
The above limitation shall not apply to damages for bodily injuries (including
death) and damages to real property and tangible personal property for which KALIMETRIX
is legally liable.
2. UNDER NO CIRCUMSTANCES IS KALIMETRIX, OR ANY OF ITS PROGRAM DEVELOPERS,
LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY: 1) LOSS
OF, OR DAMAGE TO, DATA; 2) INCIDENTAL OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC
CONSEQUENTIAL DAMAGES; 3) LOST PROFITS, EVEN IF THEY ARISE AS AN IMMEDIATE
CONSEQUENCE OF THE EVENT THAT GENERATED THE DAMAGES; OR 4) LOSS OF BUSINESS,
REVENUE, GOODWILL, OR ANTICIPATED SAVINGS.
3. The limitation and exclusion of liability herein agreed applies not only to
the activities performed by KALIMETRIX but also to the activities performed by
its suppliers and Program developers, and represents the maximum amount for
which KALIMETRIX as well as its suppliers and Program developers, are
collectively responsible.
Limitation of Liability (Section 3): In France and Belgium, the following
replaces the terms of this section in its entirety:
Except as otherwise provided by mandatory law:
1. KALIMETRIX's liability for any damages and losses that may arise as a
consequence of the fulfillment of its obligations under or in connection with
this agreement is limited to the compensation of only those damages and losses
proved and actually arising as an immediate and direct consequence of the non-
fulfillment of such obligations (if KALIMETRIX is at fault), for a maximum
amount equal to the charges You paid for the Program that has caused the
damages.
The above limitation shall not apply to damages for bodily injuries (including
death) and damages to real property and tangible personal property for which KALIMETRIX
is legally liable.
2. UNDER NO CIRCUMSTANCES IS KALIMETRIX, OR ANY OF ITS PROGRAM DEVELOPERS,
LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY: 1) LOSS
OF, OR DAMAGE TO, DATA; 2) INCIDENTAL OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC
CONSEQUENTIAL DAMAGES; 3) LOST PROFITS, EVEN IF THEY ARISE AS AN IMMEDIATE
CONSEQUENCE OF THE EVENT THAT GENERATED THE DAMAGES; OR 4) LOSS OF BUSINESS,
REVENUE, GOODWILL, OR ANTICIPATED SAVINGS.
3. The limitation and exclusion of liability herein agreed applies not only to
the activities performed by KALIMETRIX but also to the activities performed by
its suppliers and Program developers, and represents the maximum amount for
which KALIMETRIX as well as its suppliers and Program developers, are
collectively responsible.
Governing Law, Jurisdiction, and Arbitration (Section 5)
Governing Law
The phrase "the laws of the country in which You acquired the Program
license" is replaced by:
1) "the laws of Austria" in Albania, Armenia, Azerbaijan, Belarus,
Bosnia-Herzegovina, Bulgaria, Croatia, Georgia, Hungary, Kazakhstan,
Kyrgyzstan, FYR Macedonia, Moldavia, Poland, Romania, Russia, Slovakia,
Slovenia, Tajikistan, Turkmenistan, Ukraine, Uzbekistan, and FR Yugoslavia;
2) "the laws of France" in Algeria, Benin, Burkina Faso, Cameroon,
Cape Verde, Central African Republic, Chad, Comoros, Congo Republic, Djibouti,
Democratic Republic of Congo, Equatorial Guinea, French Guiana, French
Polynesia, Gabon, Gambia, Guinea, Guinea- Bissau, Ivory Coast, Lebanon,
Madagascar, Mali, Mauritania, Mauritius, Mayotte, Morocco, New Caledonia,
Niger, Reunion, Senegal, Seychelles, Togo, Tunisia, Vanuatu, and Wallis &
Futuna;
3) "the laws of Finland" in Estonia, Latvia, and Lithuania;
4) "the laws of England" in Angola, Bahrain, Botswana, Burundi,
Egypt, Eritrea, Ethiopia, Ghana, Jordan, Kenya, Kuwait, Liberia, Malawi, Malta,
Mozambique, Nigeria, Oman, Pakistan, Qatar, Rwanda, Sao Tome, Saudi Arabia,
Sierra Leone, Somalia, Tanzania, Uganda, United Arab Emirates, the United
Kingdom, West Bank/Gaza, Yemen, Zambia, and Zimbabwe; and
5) "the laws of South Africa" in South Africa, Namibia, Lesotho and
Swaziland.
Jurisdiction
The following exceptions are added to this section:
1) In Austria the choice of jurisdiction for all disputes arising out of this
Agreement and relating thereto, including its existence, will be the competent
court of law in Vienna, Austria (Inner-City);
2) in Angola, Bahrain, Botswana, Burundi, Egypt, Eritrea, Ethiopia, Ghana, Jordan,
Kenya, Kuwait, Liberia, Malawi, Malta, Mozambique, Nigeria, Oman, Pakistan,
Qatar, Rwanda, Sao Tome, Saudi Arabia, Sierra Leone, Somalia, Tanzania, Uganda,
United Arab Emirates, West Bank/Gaza, Yemen, Zambia, and Zimbabwe all disputes
arising out of this Agreement or related to its execution, including summary
proceedings, will be submitted to the exclusive jurisdiction of the English
courts;
3) in Belgium and Luxembourg, for all disputes arising out of this Agreement or
related to its interpretation or its execution, only the law and the courts of
the capital of the country in which Your registered office and/or commercial
office is located are competent;
4) in France, Algeria, Benin, Burkina Faso, Cameroon, Cape Verde, Central
African Republic, Chad, Comoros, Congo Republic, Djibouti, Democratic Republic
of Congo, Equatorial Guinea, French Guiana, French Polynesia, Gabon, Gambia,
Guinea, Guinea-Bissau, Ivory Coast, Lebanon, Madagascar, Mali, Mauritania,
Mauritius, Mayotte, Morocco, New Caledonia, Niger, Reunion, Senegal,
Seychelles, Togo, Tunisia, Vanuatu, and Wallis & Futuna all disputes
arising out of this Agreement or related to its violation or execution,
including summary proceedings, will be settled exclusively by the Commercial
Court of Paris;
5) in Russia all disputes arising out of or in relation to the interpretation,
the violation, the termination, the nullity of the execution of this Agreement
shall be settled by Arbitration Court of Moscow;
6) in South Africa, Namibia, Lesotho and Swaziland both of us agree to submit
all disputes relating to this Agreement to the jurisdiction of the High Court
in Johannesburg;
7) in Turkey all disputes arising out of or in connection with this Agreement
shall be resolved by the Istanbul Central (Sultanahmet)
Courts and Execution Directorates of Istanbul, the Republic of Turkey;
8) in each of the following specified countries, any legal claim arising out of
this Agreement will be brought before, and settled exclusively by, the
competent court of a) Athens for Greece, b) Tel Aviv-Jaffa for Israel, c) Milan
for Italy, d) Lisbon for Portugal, and e) Madrid for Spain; and
9) in the United Kingdom both of us agree to submit all disputes relating to
this Agreement to the jurisdiction of the English courts.
Arbitration
In Albania, Armenia, Azerbaijan, Belarus, Bosnia- Herzegovina, Bulgaria,
Croatia, Georgia, Hungary, Kazakhstan, Kyrgyzstan, FYR Macedonia, Moldavia,
Poland, Romania, Russia, Slovakia, Slovenia, Tajikistan, Turkmenistan, Ukraine,
Uzbekistan, and FR Yugoslavia all disputes arising out of this Agreement or
related to its violation, termination or nullity will be finally settled under
the Rules of Arbitration and Conciliation of the International Arbitral Center
of the Federal Economic Chamber in Vienna (Vienna Rules) by three arbitrators
appointed in accordance with these rules.
The arbitration will be held in Vienna, Austria, and the official language of
the proceedings will be English. The decision of the arbitrators will be final
and binding upon both parties. Therefore, pursuant to paragraph 598 (2) of the
Austrian Code of Civil Procedure, the parties expressly waive the application
of paragraph 595 (1) figure 7 of the Code. KALIMETRIX may, however, institute
proceedings in a competent court in the country of installation.
In Estonia, Latvia and Lithuania all disputes arising in connection with this
Agreement will be finally settled in arbitration that will be held in Helsinki,
Finland in accordance with the arbitration laws of Finland then in effect. Each
party will appoint one arbitrator. The arbitrators will then jointly appoint
the chairman. If arbitrators cannot agree on the chairman, then the Central
Chamber of Commerce in Helsinki will appoint the chairman.
AUSTRIA: General (Section 4): The following is added to item 4:
For purposes of this clause, contact information will also include information
about You as a legal entity, for example revenue data and other transactional
information.
GERMANY: Limitation of Liability (Section 3): The following paragraph is added
to this Section:
The limitations and exclusions specified in this Section will not apply to
damages caused by KALIMETRIX intentionally or by gross negligence.
General (Section 4): The following replaces the terms of item 5:
Any claims resulting from this Agreement are subject to a statute of limitation
of three years.
HUNGARY: Limitation of Liability (Section 3): The following is added at the end
of this section:
The limitation and exclusion specified herein shall not apply to liability for
a breach of contract damaging life, physical well-being, or health that has
been caused intentionally, by gross negligence, or by a criminal act.
The parties accept the limitations of liability as valid provisions and state
that the Section 314.(2) of the Hungarian Civil Code
applies as the acquisition price as well as other advantages arising out of the
present Agreement balance this limitation of liability.
IRELAND: No Warranty (Section 2): The following is added to this section:
Except as expressly provided in these terms and conditions, or section 12 of
the Sale of Goods Act 1893 (as amended by the Sale of Goods and Supply of
Services Act 1980 ("the 1980 Act")), all conditions and warranties
(express or implied, statutory or otherwise) are hereby excluded including,
without limitation, any warranties implied by the Sale of Goods Act 1893 as
amended by the 1980 Act (including, for the avoidance of doubt, section 39 of
the 1980 Act).
Limitation of Liability (Section 3): The following replaces the terms of this
section in its entirety:
For the purposes of this section, a "Default" means any act,
statement, omission, or negligence on the part of KALIMETRIX in connection
with, or in relation to, the subject matter of an Agreement in respect of which
KALIMETRIX is legally liable to You whether in contract or tort. A number of
Defaults which together result in, or contribute to, substantially the same
loss or damage will be treated as one Default occurring on the date of
occurrence of the last such Default.
Circumstances may arise where, because of a Default, You are entitled to
recover damages from KALIMETRIX. This section sets out the extent of KALIMETRIX's
liability and Your sole remedy.
1. KALIMETRIX will accept unlimited liability for (a) death or personal injury
caused by the negligence of KALIMETRIX, and (b) subject always to the Items for
Which KALIMETRIX is Not Liable below, for physical damage to Your
tangible property resulting from the negligence of KALIMETRIX.
2. Except as provided in item 1 above, KALIMETRIX's entire liability for actual
damages for any one Default will not in any event exceed the greater of 1) EUR
125,000, or 2) 125 percent of the amount You paid for
the Program directly relating to the Default. These limits also apply to any of
KALIMETRIX's suppliers and Program developers. They state the maximum for which
KALIMETRIX and such suppliers and Program developers are collectively
responsible.
Items for Which KALIMETRIX is Not Liable
Save with respect to any liability referred to in item 1 above, under no
circumstances is KALIMETRIX or any of its suppliers or Program developers
liable for any of the following, even if KALIMETRIX or they were informed of
the possibility of such losses:
1. loss of, or damage to, data;
2. special, indirect, or consequential loss; or
3. loss of profits, business, revenue, goodwill, or anticipated savings.
ITALY: General (Section 4): The following is added to this section:
KALIMETRIX and Customer (hereinafter, individually, "Party") shall
comply with all the obligations of the applicable provisions of law and/or
regulation on personal data protection. Each of the Parties will indemnify and
keep the other Party harmless from any damage, claim, cost or expense incurred
by the latter, directly and or indirectly, as a consequence of an infringement
of the other Party of the mentioned provisions of law and/or regulations.
SLOVAKIA: Limitation of Liability (Section 3): The following is added to the
end of the last paragraph:
The limitations apply to the extent they are not prohibited under Sections
373-386 of the Slovak Commercial Code.
General (Section 4): The terms of item 5 are replaced with the following:
THE PARTIES AGREE THAT, AS DEFINED BY APPLICABLE LOCAL LAW, ANY LEGAL OR OTHER
ACTION RELATED TO A BREACH OF THIS AGREEMENT MUST BE COMMENCED NO LATER THAN
FOUR YEARS FROM THE DATE ON WHICH THE CAUSE OF ACTION AROSE.
SWITZERLAND: General (Section 4): The following is added to item 4:
For purposes of this clause, contact information will also include information
about You as a legal entity, for example revenue data and other transactional
information.
UNITED KINGDOM: No Warranty (Section 2): The following replaces the first
sentence in the first paragraph of this section:
SUBJECT TO ANY STATUTORY WARRANTIES WHICH CANNOT BE EXCLUDED, KALIMETRIX MAKES
NO WARRANTY OR CONDITION EITHER EXPRESS OR IMPLIED, INCLUDING (WITHOUT
LIMITATION) THE IMPLIED WARRANTIES OF SATISFACTORY QUALITY, FITNESS FOR A
PARTICULAR PURPOSE, AND NON- INFRINGEMENT, REGARDING THE PROGRAM.
Limitation of Liability (Section 3): The following replaces the terms of this
section in its entirety:
For the purposes of this section, a "Default" means any act,
statement, omission, or negligence on the part of KALIMETRIX in connection
with, or in relation to, the subject matter of an Agreement in respect of which
KALIMETRIX is legally liable to You, whether in contract or tort. A number of
Defaults which together result in, or contribute to, substantially the same
loss or damage will be treated as one Default.
Circumstances may arise where, because of a Default, You are entitled to
recover damages from KALIMETRIX. This section sets out the extent of KALIMETRIX's
liability and Your sole remedy.
1. KALIMETRIX will accept unlimited liability for:
a. death or personal injury caused by the negligence of KALIMETRIX;
b. any breach of its obligations implied by Section 12 of the Sale of Goods Act
1979 or Section 2 of the Supply of Goods and Services Act 1982, or any
statutory modification or re- enactment of either such Section; and
c. subject always to the Items for Which KALIMETRIX is Not Liable below, for
physical damage to Your tangible property resulting from the negligence of KALIMETRIX.
2. KALIMETRIX's entire liability for actual damages for any one Default will
not in any event, except as provided in item 1 above, exceed the greater of 1)
Pounds Sterling 75,000, or 2) 125 percent of the amount You
paid for the Program directly relating to the Default. These limits also apply
to KALIMETRIX's suppliers and Program developers. They state the maximum for
which KALIMETRIX and such suppliers and Program developers are collectively
responsible.
Items for Which KALIMETRIX is Not Liable
Save with respect to any liability referred to in item 1 above, under no
circumstances is KALIMETRIX or any of its suppliers or Program developers
liable for any of the following, even if KALIMETRIX or they were informed of
the possibility of such losses:
1. loss of, or damage to, data;
2. special, indirect, or consequential loss; or
3. loss of profits, business, revenue, goodwill, or anticipated savings.
International Program License Agreement
Part 1 - General Terms
BY DOWNLOADING, INSTALLING, COPYING, ACCESSING, OR USING THE PROGRAM YOU AGREE
TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF
ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT
THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO
THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS,
- DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, OR USE THE PROGRAM; AND
- PROMPTLY RETURN THE PROGRAM AND PROOF OF ENTITLEMENT TO THE PARTY FROM WHOM
YOU ACQUIRED IT TO OBTAIN A REFUND OF THE AMOUNT YOU PAID. IF YOU DOWNLOADED
THE PROGRAM, CONTACT THE PARTY FROM WHOM YOU ACQUIRED IT.
"Program" is the following, including the original and all whole or
partial copies: 1) machine-readable instructions and data, 2) components, 3)
audio-visual content (such as images, text, recordings, or pictures), 4)
related licensed materials, and 5) license use documents or keys, and
documentation.
A "Proof of Entitlement" ("PoE")
is evidence of Your authorization to use a Program at
a specified level. That level may be measured, for example, by the number of
processors or users. The PoE is also evidence of Your eligibility for warranty, future upgrade prices, if
any, and potential special or promotional opportunities. If KALIMETRIX does not
provide You with a PoE, then KALIMETRIX may accept
the original paid sales receipt or other sales record from the party (either KALIMETRIX
or its reseller) from whom You acquired the Program, provided that it specifies
the name of the Program and the usage level acquired.
"You" and "Your" refer either to an individual person or to
a single legal entity.
This Agreement includes Part 1 - General Terms, Part 2 - Country-unique Terms
(if any), License Information, and Proof of Entitlement and is the complete
agreement between You and KALIMETRIX regarding the use
of the Program. It replaces any prior oral or written communications between You and KALIMETRIX concerning Your use of the Program. The
terms of Part 2 and License Information may replace or modify those of Part 1.
To the extent there is a conflict between the terms of this Agreement and those
of the KALIMETRIX International Passport Advantage Agreement, the terms of the
latter agreement prevail.
1. Entitlement
License
The Program is owned by KALIMETRIX or an KALIMETRIX
supplier, and is copyrighted and licensed, not sold.
KALIMETRIX grants You a nonexclusive license to use
the Program when You lawfully acquire it.
You may 1) use the Program up to the level of use specified in the PoE and 2) make and install copies, including a backup
copy, to support such use. The terms of this license apply to each copy You make. You will reproduce all copyright notices and all
other legends of ownership on each copy, or partial copy, of the Program.
If You acquire the Program as a program upgrade, after
You install the upgrade You may not use the Program from which You upgraded or
transfer it to another party.
You will ensure that anyone who uses the Program (accessed either locally or
remotely) does so only for Your authorized use and
complies with the terms of this Agreement.
You may not 1) use, copy, modify, or distribute the Program except as provided
in this Agreement; 2) reverse assemble, reverse compile, or otherwise translate
the Program except as specifically permitted by law without the possibility of
contractual waiver; or 3) sublicense, rent, or lease the Program.
KALIMETRIX may terminate Your license if You fail to
comply with the terms of this Agreement. If KALIMETRIX does so, You must destroy all copies of the Program and its PoE.
Money-back Guarantee
If for any reason You are dissatisfied with the
Program and You are the original licensee, You may obtain a refund of the
amount You paid for it, if within 30 days of Your invoice date You return the
Program and its PoE to the party from whom You
obtained it. If You downloaded the Program, You may
contact the party from whom You acquired it for instructions on how to obtain
the refund.
Program Transfer
You may transfer a Program and all of Your license
rights and obligations to another party only if that party agrees to the terms
of this Agreement. When You transfer the Program, You
must also transfer a copy of this Agreement, including the Program's PoE. After the transfer, You may
not use the Program.
2. Charges
The amount payable for a Program license is a one-time
charge.
One-time charges are based on the level of use acquired which is specified in
the PoE. KALIMETRIX does not give credits or refunds
for charges already due or paid, except as specified elsewhere in this
Agreement.
If You wish to increase the level of use, notify KALIMETRIX
or the party from whom You acquired it and pay any applicable charges.
If any authority imposes a duty, tax, levy or fee, excluding those based on KALIMETRIX's
net income, upon the Program, then You agree to pay
the amount specified or supply exemption documentation. You are responsible for
any personal property taxes for the Program from the date that You acquire it.
3. Limited Warranty
KALIMETRIX warrants that when the Program is used in the specified operating
environment it will conform to its specifications. The warranty applies only to
the unmodified portion of the Program. KALIMETRIX does not warrant
uninterrupted or error-free operation of the Program or that KALIMETRIX will
correct all Program defects. You are responsible for the results obtained from
the use of the Program.
KALIMETRIX provides You with access to KALIMETRIX
databases containing information on known Program defects, defect corrections,
restrictions, and bypasses at no additional charge. Consult the KALIMETRIX
Software Support Guide for further information at http://www.Kalimetrix. com. KALIMETRIX will maintain this information for at least
one year after the original licensee acquires the Program ("Warranty
Period").
If the Program does not function as warranted during the Warranty Period and
the problem cannot be resolved with information available in the KALIMETRIX
databases, You may return the Program and its PoE to the party (either KALIMETRIX or its reseller) from
whom You acquired it and receive a refund in the amount You paid. If You downloaded the Program, You may contact the party from
whom You acquired it for instructions on how to obtain the refund.
THESE WARRANTIES ARE YOUR EXCLUSIVE WARRANTIES AND REPLACE ALL OTHER WARRANTIES
OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF EXPRESS OR
IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. IN THAT EVENT, SUCH WARRANTIES ARE LIMITED IN DURATION TO THE
WARRANTY PERIOD. NO WARRANTIES APPLY AFTER THAT PERIOD. SOME STATES OR
JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS,
SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
THESE WARRANTIES GIVE YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER
RIGHTS WHICH VARY FROM STATE TO STATE OR JURISDICTION TO JURISDICTION.
4. Limitation of Liability
Circumstances may arise where, because of a default on KALIMETRIX's part or
other liability, You are entitled to recover damages
from KALIMETRIX. In each such instance, regardless of the basis on which You
may be entitled to claim damages from KALIMETRIX, (including fundamental
breach, negligence, misrepresentation, or other contract or tort claim), KALIMETRIX
is liable for no more than 1) damages for bodily injury (including death) and
damage to real property and tangible personal property and 2) the amount of any
other actual direct damages up to the charges for the Program that is the
subject of the claim.
This limitation of liability also applies to KALIMETRIX's Program developers
and suppliers. It is the maximum for which they and KALIMETRIX are collectively
responsible.
UNDER NO CIRCUMSTANCES IS KALIMETRIX, ITS PROGRAM DEVELOPERS OR SUPPLIERS
LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY:
1. LOSS OF, OR DAMAGE TO, DATA;
2. SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL
DAMAGES; OR
3. LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR
CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO
YOU.
5. General
1. Nothing in this Agreement affects any statutory rights of consumers that
cannot be waived or limited by contract.
2. In the event that any provision of this Agreement is held to be invalid or
unenforceable, the remaining provisions of this Agreement remain in full force
and effect.
3. You agree to comply with all applicable export and import laws and
regulations.
4. You agree to allow KALIMETRIX to store and use Your
contact information, including names, phone numbers, and e-mail addresses,
anywhere they do business. Such information will be processed and used in
connection with our business relationship, and may be provided to contractors,
Business Partners, and assignees of KALIMETRIX for uses consistent with their
collective business activities, including communicating with You (for example,
for processing orders, for promotions, and for market research).
5. Neither You nor KALIMETRIX will bring a legal action under this Agreement
more than two years after the cause of action arose unless otherwise provided
by local law without the possibility of contractual waiver or limitation.
6. Neither You nor KALIMETRIX is responsible for failure to fulfill any
obligations due to causes beyond its control.
7. This Agreement will not create any right or cause of action for any third
party, nor will KALIMETRIX be responsible for any third party claims against You except, as permitted by the Limitation of Liability
section above, for bodily injury (including death) or damage to real or
tangible personal property for which KALIMETRIX is legally liable.
6. Governing Law, Jurisdiction, and Arbitration
Governing Law
Both You and KALIMETRIX consent to the application of the laws of the country
in which You acquired the Program license to govern, interpret, and enforce all
of Your and KALIMETRIX's rights, duties, and obligations arising from, or relating
in any manner to, the subject matter of this Agreement, without regard to
conflict of law principles.
The United Nations Convention on Contracts for the International Sale of Goods
does not apply.
Jurisdiction
All of our rights, duties, and obligations are subject to the courts of the
country in which You acquired the Program license.
Part 2 - Country-unique Terms
AMERICAS
ARGENTINA: Governing Law, Jurisdiction, and Arbitration (Section 6): The
following exception is added to this section:
Any litigation arising from this Agreement will be settled exclusively by the
Ordinary Commercial Court of the city of Buenos Aires.
BRAZIL: Governing Law, Jurisdiction, and Arbitration (Section 6): The following
exception is added to this section:
Any litigation arising from this Agreement will be settled exclusively by the
court of Rio de Janeiro, RJ.
CANADA: General (Section 5): The following replaces item 7:
7. This Agreement will not create any right or cause of action for any third
party, nor will KALIMETRIX be responsible for any third party claims against
You except as permitted by the Limitation of Liability section above for bodily
injury (including death) or physical harm to real or tangible personal property
caused by KALIMETRIX's negligence for which KALIMETRIX is legally liable.
Governing Law, Jurisdiction, and Arbitration (Section 6): The phrase "the
laws of the country in which You acquired the Program license" in the
Governing Law subsection is replaced by the following:
the laws in the Province of Ontario
PERU: Limitation of Liability (Section 4): The following is added at the end of
this section:
In accordance with Article 1328 of the Peruvian Civil Code, the limitations and
exclusions specified in this section will not apply to damages caused by KALIMETRIX's
willful misconduct ("dolo") or gross
negligence ("culpa inexcusable").
UNITED STATES OF AMERICA: General (Section 5): The following is added to this
section:
U.S. Government Users Restricted Rights - Use, duplication or disclosure
restricted by the GSA ADP Schedule Contract with the KALIMETRIX Corporation.
Governing Law, Jurisdiction, and Arbitration (Section 6): The phrase "the
laws of the country in which You acquired the Program license" in the
Governing Law subsection is replaced by the following:
the laws of the State of New York, United States of America
ASIA PACIFIC
AUSTRALIA: Limited Warranty (Section 3): The following is added:
The warranties specified in this Section are in addition to any rights You may
have under the Trade Practices Act 1974 or other legislation and are only
limited to the extent permitted by the applicable legislation.
Limitation of Liability (Section 4): The following is added:
Where KALIMETRIX is in breach of a condition or warranty implied by the Trade
Practices Act 1974, KALIMETRIX's liability is limited to the repair or
replacement of the goods, or the supply of equivalent goods. Where that
condition or warranty relates to right to sell, quiet possession or clear
title, or the goods are of a kind ordinarily acquired for personal, domestic or
household use or consumption, then none of the
limitations in this paragraph apply.
Governing Law, Jurisdiction, and Arbitration (Section 6): The phrase "the
laws of the country in which You acquired the Program license" in the
Governing Law subsection is replaced by the following:
the laws of the State or Territory in which You acquired the Program license
CAMBODIA, LAOS, and VIETNAM: Governing Law, Jurisdiction, and Arbitration
(Section 6): The phrase "the laws of the country in which You acquired the
Program license" in the Governing Law subsection is replaced by the
following:
the laws of the State of New York, United States of America
The following is added to this section:
Arbitration
Disputes arising out of or in connection with this Agreement shall be finally
settled by arbitration which shall be held in Singapore in accordance with the
Arbitration Rules of Singapore International Arbitration Center ("SIAC
Rules") then in effect. The arbitration award shall be final and binding
for the parties without appeal and shall be in writing and set forth the
findings of fact and the conclusions of law.
The number of arbitrators shall be three, with each side to the dispute being
entitled to appoint one arbitrator. The two arbitrators appointed by the
parties shall appoint a third arbitrator who shall act as chairman of the
proceedings. Vacancies in the post of chairman shall be filled by the president
of the SIAC. Other vacancies shall be filled by the respective nominating
party. Proceedings shall continue from the stage they were at when the vacancy
occurred.
If one of the parties refuses or otherwise fails to appoint an arbitrator
within 30 days of the date the other party appoints its, the first appointed
arbitrator shall be the sole arbitrator, provided that the arbitrator was
validly and properly appointed.
All proceedings shall be conducted, including all documents presented in such
proceedings, in the English language. The English language version of this
Agreement prevails over any other language version.
HONG KONG S.A.R. and MACAU S.A.R. of China: Governing Law, Jurisdiction, and
Arbitration (Section 6): The phrase "the laws of the country in which You
acquired the Program license" in the Governing Law subsection is replaced
by the following:
the laws of Hong Kong Special Administrative Region of China
INDIA: Limitation of Liability (Section 4): The following replaces the terms of
items 1 and 2 of the first paragraph:
1) liability for bodily injury (including death) or damage to real property and
tangible personal property will be limited to that caused by KALIMETRIX's
negligence; and 2) as to any other actual damage arising in any situation
involving nonperformance by KALIMETRIX pursuant to, or in any way related to
the subject of this Agreement, KALIMETRIX's liability will be limited to the
charge paid by You for the individual Program that is the subject of the claim.
General (Section 5): The following replaces the terms of item 5:
If no suit or other legal action is brought, within three years after the cause
of action arose, in respect of any claim that either party may have against the
other, the rights of the concerned party in respect of such claim will be
forfeited and the other party will stand released from its obligations in
respect of such claim.
Governing Law, Jurisdiction, and Arbitration (Section 6): The following is
added to this section:
Arbitration
Disputes arising out of or in connection with this Agreement shall be finally
settled by arbitration which shall be held in Bangalore, India in accordance
with the laws of India then in effect. The arbitration award shall be final and
binding for the parties without appeal and shall be in writing and set forth
the findings of fact and the conclusions of law.
The number of arbitrators shall be three, with each side to the dispute being
entitled to appoint one arbitrator. The two arbitrators appointed by the
parties shall appoint a third arbitrator who shall act as chairman of the
proceedings. Vacancies in the post of chairman shall be filled by the president
of the Bar Council of India. Other vacancies shall be filled by the respective
nominating party. Proceedings shall continue from the stage they were at when
the vacancy occurred.
If one of the parties refuses or otherwise fails to appoint an arbitrator
within 30 days of the date the other party appoints its, the first appointed
arbitrator shall be the sole arbitrator, provided that the arbitrator was
validly and properly appointed.
All proceedings shall be conducted, including all documents presented in such
proceedings, in the English language. The English language version of this
Agreement prevails over any other language version.
JAPAN: General (Section 5): The following is inserted after item 5:
Any doubts concerning this Agreement will be initially resolved between us in
good faith and in accordance with the principle of mutual trust.
MALAYSIA: Limitation of Liability (Section 4): The word "SPECIAL" in
item 2 of the third paragraph is deleted:
NEW ZEALAND: Limited Warranty (Section 3): The following is added:
The warranties specified in this Section are in addition to any rights You may
have under the Consumer Guarantees Act 1993 or other legislation which cannot
be excluded or limited. The Consumer Guarantees Act 1993 will not apply in
respect of any goods which KALIMETRIX provides, if You
require the goods for the purposes of a business as defined in that Act.
Limitation of Liability (Section 4): The following is added:
Where Programs are not acquired for the purposes of a business as defined in
the Consumer Guarantees Act 1993, the limitations in this Section are subject
to the limitations in that Act.
PEOPLE'S REPUBLIC OF CHINA: Charges (Section 2): The following is added:
All banking charges incurred in the People's Republic of China will be borne by
You and those incurred outside the People's Republic of China will be borne by KALIMETRIX.
Governing Law, Jurisdiction, and Arbitration (Section 6): The phrase "the
laws of the country in which You acquired the Program license" in the
Governing Law subsection is replaced by the following:
the laws of the State of New York, United States of America (except when local
law requires otherwise)
PHILIPPINES: Limitation of Liability (Section 4): The following replaces the
terms of item 2 of the third paragraph:
2. special (including nominal and exemplary damages), moral, incidental, or
indirect damages or for any economic consequential damages; or
Governing Law, Jurisdiction, and Arbitration (Section 6): The following is
added to this section:
Arbitration
Disputes arising out of or in connection with this Agreement shall be finally
settled by arbitration which shall be held in Metro Manila, Philippines in
accordance with the laws of the Philippines then in effect. The arbitration
award shall be final and binding for the parties without appeal and shall be in
writing and set forth the findings of fact and the conclusions of law.
The number of arbitrators shall be three, with each side to the dispute being
entitled to appoint one arbitrator. The two arbitrators appointed by the
parties shall appoint a third arbitrator who shall act as chairman of the
proceedings. Vacancies in the post of chairman shall be filled by the president
of the Philippine Dispute Resolution Center, Inc. Other vacancies shall be filled
by the respective nominating party. Proceedings shall continue from the stage
they were at when the vacancy occurred.
If one of the parties refuses or otherwise fails to appoint an arbitrator
within 30 days of the date the other party appoints its, the first appointed
arbitrator shall be the sole arbitrator, provided that the arbitrator was
validly and properly appointed.
All proceedings shall be conducted, including all documents presented in such
proceedings, in the English language. The English language version of this
Agreement prevails over any other language version.
SINGAPORE: Limitation of Liability (Section 4): The words "SPECIAL"
and "ECONOMIC" are deleted from item 2 of the third paragraph.
General (Section 5): The following replaces the terms of item 7:
Subject to the rights provided to KALIMETRIX's suppliers and Program developers
as provided in Section 4 above (Limitation of Liability), a person who is not a
party to this Agreement shall have no right under the Contracts (Right of Third
Parties) Act to enforce any of its terms.
TAIWAN: Limited Warranty (Section 3): The last paragraph is deleted.
EUROPE, MIDDLE EAST, AFRICA (EMEA)
Limited Warranty (Section 3): In the European Union, the following is added:
In the European Union, consumers have legal rights under applicable national
legislation governing the sale of consumer goods. Such rights are not affected
by the Limited Warranty provision set out above at section 3 of this Agreement.
The territorial scope of the Limited Warranty is worldwide.
Limitation of Liability (Section 4): In Austria, Denmark, Finland, Greece,
Italy, Netherlands, Norway, Portugal, Spain, Sweden and Switzerland, the
following replaces the terms of this section in its entirety:
Except as otherwise provided by mandatory law:
1. KALIMETRIX's liability for any damages and losses that may arise as a
consequence of the fulfillment of its obligations under or in connection with
this agreement or due to any other cause related to this agreement is limited
to the compensation of only those damages and losses proved and actually
arising as an immediate and direct consequence of the non-fulfillment of such
obligations (if KALIMETRIX is at fault) or of such cause, for a maximum amount
equal to the charges You paid for the Program.
The above limitation shall not apply to damages for bodily injuries (including
death) and damages to real property and tangible personal property for which KALIMETRIX
is legally liable.
2. UNDER NO CIRCUMSTANCES IS KALIMETRIX, OR ANY OF ITS PROGRAM DEVELOPERS,
LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY: 1) LOSS
OF, OR DAMAGE TO, DATA; 2) INCIDENTAL OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC
CONSEQUENTIAL DAMAGES; 3) LOST PROFITS, EVEN IF THEY ARISE AS AN IMMEDIATE
CONSEQUENCE OF THE EVENT THAT GENERATED THE DAMAGES; OR 4) LOSS OF BUSINESS,
REVENUE, GOODWILL, OR ANTICIPATED SAVINGS.
3. The limitation and exclusion of liability herein agreed applies not only to
the activities performed by KALIMETRIX but also to the activities performed by
its suppliers and Program developers, and represents the maximum amount for
which KALIMETRIX as well as its suppliers and Program developers, are
collectively responsible.
Limitation of Liability (Section 4): In France and Belgium, the following
replaces the terms of this section in its entirety:
Except as otherwise provided by mandatory law:
1. KALIMETRIX's liability for any damages and losses that may arise as a
consequence of the fulfillment of its obligations under or in connection with
this agreement is limited to the compensation of only those damages and losses
proved and actually arising as an immediate and direct consequence of the non-
fulfillment of such obligations (if KALIMETRIX is at fault), for a maximum
amount equal to the charges You paid for the Program that has caused the damages.
The above limitation shall not apply to damages for bodily injuries (including
death) and damages to real property and tangible personal property for which KALIMETRIX
is legally liable.
2. UNDER NO CIRCUMSTANCES IS KALIMETRIX, OR ANY OF ITS PROGRAM DEVELOPERS, LIABLE
FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY: 1) LOSS OF, OR
DAMAGE TO, DATA; 2) INCIDENTAL OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC
CONSEQUENTIAL DAMAGES; 3) LOST PROFITS, EVEN IF THEY ARISE AS AN IMMEDIATE
CONSEQUENCE OF THE EVENT THAT GENERATED THE DAMAGES; OR 4) LOSS OF BUSINESS,
REVENUE, GOODWILL, OR ANTICIPATED SAVINGS.
3. The limitation and exclusion of liability herein agreed applies not only to
the activities performed by KALIMETRIX but also to the activities performed by
its suppliers and Program developers, and represents the maximum amount for
which KALIMETRIX as well as its suppliers and Program developers, are
collectively responsible
Governing Law, Jurisdiction, and Arbitration (Section 6)
Governing Law
The phrase "the laws of the country in which You acquired the Program
license" is replaced by:
1) "the laws of Austria" in Albania, Armenia, Azerbaijan, Belarus,
Bosnia-Herzegovina, Bulgaria, Croatia, Georgia, Hungary, Kazakhstan,
Kyrgyzstan, FYR Macedonia, Moldavia, Poland, Romania, Russia, Slovakia,
Slovenia, Tajikistan, Turkmenistan, Ukraine, Uzbekistan, and FR Yugoslavia;
2) "the laws of France" in Algeria, Benin, Burkina Faso, Cameroon,
Cape Verde, Central African Republic, Chad, Comoros, Congo Republic, Djibouti,
Democratic Republic of Congo, Equatorial Guinea, French Guiana, French
Polynesia, Gabon, Gambia, Guinea, Guinea- Bissau, Ivory Coast, Lebanon,
Madagascar, Mali, Mauritania, Mauritius, Mayotte, Morocco, New Caledonia,
Niger, Reunion, Senegal, Seychelles, Togo, Tunisia, Vanuatu, and Wallis &
Futuna;
3) "the laws of Finland" in Estonia, Latvia, and Lithuania;
4) "the laws of England" in Angola, Bahrain, Botswana, Burundi,
Egypt, Eritrea, Ethiopia, Ghana, Jordan, Kenya, Kuwait, Liberia, Malawi, Malta,
Mozambique, Nigeria, Oman, Pakistan, Qatar, Rwanda, Sao Tome, Saudi Arabia,
Sierra Leone, Somalia, Tanzania, Uganda, United Arab Emirates, the United
Kingdom, West Bank/Gaza, Yemen, Zambia, and Zimbabwe; and
5) "the laws of South Africa" in South Africa, Namibia, Lesotho and
Swaziland.
Jurisdiction
The following exceptions are added to this section:
1) In Austria the choice of jurisdiction for all disputes arising out of this
Agreement and relating thereto, including its existence, will be the competent
court of law in Vienna, Austria (Inner-City);
2) in Angola, Bahrain, Botswana, Burundi, Egypt, Eritrea, Ethiopia, Ghana,
Jordan, Kenya, Kuwait, Liberia, Malawi, Malta, Mozambique, Nigeria, Oman,
Pakistan, Qatar, Rwanda, Sao Tome, Saudi Arabia, Sierra Leone, Somalia, Tanzania,
Uganda, United Arab Emirates, West Bank/Gaza, Yemen, Zambia, and Zimbabwe all
disputes arising out of this Agreement or related to its execution, including
summary proceedings, will be submitted to the exclusive jurisdiction of the
English courts;
3) in Belgium and Luxembourg, for all disputes arising out of this Agreement or
related to its interpretation or its execution, only the law and the courts of
the capital of the country in which Your registered office and/or commercial
office is located are competent;
4) in France, Algeria, Benin, Burkina Faso, Cameroon, Cape Verde, Central
African Republic, Chad, Comoros, Congo Republic, Djibouti, Democratic Republic
of Congo, Equatorial Guinea, French Guiana, French Polynesia, Gabon, Gambia,
Guinea, Guinea-Bissau, Ivory Coast, Lebanon, Madagascar, Mali, Mauritania,
Mauritius, Mayotte, Morocco, New Caledonia, Niger, Reunion, Senegal,
Seychelles, Togo, Tunisia, Vanuatu, and Wallis & Futuna all disputes
arising out of this Agreement or related to its violation or execution,
including summary proceedings, will be settled exclusively by the Commercial
Court of Paris;
5) in Russia, all disputes arising out of or in relation to the interpretation,
the violation, the termination, the nullity of the execution of this Agreement
shall be settled by Arbitration Court of Moscow;
6) in South Africa, Namibia, Lesotho and Swaziland, both of us agree to submit
all disputes relating to this Agreement to the jurisdiction of the High Court
in Johannesburg;
7) in Turkey all disputes arising out of or in connection with this Agreement
shall be resolved by the Istanbul Central (Sultanahmet)
Courts and Execution Directorates of Istanbul, the Republic of Turkey;
8) in each of the following specified countries, any legal claim arising out of
this Agreement will be brought before, and settled exclusively by, the
competent court of a) Athens for Greece, b) Tel Aviv-Jaffa for Israel, c) Milan
for Italy, d) Lisbon for Portugal, and e) Madrid for Spain; and
9) in the United Kingdom, both of us agree to submit all disputes relating to
this Agreement to the jurisdiction of the English courts.
Arbitration
In Albania, Armenia, Azerbaijan, Belarus, Bosnia- Herzegovina, Bulgaria,
Croatia, Georgia, Hungary, Kazakhstan, Kyrgyzstan, FYR Macedonia, Moldavia,
Poland, Romania, Russia, Slovakia, Slovenia, Tajikistan, Turkmenistan, Ukraine,
Uzbekistan, and FR Yugoslavia all disputes arising out of this Agreement or
related to its violation, termination or nullity will be finally settled under the
Rules of Arbitration and Conciliation of the International Arbitral Center of
the Federal Economic Chamber in Vienna (Vienna Rules) by three arbitrators
appointed in accordance with these rules.
The arbitration will be held in Vienna, Austria, and the official language of
the proceedings will be English. The decision of the arbitrators will be final
and binding upon both parties. Therefore, pursuant to paragraph 598 (2) of the
Austrian Code of Civil Procedure, the parties expressly waive the application of
paragraph 595 (1) figure 7 of the Code. KALIMETRIX may, however, institute
proceedings in a competent court in the country of installation.
In Estonia, Latvia and Lithuania all disputes arising in connection with this
Agreement will be finally settled in arbitration that will be held in Helsinki,
Finland in accordance with the arbitration laws of Finland then in effect. Each
party will appoint one arbitrator. The arbitrators will then jointly appoint
the chairman. If arbitrators cannot agree on the chairman, then the Central
Chamber of Commerce in Helsinki will appoint the chairman.
AUSTRIA: Limited Warranty (Section 3): The following is inserted at the
beginning of this Section:
The Warranty Period is twelve months from the date of delivery. The limitation
period for consumers in action for breach of warranty is the statutory period
as a minimum.
The warranty for a Program covers the functionality of the Program for its
normal use and the Program's conformity to its specifications.
The final two paragraphs are replaced with the following:
This is our sole obligation to You, except as otherwise required by applicable
statutory law.
General (Section 5): The following is added to item 4:
For purposes of this clause, contact information will also include information
about You as a legal entity, for example revenue data and other transactional
information.
GERMANY: Limited Warranty (Section 3): The same changes apply as those in
Limited Warranty (Section 3) under Austria above.
Limitation of Liability (Section 4): The following paragraph is added to this
Section:
The limitations and exclusions specified in this Section will not apply to
damages caused by KALIMETRIX intentionally or by gross negligence.
General (Section 5): The following replace the terms of item 5:
Any claims resulting from this Agreement are subject to a statute of limitation
of three years, except as stated in Section 3 (Limited Warranty) of this
Agreement.
HUNGARY: Limitation of Liability (Section 4): The following is added at the end
of this section:
The limitation and exclusion specified herein shall not apply to liability for
a breach of contract damaging life, physical well-being, or health that has
been caused intentionally, by gross negligence, or by a criminal act.
The parties accept the limitations of liability as valid provisions and state
that the Section 314.(2) of the Hungarian Civil Code
applies as the acquisition price as well as other advantages arising out of the
present Agreement balance this limitation of liability.
IRELAND: Limited Warranty (Section 3): The following is added to this section:
Except as expressly provided in these terms and conditions, all statutory
conditions, including all warranties implied, but without prejudice to the
generality of the foregoing, all warranties implied by the Sale of Goods Act
1893 or the Sale of Goods and Supply of Services Act 1980 are hereby excluded.
Limitation of Liability (Section 4): The following replaces the terms of this
section in its entirety:
For the purposes of this section, a "Default" means any act,
statement, omission, or negligence on the part of KALIMETRIX in connection
with, or in relation to, the subject matter of an Agreement in respect of which
KALIMETRIX is legally liable to You whether in contract or tort. A number of
Defaults which together result in, or contribute to, substantially the same
loss or damage will be treated as one Default occurring on the date of
occurrence of the last such Default.
Circumstances may arise where, because of a Default, You are entitled to recover
damages from KALIMETRIX. This section sets out the extent of KALIMETRIX's
liability and Your sole remedy.
1. KALIMETRIX will accept unlimited liability for (a) death or personal injury
caused by the negligence of KALIMETRIX, and (b) subject always to the Items for
Which KALIMETRIX is Not Liable below, for physical damage to Your
tangible property resulting from the negligence of KALIMETRIX.
2. Except as provided in item 1 above, KALIMETRIX's entire liability for actual
damages for any one Default will not in any event exceed the greater of 1) EUR
125,000, or 2) 125 percent of the amount You paid for
the Program directly relating to the Default. These limits also apply to any of
KALIMETRIX's suppliers and Program developers. They state the maximum for which
KALIMETRIX and such suppliers and Program developers are collectively
responsible.
Items for Which KALIMETRIX is Not Liable
Save with respect to any liability referred to in item 1 above, under no
circumstances is KALIMETRIX or any of its suppliers or Program developers
liable for any of the following, even if KALIMETRIX or they were informed of
the possibility of such losses:
1. loss of, or damage to, data;
2. special, indirect, or consequential loss; or
3. loss of profits, business, revenue, goodwill, or anticipated savings.
ITALY: General (Section 5): The following is added to this section:
KALIMETRIX and Customer (hereinafter, individually, "Party") shall
comply with all the obligations of the applicable provisions of law and/or
regulation on personal data protection. Each of the Parties will indemnify and
keep the other Party harmless from any damage, claim, cost or expense incurred
by the latter, directly and or indirectly, as a consequence of an infringement
of the other Party of the mentioned provisions of law and/or regulations.
SLOVAKIA: Limitation of Liability (Section 4): The following is added to the
end of the last paragraph:
The limitations apply to the extent they are not prohibited under Sections
373-386 of the Slovak Commercial Code.
General (Section 5): The terms of item 5 are replaced with the following:
THE PARTIES AGREE THAT ANY LEGAL OR OTHER ACTION RELATED TO A BREACH OF THIS
AGREEMENT MUST BE COMMENCED NO LATER AS DEFINED BY THE LOCAL LAW (4 YEARS) FROM
THE DATE ON WHICH THE CAUSE OF ACTION AROSE.
SOUTH AFRICA, NAMIBIA, LESOTHO, SWAZILAND: Limited Warranty (Section 3): The
following is added at the end of the first paragraph:
notwithstanding any advice or assistance that KALIMETRIX may have given to You
prior to the selection of such Programs.
SWITZERLAND: General (Section 5): The following is added to item 4:
For purposes of this clause, contact information will also include information
about You as a legal entity, for example revenue data and other transactional
information.
UNITED KINGDOM: Limited Warranty (Section 3): The following replaces the first
sentence in the fourth paragraph of this section:
THESE WARRANTIES ARE YOUR EXCLUSIVE WARRANTIES AND REPLACE ALL OTHER WARRANTIES
OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE.
Limitation of Liability (Section 4): The following replaces the terms of this
section in its entirety:
For the purposes of this section, a "Default" means any act,
statement, omission, or negligence on the part of KALIMETRIX in connection
with, or in relation to, the subject matter of an Agreement in respect of which
KALIMETRIX is legally liable to You, whether in contract or tort. A number of
Defaults which together result in, or contribute to, substantially the same loss
or damage will be treated as one Default.
Circumstances may arise where, because of a Default, You are entitled to
recover damages from KALIMETRIX. This section sets out the extent of KALIMETRIX's
liability and Your sole remedy.
1. KALIMETRIX will accept unlimited liability for:
(a) death or personal injury caused by the negligence of KALIMETRIX;
(b) any breach of its obligations implied by Section 12 of the Sale of Goods
Act 1979 or Section 2 of the Supply of Goods and Services Act 1982, or any
statutory modification or re- enactment of either such Section; and
(c) subject always to the Items for Which KALIMETRIX is Not Liable below, for
physical damage to Your tangible property resulting from the negligence of KALIMETRIX.
2. KALIMETRIX's entire liability for actual damages for any one Default will
not in any event, except as provided in item 1 above, exceed the greater of 1)
Pounds Sterling 75,000, or 2) 125 percent of the amount You
paid for the Program directly relating to the Default. These limits also apply
to KALIMETRIX's suppliers and Program developers. They state the maximum for
which KALIMETRIX and such suppliers and Program developers are collectively
responsible.
Items for Which KALIMETRIX is Not Liable
Save with respect to any liability referred to in item 1 above, under no
circumstances is KALIMETRIX or any of its suppliers or Program developers
liable for any of the following, even if KALIMETRIX or they were informed of
the possibility of such losses:
1. loss of, or damage to, data;
2. special, indirect, or consequential loss; or
3. loss of profits, business, revenue, goodwill, or anticipated savings.
Z125-3301-12 (07/2008)
LICENSE INFORMATION
The Programs listed below are licensed under the following terms and conditions
in addition to those of the International License Agreement for Evaluation of
Programs.
Program Name: KALIMETRIX Logiscope
Limited Use Rights for Other KALIMETRIX Programs
If You acquired this Program as part of another KALIMETRIX Program
("Principal Program") that lists this Program under "Other KALIMETRIX
Programs", You received this Program only in
support of the Principal Program and Your rights to use this Program will be
limited by the license of the Principal Program. Please contact Your KALIMETRIX
Sales Representative if You wish to acquire a separate
license to this Program not limited by the Principal Program's license terms.
Excluded Components
The provisions of this paragraph do not apply to the
extent they are held to be invalid or unenforceable under the law that governs
this license. The components listed below are "Excluded Components."
Notwithstanding any of the terms in the Agreement or any other agreement You
may have with KALIMETRIX:
(a) the third party suppliers of such Excluded Components
("Suppliers") provide the components WITHOUT WARRANTIES OF ANY KIND
and, such Suppliers DISCLAIM ANY AND ALL EXPRESS AND IMPLIED WARRANTIES AND
CONDITIONS INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF TITLE,
NON-INFRINGEMENT OR INTERFERENCE AND THE IMPLIED WARRANTIES AND CONDITIONS OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE
EXCLUDED COMPONENTS;
(b) in no event are the Suppliers liable for any direct, indirect, incidental,
special, exemplary, punitive or consequential damages, including but not
limited to lost data, lost savings, and lost profits, with respect to the
Excluded Components; and,
(c) KALIMETRIX and the Suppliers are not liable to You, and will not defend,
indemnify, or hold You harmless for any claims arising from or related to the
Excluded Components.
Notwithstanding these exclusions, in Germany and Austria, KALIMETRIX's warranty
and liability for the Excluded Components is governed only by the respective
terms applicable for Germany and Austria in the KALIMETRIX license agreements.
Notices and important information that KALIMETRIX is required to provide to You
with respect to the Excluded Components, including instructions for obtaining
source code for certain Excluded Components, may be found in the NOTICES
file(s) that accompanies the Program.
Your use of the Excluded Components is governed by the terms of the Agreement
and not by any terms that may be contained in the NOTICES file(s). The terms
contained in the Agreement are offered by KALIMETRIX and not by any other
party. Future Program updates or fixpacks may contain
additional Excluded Components. Such additional Excluded Components, and
related notices and information, if any, will be listed in another NOTICES file
that accompanies the Program update or fixpack.
The following are Excluded Components:
1. Blueberry Flashback SDK v2.0.050
2. Concerto (tablegen)
3. InfoZIP
v3.0
4. Microsoft Visual Studio Redistributables
5. MISRA Guidelines
6. Perl v5.6.1
7. Regex v8.3
8. RogueWave Stingray
9. Tcl v8.4.9
Specified Operating Environment
The Program's specifications and specified operating environment information
may be found in documentation accompanying the Program, if available, such as a
read-me file, or other information published by KALIMETRIX, such as an
announcement letter. You agree that such documentation and other Program
content may be supplied only in the English language.
Program-unique Terms
A. General Charge Terms
Based upon the Program license obtained, You may use the Program as follows:
MULTI-PROGRAM OFFERING
Programs may be licensed as part of a 'suite' or a multi- program offering. The
separate Programs comprising the suite or multi-program offering may not be
used simultaneously by different users, and may be used by only one user at a
time. If third party software is included with any Program, the third party
software may not be separated from, or used independently of, the Program.
B. General Terms, Conditions, and Restrictions
License Compliance
During the period that your license agreement with respect to the Program
remains in effect, and for two years thereafter, KALIMETRIX has the right to
verify your compliance with the terms of your license agreement on your
premises during your normal business hours and in a manner that minimizes
disruption to your business. KALIMETRIX may use an independent auditor for this
with your prior approval, which you will not unreasonably withhold.
Use of the Program
The Program may be used solely for Your internal
business purposes. The Program may not be used to provide commercial hosting or
other commercial information technology services to third parties including
without limitation service bureau or similar services. You may not utilize any
development version of the Program in a production environment or in any production
capacity.
In the event the Program allows You to develop or test
applications, You bear all risk of developing and using Your applications. You
will indemnify KALIMETRIX, its suppliers or distributors from and against any
third party claim arising out of the use or distribution of Your
application.
C. Additional Program Specific Terms, Conditions, and Restrictions
Sample Code
The Program may contain sample source code or example models ("Sample
Code") that is provided for informational purposes only and not for
production development purposes. You may use and modify the Sample Code only
for the purpose of creating Your own application in
connection with Your use of the Program. This Sample Code has not been tested
and is being provided "AS IS," WITH NO WARRANTY OF ANY KIND, EITHER
EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SAMPLE CODE IS
WITH YOU. IN NO EVENT WILL KALIMETRIX BE LIABLE FOR ANY DIRECT, INDIRECT, OR
INCIDENTAL DAMAGES, LOST PROFITS, LOST SAVINGS OR OTHER ECONOMIC CONSEQUENTIAL
DAMAGES, EVEN IF KALIMETRIX OR ITS AUTHORIZED SUPPLIER HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES REGARDING THE SAMPLE CODE OR TECHNICAL SUPPORT, IF
ANY. IN ADDITION, KALIMETRIX AND ITS SUPPLIERS WILL NOT BE LIABLE FOR ANY
DAMAGES CLAIMED BY YOU BASED ON ANY THIRD PARTY CLAIM. You will indemnify KALIMETRIX,
its suppliers and distributors from and against any third party claim arising
out of the use of the Sample Code.
LICENSE INFORMATION
The Programs listed below are licensed under the following terms and conditions
in addition to those of the International Program License Agreement.
Program Name: KALIMETRIX Logiscope
Limited Use Rights for Other KALIMETRIX Programs
If You acquired this Program as part of another KALIMETRIX Program
("Principal Program") that lists this Program under "Other KALIMETRIX
Programs", You received this Program only in
support of the Principal Program and Your rights to use this Program will be
limited by the license of the Principal Program. Please contact Your KALIMETRIX
Sales Representative if You wish to acquire a separate
license to this Program not limited by the Principal Program's license terms.
Excluded Components
The provisions of this paragraph do not apply to the
extent they are held to be invalid or unenforceable under the law that governs
this license. The components listed below are "Excluded Components."
Notwithstanding any of the terms in the Agreement or any other agreement You
may have with KALIMETRIX:
(a) the third party suppliers of such Excluded Components
("Suppliers") provide the components WITHOUT WARRANTIES OF ANY KIND
and, such Suppliers DISCLAIM ANY AND ALL EXPRESS AND IMPLIED WARRANTIES AND
CONDITIONS INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF TITLE,
NON-INFRINGEMENT OR INTERFERENCE AND THE IMPLIED WARRANTIES AND CONDITIONS OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE
EXCLUDED COMPONENTS;
(b) in no event are the Suppliers liable for any direct, indirect, incidental,
special, exemplary, punitive or consequential damages, including but not
limited to lost data, lost savings, and lost profits, with respect to the
Excluded Components; and,
(c) KALIMETRIX and the Suppliers are not liable to You, and will not defend,
indemnify, or hold You harmless for any claims arising from or related to the Excluded
Components.
Notwithstanding these exclusions, in Germany and Austria, KALIMETRIX's warranty
and liability for the Excluded Components is governed only by the respective
terms applicable for Germany and Austria in the KALIMETRIX license agreements.
Notices and important information that KALIMETRIX is required to provide to You
with respect to the Excluded Components, including instructions for obtaining
source code for certain Excluded Components, may be found in the NOTICES
file(s) that accompanies the Program.
Your use of the Excluded Components is governed by the terms of the Agreement
and not by any terms that may be contained in the NOTICES file(s). The terms
contained in the Agreement are offered by KALIMETRIX and not by any other
party. Future Program updates or fixpacks may contain
additional Excluded Components. Such additional Excluded Components, and
related notices and information, if any, will be listed in another NOTICES file
that accompanies the Program update or fixpack.
The following are Excluded Components:
1. Blueberry Flashback SDK v2.0.050
2. Concerto (tablegen)
3. InfoZIP
v3.0
4. Microsoft Visual Studio Redistributables
5. MISRA Guidelines
6. Perl v5.6.1
7. Regex v8.3
8. RogueWave Stingray
9. Tcl v8.4.9
Specified Operating Environment
The Program's specifications and specified operating environment information
may be found in documentation accompanying the Program, if available, such as a
read-me file, or other information published by KALIMETRIX, such as an
announcement letter. You agree that such documentation and other Program
content may be supplied only in the English language.
Program-unique Terms
A. General Charge Terms
Based upon the Program license obtained, You may use the Program as follows:
License Type - Floating User License:
"Floating User" is the unit of measure by which this Program is
licensed. A Floating User is a shared user access to the Program within or
outside of your enterprise. The Program may be installed on one or more computers
or servers. The total number of Floating Users simultaneously accessing the
Program at any moment in time may not exceed the highest number of Floating
Users authorized by the Proof of Entitlement (PoE).
You must have an entitlement for each Floating User simultaneously accessing
the Program or any Program component in any manner directly or indirectly (for
example: via a multiplexing program, device, or application server) through any
means.
Add-ons
You may have purchased an Add-on for the Program. As
used herein, an "Add-on" is additional software designed to be used
with the Program referred to in the Program Name above. A Proof of Entitlement
(PoE) is required in order to use any Add-on. Unless
otherwise indicated in the PoE or elsewhere in this Agreement,
Add- ons are licensed to You
under the same terms and conditions as the Program for which You have already
obtained a valid license. You must obtain at least as many license entitlements
for the Program as You are licensed to use for any Add-on.
Add-ons may not be available in all license types applicable to the Program.
MULTI-PROGRAM OFFERING
Programs may be licensed as part of a 'suite' or a multi- program offering. The
separate Programs comprising the suite or multi-program offering may not be
used simultaneously by different users, and may be used by only one user at a
time. If third party software is included with any Program, the third party
software may not be separated from, or used independently of, the Program.
B. General Terms, Conditions, and Restrictions
License Compliance
During the period that your license agreement with respect to the Program
remains in effect, and for two years thereafter, KALIMETRIX has the right to
verify your compliance with the terms of your license agreement on your
premises during your normal business hours and in a manner that minimizes
disruption to your business. KALIMETRIX may use an independent auditor for this
with your prior approval, which you will not unreasonably withhold.
Use of the Program
The Program may be used solely for Your internal
business purposes. The Program may not be used to provide commercial hosting or
other commercial information technology services to third parties including
without limitation service bureau or similar services. You may not utilize any
development version of the Program in a production environment or in any
production capacity.
In the event the Program allows You to develop or test
applications, You bear all risk of developing and using Your applications. You
will indemnify KALIMETRIX, its suppliers or distributors from and against any
third party claim arising out of the use or distribution of Your
application.
Transfer of a Program across a border
If, as a result of your moving a Program across a border, any authority imposes
a duty, tax, levy or fee (including withholding taxes, fees, customs or other
duties for the import and export of any such Program), then you agree that you
are responsible for, and will pay, any such duty, taxes, levy or other fees.
This excludes those taxes based on KALIMETRIX's net income.
Trade-ups
Licenses for certain Programs that replace qualifying Programs may be obtained
for a reduced charge. You agree to terminate your use of the replaced Programs
when you install the replacement Programs.
C. Additional Program Specific Terms, Conditions, and Restrictions
Sample Code
The Program may contain sample source code or example models ("Sample
Code") that is provided for informational purposes only and not for
production development purposes. You may use and modify the Sample Code only
for the purpose of creating Your own application in
connection with Your use of the Program. This Sample Code has not been tested
and is being provided "AS IS," WITH NO WARRANTY OF ANY KIND, EITHER
EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. THE
ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SAMPLE CODE IS WITH
YOU. IN NO EVENT WILL KALIMETRIX BE LIABLE FOR ANY DIRECT, INDIRECT, OR
INCIDENTAL DAMAGES, LOST PROFITS, LOST SAVINGS OR OTHER ECONOMIC CONSEQUENTIAL
DAMAGES, EVEN IF KALIMETRIX OR ITS AUTHORIZED SUPPLIER HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES REGARDING THE SAMPLE CODE OR TECHNICAL SUPPORT, IF
ANY. IN ADDITION, KALIMETRIX AND ITS SUPPLIERS WILL NOT BE LIABLE FOR ANY
DAMAGES CLAIMED BY YOU BASED ON ANY THIRD PARTY CLAIM. You will indemnify KALIMETRIX,
its suppliers and distributors from and against any third party claim arising
out of the use of the Sample Code.
D/N: L-KHUY-7QMHY5
P/N: L-KHUY-7QMHY5