
End User License Agreement for Cytrence Kiwi


This End-User license Agreement (“Agreement”) is a legal agreement between you (either an individual or a single entity, “Licensee”) and Cytrence Technologies Inc., a Delaware corporation (“Licensor”), that governs your use of any Software Product (as defined below), installed on or made available by Licensor for use as a standalone product or with any other Licensor product (each, a “Licensor Product”) that is not otherwise subject to a separate license agreement between you and Licensor or its suppliers (collectively, the “Software”). The term “Software Product” includes application software, firmware, drivers, and any other types of software and may include associated media, printed materials, and online or electronic documentation.

The following terms and conditions define Licensee’s rights and obligations with respect to the Software.  Licensee’s use of the Software is contingent upon its agreement to the terms of this Agreement.  BY USING THE software, LICENSEE INDICATES ITS CONTINUED AGREEMENT WITH AND ACCEPTANCE OF THE FOLLOWING TERMS AND CONDITIONS.

LICENSEE UNDERSTANDS THAT, IF LICENSEE LICENSED THE SOFTWARE FROM AN AUTHORIZED RESELLER OF LICENSOR, THAT RESELLER IS NOT LICENSOR’S AGENT AND IS NOT AUTHORIZED TO MAKE ANY REPRESENTATIONS OR WARRANTIES, STATUTORY OR OTHERWISE, OR TO AGREE TO ANY TERMS OR COVENANTS, ON LICENSOR’S BEHALF NOR TO VARY ANY OF THE TERMS OR CONDITIONS OF THIS AGREEMENT.  IN ADDITION, LICENSEE ACKNOWLEDGES THAT, UNLESS OTHERWISE AGREED BY THAT RESELLER IN WRITING OR PROHIBITED BY LAW, THE LIMITATIONS OF CONDITIONS, REPRESENTATIONS AND WARRANTIES, STATUTORY OR OTHERWISE, AND LIABILITY SET FORTH IN THIS AGREEMENT ALSO APPLY TO AND BENEFIT THAT RESELLER.

NO LICENSE IS GRANTED HEREUNDER TO ANY THIRD-PARTY OPEN SOURCE SOFTWARE OR SO CALLED “FREEWARE” (COLLECTIVELY “OPEN SOURCE SOFTWARE”).  ANY OPEN SOURCE SOFTWARE PROVIDED TO LICENSEE OR USED BY LICENSEE IN CONNECTION WITH THE USE OF ANY LICENSOR PRODUCTS OR SERVICES, INCLUDING WITHOUT LIMITATION THE SOFTWARE, SHALL BE LICENSED BY LICENSEE FROM THE THIRD-PARTY OWNERS OF SUCH OPEN SOURCE SOFTWARE IN ACCORDANCE WITH SUCH THIRD-PARTIES’ APPLICABLE LICENSE AGREEMENTS.  ANYTHING TO THE CONTRARY IN THIS AGREEMENT NOTWITHSTANDING, LICENSOR MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY OPEN SOURCE SOFTWARE DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

License.   Subject to the terms of this Agreement and payment of any applicable license fees set forth in a related Licensor invoice, Licensor grants to Licensee a license to install, access and use one copy of the Software on a single computer, workstation, terminal or other digital electronic device running a particular operating system (“System”).  For example, Licensee may install one copy of the Software on each of a Windows system, a Mac system and a Linux system. No single license for the Software may be shared or used concurrently on different Systems.  In the event that the Software is intended for use with any hardware comprising a Licensor Product, the license granted hereby shall only remain in effect for so long as Licensee shall continue to own and operate such Licensor Product.  For avoidance of doubt, in the event that Licensee shall return any Licensor Product to Licensor, the license granted hereby shall automatically terminate.

Copies.  Licensee may not copy the Software, except as permitted under applicable law, and then only with the inclusion of all copyright, proprietary and other notices.

No Reverse Engineering.  Licensee has no rights to any source code for the Software.  Licensee may not cause or permit the disassembly, decompilation or reverse engineering of the Software or otherwise attempt to gain access to the source code to the Software.  If applicable law requires access to source code for some purpose, such as inter-operability with other software, and Licensee desires access for that required purpose, Licensee shall first notify Licensor, and Licensor shall have the option, in its discretion, to (i) perform the work to derive any required information at Licensor’s usual consulting rate, or (ii) allow Licensee, as evidenced by Licensor’s signed written consent, to access the source code of the Software solely for the legally required purpose.

Additional Restrictions.  Licensee may not, and shall not permit any third party, to take any action which would cause all or any portion of the Software to be placed in the public domain or be subject to an open source license.

Reservation of Rights.  Licensor and its licensors reserve all rights not otherwise expressly granted in this Agreement.  Any use, modification, reproduction or distribution of the Software not expressly permitted under this Agreement is herby expressly prohibited.

Ownership.  Licensor or its licensors own and shall retain all proprietary rights, including all patent, copyright, trade secret, trademark and other intellectual property rights, in and to the Software and any modifications thereto made by any entity.  Licensee agrees to keep the Software and any such modifications confidential and agrees not to use, copy or disclose, nor permit any of its personnel, affiliates or agents to use, copy or disclose the same for any purpose that is not specifically authorized under this Agreement.

Maintenance and Support.  Unless Licensee enters into a separate agreement with Licensor or its authorized reseller which entitles Licensee to receive maintenance and support services, Licensee shall have no right to receive any corrections, enhancements, upgrades or other modifications to the Software.

No Title.  Licensee acknowledges that the license granted under this Agreement does not provide Licensee with title to or ownership of the Software, but only a right of limited use under the terms and conditions of this Agreement.  Licensee must keep the Software free and clear of all claims, liens and encumbrances.

Limited Warranty. Unless otherwise provided in a separate written agreement between Licensor and Licensee, Licensor warrants to Licensee that for a period of thirty (30) days from delivery of the Software to Licensee, that the Software will substantially perform in accordance with the functional specifications set forth in its written documentation.  Licensor’s sole liability and Licensee’s exclusive remedy under this limited warranty shall be to (i) repair or replace the non-conforming Software or, (ii) at Licensor’s option, to accept the return of the Software for a full refund of the purchase price paid by Licensee therefor.

Notice; Conditions.  The remedies set above are available only if Licensor is promptly notified of the defect in writing within the applicable warranty period and Licensor confirms in its reasonable discretion that such non-conformity exists.  This limited warranty shall not apply if the Software or other Licensor Product with which it operates has been altered, modified, misused, stored in an environment other than as intended or recommended by Licensor, or operated other than in accordance with its documentation or any instructions furnished by Licensor.

Disclaimer of Any Other Warranties; Limitations.  EXCEPT FOR THE EXPRESS, LIMITED WARRANTY PROVIDED HEREIN, LICENSOR MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE, AND LICENSOR DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.  LICENSOR DOES NOT WARRANT THAT THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT IT WILL SATISFY LICENSEE’S REQUIREMENTS.  IN NO EVENT SHALL LICENSOR’S OR ITS LICENSORS’ AGGREGATE LIABILITY ARISING UNDER THIS AGREEMENT EXCEED THE AMOUNTS PAID BY LICENSEE TO LICENSOR HEREUNDER.


IN NO EVENT WILL LICENSOR OR ITS LICENSORS BE LIABLE TO LICENSEE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, MULTIPLE OR OTHER INDIRECT DAMAGES, FOR ANY LOSS OF PROFITS, BUSINESS, REVENUE, ANTICIPATED SAVINGS, GOODWILL OR CONTRACTS, LOSS OF DATA, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY OR LOSS OF USE DAMAGES, ARISING OUT OF THIS AGREEMENT OR USE OF ANY SOFTWARE, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES AND EVEN IF THE REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

SUBJECT TO LOCAL LAW, ANY DAMAGES THAT YOU MIGHT INCUR NOTWITHSTANDING, THE ENTIRE LIABILITY OF LICENSOR AND ANY OF ITS SUPPLIERS UNDER ANY PROVISION OF THIS AGREEMENT AND YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU SEPARATELY FOR THE APPLICABLE SOFTWARE.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON CERTAIN WARRANTIES OR CERTAIN DIRECT DAMAGES, SO THESE LIMITATIONS MAY NOT APPLY TO LICENSEE.

Consumer Rights.  Consumers in some countries, states, or territories may have the benefit of certain statutory rights, remedies, localizations, and limitations under consumer legislation in respect of which Licensor’s liability cannot lawfully be excluded or limited. Anything to the contrary in this Agreement notwithstanding, if you acquired any Licensor Product or licensed the Software as a consumer within the meaning of relevant consumer legislation in your country, state, province or territory, the provisions of this Agreement (including the disclaimers of warranties, limitations and exclusion of liability) shall be read subject to applicable law and apply only to the maximum extent permitted by such applicable law. 

Termination.  Licensor shall have the right to immediately terminate this Agreement and the license granted herein in the event Licensee fails to comply with any of the terms and conditions of this Agreement.

Effect of Termination.  Upon termination of this Agreement, all licenses and other rights granted under this Agreement will become null and void.  Within five (5) days after termination of this Agreement, Licensee must return to Licensor or, at Licensor’s option and Licensee’s expense, destroy the Software and any copies thereof.

U.S. Government Restricted Rights.   If Software is acquired by or on behalf of a unit or agency of the United States government, the Software is provided as “commercial computer software” or “commercial computer software documentation” and, absent a written agreement to the contrary, the government’s rights with respect to such Software are limited by the terms of this Agreement pursuant to FAR § 12.212(a) and/or DFARS § 227.7202-1(a), as applicable.

Export.  Licensee must comply with all export and re-export restrictions, laws and regulations promulgated by all governmental agencies and authorities.

Assignment.  This Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors and permitted assigns.  Licensee shall not assign, delegate or otherwise transfer this Agreement or any rights or obligations hereunder, in whole or in part, whether by operation of law or otherwise, without Licensor’s prior written consent.  Any purported transfer, assignment or delegation without such prior written consent will be null and void and of no force or effect.

Entire Agreement.  This Agreement represents the entire agreement between the parties and supersedes all prior agreements and understandings with respect to the matters covered by this Agreement.  Licensee agrees that Licensee has not entered in this Agreement based on any representations other than those contained herein.  No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by the party to be charged.

Governing Law.  This Agreement shall in all respects be governed by the laws of the Commonwealth of Massachusetts and the federal laws of the United States of America, without regard to any conflicts of laws principles, and explicitly excludes  the United Nations Convention on Contracts for the International Sale of Goods; the 1974 Convention on the Limitation Period in the International Sale of Goods; and the Protocol amending the 1974 Convention, done at Vienna April 11, 1980.

Severability.  If any of the provisions of this Agreement is held by a court of competent jurisdiction to be invalid under any applicable statute or rule of law, such provision shall, to that extent, be deemed omitted, and the remaining portions of this Agreement shall remain in full force and effect.

Waiver.  The waiver of one breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default.

Notices.  All notices permitted or required under this Agreement shall be in writing and shall be delivered in person or mailed by first class, registered or certified mail, postage prepaid.  Such notice shall be deemed to have been given upon receipt.

Headings.  The headings are for convenience and shall not be used to construe this Agreement.

No Agency; Independent Contractors.  Nothing contained in this Agreement shall be deemed to imply or constitute that either party is the agent or representative of the other party, or that both parties are joint ventures or partners for any purpose.


