THIS END USER LICENSE AGREEMENT ("EULA") IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR A SINGLE ENTITY) AND NGRAIN (Canada) Corporation ("NGRAIN", "we", "our" or "us") FOR THE NGRAIN SOFTWARE PRODUCTS AND ANY ASSOCIATED SOFTWARE DEVELOPMENT KITS, APPLICATIONS, ADD-ON MODULES OR PLUG-INS, MEDIA, PRINTED MATERIALS, "ONLINE" OR ELECTRONIC DOCUMENTATION, MEDIA ELEMENTS, HTML AND XML TEMPLATES AND ASSOCIATED SAMPLE MODEL FILES OR CONTENT (COLLECTIVELY "SOFTWARE") ACCOMPANYING THIS EULA. READ THIS EULA CAREFULLY BEFORE COMPLETING THE INSTALLATION PROCESS AND USING THE SOFTWARE. IT PROVIDES A LICENSE TO USE THE SOFTWARE AND CONTAINS WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. BY INSTALLING AND/OR USING THE SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE SOFTWARE AND AGREEING TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, DO NOT INSTALL OR USE THE SOFTWARE.
THIS EULA SHALL APPLY ONLY TO THE SOFTWARE SUPPLIED BY NGRAIN HEREWITH REGARDLESS OF WHETHER OTHER SOFTWARE IS REFERRED TO OR DESCRIBED HEREIN.
1.1 NGRAIN grants to you (the Licensee) a non-exclusive and limited license ("LICENSE") to install, use and run one copy of the SOFTWARE on a single computer or workstation (the "COMPUTER"), subject to the terms and conditions of this EULA. Additional licenses may be acquired for additional COMPUTERS. The term of this LICENSE is as set out in the paragraph titled "TERM AND TERMINATION" (Section 2).
The Licensee may:
a) In the case of SOFTWARE referred to as NGRAIN viewers, including but not limited to SOFTWARE called “NGRAIN Viewer”, “NGRAIN Baseline Viewer”, “NGRAIN PDA Viewer”, or “NGRAIN Mobilizer”, distribute the SOFTWARE on intranets or other networks, on CD or DVD media, pre-installed on computer hardware devices, through a “silent” installation process, or embedded in applications, if you have entered into a separate distribution agreement in writing with NGRAIN.
b) In the case of SOFTWARE referred to as NGRAIN Software Development Kits, including but not limited to SOFTWARE called " NGRAIN Constructor" or “NGRAIN Integration Kit”, you may develop or construct applications based on such SOFTWARE ("SDK APPLICATIONS"), or embed NGRAIN viewers in applications (“OEM APPLICATIONS”), if you have entered into a separate OEM licensing agreement in writing with NGRAIN for the payment of royalty fees prior to any such SDK OR OEM APPLICATION is distributed. You must also include NGRAIN branding in conformance with the NGRAIN branding guidelines as part of the SDK OR OEM APPLICATIONS. In the case of NGRAIN Software Development Kits labeled or identified as a Beta or pre-release version, you may not develop or construct an SDK OR OEM END-USER APPLICATION based on such SOFTWARE.
Licensees subject to the terms described in section 1.1(a) and 1.1(b) must
i. indemnify and defend NGRAIN from and against any claims or lawsuits, including attorneys' fees, that arise from or result from the licensing, use or distribution of NGRAIN Viewers or NGRAIN based SDK OR OEM APPLICATIONS as developed by you, and
ii. include a valid copyright notice on your products and services that include NGRAIN SOFTWARE.
c) In the case of SOFTWARE labeled or identified as Release Candidate, Evaluation, Trial, Beta, “Not-for-Resale” or NFR (any of which shall be referred to herein as a "TRIAL SOFTWARE"), only use TRIAL SOFTWARE for test, evaluation and demonstration purposes for either a period of time or a number of uses, as specified by us, after which the LICENSE shall expire.
d) In the case of MEDIA ELEMENTS (3D Knowledge Objects, code samples or templates, models, photographs, clip art, shapes, animations, sounds, music and video clips that are identified in the SOFTWARE as samples, or for your use) included with the SOFTWARE or available through NGRAIN-related Internet-based services, you may copy and modify the MEDIA ELEMENTS, and license, display and distribute them, along with your modifications as part of your software products and services, including your web sites. If you have not entered into an agreement in writing with NGRAIN that provides you permission, you are not licensed to do any of the following:
i. sell, license or distribute copies of the MEDIA ELEMENTS by themselves or as part of any collection, product or service if the primary value of the product or service is in the MEDIA ELEMENTS,
ii. grant customers of your product or service any rights to license or distribute the MEDIA ELEMENTS,
iii. license or distribute any of the MEDIA ELEMENTS that include representations of identifiable individuals, governments, logos, initials, emblems, trademarks, or entities for any commercial purposes or to express or imply any endorsement or association with any product, service, entity, or activity, or
iv. create obscene or scandalous works, as defined by federal law at the time the work is created, using the MEDIA ELEMENTS.
In addition, you must
v. indemnify and defend NGRAIN from and against any claims or lawsuits, including attorneys' fees, that arise from or result from the licensing, use or distribution of MEDIA ELEMENTS as modified by you, and
vi. include a valid copyright notice on your products and services that include the MEDIA ELEMENTS.
e) In the case of HTML and XML TEMPLATES included on a CD-ROM with the SOFTWARE or available through NGRAIN-related Internet-based services, you may copy and modify the TEMPLATES, including but not limited to adding your own 3D content to the TEMPLATES, and distribute such TEMPLATES along with your modifications for use by other licensees of the SOFTWARE subject to sections 1.1(a) and 1.1(b). Subject to the foregoing in this Section 1.1(e), you are not licensed to do any of the following:
i. sell, resell, license, rent, lease, lend, or otherwise transfer for value, the TEMPLATES,
ii. distribute the TEMPLATES available via Internet-based services as part of any product or service, or
iii.copy or post any TEMPLATES available through Internet -based services on any network computer or broadcast it in any media.
In addition, you must
iv. indemnify and defend NGRAIN from and against any claims or lawsuits, including attorneys' fees, that arise from or result from the licensing, use or distribution of TEMPLATES as modified by you, and
v. include a valid copyright notice on your products and services that include the TEMPLATES.
1.2 The copyright, intellectual property rights and all other rights in the SOFTWARE shall remain with us. You must reproduce all copyright, trademark and other notices that are marked on the SOFTWARE on all copies of the SOFTWARE that you are permitted to make hereunder.
1.3 After installation of one copy of the SOFTWARE, you may keep one backup copy of the SOFTWARE, provided your backup copy is not installed or used on any computer, solely for backup or archival purposes.
1.4 You may also store or install a copy of the SOFTWARE on a storage device, such as a network server, used only to install the SOFTWARE on your other COMPUTERS over an internal network; however, you must acquire and dedicate a LICENSE for each separate COMPUTER on which the SOFTWARE is run. A LICENSE for the SOFTWARE may not be shared or used concurrently on different COMPUTERS unless otherwise specified in a separate agreement with us.
1.5 In consideration of the grant of LICENSE, you shall pay all LICENSE fees to us or a reseller or distributor designated by us.
2. TERM AND TERMINATION
2.1 If you have paid the purchase price for the LICENSE, this LICENSE will have a perpetual term, except that if you fail to comply with any of the terms or conditions herein the LICENSE will immediately terminate.
2.2 You hereby agree that, for the purpose of this LICENSE, any invoice provided to you by NGRAIN upon shipment or as part of any download process is the definitive statement of the "purchase price", as that term is used in this Section 2.1, and the term of your LICENSE, unless you contact NGRAIN within 30 days of receipt of the invoice and notify NGRAIN that such invoice is inaccurate or incorrect as to the term of the license.
2.3 Following the expiry or termination of the LICENSE for any reason, you must delete the SOFTWARE from the COMPUTER and destroy all copies of the SOFTWARE (including without limitation all documentation and samples, if any were provided).
2.4 You may terminate the LICENSE at any time by destroying the SOFTWARE (including without limitation all documentation and samples, if any were provided) and any backup or archival copy of the SOFTWARE.
3. RESTRICTIONS ON USE
3.1 You may not translate, reverse engineer, decompile or disassemble the SOFTWARE except to the extent that the foregoing restriction is expressly prohibited by applicable law.
3.2 Unless licensed to do so under the terms provided in Section 1, you may not
i. modify the SOFTWARE,
ii. embed, integrate or, merge all or any part of the SOFTWARE into other software, programs, or applications, or
iii. create derivative work based on the SOFTWARE.
3.3 You may not rent, lease, assign, or sublicense the SOFTWARE.
3.4 You may permanently transfer all of your rights under this EULA one time, provided you retain no copies, you transfer all of the SOFTWARE (including all component parts, the media and printed materials, any upgrades, this EULA, sample files, and online or electronic documentation), you do not receive any payment or other compensation for transferring the SOFTWARE and the recipient agrees to the terms of this EULA. If the SOFTWARE portion is an upgrade, any transfer must include all prior versions of the SOFTWARE.
3.5 We reserve the right to replace, modify, or upgrade the SOFTWARE at any time by offering you a replacement or modified version of the SOFTWARE or such upgrade and to charge for such replacement, modification or upgrade. Any such replacement or modified software code or upgrade to the SOFTWARE offered to you by us shall be considered part of the SOFTWARE and subject to the terms of this EULA (unless this EULA is superseded by a further EULA accompanying such replacement or modified version of or upgrade to the SOFTWARE).
4. LIMITATION OF WARRANTIES AND LIABILITY
4.1 WE WARRANT THAT THE SOFTWARE WILL PERFORM SUBSTANTIALLY IN ACCORDANCE WITH THE DOCUMENTATION FOR A PERIOD OF THIRTY DAYS FROM THE DATE YOU RECEIVE YOUR FIRST COPY OF THE SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL OTHER REPRESENTATIONS, WARRANTIES, OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABLE QUALITY, MERCHANTABILITY, DURABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THOSE ARISING BY LAW, STATUTE, USAGE OR TRADE OR COURSE OF DEALING. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE IS ASSUMED BY YOU.
EXCEPTION TO THE FOREGOING: IN THE CASE OF TRIAL SOFTWARE OR SOFTWARE CALLED "NGRAIN VIEWER", " NGRAIN PDA VIEWER", “NGRAIN BASELINE VIEWER”, OR " NGRAIN MOBILIZER", THE SOFTWARE IS PROVIDED ON AN "AS IS" BASIS WITHOUT ANY OTHER REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABLE QUALITY, MERCHANTABILITY, DURABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THOSE ARISING BY LAW, STATUTE, USAGE OR TRADE OR COURSE OF DEALING. IN THE CASE OF TRIAL SOFTWARE, OR PORTION OF A TRIAL SOFTWARE, PERFORMANCE AND COMPATIBILITY MAY NOT MATCH THAT OF ANY FINAL, GENERALLY AVAILABLE VERSION. A BETA OR PRE-RELEASE VERSION MAY NOT OPERATE CORRECTLY AND MAY BE SUBSTANTIALLY MODIFIED BEFORE THE RELEASE OF ANY FINAL, GENERALLY AVAILABLE VERSION.
4.2 NEITHER WE NOR OUR SUPPLIERS SHALL HAVE ANY LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR PROFIT, LOST OR DAMAGED DATA OR OTHER COMMERCIAL OR ECONOMIC LOSS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THEY ARE FORESEEABLE; OR FOR CLAIMS BY A THIRD PARTY. OUR MAXIMUM AGGREGATE LIABILITY TO YOU, AND THAT OF OUR SUPPLIERS SHALL NOT EXCEED THE AMOUNT PAID BY YOU FOR THE NUMBER OF LICENSES GRANTED BY US FOR THE SOFTWARE OR TRIAL SOFTWARE, REGARDLESS OF THE NUMBER AND/OR TYPE OF CLAIMS MADE OR DAMAGES INCURRED.
4.3 The limitations in this section shall apply whether or not the alleged breach or default is a breach of a fundamental condition or term, or a fundamental breach. Some jurisdictions do not allow the exclusion or limitation of warranties or liability for consequential or incidental damages so one or more of the above limitations may not apply to you.
4.4 You may request that we provide annual SOFTWARE support and maintenance services. All such services provided by us shall be governed by a separate support and maintenance agreement. Such services will not be provided in the case of a TRIAL SOFTWARE.
5. EXPORT RULES
5.1 You agree that the SOFTWARE will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively, the "EXPORT LAWS"), including but not limited to those of Canada. In addition, if the SOFTWARE is identified as export controlled items under the EXPORT LAWS, you represent and warrant that you are not a citizen, or otherwise located within, an embargoed nation (including without limitation Iran, Iraq, Syria, Sudan, Cuba, North Korea, and Serbia) and that you are not otherwise prohibited under the EXPORT LAWS from receiving the SOFTWARE. All rights to use the SOFTWARE are granted on condition that such rights are forfeited if you fail to comply with the terms of this EULA.
6.1 This EULA shall be governed by and construed in accordance with the laws of the Province of British Columbia, Canada. You hereby consent to the exclusive jurisdiction and venue of the courts of the Province of British Columbia to resolve any disputes arising under this EULA. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
6.2 If any provision of this EULA is declared by a Court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision shall be severed from the EULA and the other provisions shall remain in full force and effect.
6.3 Sections 4, 5 and 6 shall continue in full force and effect even after the termination or expiration of the LICENSE.
7. NOTICE TO U.S. GOVERNMENT END USERS
The SOFTWARE is "Commercial Items," as that term is defined at 48 C.F.R. paragraph 2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. paragraph 12.212 or 48 C.F.R. paragraph 227.7202, as applicable. Consistent with 48 C.F.R. paragraph 12.212 or 48 C.F.R. paragraphs 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States. Contractor/manufacturer is NGRAIN (Canada) Corporation, 250 - 1818 Cornwall Ave, Vancouver, BC, Canada.
Copyright 2002-2008 NGRAIN (Canada) Corporation and its licensors. All rights reserved.
NGRAIN is a registered trademark of NGRAIN (Canada) Corporation. Other names and brands may be claimed as the property of others.
Warning: This SOFTWARE is protected by copyright law and international treaties. Unauthorized reproduction or distribution of this SOFTWARE or any portion of it may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under law.
NGRAIN (Canada) Corporation
Suite 250 - 1818 Cornwall Avenue
Vancouver, BC V6J 1C7 Canada
Last updated: October 1, 2007