This Program is owned by Heroix or its subsidiaries (Heroix) and is copyrighted and licensed, not sold. Heroix does not transfer title to a Program to you. All copyright, patent, trade secret, and other intellectual and proprietary rights in the Program are and remain the valuable property of Heroix. The terms of this Agreement apply to any additional copy of a Program Heroix authorizes you to make.
The term “Program” means the original program and whole or partial copies of the program. A Program consists of executable code and related licensed materials, including documentation.
The term “Invoice” means the transaction document which details the specific Program(s) and Devices for which you are licensed by Heroix.
Heroix grants you a non-transferable and non-exclusive license to the Program.
This Agreement and its applicable Invoices are the complete and exclusive agreement regarding the Program and replace any oral or written communications between you and Heroix. For a change to be valid both you and Heroix must sign it.
You accept the additional terms in an Invoice by using the Program or making any payment for it. If there is a conflict among terms, those of an Invoice prevail.
LICENSE
Under this license, you may 1) use the Program only on the Devices specified on the Invoice and 2) copy the Program for backup.
You agree to reproduce the copyright notice and any other legend of ownership on each copy or partial copy.
You may use any portion of the Program Heroix marks restricted (for example, “Restricted Materials of Heroix”) only to 1) resolve problems related to the use of the Program and 2) modify the Program so that it will work together with other products.
You agree not to do any of the following: 1) use or copy the Program except as provided in this Agreement; 2) reverse assemble, reverse compile, or otherwise translate the Program; 3) transfer the license for the Program, except as specifically permitted by Heroix in this Agreement; 4) sublicense, rent, lease, or assign the license for the Program; or 5) distribute the Program to any third party.
INHERENTLY DANGEROUS APPLICATIONS
This Program is not specifically developed, or licensed for use in any nuclear, aviation, mass transit, or medical application or in any other inherently dangerous applications.
NON-DISCLOSURE
You acknowledge that the Program is the proprietary information and trade secret of Heroix, whether or not any portion of the Program is validly copyrighted or patented. You agree not to provide the Program to any third party without explicit permission in writing from Heroix. You agree not to divulge any information with respect to the technology embodied within the Program.
PROGRAM PROTECTION
You agree to 1) maintain a record of all copies of a Program and 2) ensure that anyone who uses this Program does so only for your authorized use and complies with this Agreement.
CHARGES, PAYMENT, AND TAXES
Charges for Programs may be one-time, recurring, or a combination of both.
If any authority imposes a duty, tax or fee (excluding those based upon Heroix’s net income) on this Agreement or the Program itself, you agree to pay that amount as Heroix specifies.
No Customer Product Keys will be issued until all payment obligations to Heroix are met by you. You acknowledge that the Program may automatically cease to function if you fail to meet your payment obligations.
Heroix may change recurring charges for Programs acquired through Heroix by giving you one month’s notice.
RECURRING-CHARGE PROGRAMS
You agree to maintain a current Software Support Agreement for all recurring-charge Programs.
Upon cancellation of a recurring-charge Program license, the license and all rights thereunder terminate.
All outstanding payment obligations must be met for cancellation of a recurring-charge Program license to be valid.
ASSIGNMENT
Heroix may assign this Agreement without notice to you.
LIMITED WARRANTY
For each warranted Heroix Program, Heroix warrants that 1) Heroix has the right to license it and 2) it will perform substantially in accordance with the accompanying written materials. The warranty period for a Program expires thirty (30) days from the delivery of the Program.
Heroix’s obligation and liability under this warranty shall be limited to the replacement or correction, at Heroix’s expense of any defect in the Program provided written notice of the defect is given to Heroix during the warranty period. Replacement or correction of the Program is at Heroix’s sole discretion. If Heroix determines it is impractical to repair the defect, Heroix may elect to refund the amount paid by you for the Program and terminate the License Agreement. Heroix shall have no further liability for the Program defect and under no circumstances shall be responsible for incidental or consequential damages.
The warranty shall not apply if the Program has 1) not been used in accordance with Heroix’s instructions; 2) been modified, altered, converted or repaired by you without written approval from Heroix; 3) any of your equipment has malfunctioned; or 4) any other cause within your control which resulted in the Program becoming inoperative.
THESE WARRANTIES REPLACE ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Heroix does not warrant uninterrupted or error-free operation of a Program.
PATENTS AND COPYRIGHTS
If a third party claims that a Program Heroix provides to you infringes that party’s patent or copyright, Heroix will, at its expense, defend you against that claim and pay all costs, damages, and attorney’s fees that a court finally awards, provided that you 1) promptly notify Heroix in writing of the claim and 2) allow Heroix to control, and cooperate with Heroix in, the defense and any related settlement negotiations.
If such claim is made or appears likely to be made, you agree to permit Heroix to enable you to continue to use the Program, or to modify it, or replace it with one that is at least as functionally equivalent. If Heroix determines that none of these alternatives is reasonably available, you agree to return the Program to Heroix on Heroix’s written request. Heroix will then give you a credit for a one-time charge Program, prorated over a five year term from the Invoice date provided its total charges have been fully paid.
This is Heroix’s entire obligation to you regarding any claim of infringement.
Heroix has no obligation regarding any claim based on any of the following: 1) your modification of a Program; 2) the combination, operation, or use of a Program with any programs, data, or apparatus that Heroix did not provide; or 3) infringement by a non-Heroix Program.
LIMITATION OF LIABILITY
Under no circumstances is Heroix liable for 1) third party claims against you for losses or damages (other than payments referred to in the Patents and Copyrights section described above) or 2) loss of, or damage to, your records or data.
EXCEPT AS SPECIFIED IN THIS AGREEMENT, HEROIX SHALL HAVE NO OBLIGATION OR LIABILITY TO YOU OR ANY OTHER PARTY FOR DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE EXISTENCE, USE OR PERFORMANCE OF THE PROGRAM. THE REMEDIES SET FORTH IN THIS AGREEMENT ARE YOUR SOLE AND EXCLUSIVE REMEDIES FOR ANY BREACH OF OBLIGATIONS BY HEROIX AND IN NO EVENT SHALL YOU OR ANY OTHER PARTY BE ENTITLED TO ANY MONETARY DAMAGES IN EXCESS OF THE AMOUNT PAID TO HEROIX FOR THE PROGRAM.
SEVERABILITY
Each paragraph and provision of this Agreement is severable from the entire Agreement. If any provision is declared invalid the remaining provisions shall remain in effect.
GENERAL
Please retain a copy of your receipt or invoice to establish proof of license.
You may terminate your license on one month’s written notice. If there is a default or breach of the terms of this Agreement, the other party may terminate the Agreement if the default or breach is not corrected within 30 days of written notice of the default or breach. In either event, you must destroy or return to Heroix all your copies of the Program
Program Protection, Assignment, Limitation of Liability, Non-Disclosure and Charges, Payment, and Taxes shall survive termination of this Agreement.
The waiver by either of us of any default or breach of this Agreement does not constitute a waiver of any other or subsequent default or breach.
Neither of us will bring a legal action, under this Agreement, more than two years after the cause of the action arose.
This Agreement is governed by the laws of the State of Massachusetts.
We agree that the Massachusetts and federal courts having jurisdiction for Norfolk County shall be the exclusive forum for resolving any disputes between us.
