Exegesis Spatial Data Management Commercial Software End User License Agreement (Last Updated Oct 12, 2019)
IMPORTANT – PLEASE READ THIS END USER LICENSE AGREEMENT (THE “AGREEMENT”) CAREFULLY BEFORE ATTEMPTING TO DOWNLOAD OR USE ANY SOFTWARE. THIS AGREEMENT CONSTITUTES A LEGALLY BINDING AGREEMENT BETWEEN YOU OR THE COMPANY WHICH YOU REPRESENT AND ARE AUTHORIZED TO BIND (the “Licensee” or “You”), AND Exegesis Spatial Data Management Ltd (“Exegesis Spatial Data Management Ltd” or “Licensor”). BY PURCHASING, DOWNLOADING, INSTALLING OR OTHERWISE USING THE COMMERCIAL SOFTWARE MADE AVAILABLE BY Exegesis Spatial Data Management AND LICENSED UNDER THIS LICENSE AGREEMENT, YOU ACKNOWLEDGE (1) THAT YOU HAVE READ THIS AGREEMENT, (2) THAT YOU UNDERSTAND IT, (3) THAT YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS, AND (4) TO THE EXTENT YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, YOU HAVE THE POWER AND AUTHORITY TO BIND THAT COMPANY.
This is a license agreement and not an agreement for sale.
1. Software License
1.1 License Grant
Subject to the terms and conditions set forth in this Agreement, Exegesis Spatial Data Management Ltd hereby grants to Licensee and Licensee hereby accepts, a limited, non-transferable, perpetual, non-exclusive license (the “License”) to use the Exegesis Spatial Data Management Ltd computer software identified as Exegesis Spatial Data Management Ltd Commercial Software and any updates, upgrades, modifications and error corrections thereto provided to Licensee (the “Programs”) and any accompanying documentation (the “Documentation”, together with the Programs, collectively the “Software”) solely as specified in this Agreement.
For purposes of this Agreement:
"Software" means Commercial Software developed and distributed by Exegesis Spatial Data Management Ltd.
“Integrated Products” means Your proprietary software applications which: (i) are developed by Your Licensed Developers; (ii) add substantial functionality beyond the functionality provided by the incorporated components of the Programs; and (iii) are not commercial alternatives for, or competitive in the marketplace with, the Programs or any components of the Programs.
“Licensed Developers” means Your employees or third-party contractors authorized to develop software specifically for You using the Software in accordance with this Agreement.
1.2 Scope of Use
The Software is licensed per computer hostname, not sold on a per-seat basis. The Software is in “use” on a computer when it is loaded into temporary memory (i.e. RAM) or installed into permanent memory (e.g. hard disk or other storage device). The software is freely distributed on nuget.org and free to try without purchasing an activation for the hostname. You may install the software on as many machines as you wish, but in order to remove trial mode limitations or notifications in the software, you must purchase an activation file for the computer hostname and install the activation file on the computer.
1.3 Source Code
You are prohibited from decompiling, reverse engineering or otherwise seeking to discover the source code of the Programs.
1.4 Sub-licensing
You are prohibited from further sub-licensing the Software.
1.5 License Grant
Subject to the terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee and Licensee hereby accepts, a limited, non-transferable, perpetual, right to use the software.
1.6 Support
No dedicated technical support is provided with the Software, however, as part of your license you are allowed to access those support resources offered by Exegesis Spatial Data Management Ltd at its sole discretion (which may include documentation, Knowledge Base articles, forums).
1.7 Updates
During the Term of this License, Exegesis Spatial Data Management Ltd may, but is under no obligation to, provide updates to the Software. Typically if there are minor updates no new activation file will be needed, but Exegesis Spatial Data Management Ltd reserves the right to require a new activation for major new versions.
2. License Limitations
2.1 Use of Names, Logos and Trademarks
You may not use the Exegesis Spatial Data Management Ltd product names, logos or trademarks to market Your Integrated Product.
2.2 Disassembly
You are not allowed to disassemble, decompile or “unlock”, decode or otherwise reverse translate or engineer, or attempt in any manner to reconstruct or discover any source code or underlying algorithms of Software that is provided to You in object code form only.
3. Delivery
Exegesis Spatial Data Management Ltd commercial software products are distributed on nuget.org and are free to try but may have some limitations or trial mode notifications in trial mode, which can be removed by purchasing an activation file for the specific computer hostname where you want to remove the trial limitations.
4. Term and Termination
This Agreement and the License granted hereunder shall continue until terminated in accordance with this Section. Unless otherwise specified in this Agreement, the License granted hereunder shall last as long as You use the Software in compliance with the terms herein. Unless otherwise prohibited by law, and without prejudice to Exegesis Spatial Data Management Ltd’ other rights or remedies, Exegesis Spatial Data Management Ltd shall have the right to terminate this Agreement and the License granted hereunder immediately if You breach any of the material terms of this Agreement, and You fail to cure such material breach within thirty (30) days of receipt of notice from Exegesis Spatial Data Management Ltd. Upon termination of this Agreement, all Licenses granted to You hereunder shall terminate automatically.
5. Product Discontinuance
Exegesis Spatial Data Management Ltd reserves the right to discontinue the Software; any component of the Software, whether offered as a standalone product or solely as a component; and/or any support resources, at any time.
6. Intellectual Property
All title and ownership rights in and to the Software (including but not limited to any images, photographs, animations, video, audio, music, or text embedded in the Software), the intellectual property embodied in the Software, and any trademarks or service marks of Exegesis Spatial Data Management Ltd that are used in connection with the Software are and shall at all times remain exclusively owned by Exegesis Spatial Data Management Ltd. All title and intellectual property rights in and to the content that may be accessed through use of the Software is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This Agreement grants You no rights to use such content. Any open source software that may be delivered by Exegesis Spatial Data Management Ltd embedded in or in association with Exegesis Spatial Data Management Ltd commercial software products is provided pursuant to the open source license applicable to the software and subject to the disclaimers and limitations on liability set forth in such license.
7. No Warranty
THE SOFTWARE IS LICENSED ‘AS IS’. YOU BEAR THE RISK OF USING IT. Exegesis Spatial Data Management Ltd GIVES NO EXPRESS WARRANTIES, GUARANTEES OR CONDITIONS. YOU MAY HAVE ADDITIONAL RIGHTS UNDER YOUR LOCAL LAWS WHICH THIS AGREEMENT CANNOT CHANGE. TO THE EXTENT PERMITTED UNDER YOUR LOCAL LAWS, Exegesis Spatial Data Management Ltd EXCLUDES THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
8. Limitation of Liability
To the maximum extent permitted by applicable law, in no event will Exegesis Spatial Data Management Ltd be liable for any indirect, special, incidental, or consequential damages arising out of the use of or inability to use the Software, including, without limitation, damages for loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses, even if advised of the possibility thereof, and regardless of the legal or equitable theory (contract, tort or otherwise) upon which the claim is based. In any case, Exegesis Spatial Data Management Ltd’ entire liability under any provision of this agreement shall not exceed $5, notwithstanding any failure of essential purpose of any limited remedy. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so this exclusion and limitation may not be applicable. Exegesis Spatial Data Management Ltd is not responsible for any liability arising out of content provided by Licensee or a third party that is accessed through the Software and/or any material linked through such content. Any data included in the Software upon shipment from Exegesis Spatial Data Management Ltd is for testing use only and Exegesis Spatial Data Management Ltd hereby disclaims any and all liability arising therefrom.
9. Indemnity
You agree to indemnify, hold harmless, and defend Exegesis Spatial Data Management Ltd and its resellers from and against any and all claims, lawsuits and proceedings (collectively “Claims”), and all expenses, costs (including attorney's fees), judgments, damages and other liabilities resulting from such Claims, that arise or result from (i) Your use of the Software in violation of this Agreement or (ii) the use or distribution of Your Integrated Product.
10. Confidentiality
Except as otherwise provided herein, each party expressly undertakes to retain in confidence all information and know-how transmitted or disclosed to the other that the disclosing party has identified as being proprietary and/or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential, and expressly undertakes to make no use of such information and know-how except under the terms and during the existence of this Agreement. However, neither party shall have an obligation to maintain the confidentiality of information that: (i) it received rightfully from a third party without an obligation to maintain such information in confidence; (ii) the disclosing party has disclosed to a third party without any obligation to maintain such information in confidence; (iii) was known to the receiving party prior to its disclosure by the disclosing party; or (iv) is independently developed by the receiving party without use of the confidential information of the disclosing party. Further, either party may disclose confidential information of the other party as required by governmental or judicial order, provided such party gives the other party prompt written notice prior to such disclosure and complies with any protective order (or equivalent) imposed on such disclosure. Without limiting the foregoing, Licensee shall treat any source code for the Programs as confidential information and shall not disclose, disseminate, or distribute such materials to any third party without Exegesis Spatial Data Management Ltd’ prior written permission. Each party’s obligations under this Section 10 shall apply at all times during the term of this Agreement and for five (5) years following termination of this Agreement, provided, however, that (i) obligations with respect to source code shall survive in perpetuity and (ii) trade secrets shall be maintained as such until they fall into the public domain.
11. Governing Law
This License will be governed by the law of the State of North Carolina, U.S.A., without regard to the conflict of laws principles thereof. If any dispute, controversy, or claim cannot be resolved by a good faith discussion between the parties, then it shall be submitted for resolution to a state or Federal court or competent jurisdiction in Charlotte, North Carolina, USA, and the parties hereby agree to submit to the jurisdiction and venue of such court. The Uniform Computer Information Transactions Act and the United Nations Convention on the International Sale of Goods shall not apply to this Agreement. Failure of a party to enforce any provision of this Agreement shall not constitute or be construed as a waiver of such provision or of the right to enforce such provision.
12. Entire Agreement
This Agreement shall constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous communications regarding the subject matter hereof. Use of any purchase order or other Licensee document in connection herewith shall be for administrative convenience only and all terms and conditions stated therein shall be void and of no effect unless otherwise agreed to in writing by both parties. In cases where this license is being obtained through an approved third party, these terms shall supersede any third-party license or purchase agreement.
13. No Assignment
You may not assign, sub-license, sub-contract, or otherwise transfer this Agreement, or any rights or obligations under it, without prior written consent from Exegesis Spatial Data Management Ltd.
14. Survival
Any provisions of the Agreement containing license restrictions, including but not limited to those related to warranties and warranty disclaimers, confidentiality obligations, limitations of liability and/or indemnity terms, and any provision of the Agreement which, by its nature, is intended to survive shall remain in effect following any termination or expiration of the Agreement.
14. Severability
If a particular provision of this Agreement is terminated or held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, this Agreement shall remain in full force and effect as to the remaining provisions.
15. Force Majeure
Neither party shall be deemed in default of this Agreement if failure or delay in performance is caused by an act of God, fire, flood, severe weather conditions, material shortage or unavailability of transportation, government ordinance, laws, regulations or restrictions, war or civil disorder, or any other cause beyond the reasonable control of such party.
16. Export Classifications
You expressly agree not to export or re-export Exegesis Spatial Data Management Ltd Software or Your Integrated Product to any country, person, entity or end user subject to U.S. export restrictions. You specifically agree not to export, re-export, or transfer the Software to any country to which the U.S. has embargoed or restricted the export of goods or services, or to any national of any such country, wherever located, who intends to transmit or transport the products back to such country, or to any person or entity who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government. You warrant and represent that neither the U.S.A. Bureau of Export Administration nor any other federal agency has suspended, revoked or denied Your export privileges.
17. Commercial Software
The Programs and the Documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §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.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND THIS AGREEMENT, AND UNDERSTAND THAT BY CONTINUING THE INSTALLATION OF THE SOFTWARE PRODUCT, BY LOADING OR RUNNING THE SOFTWARE PRODUCT, OR BY PLACING OR COPYING THE SOFTWARE ONTO YOUR COMPUTER HARD DRIVE, YOU AGREE TO BE BOUND BY THIS AGREEMENT’S TERMS AND CONDITIONS. YOU FURTHER AGREE THAT, EXCEPT FOR WRITTEN SEPARATE AGREEMENTS BETWEEN Exegesis Spatial Data Management Ltd AND YOU, THIS AGREEMENT IS A COMPLETE AND EXCLUSIVE STATEMENT OF THE RIGHTS AND LIABILITIES OF THE PARTIES.