Software License Agreement – Indigo.Design and Indigo Studio
Please read this license agreement (the "License") carefully before clicking the “I ACCEPT” button unlocking access to the SOFTWARE (as described below). This license is a legal agreement between Infragistics, Inc. (“Infragistics”) and You (as defined below) and by clicking the “I ACCEPT” button, You are agreeing that You have READ ALL OF THE TERMS AND CONDITIONS set forth below, UNDERSTAND ALL OF THE TERMS AND CONDITIONS of this License and AGREE TO BE BOUND BY THE TERMS AND CONDITIONS of this License. As used in this License, “You” means the person or company seeking to acquire the rights and obligations under this License and, with respect to any company expressly excludes its parents, subsidiaries and affiliates. Any person entering into this License on behalf of a company, hereby represents that such person: (i) is an employee or agent of such company; and (ii) has the authority to enter into this License on behalf of such company.
INFRAGISTICS IS WILLING TO LICENSE THE SOFTWARE TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS LICENSE.
IF YOU DO NOT AGREE TO ANY OF THE TERMS AND CONDITIONS OF THIS LICENSE, YOU MUST CLICK ON THE “CANCEL” BUTTON. If You click the “CANCEL” button, the SOFTWARE shall remain locked and You agree NOT TO ATTEMPT to circumvent, un-lock or otherwise open and use the SOFTWARE and any and all rights You might acquire/have acquired with respect to the SOFTWARE shall terminate. The “effective date” of this License is the date upon which You click the “I ACCEPT” button.
As between the parties, Infragistics and its licensors owns all right, title and interest in and to the Indigo.Design and Indigo Studio computer software (v1.x (e.g., 1.1, 1.2)) and associated materials including any related documentation such as standard training, user, or reference manuals delivered in machine readable form or on-line at the Infragistics website (collectively, the “SOFTWARE”) and any and all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing embodied therein (“Intellectual Property Rights”). The SOFTWARE is licensed, not sold, to You by Infragistics. There are no implied licenses and Infragistics retains all rights not expressly granted to You in this License. All corrections, bug fixes, enhancements, modifications, updates, and minor releases, in each case denoted by a change to the right of the decimal point (e.g. 1.0 to 1.1) and made generally available to licensees (collectively, “Updates”) by or on behalf of Infragistics and provided or made available to You as part of the SOFTWARE, together with all applicable Intellectual Property Rights, will be owned by Infragistics, but will be included as part of the SOFTWARE for purposes of the license granted to You hereunder.
II. LICENSES; RESTRICTIONS.
A. Subject to the terms of this License, Infragistics hereby grants to You, and You accept, during the term (see Section VI), a non-exclusive, non-transferable, non-sublicensable, limited license to access, use, and copy (as set forth in Section II(E)) the SOFTWARE and any Updates thereto, in executable code form, as authorized in this Section II.
B. You may install, copy (as set forth below), and use the SOFTWARE on one or more computers or on Your network server, as long as the use of the SOFTWARE is limited to You, Your employees, contractors, consultants and agents. You agree to use the SOFTWARE only for Your own business. Your employees, contractors, consultants and agents may use the SOFTWARE only for the sole benefit of You and in compliance with the terms of this License.
C. Except as otherwise expressly permitted hereunder, You shall not: (i) permit any affiliated entities or third parties to use the SOFTWARE, (ii) reverse engineer or otherwise attempt to recreate all or any portion of the SOFTWARE, or use the SOFTWARE to develop functionality similar to or competitive with the SOFTWARE; or (iii) modify, translate or create any derivative work of all or any portion of the SOFTWARE. Under no circumstances shall You sell, license, publish, display, distribute, or otherwise transfer to a third party the SOFTWARE or any copy thereof, in whole or in part, without Infragistics’ express, prior written consent. You agree to secure all necessary rights and obligations from Your employees, contractors, consultants and agents in order to satisfy the foregoing obligations. In the event of any violation of the foregoing, either independently or jointly with any third party, any modifications, enhancements, or derivative works and all Intellectual Property Rights associated therewith will be the exclusive property of Infragistics. For the avoidance of doubt, the incorporation of elements/software components of the SOFTWARE in Your prototypes (and to the extent such elements/components may be embedded in any of Your final products) shall not be deemed creation of a derivative work under this License; provided, that: (a) Your prototypes are NOT the basis for creating (and any related products of Yours are NOT) a product that provides the same, or substantially the same, functionality as the SOFTWARE; and (b) any products developed and made available to the public shall be offered in executable code form, only.
D. Solely with respect to the documentation included or otherwise made available as part of the SOFTWARE, You may make a copies (either in hardcopy or electronic form); provided, that such copies shall be for Your internal use only as required to exercise Your rights hereunder and are not to be republished or distributed to any third party.
E. Copies of the SOFTWARE may be made solely to enable You to use the SOFTWARE and for archival and disaster recovery purposes; provided, that all such copies of the SOFTWARE and all copies under Section II(C) of the included/available documentation made by You or Your employees, contractors, consultants and agents shall include Infragistics’ copyright, trademark, service mark, and other proprietary notices in the same form and location as the notice appears on the original work. All such copies are, and shall remain, the exclusive property of Infragistics.
III. PROTOTYPE HOSTING.
A. Interactive prototypes developed using the SOFTWARE (i.e., programs, art work, digital images, web pages, etc.) can be posted by You to Infragistics’ prototype hosting server(s) for publication to the world-wide web and the URL to such prototype shared by You, either password protected or unprotected, with Your employees, contractors, consultants, and agents for interactive design exploration (the “Hosting Services”). The provisions of this Section III apply to all users of the Hosting Services including You and Your employees, contractors, consultants, and agents. Any actual or attempted violations of this Section III by You, Your employees, contractors, consultants, or agents, shall be considered violation of the License and, in addition to any other rights at law or in equity, may, at the option of Infragistics, result in the termination of Your rights to use the Hosting Services and/or the termination of the License in its entirety. Use of Hosting Services constitutes acceptance of the terms and conditions of this Section III.
B. YOU UNDERSTAND AND ACKNOWLEDGE THAT THE HOSTING SERVICES ARE PROVIDED “AS IS”, AND THAT INFRAGISTICS MAKES NO GUARANTEE THAT THE HOSTING SERVICES WILL BE AVAILABLE OR THAT YOUR PROTOTYPE WILL BE ACCESSIBLE, AVAILABLE FOR USE OR USEFUL.
C. Any prototype posted by You will be generally available via its URL for 90 days from the date of posting to the Infragistics server(s). Infragistics will not examine the contents of any password-protected URL (or the prototype(s) contained therein); except, to the extent requested by You, Your employees, contractors, consultants, and agents or to the extent Infragistics reasonably believes the materials located at such URL violate the terms of this Section III or applicable laws. You agree to provide Infragistics’ with all relevant information reasonably requested to enable Infragistics to authenticate Your password-protected URLs. Infragistics will remove any posted prototype at Your request; provided, that You can establish to Infragistics’ reasonable satisfaction that such posted prototype is Yours.
D. The Hosting Services may only be used for lawful purposes. Publishing/sharing of any material in violation of any applicable U.S. federal or state, foreign national, provincial or state, or international laws, statutes, directives or regulations is prohibited. This includes, but is not limited to, material copyrighted by third party(ies), material reasonable deemed to be threatening or obscene, or material protected by trade secret and violation of applicable data privacy laws. Infragistics also reserves the right to remove any unprotected prototypes (and, to the extent Infragistics becomes aware of any password-protected prototypes) that it deems an abuse of the Hosting Services including, by way of example, any file, video or image sharing materials, any advertising (including promotion of competitive software products), or materials considered by Infragistics to be profane, indecent, or discriminatory.
E. You hereby acknowledge that any security safeguards, including passwords created by You, related to the Hosting Services are, by their nature, capable of circumvention and Infragistics does not and cannot guarantee that posted prototypes or other information cannot be accessed by unauthorized persons capable of overcoming such safeguards. In particular, the SOFTWARE and Hosting Services may be used to access and transfer information, including the prototypes, over the internet. YOU ACKNOWLEDGE AND AGREE THAT INFRAGISTICS DOES NOT OPERATE OR CONTROL THE INTERNET AND THAT: (i) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; OR (ii) UNAUTHORIZED USERS (e.g., HACKERS); MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE THE HOSTING SERVICES AND/OR YOUR PROTOTYPE(S) AND THAT INFRAGISTICS SHALL HAVE NO LIABILITY WITH RESPECT TO ANY SUCH ACTIVITIES.
F. INFRAGISTICS MAKES NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE HOSTING SERVICES OR ANY PART THEREOF, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, AVAILABILITY, RELIABILITY, USEFULNESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. NEITHER INFRAGISTICS NOR ANY OF ITS LICENSORS OR SUPPLIERS WARRANT THAT THE HOSTING SERVICES OR ANY PART THEREOF WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, AVAILABLE, SECURE OR ERROR-FREE, OR THAT ANY ERRORS WILL BE CORRECTED OR CORRECTABLE OR FOR ANY OMISSIONS IN EITHER WEB HOSTING OR ACCESS SERVICES.
Infragistics shall provide You with standard, customer support as further described in, and in accordance with, Infragistics’ current support policies available at http://www.infragistics.com/help/support-policies/ (as such policies may be updated or amended by Infragistics, in its sole discretion
A. Each Party hereto acknowledges that during the term of this Agreement it may receive certain Confidential Information (as defined below) of the other Party. Except as expressly set forth herein, Infragistics and You each agree to retain in confidence all Confidential Information disclosed by one party (the “disclosing party”) to the other party (the “receiving party”), as the case may be, pursuant to this Agreement in any form (written, oral, photographic, electronic, magnetic, or otherwise) and to only disclose the disclosing party’s Confidential Information to its employees, contractors and advisors who have a need to know same.
B. Each party agrees to: (i) preserve and protect the confidentiality of the disclosing party’s Confidential Information using the same standard of care that it would use to secure and safeguard its own Confidential Information, but in no event less than reasonable care; (ii) refrain from using the disclosing party’s Confidential Information except as contemplated herein; and (iii) not disclose the disclosing party’s Confidential Information to any third party except to its employees, contractors, consultants or agents as is reasonably required to perform its rights or exercise its obligations under this Agreement. Each receiving party shall, at its own expense, immediately notify disclosing party of any unauthorized possession, use or knowledge, or attempt thereof, of disclosing party’s Confidential Information by any third party. You further agree to: (a) adopt the action(s) necessary to ensure that its employees and any other third parties to whom You discloses any Confidential Information of Infragistics are legally bound by the confidentiality obligations hereunder, and (b) inform its employees and such third parties of its confidentiality and other obligations hereunder and instruct them not to attempt to circumvent any such security procedures and devices.
C. As used in this Section V, “Confidential Information” means: (i) any and all proprietary information, formulae, patterns, compilations, technology, software (in source, binary, object or executable code or any other form), firmware, code, hardware, documentation, developments, inventions, lists, trade secrets, technical data, data compilations, processes, programs, devices, designs, drawings, methods, techniques, know-how, research, plans (marketing, business, strategic or otherwise), customer information and other business arrangements, pricing and other financial data, and any and all Intellectual Property Rights related thereto that is reasonably understood, in light of the nature of the information or the circumstances of disclosure, to be confidential or proprietary; and (ii) any information that is designated in writing to be confidential or proprietary, or if given orally, is designated at the time of disclosure as being confidential or proprietary, or that reasonably could be considered of a proprietary or confidential nature. Without limiting the foregoing, You acknowledge and agree that the SOFTWARE provided to you pursuant to this License, as well as any Updates thereto contain trade secrets, know-how and other confidential and proprietary information including, without limitation, the concepts, techniques, ideas, algorithms, methods, and structure and design elements embodied and expressed in any computer programs or modules included in the SOFTWARE, as well as the structure, sequence and organization of such programs or modules that is the exclusive property of, and Confidential Information of, Infragistics. Notwithstanding the foregoing, Confidential Information shall not include information that: (a) has become publicly known and made generally available other than through any act or omission of the receiving party; (b) was already or becomes known by the receiving party without restriction as to use or disclosure and was not acquired from the disclosing party; or (c) was independently developed by the receiving party without reference to or reliance upon the Confidential Information of the disclosing party and as shown by receiving party’s competent written records.
VI. TERM; TERMINATION.
A. The term of this License will commence on the Effective Date and will remain in effect in perpetuity, unless otherwise terminated in accordance with this Section VI.
B. You may voluntarily terminate this License at any time by deleting or destroying all copies of the SOFTWARE including copies made in the usual course of business for back-up and disaster recovery purposes; provided, that, all such copies shall be erased/deleted from Your system in the event of any systems restore or other access of the media on which such back-up or disaster recovery copies are stored. You agree to provide to Infragistics proof of such destruction that is acceptable to Infragistics in its reasonable discretion.
C. This License and your right to use the SOFTWARE will terminate immediately, without notice from Infragistics, if You fail to comply with the terms and conditions of this License including, for the avoidance of doubt, the terms of Section III; provided, that, upon any failure to comply with the terms and conditions of Section III, Infragistics may, upon Your request, and in its sole discretion, elect to reinstate this License minus the Hosting Services, subject to Your agreement, in writing, to restrictions and remedies in the event of any prohibited use of such Hosting Services or future failure to meet the other obligations of the reinstated License. This Section VI(C) is in addition to and not in lieu of any criminal, civil or other remedies available to Infragistics at law or in equity.
D. Upon any termination of this License, all rights granted to You in the SOFTWARE and under this License will immediately cease. You agree to destroy the SOFTWARE (including all accompanying documentation) and all copies thereof in any form including copies made in the usual course of business for back-up and disaster recovery purposes; provided, that, all such copies shall be erased/deleted from Your system in the event of any systems restore or other access of the media on which such back-up or disaster recovery copies are stored. You agree to provide to Infragistics proof of such destruction that is acceptable to Infragistics in its reasonable discretion. Infragistics and You also agree to return to the other any of the other party’s Confidential Information (and copies thereof) in its or Your possession or control.
E. In addition to this Section VI, the following Sections will survive any termination or of this License: V, VII, VIII, IX and XIII.
A. In addition to the other requirements set forth in this License, You hereby agree to indemnify, hold harmless, and defend Infragistics from and against any and all liabilities, damages, losses, costs and expenses (including reasonable attorneys' fees) arising from or related to any claim, action, proceeding or allegation that arises or results, either directly or indirectly, from: (i) Your use and the use by Your employees, contractors, consultants and agents of the SOFTWARE; (ii) any breach by You or them of the terms of this License; and (iii) the use and distribution of any of Your prototypes and/or the resulting software product(s) or components. You also agree to indemnify, hold harmless, and defend Infragistics from and against any and all liabilities, damages, losses, costs and expenses (including reasonable attorneys' fees) arising from or related to any claim, action, proceeding or allegation that arises or results, either directly or indirectly, from Your use and the use by Your employees, contractors, consultants and agents of the Hosting Services.
B. Infragistics will indemnify, defend and hold You harmless against any third-party claims, demands, causes of action or suits of whatsoever kind or nature for damages, losses, costs and expenses (including, without limitation, reasonable attorneys' fees) to the extent arising out of or based on allegations that the SOFTWARE infringes such third party’s Intellectual Property Rights, subject to: (i) You promptly notifying Infragistics in writing of any third party claim, (ii) You giving Infragistics full authority and control of any such claim with counsel of Infragistics’ choice, and (iii) You providing Infragistics, at Infragistics’ cost and expense, information and assistance for defense of any such claim. If any such claim occurs, or in Infragistics' opinion is likely to occur, Infragistics may, at its option and expense, procure for You the right to continue using the infringing item(s) or to replace or modify the same so that it becomes non-infringing or, if neither of the foregoing alternatives is reasonably available, terminate this License. Notwithstanding the foregoing, Infragistics shall have no liability for any claim to the extent arising from or based on: (a) the combination, operation, or use of the SOFTWARE with any third-party content, software or hardware where an infringement would not exist but for such combination, operation or use, (b) any alteration or modification of the SOFTWARE by any person other than Infragistics, (c) the use of other than the most recent version of the SOFTWARE if the infringement or claim would have been avoided by use of the most recent version, (d) use of the Software in any way not contemplated under this Agreement, or (e) use of any prototypes or developments You make while using the SOFTWARE or the Hosting Services. THE FOREGOING STATES THE ENTIRE OBLIGATION OF INFRAGISTICS AND ITS SUPPLIERS WITH RESPECT TO INFRINGEMENT OF PROPRIETARY RIGHTS, INCLUDING BUT NOT LIMITED TO PATENTS AND COPYRIGHTS.
XIII. YOUR COVENANTS; WARRANTY DISCLAIMERS.
A. You represent, warrant and covenant that: (i) all of Your employees, contractors, consultants and agents will abide by the terms of this License; and (ii) You will comply with all applicable laws, regulations, rules, orders and other requirements, now or hereafter in effect, of any applicable governmental authority, in its performance of this License. Notwithstanding any terms to the contrary in this License, You will remain responsible for acts or omissions of all employees, contractors, consultants or agents of Yours to the same extent as if such acts or omissions were undertaken by You. You assume responsibility for the selection of the SOFTWARE to achieve your intended results, and for the installation, use, and results obtained from the SOFTWARE.
B. The SOFTWARE and the Hosting Services are each provided on an “AS IS” or “AS AVAILABLE” basis without any representations, warranties, covenants or conditions of any kind. Infragistics and its licensors and/or suppliers do not warrant that any of the SOFTWARE or Hosting Services will be free from bugs, errors, or omissions. INFRAGISTICS AND ITS LICENSORS/SUPPLIERS DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SOFTWARE WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL (i) WARRANTIES OF MERCHANTABILITY, (ii) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT INFRAGISTICS KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE), OR (III) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE. YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE RELIED ON NO SUCH WARRANTIES.
IX. LIMITATION OF LIABILITIES.
A. EXCEPT WITH RESPECT TO BREACHES OF SECTION V, IN NO EVENT SHALL INFRAGISTICS OR YOU BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, OR ANY OTHER LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR THE HOSTING SERVICES, OR IN CONNECTION WITH THIS LICENSE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF INFRAGISTICS OR YOU, AS THE CASE MAY BE, HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
B. INFRAGISTICS’ SHALL HAVE NO LIABILITY TO YOU ARISING OUT OF OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, EXCEPT FOR THE INDEMNIFICATION OBLIGATION SET FORTH IN SECTION VII(B). THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF INFRAGISTICS IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE ABSENCE OF A REMEDY.
C. Some states and jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, or the exclusion of implied warranties, so the limitations in Section VIII(B) and Section IX(A) may not apply.
X. U.S. EXPORT REGULATIONS.
U.S. law prohibits Infragistics, its licensees and resellers from exporting its products to, or supporting customers or resellers in, certain countries. For specific questions regarding export regulations, please visit the Bureau of Industry and Security web site at http://www.bis.doc.gov.
The SOFTWARE and the underlying information and technology may not be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading or using the SOFTWARE, You are agreeing to the foregoing and You represent and warrant that You are not located in, under the control of, or a national or resident of any such country or on any such list.
XI. U.S. GOVERNMENT RESTRICTED RIGHTS.
If You are acquiring the SOFTWARE on behalf of any unit or agency of the United States Government (collectively, the “Government”), the following provisions apply:
The Government agrees: (i) if supplied to the Department of Defense (DoD), the SOFTWARE is "Commercial Computer Software" and the Government acquires the SOFTWARE with "restricted rights," as defined in Clause 252.227-7013(c)(1) of the DFARS; (ii) if the SOFTWARE is supplied to any other Government unit or agency, the Government’s rights in the SOFTWARE are defined in Clause 52.227-19(c)(2) of the FAR; but if the SOFTWARE is supplied to NASA, the Government's rights are defined in Clause 18-52.227-86(d) of the NASA supplement to the FAR. Manufacturer is Infragistics, Inc., 2 Commerce Drive, Cranbury, NJ 08512.
XII. THIRD PARTY COMPONENTS.
The SOFTWARE may include certain third party components. These third party components are provided "AS IS", without warranty of any kind, express or implied, including but not limited to the warranties of merchantability, fitness for a particular purpose and noninfringement. In no event shall the authors or copyright holders be liable for any claim, damages or other liability, whether in an action of contract, tort or otherwise, arising from, out of or in connection with the third party components or the use of these components.
This License is governed by, and shall be construed in accordance with the laws of the State of New Jersey as applied to agreements entered into and to be performed entirely within New Jersey. Any suit, action or other proceeding arising out of this License or any transaction contemplated hereby shall be submitted to the exclusive jurisdiction of the United States District Court for New Jersey or any New Jersey State court and You unconditionally waive any objection to the laying of venue of any such action, suit or proceeding in such courts and further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such action, suit or proceeding brought in such court has been brought in an inconvenient forum. This License is the entire agreement between You and Infragistics regarding the subject matter hereof and supersedes all other agreements between us, whether written or oral, relating to this subject matter hereof. In the event of a conflict between this License and any terms of service or other information on the Infragistics web-site, this License will prevail. You may not transfer Your rights under this License to any third party. If any provision of this License is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of this License will nonetheless remain in full force and effect.