Effective: January 1, 2019
NAYA P.A.I TECHNOLOGIES INC. migVisor EMBEDDED LICENSE AGREEMENT
This is a license agreement (“License Agreement”) between you (“User”) and NAYA P.A.I TECHNOLOGIES INC. (“NAYA”). BY CLICKING ON THE “AGREE” BUTTON, OR BY INSTALLING, COPYING, DOWNLOADING OR OTHERWISE USING ANY PORTION OF THIS SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE AGREEMENT, DO NOT INSTALL, COPY, DOWNLOAD OR OTHERWISE USE THE SOFTWARE.
For the purpose of this Agreement: “Documentation” means the instructions and explanatory material (if any) provided with the Software in printed or electronic form; “License Key” means the license key provided with the Software, if license key is required, to enable activation of the Software for the Permitted Use; “Permitted Use” means the permitted use of the Software as described in the Agreement; “Software” means NAYA migVisor software and/or migVisor software accompanying this license.
2. Proprietary Rights.
NAYA is the sole and exclusive owner of all rights, title, and interests in and to the Software, including any and all source code, developments, modifications, enhancements, improvements and trade secretes made thereto (including any and all customization of the Software by Naya). This Agreement is not an assignment of any intellectual property rights in the Software to the User, other than Permitted Use. For the avoidance of doubt, all rights to the Software not expressly granted to the User under this Agreement are reserved by NAYA or its suppliers and distributers.
3. Permitted Use of the Software.
The User is hereby permitted to use the Software solely in compliance with the terms of this Agreement and subject to the restriction mentioned below.
4. Terms of License.
Provided that the User complies with the terms and conditions of this Agreement, NAYA hereby grants the User a non-exclusive, non-transferable license (“License”) to use the Software and the Documentation, subject to the following restrictions:
a. Installation and Permitted Use of Software. The User may install and use one (1) copy of the Software solely for the User’s own internal business purposes in accordance with the Permitted Use. The User may reproduce the Software to make one (1) copy in machine-readable form solely for back-up purposes, provided that the User reproduces all proprietary notices on the copy.
b. Additional Actions. In order to enable additional functionality built into the Software or to use the Software outside the scope of the Permitted Use, or to deploy additional business applications of the Software, (collectively “Additional Actions”), the User must purchase additional licenses from NAYA or its authorized reseller/distributor. Acquisition of each such additional license provides the User only with the right to take the Additional Actions specifically enabled by such additional license. The acquisition of such additional licenses will in no way alter the terms and conditions (including without limitation rights and restrictions with respect to use of the Software) set forth in this Agreement. Any attempt to take any Additional Action without the requisite license, or to otherwise defeat or circumvent the restrictions on use built into the Software, is prohibited and constitutes a material breach of this Agreement.
c. Restrictions. The User’s License to use the Software is solely for the User’s internal data computing and processing needs in accordance with the Permitted Use and in accordance with the Documentation. The User may not: (a) prepare derivative works based on the Software, (b) reproduce the Software except as explicitly provided herein, (c) sell, assign, transfer, license, sublicense, publish, disclose, display, or otherwise make available the Software or copies thereof in any form whatsoever to any third parties (including but not limited to the User’s own customers, suppliers, partners, or any related entities), or use the Software for any third party’s data processing, computing, or other needs. The User may not modify, translate, reverse engineer, decompile or disassemble the Software. The User may not remove any proprietary notices, labels, or marks on the Software and any permitted copies thereof must contain such notices, labels, or marks.
EXCEPT FOR ANY EXPRESS LIMITED WARRANTIES PROVIDED IN THIS AGREEMENT, NAYA AND ITS SUPPLIERS AND AUTHORIZED RESELLERS/DISTRIBUTORS MAKE NO, WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. NAYA AND ITS SUPPLIERS AND AUTHORIZED DISTRIBUTORS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. NAYA AND ITS SUPPLIERS AND AUTHORIZED RESELLERS/DISTRIBUTORS DO NOT WARRANT THAT THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. THE USER ASSUMES THE RESPONSIBILITY FOR THE SELECTION OF THE SOFTWRE AND HARDWARE TO ACHIEVE THE INTENDED RESULTS AND FOR THE INSTALLATION, USE, AND RESULTS OBTAINED FROM THE SOFTWARE.
6. LIMITATION OF LIABILITY.
IN NO EVENT NAYA OR ITS SUPPLIERS OR AUTHORIZED RESELLERS/DISTRIBUTORS WILL BE LIABLE FOR ANY LOSS OF DATA, LOSS OF INCOME, LOSS OF OPPORTUNITY OR PROFITS, OR COST OF RECOVERY, OR FOR ANY OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES ARISING FROM THE USE OF THE SOFTWARE, OR ACCOMPANYING DOCUMENTATION, CAUSED AND ON ANY THEORY OF LIABILITY. THIS LIMITATION WILL APPLY EVEN IF NAYA, ITS SUPPLIERS, OR AUTHORIZED DISTRIBUTORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT SHALL NAYA’S LIABILITY EXCEED THE AMOUNT PAID FOR THE LICENSED SOFTWARE AT ISSUE. THE USER ACKNOWLEDGES THAT THE LICENSE FEE REFLECTS THIS ALLOCATION OF RISK.
7. Export Restriction.
The User agrees not to export or re-export the Software in any form without the written consent of Naya and complying with all appropriate United States and foreign government licenses. The User will not, directly or indirectly, export or transfer the Software to any country to which transmission is prohibited by applicable statute. Failure to comply with this provision is a material breach of this Agreement.
8. Term and Termination.
This Agreement is effective until terminated by either party. The User may terminate this Agreement at any time by removing the Software from the computer and returning all copies of the Software. Unauthorized reproduction or modification of the Software or of the Documentation, failure to make any payment for the license when due, or other material failure to comply with the terms and conditions of your Commercial Agreement or of this License Agreement will result in the termination of this License Agreement and your license, and NAYA will have such other remedies as are available under law. This License Agreement will terminate upon the expiration of your license in accordance with the terms of your Commercial Agreement. Upon termination of this License Agreement, the license granted herein will terminate and you must immediately return to NAYA or destroy the Software and Documentation, and all back-up copies thereof, and provide NAYA with written certification of such return or destruction.
This Agreement represents the complete agreement concerning the License of the Software from NAYA. This Agreement may be amended only by a writing executed by both parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be amended only to the extent necessary to make it enforceable. This Agreement and the rights under this Agreement may not be assigned by the User without the prior written consent of Naya. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of laws provisions thereof. Any and all disputes arising out of or in connection with the execution, interpretation, performance, or nonperformance of this Agreement shall be subject to the personal and exclusive jurisdiction and venue of the applicable state and federal courts located in California.