Software End User License Agreement
READ BEFORE USING
THIS SOFTWARE END USER LICENSE AGREEMENT (“AGREEMENT”) IS FOR ANY OR ALL OF THE HAIVISION SOFTWARE PRODUCT(S) LICENSED, DOWNLOADED, INSTALLED AND/OR ACTIVATED BY YOU (“PRODUCT”). THE PRODUCT IS PROTECTED BY NATIONAL AND INTERNATIONAL COPYRIGHT LAWS AND TREATIES. READ THE TERMS OF THE FOLLOWING AGREEMENT CAREFULLY. BY CLICKING THE ACCEPT BUTTON ON THIS AGREEMENT, OPENING THE SHRINK-WRAP AROUND OR USING THE PRODUCT OR ANY PORTION THEREOF, OR BY USING OR DISTRIBUTING ANY VIDEO INFORMATION ENCODED BY, DECODED BY OR OTHERWISE MANIPULATED OR PASSED THROUGH THE PRODUCT, YOU CONFIRM YOUR ACCEPTANCE OF THIS AGREEMENT. THIS AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU (A SINGLE CORPORATE ENTITY) AND HAIVISION. IF YOU DO NOT AGREE TO THESE TERMS, HAIVISION IS UNWILLING TO LICENSE THE PRODUCT TO YOU AND YOU ARE NOT AUTHORIZED TO INSTALL OR USE THE PRODUCT. NOTWITHSTANDING SECTION 6.5 BELOW, THIS AGREEMENT ONLY GOVERNS THE PRODUCT(S) IF A SEPARATE SOFTWARE END USER LICENSE AGREEMENT HAS NOT BEEN SIGNED PRIOR TO THIS AGREEMENT FOR THE PRODUCT OR THE AGREEMENT IS NOT SUPERSEDED BY A SEPARATE SOFTWARE END USER LICENSE AGREEMENT FOR THE PRODUCT AT A LATER DATE.
1 DEFINITIONS
1.1. Entitlement. The collective set of applicable documents (e.g., warranty, support and maintenance documents, data sheets, etc.) authorized by Haivision Systems Inc. or its affiliate Haivision (collectively, “Haivision) evidencing your obligation to pay associated fees (if any) for the license, associated Services, and the authorized scope of use of Product under this Agreement. The collective set of applicable documents (e.g., warranty, support, and maintenance documents, data sheets, etc.) autho- rized by Haivision Systems Inc. or its affiliate Haivision (collectively, “Haivision”) evidencing your obligation to pay associated fees (if any) for the license, associated Services, and the authorized scope of use of Product under this Agreement.
1.2. License Fee. License Fee shall mean the consideration paid to Haivision for use of the Product. The License Fee is part or all of the price paid for the relevant Product.
1.3. Product. Product shall mean the executable version of Haivision’s computer software, program or code, in object code format (specifically excluding source code), together with any related material including, but not limited to the hardware, Reference Manuals or database schemas provided for use in connection with the Product and including, without limitation, all Upgrades through the date of installation.
1.4. Reference Manuals. Reference Manuals shall mean the most current version of the documentation for use in connection with the Product provided by Haivision to You.
1.5. Third-Party Content. Services or materials, which are not proprietary to Haivision or may not be part of the materials of the company, entity or individual using the Product.
1.6. Updates. Updates shall mean any periodic software releases, additions, fixes, and enhancements thereto, release notes for the Product and related Reference Manuals, (other than those defined elsewhere in this section as Upgrades) which have no value apart from their operation as part of the Product and which add minor new functions to the Product, but none so significant as to warrant classification as an Upgrade, which may be provided by Haivision to fix critical or non- critical problems in the Product on a scheduled, general release basis. Updates to the Product (“Version”) are denoted by number changes to the right of the decimal point for a version and revision number (for example, going from 2.0.0 to 2.1.0).
1.7. Upgrades. Upgrades shall mean any modification to the Product made by Haivision, which are so significant, in Haivision’s sole discretion, as to warrant their exclusion under the current license grant for the Product. Upgrades of Product are denoted by number changes to the left of the decimal point for a release number (for example, going from 2.0 to 3.0).
1.8. You (or Your). The legal entity specified in the Entitlement, or for evaluation purposes, the entity performing the evaluation.
2 RIGHTS AND RESTRICTIONS
2.1. License to Use. Subject to the terms and conditions set forth herein and subject to the terms of your Entitlement, Haivision hereby grants to You a non-exclusive, personal, limited and non-transferable right and license to use the Product in accordance with the terms of this Agreement. This license is granted to You and not, by implication or otherwise, to any parent, subsidiary or affiliate of Yours without Haivision’s specific prior written consent. This license is for the limited use of the Product by You for the purpose of creating, managing, distributing and viewing IP Video assets. This license does not grant any license for content whatsoever. All rights not expressly granted to You by this Agreement are reserved by Haivision.
2.2. Restrictions.
(a) Reproduction. You shall not copy, modify, distribute, use or allow access to any of the Product, except as explicitly permitted under this Agreement and only in the quantities designated in the Entitlement. However, You have the right to make copies of the Product solely for archival purposes, but only in quantities necessary and typical for your Organization. You shall not modify, adapt, translate, export, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code, hardware designs or other proprietary information from the Product or any internal data files generated by the Product, or use the Product embedded in any third party hardware or software. You shall also not use the Product in an attempt to, or in conjunction with, any device, program or service designed to circumvent technological measures employed to control access to, or the rights in other work protected by copyright laws. You shall not remove, modify, replace or obscure Haivision’s copyright and patent notices, trademarks or other proprietary rights notices affixed to or contained within any Product. No right is granted hereunder for any third party who obtains access to any Product through You to use the Product to perform services for third parties. Most sublicensing arrangements are prohibited under this Agreement. However, if You are a Reseller, You are permitted to sublicense the Product to single end-users under terms and conditions similar to the provisions of this Agreement; however, You are responsible and liable pursuant to the terms and conditions of this Agreement for Your sublicensees' actions and failures to take required actions with respect to the Product.
(b) Ownership. The Product is conditionally licensed and not sold. As between the parties, Haivision and/or its licensors owns and shall retain all right, title and interest in and to all of the Product, including all copyrights, patents, trade secret rights, trademarks and other intellectual property rights therein, and nothing in this Agreement shall be deemed to transfer to You any ownership or title to the Product. You agree that you will not remove, alter or otherwise obscure any proprietary rights notices appearing in the Product. All Haivision technical data and computer software is commercial in nature and developed solely at private expense.
3 TERM AND TERMINATION
3.1. Term. The license and service term are set forth in your Entitlement(s). Additionally, this Agreement may be terminated without cause by You upon thirty (30) days written notice to Haivision.
3.2. Termination for Breach. Your rights under this Agreement will terminate immediately without notice from Haivision if You materially breach this Agreement or take any action in derogation of Haivision’s rights to the Product. Haivision may terminate this Agreement should any Software become, or in Haivision’s reasonable opinion likely to become, the subject of a claim of intellectual property infringement or trade secret misappropriation.
3.3. Termination for Bankruptcy. Haivision may terminate this Agreement, effective immediately, if You file, or have filed against You, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.
3.4. Termination; Effect; Survival. Upon the termination of this Agreement for any reason:
(a) All license rights granted hereunder shall terminate;
(b) You shall immediately pay to Haivision all amounts due and outstanding as of the date of such termination or expiration; and
(c) You shall return to Haivision all Product and all Haivision Reference Manuals or certify that all such Product and Reference Manuals have been destroyed. Notwithstanding any termination of this Agreement, the following provisions of this Agreement shall survive for the relevant period of time set forth therein, if any: Sections 2.2, 4, 5 and 6.
4 REPRESENTATIONS, DISCLAIMER AND LIMITATION OF LIABILITY
4.1. Limited Warranty. Haivision warrants that: (i) the Product will operate substantially in accordance with the Reference Manuals provided and (ii) any media on which the Product is provided will be free of material damage and defects in materials and workmanship under normal use for a term of ninety (90) days (the “Warranty Period”) after its delivery date. As Your sole and exclusive remedy for any breach of this warranty, Haivision will use its commercially reasonable efforts to correct any failure of the Product to operate substantially in accordance with the Reference Manuals which is not the result of any improper or unauthorized operation of the Product and that is timely reported by You to Haivision in writing within the Warranty Period, provided that in lieu of initiating commercially reasonable efforts to correct any such breach, Haivision may, in its absolute discretion, either: (i) replace the Product with other software or technology which substantially conforms to the Reference Manuals or (ii) refund to You a portion of the fee paid for the relevant Product, whereupon this Agreement shall terminate. This warranty shall immediately terminate if You or any third party makes or attempts to make any modification of any kind whatsoever to the Product, engages in any improper or unauthorized operation of the Product, including uses prohibited by the Entitlement or installs or uses the Product on or in connection with any hardware or software not specified in the Entitlement or product data sheets.
4.2. Warranty Disclaimers. THE EXPRESS WARRANTIES SET FORTH IN SECTION 4.1 ABOVE IN RESPECT TO THE PRODUCT ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, OR STATUTORY, REGARDING THE PRODUCT, OR ITS OPERATION, FUNCTIONALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS (ALL OF WHICH ARE DISCLAIMED). HAIVISION DOES NOT WARRANT THAT ANY OF THE PRODUCT(S) WILL MEET ALL OF YOUR NEEDS OR REQUIREMENTS, OR THAT THE USE OF ANY OF THE PRODUCT(S) WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE DETECTED OR CORRECTED.
4.3. Liability Limitation. IN NO EVENT SHALL HAIVISION OR ITS OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, OR MEMBERS, NOR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF THE PRODUCT, BE LIABLE TO YOU, YOUR CUSTOMERS OR TO ANY OTHER THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES, LOST PROFITS, LOSS OF USE, INTERRUPTION OF BUSINESS OR FOR ANY DAMAGES FOR ANY BREACH OF THE TERMS OF THIS AGREEMENT OR FOR LOST OR CORRUPTED DATA ARISING FROM ANY CLAIM OR ACTION HEREUNDER, BASED ON CONTRACT, TORT OR OTHER LEGAL THEORY (INCLUDING NEGLIGENCE)AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. HAIVISION SHALL NOT BE LIABLE FOR DAMAGES FOR ANY CAUSE WHATSOEVER IN AN AMOUNT IN EXCESS OF THE FEE PAID TO HAIVISION BY YOU FOR THE RELE- VANT PRODUCT.
5 INDEMNIFICATION
5.1. Indemnification by Haivision.
(a) Haivision shall indemnify and hold You harmless against any and all actions, claims, losses, damages, liabilities, awards, costs and expenses (including reasonable attorneys’ fees) (“Claims”) arising out of (i) any accusation or purported violation of any third person’s US and Canadian copyright, trademark, patent rights or trade secrets, proprietary information on account of Your use of the Product when used in accordance with the terms of this Agreement, or (ii) relating to or arising out of any negligence or willful misconduct on the part of Haivision or any breach by Haivision of the terms of this Agreement or any Maintenance and Support Agreement, or applicable law. You shall promptly notify Haivision in writing of any such Claim and promptly tender the control of the defense and settlement of any such Claim to Haivision. Haivision shall thereafter undertake the defense of any such Claim using counsel of its choice. You shall cooperate with Haivision, in defending or settling such Claim at the expense of Haivision; provided that Haivision shall not settle any Claim against You which would require the payment of money by You without the prior written consent of You, which consent shall not be unreasonably withheld. You shall have the right to consult and provide input into the defense with counsel of its choice at its own expense. Haivision shall not reimburse You for any expenses incurred by You without the prior written approval of Haivision, which approval shall not be unreasonably withheld.
(b) If any Product is, or in the opinion of Haivision may become, the subject of any Claim for infringement, then Haivision may, or if it is adjudicatively determined that any of the Product infringes in the manner described above (except to the extent that any translation, modification, addition or deletion or combination by You is the sole source of such Claim), then Haivision shall, at its option, either (i) procure for You the right to continue use of the Product for the term hereof, (ii) replace or modify the Product with other suitable and reasonably equivalent products so that the Product becomes non-infringing, or (iii) terminate this Agreement and refund to You a portion of the fee paid for the relevant Product.
(c) Haivision shall have no liability for: (i) the use of other than the then current release of the Product; (ii) the use of the Product other than as set forth in its accompanying documentation and as permitted herein; (iii) the modification of any of the Product by any party other than Haivision; or (iv) any infringement arising from the use of any Product by You after Haivision has issued a written notice to You requiring You to cease using such Product when Haivision exercises its option to terminate the License pursuant to Section 3.2 (collectively, “Exclusions”). SECTION 5.1 STATES HAIVISION’S ENTIRE OBLIGATION WITH RESPECT TO ANY CLAIM REGARDING THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
5.2. Indemnification by You. You shall indemnify and hold Haivision harmless against any and all Claims directly or indirectly arising out of, or in any manner whatsoever associated or connected with Your performance, purported performance or non-performance of your rights and obligations under this Agreement, and against any and all Claims incurred by or on behalf of any of the foregoing in the investigation or defense of any and all such Claims.
6 OTHER PROVISIONS
6.1. Export and Other Restrictions. This Agreement, and all Your rights and Your obligations under this Agreement, are subject to all applicable Canadian and U.S. Government laws and regulations relating to exports including, but not limited to, the U.S. Department of Commerce Export Administration Act and its associated Regulations and all administrative acts of the U.S. Government thereunder. In the event the Product or the Hardware is exported from the United States or re-exported from a foreign destination, You shall ensure that the distribution and export/re-export of the Product or the Hardware is in compliance with all laws, regulations, orders, or other restrictions of the U.S. Export Administration Act and its associated Regulations. You agree that neither you nor any of your Affiliates will export/re-export any Product, any hardware on which the Product is loaded or embedded, technical data, process, or service, directly or indirectly, to any country for which the Canadian government or United States government (or any agency thereof) requires an export license, other governmental approval, or letter of assurance, without first obtaining such license, approval or letter.
6.2. Content. Your data and/or your use of the Product may not: (i) interfere in any manner with the functionality or proper working of the Product; (ii) stream any material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless You are the owner of such rights or have permissions from the rightful owner to post the material; (iii) constitute, promote, facilitate or permit any illegal activities, including without limitation, activities that might be libelous or defamatory, invasive of privacy or publicity rights, abusive or otherwise malicious or harmful to any person or entity; (iv) distribute, share or facilitate unauthorized data, malware, viruses, Trojan horses, spyware, worms or other malicious or harmful distributions; or (v) otherwise violate, misappropriate or infringe the intellectual property, privacy, publicity, contractual or other proprietary rights of any third party.
6.3. Consent to Use Data. You agree that Haivision may collect and use technical data and related information, including but not limited to technical information about Your device, system and application software and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to You (if any) related to the Product. Haivision may use this information, as long as it is in a form that does not personally identify You, to improve its products or to provide services or technologies to You.
6.4. Transfer and Assignment. Haivision may assign, sublicense, or transfer this Agreement and/or any or all of its rights or obligations hereunder. You may not assign, transfer or delegate any of its rights or obligations hereunder (whether by operation of law or otherwise) without the prior written consent of Haivision. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving You (regardless of whether You are a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which Haivision's prior written consent is not required. Any unauthorized assignment, transfer or delegation by You shall be null and void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
6.5. Waiver and Amendment. No modification, amendment or waiver of any provision of this Agreement shall be effective, unless in writing signed by both parties. No failure or delay by either party in exercising any right, power or remedy under this Agreement, except as specifically provided herein, shall operate as a waiver of any such right, power or remedy. Without limiting the foregoing, any additional legal terms and conditions submitted by You in any other documents, including but not limited to the Entitlement, shall be of no legal force or effect.
6.6. Enforcement by Third Party. For any Product licensed by Haivision from other suppliers, the applicable supplier is a third party beneficiary of this Agreement with the right to enforce directly the obligations set forth in this Agreement against You.
6.7. Third Party Content. Haivision is not responsible for examining or evaluating the data, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of any Third Party Content. Haivision does not warrant or endorse and does not assume and will not have any liability or responsibility to You or any other person for any Third Party content. You agree that any Third Party Content may contain proprietary information and material that is protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not use such proprietary content, information or materials in any way whatsoever except for permitted uses of the Third Party Content.
6.8. Third Party Royalties. Your further reuse, retransmission, rebroadcast, display or other distribution of your Third Party Content using the Product may require that you obtain a license from and / or pay royalties to the owners of certain third party audio and video formats. You are solely responsible for obtaining such licenses and paying such royalties.
6.9. Governing Law/Submission to Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the Province of Québec, Canada and the Laws of Canada applicable therein (excluding any conflict of laws rule or principle, foreign or domestic), exclusive of the U.N. Convention on the International Sale of Goods. You hereby consent to the jurisdiction of any provincial or federal court located within the Province of Quebec and waive any objection which You may have based on improper venue or forum non conveniens to the conduct of any proceeding in any such court.
6.10. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.
6.11. Force Majeure. Neither party shall be liable to the other party for any failure or delay in performance to the extent that such delay or failure is caused by fire, flood, explosion, war, terrorism, embargo, government requirement, labor problems, export controls, failure of utilities, civil or military authority, act of God, act or omission of carriers or other similar causes beyond its control. If any such event of force majeure occurs, the party delayed or unable to perform shall give immediate notice to the other party, and the party affected by the other's delay or inability to perform may elect, at its sole discretion, to terminate this Agreement or resume performance once the condition ceases, with an option in the affected party to extend the period of this Agreement up to the length of time the condition endured. Unless written notice is given within 30 calendar days after the affected party is notified of the condition, the latter option shall be deemed selected. During an event of force majeure, the affected party shall exercise reasonable effort to mitigate the effect of the event of force majeure.
6.12. Entire Agreement. This Agreement, together with the Entitlement and all other documents that are incorporated by reference herein, constitutes the sole and entire agreement between Haivision and You with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
6.13. Language. The parties confirm that it is their wish that this Agreement, together with the Entitlement and any other documents relating hereto, have been and shall be drawn up in the English language only. Les parties conferment que c’est leur volonte expresse que ce contrat et tous documents y etant relative, y compris les bons de commande, le avis, le anneses, les autorisations, les pieces jointes et les amendments soient rediges en la langue anglais seulement.
6.14. Headings Not Controlling. The headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement.
6.15. US Government Rights. Some Products are commercial computer software, as such, term is defined in 48 C.F.R. §2.101.
Accordingly, if You, as the Licensee, is the US Government or any contractor therefor, You shall receive only those rights with respect to the Product and Reference Materials as are granted to all other end users under license, in accordance with:
(a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors;
or
(b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
6.16. Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given:
(a) When delivered by hand (with written confirmation of receipt);
(b) When received by the addressee if sent by a nationally recognized overnight courier (receipt requested);
(c) On the date sent by facsimile (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or
(d) On the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid.
Such communications must be sent to the respective parties at the addresses set forth on the Entitlement (or to such other address as may be designated by a party from time to time in accordance with this Section 6.16.)
If you have questions, please contact Haivision Systems Inc., at 4445 Garand, Montréal, Québec, H4R 2H9 Canada or legal@haivision.com.
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