IMMUNIX OS SOFTWARE
END USER LICENSE AGREEMENT
This End User License Agreement ("EULA")
is a legal agreement between you (either an individual or a single
entity) and Immunix, Inc. ("Immunix") or a manufacturer authorized by
Immunix ("Manufacturer") of the computer system or computer system
component ("Hardware") with which you acquired the Immunix software
product(s) ("Software Products"). The Software Products include
computer software, and may include associated media, printed materials,
and "online" or electronic documentation proprietary to Immunix.
Additional software provided along with the Software Products may be
licensed under a separate end-user license agreement included in the
individual data file packages and is licensed to you under the terms of
that license agreement ("Third Party Products"). By installing,
copying, downloading, accessing or otherwise using the Software
Products, you agree to be bound by the terms of this EULA (this
"Agreement") and the licensing terms for Third Party Products. If you
do not agree to the terms of this Agreement, Immunix and Manufacturer
are unwilling to license the Software Products to you. In such event,
you may not use or copy the Software Products, and you should promptly
contact Immunix or Manufacturer for instructions on return of the
unused Software Product(s) for a refund.
This Agreement governs the licensing and/or sale of products from
Immunix and Manufacturer to End User. End User agree as follows:
1. DEFINITIONS.
1.1 "Designated Equipment" means either (a) the Hardware
equipment provided to End User in which Licensed Products is embedded
or (2) the equipment with which End User intends to use a standalone
version of the Licensed Products.
1.2 "Documentation" means materials such as users' manuals in any format related to the Software.
1.3 "Licensed Products" means software and documentation that is proprietary to Immunix provided to you under this Agreement.
1.4 "Proprietary Information" means: (a) software processes, (b)
marketing, business, or other strategies or plans, and (c) any other
trade secrets marked appropriately or identified as "proprietary or
confidential" to Immunix or its licensors. Proprietary Information
includes the internal design and implementation techniques of the
Licensed Products and the source code of the Licensed Software.
Excluded is any information that the receiving party can establish was
(1) in the public domain, (2) already in its possession or rightfully
known prior to receipt, (3) rightfully learned from a third party not
in violation of any other's proprietary rights, or (4) independently
developed.
1.5 "Licensed Software" means any computer program proprietary to
Immunix or its licensors in machine readable form furnished to End User
under this Agreement including any related update or upgrade such as
enhancements or modifications.
1.7 "Use" means storing, loading, installing, executing, or
displaying any portion of the Licensed Products by End User on any
hardware device, including but not limited to, the Designated
Equipment.
2. SCOPE OF LICENSE GRANTED.
2.1 The license granted to End User by Immunix shall be a
non-exclusive, non-transferable license to use Licensed Software on the
Designated Equipment in machine-readable form only, solely for End
User's internal business purposes (Authorized Use). End User is not
entitled to receipt or use of the source code to any Licensed Software.
End User shall not modify, decompile, disassemble or otherwise reverse
engineer the Licensed Products.
2.2 The terms of this Agreement apply to all software of Immunix or
its licensors whether obtained by End User directly from Immunix, from
Manufacturer, or indirectly from a third party.
2.3 Immunix or Manufacturer may, at their option, provide End User
with evaluation or demonstration licenses under this Agreement on an
as-is basis for a time period specified by Immunix only for the purpose
of determining whether to acquire a long-term license to the products.
3. PERMISSION TO COPY.
3.1 End User may copy Licensed Products only as reasonably necessary to support the Authorized Use.
3.2 End User shall maintain, reproduce and include in all copies of
Licensed Products all intellectual property notices and legends
included in Licensed Products as received from Immunix or Manufacturer
and shall affix to the copy and the container housing the medium all
notices and legends affixed to the medium or container as received from
Immunix or Manufacturer .
3.3 The original and all copies of Licensed Products whether
provided by Immunix, Manufacturer, or made by End User, shall be and
remain the property of Immunix.
3.4 End User shall maintain a record of the number and location of
all copies made of Licensed Products including Licensed Products that
has been merged with other software and make such record available to
Immunix or Manufacturer upon request.
3.5 End User shall completely erase the Licensed Products from the
storage media of any Designated Equipment prior to disposing of or
retiring such equipment from active use or upon termination of this
Agreement. End User must return or destroy all other copies upon
termination.
3.6 Immunix or Manufacturer may, at its option, grant End User written permission to reproduce certain Documentation.
4. PAYMENT, TRANSFERS, SUPPORT.
4.1 Unless otherwise agreed in writing, prices for Software
Products will be as set forth in Immunix's price list. Prices and
license fees do not include freight, insurance, sales tax, customs
duties or other similar charges. Any such charges or taxes will be
added to the price or separately invoiced to End User unless End User
provides Immunix or Manufacturer with a certificate of exemption from
the applicable taxing authority.
4.2 Any reproduction, reverse-engineering, electronic transfer, or
other use of the Licensed Products on other than the Designated
Equipment at the Designated Site will be a material breach of this
Agreement.
4.4 The license granted under this Agreement does not include
technical support. End User may obtain support for Licensed Software
from Immunix or Manufacturer at the support fees, terms, and conditions
currently in effect.
5. INTELLECTUAL PROPERTY.
The license set forth in this Agreement does not transfer to End
User any ownership of Immunix's, Manufacturer's, or their respective
licensors' copyrights, patents, trademarks, service marks or trade
secrets or other intellectual property rights and End User shall have
no right to commence any legal actions to obtain such rights.
6. PROPRIETARY INFORMATION.
6.1 Confidentiality. Proprietary Information shall remain
confidential and proprietary to Immunix and its licensors. The
provisions of this Section 6 shall survive termination of this
Agreement.
6.2 Protection of Confidentiality. End User shall not disclose,
provide or otherwise make available the Proprietary Information of
Immunix or its licensors to any person other than authorized employees
or contractors under confidentiality agreement or use the Proprietary
Information for other than the Authorized Use without Immunix's prior
written consent. End User shall take at least reasonable steps to
protect the Proprietary Information and shall protect it, through
instructions to its employees, access limitations, and the like, no
less securely than if it were End User's own intellectual property. No
media containing the Licensed Software, or any Documentation shall be
transferred, reproduced or used in any way other than as provided by
this Agreement.
7. LIMITED WARRANTY.
7.1 Immunix and Manufacturer warrant that Licensed Software will
conform substantially to the applicable Documentation for a period of
thirty (30) days from delivery to End User. During this period, for all
reproducible nonconformities, Immunix and Manufacturer will use
commercially reasonable efforts to remedy the nonconformities. For all
defects reported to Immunix within the warranty period, the liability
of Immunix is limited to providing End User with one copy of
corrections of each Licensed Software product, and, if End User has
technical support, to respond to End User's software problem reports
according to Immunix's standard support practices. Neither Immunix nor
Manufacturer warrant that the products will meet End User's
requirements or that use of the products will be uninterrupted or error
free, or that remedial efforts will correct any nonconformance.
7.2 EXCEPT AS PROVIDED IN THIS SECTION 7, IMMUNIX AND MANUFACTURER
MAKE NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WRITTEN OR ORAL,
WITH RESPECT TO LICENSED PRODUCTS, AND SPECIFICALLY MAKES NO WARRANTY
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. PATENT & COPYRIGHT INDEMNITY.
8.1 Immunix shall defend or settle at its option and expense any
action brought against End User alleging that any Licensed Software
product furnished by Immunix under this Agreement infringes a United
States patent or copyright and Immunix will pay any costs, damages and
attorney's fees finally awarded against End User that are attributable
to such claim, provided the End User (a) notifies Immunix promptly in
writing of the action, (b) provides Immunix all reasonable information
and assistance to settle or defend the action and (c) grants Immunix
sole authority and control of the defense or settlement of the action.
8.2 If any Licensed Product becomes, or Immunix's opinion is likely
to become, the subject of a claim of infringement, or a final
injunction is issued against End User's use of any Licensed Software
product, Immunix may at its option and expense either (a) replace or
modify the product so that it becomes non-infringing or otherwise
lawful or (b) procure for End User the right to continue using the
product. If neither of the foregoing alternatives is reasonably
available, Immunix will accept the return of the Licensed Software
product and will refund to End User the purchase price paid hereunder.
8.3 Immunix shall have no liability if the alleged infringement is
based upon (a) the combination of Licensed Software with any software
product not furnished by Immunix to End User, (b) the modification of
Licensed Software other than by Immunix, (c) the use of Licensed
Software as part of any infringing process, or (d) the use of other
than a current unaltered release of Licensed Software. This Section 8
states Immunix's and Manufacturer's entire liability and the sole and
exclusive remedy of End User with respect to any alleged patent or
copyright infringement by any product.
9. LIMITATION OF LIABILITY.
EXCEPT AS PROVIDED IN SECTION 8, NEITHER IMMUNIX NOR
MANUFACTURER SHALL BE LIABLE FOR ANY CLAIMS AGAINST END USER BY ANY
OTHER PARTY NOR SHALL IMMUNIX'S OR MANUFACTURER'S LIABILITY FOR
DAMAGES, IF ANY, WHETHER BASED UPON CONTRACT, NEGLIGENCE, STRICT
LIABILITY IN TORT, WARRANTY OR ANY OTHER BASIS, EXCEED THE PRICE OR FEE
PAID BY END USER FOR THE PRODUCT. NEITHER IMMUNIX NOR MANUFACTURER
SHALL BE LIABLE FOR LOSS OF PROFITS, LOSS OF DATA, INTERRUPTION OF
SERVICE, OR FOR ANY OTHER SPECIAL, CONSEQUENTIAL, INDIRECT, OR
INCIDENTAL DAMAGES, EVEN IF IMMUNIX AND MANUFACTURER HAVE BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. END USER MAY NOT BRING ANY ACTION
UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER MORE THAN TWO (2) YEARS
AFTER THE OCCURRENCE GIVING RISE TO SUCH CAUSE OF ACTION.
10. GOVERNMENT TERMS.
The restrictions in this Section 10 apply if End User is an
agency of the U.S. Government or if Licensed Software is licensed for
use in the performance of a U.S. Government prime contract or
subcontract. End User agrees that Licensed Software is delivered as
"Commercial Computer Software" as defined in DFARS 252.227-7013 if used
by or in the performance of a contract with the Department of Defense
(DoD) or "restricted computer software as defined in FAR 52.227-19 if
used by, or in the performance of a contract with a non-DoD U.S.
Government agency. End User agrees that the Licensed Software has been
developed entirely at private expense, all applicable contracts or
subcontracts will contain provisions necessary to assure the adequate
protection of the Licensed Software and the Licensed Software is
adequately marked when the Restricted Rights Legend below is affixed to
the Licensed Software:
Use, duplication, or disclosure by the U.S. Government is subject to
the restrictions as set forth in the U.S. Federal Acquisition
Regulations (FAR) 52.227-14(g), or 52.227-19 or in subparagraph
(c)(1)(ii) of the Rights in Technical Data and Computer Software clause
at DFARS 52.227-7013, whichever is applicable.
11. TERMINATION.
Either party may terminate this Agreement or any license granted
under this Agreement at any time upon written notice if the other party
fails to comply with any material term or condition. Upon termination
of any license, End User shall return to Immunix or Manufacturer
Licensed Products covered by this Agreement, including any copies made
of Licensed Products, and shall furnish to Immunix or Manufacturer a
certificate of compliance with this provision signed by an officer or
authorized representative of End User. Termination shall not relieve
End User of any surviving obligations under this Agreement.
12. GENERAL PROVISIONS.
12.1
Entire Agreement; Amendment.
This document contains
the entire agreement between the parties relating to the subject matter
contained herein and supersedes all prior or contemporaneous
agreements, written or oral, between the parties. This Agreement may
not be modified except by written document signed by an authorized
representative of each party.
12.2
Export.
End User warrants that it will not export,
either directly or indirectly, any Licensed Products without first
obtaining all necessary approvals from the U.S. Department of Commerce
or any other required agency or department of the United States
Government.
12.3
Notice.
All notices required or authorized under this
Agreement shall be given in writing and shall refer to this Agreement
by number. All notices shall be effective upon delivery if delivered in
person or upon mailing if mailed at a U.S. Post Office, first class
mail, postage prepaid, addressed or delivered to either party at the
address listed on page one of this Agreement, or at such other address
that either party provides by advance written notice to the other
party.
12.4
Waiver.
If either party fails to perform any of its
obligations under this Agreement and the other party fails to enforce
the relevant provisions, such failure to enforce shall not prevent its
later enforcement.
12.5
Assignment.
Immunix may assign any of its duties with
respect to installation, warranty or maintenance service to third
parties. No such assignment shall relieve Immunix of its obligations
under this Agreement. This Agreement and the rights under it may not be
sublicensed, assigned or otherwise transferred by End User without the
prior written consent of Immunix.
12.6
Severability.
Should any clause or section of this
Agreement be determined to be invalid or unenforceable, that provision
shall be interpreted so as to most closely reflect the original intent
of the parties in an enforceable manner and the remainder of the
Agreement will remain in full force and effect.
12.7
Controlling Law.
This Agreement shall be governed by the
laws of the State of Oregon, United States of America, excluding choice
of law provisions.
12.8
Attorneys Fees.
In the event an action is brought to
enforce the terms and conditions of this Agreement, the prevailing
party shall be entitled to reasonable attorney fees, both at trial and
on appeal.
