MENTALIX END-USER SOFTWARE LICENSE
AGREEMENT
**IMPORTANT**
PLEASE REVIEW THE FOLLOWING TERMS AND CONDITIONS CAREFULLY.
THIS AGREEMENT IS A LEGALLY BINDING CONTRACT BETWEEN
YOU AND MENTALIX, INC. ("MI"). DISTRIBUTION MEDIA
MAY CONTAIN MULTIPLE SOFTWARE PRODUCTS. THIS AGREEMENT
APPLIES SEPARATELY TO EACH SOFTWARE PRODUCT AND YOU
MUST OBTAIN A LICENSE TO USE A PRODUCT PRIOR TO USING
SUCH PRODUCT.
YOU WILL NOT BE PERMITTED TO ACCESS AND DOWNLOAD MI
SOFTWARE PRODUCTS WITHOUT FIRST READING AND ACCEPTING
THE TERMS AND CONDITIONS OF THIS AGREEMENT.
- Notification of Copyright. All title and copyright
in and to the MI software product (the "Software"), and any accompanying
written materials, whether in a printed or electronic media, is
owned by MI and is protected by United States copyright laws and
international treaty provisions. MI retains all ownership rights
in the Software and any accompanying written materials. The copyright
notice must be reproduced and included on any copy that is expressly
permitted under this Agreement.
- Grant of License.
- Use. MI grants to you the right to use the number of
copies of the Software as specified on your contract or invoice
(and for which you have paid the applicable license fees) under
the following conditions:
(i) if the Software is either (a) in a node-locked version (i.e.,
any software product that appears on your contract or invoice
with the term "NL" or "Node-Locked" in its product name), or
(b) normally made available by MI only in a node-locked configuration,
then your use of each copy of the Software is restricted to
use exclusively on the specific machine that is designated by
you at the time of payment of the license fee for such copy.
You cannot use any copy of the Software on any machine other
than the machine designated for such copy without MI's prior
consent and your payment of an administrative transfer fee to
MI.
(ii) if the Software is made available by MI in a shared licensing
configuration and has been licensed without node-lock restrictions,
the Software may be shared among multiple users on different
machines as long as (a) the number of concurrent users at any
given time does not exceed the number of copies for the Software
that you have been licensed to use, and (b) the different machines
are physically networked to a license server machine that is
designated by you at the time of payment of such license fees.
If the anticipated number of users of the Software will exceed
the number of licensed copies (for which you have paid), you
must have a reasonable mechanism or process in place to assure
that the number of persons using the Software concurrently does
not exceed the number of licensed copies. You cannot change
or substitute the designated license server machine without
MI's prior consent and your payment of an administrative transfer
fee to MI.
- Evaluation Use. If you have been provided the Software
for evaluation purposes only, MI grants to you the right to
use the Software on the same terms and conditions as stated
above but only for the length of time so authorized by MI for
your evaluation. This license and your right to use the Software
thereafter is terminated, unless you obtain a separate license
from MI and you pay to MI the applicable license fee.
- License Keys. Any license key issued in conjunction
with the Software to you by MI shall be limited to use with
its designated machine or its designated license server machine
only. You cannot use any license key on any machine other than
its respective machine without MI's prior consent and your payment
of an administrative transfer fee to MI for the cost of its
generation of a new license key.
- Definition of "Use." A copy of the Software
is "in use" in a computer when it is loaded into the temporary
memory (i.e., RAM) or is installed into the permanent memory
(e.g., hard disk, CD-ROM, or other storage device) of that computer;
however, a copy installed on a network server for the sole purpose
of distribution to other computers is not "in use."
- Additional Rights. MI further grants to you the right
to: (a) make one copy of the Software and one copy of any materials
accompanying the Software in an electronic media solely for
backup or archival purposes, or (b) transfer the Software and
any materials accompanying the Software in an electronic media
to a single hard disk; provided, that you keep the originals
solely for backup or archival purposes. You may not copy any
printed materials accompanying the Software. Copyright laws
prohibit the making of additional copies of the Software and
accompanying materials for any other reason.
- Additional License Information for Linux Versions.
The Linux version of product incorporates Motif software that
is licensed under the terms of the Open Group Public License (http://www.opengroup.org/openmotif).
As the Recipient of a binary version of the Motif software, you
must accept and agree to be bound by the terms and conditions
set forth therein. Per the agreement, you may obtain source code
for the Motif software from MI or from the Open Group.
- Other Restrictions. Except as otherwise expressly
permitted in this Agreement, or in another MI agreement to which
you are a party, you may not: (i) modify or create any derivative
works of the Product or documentation, including translation or
localization; (ii) decompile, disassemble, reverse engineer, or
otherwise attempt to derive the source code for the Product (except
to the extent applicable laws specifically prohibit such restriction);
(iii) redistribute, encumber, sell, rent, lease, sublicense, or
otherwise transfer rights to the Product; (iv) remove or alter
any trademark, logo, copyright or other proprietary notices, legends,
symbols or labels in the Product; or (v) publish any results of
benchmark tests run on the Product to a third party without MI's
prior written consent. In jurisdictions where a right to reverse
engineer is provided by law unless information is available about
the product in order to achieve interoperability, functional compatibility
or similar objectives, you agree to submit a detailed written
proposal to MI concerning your need for such information before
engaging in reverse engineering and MI may, in its sole discretion,
propose to you certain terms and conditions under which it is
willing to make such information available. You further grant
to MI or its agent the right to audit your use of the Software
pursuant to this Agreement. If the distribution media for the
Software contains multiple MI software products, your use of any
MI software products other than the Software for which you have
purchased a license is prohibited. You agree not to use this software
to send unsolicited, commercial e-mail.
- Termination. This license and your right to use
the Software (i) automatically terminate if you fail to comply
with any provision of this Agreement, and (ii) terminate upon
expiration of the length of time so designated for your evaluation
of the Software if you are an Evaluation User. Upon termination,
you must destroy the Software and all accompanying materials.
MI retains all rights not expressly granted, and nothing in this
Agreement constitutes a waiver of MI's rights under copyright
laws or any other federal or state law or treaty.
- LIMITED WARRANTY. MI warrants that the Software
will substantially conform, as to all material operational features,
to MI's applicable standard written specifications, provided that
it is used on the computer hardware and with the operating system
for which it is designed, and will be free from error that substantially
adversely affects performance for a period of ninety (90) days
from the date of purchase. This limited warranty shall not apply
to any Software that MI determines has been subject to misuse,
neglect, improper installation, repair, alteration, or damage
by you. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, MI MAKES
NO WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO
THE SOFTWARE AND THE ACCOMPANYING WRITTEN MATERIALS INCLUDING,
BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT.
If by law there are any implied warranties, they are likewise
limited to ninety (90) days from the date of purchase. You assume
responsibility for the selection of the Software and hardware
to achieve your intended results; and for the installation, use
and results obtained from the Software. MI makes no warranty as
to any license keys, if any, issued in connection with the license
of the Software. Should the distribution media contain information
and/or technology that either are owned by third parties or are
in the public domain, MI makes no warranties or representations
as to such information and/or technology and further disclaims
any and all liability for any losses or damages that may result
from your use thereof.
- Customer Remedies. MI's entire liability and your
exclusive remedy shall be, at MI's option: either (a) attempt
to correct or help you around significant errors with efforts
that MI believes to be suitable to redress the error, (b) repair
or replace the Software that does not meet MI's Limited Warranty
with functionally equivalent software, or (c) refund the license
fee and terminate this Agreement. Your remedy is conditioned upon
your return of the Software to MI with a copy of your proof of
purchase within ninety (90) days of the original purchase. Any
replacement Software will be warranted for the remainder of the
original warranty period or thirty (30) days, whichever is longer.
- LIMITATION OF DAMAGES. IN NO EVENT WILL MI BE LIABLE
TO YOU FOR DIRECT OR INDIRECT DAMAGES, INCLUDING ANY LOSS OF PROFITS,
LOST SAVINGS, LOSS OF DATA, OR OTHER SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES ARISING OUT OF YOUR USE OF OR INABILITY TO USE THE SOFTWARE,
EVEN IF MI OR AN AUTHORIZED MI REPRESENTATIVE HAS BEEN ADVISED
ON THE POSSIBILITY OF SUCH DAMAGE AND EVEN IF THE REMEDIES PROVIDED
IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. IN NO EVENT
WILL MI'S LIABILITY EXCEED THE AMOUNT OF THE LICENSE FEE. MI WILL
NOT BE LIABLE FOR ANY CLAIM BY A THIRD PARTY. BECAUSE SOME STATES
AND COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATIONS OF CONSEQUENTIAL
OR INCIDENTAL DAMAGES OR IMPLIED WARRANTIES, THE ABOVE LIMITATIONS
MAY NOT APPLY TO YOU. THE WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS
AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY DEPENDING ON THE
STATE OR COUNTRY.
- Governing Law. This Agreement is governed by the
laws of the State of Texas, U.S.A., and the United States, including
patent and copyright laws. This Agreement will not be governed
by the United Nations Convention on Contracts for the International
Sale of Goods, the application of which is expressly excluded.
If any provision of this Agreement is held to be illegal, invalid,
or unenforceable then that provision shall be fully severable
from this Agreement and shall not affect the legality, validity
or enforceability of the remaining provisions of this Agreement.
- Export Restrictions. You agree to comply with
all applicable export control laws and with any regulations issued
from time to time by the United States Department of Commerce
and similar agencies concerning exporting, importing, and re-exporting
software. You further agree that the Software will not be acquired,
shipped, transferred or exported, directly or indirectly, into
any country or used in any manner prohibited by the United States
Export Administration Act and the regulations thereunder, or will
be used for any purpose prohibited thereby.
- International Users. This Agreement has been written
in the English language. You waive any rights that you may have
under the laws of your country for this Agreement to be written
in the language of that country. The remedies and limited warranty
offered by MI are not available without proof of purchase from
an authorized United States or international source.
- U.S. Government Restricted Rights. The SOFTWARE
PRODUCT is provided with RESTRICTED AND LIMITED RIGHTS. Use, duplication,
or disclosure by the Government is subject to restrictions as
set forth in subparagraph (b) (3) of the Rights in Technical Data
and Computer Software clause as DFARS 252.227-7013 or subparagraphs
(c) (1) and (2) of the Commercial Computer Software-Restricted
Rights at 48 CFR 52.227-19, as applicable, and any amendments
thereto. Contractor/manufacturer is Mentalix, Inc., 1700 Alma
Drive, Suite 110, Plano, Texas, U.S.A. 75075.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT,
AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS; YOU FURTHER AGREE
THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT
BETWEEN US WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL
OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN US RELATING TO
THE SUBJECT MATTER OF THIS AGREEMENT. THIS AGREEMENT SHALL PREVAIL
NOTWITHSTANDING ANY DIFFERENT, CONFLICTING, OR ADDITIONAL TERMS
AND CONDITIONS WHICH MAY APPEAR IN ANY PURCHASE ORDER OR DOCUMENT
SUBMITTED BY LICENSEE.
Rev. 9.0 (Date: November 11, 2005)
DALLAS2 888507v1 19976-00001
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