IMPORTANT, READ CAREFULLY. THIS END USER LICENSE AGREEMENT (THE “AGREEMENT”) IS A BINDING CONTRACT BETWEEN YOU, THE END-USER (THE “LICENSEE”) AND TITAN PRODUCTS LTD. OR ONE OF ITS AFFILIATES (“LICENSOR”). BY DOWNLOADING, INSTALLING OR USING THIS SOFTWARE PRODUCT OR DEVICE CONTAINING SOFTWARE, YOU, THE LICENSEE, ARE AGREEING TO BE BOUND BY THE TERMS, CONDITIONS, AND LIMITATIONS OF THIS AGREEMENT. READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE DOWLOADING, INSTALLING OR USING THE SOFTWARE OR DEVICE CONTAINING SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, PROMPTLY RETURN THE UNUSED SOFTWARE/HARDWARE PRODUCT TO TITAN PRODUCTS LTD..
1.0 Definitions
1.1 Documentation. “Documentation” means the user guides and manuals for the installation and use of the Software, whether made available over the internet, provided in CD-ROM, hard copy, or other form.
1.2 Software. “Software” means the computer software programs for which Licensee is granted a license hereunder, the Documentation therefor and, to the extent available, Updates thereto. All computer programs are licensed hereunder in object code (machine-readable) form only except that certain software programs may include limited portions in source code (human-readable) form.
1.3 Update. “Update” means: (a) supplemental programs, if and when developed and distributed by Titan Products Ltd., that may contain bug fixes or alternate program functions for the Software; and (b) a subsequent release of the Software, if and when developed by Titan Products Ltd.. An Update does not include any release, new version, option, or future product, which Titan Products Ltd. licenses separately.
2.0 Software License
2.1 Ownership. Titan Products Ltd. or its third party licensors retains all title, copyright and other proprietary rights in, and ownership of, the Software regardless of the media upon which the original or any copy may be recorded or fixed.
2.2 License Grant. Titan Products Ltd. grants to Licensee a limited, revocable, non-exclusive, non-assignable license to use the Software in conjunction with the operation of Titan Products Ltd. products to which the Software pertains or other products as described by Titan Products Ltd. in the Documentation. Licensee does not acquire any rights, express or implied, other than those expressly granted in this Agreement.
2.3 Restrictions and Requirements. Licensee will not, nor will it permit others to, modify, adapt, translate, reverse engineer, decompile, or disassemble the Software or any component thereof (including the Documentation), or create derivative works based on the Software (including the Documentation), except to the extent such foregoing restriction is prohibited by applicable law. Licensee will not use the Software except in conjunction with the operation of Titan Products Ltd. products to which the Software pertains or other products as described by Titan Products Ltd. in the Documentation. Copyright laws and international treaties protect the Software, including the Documentation. Unauthorized copying of the Software, the Documentation or any part thereof, is expressly prohibited. Subject to these restrictions, Licensee may make one (1) copy of the Software solely for backup or archival purposes, and may make one (1) copy of the Documentation for use by Licensee in connection with its authorized use of the Software. Licensee will number and account for all such copies. All titles, trademarks, and copyright and restricted rights notices included in the Software and Documentation will not be removed and must be reproduced in any copies. For avoidance of doubt, Seller does not grant Buyer a license to any of Seller’s brands, logos, designs, trade dress, service marks, trademarks, domain names or trade names, in whole or in part.
Licensee agrees to install all corrections of substantial defects, security patches, minor bug fixes and updates, including any enhancements, for the Software in accordance with the instructions and as directed by Titan Products Ltd..
2.4 Transfer and Assignment Restrictions. Licensee will not sell, assign, lease, sublicense, encumber, or otherwise transfer its interest in this Agreement or in the Software, or the Documentation in whole or in part, or allow any other person (except Licensee’s bona fide employees and contractors) or entity, including any parent or subsidiary of Licensee or other subsidiary of Licensee’s parent, to use the Software without the prior written consent of Titan Products Ltd.. Licensee may transfer the Software directly to a third party only in connection with the sale of the Titan Products Ltd. product in which it is installed, and only after the transferee has agreed in writing to be bound by the terms herein. In the event of such a sale, Licensee may not keep any copies of the Software or any portion thereof.
2.5 Verification. At Titan Products Ltd.’s written request, not more frequently than annually, Licensee will furnish Titan Products Ltd. with a signed certification verifying that the Software is being used in accordance with the provisions of this Agreement. Titan Products Ltd. may audit Licensee’s use of the Software. Any such audit will be conducted during regular business hours at Licensee’s facilities and will not unreasonably interfere with Licensee’s business activities.
3.0 Termination.
3.1 Termination. This Agreement and the license granted hereunder automatically terminates if Licensee breaches any provision of this Agreement. Titan Products Ltd. may terminate this license at any time with or without cause.
3.2 Effect of Termination. Immediately upon termination of this Agreement or the license granted hereunder, Licensee will cease using the Software, will delete the Software from its computers and will either return to Titan Products Ltd. or destroy the Software, Documentation, packaging and all copies thereof. If Licensee elects to destroy the Software, then Licensee will certify in writing to Titan Products Ltd. the destruction of the Software. Termination of this Agreement and return or destruction of the Software will not limit either party from pursuing other remedies available to it, including injunctive relief. The parties’ rights and obligations under the following sections of this Agreement will survive termination of this Agreement: Article 1.0, Section 2.1, Section 2.3, Section 2.4, Section 2.5, Article 3.0, Article 4.0 and Article 5.0.
4.0 Infringement and Warranties
4.1 Infringement. If Licensee learns of a threat, demand, allegation, or indication that the Software infringes or misappropriates any third party intellectual property rights (including but not limited to any patent, copyright, trademark, trade dress, or trade secret) (“Intellectual Property Claim”), Licensee will notify Titan Products Ltd. promptly of such claim. Titan Products Ltd. may, in its sole discretion, elect to assume sole control of the defense and settlement of said Intellectual Property Claim and Licensee will provide reasonable information and assistance to Titan Products Ltd. for the defense of such claim.
4.2 Disclaimer of Warranties. THE SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF CONDITION, UNINTERRUPTED USE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, OR NON-INFRINGEMENT. TITAN PRODUCTS LTD. DOES NOT WARRANT THAT THE SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE FROM UNAUTHORIZED ACCESS. THE LICENSEE EXPRESSLY ACKNOWLEDGES THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE INSTALLATION AND/OR USE OF THE SOFTWARE IS AT LICENSEE’S SOLE RISK.
5.0 General Provisions.
5.1 Update Policy. Titan Products Ltd. may from time to time, but has no obligation to, create Updates of the Software or components thereof.
5.2 Limitation on Liability. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, LICENSEE EXPRESSLY UNDERSTANDS AND AGREES THAT TITAN PRODUCTS LTD., ITS AFFILIATES, AND OTHER LICENSORS, WILL NOT BE LIABLE FOR: (A) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY LICENSEE OR ANY THIRD PARTY, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS WILL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS; (B) ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY LICENSEE OR ANY THIRD PARTY. THESE LIMITATIONS ON TITAN PRODUCTS LTD.’S LIABILITY WILL APPLY WHETHER OR NOT TITAN PRODUCTS LTD. HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
TO THE EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY OF TITAN PRODUCTS LTD., ITS AFFILIATES, AND OTHER LICENSORS, FOR ANY CLAIMS UNDER THESE TERMS, INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO THE AMOUNT PAID FOR THE SOFTWARE.
THIS SECTION 5.2 STATES TITAN PRODUCTS LTD.’S ENTIRE LIABILITY AND LICENSEE’S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT, AND IS SUBJECT TO ALL LIMITATIONS STATED IN SECTION 4.2.
5.3 Notices. All notices required to be sent hereunder will be in writing and will be deemed to have been given when mailed by first class mail to the address shown below:
TITAN PRODUCTS LTD.
15 Latham Cl, Bredbury, Stockport SK6 2SD
5.4 Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force.
5.5 Waiver. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach. Failure to enforce or delay in enforcing any provision of this Agreement will not constitute a waiver of any rights under any provisions of this Agreement.
5.6 Entire Agreement. This Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing specifically referencing this Agreement and signed by a duly authorized representative of each party. No other act, document, usage or custom will be deemed to amend or modify this Agreement. The Software, or portions thereof, may also be subject to additional paper or electronic license agreements. In such cases, the terms of this Agreement will be supplemental to those in the additional agreements, to the extent not inconsistent with the additional agreements. If a copy of this Agreement in a language other than English is included with the Software or Documentation, it is included for convenience and the English language version of this Agreement will control.
5.7 Heirs, Successors, and Assigns. Each and all of the covenants, terms, provisions and agreements herein contained will be binding upon and inure to the benefit of the parties hereto and, to the extent expressly permitted by this Agreement, their respective heirs, legal representatives, successors and assigns.
5.8 Export Restrictions. Licensee agrees to comply fully with all relevant export laws and regulations of the United Kingdom and all other countries in the world (the “Export Laws”) to assure that neither the Software nor any direct product thereof are (I) exported, directly or indirectly, in violation of Export Laws; or (ii) are intended to be used for any purposes prohibited by the Export Laws. Without limiting the foregoing, Licensee will not export or re-export the Software: (i) to any country to which the U.S. and/or the Eurpean Union has embargoed or restricted the export of goods or services (see http://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx), or to any national of any such country, wherever located, who intends to transmit or transport the Software back to such country; (ii) to any end user who Licensee knows or has reason to know will utilize the Software in the design, development or production of nuclear, chemical or biological weapons; or (iii) to any end-user who has been prohibited from participating in U.S. and/or European Union export transactions by any federal agency of the U.S. government and/or any European Union country government.
Licensee agrees to comply fully with all applicable anti-corruption laws and regulations, including (but not limited to) those in the jurisdiction in which the Licensee is registered, the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act. The Licensee agrees to comply with Titan Products Ltd.’s Worldwide Anti-Corruption Policy.
The Licensee acknowledges that the failure to comply with all applicable laws and/or Titan Products Ltd.’s policies as contemplated in this clause will be deemed a material breach of this Agreement, and shall entitle Titan Products Ltd. to terminate this Agreement (in addition to any other remedies it may have). The Licensee agrees to indemnify, defend and hold Titan Products Ltd. harmless from any breach of the Licensee’s obligation under this clause 5.8.
5.9 U.S. Government Restricted Rights. The Software is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation”, as such terms are used in 48 C.F.R. § 12.212, and is provided to the U.S. Government only as a commercial end item. Consistent with 48 C.F.R. § 12.212 and 48 C.F.R. §§ 227.7202-1 through 227.7202-4, all U.S. Government End Users acquire the Software with only those rights set forth herein. Contractor/manufacturer is Titan Products Ltd. 15 Latham Cl, Bredbury, Stockport SK6 2SD
5.10 Third Party Intellectual Property Rights. The Software may contain components (including open source software components) that are owned by third parties (“Third Party Licensors”) and are provided with, incorporated into, or embedded in, the Software pursuant to license arrangements between Titan Products Ltd. and such third parties. Third Party Licensor components in the Software are not licensed or warranted under the terms of this document, but are instead subject to the Third Party Licensors’ license agreements. Licensee will not modify, delete, or obfuscate any copyright or other proprietary rights notices of Third Party Licensors contained in the Software.
5.11 Indemnity. Licensee shall defend, indemnify and hold Titan Products Ltd. and its officers, directors, employees, and agents harmless from and against all losses, damages, liabilities, claims, actions, and associated costs and expenses (including reasonable attorneys’ fees and expenses) by reason of injury or death to any person or damage to any tangible or intangible property arising or resulting from the negligence or willful misconduct of the Licensee, its employees, contractors, or agents, in connection with Licensee’s use of Software and Documentation.
Licensee shall be responsible for any breach of this Agreement by its officers, directors, employees, contractors, or agents. Licensee shall defend, indemnify, and hold Titan Products Ltd. and its officers, directors, employees, and agents harmless from and against any and all losses, damages, liabilities, claims, actions, and associated costs and expenses (including reasonable attorneys’ fees and expenses) arising out of or in connection with any breach of this Agreement.
5.12 Confidentiality. Licensee acknowledges that confidential aspects of the Software (including any proprietary source code) are a trade secret of Titan Products Ltd., the disclosure of which would cause substantial harm to Titan Products Ltd. that could not be remedied by the payment of damages alone. Accordingly, Titan Products Ltd. will be entitled to preliminary and permanent injunctive and other equitable relief for any breach of this Section 5.12.
5.13 Note on JAVA Support. The Software may contain support for programs written in JAVA. JAVA technology is not fault tolerant and is not designed, manufactured, or intended for use or resale as online control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communications systems, air traffic control, direct life support machines, or weapons systems, in which the failure of JAVA technology could lead directly to death, personal injury, or severe physical or environmental damage. TITAN PRODUCTS LTD. DISCLAIMS ALL DAMAGES INCLUDING DIRECT, INDIRECT AND CONSEQUENTIAL DAMAGES RELATING TO THE FAILURE OF ANY SOFTWARE INCLUDING JAVA PROGRAMS AND/OR JAVA TECHNOLOGY.
5.14 Governing Law. This Agreement will be interpreted and enforced in accordance with the laws of the United Kingdom, without regard to choice of law principles. Licensee consents to the exclusive jurisdiction and venue of the courts of the United Kingdom for any action to enforce or construe the terms of this Agreement.