Software End User License Agreement(EULA)
SUPREMA INC.
SOFTWARE LICENSE AGREEMENT
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE INSTALLING OR USING THE SOFTWARE OR ANY ACCOMPANYING DOCUMENTATION (COLLECTIVELY, THE “SOFTWARE”).
THE TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE AGREEMENT (“AGREEMENT”) GOVERN USE OF THE SOFTWARE UNLESS YOU AND SUPREMA INC (“COMPANY”) HAVE EXECUTED A SEPARATE AGREEMENT GOVERNING USE OF THE SOFTWARE.
Company is willing to license the Software to you only upon the condition that you accept all the terms contained in this Agreement. By installing or using the Software, you have indicated that you understand this Agreement and accept all of its terms. If you are accepting the terms of this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the terms of this Agreement, and, in such event, “you” and “your” will refer to that company or other legal entity. If you do not accept all the terms of this Agreement, then Company is unwilling to license the Software to you, and you must return the Software to Company for a full refund, if you have paid for the license to the Software, or, if Company has made the Software available to you without charge, you must destroy all copies of the Software. Your right to return the Software for a refund expires 30 days after the date of purchase.
1. Grant of License.
Conditioned upon your compliance with the terms and conditions of this Agreement, Company grants you a non-exclusive, non-transferable, revocable license to Execute (as defined herein) the executable form of the Software on or in connection with hardware products sold by the Company, solely for your internal business purposes. You may make a single copy of the Software for backup purposes, provided that you reproduce on it all copyright and other proprietary notices that are on the original copy of the Software. Company reserves all rights in the Software not expressly granted to you in this Agreement. For purposes of this Agreement, “Execute” and “Execution” means to load, install, and run the Software in order to benefit from its functionality as designed by Company.
2. Restrictions.
Except as expressly specified in this Agreement, you may not: (a) copy (except in the course of loading or installing) or modify the Software, including but not limited to adding new features or otherwise making adaptations that alter the functioning of the Software; (b) transfer, sublicense, lease, lend, rent or otherwise distribute the Software to any third party; or (c) make the functionality of the Software available to multiple users through any means, including but not limited to by uploading the Software to a network or file-sharing service or through any hosting, application services provider, service bureau, software-as-a-service (SaaS) or any other type of services. You acknowledge and agree that portions of the Software, including but not limited to the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets of Company and its licensors. Accordingly, you agree not to disassemble, decompile or reverse engineer the Software, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition.
3. Ownership.
The copy of the Software is licensed, not sold. You own the media on which the Software is recorded, but Company retains ownership of the copy of the Software itself, including all intellectual property rights therein. The Software is protected by copyright laws and the related regulations of your jurisdictional countries, the copyright law of the Republic of Korea, and international treaties. You will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on the Software as delivered to you.
4. Term.
The license granted under this Agreement remains in effect for a period of 75 years, unless earlier terminated in accordance with this Agreement. You may terminate the license at any time by destroying all copies of the Software in your possession or control. The license granted under this Agreement will automatically terminate, with or without notice from Company, if you breach any term of this Agreement. Upon termination, you must at Company’s option either promptly destroy or return to Company all copies of the Software in your possession or control.
5. Limited Warranty.
Company warrants that, for [thirty (30)] days following the date of purchase (or delivery, if Company has made the Software available to you without charge), the Software will perform in all material respects in accordance with any accompanying documentation (“Documentation”). As your sole and exclusive remedy and Company’s entire liability for any breach of this limited warranty, Company will at its option and expense promptly correct or replace the Software so that it conforms to this limited warranty. Company does not warrant that the Software will meet your requirements, that the Software will operate in the combinations that you may select for Execution, that the operation of the Software will be error-free or uninterrupted, or that all Software errors will be corrected. The warranty set forth in this Section 5 does not apply to the extent that Company provides you with the Software (or portions of the Software) for beta, evaluation, testing or demonstration purposes.
6. DISCLAIMER.
THE LIMITED WARRANTY SET FORTH IN SECTION 5 IS IN LIEU OF AND COMPANY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT.
7. Limitation of Liability.
COMPANY’S TOTAL LIABILITY TO YOU FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY WILL BE LIMITED TO ANY REFUND THE LOCAL DISTRIBUTOR OR INSTALLER MAY PROVIDE IN REGARDS TO THE DIRECT DAMAGES UP TO AND LIMITED TO THE AMOUNT PAID FOR THE SOFTWARE.
IN NO EVENT WILL COMPANY BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, BUSINESS, PROFITS OR ABILITY TO EXECUTE) OR FOR the cost of procuring substitute products ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE EXECUTION OR PERFORMANCE OF THE SOFTWARE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
8. Indemnities
You shall indemnify Company and hold Company harmless from and against, and shall defend against, any and all claims, including, but not limited to, the claim in relation to the infringement of the third party’s Intellectual Property and damages of every kind for injury to or death of any person or persons and for damage to or loss of property.
9. Export Law.
You agree to comply fully with all export or import controls imposed by the country of origin, destination or use, including regulations under such laws. You agree not to export or re-export (directly or indirectly) to ensure that neither the Software nor any technical data related thereto nor any direct product thereof are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.
10. Governing Law.
This Agreement will be governed by and construed in accordance with the laws of the Republic of Korea, without regard to or application of conflict of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply.
11. Arbitration.
In the event of any dispute controversy or claim arising out of, or in connection with, or relating to this Agreement, or the breach, termination or invalidity of this Agreement, all attempts shall be made to solve it through mutual consultation in a spirit of confidence and integrity. If all attempts so made through mutual consultations have proved to be of no help within a reasonable time, arbitration rather than legal proceedings shall solve it. The matter shall be referred to the Korean Commercial Arbitration Board (43rd Fl., Trade Tower 159, Samsung-dong, Kangnam-ku, Seoul 135-729, Korea) using the Rules of Arbitration of the International Chamber of Commerce. The award of the arbitrators shall be final and binding upon the parties. The award shall be enforceable by any court having jurisdiction over the party against whom the award has been rendered or where any assets of the party against whom the award has been rendered can be located. The arbitrator(s) will be entitled to award attorneys’ fees, costs and expenses incurred in connection with any dispute, controversy or claim arising out of, or in connection with, or relating to this Agreement, or the breach, termination or invalidity of this Agreement (including but not limited to costs and expenses associated with procuring expert witnesses), to the prevailing party in any arbitration.
12. General.
You may not assign or transfer this Agreement or any rights granted hereunder, by operation of law or otherwise, without Company’s prior written consent, and any attempt by you to do so, without such consent, will be void. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. All notices or approvals required or permitted under this Agreement will be in writing and delivered by confirmed facsimile transmission, by overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. All notices or approvals will be sent to the addresses set forth in the applicable ordering document or invoice or to such other address as may be specified by either party to the other in accordance with this section. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by authorized representatives of both parties. If any provision of this Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible, and the other provisions will remain in full force and effect. This Agreement is the complete and exclusive understanding and agreement between the parties regarding its subject matter, and supersedes all proposals, understandings or communications between the parties, oral or written, regarding its subject matter, unless you and Company have executed a separate agreement. Any terms or conditions contained in your purchase order or other ordering document that are inconsistent with or in addition to the terms and conditions of this Agreement are hereby rejected by Company and will be deemed null.
13. Contact Information.
If you have any questions regarding this Agreement, you may contact Suprema at sales@supremainc.com.