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LICENSE.txt
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SOFTWARE LICENSE AGREEMENT
This license agreement ('Agreement') is a legal agreement between
you, a single corporate entity ('Licensee') and ADLINK Technology
Limited or its affiliated company with which your purchase order
is placed and accepted ('Licensor'), for use of Licensor's
(and / or its affiliates) and / or its licensor's proprietary
software products,which include any computer software, printed
materials, "online" or electronic documentation and any upgrades
or modifications thereto ("the Software").
By placing a purchase order for the Software, installing,
copying, or otherwise using the Software, Licensee agrees to be
bound by the terms and conditions of this Agreement.
<<IF LICENSEE DOES NOT AGREE TO THE TERMS AND CONDITIONS
OF THIS AGREEMENT THEN DO NOT INSTALL COPY OR USE THE SOFTWARE>>
and either immediately destroy the Software or return it within
15 days of receipt to the place of purchase in exchange for a full
refund. Clauses 3 and 4 of this Agreement are not applicable to
Licensee, if Licensee has not purchased the Software license(s)
directly from Licensor, in which event use of the Software shall
be subject to all other clauses of this Agreement.
THIRD PARTY OPENSOURCE SOFTWARE ('OS SOFTWARE') MAY BE SUPPLIED
WITH THE SOFTWARE. IN THIS EVENT SUCH OS SOFTWARE IS SUBJECT TO
THE APPLICABLE LICENSE TERMS INCORPORATED IN THE OS SOFTWARE.
LICENSEE ACKNOWLEDGES THAT THE OS SOFTWARE IS SUPPLIED FREE,
WITHOUT LICENSE FEES AND IS THEREFORE PROVIDED WITH NO WARRANTIES
OF ANY KIND INCLUDING THE WARRANTIES OF DESIGN, MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR ARISING
FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. EXCEPT TO THE
EXTENT PROHIBITED BY APPLICABLE LAW LICENSOR SHALL HAVE NO
LIABILITY IN RESPECT OF THE OS SOFTWARE, FOR DAMAGES OF ANY KIND
INCLUDING ANY INDIRECT OR CONSEQUENTIAL LOSS (INCLUDING WITHOUT
LIMITATION, LOSS OF USE; DATA; INFORMATION; BUSINESS; PRODUCTION
OR GOODWILL), EXEMPLARY OR INCIDENTAL DAMAGES, LOST PROFITS OR
OTHER SPECIAL OR PUNITIVE DAMAGES WHATSOEVER, WHETHER IN CONTRACT,
TORT, (INCLUDING NEGLIGENCE, STRICT LIABILITY AND ALL OTHERS),
WARRANTY, INDEMNITY OR UNDER STATUTE, EVEN IF LICENSOR HAS BEEN
ADVISED OF THE LIKELIHOOD OF SAME.
The following terms and conditions of this Agreement apply to the
Software but do not apply to any OS Software that may be supplied
with the Software:
The parties hereby agree as follows:
1. Grant of License
1.1 The Software and all associated copyrights and other
intellectual property rights are the property of the Licensor, its
affiliated companies, or its licensors. Licensee acquires no
title, right or interest in the Software other than the license
granted herein.
1.2 Licensor hereby grants to Licensee, subject to payment of the
appropriate license fees, the non-exclusive non-transferable
(without the right to sub- license) license to use the Software in
object code form only, subject to the terms and conditions of this
Agreement.
1.3 The particular Software licensed, license term, type and
number of licenses and any additional restrictions, not contained
herein, concerning use of the Software, such as specified Licensee
site(s), designated computer hardware, and/or operating system, use
in conjunction with particular other software, or the number of
authorized users shall be in accordance with the particular
transaction between us, as confirmed in Licensor's order
acknowledgement.
1.4 Unless otherwise agreed in writing, the following
restrictions apply to development and deployment Software licenses
purchased for use of Licensor's middleware products:
1.4.1 Single User Development License - a per user license
permitting a single person to use the Software for development
purposes only, to develop and/or test Licensee applications on a
single self contained computer hardware system, on one operating
system platform only, on one specified project only. The term "use"
comprises designing, developing, testing, or maintaining software
which invokes functionality of the Software. The Software shall not
be used for deploying a particular application created with the
Software, for which purposes a Deployment License is required. All
individuals who are authorized by Licensee to use the Software as
described herein regardless of whether the individual is actively
using the Software at any given time must be covered by a Single
User Development License. Licenses are non-transferable between
computer systems and users;
1.4.2 Project Unlimited User Development License - a multi user
license permitting any number of persons assigned to a specified
project, to use the Software for development purposes only, to
develop and/or test Licensee applications on a single self
contained computer hardware system, on one operating system
platform only. The term "use" comprises designing, developing,
testing, or maintaining Licensee application software source code
which either directly or indirectly invokes the Application
Programming Interfaces ("APIs") of the Software. The Software
shall not be used for deploying a particular application created
with the Software in an production environment, for which purposes
a Deployment License is required. Licenses are non-transferable
between computer systems and users.
1.4.3 Floating Development License - a user license permitting
Licensee to install the Software on multiple computer hardware
systems and to use the Software for the same purposes as under a
Single User Development License, on one operating system only,
on one specified project only, provided there is never more than
one (1) concurrent user per license.
1.4.4 Deployment License: a machine license permitting Licensee
to run the Software with Licensee's applications in a live
operational environment on a specified project.
1.5 Unless otherwise agreed in writing, the following
restrictions apply to Software licenses purchased for use of
Licensor's development productivity tools:
1.5.1 Single User Tools License - a per user license permitting
a single person to use the Software to develop, test, and
demonstrate Licensee applications on a single self contained host
computer hardware system on one operating system platform only, on
one specified project only. All individuals who are authorized by
Licensee to use the Software as described herein regardless of
whether the individual is actively using the Software at any given
time must be covered by a Single User Tools License. Licenses are
non-transferable between computer systems and users. One license
is required per host operating system and one license is required
per target language and per target operating system. The
intellectual property rights in any application code generated by
Licensee using the Software, excluding any code that is a
derivative of the Software shall be vested immediately on its
creation, in the Licensee.
1.5.2 Floating Tools License - a license permitting Licensee to
install the Software on multiple host computer hardware systems,
and to use the Software for the same purposes as under a Single
User Tools License, on one operating system platform only, on one
specified project only, provided there is never more than one
(1) concurrent user per license. One license is required per host
operating system and one license is required per target language
and per target operating system. The intellectual property rights
in any application code generated by Licensee using the Software,
excluding any code that is a derivative of the Software,
shall be vested immediately on its creation, in the Licensee.
1.6 Licensee acknowledges that the Software may not operate
without a license key ('License Key') and Licensee agrees to
provide Licensor with any necessary information requested by
Licensor in order to generate and provide the License Key(s). Such
information may include specific computer IP and / or Host ID
addresses and / or other relevant information relating to the type
and number of licenses purchased. Licensor reserves the right to
withhold or delay the issue of any permanent License Key(s) in the
event the Licensee is in breach of this Agreement, until such
breach has been remedied. Licensee shall maintain records of the
number and type of licenses purchased including appropriate
details such as named users allocated and computers on which
Software is installed and shall provide a copy of such records to
Licensor on request.
1.7 Licensee shall use the Software solely for its own internal
business purposes. Licensee shall not provide or otherwise make
available the Software in whole or in part to any third party and
Licensee shall not permit any third party to use the Software
without the written consent of Licensor. Licensee shall not, or
permit any third party to, publish or disclose the results of any
performance or benchmark tests relating to the Software without
the written consent of Licensor.
1.8 Subject to compliance with all other terms of this Agreement
by Licensee, Licensor's consent referred to in Clauses 1.7 and
9.1 is granted hereunder to make the Software available to third
party contractors of Licensee provided that such contractors must
be bound by written agreement to compliance with the terms of this
Agreement (save for Clauses 3 and 4). Licensee shall ensure
compliance by such third party contractors to such terms.
1.9 Licensee may make a reasonable number of copies of the
Software for back- up, archival or disaster recovery purposes. Any
copy must include Licensor's copyright notice and is fully subject
to the terms of this Agreement. Licensee shall not other than as
permitted by the Agreement or Licensor's written authorization or
by law copy, reproduce, translate, adapt, de-compile, modify,
reverse engineer, disassemble the Software or create derivative
works of the Software. If Licensee requires information relating
to the Software necessary to achieve inter-operability with an
independently created software program, Licensee shall make a
written request to Licensor to make available such information.
Licensee shall not be entitled to make any copies of any hard copy
documentation supplied by Licensor relating to the Software.
1.10 In the event that the Software contains or is accompanied by
certain third party software products such third party software is
subject to the respective third party license terms as may be set
forth within the third party software.
2 Example Code
IN THE EVENT ANY ANCILLARY EXAMPLE COMPUTER SOFTWARE SOURCE CODE
IS SUPPLIED WITH THE SOFTWARE, (INCLUDING BUT NOT LIMITED TO JAVA
OR C++ EXAMPLE CODE) SUCH CODE IS SUPPLIED AS IS WITHOUT WARRANTY
OF ANY KIND. LICENSEE IS GRANTED A ROYALTY FREE LICENSE TO USE,
COPY AND MODIFY SUCH CODE ENTIRELY AT ITS OWN RISK. IN VIEW
HOWEVER OF THE LIMITED NATURE OF SUCH CODE LICENSOR SHALL (EXCEPT
AS OTHERWISE PROHIBITED BY LAW) HAVE NO LIABILITY WHATSOEVER IN
RELATION TO ITS USE. IN ALL OTHER RESPECTS USE OF SUCH CODE SHALL
BE SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
3 License Fee
3.1 Unless otherwise advised prior to acceptance of order by
Licensor. Licensor shall grant Licensee a credit facility and
Licensee shall pay Licensor the license fee within 30 days of the
date of Licensor's invoice.
3.2 The license fee excludes any updates, maintenance, support,
training or consulting in respect of the Software.
3.3 The license fee is exclusive of all sales or value added
taxes, customs duties or government levies (if any) which if
applicable shall be reimbursed by Licensee at cost to Licensor.
3.4 In the event payment is not made within 30 days of invoice, by
the Licensee, Licensor shall be entitled to charge Licensee a late
payment fee of 1% per month, of the overdue amount during the
period of delayed payment (both before and after any judgment)
without prejudice to Licensor's right to receive payments on the
due dates.
3.5 In the event of non-payment by Licensee of any sum due
hereunder by the due date, Licensor may serve notice of such
default upon Licensee, and if Licensee fails to pay in full all
amounts owed hereunder within a period of 30 days of receipt of
such notice, then Licensor may immediately terminate this
Agreement in addition to any other rights Licensor may have in
respect of such non-payment. Licensor also reserves the right,
without liability, to forthwith suspend the licenses granted under
this Agreement, in the event any payment is overdue from Licensee.
4 Delivery and Acceptance
Further to acceptance of Licensee's order, Licensor shall deliver
one copy of the Software in machine-readable object code form and
applicable License Key(s), or if a copy of the Software is already
in possession of Licensee under the terms of a prior evaluation
license, then applicable License Key(s) only. Licensor shall use
reasonable endeavors to deliver within two (2) working days of order
acceptance but shall be under no liability in the event of failure
to deliver within this time-scale, which is an estimate only.
Unless otherwise agreed in writing delivery terms are FCA (as
defined in IncoTerms 2000) Licensor's premises. In the event the
Software has been evaluated by the Licensee under the terms of an
evaluation license, prior to purchase, the Software shall be
deemed accepted upon use of the Software under this Agreement. If
the Software has not been subject to such prior evaluation,
Licensee may reject the Software within 30 days of delivery if the
Software does not materially comply with the user documentation
provided and return it to Licensor in exchange for a full refund.
5 Term
The license under this Agreement commences upon delivery of the
Software to Licensee or if a copy of the Software is already in
possession of Licensee under the terms of a prior evaluation
license, upon issue of Licensor's order acknowledgment and shall
continue for the term specified in the particular transaction
between us, as confirmed in Licensor's order acknowledgement,
unless terminated sooner in accordance with this Agreement.
6 Warranty and Liability
6.1 LICENSOR SPECIFICALLY DISCLAIMS ANY WARRANTY THAT USE OF THE
SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT THE FUNCTIONS
CONTAINED IN THE SOFTWARE OR THE RESULTS OF USE WILL MEET
LICENSEE'S REQUIREMENTS.
6.2 IF WITHIN 90 DAYS OF DELIVERY OF THE SOFTWARE TO LICENSEE THE
LICENSEE DISCOVERS ANY PHYSICAL DEFECTS IN THE MEDIUM ON WHICH THE
SOFTWARE IS SUPPLIED AND LICENSOR IS GIVEN WRITTEN NOTICE OF THIS
BY LICENSEE WITHIN THAT 90 DAY PERIOD AND THE DEFECTIVE MEDIUM IS
RETURNED TO LICENSOR THEN LICENSOR SHALL REPLACE SUCH MEDIUM AND
COPY OF THE SOFTWARE AT NO CHARGE TO LICENSEE.
6.3 LICENSOR DOES NOT EXCLUDE OR LIMIT ITS LIABILITY IN NEGLIGENCE
FOR DEATH OR PERSONAL INJURY, OR FOR FRAUD, OR OTHERWISE INSOFAR
AS ANY EXCLUSION OR LIMITATION OF ITS LIABILITY IS VOID,
PROHIBITED OR UNENFORCEABLE BY LAW.
6.4 SUBJECT TO CLAUSE 6.5 BELOW, LICENSOR WILL ACCEPT LIABILITY
FOR DAMAGE TO PHYSICAL PROPERTY CAUSED DIRECTLY BY LICENSOR OR ITS
EMPLOYEES, NOT EXCEEDING THE SUM OF US$1,000,000 (ONE MILLION US
DOLLARS) PER CLAIM OR SERIES OF CLAIMS.
6.5 SAVE AS PROVIDED IN CLAUSE 6.3 ABOVE, IN NO EVENT WHATSOEVER
WILL LICENSOR BE LIABLE FOR ANY INDIRECT OR CONSEQUENTIAL LOSS
(OTHER THAN DIRECT PHYSICAL DAMAGE TO TANGIBLE PROPERTY UNDER
CLAUSE 6.4 ABOVE) OR ECONOMIC LOSS: LOSS OF USE, DATA,
INFORMATION, BUSINESS, REVENUE, PROFITS, PRODUCTION, GOODWILL
OR ANTICIPATED SAVINGS), EXEMPLARY OR INCIDENTAL DAMAGES, OR OTHER
SPECIAL OR PUNITIVE DAMAGES WHATSOEVER, WHETHER IN CONTRACT, TORT,
(INCLUDING NEGLIGENCE, STRICT LIABILITY AND ALL OTHERS), WARRANTY,
INDEMNITY OR UNDER STATUTE, EVEN IF LICENSOR HAS BEEN ADVISED OF
THE LIKELIHOOD OF SAME.
6.6 ANY CONDITION, REPRESENTATION OR WARRANTY WHICH MIGHT
OTHERWISE BE IMPLIED OR INCORPORATED WITHIN THIS AGREEMENT BY
REASON OF STATUTE OR COMMON LAW OR OTHERWISE, INCLUDING WITHOUT
LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABLE OR SATISFACTORY
QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-
INFRINGEMENT ARE HEREBY EXPRESSLY EXCLUDED TO THE FULLEST EXTENT
PERMITTED BY LAW.
6.7 SUBJECT TO CLAUSE 6.3 ABOVE, IN THE EVENT THAT LICENSEE
CHOOSES TO USE A VERSION OF THE SOFTWARE NO LONGER GENERALLY
SUPPORTED BY LICENSOR UNDER THE TERMS OF LICENSOR'S SOFTWARE
SUPPORT AGREEMENT AND DOES NOT PURCHASE AND MAINTAIN A VALID
SUPPORT CONTRACT FOR THAT SPECIFIC VERSION THEN LICENSEE USES SUCH
VERSION ENTIRELY AT ITS OWN RISK AND LICENSOR SHALL HAVE NO
LIABILITY WHATSOEVER RELATED TO ITS USE.
6.8 SUBJECT TO CLAUSE 6.3 ABOVE, IN THE EVENT THAT NOTWITHSTANDING
THE PROVISIONS OF THIS AGREEMENT LICENSOR IS FOUND LIABLE FOR ANY
LOSS OR DAMAGE SUFFERED BY LICENSEE ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT
(INCLUDING NEGLIGENCE, STRICT LIABILITY AND ALL OTHERS) BREACH OF
STATUTORY DUTY OR OTHERWISE THAT LIABILITY SHALL IN NO EVENT
EXCEED THE SUMS RECEIVED BY LICENSOR FOR THE SOFTWARE LICENSED
UNDER THIS AGREEMENT.
6.9 LICENSEE HEREBY WAIVES ANY RIGHT TO ANY OTHER REMEDIES OR
RELIEFS NOT SET OUT IN THIS AGREEMENT AND SUCH WAIVER SHALL
SURVIVE THE TERMINATION OF THIS AGREEMENT HOWEVER SUCH TERMINATION
ARISES.
7 Intellectual Property Rights
7.1 All title, trademarks and copyrights in and pertaining to the
Software (including but not limited to any images, photographs,
animation, video, audio, music, text, and applets incorporated
into the Software), and any copies of the Software are owned by
Licensor, its affiliated companies, or licensors. The Software is
protected by copyright, other intellectual property rights,
trademark laws and international treaty provisions. Licensee must
treat the Software like any other copyrighted material for
archival purposes, and Licensee may not copy the printed materials
accompanying the Software.
7.2 Licensee may not remove, modify or alter any Licensor
copyright or trademark notice from any part or copies of the
Software, including but not limited to any such notices contained
in the physical and/or electronic media or documentation, in
Licensor's installation dialogue or 'about' boxes, in any of the
run-time resources and/or in any web-presence or web-enabled
notices, code or other embodiments originally contained in or
dynamically or otherwise created by the Software.
7.3 If the Software is, or in Licensor's opinion may become, the
subject of a claim for infringement of the intellectual property
rights of a third party, Licensor may at its option and as
Licensee's sole remedy:
7.3.1 procure the right to continued use of the Software;
7.3.2 replace or modify the Software to make it non-infringing;
or
7.3.3 repay to the Licensee the license fee (less a fair value
for prior use) and terminate this Agreement.
8 Termination
8.1 Licensor may by notice in writing to Licensee terminate this
Agreement if Licensee:
8.1.1 commits a breach of this Agreement; or
8.1.2 has ceased business, been adjudged bankrupt or insolvent
under the laws of any jurisdiction, made an assignment for the
benefit of creditors, or filed, or had filed against it, a
petition of bankruptcy, re-organization or other insolvency
proceeding.
8.2 Within 14 days following the date of termination of this
Agreement, Licensee shall cease to use the Software and shall at
Licensor's direction either destroy or return to Licensor all of
the Software including copies together with Licensee's written
certification by a duly authorized officer that this clause has
been complied with in full.
8.3 Termination of this Agreement shall be in addition to and not
a waiver of any remedy available to Licensor arising from
Licensee's breach of this Agreement.
9 Assignment
9.1 Licensee shall not assign sub-license or otherwise transfer
any of the rights or obligations under this Agreement without the
prior written consent of Licensor.
9.2 Licensor shall be entitled without the prior written consent
of Licensee to assign sub-contract or otherwise transfer its
rights and obligations under this Agreement.
10 Reference
Licensee permits Licensor to reference Licensee as a user of the
Software and display Licensee's logo in Licensor's marketing
documentation and on its worldwide web site.
11 Export Regulations
By downloading or using the Software, Licensee represents and
warrants that it is not located in under the control of or a
national or resident of any country which is subject to an
applicable embargo or other trade restriction imposed by the U.S.
or other government. Licensee shall not import, export, or re-
export the Software to or from any country in contravention of any
applicable import or export laws or regulations of the United
States or other government.
12 High Risk Activities
The Software is not designed, produced or intended for fail-safe
performance in applications used in hazardous environments in
which the failure of the Software itself could lead directly to
death, personal injury, or severe physical or environmental
damage, such as in the operation of nuclear facilities, aircraft
navigation or communication systems, air traffic control, direct
life support machines, or weapons systems, ("High Risk
Activities"). Licensor specifically disclaims any express or
implied warranty of fitness for High Risk Activities and Licensee
hereby indemnifies and holds harmless Licensor against claims of
any nature arising from failure of the Software when used by it or
its customers for High Risk Activities.
13 Audit Rights
Licensor reserves the right, with reasonable notice and at
reasonable times, not exceeding one time per year, to conduct an
audit of Licensee's records to the extent only that is reasonably
necessary to confirm Licensee's compliance with the terms of this
Agreement. Without prejudice to any other rights of Licensor, in
the event such audit reveals that copies of the Software have been
made or are in use in breach of this Agreement, Licensee shall be
liable to pay to the Licensor, as liquidated damages, Licensor's
prevailing list price for each such copy and shall reimburse
Licensor's costs of conducting such audit.
14 US Government End Users
The Software and documentation included therein are 'commercial
items' as that term is defined in 48 C.F.R. 2.101 (October 1995)
consisting of 'commercial computer software' and 'commercial
computer software documentation' as such terms are used in
48 C.F.R. 227.7202-1, 227.7202-3 and 227.7202-4 (June 1995). If
the Licensee hereunder is the U.S. Government or any agency or
department thereof, the Software is licensed hereunder (i) only as
a commercial item, and (ii) with only those rights as are granted
to all other end users pursuant to the terms and conditions of
this Agreement.
15 General
15.1 If this Agreement is entered into with an ADLINK Technology
Limited affiliated company located in the United States of America,
then this Agreement shall be governed by and construed in
accordance with the substantive laws of the Commonwealth of
Massachusetts, without giving effect to the principles of conflict
or choice of law of such Commonwealth. If this Agreement is
entered into with an ADLINK Technology Limited affiliated company
located in any other jurisdiction than the United States of
America, then this Agreement: (i) shall be governed by and
construed in accordance with the laws of England and all disputes
arising in connection with this Agreement shall be subject to the
non-exclusive jurisdiction of the English courts and (ii) is
enforceable by the original parties to it and by their successors
in title and permitted assignees. No term of this Agreement is
enforceable under the Contracts (Rights of Third Parties) Act 1999
by a person who is not a party to this Agreement.
The original of this Agreement has been written in
English. The parties hereto waive any statute, law, or regulation
that might provide an alternative law or forum or to have this
Agreement written in any language other than English.
15.2 Neither party shall be in breach of this Agreement if
there is any total or partial failure of performance by it of its
duties and obligations under this Agreement which is due to causes
beyond its reasonable control provided that the party affected by
such causes gives notice in writing to the other party at the
commencement and cessation of these causes.
15.3 Any notice or other communication required or permitted
under this Agreement shall be given in writing to the address of
the recipient as notified from time to time and will be deemed to
have been given or made when delivered personally; if properly
addressed and posted by prepaid certified or registered mail
within three business days of posting; if sent by facsimile upon
being sent, if confirmed by post; or electronically upon receipt
if acknowledged to have been received.
15.4 This Agreement contains the entire agreement between the
Licensor and the Licensee relating to the licensing of the
Software and subject to Clause 6.3, supersedes all prior oral or
written understanding, arrangements, representations or agreements
between them relating to the subject matter of this Agreement. No
amendment, variation or discharge of this Agreement is valid
unless accepted in writing by both parties. The parties expressly
agree that the terms and conditions of this Agreement shall
prevail over any standard terms and conditions printed or referred
to in any purchase order or other written documentation issued by
the Licensee.
15.5 The failure of either party to exercise or enforce any
rights under this Agreement shall not amount to a waiver of those
rights.
15.6 The illegality or invalidity of any part of this Agreement
shall not affect the legality or validity of the remainder of it.
Any provision of the Agreement held to be to be excessively broad
as to scope, activity, subject or otherwise so as to be
unenforceable at law shall be constructed by limiting or reducing
it so as to be enforceable to the maximum extent compatible with
the applicable law then prevailing.
Licenseterms Rev 2.7 2nd October 2014