April 04, 2007
KDM
ANALYTICS FREEWARE LICENSE AGREEMENT
PLEASE READ
THE FOLLOWING LICENSE AGREEMENT BEFORE UPGRADING, COPYING, INSTALLING, OR USING
SOFTWARE FROM KDM ANALYTICS
KDM
ANALYTICS is a vendor of software
products, and the individual or entity using this product (“User”) desires to
obtain the rights to use this product, in consideration of the mutual
covenants and promises contained herein, and for good and valuable
consideration, KDM ANALYTICS and User agree that the foregoing recitals are
true and correct, and agree as follows.
1. Definitions
2. Acceptance Of Terms
3. Scope of Use
4. TERM AND TERMINATION
The terms and conditions of this Agreement shall remain effective until this Agreement is terminated. Termination may be affected as follows:
a.
Termination
by User. User may terminate this Agreement at any time by destroying all copies
of the Software, as indicated below.
b. Termination
by KDM ANALYTICS.
i.
KDM
ANALYTICS may terminate this Agreement at any point upon notice to User if
user, in KDM ANALYTICS’ sole discretion, is in breach of any of the terms and
conditions contained herein, and fails to remedy such breach within a
reasonable period, but in no event more than ten (10) days, following receipt
of such notice.
ii.
KDM
ANALYTICS may terminate this Agreement at any point upon notice to User if KDM
ANALYTICS ceases to offer Freeware licenses, or changes the terms and
conditions under which such licenses are offered, and User is unwilling to
accept the revised terms and conditions.
iii.
KDM
ANALYTICS may terminate this Agreement at any point should User’s normal
business operations be disrupted or discontinued for more than thirty (30) days
due to User’s insolvency, bankruptcy, receivership, or business termination.
Upon termination of this
Agreement, User shall return, delete, or destroy all copies of the Software, or
any portion of the Software, remaining in User’s possession or under User’s
control, including all distribution media containing distributable copies of
all or any portion of the software.
5. OWNERSHIP AND CONFIDENTIAL INFORMATION
KDM ANALYTICS or its
licensors own the Software under copyright, trade secret and all other laws
that may apply. All product names, designs, and logos associated with the
Software are trademarks of KDM ANALYTICS. The source code of the Software and
all information regarding the design, structure or internal operation of the
Software are valuable trade secrets of KDM ANALYTICS or third parties with
which KDM ANALYTICS has licensing arrangements ("Confidential Information"),
provided however, that "Confidential Information" shall not include
information which otherwise would be Confidential Information to the extent
that such information was publicly known or otherwise known to User previously
to the time of disclosure, which subsequently became known through no act or
omission by User, or which otherwise became known to User other than through
disclosure by KDM ANALYTICS without violation of any party's obligations to KDM
ANALYTICS. User shall not sell, transfer, publish, disclose, display or
otherwise permit access to any Confidential Information by any third party, nor
use any of the Confidential Information, except strictly as part of the
Software in the form originally distributed by KDM ANALYTICS.
6. LIMITED WARRANTY
The
software and related documentation are provided "as is", without warranty
of any kind. KDM ANALYTICS disclaims all warranties, express, or implied,
including, but not limited to, the implied warranties of design,
merchantability, or fitness for a particular purpose. KDM ANALYTICS does not
warrant that the functions contained in the software or documentation will meet
User’s requirements, or that the operation of the software will be error-free,
complete, or that defects in the software or documentation will be corrected.
7. LIMITATION OF LIABILITY
a. KDM ANALYTICS shall not be liable
for any indirect, special, incidental and/or consequential damages, including
punitive or multiple damages, or any failure to realize expected savings, loss
of data, equipment downtime, loss of use, loss of goodwill or loss of revenue
or profit suffered by the USER for any reason, nor for any claim against the USER
by any third party for damages of any kind which arise from or in connection
with the delivery, use, or performance of the Software or the Documentation.
b. KDM ANALYTICS shall only be liable
for the USER's direct proven damages which arise from or are in connection with
the delivery, use or performance of the Software and/or Documentation, provided
that in no event shall KDM ANALYTICS' total cumulative liability for all costs,
losses and damages exceed the amount paid by the USER to KDM ANALYTICS pursuant
to this agreement for the Software. The foregoing limitations and exclusions of
liability shall apply even if KDM ANALYTICS had been advised of the possibility
of any such costs, losses or damages or knew or ought to have known of such
costs, losses or damages and shall apply regardless of whether the action arose
in contract, including, without limitation, from a fundamental breach, or
breach of a condition, fundamental term or warranty, or in tort (including,
without limitation negligence) or otherwise. The foregoing provisions limiting
the liability of KDM ANALYTICS shall also apply to its officers, directors, employees,
and agents as trust provisions for the benefit of such officers, directors,
employees, and agents and shall be enforceable by such persons as trust
beneficiaries.
c. USER acknowledges that the results
of the KDM ANALYTICS Software depend on the data provided by USER for use with
the (the "Data"). USER shall bear full responsibility for the
accuracy of the Data used with the Software. USER acknowledges that the
Software is a tool to assist personnel in the analysis of software code and is
not a substitute for personnel with expertise in such analysis.
8. RESTRICTED RIGHTS
If the rights granted hereunder are acquired by or on behalf of the U.S. Government, then this provision applies. The Software
9. GENERAL
a. NON-WAIVER. No waiver by either of
the parties hereto of any breach of any condition, covenant or term hereof
shall be effective unless it is in writing and it shall not constitute a waiver
of such condition, covenant or term except in respect of the particular breach
giving rise to such waiver.
b. ENTIRE AGREEMENT. This agreement contains
the whole of the agreement between the parties hereto concerning the matters
provided for herein and there are no collateral or precedent representations,
warranties, agreements or conditions not specifically set forth in this
agreement and none have been relied on by either party as an inducement to
enter into this agreement. This agreement supersedes any prior proposal,
representation or understanding between the parties hereto.
c. NON-MODIFICATION, No modification,
amendment or variation of this agreement shall be of effect or binding upon the
parties hereto unless agreed to in writing by them.
d. LAW AND JURISDICTION. This agreement
shall be governed by the laws of the
e. LANGUAGE This agreement has been prepared and
drawn up in the English language. In the event that this agreement is
translated into any other language and in the event of a discrepancy in the
interpretation between the English text and the text of the other language, the
English text shall govern.
f.
SEVERABILITY
If any provision of this agreement is declared by a court of competent
jurisdiction to be invalid, illegal or unenforceable, such provision shall be
severed from this agreement and the remaining provisions shall continue in full
force and effect.
g. HEIRS AND ASSIGNS. This Agreement
shall be binding on and shall inure to the benefit of the heirs, executors,
administrators, successors and assigns of the parties hereto, but nothing in
this paragraph shall be construed as a consent by KDM
ANALYTICS to any assignment of this agreement except as provided hereinabove.