SILICON PUBLISHING INC. (SPI)

End User License Agreement – Silicon Connector

NOTICE TO USER: THIS END USER LICENSE AGREEMENT ("AGREEMENT") GOVERNS YOUR USE OF THE SPI SOFTWARE ACCOMPANYING IT. YOU AGREE THAT THIS AGREEMENT IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. BY INSTALLING OR USING THE SOFTWARE, YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT IS ENFORCEABLE AGAINST YOU AND ANY LEGAL ENTITY (E.G., SYSTEM INTEGRATOR, CONSULTANT OR CONTRACTOR) THAT INSTALLS OR USES THE SOFTWARE ON YOUR BEHALF. ADDITIONAL TERMS AND CONDITIONS GOVERNING YOUR USE OF SOFTWARE MAY BE CONTAINED IN AN AGREEMENT BETWEEN YOU AND A SYSTEM INTEGRATOR, AN INDEPENDENT SOFTWARE VENDOR OR SPI.

YOU MAY HAVE ANOTHER WRITTEN AGREEMENT DIRECTION WITH SPI THAT SUPPLEMENTS OR SUPERSEDES ALL OR PORTIONS OF THIS AGREEMENT.

THE SOFWARE IS PROTECTED BY COPYRIGHT LAWS AS WELL AS OTHER INTELLECTUAL PROPERTY LAWS. THE SOFTWARE IS LICENSED AND NOT SOLD.

1. Definitions.
   1. "SPI" means Silicon Publishing Incorporated, a California corporation, 795 Azalea Court, San Luis Obispo, CA 93401
   2. "Authorized Users" means employees and individual contractors (i.e., temporary employees) and other authorized personnel employed or retained by Client's specific corporate legal entity identified on the signature page hereof, excluding any employees, contractors and other authorized personnel of any Affiliate.
   3. "Affiliate" means an entity controlled by, under common control with, or controlling you, where control is ownership of fifty percent (50%) or greater of the entity.
   4. "Computer" means one or more central processing units ("CPU") in a hardware device (including a server) that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions.
   5. "Documentation" means any copy, version or translation, in whole or in part, of SPI's End User documentation for the Software, whether in printed or on-line format.
   6. "Internal Network" means your private, proprietary network resource accessible only by Authorized Users. "Internal Network" specifically excludes the Internet (as such term is commonly defined) or any other network community open to the public, including without limitation membership or subscription driven groups, associations or similar organizations. Connection by secure links such as VPN or dial up to your Internal Network for the purpose of allowing Authorized Users to use the Software is considered use over an Internal Network.
   7. "Install" means to place a copy of the Software onto a hard disk or other storage medium through any means (including but not limited to use of an installation utility application accompanying the Software), or to otherwise configure or enable the Software for the purpose of permitting Access to the Software.
   8. "Named User" means an individual Authorized User who has access to the Software based on that Authorized User's identity as indicated by username, e-mail address or another unique identifier.
   9. "Permitted Number" means one (1) unless otherwise indicated under a valid license (e.g., volume license) granted by SPI.
   10. "Software" means (a) all of the contents of the files, disk(s), CD-ROM(s) or other media with which this Agreement is provided, including but not limited to SPI or third party computer information or software; and (b) any modified versions and copies of, and upgrades, updates and additions to, such information, provided to you by SPI at any time, to the extent not provided under a separate agreement (collectively, "Updates").
2. Term and Termination. Subject to earlier termination, the term (the "Term") of this Agreement shall be for a period of one (1) year from the Effective Date. Client may terminate this Agreement, with or without cause, upon written notice to SPI; provided, however, Client shall not be entitled to any reimbursement of any paid License Fee.
3. General Software License. Subject to the terms of this Agreement, and provided you have obtained a valid license for the Software, SPI grants you an annual, non-exclusive license to use the Software as provided in this Agreement, the effective term is one year from the initial date in which the software was purchased and in the manner and for the purposes described in the Documentation. The Software must be uninstalled unless the license is renewed for an additional period of time.
   1. Documentation. You may make a limited number of copies of the Documentation for use by your Authorized Users for your internal development purposes, but no more than the amount reasonably necessary to facilitate your use of the Software in accordance with this Agreement. Any permitted copy of the Documentation that you make must contain the same copyright and other proprietary notices that appear on or in the Documentation.
      1. Additional Software. This EULA applies to updates or add-ons to the original Software provided by SPI unless SPI provides other terms along with the update or add-on. In case of conflict between such terms, the other terms will prevail.
      2. Use in Compliance with the Law. As between you and SPI, you assume all risk and are solely responsible for any and all liability resulting from your use of the Software in a way that violates (or that produces content that violates) any law or the rights of others including, without limitation, laws concerning copyright infringement or privacy.
      3. Except as expressly authorized, Client will not distribute the Software to any third party without SPI's prior written consent.
4. Intellectual Property Rights. The Software and any copies that you are authorized by SPI to make are the intellectual property of and are owned by Silicon Publishing Inc. and its suppliers. The structure, organization and code of the Software are the valuable trade secrets and confidential information of Silicon Publishing and its suppliers. The Software is protected by copyright, including without limitation by United States Copyright Law, international treaty provisions and applicable laws in the country in which it is being used. Except as expressly stated herein, this Agreement does not grant you any intellectual property rights in the Software and all rights not expressly granted are reserved by Silicon Publishing Inc.
5. Restrictions.
   1. No Transfer. YOU MAY NOT RENT, LEASE, SELL, SUBLICENSE, ASSIGN OR TRANSFER YOUR RIGHTS IN THE SOFTWARE, OR AUTHORIZE ANY PORTION OF THE SOFTWARE TO BE COPIED ONTO OR ACCESSED FROM ANOTHER INDIVIDUAL'S OR LEGAL ENTITY'S COMPUTER EXCEPT AS MAY BE PERMITTED HEREIN. You may not transfer or assign this Agreement or your rights to use the Software, by operation of law or otherwise, without the prior written consent of SPI. For purposes of this Section 4.3, "transfer or assignment" includes a consolidation, merger, acquisition, sale or other transaction that results in a change of the majority ownership of voting power in your business enterprise, or change in ownership of all or substantially all of the assets of your business enterprise. The parties agree that SPI is hereby entitled to assign and/or transfer all or part of its rights and obligations under this Agreement to any third party. Any attempted transfer or assignment in violation of the foregoing shall be null and void. Notwithstanding anything to the contrary in this Section 4.3, you may transfer copies of the Software installed on one of your Computers to another one of your Computers provided that the resulting installation and use of the Software is in accordance with the terms of this Agreement and does not cause you to exceed your right to use the Software under this Agreement.
   2. Prohibited Use. Except as expressly authorized under this Agreement, , you are prohibited from: (a) using the Software on behalf of third parties; (b) renting, leasing, lending or granting other rights in the Software including rights on a membership or subscription basis; (c) providing use of the Software in a computer service business, third party outsourcing facility or time sharing to users who are not properly licensed by SPI, (d) reverse engineer, decompile, or disassemble the Product, except and only to the extent that it is expressly permitted by applicable law notwithstanding this limitation, and (e) to the extent that non-licensed parties are permitted to interact with or initiate processes in the Software, such interaction or initiation of a process does not have the purpose or effect of providing an alternative to such non-licensed parties obtaining a valid license to the Software.
6. LIMITED WARRANTY. Except as may be otherwise provided in Section 12, SPI warrants to the person or entity that first purchases a license for the Software for use pursuant to the terms of this license, that the Software will perform substantially in accordance with the Documentation for the ninety (90) day period following receipt of the Software when used on the recommended operating system, platform and hardware configuration. Non-substantial variation of performance from the Documentation does not establish a warranty right. This limited warranty does not apply to PATCHES, STOCK FILES, SAMPLE CODE, font software converted into other formats, EVALUATION, pre-release (BETA), tryout, product sampler, OR NOT FOR RESALE (NFR) COPIES OF SOFTWARE (See Section 12). All warranty claims must be made, along with proof of purchase, within such ninety (90) day period. If the Software does not perform substantially in accordance with the Documentation, the entire liability of SPI and your exclusive remedy shall be limited to either, at SPI's option, the replacement of the Software or the refund of the license fee you paid for the Software. THE LIMITED WARRANTY SET FORTH IN THIS SECTION GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE ADDITIONAL RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. For further warranty information, please see the jurisdiction specific provisions at the end of this Agreement, if any, or contact SPI's Customer Support Department.
7. DISCLAIMER. THE FOREGOING LIMITED WARRANTY IS THE ONLY WARRANTY MADE BY SPI AND ITS AFFILIATES AND STATES THE SOLE AND EXCLUSIVE REMEDIES FOR SPI'S, ITS AFFILIATES' OR ITS SUPPLIERS' BREACH OF WARRANTY. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, AND FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT TO WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO YOU IN YOUR JURISDICTION, SPI, ITS AFFILIATES AND ITS SUPPLIERS PROVIDE THE SOFTWARE AND ACCESS TO ANY WEBSITES AND ONLINE SERVICES AS-IS AND WITH ALL FAULTS AND EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, CONDITIONS, REPRESENTATIONS OR TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE AS TO ANY OTHER MATTERS, INCLUDING BUT NOT LIMITED TO PERFORMANCE, SECURITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, MERCHANTABILITY, QUIET ENJOYMENT, SATISFACTORY QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE. The provisions of Section 8 and Section 9 shall survive the termination of this Agreement, howsoever caused, but this shall not imply or create any continued right to install or use the Software after termination of this Agreement.
8. LIMITATION OF LIABILITY. EXCEPT FOR THE EXCLUSIVE REMEDY SET FORTH ABOVE AND AS OTHERWISE PROVIDED IN SECTION 12, IN NO EVENT WILL SPI, ITS AFFILIATES OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY LOSS, DAMAGES, CLAIMS OR COSTS WHATSOEVER INCLUDING ANY CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES, ANY LOST PROFITS OR LOST SAVINGS, ANY DAMAGES RESULTING FROM BUSINESS INTERRUPTION, PERSONAL INJURY OR FAILURE TO MEET ANY DUTY OF CARE, OR CLAIMS BY A THIRD PARTY EVEN IF AN SPI REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. SPI'S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THE SOFTWARE, IF ANY. THIS LIMITATION WILL APPLY EVEN IN THE EVENT OF A FUNDAMENTAL OR MATERIAL BREACH OR A BREACH OF THE FUNDAMENTAL OR MATERIAL TERMS OF THIS AGREEMENT. Nothing contained in this Agreement limits SPI's liability to you in the event of death or personal injury resulting from SPI's negligence or for the tort of deceit (fraud). SPI is acting on behalf of its affiliates and suppliers for the purpose of disclaiming, excluding and limiting obligations, warranties and liability, but in no other respects and for no other purpose.
9. Export Rules. You agree that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the "Export Laws"). In addition, if the Software is identified as an export controlled item under the Export Laws, you represent and warrant that you are not a citizen or, or located within, an embargoed or otherwise restricted nation (including without limitation Iran, Iraq, Syria, Sudan, Libya, Cuba and North Korea) and that you are not otherwise prohibited under the Export Laws from receiving the Software. All rights to install and use the Software are granted on condition that such rights are forfeited if you fail to comply with the terms of this Agreement.
10. Governing Law. This Agreement, each transaction entered into hereunder, and all matters arising from or related to this Agreement (including its validity and interpretation), will be governed and enforced by and construed in accordance with the substantive laws in force in the State of California, The respective courts of Contra Costa County, California, shall each have non-exclusive jurisdiction over all disputes relating to this Agreement. This Agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
11. General Provisions. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of this Agreement, which shall remain valid and enforceable according to its terms. Updates may be licensed to you by SPI with additional or different terms. This Agreement, along with any Exhibits thereto, is the entire agreement between SPI and you relating to the Software and it supersedes any prior representations, discussions, undertakings, communications or advertising relating to the Software. The terms of any Exhibit to this Agreement shall supersede the terms of this Agreement with respect to a particular Software product to the extent they are inconsistent. Notwithstanding anything to the contrary herein, this Agreement and Exhibits to this Agreement shall supersede the terms of any other license agreement distributed with the Software, including electronic click-through agreements.
12. Specific Provisions and Exceptions. This Section sets forth specific provisions related to certain components of the Software as well as limited exceptions to the above terms and conditions. To the extent that any provision in this Section is in conflict with any other term or condition in this agreement, this Section will supersede such other term or condition.
13. Confidentiality. You will treat the Documentation and other materials distributed with the Software and marked as confidential ("Confidential Information") with the same degree of care to prevent unauthorized disclosure to anyone other than your Authorized Users as you accord to your own confidential information, but in no event less than reasonable care. Your obligations of confidentiality under this Section shall terminate to the extent that you can document that the Confidential Information was the public domain at or subsequent to the time it was communicated to you by SPI through no fault of yours. You may also disclose the Confidential Information in response to a valid order by a court or other governmental body, when otherwise required by law, or when necessary to establish the rights of either party under this Agreement, provided you give SPI advance written notice thereof.