Terms of use

MAXIMATECC SOFTWARE LICENSE AGREEMENT

This Agreement (“Agreement”) applies to each user (“User”) of software programs (“Software”) distributed, developed, or otherwise made available by Maxima Technologies & Systems, LLC and/or any Maxima Technologies & Systems, LLC affiliates (collectively, “Maximatecc”) and sets forth the terms and conditions under which each User may use the Software. The Software may be embedded (“Embedded Software”) in a Maximatecc product (“Product”) and/or designed to be installed and used on a desktop computer (“Desktop Software”). By using all or any portion of the Maximatecc Product and/or the Software, each User agrees to be bound by the terms and conditions set forth in this Agreement. The Software is owned and copyrighted by Maximatecc and/or certain third-party licensors (collectively, “Licensing Parties”).

Embedded Software. In the event that a User has purchased a Product with Embedded Software, the User is hereby granted a non-exclusive, limited, and revocable license and/or sublicense to use the Software to operate the Product as intended and consistent with all user documentation included with the Product, for so long as the User owns the Product and does not breach any terms or conditions of this Agreement. A User shall not: (a) copy the Embedded Software; (b) transfer the Embedded Software to a third party apart from the Product; (c) access or download or attempt to access or download the Embedded Software; (d) decompile, disassemble, reverse engineering or otherwise attempt to derive the Embedded Software in source code or object code format from the Product; (e) export the Embedded Software in contravention of applicable U.S. and foreign export laws and regulations; or (f) use the Embedded Software other than in connection with operation of the Product.

Desktop Software. In the event that a User has purchased Desktop Software, the User is hereby granted a non-exclusive, limited and revocable, license and/or sublicense to install and use the Software on a desktop computer as intended and consistent with all user documentation included with the Software, for so long as the User owns the Software and does not breach any terms or conditions of this Agreement. A User shall not: (a) copy the Desktop Software; (b) transfer the Desktop Software to a third party apart; (c) decompile, disassemble, reverse engineering or otherwise attempt to derive the Desktop Software in source code or object code format from the Product; or (e) export the Desktop Software in contravention of applicable U.S. and foreign export laws and regulations.

Ownership and Proprietary Rights. Except for the rights expressly granted under this Agreement, no rights whatsoever are granted to or implied in favor of any User. The Licensing Parties retain all their respective rights to the Software, including, without limitation, all right, title and interest in or to all copyright, patent, trade secret, and other intellectual and proprietary rights therein, and any copies thereof, in whole or in part, all of which are the valuable property of the Licensing Parties. ALL RIGHTS NOT EXPRESSLY GRANTED TO A USER IN THIS AGREEMENT ARE RESERVED TO THE LICENSING PARTIES.

Termination. In the event that a User violates any terms or conditions of this Agreement, all licenses and/or sublicenses granted under this Agreement will automatically terminate and such User must immediately stop using the Product and/or the Software, as applicable. All other terms and restrictions of this Agreement will survive termination of this Agreement.

Open Source Software. The Software may contain certain software components that are licensed by Maximatecc from various open source distributors (“Open Source Software”), and redistributed by Maximatecc to a User in accordance with the provisions of the open source licenses governing the Open Source Software (each, an “Open Source Agreement”). Upon a User’s written request, Maximatecc will, at its sole discretion, provide such User a copy of the applicable Open Source Agreements or specify where such licenses may be found.

Open Source Rights. A User may use, modify, link, or distribute the Open Source Software to the fullest extent permitted under the applicable Open Source Agreement; provided that such User will not incorporate, link, distribute or use any third party software or code in conjunction with the Software in any way that (a) creates any obligation with respect to the Software, including the obligation to disclose or distribute its source code; or (b) grants to any third party any rights to the Software. Without limiting the generality of the foregoing, a User will not incorporate, link, distribute or use the Software with any code or software licensed under the GNU General Public Agreement (“GPL”), Lesser General Public Agreement (“LGPL”), or any other Open Source Agreement, in any manner that could cause the Software (or any modifications thereto) to become subject to the terms of the GPL, LGPL, or such other Open Source Agreement.

Limited Warranty for Embedded Software. Maximatecc warrants that for thirty (30) days from the date of delivery of a Product, the Software will perform the functions substantially as described in the user documentation. If a breach of warranty should occur during the warranty period, Maximatecc shall, at Maximatecc’s option, repair or replace the Product and/or the Software and, if such Product and/or Software cannot be repaired or replaced, then Maximatecc shall refund the purchase price of the Product to the User. The foregoing shall be the User’s exclusive remedy and Maximatecc’s entire liability for breach of this warranty.

Limited Warranty for Desktop Software. Maximatecc warrants that for thirty (30) days from the date of delivery of the Software, the unmodified Software will perform the functions substantially as described in the user documentation. If a breach of warranty should occur during the warranty period, Maximatecc shall, at Maximatecc’s option, repair or replace the Software and, if such Software cannot be repaired or replaced, then Maximatecc shall refund the purchase price of the Software to the User. The foregoing shall be the User’s exclusive remedy and Maximatecc’s entire liability for breach of this warranty.

Disclaimer of Other Warranties. APART FROM THE LIMITED WARRANTIES EXPRESSLY SET FORTH ABOVE, THE SOFTWARE AND THE USER DOCUMENTATION ARE PROVIDED “AS IS”. NONE OF THE LICENSING PARTIES WARRANT THAT THE OPERATION OF THE SOFTWARE WILL MEET THE USER’S REQUIREMENTS OR OPERATE FREE FROM ERROR. THE LICENSING PARTIES DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

Limitation of Liability. THE LIABILITY OF THE LICENSING PARTIES FOR ANY CLAIMS ARISING OUT OF THIS AGREEMENT, THE SOFTWARE, AND/OR THE PRODUCT, REGARDLESS OF THE FORM OF ACTION, SHALL NOT EXCEED, IN AGGREGATE, THE PURCHASE PRICE OF THE PRODUCT FOR EMBEDDED SOFTWARE AND THE PURCHASE PRICE OF THE SOFTWARE FOR DESKTOP SOFTWARE. IN NO EVENT SHALL ANY OF THE LICENSING PARTIES BE LIABLE FOR ANY LOST OPPORTUNITY OR PROFITS, COST OF COVER, OR SPECIAL, INCIDENTAL, PUNITIVIE, CONSEQUENTIAL, OR INDIRECT DAMAGES. THIS IS AN ESSENTIAL TERM OF THIS AGREEMENT AND THE USER ACKNOWLEDGES THAT THE AMOUNT IT PAID FOR THE PRODUCT REFLECTS THIS ALLOCATION OF RISK.

Maintenance and Upgrades. Except as expressly stated in this Agreement, Maximatecc has no obligation to provide support, maintenance, updates, upgrades, or modifications of the Software. At Maximatecc’s sole discretion, Maximatecc may provide a User with updates and upgrades to the Software and retains the right to provide such updates and upgrades for a fee. Unless Maximatecc provides other terms and conditions with an update or upgrade, the terms and conditions of this Agreement shall continue to apply. Rights to Improvements. Maximatecc shall be the sole and exclusive owner of, and the User hereby assigns to Maximatecc all rights in any of a User’s proposed or suggested changes, modifications, upgrades or enhancements, in design, functionality or otherwise, to the Maximatecc software products.

Authorized Integrators. For purposes of this Agreement, “Authorized Integrator” means a person or entity that has been authorized by Maximatecc to distribute the Products to Users. Such designation in no way implies that Maximatecc is responsible in any way for the services or products of such Authorized Integrator or its employees or agents. Each User acknowledges that Authorized Integrators are not agents, commercial agents, representatives, employees, joint venturers, or partners of Maximatecc, or in any other way affiliated with Maximatecc , and are not authorized to bind Maximatecc to any commitments, conditions, warranties or other courses of action. Each User is solely responsible for its choice in evaluating and selecting an Authorized Integrator. Maximatecc makes no warranties, express or implied, concerning the abilities, qualifications, services, or products provided by Authorized Integrators or their employees or agents.

Modifications and Contrary Uses. If a User, of its own accord or upon the advice of a third party including an Authorized Integrator, uses a product and/or the Software outside the currently licensed configuration or contrary to the user documentation, or modifies the product or the Software, such User does so at its own risk. Maximatecc shall have no liability under warranty or any other theory of law. Maximatecc does not warrant Maximatecc Products or the Software when used with third-party software, systems or combinations thereof not referenced in the user documentation.

Export and Re-Export. Maximatecc ‘s responsibility for delivery is limited to delivery of the Software to a User. Maximatecc will not be responsible for obtaining any export licenses or re-export licenses which may be required for any subsequent shipping of the Software to destinations determined by a User. In the event that a User, or any subsequent party handling the Software after delivery by Maximatecc, does export the Software then, as between Maximatecc and such User: the User shall be solely responsible for compliance with all applicable laws and regulations relating to such export including, but not limited to (a) export licenses or license exceptions, (b) determining correct classification at the time of export; and (c) any other regulatory agency approval requirements.

Waiver. The waiver of, or failure to enforce, by either party any breach or default hereunder by the other shall not constitute the waiver of any other or subsequent or continuing breach or default.

Enforcement and Severability. This Agreement is intended to be interpreted in such a manner as to render it enforceable. In the event that any court, arbitration panel, or other competent authority determines that any provision of this Agreement is not enforceable, such provision may be modified or limited in its effect to the extent necessary to cause it to be enforceable. If any provision cannot be so modified or limited, then such provision shall be severed, and the remainder of this Agreement shall remain in full force and effect.

Governing Law and Arbitration. This Agreement shall be governed in all respects by the laws of the State of Wisconsin, U.S.A. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. Any dispute, controversy, or claim arising out of or related to this Agreement shall be referred to and finally resolved by a single arbitrator pursuant to the rules of the American Arbitration Association. The arbitration shall take place in Milwaukee, Wisconsin, U.S.A. and shall be conducted in the English language.

Injunctions. Any of the Licensing Parties may seek and obtain an injunction or other appropriate relief from a court to preserve or protect their respective intellectual property rights. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, NONE OF THE LICENSING PARTIES SHALL BE PREVENTED FROM ENFORCING THEIR RESPECTIVE OR COLLECTIVE INTELLECTUAL PROPERTY RIGHTS OR REMEDIES IN ANY APPROPRIATE JURISDICTION.

Successors and Assigns. The terms and restrictions in this Agreement apply to each User and anyone who gains access to or uses the Product or the Software through a User. If the User sells, assigns, or otherwise transfers the Product or the Software to a third party, all the terms and restrictions of this Agreement automatically bind and apply to such third party.

Governing Language and Translations. This Agreement is prepared and executed in the English language. The English language version shall govern the parties’ relationship. Any translation of this Agreement into any other languages shall be for convenience of reference only and shall have no legal effect, and the English language text shall in any event prevail.

Entire Agreement. This Agreement constitutes the complete and exclusive statement of the terms hereof and supersedes all prior oral and written statements of any kind made by the parties or their representatives with respect to the subject matter hereof. Any customer purchase order or similar document issued by a User shall not be part of this Agreement and shall not add to or modify any of the terms hereof. This Agreement may not be changed or supplemented except by a written amendment signed by authorized representatives of the parties.