OMAX SOFTWARE LICENSE AGREEMENT
1. GRANT OF LICENSE
Pursuant to the terms of this Agreement, OMAX Corporation, (OMAX), grants to the equipment owner, its officers, directors, employees, contractors and agents (“Licensee”), a non-exclusive, non-transferable License, as described in this Agreement, to use this Software, so long as the following conditions, as listed in Sections 1-8 herein, (“License Conditions”) are met:
i. Licensee will utilize the Software in preparation of cutting and machining projects to be executed solely on a product designed and manufactured by OMAX;
ii. Licensee is in good financial standing in Licensee’s account with OMAX;
iii. Licensee does not use; provide, or in any manner whatsoever, directly or indirectly; assist in using or providing a version/copy of the Software; or any information data, or other output derived from the Software to any person or legal entity that is engaged in the manufacture, sale, distribution or other commercial affiliation of any other non-OMAX machine tool, including but not limited to, no other non-OMAX waterjet or abrasive-waterjet equipment;
iv. All applicable patent and copyright notices are maintained and displayed on the Software;
v. Licensee does not incorporate this Software, in whole or in part, into a system or product (software or hardware), whether for resale or not for resale, that was not designed and manufactured by OMAX;
vi. Licensee does not rent, lease, lend, sell, redistribute, assign or sublicense the Software;
vii. Licensee does not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Software, nor any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Software);
Violation of any of these License Conditions may subject Licensee to prosecution and damages. Licensee agrees to be bound by the terms of these License Conditions.
The Software is owned by OMAX and is protected by United States copyright laws and international treaty provisions. Licensee may not remove the copyright notice from any copy of the Software or any copy of the written materials, if any, accompanying the Software.
3. TRADE SECRECY RESTRICTIONS
The Software contains confidential trade secret information of OMAX. Licensee may not use the Software as a model or instructional aid for creating software which is intended to function in a system that does not include an OMAX computer controlled machine tool. If Licensee or any person using the Software works for a company, other than OMAX, that makes water jet or abrasive water jet cutters that accept computer generated input, Licensee may not load or run the software on any computer system.
4. [NOT USED]
5. [NOT USED]
6. NO WARRANTY, DISCLAIMER OF LIABILITY AND LIMITATION OF LIABILITY
LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE SOFTWARE IS AT LICENSEE’S SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SOFTWARE AND ANY SERVICES PERFORMED OR PROVIDED BY OMAX (“SERVICES”) ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND OMAX HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE AND ANY SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. OMAX DOES NOT WARRANT AGAINST INTERFERENCE WITH LICENSEE’S ENJOYMENT OF THE SERVICES, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY THE SERVICES WILL MEET LICENSEE’S REQUIREMENTS, THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY OMAX OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SERVICES PROVE DEFECTIVE, LICENSEE ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. THESE EXCLUSIONS OF IMPLIED WARRANTIES OR LIMITATIONS WILL BE IMPLEMENTED TO THE FULLEST EFFECT PERMITTED BY LAW, SUBJECT ONLY TO ANY SPECIFIC RESTRICTIONS OF LICENSEE’S LOCAL JURISDICTION.
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL OMAX BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO LICENSEE’S USE OR INABILITY TO USE THE SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF OMAX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE EXTENT THAT ANY OF THE PROVISIONS FOR NO WARRANTY AND FOR DISCLAIMER OF LIABILITY, AS DESCRIBED HEREIN, MAY BE LIMITED BY LICENSEE’S LOCAL JURISDICTION, SUCH PROVISIONS WILL BE PURSUED AND IMPLEMENTED TO THE FULLEST EXTENT PERMITTED WITHIN LICENSEE’S LOCAL JURISDICTION.
OMAX’S ENTIRE LIABILITY FOR ANY BREACH OR DEFAULT BY OMAX OF ANY OF THE PROVISIONS OF THIS AGREEMENT, OR WITH RESPECT TO ANY CLAIM ARISING HERE FROM OR RELATED HERETO, AND REGARDLESS OF THE FORM OF ACTION, WHETHER BASED ON CONTRACT OR TORT, INCLUDING NEGLIGENCE, SHALL IN NO EVENT EXCEED THE GREATER OF (A) THE AMOUNT(S) SPECIFICALLY INVOICED AS A LINE ITEM ON AN INVOICE ISSUED TO YOU AS LICENSEE BY OMAX, WHICH AMOUNT IS SPECIFICALLY DESCRIBED AS FOR (i) LICENSE FEES FOR SOFTWARE AND/OR (ii) MAINTENANCE SERVICE FOR SOFTWARE OR (B) FIVE THOUSAND DOLLARS ($5,000).
7. COMPLIANCE WITH EXPORT CONTROL LAWS OF THE UNITED STATES OF AMERICA
Licensee may not use or otherwise export or re-export the Software, except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Software, Licensee represents and warrants that Licensee is not located in any such country or on any such list. Licensee also agrees that Licensee will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of any nuclear, missile, chemical or biological weapons.
h. The Software and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights are reserved by OMAX under the copyright laws of the United States.
8.1 Relation of Parties.
Nothing in this Agreement will create or imply an agency relationship between the parties, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties.
Licensee may not assign, voluntarily, or by operation of law, or otherwise, any rights or delegate any duties under this Agreement without OMAX’s prior written consent, which consent will not be unreasonably withheld, and so long as Licensee is in compliance with the provisions of this Agreement.
8.3 Equitable Remedies and Injunctive Relief.
Licensee acknowledges and agrees that any breach by Licensee of this Agreement, including but not limited to any infringement, violation or misappropriation of the intellectual property rights of OMAX may cause irreparable harm to OMAX not reasonably compensable by money damages. Accordingly, Licensee agrees that, in addition to all other remedies OMAX may have at law, OMAX shall be entitled to seek immediate equitable relief, including an injunction, against Licensee in any court of competent jurisdiction in order to restrain Licensee’s breach of this agreement or infringement, violation or misappropriation of the intellectual property rights of OMAX without the necessity for OMAX to prove the likelihood of irreparable harm, or that damages are not an adequate remedy, and without any requirement by OMAX to post bond or undertaking as to damages.
8.4 Governing Law and Venue..
This Agreement shall be subject to, construed by and enforced in accordance with the state laws of Washington state without regard for its conflicts of laws principles and, if applicable, the laws of United States of America. Subject to 8.6, the parties agree to attorn to the exclusive jurisdiction of the state and federal courts sitting at Seattle, Washington, USA, provided that nothing in this Agreement shall prevent OMAX from taking action in any court of competent jurisdiction to seek injunctive and equitable relief to restrain Licensee from any breach of this Agreement.
8.5 Attorneys’ Fees.
In addition to any other rights hereunder, the substantially prevailing party, as a court of competent jurisdiction (as provided above) may determine, in any claim or other dispute which relates to this Agreement, regardless of whether such claim or other dispute arises from a breach of contract, tort, violation of a statute or other cause of action, shall have the right to recover and collect from the other party its reasonable costs and expenses incurred in connection therewith, including, without limitation, its reasonable attorneys’ fees incurred in any litigation or appeal therefrom. If a party substantially prevails on some aspects of such claim or dispute but not others, the court may apportion any award of costs or attorneys’ fees in such manner as it deems equitable.
If any term of this Agreement is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and, if the foregoing modification is not possible, it shall be severed from this Agreement, and the remaining portions of this Agreement will remain in full force and effect.
8.7 Force Majeure.
Neither party will be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by events or circumstances beyond the delayed party’s reasonable control.
The waiver by any party of any breach of this Agreement will not be construed to be a waiver of any succeeding breach. All waivers must be in writing, and signed by the party waiving its rights.
8.9 Entire Agreement.
This Agreement constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter into this Agreement by any representations or promises not specifically stated herein.