END USER LICENSE AGREEMENT FOR PHDATA, INC. SOFTWARE
PHDATA, INC. (“PHDATA”) PROVIDES THE SELECTED PRODUCTS (THE “SOFTWARE”, DEFINED BELOW) AND ANY RELATED DOCUMENTATION SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS END USER LICENSE AGREEMENT (THE “EULA”). PLEASE READ THE TERMS OF THIS EULA CAREFULLY. AS USED IN THIS EULA, “LICENSEE,” “YOU” AND “YOUR” REFER TO THE PERSON AND OR ENTITY USING THE SOFTWARE, AND ALL AFFILIATES THAT ARE CONTROLLED BY OR UNDER COMMON CONTROL WITH SUCH ENTITY.
BY DOWNLOADING, INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT DOWNLOAD, INSTALL, COPY OR USE THE SOFTWARE.
Customer’s use of the Software is governed by the terms below or, if the Software is open-source, the applicable open-source license thereto. The Software may be downloaded from phData’s website or servers.
License Grant. phData hereby grants to Licensee the limited, nonexclusive, nontransferable, royalty free, fully paid up, revocable right to access and use a single copy of the Software on your server, and display the Software, in Object Code form only (the “License”). For purposes of this EULA, “Object Code” means computer programs assembled, compiled, or converted to magnetic or electronic binary form, which are readable and useable by computer equipment. Licensee does not have the right to sublicense the Software to third parties. phData reserves any and all rights with respect to the Software not expressly granted to Licensee in this EULA.
Restrictions on Use of Software. Except as provided hereunder, you shall not: (i) copy, reproduce, distribute, transfer, time-share, rent, lend, loan, lease or sublicense any portion of the Software; (ii) translate, adapt, modify, alter, combine with other software, or prepare derivative works based in whole or in part on the Software; or (iii) reverse engineer, decompile, disassemble or otherwise reduce the Software to a human-perceivable form. If you improve, change, modify, or create a derivative work of the Software in violation of this EULA, you hereby irrevocably sell, assign, and transfer any and all rights in and to the improvement, change, modification, or derivative work free and clear of all encumbrances.
Ownership of Software. You acknowledge and agree that the Software contains proprietary and copyright protected material and, in its human-perceivable form, contains trade secrets and other intellectual property rights exclusively owned by phData. You acknowledge and agree that phData is and shall remain the sole and exclusive owner of all rights, title, and interest in and to the Software including any and all changes, modifications, improvements, and derivative works of the Software. You acknowledge and agree that you will not take any action inconsistent with such ownership. This EULA does not grant you rights to any patents, copyrights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses with respect to the Software other than the License.
Termination. This EULA is in effect on the date that you download, copy, install or use the Software. The License is effective until terminated. This License shall automatically terminate at the end of the term of the applicable Statement of Work. You may terminate the License at any time by destroying any and all copies of the Software. The License shall automatically terminate if you fail to comply with any term(s) of this EULA. Upon termination, you shall cease use of the Software and documentation, destroy any and all copies of the Software and documentation, or return them to phData at the request of phData.
Disclaimer of Warranties. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. PHDATA PROVIDES THE SOFTWARE “AS IS WITH ALL FAULTS” WITHOUT WARRANTY OF ANY KIND, AND PHDATA HEREBY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO ORAL INFORMATION OR ADVICE GIVEN BY PHDATA OR A PHDATA AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY.SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
Export Law Assurances. Without limitation, parties acquiring Software from Licensor are responsible for obtaining all licenses or other approvals necessary for downloading or transfer of the Software. A party may not transfer the Software without U.S. Government permission to: (a) anyone on the U.S. Treasury Department’s lists of Specially Designated Nationals (including the Government of Iran, Government of Sudan, Government of Cuba, prohibited members of the Cuban Communist Party), or on the U.S. Commerce Department’s Denied Persons List, Entity List, or Unverified List, or on the U.S. State Department’s Debarred List or Nonproliferation List; or (b) for use with chemical or biological weapons, sensitive nuclear end-uses, or missiles to deliver them.
Government End Users. If you are acquiring the Software on behalf of any unit or agency of the United States Government, Licensee agrees the Software and any documentation are “Commercial Computer Software ” and “Commercial Computer Software Documentation” as those terms are defined at 48 C.F.R. §2.101(b). Licensee’s rights in the Software and any documentation are defined in Sections 1-3 of the Agreement. Licensee acknowledges and agrees that the rights contained in Sections 1-3 of the Agreement are consistent with Federal procurement law and otherwise satisfy Licensee’s needs.
Attorneys’ Fees. If any action in law or in equity is necessary for phData to enforce the terms of this EULA, phData will be entitled to reasonable attorneys’ fees, costs and expenses in addition to any other relief to which it may be entitled.
Miscellaneous. This EULA constitutes the entire agreement between you and phData with respect to the subject matter hereof and supersedes all prior or contemporaneous understandings regarding such subject matter, whether written or oral. This EULA is deemed to have been made in the State of Minnesota and will be governed by, construed, and interpreted in accordance with the laws of the State of Minnesota without regard to its conflict of laws principles. The Parties agree that this EULA is not a sale of goods; therefore, the Uniform Commercial Code Section 2 does not apply to this EULA. With respect to any dispute, controversy, or claim arising out of or relating to this EULA or the relationship between the Parties, the Parties agree and consent to jurisdiction of and exclusive venue in the United States District Court, District of Minnesota, Fourth Division or in the Minnesota State Court, Hennepin County, Fourth Judicial District. The United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded, shall not apply. If for any reason, a court of competent jurisdiction finds any provision, or portion thereof, of this EULA, to be unenforceable, the remainder of this EULA shall continue in full force and effect between You and phData. No amendment or modification of this EULA will be binding unless in writing and signed by phData. Any waiver by phData of a breach of any provision of this EULA shall not operate as or be construed as a waiver of any further or subsequent breach of any provision of this EULA.