Software License Agreement
End User Software License Agreement
READ BEFORE USING
THE SOFTWARE PROGRAMS ARE PROTECTED BY NATIONAL AND INTERNATIONAL COPYRIGHT LAWS AND TREATIES. READ THE TERMS OF THE FOLLOWING END USER (SOFTWARE) LICENSE AGREEMENT ("AGREEMENT") CAREFULLY BEFORE USING THE PRODUCT. BY USING THE PRODUCT, YOU CONFIRM YOUR ACCEPTANCE OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, HAIVISION IS UNWILLING TO LICENSE THE LICENSED SOFTWARE TO YOU AND YOU ARE NOT AUTHORIZED TO INSTALL OR USE THE LICENSED SOFTWARES.
1.1 Entitlement. The collective set of applicable documents authorized by Haivision Systems Inc. or its affiliate Haivision Network Video (collectively “Haivision”) evidencing your obligation to pay associated fees (if any) for the license, associated Services, and the authorized scope of use of Licensed Software under this Agreement.
1.2 You (or Your). The individual or legal entity specified in the Entitlement, or for evaluation purposes, the entity performing the evaluation.
1.3 License Fee. License Fee shall mean the consideration paid to Haivision for use of the Licensed Software. The License Fee is part of the price paid for the relevant Product.
1.4 Licensed Software. Licensed Software shall mean the executable version of Haivision’s computer software, program or code, in object code format (specifically excluding source code), together with any related material including, but not limited to the Reference Manuals or database schemas provided for use in connection with the Licensed Software and including, without limitation, all Upgrades through the date of installation.
1.5 Reference Manuals. Reference Manuals shall mean the most current version of the documentation for use in connection with the Licensed Software provided by Haivision to You.
1.6 Updates. Updates shall mean any periodic software releases, additions, fixes, and enhancements thereto, release notes for the Licensed Software and related Reference Manuals, (other than those defined elsewhere in this section as Upgrades) which have no value apart from their operation as part of the Licensed Software and which add minor new functions to the Licensed Software, but none so significant as to warrant classification as an Upgrade, which may be provided by Haivision to fix critical or non-critical problems in the Licensed Software on a scheduled, general release basis. Updates to the Licensed Software (“Version”) are denoted by number changes to the right of the decimal point for a version and revision number (for example going from 2.0.0 to 2.1.3).
1.7 Upgrades. Upgrades shall mean any modification to the Licensed Software made by Haivision, which are so significant, in Haivision’s sole discretion, as to warrant their exclusion under the current license grant for the Licensed Software. Upgrades of Licensed Software are denoted by number changes to the left of the decimal point for a release number (for example going from 2.0 to 3.0).
2. RIGHTS GRANTED, RESTRICTIONS AND SUPPORT
2.1 License to Use.
(a) Subject to the terms and conditions set forth herein and subject to the terms of your Entitlement, Haivision hereby grants to You a non-exclusive, personal, limited and nontransferable right and license to use the Licensed Software in accordance with the terms of this Agreement. This license is granted to You and not, by implication or otherwise, to any parent, subsidiary or affiliate of Yours without Haivision's specific prior written consent. This license is for the limited use of the Licensed Software by You for the purpose of creating, managing, distributing and viewing IP Video assets. This license does not grant to You the right to use any Licensed Software in connection with any public broadcasting or broadcasting for home or residential purposes, or any license for content whatsoever. The license and rights granted to You in this Section 2 do not include You the right to sublicense to distributors, resellers and other third parties any of the rights granted to You in this Section 2. All rights not expressly granted You in this Agreement are reserved to Haivision and no implied license results from this license.
(a) Reproduction. You shall not copy, distribute, reproduce, use or allow access to any of the Licensed Software, except as explicitly permitted under this Agreement. You shall not modify, adapt, translate, export, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Licensed Software or any internal data files generated by the Licensed Software, or use the Licensed Software embedded in any third party hardware or software. You shall also not use the Licensed Software in an attempt to, or in conjunction with, any device, program or service designed to circumvent technological measures employed to control access to, or the rights in other work protected by copyright laws. You shall not remove, modify, replace or obscure Haivision’s copyright and patent notices, trademarks or other proprietary rights notices affixed to or contained within any Licensed Software. No right is granted hereunder for any third party who obtains access to any Licensed Software through You to use the Licensed Software to perform services for third parties.
(b) Ownership. The Licensed Software is conditionally licensed and not sold. As between the parties, Haivision and/or its licensors owns and shall retain all right, title and interest in and to all of the Licensed Software, including all copyrights, patents, trade secret rights, trademarks and other intellectual property rights therein, and nothing in this Agreement shall be deemed to transfer to You any ownership or title to the Licensed Software. You agree that it will not remove, alter or otherwise obscure any proprietary rights notices appearing in the Licensed Software. All Haivision technical data and computer software is commercial in nature and developed solely at private expense.
3. TERM AND TERMINATION
3.2 Termination for Breach. Your rights under this Agreement will terminate immediately without notice from the Haivision if You materially breach it or takes any action in derogation of Haivision’s rights to Software. Haivision may terminate this Agreement should any Software become, or in Haivision's reasonable opinion likely to become, the subject of a claim of intellectual property infringement or trade secret misappropriation.
3.3 Termination; Effect; Survival. Upon the termination of this Agreement for any reason: (a) all license rights granted hereunder shall terminate; (b) You shall immediately pay to Haivision all amounts due and outstanding as of the date of such termination or expiration; and (c) You shall return to Haivision all Licensed Software and all Haivision Confidential Information not otherwise required under the terms of this Agreement or certify that all such Licensed Software and Confidential Information have been destroyed. Notwithstanding any termination of this Agreement, the following provisions of this Agreement shall survive for the relevant period of time set forth therein, if any: Sections 2.2, 4.1, 4.2 and 5.
4. REPRESENTATIONS, DISCLAIMER AND LIMITATION OF LIABILITY.
4.1 Haivision Warranty.
(a) Haivision warrants that the Licensed Software will operate substantially in accordance with the Reference Manuals provided for a term of ninety (90) days (the “Warranty Period”) after its delivery date. As Your sole and exclusive remedy for any breach of this warranty, Haivision will use its commercially reasonable efforts to correct any failure of the Licensed Software to operate substantially in accordance with the Reference Manuals which is not the result of any improper or unauthorized operation of the License Software and that is timely reported by You to Haivision in writing within the Warranty Period, provided that in lieu of initiating commercially reasonable efforts to correct any such breach, Haivision may, in its absolute discretion, either (i) replace the Licensed Software with other software or technology which substantially conforms to the Reference Manuals or (ii) refund to You a portion of the fee paid for the relevant Product, whereupon this Agreement shall terminate. This warranty shall immediately terminate if You or any third party makes or attempts to make any modification of any kind whatsoever to the Licensed Software.
(b) All proprietary Hardware, if any, will be subject to the then current warranty terms of Haivision. All non-proprietary Hardware, if any, is sold “AS IS”; however, to the extent that Haivision has the legal right to do so, Haivision hereby transfers to You any and all warranties made by Haivision's vendors to Haivision with respect to such non-proprietary Hardware which was sold by Haivision or the Reseller to You, provided that You expressly acknowledges and agrees that Haivision disclaims any and all liability in connection with any such non-proprietary Hardware, as set forth in Section 4.2(b) of this Agreement.
4.2 Warranty Disclaimers.
(a) THE EXPRESS WARRANTIES SET FORTH IN SECTION 4.1(a) ABOVE IN RESPECT OF THE LICENSED SOFTWARE ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, OR STATUTORY, REGARDING THE LICENSED SOFTWARE, OR ITS OPERATION, FUNCTIONALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS (ALL OF WHICH ARE DISCLAIMED). HAIVISION DOES NOT WARRANT THAT ANY OF THE LICENSED SOFTWARE WILL MEET ALL OF YOUR NEEDS OR REQUIREMENTS, OR THAT THE USE OF ANY OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE DETECTED OR CORRECTED.
(b) THE EXPRESS WARRANTIES SET FORTH IN HAIVISION’S WARRANTY TERMS IN RESPECT OF HAIVISION PROPRIETARY HARDWARE ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, OR STATUTORY, REGARDING ANY SUCH PROPRIETARY HARDWARE, OR ITS OPERATION, FUNCTIONALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALL NON-PROPRIETARY HARDWARE SOLD BY HAIVISION OR THE RESELLER TO YOU IS SOLD “AS IS” EXCEPT FOR HAIVISION’S AGREEMENT TO TRANSFER TO YOU ANY WARRANTY GIVEN TO IT BY ANY VENDOR FROM WHOM SUCH HARDWARE WAS PURCHASED FOR RESALE TO YOU HEREUNDER IN ACCORDANCE WITH THE PROVISIONS OF SECTION 4.1(b), AND HAIVISION DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, OR STATUTORY, REGARDING ANY SUCH NON-PROPRIETARY HARDWARE, OR ITS OPERATION, FUNCTIONALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
4.3 Liability Limitation. IN NO EVENT SHALL HAIVISION OR ITS OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, MEMBERS OF HAIVISIONS, NOR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF THE LICENSED SOFTWARE, BE LIABLE TO YOU, YOUR CUSTOMERS OR TO ANY OTHER THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL OR SPECIAL DAMAGES, LOST PROFITS, LOSS OF USE, INTERRUPTION OF BUSINESS OR FOR ANY DAMAGES FOR ANY BREACH OF THE TERMS OF THIS AGREEMENT OR FOR LOST OR CORRUPTED DATA ARISING FROM ANY CLAIM OR ACTION HEREUNDER, BASED ON CONTRACT, TORT OR OTHER LEGAL THEORY AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. HAIVISION SHALL NOT BE LIABLE FOR DAMAGES FOR ANY CAUSE WHATSOEVER IN AN AMOUNT IN EXCESS OF THE FEE PAID TO HAIVISION BY YOU FOR THE RELEVANT PRODUCT.
5.1 Indemnification By Haivision.
(a) Haivision shall indemnify and hold You harmless against any and all actions, claims, losses, damages, liabilities, awards, costs and expenses (including reasonable attorneys' fees) (“Claims”) arising out of i) any accusation or purported violation of any third person's US and copyright, trademark, patent rights or trade secrets, proprietary information on account of Your use of the Licensed Software when used in accordance with the terms of this Agreement , or (ii) relating to or arising out of any negligence or wilful misconduct on the part of Haivision or any breach by Haivision of the terms of this Agreement or any Maintenance and Support Agreement, or applicable law. You shall promptly notify Haivision in writing of any such Claim and promptly tender the control of the defense and settlement of any such Claim to Haivision. Haivision shall thereafter undertake the defense of any such Claim using counsel of its choice. You shall cooperate with Haivision, in defending or settling such Claim at the expense of Haivision; provided that Haivision shall not settle any Claim against You which would require the payment of money by You without the prior written consent of You, which consent shall not be unreasonably withheld. You shall have the right to consult and provide input into the defense with counsel of its choice at its own expense. Haivision shall not reimburse You for any expenses incurred by You without the prior written approval of Haivision, which approval shall not be unreasonably withheld.
(b) If any Licensed Software is, or in the opinion of Haivision may become, the subject of any Claim for infringement, then Haivision may, or if it is adjudicatively determined that any of the Licensed Software infringes in the manner described above (except to the extent that any translation, modification, addition or deletion or combination by You is the sole source of such Claim), then Haivision shall, at its option, either (i) procure for You the right to continue use of the Licensed Software for the term hereof, (ii) replace or modify the Licensed Software with other suitable and reasonably equivalent products so that the Licensed Software becomes non-infringing, or (iii) terminate this Agreement and refund to You a portion of the fee paid for the relevant Product.(c) Haivision shall have no liability for: (i) the use of other than the then current release of the Licensed Software; (ii) the use of the Licensed Software other than as set forth in its accompanying documentation and as permitted herein; (iii) the modification of any of the Licensed Software by any party other than Haivision; or (iv) any infringement arising from the use of any Licensed Software by You after Haivision has issued a written notice to You requiring You to cease using such Licensed Software when Haivision exercises its option to terminate the License pursuant to Section 3.2 (collectively, "Exclusions"). SECTION 5.1 STATES HAIVISION'S ENTIRE OBLIGATION WITH RESPECT TO ANY CLAIM REGARDING THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
5.2 Indemnification by You. You shall indemnify and hold Haivision harmless against any and all Claims directly or indirectly arising out of, or in any manner whatsoever associated or connected with Your performance, purported performance or non-performance of its rights and obligations under this Agreement, and against any and all Claims incurred by or on behalf of any of the foregoing in the investigation or defense of any and all such Claims.
6. OTHER PROVISIONS
6.1 Export and Other Restrictions. This Agreement, and all Your rights and Your obligations under this Agreement, are subject to all applicable Canadian and U.S. Government laws and regulations relating to exports including, but not limited to, the U.S. Department of Commerce Export Administration Regulations and all administrative acts of the U.S. Government thereunder. In the event the Licensed Software or the Hardware is exported from the United States or re-exported from a foreign destination, You shall ensure that the distribution and export/re-export of the Licensed Software or the Hardware is in compliance with all laws, regulations, orders, or other restrictions of the U.S. Export Administration Regulations. You agree that neither it nor any of its Affiliates will export/re-export any Licensed Software, Hardware, technical data, process, Products, or service, directly or indirectly, to any country for which the Canadian government or United States government (or any agency thereof) requires an export license, other governmental approval, or letter of assurance, without first obtaining such license, approval or letter.
6.2 Publicity. Neither party shall make or authorize or permit any other person to make any announcement or other like statement concerning this Agreement or the subject matter, terms or conditions hereof, without the other party’s prior written consent.
6.3 Transfer and Assignment. Haivision may assign, sublicense, or transfer this Agreement and/or any or all of its rights or obligations hereunder. You may not assign, transfer or delegate any of its rights or obligations hereunder (whether by operation of law or otherwise) without the prior written consent of Haivision. Any unauthorized assignment, transfer or delegation by You shall be null and void. No other Person shall have or acquire any right under or by virtue of this Agreement.
6.4 Waiver and Amendment. No modification, amendment or waiver of any provision of this Agreement shall be effective. No failure or delay by either party in exercising any right, power or remedy under this Agreement, except as specifically provided herein, shall operate as a waiver of any such right, power or remedy. Without limiting the foregoing, any terms and conditions of the Entitlement or similar materials submitted by either party to the other shall be of no force or effect.
6.5 Enforcement by Third Party. For any Licensed Software licensed by Haivision from other suppliers, the applicable supplier is a third party beneficiary of this Agreement with the right to enforce directly the obligations set forth in this Agreement against You.
6.6 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of Quebec, Canada and the Laws of Canada applicable therein (excluding any conflict of laws rule or principle, foreign or domestic).
6.7 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.
6.8 Force Majeure. Neither party shall be liable to the other party for any failure or delay in performance to the extent that such delay or failure is caused by fire, flood, explosion, war, terrorism, embargo, government requirement, labor problems, export controls, failure of utilities, civil or military authority, act of God, act or omission of carriers or other similar causes beyond its control. If any such event of force majeure occurs, the party delayed or unable to perform shall give immediate notice to the other party, and the party affected by the other's delay or inability to perform may elect, at its sole discretion, to terminate this Agreement or resume performance once the condition ceases, with an option in the affected party to extend the period of this Agreement up to the length of time the condition endured. Unless written notice is given within 30 calendar days after the affected party is notified of the condition, the latter option shall be deemed selected. During an event of force majeure, the affected party shall exercise reasonable effort to mitigate the effect of the event of force majeure.
If you have questions, please contact Haivision Network Video.