Extensis EULA

CELARTEM, INC., doing business as Extensis
1800 SW FIRST AVENUE SUITE 500
PORTLAND, OR 97201
(503) 274 2020 Phone
(503) 274 0530 Fax
www.extensis.com

SOFTWARE LICENSE AGREEMENT

IMPORTANT - READ CAREFULLY. This Software License Agreement ("Agreement") is a legal agreement between you (either as an individual or a single entity, and hereinafter referred to as "You" or "Your") and Celartem, Inc., doing business as Extensis ("Extensis"). This Agreement governs Extensis' software products and any associated materials provided to You, including but not limited to, files, media, documentation, updates, upgrades, bug fixes, or patches (collectively "Software"), and any related Software support or services (collectively "Services") which may be provided by Extensis in conjunction with Your use of the Software. By installing, copying or using the Software You agree to be bound by the terms and conditions of this Agreement.

IF THIS SOFTWARE IS AN UPGRADE, in addition to the Terms and Conditions set forth below, the terms in this paragraph also apply to Your use of the Software. This Software works in conjunction with a specific Extensis computer software product previously installed on Your computer or system ("Previous Version"). The terms of this Agreement and the terms of the software license agreement for the Previous Version apply jointly to Your use of the Software and the Previous Version. By accepting this license, You indicate that You understand and agree that (i) the license conveyed herein does not permit You to run additional copies of the Software or the Previous Version, and (ii) in the event that any provision of this Agreement conflicts with any provision in the software license agreement for the Previous Version, the terms of this Agreement shall control. If You are unsure whether the Software is an upgrade from a Previous Version, please contact Extensis.

IF THIS SOFTWARE IS A NOT-FOR-RESALE ("NFR") COPY, in addition to the Terms and Conditions set forth below, the terms in this paragraph also apply to Your use of the Software. NFR copies of Software cannot be, by any means, licensed, sold, or otherwise used for any production or commercial purpose. NFR Software is solely to be used for the purpose of evangelizing the Software and Extensis, and such use must at all times inure solely to the benefit of Extensis. If You are unsure whether the Software is an NFR copy, please contact Extensis.

IF THIS SOFTWARE IS AN EVALUATION COPY, You may evaluate the Software for a period of thirty (30) days subject to the Terms and Conditions set forth below. Evaluation copies of Software cannot be, by any means, licensed, sold, or otherwise use d for any production or commercial purposes

IF THIS SOFTWARE IS AN EDUCATIONAL PRICING PROGRAM ("EPP") COPY, in addition to the Terms and Conditions set forth below, the terms in this paragraph also apply to Your use of the Software. EPP copies of Software can only be used for educational and research purposes, and cannot be, by any means, licensed, sold, or otherwise used for any commercial purpose. Any access of the EPP Software or its output by any person outside the educational facility is prohibited. To maintain EPP status, You agree to purchase annual maintenance and support. If You are unsure whether the Software is an EPP copy, please contact Extensis.

In the event any of the above terms for an Upgrade, NFR, Evaluation or EPP copy of the Software conflicts with any provision in the Terms and Conditions below, the specific terms relating to such Upgrade, NFR, Evaluation or EPP Software shall control.
TERMS AND CONDITIONS

1. General License Terms and Conditions.

1.1	The Software is licensed, not sold. Extensis and its licensors retain all title to, and full ownership of the Software. You acknowledge that the structure, organization and code to the Software are the valuable trade secret(s) of Extensis and its licensors. Except as expressly stated herein, this Agreement does not grant You any rights to patents, copyrights, trade secrets, trademarks, or any other rights with respect to the Software. In addition, the Software utilizes other certain third-party Software components and programs ("Third-Party Software") which are also subject to their respective licensor's applicable terms and conditions. You will find such Third-Party Software terms and conditions in the installed documentation accompanying Your copy of the Software, if applicable. Such Third-Party Software terms and conditions work in conjunction with this Agreement and together are complete statements of Your rights and restrictions as they apply to Your use of the Software. It is Your responsibility to review such Third- Party Software terms and conditions and comply with its terms. In the event that any provision of this Agreement is deemed inconsistent with the Third-Party Software terms and conditions, the Third-Party Software terms and conditions shall control.

1.2	In consideration of payment in full of Your applicable Software license fees, Extensis grants to You, during the applicable duration of Your Software license, a nonexclusive, nontransferable, limited license to use the Software for Your internal business use only, solely in accordance with the terms and conditions of this Agreement. 

(a)	Standalone License. If you have purchased a standalone Software license, You may only install the Software on a single designated computer for production use by You or Your authorized user(s) on a non-concurrent basis. You may not network the Software under a standalone license, including using the Software as part of a server installation.

(b)	Floating License. If you have purchased a floating Software license, You may install the server Software on a single designated computer and install the client Software on multiple workstations or individual computers for production use by You or Your authorized user(s) on a concurrent basis, up to the number of authorized concurrent user licenses purchased under Your floating Software license. You may install the server Software on multiple designated computers only if You have purchased a multi-server production license for the Software.

(c)	Development and/or Test Servers. If authorized under your Software license, You may request and Extensis, at its discretion, may allow You to make additional copies of the Software to install on a development and/or test computer for each production license of the Software that You have purchased, provided (i) all copyright, patent, trade secret, trademark or other proprietary right or disclaimer appearing in or on the Software or any accompanying materials are reproduced on each Software copy; and (ii) such Software copies are not concurrently used for production purposes. 

1.3	The Software is unpublished software, trade secret and confidential or proprietary information of Extensis or its licensors and is commercial software developed at private expense. The Software is comprised of "commercial items", "commercial computer software" and "commercial computer software documentation" as defined in FAR 2.101, DFAR 252.227-7014(a)(1) and DFAR 252.227-7014(a)(5). Consistent with DFAR 227.7202 and FAR 12.212, any use, reproduction, display, or disclosure by the US Government shall be governed solely by the terms of this Agreement.

1.4	You may not modify, reverse engineer, disassemble or decompile, or otherwise seek to discover the source code of the Software. Except as otherwise expressly permitted under this Agreement, You may not duplicate the Software except for a sufficient and reasonable number of copies for Your licensed use and may only have one copy of each Software media. Any and all copies of the Software must bear all copyright, trademark, trade secret and other intellectual property rights notices accompanying the Software as received from Extensis. Extensis retains title to and ownership of any and all copies of the Software whether transmitted electronically or recorded as diskette, CD, or on other forms of media. You may not assign, transfer, rent, sublicense, sell, download, display or otherwise provide unlicensed third parties access to any version(s) of the Software. You may not publish or disclose any results of any benchmark tests run on the Software. You may permanently transfer all of Your rights under this Agreement only after You receive written authorization from Extensis. Extensis shall have the right to inspect and audit Your records pertaining to the Software to ensure ongoing compliance with this Agreement.

2. Additional License Terms and Conditions.

2.1	If You wish to move the Software from the its designated computer and the Software requires a specific key code before it will operate, You must contact Extensis in order to move the Software from its designated computer to another computer. You may only move the Software from one designated computer to another computer once every twelve (12) months. Upon moving the Software to another computer, You may not make use of the Software on the previous designated computer, in whole or in part, for any reason. 

2.2	The Software may employ Data Cartridges ("Cartridges") which work in conjunction with such Software. If the Software employs Cartridges: (i) Your use of the Cartridges is the same as the Software to which it applies; and (ii) You are expressly prohibited from attempting to separate a Cartridge from its corresponding Software, or from running the Software and Cartridges separately.

2.3	WARNING. The Software is not designed nor tested for a level of reliability suitable for use in any information system the failure of which can reasonably be expected to cause personal injury. The Software may contain bugs and inaccuracies and You can expect errors, anomalies, and incorrect results under normal use. This Software performs "lossy" data compression. You agree to take precautions to offset these risks such as to maintain full backups of storage media and to not use the Software where personal injury or property damage may result. Extensis recommends that You retain the original image files or documents from which You create MrSID-formatted or JPEG 2000-formatted files.

2.4	Consent to Use of Data. You agree that Extensis may collect and use technical data and related information, including but not limited to technical information about Your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of updates, product support and other services to You (if any) related to the Software. Extensis may use this information, as long as it is in a form that does not personally identify You, to improve its products or to provide services or technologies to You.

2.5	Audit. Extensis shall have the right to inspect and audit your records pertaining to the Software to ensure ongoing compliance with this Agreement. Extensis or Extensis' independent certified public accountant shall conduct such inspection and audit at Extensis' expense. Any inspection and audit will be conducted during regular business hours with reasonable notice and will not unreasonably interfere with your normal business activities. Inspections and audits will not occur more frequently than once a year, however, if past inspections and audits reveal major discrepancies, Extensis shall have the right at any time to an inspection and audit upon written request. If any inspection and audit reveals any underreported, unpaid or unauthorized use of the Software, then you shall promptly pay to Extensis the then current fee representing the underreported, unpaid or unauthorized use of the Software. In addition, you will be responsible for the costs and expenses of the inspection and audit if such inspection and audit reveals that the then current fee representing the underreported, unpaid or unauthorized use of the Software is equal to or greater than 5% of the amounts actually paid by you for such Software.



3 	Term. This Agreement is effective until terminated. You may terminate this Agreement by destroying all copies of the Software. This Agreement shall terminate automatically upon failure by You to comply with any of its terms. Upon any such termination and/or notification by Extensis of such termination, You must destroy the original and any copies of the Software. However, You agree that any provisions of this Agreement that operate to protect Extensis and/or its rights shall remain in full force and effect.

4.	DISCLAIMER OF WARRANTY. THE SOFTWARE AND ANY SERVICES WHICH MAY BE PROVIDED BY EXTENSIS ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND. EXTENSIS DISCLAIMS ALL WARRANTIES ON THE SOFTWARE AND SERVICES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR OF ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, USAGE OR TRADE, OR NONINFRINGEMENT. EXTENSIS DOES NOT WARRANT THAT THE SOFTWARE WILL BE (a) UNINTERRUPTED OR ERROR FREE IN OPERATION, (b) FREE FROM DEFECTS, (c) WILL MEET YOUR REQUIREMENTS, OR (d) WILL BE COMPATIBLE WITH OR OPERATE IN ANY COMBINATION WITH YOUR EQUIPMENT AND OTHER SOFTWARE PROGRAMS SELECTED BY YOU FOR USE WITH THE SOFTWARE. Some states may not allow the above exclusion or limitation of warranties so the above exclusions or limitations may not apply to You. You may have other rights which vary from state to state or province to province.

5.	LIMITATION OF LIABILITY. IN NO EVENT SHALL EXTENSIS BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING ANY LOST DATA, DATA USE, PROFITS, REVENUE OR OPPORTUNITIES, EVEN IF A EXTENSIS REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXTENSIS' LIABILITY FOR ANY OTHER DAMAGES SHALL IN NO EVENT EXCEED THE AMOUNT YOU PAID UNDER THIS AGREEMENT FOR THE SOFTWARE OR SERVICES WHICH CAUSED SUCH DAMAGES. THIS LIMITATION OF EXTENSIS' LIABILITY FOR SOFTWARE AND SERVICES WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT INCLUDING BY NEGLIGENCE OR ANY OTHER BASIS. Some states may not allow the above exclusion or limitation of remedies or damages, so the above exclusions or limitations may not apply to You. You may have other rights which vary from state to state or province to province.

6.	Relationship between the Parties. The relationship between the parties shall be that of licensee and licensor. Neither party will represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, nor to represent the other party as agent, employee, franchisee, or in any other capacity.

7.	Open Source. "Open Source" software-software available without charge for use, modification and distribution-is often licensed under terms that require the user to make the user's modifications to the Open Source software or any software that the user 'combines' with the Open Source software freely available in source code form. If You use Open Source software in conjunction with the Software, You must ensure that Your use does not: (a) create, or purport to create, obligations for Extensis or its third-party licensors with respect to the Software; or (b) grant, or purport to grant, to any third party any rights to or immunities under Extensis or its third-party licensors' intellectual property or proprietary rights in the Software. For example, You may not develop a software program using a Software program and an Open Source program where such use results in a program file(s) that contains code from both the Software program and the Open Source program (including without limitation libraries) if the Open Source program is licensed under a license that requires any "modifications" be made freely available. You also may not combine the Software with programs licensed under the GNU General Public License ("GPL") in any manner that could cause, or could be interpreted or asserted to cause, the Software or any modifications thereto to become subject to the terms of the GPL.



8.	Third-Party Beneficiaries. You acknowledge that third-party licensors of all or any part of the Software are intended beneficiaries of this Agreement including those provisions that address the protection of intellectual property rights in the Software. If Extensis fails to enforce any provisions, herein such third-party licensors may enforce such provisions against You.

9.	Export Control. You agree that You will not export or re-export the Software or any direct product thereof without the appropriate United States or foreign government export licenses, notifications or approvals. By agreeing to this Agreement, You are certifying that You are not a national of an embargoed county, or otherwise a person with whom the U.S. government has prohibited trade.

10.	Force Majeure. Extensis shall not be liable to You for any delay or failure by Extensis to perform its obligations under this Agreement or otherwise if such delay or failure arises from any cause or causes beyond the reasonable control of Extensis, including, but not limited to, labor disputes, strikes, other lab or industrial disturbances, acts of God, floods, lightning, shortages of materials, rationing, utility or communications failures, earthquakes, casualty, war, acts of the public enemy, riots, insurrections, embargoes, blockages, actions, restrictions, regulations or orders of any government, agency or subdivisions thereof.

11.	Severability. Should any provision of this Agreement be deemed by a court of competent jurisdiction to be invalid, void, ineffective, unenforceable, or unlawful, under present or future laws, the remainder of the provisions shall remain in full force and effect and shall in no way be affected, impaired or invalidated. The failure of either party to enforce any provision of this Agreement shall not be deemed a waiver of that party's right to later enforce that provision or any other provision.

12.	Governing Law. This Agreement will be governed by the laws in force in the State of Oregon, U.S.A., and shall exclude that body of law known as conflicts of law and the United Nations Convention on Contracts for the International Sale of Goods.

13.	Entire Agreement. You acknowledge that You have read this Agreement, understand it and that it is the complete and exclusive statement of Your Agreement with Extensis, which supersedes any prior agreement, oral or written, between Extensis and You for the Software. Notwithstanding the above, if the Software is an upgrade, then the terms of the software license agreement for the Previous Version shall also apply as set forth in the IF THIS SOFTWARE IS AN UPGRADE provision above. No variation of the terms of this Agreement will be enforceable against Extensis unless Extensis gives its express consent, in writing signed by an officer of Extensis.
	

