These
Terms apply to any of the software developed by Eldoret Software Inc.
BY DOWNLOADING AND/OR USING SOFTWARE FROM OUR WEB SITE, THE INDIVIDUAL OR
ENTITY LICENSING THE PRODUCT ("LICENSEE") IS CONSENTING TO BE BOUND
BY AND IS BECOMING A PARTY TO THIS AGREEMENT. IF LICENSEE DOES NOT AGREE TO ALL
OF THE TERMS OF THIS AGREEMENT, THE LICENSEE MUST NOT INSTALL OR USE ANY OF THE
SOFTWARE DEVELOPED BY ELDORET SOFTWARE INC.
1. LICENSE AGREEMENT. In this Agreement "Licensor"
shall mean Eldoret Software Inc except under the following circumstances: (i)
if Licensee acquired the Product as a bundled component of a third party
product or service, then such third party shall be Licensor; and (ii) if any
third party software is included as part of the default installation and no
License is presented for acceptance the first time that third party software is
invoked, then the use of that third party software shall be governed by this
Agreement, but the term "Licensor," with respect to such third party
software, shall mean the manufacturer of that software and not Eldoret Software
Inc. With the exception of the situation described in (ii) above, the use of
any included third party software product shall be governed by the third
party's License agreement and not by this Agreement, whether that License
agreement is presented for acceptance the first time that the third party
software is invoked, is included in a file in electronic form, or is included
in the package in printed form. If more than one License agreement was provided
for the Product, and the terms vary, the order of precedence of those License
agreements is as follows: a signed agreement, a License agreement available for
review on the Eldoret Software website, a printed or electronic agreement that
states clearly that it supersedes other agreements, a printed agreement
provided with the Product, an electronic agreement provided with the Product.
2. LICENSE GRANT. Licensor grants Licensee a non-exclusive and
non-transferable License to reproduce and use for personal or internal business
purposes the executable, provided any copy must contain all of the original
proprietary notices. This License does not entitle Licensee to receive from Eldoret
Software Inc hard-copy documentation, technical support, telephone assistance,
or enhancements or updates to the Product unless a specific Product has been
purchased by the Licensee that clearly states otherwise. Licensor warrants that
it has the right to grant the foregoing license free and clear of third party
intellectual property claims, and should any third party intellectual property
claims arise Licensor will defend and hold Licensee harmless from such claims.
3. RESTRICTIONS. Except as otherwise expressly permitted in this
Agreement, or in another Licensor agreement to which Licensee is a party such
as a distribution agreement, Licensee may not: (i) decompile, disassemble,
reverse engineer, or otherwise attempt to derive the source code for the
Product (except to the extent applicable laws specifically prohibit such
restriction); (ii) redistribute, encumber, sell, rent, lease, sublicense, or
otherwise transfer rights to the Product; (iii) remove or alter any trademark,
logo, copyright or other proprietary notices, legends, symbols or labels in the
Product; or (iv) publish any results of benchmark tests run on the Product to a
third party without Licensor's prior written consent.
4. FEES. There is no License fee for the Product as long as all
action has been taken with regard to the free Product instructions and the
product is being used on a non-profit basis. Appropriate License fees are
applicable if the product is being used directly or indirectly in any
commercial application or web site. Multiple copies of the product will each
require separate Licenses. If Licensee wishes to receive the Product on media,
there may be a small charge for the media and for shipping and handling.
Licensee is responsible for any and all taxes.
5. TERMINATION. Without prejudice to any other rights, Licensor
may terminate this Agreement if Licensee breaches any of its terms and
conditions. Upon termination, Licensee shall destroy all copies of the Product.
6. PROPRIETARY RIGHTS. Title, ownership rights, and intellectual
property rights in the Product shall remain in Eldoret Software Inc and/or its
suppliers. Licensee acknowledges such ownership and intellectual property
rights and will not take any action to jeopardize, limit or interfere in any
manner with Eldoret Software' or its suppliers' ownership of or rights with
respect to the Product. The Product is protected by copyright and other
intellectual property laws and by international treaties. Title and related
rights in the content accessed through the Product is the property of the
applicable content owner and is protected by applicable law. The License
granted under this Agreement gives Licensee no rights to such content.
7. DISCLAIMER OF WARRANTY. THE PRODUCT IS PROVIDED FREE OF
CHARGE, AND, THEREFORE, ON AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY
KIND, INCLUDING WITHOUT LIMITATION THE WARRANTIES THAT IT IS FREE OF DEFECTS,
MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE OR NON-INFRINGING. THE ENTIRE RISK
AS TO THE QUALITY AND PERFORMANCE OF THE PRODUCT IS BORNE BY LICENSEE. SHOULD
THE PRODUCT PROVE DEFECTIVE IN ANY RESPECT, LICENSEE AND NOT LICENSOR OR ITS
SUPPLIERS OR RESELLERS ASSUMES THE ENTIRE COST OF ANY SERVICE AND REPAIR. IN
ADDITION, THE SECURITY MECHANISMS IMPLEMENTED BY THE PRODUCT HAVE INHERENT
LIMITATIONS, AND LICENSEE MUST DETERMINE THAT THE PRODUCT SUFFICIENTLY MEETS
ITS REQUIREMENTS. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF
THIS AGREEMENT. NO USE OF THE PRODUCT IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS
DISCLAIMER.
8. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS OR RESELLERS BE
LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING
OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT, INCLUDING, WITHOUT
LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR
MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED
OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY
(CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN ANY CASE,
LICENSOR'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT
EXCEED IN THE AGGREGATE THE SUM OF THE FEES LICENSEE PAID FOR THIS LICENSE (IF
ANY) AND FEES FOR SUPPORT OF THE PRODUCT RECEIVED BY ELDORET SOFTWARE INC UNDER
A SEPARATE SUPPORT AGREEMENT (IF ANY), WITH THE EXCEPTION OF DEATH OR PERSONAL
INJURY CAUSED BY THE NEGLIGENCE OF LICENSOR TO THE EXTENT APPLICABLE LAW
PROHIBITS THE LIMITATION OF DAMAGES IN SUCH CASES. SOME JURISDICTIONS DO NOT
ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO
THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE. ELDORET SOFTWARE INC IS
NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY LICENSEE
OR A THIRD PARTY THAT IS ACCESSED THROUGH THE PRODUCT AND/OR ANY MATERIAL
LINKED THROUGH SUCH CONTENT.
9. HIGH RISK ACTIVITIES. The Product is not fault-tolerant and is
not designed, manufactured or intended for use or resale as on-line control
equipment in hazardous environments requiring fail-safe performance, such as in
the operation of nuclear facilities, aircraft navigation or communication
systems, air traffic control, direct life support machines, or weapons systems,
in which the failure of the Product could lead directly to death, personal
injury, or severe physical or environmental damage ("High Risk Activities").
Accordingly, Licensor and its suppliers specifically disclaim any express or
implied warranty of fitness for High Risk Activities. Licensee agrees that
Licensor and its suppliers will not be liable for any claims or damages arising
from the use of the Product in such applications.
10. MISCELLANEOUS. (a) This Agreement constitutes the entire
agreement between the parties concerning the subject matter hereof. (b) This
Agreement may be amended only by a writing signed by both parties. (f) If any provision
in this Agreement should be held illegal or unenforceable by a court having
jurisdiction, such provision shall be modified to the extent necessary to
render it enforceable without losing its intent, or severed from this Agreement
if no such modification is possible, and other provisions of this Agreement
shall remain in full force and effect. (g) The controlling language of this
Agreement is English. If Licensee has received a translation into another
language, it has been provided for Licensee's convenience only. (h) A waiver by
either party of any term or condition of this Agreement or any breach thereof,
in any one instance, shall not waive such term or condition or any subsequent
breach thereof. (i) The provisions of this Agreement which require or
contemplate performance after the expiration or termination of this Agreement
shall be enforceable notwithstanding said expiration or termination. (j)
Licensee may not assign or otherwise transfer by operation of law or otherwise
this Agreement or any rights or obligations herein except in the case of a
merger or the sale of all or substantially all of Licensee's assets to another
entity. (k) This Agreement shall be binding upon and shall inure to the benefit
of the parties, their successors and permitted assigns. (l) Neither party shall
be in default or be liable for any delay, failure in performance (excepting the
obligation to pay) or interruption of service resulting directly or indirectly
from any cause beyond its reasonable control. (m) The relationship between
Licensor and Licensee is that of independent contractors and neither Licensee
nor its agents shall have any authority to bind Licensor in any way. (n) If any
dispute arises under this Agreement, the prevailing party shall be reimbursed
by the other party for any and all legal fees and costs associated therewith.
(o) If any Eldoret Software Inc professional services are being provided, then
such professional services are provided pursuant to the terms of a separate
Professional Services Agreement between Eldoret Software Inc and Licensee. The
parties acknowledge that such services are acquired independently of the
Product licensed hereunder, and that provision of such services is not
essential to the functionality of such Product. (p) The headings to the
sections of this Agreement are used for convenience only and shall have no
substantive meaning. (q) Licensor may use Licensee�s name in any customer
reference list or in any
press release issued by Licensor regarding the licensing of the Product and/or provide
Licensee�s name
and the names of the Product licensed by Licensee to third parties.