Kinetium Products License Agreement
IMPORTANT! READ THIS LICENSE AGREEMENT (HEREAFTER "AGREEMENT") BEFORE
CLICKING ON THE "ACCEPT" BUTTON, BREAKING
THE SEAL ON THE PROGRAM MEDIA PACKAGE, ENTERING
"YES" IN RESPONSE TO THE ELECTRONIC LICENSE ACCEPTANCE INQUIRY, INSTALLING,
USING, OR ELECTRONICALLY DOWNLOADING THE PRODUCT. ANY OF THE ABOVE ACTIONS INDICATE
ACCEPTANCE OF, AND LEGALLY BINDS YOU AND/OR YOUR COMPANY ("LICENSEE"), AND
KINETIUM INC. ("KINETIUM"), TO THE TERMS AND CONDITIONS SET FORTH BELOW. IF
LICENSEE DESIRES TO NEGOTIATE NEW OR DIFFERENT TERMS, CONTACT KINETIUM'S
CONTRACTS DEPARTMENT AT THE EMAIL ADDRESS [ contracts at (@) kinetium.com ] BEFORE TAKING ANY OF THE ABOVE ACTIONS.
- GENERAL GRANT OF LICENSE. Kinetium grants to Licensee a nonexclusive license to use solely for Licensee's internal business purposes,
the enclosed software programs and method descriptions (including any link-time and run-time modules), user documentation, and/or
development process documentation (including, but not limited to documentation on computer readable media), collectively ("Product")
in the countries for which the applicable license fees were paid. Licensee may not rent, lease or use the Product in a service
bureau capacity. The Product shall not be accessed by
users other than the authorized users, including users accessing the Product via a Web browser,
for whom the applicable license fees have been paid. Licensee may not assign or otherwise transfer this license except upon notice
in connection with a sale of all or substantially all Licensee's business
assets. Any such assignment of residual property shall be subject to the terms and conditions stated herein. After any such
assignment, assigning Licensee shall have no rights with regard to the Products licensed hereunder. Licensee shall inform all
users of the Product of the terms and conditions of this Kinetium Products License Agreement. Title to and full ownership
of all copies of the Product remain with Kinetium or Kinetium's licensors and are protected by United States copyright laws,
patent laws, and various international treaties.
- KINETIUM PROCESS LICENSES. With regard to Kinetium Process licenses for use of any Kinetium Process or Method Product, the number
of authorized users shall be the total number of project members on all projects
utilizing the process
(i.e. all Licensee projects referring to the process or method documentation, or using any of the
process or method templates). A license fee must be paid to cover each member of
every project using the Kinetium Process.
- AUTHORIZATION PROCEDURES AND CODES. Many Kinetium Products require periodic authorization
procedures and codes in order to enable such Product for use or access by
licensed users, based on
information including, but not limited to, the user's work email address, web site password, serial number,
license ID, host I.D. of the installation computer and the number of authorized concurrent users. The Product may contain such
authorization procedures or codes, and
access to the Product by Licensee may be disabled if installed on a computer with a different serial number or if used by
other than the authorized and licensed users or by greater than the
authorized number of concurrent users. Licensee agrees to such authorization
procedures and codes, and agrees to provide current, accurate
identification, contact, and other information as part of these procedures.
Licensee agrees to immediately notify Kinetium of any breach of these
procedures or codes.
- COPIES. Unless expressly authorized by Kinetium in writing, Licensee may not copy or modify the Product (or any derivative work, if applicable)
or create local copies of web-based Products, except (a) to create derivative works authorized
in writing by Kinetium,
or (b) to create a derivative work of the computer readable documentation of
Product usage. Any such derivative work of computer readable documentation, shall contain material proprietary to
Kinetium (or Kinetium's licensor), and shall not be copied or distributed without the express written consent of Kinetium.
Licensee may not copy documentation without the express written consent of Kinetium.
Licensee may not copy, reproduce, or modify any Product templates except for use within
projects which have properly licensed the use of Product.
- TERM AND TERMINATION. This license shall be valid from the date purchased by Licensee and is perpetual unless terminated by mutual
consent, by Licensee's election, or by Kinetium upon thirty (30) days written notice of Licensee's un-remedied material breach of
this Agreement. In the event of any termination of this Agreement, Licensee will immediately return to Kinetium all copies of the
Product and other Kinetium provided materials and certify to Kinetium that any and all copies of the Product have been erased from
- UPDATES AND SUPPORT. This Agreement does not grant Licensee rights to any improvements, modifications, enhancements, updates to
the Product, or other support services, unless agreed to separately in writing. Such updates may be purchased separately from
Kinetium and may be mandatory for some Kinetium Products. The purchase of updates does not increase the number of authorized
users for the Product. Use of such improvements, modifications, enhancements or updates to the Product shall be governed by the
terms and conditions contained herein.
Kinetium may update License terms as it updates different versions of the
- LIMITED WARRANTIES; INDEMNIFICATION. Kinetium warrants the media on which the Product is furnished to Licensee to be free of
defects in materials and workmanship and that the Product will substantially operate according to specifications published by
Kinetium for a period of ninety (90) days from the date of purchase.
Kinetium shall have no liability for any infringement of patents, copyrights, or other intellectual property rights, trademarks
or trade secret resulting from: compliance with Licensee's designs, specifications, or instructions; modifications of said Product
by any party other than Kinetium other than in accordance with Kinetium's instructions; or use of said Product other than as
specified in relevant Kinetium publications.
Kinetium's sole liability and Licensee's exclusive remedy for breach of any warranties shall be, at Kinetium's option, (a) to
repair or replace Licensee's defective media or Product or (b) to refund the license fee paid for the Product and cancel this
Agreement. Any modification of the Product by any person other than a Kinetium representative or any use of the Product with
infringing software or data will void this warranty.
Kinetium does not warrant that the functions contained in the Product will meet LICENSEE'S requirements or that the Product will
be error-free. Except as provided in this section, KINETIUM EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH
RESPECT TO THE MEDIA AND PRODUCT, INCLUDING, WITHOUT LIMITATION,
(i) THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM A COURSE OF DEALING, USAGE OR
and (ii) ANY WARRANTY ABOUT UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE AVAILABILITY OF PRODUCT OR MEDIA SUCH AS OVER
THE INTERNET. THE FOREGOING STATES KINETIUM'S AND ITS LICENSORS' ENTIRE LIABILITY FOR COPYRIGHT, TRADE SECRET, PATENT OR
OTHER INTELLECTUAL PROPERTY RIGHT INFRINGEMENT BY PRODUCT FURNISHED HEREUNDER. IN NO EVENT SHALL KINETIUM OR ITS LICENSORS
BE LIABLE TO LICENSEE OR A THIRD PARTY FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES INCLUDING LOST PROFITS, LOST DATA
AND THE LIKE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EVEN IF KINETIUM HAS BEEN ADVISED OF THE POSSIBILITY OF
- LICENSEE RESPONSIBILITIES. Licensee agrees not to reproduce, deactivate or bypass the security
procedures used with the Product. Licensee agrees to preserve and respect all copyright, patent, proprietary rights and
confidentiality notices and restricted rights legends included in the Product. Licensee agrees not to disassemble or
reverse-compile the Product or any portion thereof. Licensee further agrees not to disclose, transfer, or otherwise
provide to any third party any portion of the Product without the express written permission of Kinetium. Licensee
hereby acknowledges that Licensee is aware of the fact that the Product contains professional and confidential know-how
and, therefore, shall not be made available to third parties, except as specified herein.
Licensee will be responsible for all taxes including, but not limited to, sales, use, withholding, value-added and excise
taxes assessed or levied by any jurisdiction arising out of the performance of this Agreement, except for taxes based on
the net income of Kinetium.
- EXPORT CONTROLS. The Product is subject to all applicable export laws in accordance with the U.S. Export Administration
Regulations and Licensee hereby agrees that neither the technical data nor the direct product thereof is intended to be
shipped, either directly or indirectly to any embargoed countries nor used for or in support of any prohibited activities.
- GENERAL. This Agreement represents the complete and exclusive statement of the agreements concerning the license between
the parties, supersedes all prior agreements and understandings, and may be modified only in writing signed by Licensee
and Kinetium. The acceptance of any purchase order
or payment by Licensee is expressly made conditional on Licensee's assent to fully comply with all applicable laws
and regulations, the terms and conditions set forth herein, and any terms or conditions contained in Licensee's
purchase order or other writing pertaining to this license that are inconsistent with this Agreement are hereby
rejected. If any provision of this Agreement is held to be unenforceable or illegal under certain circumstances
for any reason, such decision shall not affect the validity or enforceability of such provisions under other
circumstances or the remaining provisions hereof and such provisions shall be reformed only to the extent necessary
to make them enforceable under such circumstances. This Agreement shall be governed by and construed under