Please read this license agreement (“Agreement”) carefully before you download, copy, install, or use the software contained in this package or transmittal.
This is a legal agreement between Elixir Technology Pte Ltd (“Elixir”), a company registered in the Republic of Singapore and you (the individual or entity) on the use of the Software (“Software”), which includes the programs (source and object), related documentation, all modifications, variations and enhancements thereof, if any. By installing, copying or using the Software, you are accepting the following terms and conditions. If you do not agree to these terms and conditions, you may not download, copy, install, or use the Software.
1. LICENSE TERMS
1.1 License to Use: Elixir grants to you a non-exclusive, non-transferable license to use the Software solely for internal use only, and only on the authorized number of machines or users or runtime instances, as specified on Elixir’s invoice to you. Third party software products or modules supplied by Elixir, if any, may be used solely with the Software. If you integrate the Software into an application and intend to resell the resulting integrated application you must contact Elixir to obtain the appropriate distribution license. All rights not specifically granted to you herein are retained by Elixir.
1.2 Restrictions on Use. Unless otherwise specified, you may not reverse engineer, decompile, disassemble or otherwise attempt to determine source code or protocols from the Software or disclose the results of software performance benchmarks to any third party without Elixir’s prior written consent. Additional restrictions, if any, with respect to third party software will be delivered to you along with the Software. You may not lease, rent, resell or sublicense the Software to any third party, or otherwise use it except as permitted in this Agreement.
1.3 Limited Use License. If you acquired the Software from a third party and the Software was embedded or bundled with a third party software application, Elixir grants to you a non-exclusive, non-transferable, license to use the Software only in connection with your existing use of such third party software application or data derived from such third party software application. Limited use does not include use of the Elixir Software in a standalone fashion or with software or data not incorporated into or derived from the third party software application.
1.4 Evaluation Use. If you have registered as an evaluation customer, subject to the terms of this Agreement, Elixir grants to you a non-exclusive, non-transferable, license to use the evaluation version of the Software solely for evaluation leading to purchase of Software or partnership with Elixir. Third party software products or modules supplied by Elixir, if any, may be used solely with the Software. This license begins upon downloading and ends thirty (30) days thereafter, unless otherwise stated. When the evaluation period expires you must stop using the Software. All rights not specifically granted to you herein are retained by Elixir.
1.5 Copies. You may make a reasonable number of copies of the Software (provided that all copyright and other proprietary notices of Elixir and its licensers are reproduced), solely for archival purposes. If you do copy for this purpose, you will preserve any proprietary rights notices on the Software and place such notices on any and all copies you made or make.
2. OWNERSHIP AND CONFIDENTIALITY
2.1 Ownership Rights. Title, ownership rights and all intellectual property rights in and to the Software shall remain the sole and exclusive property of Elixir.
2.2 Non-Disclosure. Elixir Software and Confidential Information, or anything considered by Elixir to be confidential shall not be transmitted to any third party by you. You will take necessary and appropriate actions to prevent disclosure of the Confidential Information to any third party, including, but not limited to, keeping the Confidential Information in a secure place, under access and use restrictions designed to prevent disclosure of the Confidential Information to unauthorized persons.
2.3. Confidential Information. Confidential Information refers to any type of information which was conceived, originated or developed by Elixir, and disclosed at any time to or known at any time by you as a consequence of this agreement. Such Confidential Information includes, but is not limited to customer lists, pricing methods, marketing or production plans, or financial or administrative information as well as all computer code, inventions, algorithms, know-how and ideas embodied in or by the Software. Confidential Information may be contained or transmitted in any form or on any medium whatever, or may be unwritten knowledge or know-how, including any expression of Elixir’s findings, analyses, conclusions, opinions, recommendations, ideas, techniques, know-how, designs, programs, enhancements, software, and other technical information provided to You by Elixir in the course of performing consulting, training, maintenance or other services related to the Software.
3. SUPPORT AND MAINTENANCE
You must purchase Support and Maintenance services to qualify for Elixir’s technical support services either directly or through its authorized representative.
3.1 Support Services. Support Services generally mean that Elixir will provide:
(i) Maintenance Updates and Upgrades (“Maintenance Releases”) if, as and when Elixir makes any such Maintenance Releases generally available and
(ii)Technical support with respect to the Software, including
(a) Clarification of functions and features;
(b) Clarification of documentation;
(c) Guidance in the operation of the Software; and
(d) Software error analysis
Elixir will use reasonable efforts to provide error corrections or workarounds for the most severe errors as soon as possible and based upon Elixir’s classification of the severity of the error. Support Services will be provided only with respect to versions of the Software that, in accordance with Elixir policy, are then being supported by Elixir. The services will be performed based on a separate agreement or purchase order. Elixir or its authorized representative shall have no obligation to provide support or maintenance or updates, modifications or new releases, except as may be set forth in that agreement or purchase order.
3.2 Maintenance Updates. Maintenance Updates refer to Software modifications or additions that correct Errors, or procedures or routines that eliminates the practical adverse effect of the Error on customer. Error means a failure of the Software to conform to the specifications as set forth in the documentation, resulting in the inability or material restriction in using the Software.
3.3 Maintenance Upgrades. Maintenance Upgrade refers to a revision of the Software released by Elixir to its end user customers generally, to add new and different functions or to increase the capacity of the Software. Upgrade does not include the release of a new product or added features for which there may be a separate charge. If a question arises as to whether a new product offering is an Upgrade or a new product or feature, Elixir’s opinion will prevail, provided that Elixir treats the product offering as a new product or feature for its end user customers generally.
4. LIMITED WARRANTY
4.1 Limited Warranty. Elixir warrants that the Software will conform in all material respects to the documentation for a period of ninety (90) days from the date of delivery of the Software. Elixir does not warrant that operation of the Software will be uninterrupted or Error free. If Elixir breaches the foregoing warranty and you promptly notify Elixir in writing of the nature of the breach, Elixir shall make commercially reasonable efforts to promptly repair or replace the non-conforming Software, without charge. If, after a reasonable opportunity to cure, Elixir does not repair or replace the non-conforming Software, you must return the Software to Elixir, or certify in writing that all copies have been destroyed, and Elixir will refund the fees it received for the Software to you. This is your sole and exclusive remedy for breach of the exclusive warranty set forth above
4.2 Disclaimer. THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
5 LIMITATION OF LIABILITY
Elixir’s aggregate liability to you for damages concerning performance or non-performance by Elixir or in any way related to this Agreement, and regardless of whether the claim for such damages is based in contract, tort, strict liability of otherwise, shall not exceed the license fees received by Elixir for the affected Software for the twelve (12) month period preceding the occurrence of such liability. In no event shall Elixir be liable for any indirect, incidental, special, punitive or consequential damages, lost data or lost profits, even if Elixir has been advised as to the possibility of such damages.
6. TERM AND TERMINATION
6.1 Acceptance of Agreement and Termination. This Agreement takes effect upon the earlier of (i) your downloading of the Software, (ii) your use of the Software, or (iii) receipt by Elixir of a valid, binding purchase order, Agreement or other ordering document for the Software, and will remain in force until terminated in accordance with this Agreement. This Agreement may be terminated by you upon thirty (30) days’ prior written notice to Elixir or by destroying or returning to Elixir all copies and partial copies of the Software under your control; provided that no such termination will entitle you to a refund of any portion of the fees for License or Support Services. Elixir may, by written notice to you, terminate this Agreement immediately if any of the following events occur: (a) you fail to pay any amount due to Elixir within thirty (30) days after Elixir gives you written notice of such nonpayment; (b) you are in material breach of any non-monetary provision of this Agreement, which breach, if capable of being cured, is not cured within thirty (30) days after Elixir gives you written notice thereof, or (c) you declare bankruptcy or make an assignment to or for the benefit of creditors.
6.2 Survival. Upon termination of this Agreement, the provisions of Sections 2, 4.2, 5, 6, and 7 will survive.
6.3 Effect of Termination. Within thirty (30) days after the date of termination or discontinuance of this Agreement for any reason whatsoever, you shall destroy the Software and all copies, in whole or in part, of all documentation relating thereto, and any other Elixir confidential information in your possession that is in tangible form.
7.1 Force Majeure. Neither party shall be liable for any delay or failure in performance due to causes beyond its reasonable control.
7.2 Assignment. You may not assign this Agreement, except to a successor in interest as the result of a merger or acquisition or sale of all or substantially all of your assets, without Elixir’s prior written consent which will not be unreasonably withheld.
7.3 Severability. If any part of this Agreement is held to be unenforceable, in whole or in part, such holding will not affect the validity of the other parts of the Agreement.
7.4 Waiver. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
7.5 Governing Law and Venue. This Agreement will be governed by the laws of Singapore.
7.6 Entire Agreement. Any amendment or modification to the Agreement must be in writing signed by both parties. This Agreement constitutes the entire agreement and supersedes all prior or existing oral or written agreements regarding the subject matter hereof.
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All Rights Reserved.