SOFTWARE LICENSE AGREEMENT
NOTICE TO BUYER (“END USER” OR “YOU”): CAREFULLY READ THE FOLLOWING SOFTWARE LICENSE AGREEMENT (“AGREEMENT”).
1. License Grant. Seller (hereafter “MARK ANDY”) grants to End User a non-exclusive license to, during the term of this Agreement, use and reproduce the Software, in object code only, and the related documentation provided with the equipment that is the subject matter of the agreement to which this Agreement is attached as an Exhibit (“Equipment”) solely in connection with the operation of the Equipment. You agree that you may not use, reproduce, distribute, make derivative works from, modify or sublicense the Software, any copy of the Software, or such related documentation, in whole or in part, except as specifically permitted in this Agreement, without the prior written approval of MARK ANDY, provided that you may make a single copy of the program for backup purposes and copies may be made for purposes incidental to the operation of the Software. You may not rent or lease the software, but you may assign this Agreement and your rights under this Agreement to a third party who agrees in writing to be bound by this Agreement prior to the assignment, provided that you give written notice to MARK ANDY and transfer all copies of the Software, the Equipment and related documentation to the third party or destroy any copies not transferred. Except as set forth above, you may not assign this Agreement or any of your rights under this Agreement without the prior written consent of MARK ANDY. For purposes of this Agreement, “Software” shall mean MARK ANDY’s software used in connection with the operation of the Equipment, and all upgrades, updates, patches and modifications thereto released by MARK ANDY (but not new versions for which MARK ANDY requires a separate fee and/or license).
2. Intellectual Property Rights. The Software is owned by MARK ANDY and/or its suppliers, and the Software’s structure, organization and code are the valuable trade secrets of MARK ANDY and/or its suppliers. The Software also is protected by United States copyright and intellectual property law and international treaty provisions. You acknowledge that (a) the Software is licensed, (b) title and full ownership rights to the Software will remain the exclusive property of MARK ANDY or its suppliers, and (c) you will not acquire any intellectual property or other rights to the Software other than those set forth in this Agreement. You agree not to remove, modify or obscure any proprietary or other notices which may appear on and in the Software.
3. Reverse Engineering. You agree that you will not attempt and you will not permit your employees and/or contractors to attempt to reverse-engineer, decompile, modify, translate, or disassemble the Software in whole or in part.
4. MARK ANDY Limited Warranty. MARK ANDY warrants that the Software, excluding any embedded third party software, will perform substantially in accordance with the accompanying documentation when used in connection with the Equipment and that the program media are free from any physical defects for a period of one (1) year from the date of receipt of the Equipment (“Limited Warranty Period”). If you discover within this period a failure of the Software to conform to such warranty, you must promptly notify MARK ANDY in writing, and such notice must be received by MARK ANDY no later than 10 days prior to the expiration of the Limited Warranty Period. For service, contact MARK ANDY, INC. at 18081 Chesterfield Airport Road, Chesterfield, Missouri 63005, (636) 532-4433, facsimile (636) 530-9089. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, THE SOFTWARE IS LICENSED TO YOU ON AN “AS IS” BASIS AND MARK ANDY MAKES NO OTHER EXPRESS, STATUTORY OR IMPLIED WARRANTIES WITH RESPECT TO THE SOFTWARE. IN ADDITION, MARK ANDY SPECIFICALLY DISCLAIMS THE WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FURTHER, MARK ANDY DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. No oral or written information or advice given by MARK ANDY or a MARK ANDY representative shall create a warranty.
5. Confidentiality. You acknowledge that MARK ANDY owns and possesses confidential and proprietary information and trade secrets, including, without limitation, the Software, which has significant competitive value to MARK ANDY. You understand the value of this information and MARK ANDY’s need to maintain it confidentially, and accordingly you agree that you will not access, copy, disclose, use or distribute any information you obtain or learn, whether inadvertently or intentionally, from your use of the Software, and that in the event you obtain or learn any such information, you will immediately take all necessary and proper steps to protect its confidentiality, immediately alert MARK ANDY to the situation, and immediately return the information to MARK ANDY and/or comply with any instructions from MARK ANDY with respect to the handling of such information..
6. Third Party Software. ANY EMBEDDED THIRD PARTY SOFTWARE IS PROVIDED TO YOU “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK OF THE QUALITY AND PERFORMANCE OF THIRD PARTY SOFTWARE IS WITH YOU.
7. End User Remedies. MARK ANDY’s entire liability and your sole and exclusive remedy for breach of warranty shall be, at MARK ANDY’s option, either to (a) repair or replacement of the Software if it does not meet the limited warranty set out in Section 4 above or (b) return the portion of the amount paid by End User for attributable to the Software (as reasonably determined by MARK ANDY). The Software, documentation, program media, and a copy of your agreement for the Equipment (including this Exhibit) must be returned to MARK ANDY in order for you to receive a replacement or refund. Any replacement Software will be warranted in accordance with Section 4 above for the remainder of the original Limited Warranty Period.
8. Product Support. For product support, please refer to MARK ANDY’s support number provided in the documentation for the Software. If you have any questions concerning this Agreement, or if you desire to contact MARK ANDY for any other reason, contact MARK ANDY in the manner provided in Section 4.
9. Term. The term of this Agreement shall commence on the effective date of the Purchase Agreement for the Equipment and will terminate (a) immediately, automatically and without notice if you fail to comply with any of the terms of this Agreement or (b) upon the date specified in any notice of termination from MARK ANDY to you sent to you by electronic or other means. Upon termination, you must stop using the Software, erase or destroy all copies of the Software, and destroy all printed information provided with the Software.
10. Severability. If any portion of this Agreement is held to be invalid or unenforceable, the invalid or unenforceable portion shall be modified in accordance with the applicable law as nearly as possible to reflect the parties’ original intentions, and the remainder of this Agreement shall remain in full force and effect.
11. No Liability for Consequential Damages. IN NO EVENT SHALL MARK ANDY OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOST PROFITS, LOST SAVINGS, OR OTHER INCIDENTAL, INDIRECT, GENERAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE, DELIVERY OR PERFORMANCE OF THE SOFTWARE, EVEN IF MARK ANDY OR ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL MARK ANDY AND ITS SUPPLIERS’ TOTAL LIABILITY FOR ANY CLAIM, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT PAID BY END USER WITH RESPECT TO THE EQUIPMENT DURING THE TERM OF THIS AGREEMENT. THIS LIMITATION SHALL APPLY TO CLAIMS OF PERSONAL INJURY TO THE EXTENT PERMITTED BY LAW.
12. Export. You agree that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations.
13. U.S. Government Restricted Rights. The Software and related documentation are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the United States government is subject to restrictions as set forth in subparagraph(c)(1)(n) of The Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs(c)(1) and (2) of the Commercial Computer Software – Restricted Rights at 48 CFR 52.227-19, as applicable.
14. General. This Agreement will be governed by the laws of the State of Missouri, except for its conflict of laws principles. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. You agree that this is the entire agreement between you and MARK ANDY with respect to the use of the Software, and it supersedes any prior agreement, whether written or oral, and all other communications between the parties relating to the subject matter of this Agreement. No amendment to or modification of this Agreement will be binding unless in writing and signed by an authorized representative of MARK ANDY and You