Sculptor License Agreement

IMPORTANT – PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY. IT CONTAINS RESTRICTIONS ON YOUR USE OF THE PRODUCTS, DISCLAIMERS, LIMITATIONS OF LIABILITY, GOVERNING LAW AND OTHER IMPORTANT TERMS. IF YOU DO NOT READ THIS AGREEMENT BUT YOU STILL INSTALL OR USE THE PRODUCT, THIS AGREEMENT WILL STILL BIND YOU.

1. GRANT OF LICENSE.
   OSS provides the computer software program(s) and documentation (printed manuals, guides and/or bulletins) contained in the package and any modifications, updates, revisions, or enhancements received by You from OSS, its distributors or re-sellers (the “Program”) and licenses its use under the terms contained herein and subject to the license restrictions herein.
   You are granted a nontransferable, non-exclusive license to use the Program under the terms stated in this Agreement for Your own use in Your business or profession. The grant of rights hereunder to the Program is not a sale of the Program or any portion thereof and does not convey any rights of ownership in the Program. OSS reserves all rights not all title and ownership of the Program and all associated intellectual property rights are and shall remain with OSS.
2. LICENSE RESTRICTIONS.
   1. You may not make copies, translations, or modifications of or to the Program or any portion thereof.
   2. If You have licensed a single-user version of the Program, the Program shall be used and accessed solely in accordance with a single user arrangement. “Single user arrangement,” as used herein, means that the Program and any data stored on a local area network is accessed by one user at a time. The Program may be used by You at a single location on a single computer, which You own or use in Your business or profession and for which the Program is designed to operate.
   3. You have the right to use the Program on a local area network established by You at a single location. You must acquire and dedicate a license for each separate computer from which the Program is accessed. A license for the Program may not be shared or used concurrently on different computers. Unless You have licensed a multi-user-ready version of the Program, each licensed user may access data stored on a local area network one at a time.
   4. If You have licensed a multi-user version of the Program, the Program shall be used and accessed solely in accordance with a multiple user arrangement. “Multiple user arrangement,” as defined herein, means that the Program and any data stored on a local area network may be accessed by multiple licensed users concurrently. If You have licensed a Multi-User License Pack (the right to install the Program on more than one computer and the right to access the same data concurrently from more than one computer, up to a predefined limit), You may make copies of the Program and install it on separate computers up to the predefined limit and You may access the same data concurrently up to the predefined limit. If You have licensed a multi-user version of the Program or a Multi-User License Pack You agree to bring the provisions of this Agreement to the attention of all users and to cause each user to comply with the terms of this Agreement.
   5. You may not sell, distribute, lease, rent, sublicense, modify, change, alter or transfer the Program or this license. You may not reverse-engineer, reverse-translate, disassemble, or decompile the Program, or any portion thereof, or otherwise attempt to discover the source code or structural framework of the Program, provided that, in the event You desire to enable the Program to interface with another system or program used by You, OSS will, upon satisfying itself of the legitimacy of the request under Your applicable local law, make the relevant interface information available to You upon Your written request.
   6. OSS reserves all rights not expressly granted to You in this Agreement.
3. FEES/PAYMENT TERMS.
   The rights granted to You under this Agreement are conditioned upon Your payment of the applicable license and support fees. All fees referred to in this Agreement are exclusive of taxes. Taxes imposed by government agencies (with the exception of franchise taxes and taxes based upon the net income of OSS), whether based upon the Program, its use, this Agreement or services provided hereunder (including sales and use taxes) are Your additional obligation.
4. LIMITED WARRANTY.
   1. OSS warrants that (1) it may lawfully grant the license to the Program described herein, and (2) the Program will perform substantially in accordance with the accompanying written materials. The above warranty is for the benefit of and shall apply to You only if You are the original licensee of the Program (i.e., You have obtained Your copy of the Program directly from OSS, an OSS distributor or re-seller).
   2. OSS MAKES NO REPRESENTATIONS, EXTENDS NO WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY OF FITNESS FOR A PARTICULAR PURPOSE, AND ASSUMES NO RESPONSIBILITIES WHATEVER WITH RESPECT TO USE OF THE PROGRAM, OR THAT THE PROGRAM WILL NOT INTERFERE WITH PRIVATELY-OWNED RIGHTS OF OTHERS. YOU SHALL INDEMNIFY AND HOLD HARMLESS OSS FOR ALL DAMAGES, COSTS, AND EXPENSES, INCLUDING ATTORNEYS’ FEES, ARISING OUT OF YOUR USE OF THE PROGRAM.
5. DISCLAIMER OF WARRANTIES/LIMITED LIABILITY
   1. Notwithstanding anything contained herein to the contrary, OSS’s entire liability and Your sole remedy shall be, at OSS’s option, limited to either (a) repair or replacement of the Program that does not meet OSS’s Limited Warranty, or (b) the annual license fee. OSS shall have no liability whatsoever if this Agreement has terminated.
   2. In no event will OSS be liable to You for any lost profits, incidental, special, exemplary, punitive, indirect or other consequential damages, even if OSS knows or has been advised of the possibility of such damages, or for any damages caused by Your failure to perform Your responsibilities under this Agreement. You expressly confirm that the limits contained in this Agreement on the liability of OSS are reasonable and You represent that in agreeing to enter into this Agreement You are not relying on the skill, judgment or expertise of OSS.
6. EXPORT RESTRICTIONS.
   The parties shall abide by all foreign and United States federal, state and local laws, ordinances, rules and regulations applicable to the transactions contemplated hereunder. You acknowledge and agree that the Program is controlled by the United States Export Administration Act, as amended, and any regulations thereunder (the “Export Administration Act”). By accepting the terms and conditions of this Agreement, You are certifying that You are currently not in violation and will not violate the Export Administration Act, that no technical data received from OSS or the direct product thereof will be shipped, transferred or exported, directly or indirectly, to any country in violation of the Export Administration Act; that you are not a national of any country to which the United States of America embargoes goods and that you are not a person on the Table of Denial Orders, the Entity List or the List of Specially Designated Nationals. You agree to comply to the extent applicable with the United States Export Administration regulations, the International Traffic in Arms regulations and any regulations or licenses administered by the Department of the Treasury’s Office of Foreign Assets Control.
7. CONFIDENTIALITY.
   1. You acknowledge that the Program belongs to OSS, and agree to keep it confidential and use all reasonable efforts, but no less than due care, to avoid unauthorized disclosure of its contents. The Program, the Program names, logos and other support materials provided under this Agreement are either copyrighted, trademarked or subject to trade secrecy laws. You shall not remove any identification or notices of such proprietary restrictions from the Program. The techniques, algorithms, and process contained in the Program constitute trade secrets and/or proprietary information and will be protected by You against disclosure in at least the same manner You protect your own trade secrets or the trade secrets of others from whom you license similar products. The confidentiality provisions of this section shall survive the termination of this Agreement.
   2. You further acknowledge that OSS possesses valuable Confidential Information and Proprietary Information (hereinafter “Information”) including but not limited to technology, inventions, concepts, processes, improvements, designs, business plans, marketing strategy, and other Information of a similar nature which it desires to disclose to You in conjunction with entering into this Agreement. You agree that OSS shall provide Licensee with such Information, provided that:
   1. You shall hold all Information provided by OSS in strict confidence and allow access to and disclose such Information only to those of your employees who specifically require the Information for the purpose for which it was disclosed.
   2. You shall not use the Information provided by OSS or any part thereof for any purpose which OSS may in its sole discretion disallow;
   3. You shall not disclose the Information provided by OSS or any part thereof to any third party without the prior written consent of OSS;
   4. You shall ensure that all employees to whom the Information is provided are made aware of and shall observe and comply with the obligations imposed by OSS under this Agreement.
   3. The foregoing obligations of confidentiality, non-use and non-disclosure shall not apply to any Information provided by OSS to the extent that You can prove that:
      1. Such Information was lawfully in your possession prior to the receipt thereof from OSS as evidenced by your written records; or
      2. Such Information is publicly available or in the public domain at the time of disclosure; or
      3. Such Information lawfully is or becomes public knowledge through no breach of this agreement by You; or
      4. Such Information is rightfully communicated to You by persons not bound by confidentiality obligations with respect thereto; or
      5. Such Information is approved for release or disclosure by OSS without restriction.
   4. All Information shall be marked with “CONFIDENTIAL” or “PROPRIETARY” legends by OSS, and Licensee shall return all tangible Information (and any copies thereof) within ten (10) calendar days after a request by OSS for such return.
8. U.S. GOVERNMENT RESTRICTED RIGHTS.
   If the Program is to be provided under a U.S. Government contract, the U.S. government’s right to use, modify, reproduce, release or disclose the Program is subject to the restrictions set forth in subparagraph (c)(1)(ii) 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.
9. PUBLICITY.
   Neither party shall use the name of the other party in publicity releases or similar activity without the consent of the other party.
10. TERM AND TERMINATION.
    1. This Agreement will automatically terminate one year from Your receipt of the temporary license key (“short key”), unless You and OSS execute a written extension – if terminated need to cease use.
    2. If You are in default of any obligation under this Agreement, OSS may terminate this Agreement immediately by giving You written notice.
    3. Upon termination of the Agreement for any reason, You shall immediately discontinue use, and within ten (10) calendar days of the termination, You shall return to OSS all copies of the Program and all supporting documentation in Your possession.
    4. Termination of the Agreement shall not bar OSS from seeking any other remedy it may have available against You for breach of the Agreement. You shall hold OSS harmless for any loss or other consequences of a termination of the License under this Agreement.
11. DISPUTES RESOLUTION.
    This Agreement will be construed in accordance with the laws of the State of Idaho, United State of America. All litigation involving either party’s rights and obligations under this Agreement must be brought in a court of competent jurisdiction in the State of Idaho, United States of America.
12. MISCELLANEOUS.
    1. This Agreement is governed by the laws of the State of Idaho. To the fullest extent permitted by law and consistent with valid entry into a binding agreement, the controlling language of this Agreement is English and any translation you have received has been provided solely for your convenience. In the event You have entered into this Agreement by means of the display of a translated version of this Agreement in a language other than U.S. English, you may request a U.S. English language version of this Agreement by notice to OSS. To the fullest extent permitted by law, all correspondence and communication between You and OSS under this Agreement must be in the English language.
    2. In the event that any provision of this Agreement is found invalid or unenforceable pursuant to judicial decree, the remainder of this Agreement shall be valid and enforceable according to its terms.
    3. Sculptor™ is a registered trademark of Optimal Solutions Software, LLC, and is copyrighted under the laws of the United States.
    4. You shall not assign this Agreement (by operation of law or otherwise), or subcontract or delegate any portion of Your required performance obligations hereunder without OSS’s prior written consent. This Agreement shall be binding upon, and shall inure to the benefit of, the successors and permitted assigns of the parties to this Agreement.
    5. No failure or delay of either party to exercise any rights or remedies under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of the same or other rights or remedies preclude any further or other exercise of the same or other rights or remedies, nor shall any waiver of any rights or remedies with respect to any circumstances be constructed as a waiver thereof with respect to any other circumstances.
    6. Sections 5 (Disclaimer of Warranties/Limited Liability), Section 7 (Confidentiality), Liability), 10 (Term and Termination), 12(a) (Governing Law) and this Section 12(f) shall survive the expiration or termination of this Agreement.
    7. This Agreement constitutes the entire agreement between You and OSS with respect to the subject matter hereof, and supersedes all proposals, oral or written, and all other communications between the parties with respect to such subject matter. This Agreement shall not be modified, except by written agreement signed by the parties hereto.
    8. OSS shall not be liable for and shall be excused from any failure to deliver or perform or for delay in delivery or performance due to causes beyond its reasonable control, including but not limited to, work stoppages, shortages, civil disturbances, terrorist actions, transportation problems, interruptions of power or communications, failure of suppliers or subcontractors, natural disasters or other acts of God.
    9. In the event an action is brought to enforce any of the terms and conditions of this Agreement, or in the event this Agreement is placed with an attorney for collection or enforcement, the successful party to such an action or collection shall be entitled to recover from the losing party a reasonable attorney’s fee, together with such other costs as may be authorized by law.
    10. All notices given hereunder shall be in writing and sent by overnight courier or delivered in person: (i) if to OSS, to Optimal Solutions Software, LLC, 2825 West 1700 North, Idaho Falls, Idaho 83402, USA; and (ii) if to You, to the address You indicated upon Your registration of the Program.
    11. European Union. To the fullest extent permitted by law, if You are located in a member state of the European Union, You hereby waive all notices, acknowledgments of receipt and confirmations relative to contracting by electronic means which may be required under Articles 10(1), 10(2), 11(1) and 11(2) of EU Directive 2000/31/EC as implemented in Your jurisdiction in respect of this Agreement and Your use of the Program.