Mixed Mode
Constitutive Driver (MMCD)
Usage Agreement
COPYRIGHT 2007
APTEK Inc.
By installing and using the MMCD, the user agrees to the
terms and conditions of this Agreement, and acknowledges that this software is
copyrighted by APTEK, Inc.
Recipients of the MMCD are not authorized to distribute
the software to other individuals or organizations without prior approval by
APTEK. Requests for a copy of the
MMCD may be made directly to APTEK at
www.aptek.com.
Grant of License
APTEK, Inc. grants to Licensee
a non-exclusive license to install and use the Software on one (1) computer in
Licensee's possession (the "License"). Licensee may make one (1) archival copy
of the Software per computer on which its use is authorized, in non-printed,
machine readable form, in whole or in part, provided that such copy is for
Licensee's own use and that no more than that single copy is in use at any time.
Licensee will make no other copies of the Software except as authorized herein.
Title to the Software will remain vested in APTEK, Inc., and nothing in this
Agreement will give or convey any right, title or interest therein to Licensee
except as a licensee under the terms of this Agreement.
Term and Termination
The License commences as of the
Effective Date of this Agreement, and remains in force for one (1) year.
Licensee may renew the lease for a subsequent year for the Software by
paying the then prevailing lease rate.
Upon termination of this agreement, Licensee will (i) return all copies
of the Software to APTEK, Inc. without demand or notice, or (ii) permanently
delete or destroy all copies of the Software in its possession and submit to
APTEK, Inc. a sworn affidavit signed by Licensee attesting to such destruction.
License Fee
Licensee agrees to pay a fee
for the grant of the License herein.
Limitations on Use
A. Licensee agrees that it will
use the Software only in its own business, and not directly or indirectly for
the use or benefit of anyone other than Licensee, and only pursuant to the scope
of the grant of the License set forth herein.
B. Licensee will not decode,
alter, decompile, reverse engineer, perform reverse analysis on or disassemble
the Software.
Limitations on Transfer
This License may not be
conveyed in any way, or transferred to another computer, without the prior
written consent of APTEK.
Confidentiality
Licensee agrees to observe
complete confidentiality with respect to the Software, and will not copy,
reproduce, or otherwise disseminate it to third parties. Any breach of
confidentiality by Licensee will automatically terminate this Agreement.
Licensee's Obligation to
Notify of Infringement
Licensee will immediately
notify APTEK, Inc. of any infringement or attempted infringement of APTEK,
Inc.'s rights in the Software of which it becomes aware. Licensee will
affirmatively cooperate with APTEK, Inc. in any legal or equitable action that
APTEK, Inc. may undertake to protect any of its rights in connection with the
Software.
Warranty of Title
APTEK, Inc. warrants that it is
the lawful owner of the Software and/or that it has the authority to grant the
License specified herein.
Software Warranty and
Disclaimer
APTEK, Inc. warrants that the
Software has been developed in a workmanlike manner, and in conformity with
generally prevailing industry standards. Licensee must report any material
deficiencies in the Software to APTEK, Inc. in writing within ninety (90) days
of the Effective Date of this Agreement. Licensee's exclusive remedy for the
breach of the above warranties will be the correction of the material deficiency
within a commercially reasonable time. THIS WARRANTY IS EXCLUSIVE
Limitation of Liability,
Indemnification
A. Neither party will be liable
to the other for special, indirect or consequential damages incurred or suffered
by the other arising as a result of or related to the use of the Software,
whether in contract, tort or otherwise, even if the other has been advised of
the possibility of such loss or damages. APTEK, Inc.'s total liability under
this Agreement with respect to the Software, regardless of cause or theory of
recovery, will not exceed the total amount of fees paid by Licensee under this
agreement.
B. Licensee will indemnify and
hold APTEK, Inc. harmless against any claims incurred by APTEK, Inc. arising out
of or in conjunction with Licensee's use of the Software, as well as all
reasonable costs, expenses and attorneys' fees incurred therein.
Maintenance, Upgrades and
Support
APTEK, Inc. will remedy any
errors that are produced by the software, and distributed to licensee, in a
commercially timely manner after APTEK, Inc. becomes notified of the problem in
writing, either by regular mail or e-mail.
APTEK, Inc., at its sole discretion, may periodically distribute upgrades
to the Software if, and when, they become available.
APTEK, Inc. will also provide a maximum of two (2) hours of support to
assist Licensee in the operation of
the Software, either via telephone or by e-mail, at APTEK’s sole discretion.
Additional support may be purchased from APTEK, Inc. billed in quarter
hour increments. The next quarter
hour will be billed in full when the previous quarter hour time is exceeded.
No software maintenance is
included under the terms of this Agreement. APTEK, Inc.'s obligations with
respect to maintenance and support, including upgrades, if any, will be set
forth in a separate written agreement between the parties.
Relation of Parties
Nothing in this Agreement will
create or imply an agency relationship between APTEK, Inc. and Licensee, nor
will this Agreement be deemed to constitute a joint venture or partnership
between the parties.
Arbitration
Any dispute arising under this
Agreement will be subject to binding arbitration by a single Arbitrator with the
American Arbitration Association (
Attorneys' Fees
If any litigation or
arbitration is necessary to enforce the terms of this Agreement, the prevailing
party will be entitled to reasonable attorneys' fees and costs.
Severability
If any term of this Agreement
is found to be unenforceable or contrary to law, it will be modified to the
least extent necessary to make it enforceable, and the remaining portions of
this Agreement will remain in full force and effect.
Force Majeure
Neither party will be held
responsible for any delay or failure in performance of any part of this
Agreement to the extent that such delay is caused by events or circumstances
beyond the delayed party's reasonable control.
No Waiver
The waiver by any party of any
breach of covenant will not be construed to be a waiver of any succeeding breach
or any other covenant. All waivers must be in writing, and signed by the party
waiving its rights. This Agreement may be modified only by a written instrument
executed by authorized representatives of the parties hereto.
Entire Agreement
This Agreement, together with
any attachments referred to herein, constitutes the entire agreement between the
parties with respect to its subject matter, and supersedes all prior agreements,
proposals, negotiations, representations or communications relating to the
subject matter. Both parties acknowledge that they have not been induced to
enter into this Agreement by any representations or promises not specifically
stated herein.