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END USER LICENSE AGREEMENT
BY ACCEPTING THIS END USER LICENSE AGREEMENT, YOU AGREE TO ALL OF THE TERMS SET OUT IN THIS END USER LICENSE AGREEMENT. IF YOU DO NOT ACCEPT AND COMPLY WITH THESE TERMS, YOU MAY NOT USE THE SOFTWARE OR FEATURES ASSOCIATED WITH IT.
1. INTRODUCTION
1.1. This is a license agreement between you (“you” or the “Licensee”) and St. Mary’s Bank, a Credit Union incorporated in the state of New Hampshire (“Licensor”, “we” or “us”) that describes your rights to use the Software.
1.2. The Licensor reserves all rights (such as rights under intellectual property laws) not expressly granted in this license agreement. In particular, this license agreement does not give you any right to, and you may not: use or virtualize features of the Software separately, publish, copy, rent, lease, or lend the Software; transfer the Software, attempt to circumvent technical protection measures in the Software; reverse engineer, decompile, or disassemble the Software.
2. DEFINITIONS AND INTERPRETATION
2.1. In this license agreement, the following capitalized terms shall have the meanings set out alongside them:
“Commencement Date” means the date on which the Software is activated for use by you in accordance with the terms of this license agreement;
“Confidential Information” means any information or data of any form, including information related to products (including the discovery, invention, research, improvement, development, manufacture, or sale thereof) and any information related to customers, processes, or business operations (including sales, costs, profits, pricing methods, organization), whether or not marked as confidential, that reasonably should be understood to be confidential or proprietary given its nature and the circumstance of any such disclosure;
“Documentation” means any manuals, user guides or other information provided by the Licensor, in digital or print form, to assist in the operation of the Software;
“Intellectual Property” means copyrights, inventions, patents, know-how, trade secrets, trademarks and trade names, service marks, design rights, database rights, and any other intellectual property rights (whether registered or unregistered) and all applications for any of the foregoing, anywhere in the world;
“License” means the license granted to you in respect of your use of certain functionality of the Software as may be activated by the Product Key;
“Output” means any report, score, grading, estimation, rating, or data, in whatever form, generated through your use of the Software;
“Product Key” means the activation code (consisting of a user identifier and password) provided to you to enable each User to utilize the Software;
“Representatives” means agents, employees, personnel or subcontractors of Licensee;
“Software” means all components of the “CU ApexSim” software product including all libraries, components or features licensed and deployed with the software, know-how, databases, or other materials in any form (regardless of medium or form of storage) and which are provided under the License;
“User” means an individual as identified by an individual Product Key provided during activation of the Software and granted the right to use the Software.
3. GRANT OF LICENSE
3.1. With effect from the Commencement Date, we grant to you a non-exclusive, non-transferable, worldwide license to use the Software and the Documentation in accordance with the terms of this license agreement.
3.2. We shall make available the Software and Documentation to you by way of a Product Key and access to a network-accessible site for software execution.
4. USER RESTRICTIONS
4.1. You shall not copy or otherwise reproduce the Software or the Documentation or permit anyone else to do so.
4.2. You shall not decompile, disassemble or reverse engineer the Software or any part thereof. Information necessary to achieve interoperability of the Software with independently created programs may be provided by us upon request.
4.3. You shall not modify, adapt, alter, translate, or create Derivative Works of the Software or Output.
4.4. You shall not use the Software, Output, or any part thereof to provide similar services to third parties, provide any third party consulting services, or permit third parties to remotely access and use the Software.
4.5. You shall not use the Software or Output (or any part thereof) to develop a product line that is similar to the Software.
4.6. You shall not use the Software or Output (or any part thereof) to create any comparative analyses of the Software or Output (or any part thereof), by itself or relative to other technology.
4.7. You shall not use, alter, obscure, remove, interfere with or add to any trademarks, trade names, markings or notices used on or contained in the Software.
5. INTELLECTUAL PROPERTY RIGHTS
5.1. You acknowledge and agree that the Software and Documentation shall at all times remain property of Licensor and that all rights to Intellectual Property subsisting in the Software and Documentation shall belong to us.
5.2. You will not adapt, amend, publish or otherwise use any copies of the Software or the Documentation except as expressly permitted by this license agreement.
5.3. The User warrants that it will not provide the Property Key to any other party or individual and shall not permit any such other party or individual to use or activate the Software with the Property Key of the User.
6. CONFIDENTIAL INFORMATION
6.1. The Software shall constitute Confidential Information. Licensee shall maintain the confidentiality of the Software user interface and Output and shall not without the prior written consent of the Licensor use, disclose, copy or modify the Licensor’s Confidential Information or permit others to do so.
6.2. You may receive or have access to additional Confidential Information. Licensee agrees to use the same care and discretion to protect Licensor’s Confidential Information as used to protect Licensee’s confidential and proprietary information (but in no event less than reasonable care). You may only disclose Confidential Information of the Licensor to Representatives who have a need to know, provided that such Representatives are bound to confidentiality obligations no less protective of Licensor than this Agreement and that Licensee remains responsible for compliance by any such Representatives with the terms of this Agreement.
6.3. You may not disclose, copy, sell, assign, lease, rent or otherwise transfer Licensor’s Confidential Information to any third party without the prior written consent of Licensor. In the event of actual or threatened unauthorized use or disclosure by You or Your Representatives, Licensor will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
6.4. A disclosure of Licensor’s Confidential Information compelled under a valid order issued by a court or governmental agency of competent jurisdiction shall not be considered a breach of confidentiality by Licensee or a waiver of that obligation by Licensor; provided however, before any such disclosure, Licensee shall provide prompt written notice to Licensor and reasonable assistance in seeking a protective order or other limitations on disclosure. If, after taking these steps, Licensee is still required to disclose Licensor’s Confidential Information, Licensee shall disclose only that of Licensor’s Confidential Information specifically required and will seek assurances from the applicable court or agency that Licensor’s Confidential Information will be afforded confidential treatment.
6.5. The obligations under Section 7 shall survive the variation and expiry or termination of this license agreement for a period of five years thereafter.
7. WARRANTY
7.1. The Licensor warrants that it has all rights, title and authorization necessary to grant the License.
7.2. SOFTWARE AND DOCUMENTATION PROVIDED UNDER THIS LICENSE AGREEMENT ARE LICENSED “AS-IS,” AND YOU BEAR THE RISK OF USING IT. THE LICENSOR GIVES NO EXPRESS WARRANTIES, GUARANTEES OR CONDITIONS. YOU MAY HAVE ADDITIONAL CONSUMER RIGHTS UNDER STATUTE WHICH THIS AGREEMENT CANNOT CHANGE. TO THE MAXIMUM EXTENT PERMITTED UNDER STATUTE, THE LICENSOR EXCLUDES THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7.3. Without prejudice to the generality of the foregoing, you acknowledge that, to the maximum extent permitted by law, no warranty, condition, representation or other term (whether express or implied, and whether arising by statute, common law or custom, or due to prior oral or written statements by Licensor, Licensor’s agents or otherwise) has been or is made by Licensor:
8.3.1.1. that the Software will be error, virus or bug free;
8.3.1.2. that the Software is suitable for any particular purpose;
8.3.1.3. that the Software will perform in accordance with your requirements;
8.3.1.4. as to the accuracy or reliability of the Software or any Output; or
8.3.1.5. that the Software or any Output constitute professional advice of any form whatsoever.
8. LIABILITY
8.1. Clauses 8.2 and 8.3 and prevail over all other clauses and set forth Licensor’s entire liability to you under or in relation to this license agreement.
8.2. Licensor shall have no liability arising out of or in relation to this license agreement for any direct, indirect, special or consequential loss or damage (even if such loss was reasonably foreseeable) whatsoever and howsoever caused, arising from or connected with your use, analysis or exploitation in any way of the Software or any Output at any time.
8.3. You acknowledge and accept that the provisions of clause 8.2 are reasonable taking into account the fee (if any) payable by you in connection with the License and the purpose for which the License is granted.
9. TERMINATION
9.1. Licensor may terminate this license agreement immediately at any time without cause.
9.2. Upon termination of this license agreement, the Licensor shall be entitled to automatically deactivate the Software without notice.
9.3. Licensor may change the terms of this license agreement from time to time, for example when we provide an upgrade or new release of the Software. Licensor is not required to notify you of any such change before the change comes into effect. If you do not agree to the change then you shall be entitled to terminate this license agreement at that time. By accessing or running any new release or upgrade which is subject to any such changed terms, you will be deemed to have accepted the changed terms.
10. GENERAL
10.1. You shall not assign or transfer any rights or obligations under this license agreement without Licensor’s prior written consent.
10.2. Each party shall be excused from performance of its obligations under this license agreement for any period and to the extent that such party is prevented from performing any such obligation in whole or in part, as a result of delays caused by the other party, an act of God, war, civil disturbance, court order or labor dispute (other than one between the party claiming the benefit of this clause and its staff), (each an “Event of Force Majeure”), and such non-performance shall not be a default or a ground for termination, but the party concerned shall use all reasonable endeavors to resume full performance as soon as possible.
10.3. If any part, term or provision of this license agreement not being of a fundamental nature be held illegal or unenforceable the validity or enforceability of the remainder of this license agreement shall not be affected.
10.4. This license agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) is governed by and will be construed in accordance with the law of the State of New Hampshire.
10.5. Each party irrevocably submits to the exclusive jurisdiction of the state and federal courts for Hillsborough County and the state of New Hampshire to settle any dispute or claim that arises out of or in connection with this license agreement, its subject matter or formation (including non-contractual disputes or claims).