License Agreement

MCLA Metrixware Community License Agreement

Version 1.4

BY DOWNLOADING, INSTALLING, COPYING, ACCESSING OR USING THE SOFTWARE, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND YOU WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY OR LEGAL ENTITY TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL, COPY, ACCESS OR USE THE SOFTWARE.

This Metrixware Community License Agreement (“Agreement”) sets forth the terms and conditions of your use of the METRIXWARE software product(s). Any third party software that is provided with the Software with such third party’s license agreement (in either electronic or printed form) is included for use at your option. If you choose to use such software, then such use shall be governed by such third party’s license agreement and not by this Agreement. As used in this Agreement, for residents of all countries, “Metrixware” shall mean Metrixware SAS whose place of business is at 18-22, Rue d’Arras – 92000 – Nanterre, France and its subsidiaries SystemObjects SASU and SystemObjects Corporation.

1. Definitions

The following terms when used in this Agreement shall have the meanings as set forth below. Metrixware reserves the right to further clarify or amend the definitions in its sole discretion, at any time, and such clarified or amended terms shall be effective upon posting at http://www.metrixware.com/mcla or notice to Licensee.

“Educational Institution”means an institution, facility or entity whose primary purpose is providing education.

“Licensee”means the individual, Educational Institution or Organization authorized to use the Software.

“Organization”means the company, group or legal entity, whether commercial or non-commercial (and including but not limited to non-profit entities, charitable institutions, healthcare institutions and governmental entities), that has (or on whose behalf has), downloaded the Software, provided, however, that if a company, group or legal entity is part of, or is controlled by, a larger organization, then Organization shall mean such larger organization.

 “Software”means the accompanying materials including, but not limited to, source code, binary executables, documentation, images, and scripts, which are distributed by Metrixware, and derivatives of that collection and/or those files are referred to herein as the “Software”.

“Workstation”the local computer on which you install the Software.

“CPU”means a single core-processor or a core in a multi-core processor.

2. License Grant and Conditions for the Software

2.1. Metrixware grants to Licensee a worldwide, royalty free, limited, non-exclusive, non-transferable, personal right and license to install and use the Software subject to the terms and conditions contained herein.

2.2 Notwithstanding the foregoing, if Licensee is: (i) an Organization, the licensee may install and use the Software on a maximum of one (1) local developer Workstations with a maximum of two (2) CPUs; or (ii) an Educational Institution, Licensee may install and use the Software on an unlimited number of Workstations and CPUs, provided such use is solely for educational or training purposes and not for Licensee’s internal business or any commercial use. Except for the express license granted in this Section 2, no other licenses are granted by implication, estoppel or otherwise. Any other use requires that you acquire a commercial version of the Metrixware software under the terms of the commercial Metrixware End-User License Agreement. Please contact a Metrixware representative for further assistance at license@metrixware.com.

2.3. Licensee is permitted to modify the Accessible Code to develop bug fixes, customizations, or additional features, solely for the purpose of using the Software pursuant to this Agreement. “Accessible Code” means source code contained within the Software that is under an open source license including this License.

2.4. No Other Software and Services. Metrixware will not provide Licensee with any other software or services (including any support or maintenance services) relating to the Software, except to the extent that such software and services, if any, are required and provided pursuant to an applicable maintenance and support agreement.

3. Restrictions

3.1. Except as expressly provided herein Licensee may not:

(i) permit others outside Licensee organization to use the Software;

(ii) modify or translate the Software;

(iii) reverse engineer, decompile, or disassemble the Software, except to the extent this restriction is expressly prohibited by applicable law;

(iv) create derivative works based on the Software;

(v) merge the Software with another product;

(vi) copy the Software;

(vii) remove or obscure any proprietary rights notices or labels on the Software;

(vii) redistribute the Software as a whole whether as a wrapped application or on a stand alone basis;

(viii) redistribute the Metrixware components with Your Wrapped Application.

3.2. Licensee may not distribute the Software via OEM Distribution (as defined below) without entering into a separate OEM Distribution Agreement with Metrixware. “OEM Distribution” means distribution and or use of the Software as either a bundled add-on to, or embedded component of, another application with such application being made available to its users as, but not limited to, an on-premises application, a hosted application, a Software-as-a-Service offering or a subscription service for which the distributor of the application receives a license fee or any form of direct or indirect compensation.

3.3. Metrixware encourages Licensee to promote use of the Software. However this Agreement does not grant permission to use the trade names, trademarks, service marks, or product names of Metrixware, except as required for reasonable and customary use in describing the origin of the Software. In particular, Licensee cannot use any of these marks in any way that might state or imply that Metrixware endorses licensee work, or might state or imply that Licensee created the Software covered by this Agreement.

4. Ownership

Metrixware or its licensors own and retain all right, title and interest in all documentation and Software, and any and all versions, releases, corrections, bug fixes, enhancements, derivative works, updates or other modifications thereto, including but not limited to all patents, trademarks, copyrights, trade secrets and other intellectual property rights therein (“Metrixware Property”). Licensee shall keep the Software and all documentation free and clear of all claims, liens and encumbrances. Licensee agrees not to, directly or indirectly, challenge the right, title and interest of Metrixware or its licensors in and to the Metrixware Property, or to register, apply for registration or attempt to acquire any legal protection for any of the Metrixware Property. The Metrixware Property shall under no circumstances be deemed to be “joint works of authorship,” “works made for hire,” or any other designation tending to imply that Licensee has or retains ownership or authorship rights thereto. To the extent that any such rights vest with Licensee by operation of law or for any other reason, Licensee hereby perpetually and irrevocably assigns all such rights to Metrixware. At Metrixware’s request and expense, Licensee shall execute all documents and perform all acts that Metrixware may reasonably require in order to protect and perfect Metrixware’s rights in the Metrixware Property.

5. Warranty Disclaimer

The Software is provided at no charge on an “AS IS”, ‘WHERE IS” basis, without warranty of any kind, including without limitation any warranties that the Software is free of defects, merchantable, fit for a particular purpose or non-infringing. The entire risk as to the quality and performance of the Software is borne by Licensee. Should the Software prove defective in any respect, Licensee and not Metrixware or its suppliers assume the entire cost of any service and repair. This disclaimer of warranty constitutes an essential part of this Agreement. No use of the Software is authorized hereunder except under this disclaimer. METRIXWARE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT OF THIRD PARTIES’ RIGHTS.

6. Limitation of Liability

IN NO EVENT SHALL METRIXWARE BE LIABLE FOR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR INCIDENTAL DAMAGES OF ANY KIND INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, LOSS OF USE, LOSS OF DATA, COMPUTER FAILURE OR MALFUNCTION, HOWEVER CAUSED, AND WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY, EVEN IF METRIXWARE HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES. IN NO EVENT SHALL METRIXWARE’S CUMULATIVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR LICENSEE’S USE OF THE SOFTWARE EXCEED FIFTY EUROS (50.00 EUR). THE PARTIES ACKNOWLEDGE AND AGREE THAT THE CONSIDERATION EXCHANGED HEREUNDER IS BASED IN PART UPON THE ABOVE LIMITATIONS, AND FURTHER AGREE THAT SUCH LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

7. Indemnification

Licensee shall defend, indemnify and hold harmless Metrixware and its officers, directors, employees and shareholders from and against any and all loss, damage, settlement, costs or expense (including legal expenses and expenses of other professionals), as incurred, resulting from, or arising out of:

(a) any third party claim which alleges that any work performed or produced as a result of use of the Software infringes upon, misappropriates or violates any intellectual property rights where such claim is completely independent of the Software;

(b) Licensee’s use of the Software; and

(c) breach by Licensee of Section 2, 3 or 4.

8. Maintenance

Metrixware is under no obligation to, and does not, provide any maintenance or support under the terms of this Agreement. Any maintenance or support provided shall be at the sole discretion of Metrixware and if provided shall be subject to all of the terms and conditions herein. If Licensee desires to receive maintenance and/or support for the Software, please contact Metrixware for a commercial license.

9. Termination

This Agreement and the license granted hereunder will terminate automatically if Licensee fails to comply with any of the terms set forth herein. In addition, Metrixware may terminate this Agreement:

(a) at any time upon written notice in the event Licensee makes a general assignment for the benefit of its creditors, suffers or permits the appointment of a receiver for its business or assets, becomes subject to or initiates a proceeding under any bankruptcy or insolvency law or has wound up or liquidated its business; or

(b) in the event that Licensee is acquired by, acquires, merges with, or sells substantially all of its business or assets to an entity whose business includes the development, marketing or distribution of a product or products that compete with the core functions of the Metrixware software or

(c) if Licensee is an Organization that is involved in the development, marketing or distribution of a product or products that compete with the core functions of the Metrixware software.

Upon termination of this Agreement, Licensee agrees to immediately discontinue any use of the Software, all documentation, and derivative works or copies thereof. Licensee agrees to supply Metrixware with an affidavit verifying that this provision has been complied with, and immediately return the Software and all documentation and copies thereof to Metrixware.

10. Force Majeure

Neither party will incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the parties. Such events, occurrences, or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, earthquakes, fire and explosions, but the inability to meet financial obligations is expressly excluded.

11. Waiver

Any waiver of the provisions of this Agreement or any agreement related to this Agreement or of a party’s rights or remedies under this Agreement or an agreement related to this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or agreement related to this Agreement, or its rights or remedies at any time will not be construed nor deemed to be a waiver of such party’s rights under this Agreement or any agreement related to this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or any agreement related to this Agreement or prejudice such party’s right to take subsequent action.

12. Assignment

Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by Licensee, in whole or in part, whether voluntary or by operation of law, including by way of sale of assets, merger or consolidation, without the prior written consent of Metrixware. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.

13. Applicable Law and Jurisdiction

This agreement will be governed by and interpreted in accordance with the laws of France, and any dispute arising out of, or in connection with, this Agreement that is not amicably resolved between the parties will be submitted to the District Court of Nanterre. In each case this Agreement shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods.

14. Severability

If any term, condition, or provision in this Agreement or Agreement is found to be invalid, unlawful or unenforceable to any extent, the parties will endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.

15. Independent Parties

The parties will at all times be independent parties and will present themselves to all other parties as such. Regardless of the naming conventions used in this Agreement and the agreements related to this Agreement (i.e. “Licensee” and the like), unless otherwise expressly stated in the Agreement, nothing in this Agreement will be construed to make either party, and each party agrees that it is not an agent, employee, franchisee, joint venture or legal representative of the other party.

Each party hereto is an independent contractor. Except as otherwise provided in this Agreement, neither party will either have or represent itself to have any authority to bind the other party or act on its behalf.

16. Export

Licensee hereby acknowledges that the Software supplied by Metrixware under the Agreement is subject to export or import controls under the laws and regulations of France. Licensee shall comply with such laws and regulations, and agrees not to knowingly export, re-export, import or re-import or transfer Software without first obtaining all required France Government authorizations or licenses. Metrixware and Licensee each agree to provide the other such information and assistance as may be reasonably required by the other in connection with securing such authorizations or licenses, and to take timely action to obtain all required support documents.

17. Equitable Relief

Licensee acknowledges that a breach by Licensee of Sections 2, 3 or 4 will cause Metrixware irreparable damage, for which the award of damages would not be adequate compensation and that Metrixware is therefore entitled to obtain prompt injunctive relief to enjoin the Licensee from any and all acts in violation of those provisions without the necessity of posting a bond or other security. Such injunctive relief remedy shall be cumulative and not exclusive and Metrixware is entitled to seek any other relief available at law or in equity.

18. High Risk Activities

The Software is not fault-tolerant and is not designed, manufactured or intended for use or resale as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Software could lead directly to death, personal injury, or severe physical or environmental damage (“High Risk Activities”). Accordingly, Metrixware and its suppliers specifically disclaim any express or implied warranty of fitness for High Risk Activities.

19. Entire Agreement

This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous oral or written communications between the parties relating in any way to the subject matter hereof.

This Agreement is intended by the parties to be a complete and wholly integrated expression of their understanding and agreement. No terms or conditions of any purchase order, acknowledgement or other business form that Licensee may use in connection with the acquisition or licensing of the Software and related services will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of Metrixware to object to such terms, provisions or conditions. This Agreement may only be modified by a written document executed by the parties hereto. There are no conditions, understandings, agreements, representations, or warranties expressed or implied, that are not specified herein.

Should Licensee have any questions concerning this Agreement, please contact Metrixware at license@metrixware.com.