BACKGROUND
By using A-Cell and other software (“Software”) that developed by True Cell Simulations Inc. (“TCS”), End User agrees with TCS to be bound by the terms and conditions set forth herein. TCS is willing to permit you to use the Software only upon the condition that you accept and comply with all of the terms of this agreement (“Agreement”).
DEMO LICENSE
TCS hereby grants to End User a non-exclusive, non-transferable, individual license to use the Software solely for testing and evaluation purposes, subject to the terms and conditions of this Agreement. End User acknowledges that the function of Free Edition is restricted.
1. LICENSE GRANT
Subject to the terms and conditions of this Agreement, TCS hereby grants to End User a non-exclusive, non-transferable, individual license to use the Software.
(1) End User may install one copy of the Software on one computer for End User’s personal use. End User may not make any copies of the Software or any portion thereof.
(2) End User may download and store the Software for End User’s own use. Any downloaded files that are licensed to End User may not be shared with third parties. End User acknowledges his/her responsibility to obtain all necessary consents and permissions to utilize the Software with third-party materials and to adhere to all applicable intellectual property laws with regards to capturing, storing and copying any copyrighted materials using the Software. End User shall defend, indemnify and hold harmless TCS and its affiliates from and against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs and expenses, including reasonable attorneys’ fees, arising out of End User’s downloading, storage or use of full-text files or other third-party materials in the Software. The rights granted herein are limited and are to be strictly construed.
2. RESTRICTIONS
The following uses and/or activities are not permitted unless otherwise specifically allowed by TCS under the terms of a separate agreement:
(1) Modifying, translating, decompiling, reverse engineering, redistributing or retransmitting in any form or by any means, the Software or any portion thereof;
(2) Creating any derivative products or other works using any portion of the Software;
(3) Using the Software or any portion thereof in any third party product or service;
(4) Using the Software, directly or indirectly, on a time sharing or service bureau basis, or providing services for a fee using the Software; and
(5) Sharing passwords and/or access codes with third parties, or allowing any non-End User to use the Software.
3. TERMINATION
Without prejudice to any other rights, TCS may terminate this Agreement (1) if End User fails to comply with any of the terms and conditions of this Agreement or (2) if End User is accessing the Software under the terms of an agreement between TCS and End User’s organization, and such agreement with End User’s organization is terminated. In the event of any termination, End User shall immediately discontinue any further use of the Software and destroy all copies of the Software and Documentation in its possession or control.
4. PROPRIETARY RIGHTS
End User acknowledges that all intellectual property rights in the Software, including without limitation, all copyrights, trademarks, patents and trade secrets, are owned by TCS or its third party licensor(s). Except as expressly set forth in this Agreement, TCS neither assigns any intellectual property rights, nor grants any licenses or other rights with respect to the Software. End User shall use reasonable care to protect such intellectual property rights of TCS and/or its third party licensor(s), and to prevent the unauthorized use or copying of the Software.
5. NO WARRANTY
THE SOFTWARE AND ALL CONTENT, INFORMATION AND TECHNOLOGY CONTAINED THEREIN ARE BEING PROVIDED TO YOU “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. TCS DOES NOT MAKE ANY WARRANTY THAT THE SOFTWARE IS COMPATIBLE OR OPERABLE WITH THE END USER’S COMPUTER EQUIPMENT OR SOFTWARE, OR THAT THE SOFTWARE WILL PERFORM WITHOUT INTERRUPTION OR FREE OF ERRORS.
No sales person or other representative involved in the licensing of the Software is authorized to make any warranties with respect to the Software. Oral statements do not constitute warranties, shall not be relied upon by End User, and are not a part of this Agreement.
6. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL TCS OR ITS AFFILIATES OR ITS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR REPRESENTATIVES (COLLECTIVELY “TCS PARTIES”) BE LIABLE OR RESPONSIBLE FOR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION OR DATA, OR ANY OTHER INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, EVEN IF TCS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE TCS PARTIES’ TOTAL AGGREGATE LIABILITY TO YOU FOR ALL DAMAGES OF ANY KIND AND TYPE (REGARDLESS OF WHETHER BASED IN CONTRACT OR TORT) SHALL NOT EXCEED THE PURCHASE PRICE OF THE SOFTWARE.
IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN EFFECT.
7. INJUNCTIVE RELIEF
End User agrees that TCS will have the right to obtain an injunction against any unauthorized use of the Software by End User, in addition to any other rights and remedies to which TCS may be entitled.
8. SEVERABILITY
If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then such provision shall be adjusted to the minimum extent necessary for validity or enforceability, and in any event, the remaining provisions will nevertheless remain in full force and effect.
9. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding and agreement between TCS and you with respect to the subject matter of this Agreement and supercedes all prior or contemporaneous oral or written communications with respect thereto. This Agreement may not be modified, except to the extent of a written agreement to do so by an authorized representative of TSC.
10. NO ASSIGNMENT
End User shall not assign, sub-license or delegate any of its rights or obligations under this Agreement to any third party without the prior written consent of TCS. Any assignment, sublicense or delegation in violation of this provision shall be null and void.