DURANGO COMMERCIAL SOFTWARE LICENSE AGREEMENT
This Agreement is between Diffraction International, Ltd., a corporation of
the State of Minnesota having an office at 5810 Baker Road, Suite 225, Minnetonka,
MN 55345-5982 hereinafter called "Diffraction International" and the individual or single legal
entity in receipt of a Hardware Key (Exhibit B) and submitting a Durango License Registration Form
Exhibit C) to obtain a License Authorization Code, hereinafter called "Licensee".
- The term "Program"
as used herein shall refer to the software or computer program known as
the DURANGO program developed by Diffraction International and as described
in Exhibit A attached. Diffraction International grants to Licensee a
non-assignable, non-transferrable license to use the Program by individuals,
under the direction of a single Technical Program User designated by Licensee,
and listed in Exhibit C attached, and who shall be the sole technical
contact between Licensee and Diffraction International.
No title or ownership of the Program is transferred to the Licensee. The Licensee will not sell the
rights to the Program, but shall be free to license Program to unlimited end users under the terms
and conditions set forth herein. All copies of the Program provided under the license shall carry a
Copyright notice as designated on the original Program, or as designated by Diffraction International,
and shall include all of the terms of the
Electronic End User License Agreement.
Use of the Program's data acquisition and import features is protected using a hardware
device called a "Hardware Key" and a 16-character "License Authorization Code".
The Hardware Key permits only one copy of the Program to acquire data at a time. Attempting to acquire
data on more than one computer at a time or attempting to defeat the intention of the Hardware Key is
a violation of Diffraction International’s Copyright. The Hardware Key must be physically moved
from one computer to another, so that only one copy of the program can acquire data at one time. The
Hardware Key supplied with the Program is valued at the full license fee charged to the Licensee, so
if the Hardware Key is lost or stolen, it will not be replaced without payment of the full license fee.
The effective date of this Agreement shall be the date on which a completed License Registration Form
is received and accepted by Diffraction International. Unless sooner terminated, as otherwise provided
for in this Agreement, the term of this Agreement shall be from the effective date until terminated by
either party for any reason, by written notice given at least 90 days prior to termination. Upon
termination the Hardware Key shall be returned to Diffraction International. Licensee agrees it will
not reverse engineer, or in any way attempt to duplicate or defeat the Hardware Key, and will use only
Hardware Keys provided under, and used in compliance with the terms of this Agreement.
Licensee will make payment to Diffraction International according to Diffraction
International's current published price list or according to other written price quotation
provided by Diffraction International. A License Authorization Code will be provided to the Licensee
upon receipt of a completed Durango License Registration Form and check, bank draft,
or wire transfer to the bank account of Diffraction International or upon receipt
and acceptance of Licensee’s purchase order with current credit approval. All
payments must be in U.S. dollars.
- Diffraction International may change the amount of payments for additional Hardware Keys from time
- Licensee acknowledges and agrees that the Program constitutes valuable property and contains trade
secrets of Diffraction International. Licensee therefore agrees that Diffraction International
can provide restrictions on use and sale of the Hardware Key, and the Licensee further agrees that
it will not reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code
of the Program. The acquiring of data by the Program is agreed to be through use of the supplied
Hardware Key only.
WARRANTY AND SOFTWARE SUPPORT
Software Support is limited to users with a current Durango Technical Support and Upgrade Agreement.
No support is provided for obsolete versions of the Program.
Effort is made to find and fix "bugs" before a new version of the
Program is released. Diffraction International reserves the right to provide
periodic bug fix releases, which may be downloaded from Diffraction International’s
website. If a bug is discovered, Diffraction International expects that Licensee
will report the existence of a bug with a sufficient amount of information so
that Diffraction International can provide an analysis of the problem. If the
bug causes a significant degradation of Program performance within the period
of an active Licensee’s
and Upgrade Agreement, the bug fix will be provided free of charge. Fixes
will not be provided if the problem is traced to incompatible, non-standard,
or insufficient hardware, or use of outdated versions of an operating system
or hardware drivers.
- Diffraction International
will replace or repair all hardware products, at its discretion, in the
event that the manufacturer does not honor its warranty, and the hardware
was delivered by Diffraction International less than 30 days from the
time the defect was discovered.
For a period of two years following hardware delivery by Diffraction International, and if: (a) the
Program Technical Support and Upgrade
Agreement has remained current, (b) the computer system has properly been running a current
version of the Windows operating system, (c) the frame grabber card, DAC card and Hardware Key pass
their functional tests using the respective manufacturer’s installed software, and (d) any
additional hardware added by the user has been removed, and yet the Program repeatedly crashes or
fails to run properly, the problem will then be attributed to the Program and Diffraction International
agrees to resolve the problem.
- THE FOREGOING WARRANTIES
IN THE PROVISIONS OF PARAGRAPHS 9, 10 AND 11 ARE IN LIEU OF ALL OTHER
WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN
NO EVENT SHALL DIFFRACTION INTERNATIONAL BE LIABLE TO LICENSEE, OR THOSE
LICENSED BY LICENSEE, WITH RESPECT TO ANY CONSEQUENTIAL LOSS OR DAMAGE
CAUSED BY OR RESULTING FROM THE PROGRAM OR ANY OTHER ACTIVITY UNDER THIS
AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY INTERRUPTION OF SERVICE, INABILITY
TO USE EQUIPMENT, LOST DATA, LOSS OF BUSINESS, OR ANTICIPATORY PROFITS,
SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, WHETHER SUCH DAMAGES
ARE BASED UPON A BREACH OF IMPLIED WARRANTIES, BREACH OF CONTRACT, NEGLIGENCE,
STRICT TORT, OR ANY OTHER LEGAL THEORY.
- Program upgrades are
available only as part of an Annual Technical Support and Upgrade Agreement,
and only when a single Technical Program User has been appointed by Licensee.
The Annual Support and Upgrade Agreement is mandatory for the first year
from the effective date of this Agreement, and optional thereafter. Should
the Annual Support and Upgrade Agreement be allowed to lapse, renewal
by Licensee will require full payment from the date of expiration. Diffraction
International reserves the right to alter terms and/or pricing of the
Support and Upgrade Agreement in subsequent years.
- Encrypted within each License Code is a Machine ID, a Hardware Key serial number, a version expiration
date and a code expiration date. A License Code will not function with a different computer, with a
different hardware key, for Durango versions released after the version expiration date, or at any time
after the code expiration date. Diffraction International will promptly issue additional license codes
for use on multiple computers, or to extend the code expiration date, provided Licensee is in
compliance with the terms of this Agreement. Diffraction International will issue a new license code
for version update only if Licensee maintains a current Support and Upgrade Agreement.
- This Agreement shall be interpreted under the laws of the State of Minnesota.
- Any notices required or permitted to be given under this Agreement must be in writing and delivered
to the appropriate party at the address set forth above or at such address as a party may designate
by written notice to the other party.
- The Licensee designates the Technical Program User listed in Exhibit C to receive all updates
and serve as the Licensee’s authorized representative on matters that
concern installation, use, and update of the Program.
- This Agreement embodies the entire understanding between the parties and cannot be modified or
changed except by a writing signed by both parties.
- A waiver of a breach of any term of this Agreement shall not be deemed a waiver of future breaches,
and if any of the provisions of this Agreement are declared void, such declaration shall have no effect
on the remaining provisions.
- Licensee agrees that the Program will not be shipped, transferred or exported into any country or used
in any manner prohibited by the United States Export Administration Act or any other export laws,
restrictions or regulations.
- Exhibits A, B, C and Technical Support and Upgrade Agreement
attached hereto are integrated into and made a part of this Agreement.
Program — The Program consists of the Durango interferometry data acquisition and
analysis program, including online documentation.
Hardware Key — Restricting use of Durango data acquisition and import functions to one
simultaneous user having a valid License Authorization Code.
Registration Form — This electronic form designates a Technical Program
User to receive all updates to the Program and to represent the Licensee in all
technical communications concerning the installation, use, debugging and updating
of the Program. This form must be emailed or printed and faxed or mailed to Diffraction
International after installation of the Durango Program and Hardware Key and prior to receiving a
License Authorization Code.