Diagramics Data Visualization Software - End User License Agreement
This End User License Agreement (the "Agreement") is entered into by and between DIAGRAMICS SOFTWARE CORPORATION,
a British Columbia corporation with its head office at 866 Petersen Road, Bowen Island, Vancouver, BC, Canada ("Diagramics")
and (a) the Entity named on the Invoice, or (b) the Entity that downloaded the Software for evaluation purposes ("Licensee").
Each of the following acts by Licensee shall constitute Licensee’s acceptance of the terms and conditions of this Agreement and Licensee’s agreement to be bound thereby:
(a) any use of the Software;
(b) loading or installing any of the executable files, DLL's or any other data files of the Software into memory or virtual memory of any computer;
(c) clicking to signify acceptance of this Agreement via Diagramics’ online licensing acceptance screen; and/or
(d) clicking to signify acceptance of this Agreement during the Software installation process.
Licensee shall have no rights to any of the Software or Documentation or any use thereof unless Licensee has accepted the terms and conditions of this Agreement and agreed to be bound thereby.
This Agreement begins as of the Licensee’s acceptance of the terms and conditions hereof.
IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSEE MAY NOT USE THE SOFTWARE AND DOCUMENTATION AND LICENSEE IS REQUIRED TO PROMPTLY UNINSTALL AND DESTROY ALL COPIES OF THE SOFTWARE AND DOCUMENTATION AND CONFIRM IN WRITING TO DIAGRAMICS THAT THE SOFTWARE AND DOCUMENTATION HAS BEEN SO DESTROYED AND UPON RECEIPT OF SUCH CONFIRMATION, DIAGRAMICS SHALL PROVIDE LICENSEE WITH A FULL REFUND OF ANY PREPAID FEES.
1. DEFINITIONS: In this Agreement, in addition to terms defined in other sections, the following terms shall have the following meanings:
"Data Visualization" means the transformation of information (such as data, processes, relations or concepts) into a graphical representation or diagram with the goal of providing the Standard User or Power User with a qualitative or quantitative understanding of the information contents and which may include interactive elements.
"Developer" means the named user or users for whom Licensee acquired a Developer License, as set out in the Invoice. Each Developer must be an individual who is authorized by Licensee to use a Developer License for whom such applicable license has been procured and must be an employee or consultant of Licensee or any subsequent employee or consultant of Licensee to whom the Developer License is transferred.
"Developer License" means a license provided to the Developer to use the Software for purposes of creating dashboards, reports, scorecards and slideshows (which includes a license to add metric sets, consolidate data and to otherwise create the infrastructure required to generate a dashboard, report, scorecard or slideshow and create or edit dashboards, reports, scorecards or slideshows). Each Developer requires a separate Developer License. Each Developer License shall be tied to a specific Instance License and cannot be transferred to another Instance License.
"Documentation" means the user documentation accompanying or otherwise made available for use with the Software (including, without limitation, any web based user documentation).
"Diagramics BI Application Database" means the one (1) physical or virtual relational database location chosen by the Licensee where data (pertaining to data connectors, metrics, dashboards, reports, scorecards, access groups, etc.) essential to the operation of the Software is stored, and to which the applicable Diagramics BI web server application points (or, if there is more than one such web server application, then, to which all applicable number of Diagramics BI web server applications point) (the "Diagramics BI Web Server Application(s)"). For clarity, any other configuration of the foregoing requires a separate Instance License. For example, if any additional application database is (or application databases are) added (physically) or created (virtually),
or if any Diagramics BI Web Server Application points (or if the Diagramics BI Web Server Applications point) to more than one location of the application database, each such configuration would require a separate Instance License. Certain features/functionality (such as multi-tenancy) is not permitted unless specifically set out in the Invoice and is at an additional cost.
"Entity" means an individual or a legally recognized business entity.
"Instance License" means a license provided to the Licensee which grants such Licensee the right to install and use one (1) instance of the Diagramics BI Application Database in conjunction with the installation and use of the Software. A production license key and a license key for testing and development are provided with an Instance License. Licensee is permitted to have any number of servers for redundancy, fail over and load-balancing.
For each instance of the Diagramics BI Application Database, a separate Instance License is required.
"Invoice" means the invoice issued by Diagramics to Licensee in connection with this Agreement which sets out: (i) the Software being licensed by Licensee, (ii) the number of Instance Licenses being licensed by Licensee, (iii) the number of Developer Licenses being licensed by Licensee, (iv) the number of Power User Licenses being licensed by Licensee, (v) the number of Standard User Licenses being licensed by Licensee, (vi) the fees payable by Licensee, (vii) the applicable payment terms, and (viii) such other pertinent information as Diagramics may determine. The Invoice shall form part of this Agreement.
"License" means any license defined in this Agreement.
"Power User" means the concurrent, named or elasticity user or users for whom Licensee acquired a Power User License, as set out in the Invoice. Each Power User must be an individual who is authorized by Licensee to use a Power User License for whom such applicable license has been procured. A Power User may include Licensee’s employees, consultants, contractors and agents or any subsequent employee, consultant, contractor or agent of Licensee to whom the Power User License is transferred.
"Power User License" means a license provided to the Power User granting the right to view a dashboard, report, scorecard or slideshow as well as the right to create and/or edit dashboards, reports, scorecards and slideshows using the Software. Under a Power User License, the Power User is not authorized to create or edit data cubes and/or cube perspectives, or otherwise use the Software for any purposes other than that allowed pursuant to the functionality of the Software (in relation to a Power User). Each Power User License shall be tied to a specific Instance License and cannot be transferred to another Instance License.
"Product Support" means maintenance and support provided by Diagramics as described in Section 12.
"Software" means Diagramics' proprietary software "Diagramics BI" as further described in the Invoice. The Software is provided in object code format.
"Standard User" means the concurrent, named or elasticity user or users for whom Licensee acquired a Standard User License, as set out in the applicable Invoice. Each Standard User must be an employee, customer or client of Licensee who is authorized by Licensee to use a Standard User License for whom such applicable license has been procured. At no time may a Standard User further distribute or otherwise make available any dashboard which such Standard User has a right to view pursuant to a Standard User License.
"Standard User License" means a license provided to the Standard User granting the right to view a dashboard, report, scorecard or slideshow, as well as the right to create and/or edit dashboards, reports, scorecards or slideshows using the Software. Under a Standard User License, the Standard User is not authorized to create or edit data connectors, data cubes, cube perspectives, hierarchies and/or metric sets, or otherwise use the Software for any purposes other than that allowed pursuant to the functionality of the Software (in relation to a Standard User). Each Standard User License shall be tied to a specific Instance License and cannot be transferred to another Instance License.
2. LICENSE GRANT: Subject to compliance with the terms and conditions of this Agreement and payment of all applicable fees, in respect of each License purchased by Licensee, Diagramics grants to Licensee and Licensee accepts from Diagramics a non-exclusive, non-transferable license to: (i) install and use the Software in conjunction with that number of Instance Licenses purchased by Licensee, (ii) allow Developer(s) to use the Software in accordance with any Developer License(s) purchased by Licensee, (iii) allow Power User(s) to use the Software in accordance with any Power User License(s) purchased by Licensee, (iv) allow Standard User(s) to use the Software in accordance with any Standard User License(s) purchased by Licensee, and (v) to use the Documentation solely for purposes of supporting Licensee’s use of the Software in accordance with the terms of this Agreement. Any other use of the Software or Documentation by Licensee or any third party is strictly forbidden. All use of the Software by Licensee shall be solely for its own business purposes in accordance with the terms of this Agreement. In order to use the Software, Licensee must be using a database platform, browser, operating system and web server supported by Diagramics. Licensee agrees to all license restrictions and provisions contained in the definitions section of this Agreement as it relates to the licenses granted in this Section. If a consultant, contractor or agent is retained by Licensee to exercise rights as a Developer or Power-User for Licensee (as applicable), Licensee shall ensure that such consultant, contractor or agent is working solely for the benefit of Licensee in such regard and Licensee shall ensure, prior to allowing such party access to the Software, that the consultant, contractor or agent has agreed to confidentiality and use restrictions consistent with the provisions of this Agreement. Licensee shall be responsible for all acts or omissions of Licensee’s consultants, contractors and/or agent (including, without limitation, all breaches of the terms of this Agreement). Any breach by a consultant, contractor and/or agent of the terms of this Agreement shall be deemed to be a breach by Licensee. Licensee may make one copy of the Software and Documentation for back-up purposes only provided that any copyright, trade-mark or other proprietary notice contained in the original copy of the Software and/or Documentation is reproduced on any such copy. All terms and conditions of this Agreement shall also apply to such copies. For clarity, the foregoing grant (including its restrictions) applies to all Licensees who have downloaded the Software for evaluation purposes even though such Licensees have not paid any applicable fees.
3. RESELLERS: If the Software is licensed to Licensee by one of Diagramics’ authorized resellers, value added resellers or other applicable authorized third party representatives (collectively, "Resellers"), Licensee hereby acknowledges and agrees that the terms of this Agreement shall govern Licensee’s use of the Software and Documentation and each parties’ respective rights and obligations and that no statement or promise made by Reseller (which is not contained in this Agreement) shall govern Licensee’s use of the Software or Documentation or either parties’ respective rights and obligations. Licensee acknowledges that Licensee’s license rights, under any of the Licenses set out herein, to Software and Documentation is granted by Diagramics and not by Reseller and that in no event shall Diagramics be responsible for the acts or omissions of the Reseller.
Licensee hereby consents to Diagramics providing to Reseller any information which it may obtain from Licensee in respect of this Agreement, Licensee’s compliance or non-compliance with the terms and conditions of this Agreement and any other information relating to Licensee’s use of the Software and Documentation.
4. LICENSE RESTRICTIONS: In addition to the restrictions included in each License (which are incorporated into this Section 4), Licensee shall not (i) remove any copyright, trade-mark or patent notices contained in or on the Software or Documentation; (ii) rent, lease or lend the Software, use the Software to operate a subscription service, service bureau, Software as a Service (SaaS) offering or use the Software to otherwise provide commercial hosting services with the Software; (iii) use the Software to create, develop, distribute and/or maintain any component libraries for Data Visualization; (iv) reverse engineer, decompile or disassemble the Software nor attempt to gain knowledge of the source code or expose the functionality of the Software in any manner whatsoever, except as otherwise specifically permitted by applicable law notwithstanding such a restriction; (v) separate the Software into components (or use components on a stand-alone basis or in any way which separates such components from the Software as a whole); (vi) sublicense, modify, distribute, or create derivative works based on the Software or Documentation or any part thereof; and (vii) be engaged at any time in the manufacture, use, distribution or transfer of counterfeit, pirated or illegal software.
5. ADDITIONAL PROVISOS FOR BETA VERSIONS: If the Software is identified as prerelease code (a "Beta Version"), the following additional license provisions apply and supersede any provisions of this Agreement which expressly contradict the provisions contained in this Section (a "Beta License"): (a) Licensee acknowledges that a Beta Version is not at the level of performance and compatibility of a final, generally released product offering and may not operate properly, may contain "bugs", and may be substantially modified by Diagramics prior to commercial release; (b) this Beta License expires upon availability of a commercial release of the Software from Diagramics; (c) the Beta Version may only be used for testing and evaluation purposes and may not be redistributed; and (d) Licensee agrees that the Beta Version is provided "as is, where is" without warranty or condition of any kind and Licensee assumes all risks relating to its use.
6. ADDITIONAL PROVISOS FOR EVALUATION VERSIONS: If the Software is licensed for evaluation purposes only, the following additional provisions apply and supersede any provisions of this Agreement which expressly contradict the provisions contained in this Section (an "Evaluation License"): (a) Diagramics shall be entitled to limit any or all functionality of Software licensed for evaluation purposes, (b) the Evaluation License expires forty-five (45) days after its grant or such other period as Diagramics determines, acting in its sole discretion; (c) the Software may only be used for testing and evaluation purposes; (d) Licensee agrees that the Software and any access relating thereto is provided "as is, where is" without warranty or condition of any kind and Licensee assumes all risks relating to its use and access; (e) Licensee is solely responsible for maintaining the confidentiality of any username and password relating to any Evaluation License and/or any online evaluation offering by Diagramics; (f) Licensee is solely responsible for all activities that occur under its evaluation account; (g) Licensee is solely responsible for any data it uploads to any online evaluation offering by Diagramics and Licensee agrees not to upload, transmit or otherwise make available any content that is illegal, unlawful, harmful, obscene, libelous, invasive of another’s privacy or otherwise objectionable; (h) Diagramics does not guarantee the confidentiality of such data, all of which is uploaded at Licensee’s sole risk;
(i) Diagramics does not back-up any such data and Licensee is solely responsible for creating back-ups; (j) at the end of the evaluation period, any and all data which Licensee uploaded may be deleted by Diagramics (without any further notice) and will be non-retrievable; and (k) Diagramics reserves the right, acting in its sole and unfettered discretion, at any time and from time to time to change, modify, discontinue or temporarily or permanently cancel the Evaluation License and/or access to any online evaluation offering by Diagramics. Licensee will no longer have access to the online evaluation offering by Diagramics at the end of the applicable evaluation period and at such time, Licensee shall have no further rights whatsoever to such evaluation Software. In relation to on-premises installations, unless Licensee purchases the applicable Licenses and pays all applicable license fees within the such forty-five (45) day period, Licensee acknowledges and accepts that the Software may become inoperable and that Licensee shall have no further rights whatsoever to the evaluation Software at the end of such period.
7. OWNERSHIP: The Software and Documentation are protected by Canadian copyright laws and international treaty provisions. Diagramics (and/or its third party licensors and suppliers) retain all right, title and interest in and to the Software and Documentation, including any and all derivative works and/or modifications made thereto, and any copies of the Software and Documentation which Licensee may make in accordance with the terms of this Agreement (including, without limitation, all intellectual property rights therein), regardless of the form or media in or on which the original and other copies exist. The Software and Documentation are licensed, not sold, and all rights not expressly granted in this Agreement are reserved by Diagramics (and/or its third party licensors and suppliers). Licensee acknowledges that Licensee’s possession, installation, or use of the Software and Documentation does not transfer to Licensee any title or ownership interest in or to the intellectual property in the Software or Documentation, and that Licensee will not acquire any rights to the Software or Documentation except as expressly set forth in this Agreement. This Agreement does not grant Licensee any rights in any trade-marks, service marks and/or business names of Diagramics and/or its third party licensors and suppliers, all of which remain the exclusive property of Diagramics (and/or its third party licensors and suppliers).
8. PAYMENT: Licensee acknowledges and agrees that Licensee’s license rights under this Agreement are conditional upon receipt by Diagramics of all applicable license fees, Product Support fees and/or any other such fees, as set out in the Invoice. If an Invoice does not contain payment terms, Licensee agrees to pay all invoices provided by Diagramics within thirty (30) days of the date of the applicable Invoice. All applicable taxes, import and export fees, customs fees, duties, tariffs and similar amounts (including, without limitation, any withholding taxes imposed by any government entity) and any other charges or assessments established by any governmental agency, except taxes imposed on Diagramics based on its net income, are extra, are in addition to fees payable under an Invoice and are the responsibility of Licensee. Any invoice not paid when due shall bear interest from the date of invoice at a rate equal to the lesser of eighteen percent (18%) per annum (calculated monthly) or the highest rate allowed under applicable law. Time is of the essence for all payments due under this Agreement. All payments are irrevocable and nonrefundable, except as otherwise specifically indicated herein. If Licensee has licensed the Software through a Reseller and made payment of the applicable fees to such Reseller, Licensee acknowledges and agrees that receipt by Diagramics from the Reseller of such fees is a condition precedent to the grant of any license rights under this Agreement to Licensee by Diagramics.
Failure of Diagramics to receive such payment from Reseller shall be grounds for the immediate termination of this Agreement. Unless expressly stated otherwise, all amounts referred to herein or in an Invoice are in United States of America dollars.
9. CONFIDENTIALITY: Licensee agrees with Diagramics that: (a) the Software and Documentation contains information or material which is proprietary and/or confidential to Diagramics (and/or its third party licensors and suppliers) ("Confidential Information"), which is not generally known other than by Diagramics, and which Licensee may obtain knowledge of through, or as a result of, the relationship established hereunder with Diagramics. Without limiting the generality of the foregoing, Confidential Information also includes, but is not limited to, the following types of information, and other information of a similar nature (whether or not reduced to writing or still in development): designs, concepts, ideas, inventions, specifications, techniques, discoveries, models, data, source code, object code, documentation, diagrams, flow charts, research, development, methodology, processes, procedures, know-how, new product or new technology information, strategies and development plans (including prospective trade names or trademarks); (b) such Confidential Information has been developed and obtained by Diagramics by the investment of significant time, effort and expense, and provides Diagramics with a significant competitive advantage in its business; (c) Licensee agrees that Licensee shall not make use of the Confidential Information for Licensee’s own benefit or for the benefit of any person or Entity other than Diagramics, except for the purposes of exercising Licensee’s express license rights granted under this Agreement; and (d) Licensee agrees to hold in confidence, and not to disclose or reveal to any person or Entity, the Software, Documentation or any other Confidential Information concerning the Software other than to such persons as Diagramics shall have specifically agreed in writing to permit Licensee to so disclose, except where such disclosure is necessary for Licensee to utilize the Software for the furtherance of the express license rights granted under this Agreement.
10. UNSOLICITED IDEAS: NEITHER DIAGRAMICS NOR ANY OF ITS EMPLOYEES OR ITS RESELLERS ARE AUTHORIZED TO ACCEPT OR CONSIDER UNSOLICITED IDEAS, INCLUDING IDEAS FOR NEW ADVERTISING CAMPAIGNS, NEW PROMOTIONS, NEW PRODUCTS OR TECHNOLOGIES, PROCESSES, MATERIALS, MARKETING PLANS, NEW PRODUCT NAMES, ORIGINAL CREATIVE ARTWORK, SAMPLES, DEMOS, OR OTHER WORKS, IN ANY FORM OR ON ANY MEDIA ("UNSOLICITED MATERIALS"). THE SOLE PURPOSE OF THIS POLICY IS TO AVOID POTENTIAL MISUNDERSTANDINGS OR DISPUTES WHEN DIAGRAMICS' PRODUCTS OR MARKETING STRATEGIES MIGHT SEEM SIMILAR TO SUCH MATERIALS SUBMITTED TO DIAGRAMCIS OR ITS RESELLERS. LICENSEE (AND ITS EMPLOYEES) ACKNOWLEDGE AND AGREE WITH THIS POLICY AND AGREE NOT TO SEND ANY UNSOLICITED MATERIALS TO DIAGRAMICS, OR ITS EMPLOYEES OR TO ANY RESELLER. IF, DESPITE THIS REQUEST, LICENSEE STILL SENDS UNSOLICITED MATERIALS TO DIAGRAMICS, ITS EMPLOYEES OR ITS RESELLERS SUCH MATERIALS WILL NOT BE TREATED AS CONFIDENTIAL OR PROPRIETARY AND, IN CONSIDERATION OF ANY LICENSE RIGHTS GRANTED TO LICENSEE, LICENSEE HEREBY GRANTS TO DIAGRAMICS A WORLDWIDE, NON-TERMINABLE, ROYALTY FREE RIGHT AND LICENSE TO USE AND EXPLOIT SUCH UNSOLICITED MATERIALS, IN PERPETUITY.
11. UNSOLICITED "BUG FIXES": If Licensee identifies problems with the usability, operability, or interoperability of the Software, Licensee may deliver or suggest "bug fixes" to Diagramics for Diagramics’ consideration. For clarity, however, Licensee has no obligation to submit any "bug fixes" to Diagramics but, if Licensee does, then, in consideration of any license rights granted to a Licensee, such Licensee hereby grants to Diagramics a perpetual, worldwide, non-terminable, irrevocable, royalty free right and license to use and exploit such bug fixes as it deems appropriate and Diagramics shall have the absolute right to incorporate all such "bug fixes" accepted by Diagramics into Diagramics’ products and services for all purposes, without any payment or other compensation to Licensee.
12. MAINTENANCE POLICY: The terms and conditions of Diagramics’ Product Support are set forth at: http://www.diagramics.com/support/support-center/support-terms (the "Support Terms"), which are incorporated into this Agreement by reference.
Diagramics will provide Licensee with Product Support for a period of one (1) year from the date of purchase of the applicable License, free of additional charge (as further outlined in the Support Terms). Thereafter, Diagramics’ obligation to provide Product Support and Licensee’s obligation to pay the Product Support fee will renew automatically for successive renewal terms of one (1) year each, unless either party gives written notice to the other party of its desire not to renew at least sixty (60) days prior to the start of the then applicable Product Support renewal period.
Licensee shall pay Diagramics’ then current fees for Product Support at least thirty (30) days in advance of the commencement of the then applicable Product Support renewal period. Notwithstanding the above, Diagramics may amend the Support Terms and maintained products, at any time and from time to time, upon thirty (30) days’ notice to Licensee. Any maintenance releases, including bug fixes, and incremental version upgrades to the Software, new releases or other updates, if any, made available by Diagramics pursuant to its Support Terms or any other agreement relating to the Software will be governed by the terms of this Agreement. Software licensed under a freeware, Beta License or Evaluation License is not provided with Product Support and with no right to updates. This Section 12 shall not be applicable to Licensee(s) who are to obtain support and maintenance with respect to the Software directly from Resellers (as further outlined in an applicable Reseller agreement).
13. TERMINATION: This Agreement is effective until terminated in accordance with the terms and conditions contained herein. Diagramics may terminate this Agreement upon issuance of written notice to Licensee due to: (i) an intellectual property infringement claim relating to the Software in the event that Diagramics is unable to remedy the infringement by providing a work-around or by obtaining the required license rights; (ii) in accordance with applicable law, including a court order; (iii) Licensee’s breach of any term of this Agreement (including, without limitation, non-payment, when due, of fees payable by Licensee pursuant to this Agreement); or (iv) Licensee’s default under any other agreement entered into between Diagramics and Licensee. Licensee may terminate this Agreement for convenience at any time by uninstalling, destroying or returning to Diagramics all copies of the Software and Documentation; provided that no such termination shall entitle Licensee to a refund of any license fees or Product Support fees or other amounts paid by Licensee. Upon termination, Licensee shall destroy or return the written materials and all copies of the Software and Documentation and Licensee shall certify in writing to Diagramics that all known copies, including backup copies, have been uninstalled, destroyed or returned to Diagramics. All provisions relating to confidentiality, Diagramics (and its third party licensors and suppliers’) ownership and proprietary rights, limitations of liability, disclaimers of warranties, waivers and governing law shall survive the termination of this Agreement for any reason.
14. LIMITED WARRANTY: The Software and Documentation are provided "as is". If for any reason Licensee is dissatisfied with the Software, Licensee may, within thirty (30) days after the date of license of the Software uninstall and destroy the Software and Documentation and confirm in writing to Diagramics that the Software and Documentation has been so destroyed and upon receipt of such confirmation, Diagramics shall provide Licensee with a full refund of any prepaid License fees. THIS SHALL CONSTITUTE LICENSEE’S SOLE REMEDY AND DIAGRAMICS’ SOLE OBLIGATION IN RESPECT OF ANY SUCH DISSATISFACTION WITH THE SOFTWARE AND/OR DOCUMENTATION.
DIAGRAMICS DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF USE, OF THE SOFTWARE OR DOCUMENTATION IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE IS ASSUMED BY LICENSEE.
DIAGRAMICS DOES NOT WARRANT THAT THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS, THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL SOFTWARE ERRORS WILL BE CORRECTED. DIAGRAMICS IS NOT RESPONSIBLE FOR PROBLEMS CAUSED BY CHANGES IN THE OPERATING CHARACTERISTICS OF COMPUTER HARDWARE OR COMPUTER OPERATING SYSTEMS WHICH ARE MADE AFTER THE RELEASE OF THE SOFTWARE NOR FOR PROBLEMS IN THE INTERACTION OF THE SOFTWARE WITH NON-DIAGRAMICS SOFTWARE (INCLUDING, WITHOUT LIMITATION, ANY MODIFICATIONS, DERIVATIVE WORKS, ADDITIONAL FUNCTIONALITY OR OTHER CHANGES MADE TO THE SOFTWARE BY RESELLERS).
DIAGRAMICS WILL HAVE NO RESPONSIBILITY TO REPLACE OR REFUND THE LICENSE FEE FOR MEDIA DAMAGED BY ACCIDENT, ABUSE OR MISAPPLICATION.
THE ABOVE WARRANTY IS EXCLUSIVE AND IN LIEU OF AND DIAGRAMICS AND ITS LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES OR CONDITIONS, WHETHER EXPRESSED OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY DIAGRAMICS, ITS EMPLOYEES, RESELLERS OR AGENTS SHALL INCREASE THE SCOPE OF THE ABOVE WARRANTIES OR CREATE ANY NEW WARRANTIES.
Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to Licensee. In that event, any implied warranties or conditions are limited in duration to ninety (90) days from the date of delivery of the link for the Software. This warranty gives Licensee specific legal rights. Licensee may have other rights which vary from state to state and province to province.
15. LIMITATION OF LIABILITY: NEITHER DIAGRAMICS NOR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF THE SOFTWARE (INCLUDING, WITHOUT LIMITATION, DIAGRAMICS’ LICENSORS AND SUPPLIERS) SHALL BE LIABLE UNDER ANY LEGAL THEORY, WHETHER IN CONTRACT OR TORT OR PRODUCTS LIABILITY OR OTHERWISE, FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OR LOSSES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DAMAGES OR LOSSES FOR LOSS OF PROFITS, BUSINESS LOSSES, BUSINESS INTERRUPTION, WORK STOPPAGE, LOSS OF PRODUCTION OR EXPECTED SAVINGS, LOSS OR CORRUPTION OF DATA OR INFORMATION, LOSSES RELATING TO THE SOFTWARE FAILING TO PROVIDE ACCURATE DATA OR INFORMATION, COMPUTER FAILURE OR MALFUNCTION, LOSS OF GOODWILL, AND ANY OF THE LIKE) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, OR ANY OTHER CLAIM BY ANY PARTY EVEN IF DIAGRAMICS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN THE EVENT DIAGRAMICS IS LIABLE FOR ANY DAMAGES, DIAGRAMICS' MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT OR PRODUCTS LIABILITY OR OTHERWISE) FOR DAMAGES SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE AMOUNT OF LICENSE FEES PAID BY LICENSEE FOR THE SOFTWARE. IF LICENSEE’S LICENSE WAS OBTAINED FOR FREE, LICENSEE COMPLETELY WAIVES AND DISCLAIMS ALL RIGHT TO DAMAGES AND ALL OTHER CLAIMS WHATSOEVER. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET FORTH IN THIS AGREEMENT SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. LICENSEE ACKNOWLEDGES THAT WITHOUT LICENSEE’S AGREEMENT TO THE LIMITATIONS CONTAINED HEREIN, THE FEES CHARGED BY DIAGRAMICS WOULD BE HIGHER.
16. ACKNOWLEDGEMENT: Licensee acknowledges having read and understood this Agreement, and agrees to be bound by its terms and conditions. Licensee agrees that this Agreement, together with the Invoice and the Support Terms, as well as any consents provided by Licensee at the time of downloading/installation of the Software, is the complete and exclusive statement of agreement between the parties and supersedes all proposals or prior agreements oral or written, and any other communications between the parties relating to the subject matter of this Agreement. Licensee acknowledges and agrees that Licensee has not relied upon any representations or warranties or statements (including, without limitation, any representation or warranties or statements from any Reseller) other than those expressly set forth in this Agreement.
17. AUDIT: During the term of this Agreement and for a period of two (2) years thereafter, Diagramics may, at any time during Licensee’s normal business hours and upon reasonable advance notice of not less than five (5) days, conduct an audit at Licensee’s premises to ascertain whether Licensee’s use of the Software is in compliance with the provisions of this Agreement. Licensee agrees to reasonably assist Diagramics in the conduct of such audit and agrees to grant Diagramics reasonable access to Licensee’s premises and computer equipment for that purpose. In the event that such audit reveals any use of the Software by Licensee other than in material compliance with this Agreement, Licensee shall reimburse Diagramics for all reasonable costs and expenses related to such audit in addition to any additional license fees and maintenance fees owed to Diagramics as a result of such non-compliance. In furtherance to Diagramics’ audit rights, Licensee acknowledges and agrees that the Software has the capabilities of transmitting certain data from Licensee’s servers to Diagramics. The following is the type of data that the Software may transmit back to Diagramics: Server host name, Server fingerprint (one-way hash composed of hardware info such as BIOS serial number and CPU IDs); Server CPU information (type and number); Server CPU count; Server CPU core count; Server operating system; Server virtual machine type; Server time; Server uptime; Diagramics BI License ID; Diagramics BI License File ID; Diagramics BI License Type (Retail, Evaluation, etc.); Diagramics BI Version; Diagramics BI installation path (one-way hashed); Diagramics BI app db connection string (one-way hashed);
Diagramics BI uptime; Diagramics BI # Accounts (Power User, Developer, Standard User); Diagramics BI number currently active sessions; Diagramics BI # projects, data connectors, data cubes, metric sets, reports, scorecards, hierarchies, dashboards. Further details on this "call home" feature may be found in the Documentation. This information shall be used for purposes of Diagramics validating licenses and version numbers so as to determine if applicable updates and notifications are to be provided. Licensee expressly consents to the transmittal of and use of such data, as provided above. This information shall be treated as Confidential Information of Licensee and shall be used and protected in the same manner as contemplated in this Agreement for Confidential Information of Licensee. Licensee represents and warrants that it has obtained all consents required at law from those persons and individuals whose information may be transmitted to Diagramics (for instance, named Standard User) pursuant to the terms of this Agreement and that Diagramics shall be considered a third party beneficiary of, and shall be able to rely on, such consents.
18. U.S. GOVERNMENT RESTRICTED RIGHTS: If the Software is acquired under the terms of a DoD contract: Use, duplication or disclosure by the Government is subject to restrictions set forth in subdivision (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013. If this Software is acquired under the terms of a Civilian agency contract: Use, reproduction or disclosure is subject to subdivisions (a)-(d) of the Commercial Computer Software - Restricted Rights clause at 48 CFR 52.227-19. Unpublished-rights reserved by DIAGRAMICS SOFTWARE CORPORATION, 866 Petersen Road, Bowen Island, Vancouver, BC, Canada, V0N 1G1, the contractor/manufacturer, under the copyright laws of the United States of America.
19. EXPORT CONTROLS: The Software is subject to applicable export and import laws and regulations. Licensee must comply with all domestic and international export and import laws and regulations that apply to the Software and Documentation. Licensee represents and warrants that it is not, and is not related to, an individual, company or other Entity that is identified on any designated person list or other similar list of sanctioned or restricted parties established under Canadian Export Controls and Economic Sanctions Laws or any similar list of sanctioned or restricted parties maintained by any other country ("Listed Party"). Licensee further represents and warrants that the Software and Documentation will not (i) be used by or for the benefit of any Listed Party, (ii) be used for or in any military or weapons-related purposes or activities, or (iii) be used in any facility used for such activities. Any routing, transfer and/or use of the Software and Documentation contrary to Canadian Export Controls and Economic Sanctions Laws or the laws of any country in which they are being used is prohibited.
Upon Diagramics’ request, Licensee shall immediately provide all information pertaining to the routing, shipment, transfer, sale and use of the Software and Documentation. In addition, upon Diagramics’ request, Licensee shall immediately provide, in a form specified by Diagramics, certification pertaining to Licensee’s compliance with Canadian Export Controls and Economic Sanctions Laws and similar laws of other countries. Licensee shall indemnify and hold harmless Diagramics for any fines, penalties, damages, losses, liabilities claims, actions and expenses (including legal fees and reasonable disbursements) of whatsoever kind and nature which at any time may be suffered or incurred by, imposed on or asserted against Diagramics in any way relating to or arising out of (i) Licensee’s failure to comply with Canadian Export Controls and Economic Sanctions Laws, its obligations referred to above, or the laws of any country or (ii) an inaccurate warranty, representation, or certification under the clauses provided above or any incorrect information provided by Licensee. For the purposes of the foregoing, "Canadian Export Controls and Economic Sanctions Laws" include the Export and Import Permits Act, the Special Economic Measures Act, the United Nations Act, the Freezing Assets of Corrupt Foreign Officials Act, the Customs Act, and the Criminal Code, and their regulations, and any other Canadian law controlling the import, export or transfer of technology or restricting dealings involving certain persons or countries.
20. HIGH RISK ACTIVITIES: Licensee acknowledges and agrees not to use the Software in any application or situation where any failure of the Software could lead directly to death, personal injury, or severe physical or environmental damage. Examples include using the Software for controlling the operation of: (i) equipment in any nuclear facilities; (ii) aircraft navigation, communications or flight control systems; (iii) air traffic control systems; (iv) mass transit systems; (v) medical equipment (but only in equipment with an FDA classification of 2 or 3, or an equivalent classification); or (vi) weapons systems. By virtue of the complex nature of the Software and its potential uses, it is possible that latent bugs or inoperable features or incompatibilities or errors may affect the validity of data obtained and calculations performed using the Software.
Diagramics advises that the Software is not fault tolerant and is not designed or intended for use in hazardous environments or mission critical applications requiring fail safe performance, including without limitation, in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, direct life support machines, hazardous materials storage and transmittal systems, waste treatment applications or any other application in which the failure of the Software could lead directly to death, personal injury, or severe physical or property damage or exposure to material financial loss (collectively, "High Risk Activities").
Diagramics expressly disclaims any express or implied warranty or condition of fitness for High Risk Activities. Licensee agrees that use of the Software in High Risk Activities is at Licensee’s own risk and that Licensee has been advised to obtain suitable perils insurance against risk in an amount commensurate with Licensee’s risk of loss. Licensee hereby indemnifies and holds Diagramics and its licensors and suppliers harmless from liability for such use and the results of use. Notwithstanding anything to the contrary herein contained, if after reading this disclaimer and limitation, Licensee does not wish to use the Software, Licensee may, within thirty (30) days after the date of license of the Software, either: (i) uninstall and destroy the Software/or Documentation and confirm in writing to Diagramics that the Software and/or Documentation has been so destroyed and upon receipt of such confirmation,
Diagramics shall provide Licensee with a full refund of any prepaid fees or (ii) promptly return any disk media on which this Software and/or Documentation was provided, together with all packaging and with proof of purchase to the place where Licensee obtained the Software for a full refund of any prepaid fees, less all shipping costs.
21. THIRD PARTY LICENSORS AND SUPPLIERS: Each party agrees that Diagramics’ licensors and suppliers, together with their subsidiaries and affiliates are third party beneficiaries to this Agreement with the right to rely on and enforce its terms to their full extent, notwithstanding that such entities are not parties to this Agreement. The parties further agree not to take any actions that may prevent or otherwise impair any such licensor’s or supplier’s exercise of these rights.
In no event shall Diagramics’ licensors and suppliers, together with their subsidiaries and affiliates have any liability for any damages, whether direct, indirect, incidental or consequential, as a result of the use or installation of the Software.
22. GENERAL: This Agreement enures to the benefit of and is binding upon the parties, and their respective heirs, executors, administrators, legal personal representatives, successors, and duly authorized assigns.
Diagramics may assign this Agreement without Licensee’s consent. Licensee may not assign this Agreement (whether by operation of law or otherwise) in whole or in part without the prior written consent of Diagramics and any attempted assignment without the prior written consent of Diagramics is null and void.
This Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia and of Canada applicable thereto.
This Agreement will not be governed by and the parties expressly disclaim the application of the United Nations Convention on Contracts for the International Sale of Goods and the provisions of any state Uniform Computer Information Transactions Act or similar federal, provincial or state laws or regulations.
Licensee consents to the jurisdiction of the courts of the Province of British Columbia as the exclusive jurisdiction for determination of all disputes and claims arising between the parties to this Agreement.
If any provision of this Agreement is found to be unlawful, void or unenforceable, then that provision shall be severed from this Agreement and shall not affect the validity and enforceability of any of the remaining provisions.
Except for the Invoice, no purchase order or other document that purports to modify or supplement the Agreement will add to or vary the terms of the Agreement, and all proposed variations or additions are deemed material and objected to, even if such purchase order or other document purports to supersede the terms of this Agreement.
Notwithstanding the aforesaid, use of some third party materials included in the Software are subject to other terms and conditions
which can be found at http://www.diagramics.com/support/learning/documentation/release-notes/third-party-legal-notices
This agreement may only be modified by a written document that has been signed by both each of the parties hereto.
The failure by a party to exercise any right hereunder shall not operate as a waiver of such party’s right to exercise such right or any other right in the future. The parties have agreed that this Agreement be drafted in English.
Les parties ont convenu à ce que ce Contrat soit rédigé en anglais.
23. DIAGRAMICS CUSTOMER CONTACT: Licensee may contact DIAGRAMICS by writing to: DIAGRAMICS SOFTWARE CORPORATION, 866 Petersen Road, Bowen Island, Vancouver, BC, Canada, V0N 1G1.
For further information Licensee is referred to www.diagramics.com