DIGICONTRACTOR CORPORATION
UPHOTOMEASURE SOFTWARE LICENSE AGREEMENT
SINGLE USE LICENSE
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT ("LICENSE") CAREFULLY BEFORE USING THE UPHOTOMEASURE SOFTWARE. BY USING THE UPHOTOMEASURE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT USE THE SOFTWARE.
IMPORTANT NOTE: This software may be used to reproduce materials. It is licensed to you only for reproduction of non-copyrighted materials, materials in which you own the copyright, or materials you are authorized or legally permitted to reproduce. If you are uncertain about your right to copy any material, you should contact your legal advisor.
1. General. The software, documentation and any fonts accompanying this License whether on disk, in read only memory, on any other media or in any other form (collectively the "UPHOTOMEASURE Software") are licensed, not sold, to you by Digicontractor Corporation ("UPHOTOMEASURE") for use only under the terms of this License, and UPHOTOMEASURE reserves all rights not expressly granted to you. The rights granted herein are limited to UPHOTOMEASURE's and its licensors' intellectual property rights in the UPHOTOMEASURE Software and do not include any other patents or intellectual property rights. You own the device or computer on which the UPHOTOMEASURE Software is loaded but UPHOTOMEASURE and/or UPHOTOMEASURE's licensor(s) retain ownership of the UPHOTOMEASURE Software itself. The terms of this License will govern any software upgrades provided by UPHOTOMEASURE that replace and/or supplement the original UPHOTOMEASURE Software product, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
Title and intellectual property rights in and to any content displayed by or accessed through the UPHOTOMEASURE Software belongs to the respective content owner. Such content may be protected by copyright or other intellectual property laws and treaties, and may be subject to terms of use of the third party providing such content. This License does not grant you any rights to use such content.
2. Permitted License Uses and Restrictions
A. This License allows you to install and use one copy of the UPHOTOMEASURE Software on a single device or computer computer at a time. The UPHOTOMEASURE Software may be used to reproduce materials so long as such use is limited to reproduction of non-copyrighted materials, materials in which you own the copyright, or materials you are authorized or legally permitted to reproduce. This License does not allow the UPHOTOMEASURE Software to exist on more than one computer at a time, and you may not make the UPHOTOMEASURE Software available over a network where it could be used by multiple computers at the same time. You may make one copy of the UPHOTOMEASURE Software in machine-readable form for backup purposes only; provided that the backup copy must include all copyright or other proprietary notices contained on the original.
B. Certain components of the UPHOTOMEASURE Software, and third party services included with the UPHOTOMEASURE Software, have been or may be made available by UPHOTOMEASURE on its SAAS xWiki web site (http://www.uphotomeasure.com/your_account/login_to_your_account.php) (collectively the "xWiki Components"). You may modify or replace only these xWiki Components; provided that: (i) the resultant modified UPHOTOMEASURE Service is used, in place of the unmodified UPHOTOMEASURE Software, on a single device or computer; and (ii) you otherwise comply with the terms of this License and any applicable licensing terms governing use of the xWiki Components. UPHOTOMEASURE is not obligated to provide any maintenance, technical or other support for the resultant modified UPHOTOMEASURE xWiki Components.
C. Except as and only to the extent expressly permitted in this License, by applicable licensing terms governing use of the xWiki Components, or by applicable law, you may not copy, decompile, reverse engineer, disassemble, modify, or create derivative works of the UPHOTOMEASURE Software or any part thereof. THE UPHOTOMEASURE SOFTWARE IS NOT INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, LIFE SUPPORT MACHINES OR OTHER EQUIPMENT IN WHICH THE FAILURE OF THE UPHOTOMEASURE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
3. Transfer. You may not rent, lease, lend or sublicense the UPHOTOMEASURE Software. All components of the UPHOTOMEASURE Software are provided as part of a bundle and may not be separated from the bundle and distributed as standalone applications.
Updates: If an UPHOTOMEASURE Software update completely replaces (full install) a previously licensed version of the UPHOTOMEASURE Software, you may not use both versions of the UPHOTOMEASURE Software at the same time nor may you transfer them separately.
NFR (Not for Resale) Copies: Notwithstanding other sections of this License, UPHOTOMEASURE Software labeled or otherwise provided to you on a promotional basis may only be used for demonstration, testing and evaluation purposes and may not be resold or transferred.
Academic Copies: If the UPHOTOMEASURE Software package has an academic label or if you acquired the UPHOTOMEASURE Software at an academic discount, you must be an Eligible Educational End User to use the UPHOTOMEASURE Software. "Eligible Educational End Users" means students, faculty, staff and administration attending and/or working at an educational institutional facility (i.e., college campus, public or private K-12 schools).
4. Consent to Use of Data. You agree that UPHOTOMEASURE and its subsidiaries may collect and use technical and related information, including but not limited to technical information about your computer, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to you (if any) related to the UPHOTOMEASURE Software. UPHOTOMEASURE may use this information, as long as it is in a form that does not personally identify you, to improve our products or to provide services or technologies to you.
5. Termination. This License is effective until terminated. Your rights under this License will terminate automatically without notice from UPHOTOMEASURE if you fail to comply with any term(s) of this License. Upon the termination of this License, you shall cease all use of the UPHOTOMEASURE Software and destroy all copies, full or partial, of the UPHOTOMEASURE Software.
6. Disclaimer of Warranties. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE UPHOTOMEASURE SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE UPHOTOMEASURE SOFTWARE IS PROVIDED "AS IS", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND UPHOTOMEASURE AND UPHOTOMEASURE'S LICENSORS (COLLECTIVELY REFERRED TO AS "UPHOTOMEASURE" FOR THE PURPOSES OF SECTION 6) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE UPHOTOMEASURE SOFTWARE, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. UPHOTOMEASURE DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE UPHOTOMEASURE SOFTWARE, THAT THE FUNCTIONS CONTAINED IN THE UPHOTOMEASURE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE UPHOTOMEASURE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE UPHOTOMEASURE SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY UPHOTOMEASURE OR AN UPHOTOMEASURE AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE UPHOTOMEASURE SOFTWARE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
7. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL UPHOTOMEASURE BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE UPHOTOMEASURE SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF UPHOTOMEASURE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall UPHOTOMEASURE's total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of two hundred and fifty dollars ($250.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
8. Export Control. You may not use or otherwise export or reexport the UPHOTOMEASURE Software except as authorized by United States law and the laws of the jurisdiction in which the UPHOTOMEASURE Software was obtained. In particular, but without limitation, the UPHOTOMEASURE Software may not be exported or reexported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the UPHOTOMEASURE Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
9. Government End Users. The UPHOTOMEASURE Software and related documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202–1 through 227.7202–4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublishedrights reserved under the copyright laws of the United States.
10. Controlling Law and Severability. This License will be governed by and construed in accordance with the laws of the State of California, as applied to agreements entered into and to be performed entirely within California between California residents. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this License shall continue in full force and effect.
11. Complete Agreement; Governing Language. This License constitutes the entire agreement between the parties with respect to the use of the UPHOTOMEASURE Software licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this License will be binding unless in writing and signed by UPHOTOMEASURE. Any translation of this License is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this License shall govern.
12. Third Party Acknowledgments. Portions of the UPHOTOMEASURE Software utilize or include third party software and other copyrighted material. Acknowledgements, licensing terms and disclaimers for such material are contained in the “online” electronic documentation for the UPHOTOMEASURE Software, and your use of such material is governed by their respective terms.
SUL080630
