END-USER LICENSE AGREEMENT FOR CYBELE SOFTWARE PRODUCTS

Last update: March 2021

IMPORTANT: THIS SOFTWARE END-USER LICENSE AGREEMENT ( “AGREEMENT”, “EULA”) IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR A SINGLE ENTITY, “YOU”) AND CYBELE SOFTWARE, INC. (“LICENSOR”), THE OWNER OF THE ACCOMPANYING COMPUTER PROGRAMS, DATA COMPILATION(S) AND DOCUMENTATION REFERRED HEREIN AS THE SOFTWARE (“SOFTWARE”, “THE SOFTWARE”).

READ THIS AGREEMENT CAREFULLY BEFORE USING THE SOFTWARE. IT PROVIDES A LICENSE TO USE THE SOFTWARE AND CONTAINS WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. BY INSTALLING THE SOFTWARE OR USING ANY EQUIPMENT THAT CONTAINS THIS SOFTWARE, YOU AGREE WITH THE TERMS OF THIS EULA AND YOU ARE CONSENTING TO BE BOUND BY THIS END USER LICENSE AGREEMENT.

YOU AGREE THAT YOUR USE OF THE SOFTWARE ACKNOWLEDGES THAT YOU HAVE READ THIS LICENSE, UNDERSTAND IT, AND YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT USE THE SOFTWARE AND UNINSTALL THE SOFTWARE FROM YOUR COMPUTER.

1. License Grant:

a) Trial Use. You are authorized to use the Software on a royalty-free basis for evaluation purposes during the initial evaluation term of thirty (30) days, unless prior to the expiration of the trial use period this license is terminated by written notice by You for convenience or terminated by either party for material breach. Upon expiration of the limited evaluation term, the Software may automatically disable itself. Your use of the Software for any purpose after the expiration of the initial evaluation term is not authorized without Licensor’s prior written agreement.

b) Optional Registration. You have the option to register for full use of the Software at any time by following the instructions in the accompanying documentation, including the payment of the required License Fee. Registration will authorize You to use an unlocking key which will convert the Software to full use. If You exercise Your option to register the Software and to continue this license beyond the initial evaluation term, the term of this EULA shall be extended according to Purchase Order unless terminated by written notice by You for convenience or terminated by either party for material breach. Immediately upon termination of this Agreement for any reason, You shall return to the Licensor or destroy all copies of the Software. You may purchase additional licenses for the Software from time to time. This Agreement shall take precedence over any purchase order for additional licenses, and any conflicting, inconsistent, or additional terms in such purchase orders shall be null and void.

c) License Grant. Licensor grants You this personal, limited, non-exclusive, non-transferable, non-assignable right to use the Software for your usage, provided you adhere to all the terms and conditions of this Agreement. The foregoing is an expressly limited use license and not an assignment, sale, or other transfer of the Licensed Software or any Intellectual Property Rights of Licensor. You may make copies of the Software in machine-readable form solely for backup purposes. You must reproduce on any such copy all copyright notices and any other proprietary legends on the original copy of the Software. You may export the visualization output of the Software in machine-readable video format solely for personal display and use.

d) License Types. You are granted the mentioned rights to install and use the Software provided that You acquire and dedicate a licensed copy of the Software for each computer and/or user according to the Purchase Order and/or the product scheme. A Registered License for the Software may not be shared or used concurrently on different network servers without Licensor’s prior written agreement.

I. Seat License. A Seat License designates a License to install and use the Software in any single workstation. A Seat License may not be shared or used concurrently on different computers.

II. Concurrent User License. A Concurrent User License designates a single individual accessing the Software at a given time. The number of Concurrent Users licensed refers to the maximum number of individuals that may access the Software simultaneously.

III. Developer License. A Developer License designates a License to develop applications on a single workstation using the Software as a programming tool.

IV. Runtime per Seat License. A Runtime per Seat License grants the right to execute applications developed using the Software in a single workstation.

V. Runtime per Concurrent Connection License. A Runtime per Concurrent Connection License grants the right to establish a remote connection from the Software or any application created using the Software to any third party host, product or service.

VI. Server License. A Server License designates a License to install and use the Software or an application created using the Software on any network server.

VIII. VDI License. A VDI License designates a License to install and use the Software or an application created using the Software on any virtual desktop infrastructure (including 3rd party providers, like VMWare or Citrix)

IX. Subscription License. License designates a License valid for a year or other fixed-term as may be agreed between Licensor and Licensee and is identified as a Subscription License in a quotation from Licensor. A Subscription License includes Software Maintenance during the term of the Subscription License.

X. Single Application Publishing License. License designates a License valid to be used only to publish a single application. Unless otherwise specified, a Single application publishing license restricts users from using the complete product suite despite the absence of technical restrictions.

e) Maintenance Service. You may pay a Maintenance Service fee for a defined period of time. Under the rights acquired during the Maintenance Service period, you will receive the following benefits: a) technical support by email, b) our commitment to timely fix any bug and problem you may report using the “Software”, c) updates and upgrades of “Software” without any charge, as soon as they are publicly released.

2. License Restrictions.

In the event that You fail to comply with this EULA and the restrictions hereunder, the license is terminated and You agree to cease using the Software and uninstall the Software from your computer. Other than as set forth in Section 1,

a) You may not – alter, merge, modify, adapt, port, or translate the Software, or decompile, reverse engineer, disassemble, decipher, decrypt, create derivative works based upon the
Software or otherwise attempt to reduce the Software to a human-perceivable form without written approval from Licensor.

b) You may not ship, transfer, or export the Software into any country prohibited by the United States Export Administration Act and the regulations thereunder or use in any manner prohibited by any government agency or any export laws, restrictions, or regulations.

c) You may not rent, lease, lend, sublicense, or redistribute the Software or its output in any form or transfer any rights in this EULA or the Software to third parties without Licensor’s written approval.

d) You may not remove, alter, modify, deface, overprint or otherwise obscure Licensor patent, trademark, service mark, copyright notices, EULA, or any Licensor documentation bundled with the Software.

e) You may not, without Licensor’s prior written agreement (i) charge for any service that uses the Software or its visual output, (ii) charge for copies of the Software or its visual output, or (iii) charge for support services associated with the Software or its visual output, or (vi) install the Software under virtualized environments.

f) Any key provided by the Licensor is intended to be used for its natural purpose, clearly defined by the Quote, Invoice, or any other written agreement provided by Licensor. Any Registered License misused or manipulated to allow more Seat deployments or Concurrent Connections than those granted by the Licensor will be considered corrupted and disabled upon acknowledgment. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE ABUSE BY YOU OF ANY REGISTERED LICENSE MIGHT BE LIABLE FOR DAMAGES FOR LOSS OF BUSINESS PROFITS OR OTHER PECUNIARY LOSS SUFFERED BY THE LICENSOR DUE TO SUCH ABUSE.

3. Ownership.

The foregoing license gives You a limited license to use the Software. Licensor and/or its affiliates or assignees own and retain the all right title, and interest, including all copyright and intellectual property rights, in and to the Software, any related documentation (including design, systems, and user), and any visual output or video export of the Software and all copies thereof. All rights not specifically granted in this EULA, including Federal and International Copyrights, are reserved by Licensor.

4. Warranty Disclaimer.

The Software is being delivered to You “AS IS” and Licensor makes no warranty as to its use or performance. LICENSOR DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THERE IS NO WARRANTY OF NON-INFRINGEMENT AND TITLE. THE LICENSOR DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION.

5. Limitation of Liability.

LICENSOR SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SOFTWARE AND BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF LICENSOR OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO THE WARRANTIES AND DISCLAIMERS ABOVE AND ALL OTHER ASPECTS OF THIS EULA.

6. Indemnification.

You agree to indemnify and hold Licensor, parents, subsidiaries, affiliates, officers and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your use of the Software, or the infringement by You, of any intellectual property or other rights of any person or entity. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE USE OF THE SOFTWARE IS AT YOUR SOLE RISK. THE SOFTWARE AND DOCUMENTATION ARE PROVIDED AS IS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CYBELE SOFTWARE, INC., ITS SUPPLIERS AND DISTRIBUTORS FURTHER DISCLAIM ALL WARRANTIES; INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON INFRINGEMENT. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE AND DOCUMENTATION REMAINS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CYBELE SOFTWARE, INC., ITS SUPPLIERS, OR DISTRIBUTORS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF CYBELE SOFTWARE, INC., ITS SUPPLIERS OR DISTRIBUTORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

7. Term and Termination.

This Agreement is effective until terminated. Either Licensor or You may terminate this Agreement at any time. Without limiting the foregoing, Licensor shall have the right to immediately terminate this Agreement at any time in the event of any breach by You of this Agreement and in the event that You knowingly breach this Agreement or that it becomes known to You that You have breached this Agreement, then You will immediately notify the Licensor of such breach and this Agreement will immediately terminate. In the event of such termination, You must uninstall the Software and destroy all copies of the Software and any accompanying documentation, any visual output or video export files, and all other associated materials that You have received or made pursuant to this Agreement.

8. General.

This EULA will be governed by the laws of the United States and the State of Delaware, excluding the application of its conflicts of law rules. You consent to the personal and exclusive jurisdiction and venue of the state and federal courts located in Delaware, United States. If one or more provisions contained in this Agreement are held by any court or tribunal to be invalid, illegal, or otherwise unenforceable, each and every other provision shall remain in full force and effect. The failure or delay of a Licensor to exercise any of its rights under this EULA or upon any breach of this EULA shall not be deemed a waiver of those rights or of the breach.

9. Licensor’s Contact Information.

If you have any questions about this EULA, please write to: [email protected] or send a letter to 3422 Old Capitol Trail, Suite 1125, Wilmington, Delaware 19808.