By clicking “I Agree”, you warrant and represent that either:
(1) your company (“Licensee”) has duly executed the Pimsoft Inc. SOFTWARE LICENSE AND SERVICES AGREEMENT (“Agreement”) similar to the standard Agreement reproduced below as Exhibit 1 and that you, as an owner, employee, partner, principal, or agent of Licensee, on behalf of Licensee agree to follow the terms thereof, or if no such Agreement has been previously executed that
(2) on behalf of your company (“Licensee”), you, as an owner, employee, partner, principal, or agent, having actual and apparent authority to contractually bind Licensee, hereby accept on this date (the “Effective Date”) all terms and conditions of the Pimsoft Inc. Software License and Services Agreement included herein as Exhibit 1.
In the event that you cannot represent, warrant, and agree to the foregoing, you may not use or otherwise install the Software or any other Pimsoft Inc. Products, as those terms are defined below.
This Agreement is by and between Pimsoft Inc., a Delaware corporation having its registered office at 14701 St. Mary’s Ln., Suite 175, Houston, TX 77079, USA (“Pimsoft Inc.”), and the “Licensee”.
1 Definitions and Interpretations
The following definitions apply throughout this Agreement:
a. “Documentation” means Pimsoft Inc.’s published user manuals relating to the Software.
b. “Fees” means any amounts due from Licensee to Pimsoft Inc. for use of the Software.
c. “Maintenance” means the services provided by Pimsoft Inc. to the Licensee as set forth in Section 5.
d. “Modifications” means any revisions, enhancements, upgrades, bug fixes, patches, error resolutions and all other changes to the Software required to ensure that the Software operates substantially in conformance with the Documentation.
e. “OEM Product” means any third party and/or OEM product that is provided together with the Software or otherwise provided to Licensee as part of a software product package that includes the Software (e.g., a bundle), as further specified on Exhibit B of your company’s Agreement or hereby downloaded, installed or used.
f. “Order” means any purchase order or similar document submitted by Licensee to Pimsoft Inc. to purchase a license to use Software or to purchase Maintenance under this Agreement.
g. “Software” means any Pimsoft Inc. software product that is provided to Licensee or Licensee’s designee under this Agreement or further specified on Exhibit B of your company’s Agreement, including those software products that are designated by Pimsoft Inc. to operate on a network server computer (“Server Software”), on a client computer (“Client Software”), or as an interface with certain hardware monitoring devices, third party software and/or multiple copies of Server Software (“Interface”); and all related Documentation and other written materials provided by Pimsoft Inc. along with the Software (if any), and all Modifications provided to Licensee by Pimsoft Inc. or its designee.
h. “Trial Products” means any Pimsoft Inc. Products set forth in Exhibit B of your company’s Agreement or hereby downloaded, installed or used that are labeled as a “demonstration license,” “trial license,” or similar designation.
i. “Pimsoft Inc. Products” means the Software and bundled OEM Products (if any) licensed under this Agreement.
a. References to a “person” include any individual, firm, company, corporation, government, state or agency of a state or any association, trust or partnership (in each case, whether or not having a separate legal personality).
b. References to Sections, Exhibits and Schedules are, unless otherwise stated, references to the sections of, and exhibits and schedules to, this Agreement and all such Exhibits and Schedules are part of this Agreement.
c. For purposes of this Agreement, “including” (and variations thereof, such as “includes”) shall be deemed to be followed by “without limitation”.
d. The headings in this Agreement are for convenience only will not affect the meaning or interpretation of this Agreement.
2 License Grant
2.1 License Grant
Subject to Licensee’s payment of all Fees when due and subject to the terms and conditions of this Agreement, Pimsoft Inc. hereby grants to Licensee a perpetual (except as otherwise provided in Section 10), non-sublicensable, non-exclusive, non-transferable (except as otherwise expressly set forth in Section 11.4), right and license to use, solely at Licensee’s site set forth in Exhibit B of your company’s Agreement, the Pimsoft Inc. Products (in object code format only) that are the subject of a valid Order which has been accepted by Pimsoft Inc. in accordance with Section 4.1. Notwithstanding the foregoing, to the extent that Exhibit B contains any Trial Products, subject to the terms and conditions of this Agreement, Pimsoft Inc. hereby grants to Licensee a non-sublicensable, non-exclusive, non-transferable (except as otherwise expressly set forth in Section 11.4), right and license to use, solely during the trial period and at Licensee’s site as set forth in Exhibit B of your company’s Agreement, such Trial Products (in object code format only). Subject to Licensee’s payment of the applicable Fees, the terms and conditions of this Agreement, and Pimsoft Inc.’s approval, Licensee may elect to upgrade a Trial Product into a Pimsoft Inc. Product that is fully licensed under this Section 2.1.
2.2 Use of Pimsoft Inc Products
For the purposes of this Agreement “use” of the Pimsoft Inc. Products shall be defined as including only the usage terms as set forth in Section 3 and specified in Exhibit A, as amended from time to time by written agreement of the parties.
3 Restrictions on Use
3.1 Proprietary Rights
Licensee acknowledges that the Pimsoft Inc. Products, including their structure, organization, and source code, are the property of and constitute valuable trade secrets of Pimsoft Inc. and its licensors, and as such are Confidential Information under this Agreement subject to Section 9 below. Licensee acknowledges that as between Licensee and Pimsoft Inc., Pimsoft Inc. and its licensors own all right, title, and interest in and to the Pimsoft Inc. Products.
a. Licensee agrees not to: (a) reverse engineer, decompile or disassemble the Software, separate the Software into its component parts, or in any way attempt to reconstruct or discover any source code or algorithms of the Software by any means whatsoever; (b) remove any product identification, trademark, copyright, confidentiality, proprietary or other notice contained on or within the Software; (c) modify or create any derivative works from the Software or any part thereof, except solely to the extent (if any), and subject to Section 3.1 above, that the Software expressly provides for user-modifiable components which may be modified by Licensee; (d) except as may be otherwise expressly set forth herein, sell, sublicense, lease, rent, loan, assign, convey or otherwise transfer the Software or any component thereof; (e) copy or use the Software for any purpose or in any manner not expressly permitted in this Agreement; (f) disable, modify, or otherwise interfere with any time out, remote shut-down, or similar mechanisms within any Trial Products; or (g) permit or encourage any third party to do any of the foregoing.
b. Licensee may make a reasonable number of copies of Pimsoft Inc. Products for backup or archival purposes only and Licensee shall use reasonable endeavors to maintain accurate and up-to-date records of the number and location of all copies of the Pimsoft Inc. Products.
c. Licensee agrees not to: (a) use any OEM Product separately from the Software licensed under this Agreement, (b) use the OEM Products for any purposes or scope except as expressly allowed by this Agreement, (c) reverse engineer, decompile or disassemble any OEM Product, separate any OEM Product into its component parts, or in any way attempt to reconstruct or discover any source code or algorithms of any OEM Product by any means whatsoever; (d) remove any product identification, trademark, copyright, confidentiality, proprietary or other notice contained on or within the OEM Products; (e) modify or create any derivative works from the OEM Products or any part thereof, except solely to the extent (if any), and subject to Section 3.1 above, that the OEM Products expressly provide for user-modifiable components which may be modified by Licensee; (f) except as may be otherwise expressly set forth herein, sell, sublicense, lease, rent, loan, assign, convey or otherwise transfer the OEM Products or any component thereof; (g) copy or use the OEM Products for any purpose or in any manner not expressly permitted in this Agreement; or (h) permit or encourage any third party to do any of the foregoing.
3.3 Limited Rights
Licensee’s rights to use the Pimsoft Inc. Products will be limited to those expressly granted under this Agreement, and no other rights or licenses, express or implied, are granted by Pimsoft Inc. to Licensee. For avoidance of doubt, Licensee’s rights under this Agreement with respect to OEM Products are granted solely for use with the Software as part of a Software bundle only; in no event shall Licensee use any OEM Product separately from the Software or for any purpose other than as expressly allowed by this Agreement. Any use of the Pimsoft Inc. Products in violation of this Section 3 shall be deemed a material breach of this Agreement.
4 Ordering and Delivery
4.1 Submission and Acceptance
Each Order shall be submitted in writing and shall contain all information reasonably requested by Pimsoft Inc. An Order will not be deemed binding on Pimsoft Inc. until an authorized representative of Pimsoft Inc. expressly accepts such Order in writing, or Pimsoft Inc. ships the ordered Pimsoft Inc. Products.
Terms and conditions contained in any Order that are inconsistent with or in addition to the terms and conditions of this Agreement are hereby expressly rejected by Pimsoft Inc. and will be deemed stricken from the Order and of no force and effect, even if Pimsoft Inc. fulfills the Order.
Pimsoft Inc. reserves the right to or cancel any Order if Licensee (a) fails to make payment as provided herein or otherwise agreed to by Pimsoft Inc. and Licensee, or (b) fails to comply with the terms and conditions of this Agreement. No such cancellation or refusal will be deemed a termination or breach of this Agreement by Pimsoft Inc.
Software may be received by Licensee via electronic delivery. All electronic delivery methods will be governed by this Agreement even where no express reference is made to electronic delivery. Any “click-wrap” or other terms and conditions which are shown to Licensee’s users during the electronic delivery will be superseded by this Agreement. Rights granted in this Agreement are transferred to Licensee upon shipment or electronic transfer of the Pimsoft Inc. Products to Licensee.
Pimsoft Inc. invoices will be due and payable within thirty (30) days of the date of invoice. All Fees are non-cancellable, non-refundable except as expressly stated in this Agreement.
All amounts under this Agreement are stated and must be paid in U.S. currency. All past due amounts under Pimsoft Inc.’s invoices will incur interest accruing daily at the highest rate permitted by law, such interest accrual beginning as of forty (40) days after the applicable due date for such past due amount.
All amounts due pursuant to Pimsoft Inc.’s invoices are net of, and Licensee will be solely responsible for, any shipping charges, withholding, use, sales, value-added, import and any other taxes, fees, tariff or duties in connection with this Agreement of Licensee’s use of the Pimsoft Inc. Products. Licensee shall indemnify Pimsoft Inc. for any such taxes or fees required to be paid by Pimsoft Inc. on Licensee’s behalf. Notwithstanding the foregoing, Pimsoft Inc. will bear and pay taxes on Pimsoft Inc.’s net income.
5.1 Maintenance Terms
Any Maintenance provided by Pimsoft Inc. shall be provided pursuant to Pimsoft Inc.’s standard terms. A copy of Pimsoft Inc.’s Software Maintenance terms will be provided to Licensee on request and is also available at www.pimsoftinc.com. Maintenance shall only be provided to Licensee subject to Licensee’s advance payment of the applicable Maintenance program subscription fee.
Professional services may be purchased by Licensee subject to the parties entering into a separate written agreement with respect to such services.
6.1 Limited Warranty
Pimsoft Inc. represents and warrants that for a period of one (1) year following delivery of the Software to Licensee, the Software will function substantially in accordance with the Documentation, provided that the Software is used in accordance with the requirements and procedures specified in the appropriate Documentation and the terms and conditions of this Agreement. Pimsoft Inc. makes no representations or warranties regarding the OEM Products; any warranties regarding the OEM Products will be made by the supplier thereof directly to Licensee.
6.2 Limited Warranty Remedy
If the Software fails to meet the limited warranty set forth in Section 6.1 above, Licensee’s sole and exclusive remedy and Pimsoft Inc.’s sole and exclusive liability will be for Pimsoft Inc. to replace or repair, at Pimsoft Inc.’s sole option and at no additional charge, any Software failing to meet this limited warranty. The limited warranty set forth in Section 6.1 above shall automatically become null and void if a party other than Pimsoft Inc. modifies the Software in any way.
6.3 Disclaimer of Warranty
To the maximum extent permitted by applicable law, except as otherwise expressly set forth in this Agreement, the Pimsoft Inc. Products are provided “as is”, and the foregoing limited warranty is in lieu of all other warranties, whether oral or written, express, implied, or statutory, including the implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, even if Pimsoft Inc. or any of its affiliates or subsidiaries have been made aware of any such purpose. Pimsoft Inc. does not warrant that the Pimsoft Inc. Products will be uninterrupted, secure, or error free.
7.1 Pimsoft Inc. Indemnity
Subject to Section 7.4 below, Pimsoft Inc. agrees to indemnify and hold Licensee harmless from and against all damages and costs (including reasonable attorneys’ fees) finally awarded against Licensee (or finally settled upon) and arising from any claim, suit, action or proceeding brought against Licensee by a third party alleging that the Software directly infringes any United States patent, copyright, or other intellectual property right or misappropriates any trade secret (recognized as such under the Uniform Trade Secrets Act) of such third party (each, a “Claim”). The parties acknowledge and agree that Pimsoft Inc.’s obligations under this item this Section 7 are conditioned upon Licensee providing Pimsoft Inc. with (a) prompt written notice of the existence of such Claim; (b) sole control over the defense or settlement of such Claim; and (c) all reasonable assistance at Pimsoft Inc.’s request and expense
7.2 Election of Remedies
If any Claim subject to Section 7.1 has occurred or, in Pimsoft Inc.’s opinion is likely to occur, Pimsoft Inc. may, at its sole option and expense, (a) obtain for Licensee the right to continue to use the applicable Software, (b) replace or modify such Software so it becomes non-infringing, without materially adversely affecting such Software’s specified functionality according to the Documentation, or (c) if neither of the foregoing options is commercially reasonable as determined by Pimsoft Inc. in its sole discretion, refund the unamortized portion of the Fees paid by Licensee for such Software, based upon a three (3) year depreciation commencing on the date of delivery of such Software to Licensee, and terminate Licensee’s license to use such Software.
Notwithstanding the foregoing, Pimsoft Inc. will have no liability for and shall not be obligated to indemnify or hold harmless Licensee for any Claims if such Claims are based in whole or in part on: (a) any Licensee or third party intellectual property or software incorporated in or combined with the Software by anyone other than Pimsoft Inc. (or by Licensee at the direction of Pimsoft Inc.) where in the absence of such incorporated or combined item, there would not have been infringement; (b) Software which has been altered or modified by Licensee or by any third party, or by Pimsoft Inc. at the request of Licensee (where the implementation of such alterations or modifications to the Software by Pimsoft Inc. was directed by Licensee or performed in accordance with specifications provided by Licensee), where in the absence of such alteration or modification the Software would not be infringing; (c) use of any version of the Software with respect to which Pimsoft Inc. has made available a non-infringing updated, revised or repaired subsequent version or other applicable Modification; or (d) any use of the Software beyond the scope of this Agreement.
7.4 Licensee Indemnity
Licensee agrees to indemnify and hold Pimsoft Inc. harmless from and against all damages and costs (including reasonable attorneys’ fees) suffered, incurred or finally awarded against Pimsoft Inc. (or finally settled upon) and (a) arising from any claim, suit, action or proceeding brought against Pimsoft Inc. by a third party alleging that the Software directly infringes any United States patent, copyright, or other intellectual property right or misappropriates any trade secret (recognized as such under the Uniform Trade Secrets Act) of such third party, to the extent that such infringement or misappropriation results in whole or in part from any of the exclusions set forth in Section 7.3 above; or (b) arising from or related to any breach of this Agreement by Licensee.
7.5 Sole Remedy
The provisions of this Section 7 set forth Pimsoft Inc.’s sole and exclusive obligations and Licensee’s sole and exclusive remedies with respect to infringement of intellectual property rights.
8 Limitation of Liability
8.1 Waiver of Certain Damages
To the maximum extent permitted by applicable law, in no event shall Pimsoft Inc. or its affiliates or subsidiaries be liable for any indirect damages whatsoever, including damages for loss of business profit, business interruption, loss of business information, or any other pecuniary loss or consequential, special or incidental damages, arising out of the use of or inability to use the Pimsoft Inc. Products, even if Pimsoft Inc. has been advised of or should have been aware of the possibility of such damages.
8.2 Limitation on Liability
Notwithstanding any damages that Licensee may incur for any reason whatsoever (including all damages referenced in section 8.1 above and all direct and general damages), the entire aggregate, cumulative liability of Pimsoft Inc. and its affiliates AND subsidiaries under any provision of this Agreement (including section 7.1), for any and all claims or causes of action under any theory of liability, whether in contract, in tort (including negligence or strict liability), or otherwise, shall be limited to an amount equal to the License fees paid by Licensee under this Agreement during the 12 month period immediately preceding the event giving rise to licensee’s claim. the existence of more than one claim will not increase this limit.
8.3 Basis of the Bargain
The parties expressly agree that the allocation of risk contained in this Section 8 is an essential basis of this Agreement, notwithstanding the failure of the essential purpose of any limited or exclusive remedies set forth in this agreement.
9 Confidential Information
In the course of performing this Agreement, the parties may disclose Confidential Information to each other. “Confidential Information” shall mean any and all non-public technical and non-technical information and other materials provided by either party to the other, which, if provided in written or electronic format, shall be marked as “confidential” or with a similar designation, and, if disclosed orally or visually, shall be identified as confidential at the time of disclosure and summarized in a writing confirming its confidential nature within thirty (30) days of the initial disclosure. Subject to the foregoing, Confidential Information includes, but is not limited to: (i) unpublished patent applications; (ii) trade secrets; and (iii) proprietary information.
9.2 Permitted Use
All Confidential Information shall remain the sole property of the disclosing party, and the receiving party shall have no interest in or rights with respect thereto except as expressly set forth in this Agreement. Each party agrees: (i) not to use any Confidential Information of the other party for any purpose except in the performance of its obligations under this Agreement, or as otherwise expressly permitted hereunder; (ii) to protect such Confidential Information from unauthorized use, access or disclosure in the same manner that it protects its own similar Confidential Information, but in no event with less care than a reasonably prudent business would exercise; and (iii) to promptly notify the other party of any actual or potential unauthorized access to or use of Confidential Information. The receiving party may not disclose any Confidential Information to any person other than those of its employees with a need to know such Confidential Information for the purposes of exercising the receiving party’s rights or performing its obligations under this Agreement and who are subject to confidentiality obligations at least as protective of Confidential Information as the terms of this Agreement.
The foregoing restrictions on disclosure shall not apply with respect to any information which: (a) was or becomes generally known or publicly available through no act or failure to act on the part of the receiving party; (b) was already known by the receiving party without confidentiality obligations at the time of receiving such information as evidenced by the receiving party’s records, or (c) is rightfully furnished to the receiving party without confidentiality obligations by a third party without a breach of such third party’s obligations of confidentiality. In the event that the receiving party is required by law to disclose any Confidential Information, the receiving party shall promptly notify the disclosing party (if legally permissible) to permit the disclosing party to seek a protective order or other available remedy, will provide reasonable assistance at the disclosing party’s expense in connection with any efforts of the disclosing party to seek such a remedy, and in any event, will only disclose that portion of the Confidential Information so required to be disclosed and shall preserve its confidentiality for all other purposes.
In all events Pimsoft Inc. will be free to incorporate into its products any feature or functionality that may be suggested by Licensee without being required to provide any compensation to Licensee.
10 Term and Termination
This Agreement shall remain in effect unless and until terminated as provided herein.
Either party may terminate this Agreement if the other party fails to cure any breach of this Agreement within thirty (30) days after receiving notice of the occurrence of such breach, or immediately in the case of a material breach of Section 3 or Exhibit A. Licensee may terminate its license to the Pimsoft Inc. Products under this Agreement at any time by destroying all copies of all the Pimsoft Inc. Products within its possession or control.
10.3 Effects of Termination
Upon termination of this Agreement for any reason, any amounts owed under this Agreement will be immediately due and payable, all rights and licenses granted under this Agreement will immediately cease to exist, and Licensee must promptly discontinue all use of the Pimsoft Inc. Products. Upon termination Licensee shall erase all copies of the Pimsoft Inc. Products from Licensee’s computers and systems, return to Pimsoft Inc. or destroy all copies of the Pimsoft Inc. Products on tangible media in Licensee’s possession or control, and certify in writing to Pimsoft Inc. that it has fully complied with these requirements. Termination of this Agreement by either party will be a nonexclusive remedy for breach without prejudice to any other right or remedy of such party.
Sections 3.1, 4.3 (with respect to outstanding payments), 4.4, 6.3, and 7 through 11 will survive the termination of this Agreement for any reason in accordance with their terms.
11.1 Independent Contractors
The relationship of Pimsoft Inc. and Licensee established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to: (i) give either party the power to direct and control the day-to-day activities of the other, (ii) constitute the parties as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking, or (iii) allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever.
11.2 Compliance with Laws
Each party will comply with all applicable export and import control laws and regulations in its use of the Software and will not export or re-export the Software without all required United States and foreign government licenses.
Any notice required or permitted hereunder shall be in writing and delivered in person or by means evidenced by a delivery receipt to the address specified below and will be effective upon receipt. Either party may change its contact information upon written notice to the other party.
This Agreement may not be assigned or transferred by Licensee (in whole or in part and whether voluntarily, involuntarily, or by operation of law) without the prior written consent of Pimsoft Inc. and any attempt to do so, whether by operation of law or otherwise, shall be null and void and of no effect. Notwithstanding the foregoing, Licensee may assign this Agreement to an entity that acquires or succeeds to all or substantially all of Licensee’s business and assets (a “Successor”) by providing thirty (30) days prior written notice to Pimsoft Inc., and provided that: (i) Pimsoft Inc. does not reasonably consider such Successor a direct competitor; and (ii) such assignment is in writing and states that such Successor is accepting all obligations of Licensee under this Agreement and agrees to be bound by and discharge each of the Agreement’s terms, conditions, and obligations as if it were the original party hereto. Except as otherwise specified in writing by Pimsoft Inc. in its consent for Licensee to assign this Agreement, Orders submitted by the Successor will be in accordance with Pimsoft Inc.’s then-current list price.
11.5 Governing Law; Arbitration
This Agreement shall be deemed to have been made and performed in, and shall be construed pursuant to the laws of the State of Delaware, excluding application of its conflict of laws principles and the United Nations Convention on Contracts for the International Sale of Goods.
Any dispute arising out of or relating to this Agreement, including its existence, validity or termination, shall be referred to and finally resolved by binding arbitration under the Commercial Rules of the American Arbitration Association (the “AAA”). The place of the arbitration will be Houston, Texas. The arbitration will be conducted in English before one arbitrator selected jointly by the parties (or, if the parties cannot agree within 30 days after the initial demand for arbitration, by the AAA). The award rendered by the arbitrator will be final and binding and judgment thereon may be entered in any court of competent jurisdiction. Nothing in this Section 11.5(b) shall prevent Pimsoft Inc. from applying to a court of competent jurisdiction for equitable or injunctive relief.
11.6 Waivers and Amendments
Any waiver of or amendment to the terms of this Agreement shall be effective only if made in writing and signed by an authorized and duly empowered representative of each of the parties hereto. No failure to exercise, and no delay in exercising any right hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right hereunder preclude further exercise of any right hereunder.
11.7 Entire Agreement
Subject to the terms of the PREAMBLE to this Agreement, which are incorporated herein, this Agreement (including any appurtenant exhibits, schedules and other documents incorporated into it) constitutes the sole Agreement between the parties with respect to the licensing of all Pimsoft Inc. Products by Pimsoft Inc. to Licensee, services and the activities of the parties incidental to that licensing. This Agreement supersedes any prior or contemporaneous written or oral agreements or communications between the parties. It may not be modified except in a writing signed by both parties.
11.8 Inspection Rights
Upon reasonable notice and under the confidentiality terms of Section 9, Pimsoft Inc. shall have the right once per year to reasonably inspect the Licensee’s premises and relevant records to determine compliance with this Agreement. Licensee agrees to keep all relevant records during the term of this Agreement and for three (3) years thereafter. If any such inspection reveals that Licensee is not in material compliance with this Agreement, Licensee shall reimburse Pimsoft Inc. for the costs of such inspection in addition to any other amounts owed to Pimsoft Inc.
In the event that any provision of this Agreement is deemed invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect the remainder of this Agreement and such invalid or unenforceable provision shall be enforced to the maximum extent permissible under applicable law so as to effect the intent of the parties.
Exhibit A. Pimsoft Inc. Products Usage Terms
The following usage terms will apply only to the extent that Licensee orders each type of Software as specified by Pimsoft Inc. in its then current price list or otherwise.
The following definitions apply throughout this Agreement:
“Concurrent Users” mean individuals who are accessing the same copy of Server Software at the same time.
“DataStream Point” means a tag or module that is created and exists in certain Server Software modules that is used to setup, configure or store data-points or data structures.
“Data Connection” means a link between the data generated from one copy of Software and another copy of Software or a third party data source.
“Element” means every occurrence of a logical entity in a flow sheet model of equipment that exists within certain Server Software.
“Individual Licenses” means the number of client computers onto which Licensee may install Client Software. One Individual License may be used on up to two client computers to facilitate home office use or remote access so long as one Individual License is not used by two or more individuals at the same time. Individual Licensed Software cannot be used to export data from the Software and serve such data directly or indirectly to another client or CPU computer.
“Licensee Customers” means customers of Licensee for whom Licensee may generate, store or process Licensee data.
“Nodes” means a single piece of internet protocol (“IP”) addressable hardware, a piece of network equipment or a single instance of software application.
“Users” means the individuals who are authorized to access a copy of Server Software.
Client/Server Products (Currently includes Sigmafine)
Licensee’s use of Client Software cannot exceed the number of Individual Licenses specified in accepted Orders and licensed pursuant to this Agreement. Licensee’s use of Server Software cannot exceed the number of Elements and DataStream Points created in such Server Software (as measured by the Software), Data Connections, Nodes, or Users as applicable and specified in accepted Orders and licensed under this Agreement. Server Software modules and Elements designated by Licensee in an Order for use with one “Sigmafine” Server Software module cannot be moved to or otherwise used with any other “Sigmafine” Server Software module without Pimsoft Inc.’s express written consent. The “Sigmafine” Server Software may not be used to programmatically interoperate with third party applications or Licensee developed applications unless Licensee has purchased the proper add-on Licenses as indicated by Pimsoft Inc. for such “Sigmafine” Server from time to time. Additionally, except as otherwise expressly provided in this Agreement, once Elements, DataStream Points or Nodes have been designated by Licensee in an Order for use with a Sigmafine Server Software module, Licensee cannot return such Elements, DataStream Points or Nodes to Pimsoft Inc. for any credit or refund of any kind. Except for Server Software to Server Software Interfaces, Licensee’s use of Interfaces will not exceed the number of instances specified in accepted Orders and licensed pursuant to this Agreement. Licensee’s use of Server Software to Server Software Interfaces shall not exceed the number of Data Connections specified in accepted Orders and licensed pursuant to this Agreement.
Thin-Client Products (Currently includes PI-WebParts)
In using this type of Software, Licensee will not exceed the number of Concurrent Users specified in accepted Orders and licensed under this Agreement.
Development Systems (Currently includes any Software designated by Pimsoft Inc. or Licensee for development or support purposes)
This type of Software is licensed solely for Licensee’s internal development and support purposes on a single computer. Such Software cannot be used in production or otherwise used to process any data generated from Licensee’s business operations.
To qualify as a Redundant Server, the server may only be used as a back-up system to a designated primary production server without User access or Interface connections. Redundant Servers may not contain any Elements and DataStream Points that are not also contained in the primary production server that the Redundant Server is backing up. A Redundant Server may only be used as a production server with User access and Interface connections during such times that the primary production server is not in operation.
Third Party Software
Software designated as “Third Party Software” on Pimsoft Inc.’s price list is not subject to this Agreement. Pimsoft Inc. acts only as a distributor for Third Party Software and all licensing terms, support and warranty service, if any, will be provided by the third party vendor for this type of software. Except for Pimsoft Inc.’s failure to provide the Third Party Software in accordance with Licensee’s accepted Orders, notwithstanding any provision in this Agreement, in no event will Pimsoft Inc. be liable to Licensee or to any third party for damages of any kind arising from or related to the Third Party Software. For avoidance of doubt, Third Party Software does not include any OEM Products.