END USER LICENSE AGREEMENT
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THE SOFTWARE OFFERED BY MOTIF ANALYTICS, INC. (“MOTIF” OR “COMPANY”). BY DOWNLOADING, INSTALLING AND/OR USING THE SOFTWARE YOU AGREE TO THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (THE “AGREEMENT”), AND YOU (“YOU” OR “CUSTOMER”) AGREE THAT YOU ARE BOUND BY THESE TERMS AND ARE A PARTY TO THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION OR ENTITY, REFERENCES TO “CUSTOMER” AND “YOU” IN THIS AGREEMENT. YOUR USE OF THE SOFTWARE IS EXPRESSLY CONDITIONED ON YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SOFTWARE IN ANY MANNER. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.
2. License. The Software and Documentation are licensed, not sold, to you by Motif. Subject to the terms and conditions of this Agreement, you are hereby granted a, limited, non-exclusive, term-based, non-sublicensable and non-transferable right to run the Software in connection with the Service.
3. License Restrictions. Except with Motif’s prior written consent, you may not: (i) alter, modify or create any derivative works of the Software; (ii) reverse engineer, or otherwise attempt to separate any of the components of the Software; or (iii) distribute, or otherwise transfer rights to the Software or Documentation.
4. Proprietary Rights. The Software and Documentation are licensed and not sold to you. Motif and its licensors own and retain all right, title and interest in the Software and Documentation, any design changes, improvements, enhancements, derivative works, and any related and associated intellectual property rights. You may provide suggestions and input regarding the Software or Documentation, including but not limited to improvements, modifications, and enhancements regarding the same (“Feedback”). You hereby grant to Motif a right to use, modify and distribute the Feedback in connection with Motif’s product and services.
5. Service. You acknowledge that Motif operates a software-as-a-service offering in connection with the Software (the “Service”), and while the use of or a subscription to the Service is not required to operate the Software, the Service may, from time-to-time, collect Usage Data from the Software, and send to the Software periodic updates and improvements. You hereby authorize such data collection, and delivery of updates and improvements. "Usage Data" shall mean data regarding your use of the Software to the extent such data is anonymized and aggregated, and Motif's use of the same does not reveal such data to any third party.
6. Term and Termination. This Agreement and your right to use the Software and Documentation may be terminated by you or by Motif at any time upon written notice. Upon any expiration or termination of this Agreement, the license granted in Section 2 shall terminate immediately, and you shall (i) immediately cease use of all Software and Documentation, and (ii) return to Motif all Software and related Documentation and other materials and information provided by Motif and any copies thereof made by you. The following sections of this Agreement survive any expiration or termination hereof: 1 and 4 - 12.
7. NO WARRANTY. CUSTOMER ACKNOWLEDGES AND AGREES THAT, THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS”, AND THAT MOTIF MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE SOFTWARE OR DOCUMENTATION, OR THEIR CONDITION. MOTIF HEREBY EXPRESSLY EXCLUDES, ANY AND ALL OTHER EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES, WHETHER UNDER COMMON LAW, STATUTE OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY AND ALL WARRANTIES AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. Motif does not represent or warrant that the operation of the Software (or any portion thereof) will be uninterrupted or error free, or that the Software (or any portion thereof) will operate in combination with other hardware, software, systems or data not provided by Motif.
8. LIMITATION OF LIABILITY. IN NO EVENT SHALL MOTIF BE LIABLE IN AN ACTION UNDER TORT, CONTRACT, WARRANTY OR OTHERWISE FOR ANY: SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL MOTIF’S TOTAL LIABILITY FOR DAMAGES, LOSSES OR LIABILITY OF ANY KIND EXCEED, EITHER CUMULATIVELY OR IN THE AGGREGATE, ONE THOUSAND US DOLLARS ($1,000).
9. Injunctive Relief. You acknowledge and agree that your breach or threatened breach of this Agreement shall cause Motif irreparable damage for which recovery of money damages would be inadequate and that Motif therefore may obtain timely injunctive relief to protect its rights under this Agreement in addition to any and all other remedies available at law or in equity.
10. Export Controls. The Software and Documentation and the underlying information and technology may not be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) any country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading or using the Software and/or Documentation, you are agreeing to the foregoing and you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list and you agree to comply with all export laws and other applicable laws.
11. U.S. Government End Users. The Software and Documentation each were developed by private financing and constitute “Commercial Items,” as that term is defined at 48 C.F.R. §2.101. The Software consists of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212. Consistent with 48 C.F.R. §12.212 and 48 C.F.R. §227.7202-1 through 227.7202-4, all U.S. Government End Users acquire only those rights in the Software and the Documentation that are specifically provided by this Agreement. Consistent with 48 C.F.R. §12.211, all U.S. Government End Users acquire only technical data and the rights in that data customarily as specifically provided in this Agreement.
12. Miscellaneous. Except to the extent applicable law, if any, provides otherwise, this Agreement shall be governed by the laws of California, U.S.A., excluding its conflict of law provisions. You expressly agree that jurisdiction for any claim or dispute arising from the use of the Motif Software resides in the federal and state courts situated in the Santa Clara County, California, U.S.A., and you consent to the personal jurisdiction thereof. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. If any part of this Agreement is held invalid or unenforceable, that part shall be construed to reflect the parties' original intent, and the remaining portions remain in full force and effect, or Motif may at its option terminate this Agreement. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof. You may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein. Motif may assign this Agreement to any person or entity at its sole discretion. This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns.