This Agreement is between You (“You” or “Your”) and FORMULUS BLACK CORPORATION, a Delaware corporation, with offices located at 26 Journal Square, Jersey City, New Jersey 07306, (“Formulus Black”, “We”, “Us”, or “Our”). If You are entering into this Agreement on behalf of a legal entity, “You” and “Your” will refer to such legal entity. “Software” means any Formulus Black software, library, utility, tool or other computer or program code, including but not limited to Forsa, in object (binary) code form provided, directly or indirectly to You as well as to any copies (whether complete or partial) made by or on Your behalf. The term “Software” also includes any updates, upgrades or other new features, functionality or enhancements to the Software made available directly or indirectly to You. “Documentation” means any read me, help files, or other explanatory materials, whether on-line or otherwise, related to the Software that are made available by Formulus Black. This Agreement applies to all Software and Documentation made available by Formulus Black to You. As set forth herein, You and Formulus Black will be referred to individually as a “Party” and together as the “Parties.”
Subject to the terms and conditions of this Agreement, the terms of Your fulfilled Purchase Order which evidences Your authorization to use the Software and the authorized scope of use of the Software, and payment of the purchase price and/or all fees, Formulus Black hereby grants You a limited, non-assignable, non-exclusive, non-sublicensable and non-transferable right to install and use one copy of the object code version of the Software for each of the Licensed Units (as defined below) set forth in Your Purchase Order during the term of this Agreement and for permitted business operations only (“Permitted Use”). The Purchase Order shall be specified in writing on the order receipt or equivalent document issued by Formulus Black or the party from whom You have lawfully acquired the Software. The Purchase Order shall specify, among other things, the name of the Software product, the number of Licensed Units, the usage level and feature set authorized, and the term of Your Permitted Use. Your Permitted Use is limited to the number of Licensed Units stated in Your Purchase Order. “Licensed Unit” means a physical socket (or socket equivalent) on a motherboard, daughterboard, or similar system board into which a processor chip is physically installed, regardless of the number of processor cores contained on such processor chip. Use of the Software outside the scope of Your Permitted Use is unauthorized and shall constitute a material breach of this Agreement and void the warranty and/or support obligations of which You may otherwise be entitled. Formulus Black and its licensors reserve all rights, including but not limited to ownership and intellectual property rights, not expressly granted to You. Formulus Black’s licensors are the intended third-party beneficiaries of this Agreement and have the express right to rely upon and directly enforce the terms set forth herein. There are no implied licenses or other rights to the Software granted by Formulus Black under this Agreement except as expressly specified herein.
You must not use the Software or Documentation except as permitted by this Agreement. You will not, and will not allow a third party to:
You acknowledge that the Software may contain copyrighted software of third parties which are obtained under a license from such parties (“Third Party Software”). All third party licensors retain all right, title and interest in and to such Third Party Software and all copies thereof, including all copyright and other intellectual property rights. Your use of any Third Party Software shall be subject to, and You shall comply with, the terms and conditions of this Agreement, and the applicable restrictions and other terms and conditions set forth in any Third Party Software documentation or printed materials, including without limitation an end user license agreement.
Software may use or include one or more of the open source software components listed in the Formulus Black open source attribution file, which is available at www.formulusblack.com. Please refer to the open source attribution file for the open source license disclosures and pertinent terms.
You acknowledge and agree that the Software belongs to Formulus Black. You agree that You neither own nor hereby acquire any claim or right of ownership to the Software and Documentation or to any related patents, copyrights, trademarks or other intellectual property, including all modifications and derivative works of any of the foregoing. Formulus Black retains all right, title and interest both tangible and intangible in and to all copies of the Documentation and the Software at all times.
Our support obligations for the Software, if any, are set forth in the Support Terms and Conditions, which may be found at www.formulusblack.com. We do not provide any software maintenance or support services under this Agreement.
This Agreement and Your right to use the Software and Documentation may be terminated by You at any time upon written notice. This Agreement automatically terminates
(a) upon the expiration of the term specified in Your Purchase Order, unless You and Formulus Black agree in writing to extend such term;
(b) if You or any of Your employees or consultants fail to comply with its terms and conditions; or
(c) if You terminate or suspend Your business, become insolvent, admit in writing Your inability to pay Your debts as they mature, make an assignment for the benefit of creditors or become subject to any bankruptcy or insolvency proceeding.
Upon expiration or termination of this Agreement for any reason:
(i) all licenses granted by us shall immediately terminate;
(ii) You shall immediately discontinue use of the applicable Software and Documentation.
The preamble as well as Sections 2, 4, 6, 8, 10, 11, 12, 13, 14, and 15 shall survive any expiration or termination of this Agreement.
Subject to the remainder of this section, We will defend You against any claim that Your authorized use of the Software infringes any copyright or trademark or misappropriates any trade secret of a third party, and will pay such damages or costs as are finally awarded against You attributable to such claim, provided that You
(a) notify Formulus Black promptly in writing of any such action,
(b) give Formulus Black sole control of the defense and/or settlement of such action
(c) give Formulus Black all reasonable information and assistance, and
(d) are not in material breach of this Agreement.
Should the Software become, or in Our opinion be likely to become, the subject of any infringement or misappropriation claim, We may, in Our sole discretion,
(i) procure for You the right to continue using the applicable Software set forth hereunder;
(ii) replace or modify, in whole or in part, the Software to make it non-infringing; or
(iii) substitute an equivalent for the Software.
If We are not able to accomplish any of (i)~(iii) with respect to such Software within thirty (30) days after receipt of written notice requesting such actions, We may, without limiting our other rights or remedies, terminate this Agreement upon written notice to You. We assume no liability hereunder for, and will have no obligation to indemnify You to the extent any claim arises from:
(A) any method or process in which the Software is used by You;
(B) our compliance with Your specifically requested specifications;
(C) Your use of software other than a current unaltered release of the Software or use of any older version of the Software when the use of a newer release of the Software made available to You would have avoided the infringement or misappropriation;
(D) the combination, operation or use of the Software with non-Formulus Black products or services;
(E) use of the Software in a manner or for a purpose for which it was not intended; or
(F) any third-party intellectual property, including any open source software components.
You agree to indemnify Formulus Black and its indemnitees against any damages, losses, and expenses arising from any third-party action based upon a claim that
(1) Your use of the Software infringes the third party’s patent, copyright, or trademark, makes unlawful use of its trademark, or misappropriates any of its trade secrets, or
(2) that arises from Your violation of this Agreement.
You agree to give Formulus Black all reasonable information and assistance regarding such claim. Any settlement of any such claim will require the prior written consent of both parties, which consent shall not be unreasonably withheld, conditioned, or delayed. This section sets forth Formulus Black’s entire liability and obligation and your sole remedy for any claims or actions related to infringement or misappropriation of any intellectual property rights.
Confidential Information” shall mean the Software and Documentation and all other information disclosed or made available, directly or indirectly, to You, except for information which You can demonstrate:
(a) is previously rightfully known to You without restriction on disclosure as evidenced by Your written records;
(b) is or becomes, from no act or failure to act on Your part, generally known in the relevant industry or public domain;
(c) is disclosed to You by a third party as a matter of right and without restriction on disclosure; or
(d) is independently developed by You without access to or use of the Confidential Information.
You shall use Your best efforts to preserve and protect the confidentiality of the Confidential Information at all times. You shall not disclose, disseminate or otherwise publish or communicate Confidential Information to any person, firm, corporation or other third party without the prior written consent of Formulus Black. You shall not use any Confidential Information other than in the course of the activities permitted hereunder. You shall notify Formulus Black in writing immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this Agreement, and will cooperate with Formulus Black in every reasonable way to regain possession of Confidential Information and prevent any further unauthorized use. If You are legally compelled to disclose any of the Confidential Information, then, prior to such disclosure, You will
(i) immediately notify Formulus Black in writing prior to such disclosure to allow Formulus Black an opportunity to contest the disclosure,
(ii) assert the privileged and confidential nature of the Confidential Information, and
(iii) cooperate fully with Formulus Black in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information.
In the event such protection is not obtained, You shall disclose the Confidential Information only to the extent necessary to comply with the applicable legal requirements.
You agree that We may collect or process technical and related information arising from Your use of the Software to facilitate the provisioning of updates, support, invoicing or online services.
Each Party shall comply with all laws applicable to the actions contemplated by this Agreement. You acknowledge that the Software is of United States origin, and is subject to the U.S. Export Administration Regulations, and may be subject to the export control laws of the applicable territory, and that diversion contrary to applicable export control laws is prohibited.
This Agreement is governed by and to be construed in accordance with the substantive laws of the State of New York, U.S.A. Any action arising from this agreement or Your use of the Software shall be brought in the in the federal courts of New York, in the county of New York, and the parties expressly agree that jurisdiction and venue are proper in said courts. This choice of jurisdiction does not prevent either party from seeking injunctive relief in any appropriate jurisdiction with respect to a violation of intellectual property rights, disclosure of Confidential Information, or any other breach of this Agreement.
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. The controlling language of this Agreement is English. If You have received a translation into another language, it has been provided for Your convenience only. Failure to enforce any provision of this agreement will not constitute a waiver. You may not assign this Agreement or any rights or obligations herein. You agree not to copy, sell, give or assign the Software, Documentation, or any part thereof to a third party. We may assign this Agreement to any person or entity at Our sole discretion. You represent and warrant that the performance of any activities contemplated by this Agreement do not and shall not conflict with any other agreement or obligation to which You are a party or by which You are bound. This Agreement shall be binding upon and shall inure to the benefit of the Parties, their successors and permitted assigns. This Agreement constitutes the entire and sole agreement between You and Formulus Black with respect to the Software and Documentation and supersedes all prior and contemporaneous agreements relating to the Software and Documentation, whether oral or written (including any inconsistent terms contained in a purchase order). If You are found to have breached Section 2 or Section 8 of this Agreement, then Formulus Black shall be awarded attorney fees, costs and expenses. This Agreement may be amended only in writing signed by authorized representatives of both Parties and specifically referring to this provision. The words “includes” and “including” and the abbreviation “e.g.” will be deemed to be followed by the words “without limitation”.
If You are using the Software or Documentation outside the U.S.A., then the following shall apply:
(a) You confirm that this Agreement and all related documentation is and will be in the English language;
(b) You are responsible for complying with any local laws in Your jurisdiction which might impact Your right to import, export or use the Software and Documentation, and You represent that You have complied with any regulations or registration procedures required by applicable law to make this license enforceable.
THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” AND FORMULUS BLACK AND ITS LICENSORS MAKE NO OTHER WARRANTIES AS TO THE SOFTWARE OR DOCUMENTATION. FORMULUS BLACK AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, YOU BEAR THE ENTIRE RISK AS TO THE SOFTWARE’S QUALITY AND PERFORMANCE. SHOULD IT PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL SERVICING OR REPAIR.
FORMULUS BLACK WILL NOT BE LIABLE FOR LOSS OF REVENUE OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR DAMAGES FOR LOST PROFITS, REVENUES, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION, EVEN IF FORMULUS BLACK KNEW WERE POSSIBLE OR REASONABLY FORESEEABLE. THE LIMITS OF LIABILITY IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
FORMULUS BLACK END USER LICENSE AGREEMENT