DNA Software End-User License Agreement for DNA Software Application Portal
BY CLICKING ON THE “I AGREE” BUTTON, YOU AGREE TO THE FOLLOWING DNA SOFTWARE END-USER LICENSE AGREEMENT (THE “EULA”). IF YOU ARE ENTERING INTO THIS EULA ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY (AN “ENTITY”), YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS EULA, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. THIS EULA IS A LEGAL AGREEMENT BETWEEN DNA SOFTWARE, INC. (“DNAS”) AND YOU FOR THE DNAS SOFTWARE PRODUCT(S) IDENTIFIED ABOVE, WHICH MAY INCLUDE ASSOCIATED SOFTWARE COMPONENTS, MEDIA, PRINTED MATERIALS AND “ONLINE” OR ELECTRONIC DOCUMENTATION (COLLECTIVELY, “SOFTWARE”).
BY CLICKING THE "I AGREE" BUTTON, YOU ACCEPT, AND AGREE TO BE BOUND BY, ALL OF THE TERMS OF THIS EULA.
IF YOU DO NOT HAVE AUTHORITY TO BIND YOUR ENTITY, OR IF YOU DO NOT ACCEPT ALL OF THE TERMS OF THIS EULA, YOU MUST CLICK ON THE “I DISAGREE” BUTTON, IN WHICH CASE YOU ARE PROHIBITED FROM ACCESSING AND USING THE SOTWARE.
YOUR LICENSE ENTITLES YOU TO ONE (1) USER-PER-SEAT LICENSE PURCHASED. THIS IS NOT A CONCURRENT USER LICENSE. EACH SEAT MUST BE REGISTERED TO A SPECIFIC COMPUTER AND INDIVIDUAL (EACH A “REGISTERED USER”). YOU MUST REGISTER THE SOFTWARE WITHIN THIRTY (30) DAYS OF DOWNLOAD, AS DESCRIBED ON THE SITE. REGISTERD USERS ARE TRANSFERRABLE WITHIN YOUR ORGANIZATION WITH NOTIFICATION TO AND APPROVAL FROM DNAS.
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Grant of License. The SOFTWARE is licensed as follows: This SINGLE USER LICENSE grants you a non-exclusive, non-transferable (subject to the terms of Section 2), revocable license to install and use the SOFTWARE on one (1) registered computer for one (1) Registered User, for your internal use and not by, or for the benefit of, any affiliate, subsidiary, parent company or other third party, nor for service bureau services. The SOFTWARE may not be used by any person other than you and/or Registered Users within your organization, and may not be made available for use by any person or entity by any means whatsoever, including via the Internet. You may also make backup copies of the SOFTWARE for backup and archival purposes. THIS IS A TIME LIMITED LICENSE. You do not have the right to use the SOFTWARE after the Expiration Date defined in Section 8. All rights not expressly granted by DNAS to you are retained by DNAS, and you may not use the SOFTWARE and/or any element of the SOFTWARE in any manner or for any purpose not expressly authorized by this EULA.
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Your Rights and Obligations. DNAS grants you a nonexclusive license to load and execute the SOFTWARE for the period specified. You shall not: (a) remove or destroy any proprietary rights marks, legends or notices appearing on or in the Software or the associated user materials ("Documentation"); (b) decompile, reverse engineer, disassemble or otherwise reduce the Software to a human readable form; (c) modify, enhance, adapt, translate, sublicense, rent, lease, loan, sell, resell for profit, transfer, transmit, distribute, or otherwise assign the SOFTWARE; (d) resell use of the SOFTWARE as a service; (e) distribute information content generated by the SOFTWARE for a profit; or (f) create derivative works based upon the SOFTWARE or any part thereof. Upon compliance with DNAS' then-current transfer policies, you may transfer a user registration from an existing Registered User to a new user that agrees in writing to be bound by all terms of this EULA. You shall pay all use or sales taxes, and any other taxes or charges, however characterized, which may be imposed or based upon your use of the SOFTWARE.
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DNAS Proprietary Rights; Injunctive Relief. DNAS owns and shall retain all rights, title and interests, including all copyrights, trade secrets, patent rights, and trademarks in and to the SOFTWARE and Documentation, and all elements thereof. Except for the express licenses granted to you herein, you shall neither have nor acquire any rights, title or interests in or to the SOFTWARE or Documentation, or any elements thereof. If title to portions of the SOFTWARE is retained by a third party, DNAS represents that it has rights sufficient to enter into this EULA. You acknowledge and agree that your unauthorized disclosure or use of the SOFTWARE, or any other breach of your obligations under this Agreement, will cause damage to DNAS that may not be adequately compensated through money damages. As such, you expressly consent to the entry of an order for equitable remedies, including, but not limited to, temporary, preliminary and permanent injunctions to remedy any actual or threatened unauthorized disclosure or use of the SOFTWARE or breach of this Agreement, by you.
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Limited Warranty. You shall install the SOFTWARE according to DNAS' instructions set forth in the Documentation. The SOFTWARE is warranted to materially conform to DNAS’ specifications set forth in its Documentation ("Specifications") for a period of sixty (60) days after your receipt of the SOFTWARE when used in the operating environment identified in the Documentation. This limited warranty applies only to SOFTWARE used in accordance with this EULA and which has not been subject to accident, misuse or misapplication. DNAS does not warrant that the functions contained in the SOFTWARE will meet your requirements, or that the SOFTWARE will be error-free, or that all program defects will be corrected, or that user files or computer programs created by older versions of the SOFTWARE will be fully compatible with newer releases of the SOFTWARE. THIS LIMITED WARRANTY IS IN LIEU OF, AND YOU WAIVE, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. YOU MAY HAVE OTHER RIGHTS UNDER STATE LAWS.
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Exclusive Remedy. If, during the limited warranty period, the SOFTWARE fails to materially conform to the Specifications, you shall provide DNAS with data sufficient to allow DNAS to reproduce the error. DNAS shall, at its sole option, either repair the defective SOFTWARE media, or correct the programming error, or replace the SOFTWARE, or refund the license fee paid by you. The SOFTWARE is accepted sixty (60) days after receipt unless you, within those sixty (60) days, comply with the requirements and procedures of this Section 5. These remedies are exclusive.
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Limitation of Liability for Damages. You assume sole responsibility for the selection of the SOFTWARE, determination as to the appropriateness of the SOFTWARE for your needs, and the application of the results obtained from the SOFTWARE. DNAS shall not be liable for incidental, consequential, special or indirect damages, or for lost profits or business interruption losses in connection with the SOFTWARE under any theory of recovery, including contract, negligence, strict liability or warranty. In no event shall DNAS’ liability for any damages exceed the SOFTWARE license fee paid by you. Any claim related to the SOFTWARE must be initiated within one (1) year of the date you knew, or reasonable should have known, of the existence of such a claim against DNAS.
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Technical Support; Training. You shall be entitled to purchase technical support from DNAS for properly registered SOFTWARE. Such technical support shall be pursuant to DNAS’ then-current rates, terms and conditions. Training shall be subject to a separate agreement between the parties.
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Term and Termination. This EULA will terminate upon the expiration date as specified in your original DNAS-generated quote or invoice (“Expiration Date”). If no such Expiration Date is included in the DNAS-generated quote or invoice, or if no such quote or invoice exists, then the Expiration Date shall be one (1) year after the initial date of installation. This EULA may also be terminated for breach of any term of this EULA, which breach is not remedied within ten (10) days after written notice of such breach. Upon expiration or termination of this EULA for any reason, you shall: (a) immediately discontinue all use of the SOFTWARE and Documentation; (b) return to DNAS any and all SOFTWARE, Documentation, and authorized copies of the SOFTWARE and Documentation; and (c) deinstall and/or remove any and all copies of the SOFTWARE, whether authorized or unauthorized, from any computer or server upon which the SOFTWARE has been installed by or on behalf of you or any Registered User. All provisions of this Agreement relating to ownership, confidentiality and limitations of liability shall survive any termination of this Agreement.
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Indemnification. If the SOFTWARE or Documentation becomes, or in DNAS’ opinion is likely to become, the subject of a third party claim of infringement, DNAS may, at its sole election, procure for you the right to continue using the SOFTWARE or Documentation, or replace or modify the SOFTWARE or Documentation to make it non-infringing, or may refund the cost of the SOFTWARE, which shall presume to depreciate over a period of three (3) years. The foregoing states the entire liability of DNAS with respect to indemnification of you.
You shall indemnify, defend and hold DNAS, its licensors and information providers, and each party’s parents, subsidiaries, affiliates, officers, directors, employees, attorneys and agents, harmless from and against any and all claims, actions proceedings, costs, damages, losses, liabilities, and expenses (including attorney’s fees and costs) arising out of or in connection with your: (a) use of the SOFTWARE, (b) breach of this EULA, and/or (c) violation of applicable law or right of a third party.
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Restricted Rights -- Government Contracts. If the SOFTWARE and Documentation are provided in connection with a government contract, then they are provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the government is subject to restrictions set forth in subsection (c)(1)(ii) of the Rights in Technical Data and Computer Software Clause at 252.227-7013, as amended. Title to all intellectual property remains with DNAS.
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Laws and Regulations of the United States; Export. You shall comply with all provisions of any applicable laws, regulations, rules and orders relating to the licenses herein granted and to your testing, production, transportation, export, or use of the SOFTWARE. In connection with any use of the SOFTWARE outside the United States, you agree that the U.S. Export Administration Act and Executive Orders relating to export regulate your export of the SOFTWARE, among other laws, rules, and regulations. Re-export, diversion, duplication, or resale of the SOFTWARE without prior authorization as required by such laws, rules, and regulations, is prohibited. The license granted herein is conditioned upon your duty to comply with all laws, regulations, and Executive Orders relating to export, including but not limited to the U.S. Export Administration Act, and you shall indemnify and hold harmless DNAS for any claim, investigation, or assertion inconsistent with this duty.
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Prerelease SOFTWARE. If the SOFTWARE, or any of its components, is marked "Prerelease", "Alpha", or "Beta", then the SOFTWARE constitutes pre-release code and may be changed substantially before commercial release. You may not use such SOFTWARE in a live operating environment where it may be relied upon to perform in the same manner as a commercially released software product or with data that has not been sufficiently backed up. You may not disclose the results of testing, the nature or features of the Prerelease SOFTWARE, or any other information about Prerelease SOFTWARE to any other person.
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General Provisions. (a) This EULA shall be governed by the laws of the State of Michigan and the federal laws of the United States; (b) This EULA contains the full understanding of the parties with respect to the subject matter and supersedes all prior understandings and writings relating thereto. If you issue any Purchase Orders in connection with this EULA, those Purchase Orders shall not modify or augment the terms of this EULA. DNAS’ shipment against such Purchase Orders shall not constitute acceptance of any terms printed or written on them. Any modification must be signed by a representative of DNAS; (c) Remedies accorded DNAS are cumulative and in addition to those provided by law or equity; (d) Neither party shall be liable for any delay in fulfilling an obligation when such delay is due to matters beyond that party's control, such as Acts of God, strikes or other labor disputes, vandalism, disruption of facilities, natural disaster, or acts of government; and (e) You shall comply with the United States Export Administration Act, regulations thereunder, Executive Orders and any other laws enacted relating to export.
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Severability. If any provision of these EULA is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be modified to the extent necessary to be valid and enforceable, and all other provisions of these EULA shall remain in full force and effect.
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Waiver. The failure of DNAS to enforce any right or provision in these EULA shall not constitute a waiver of such right or provision unless acknowledged and agreed to by DNAS in writing. No waiver shall be implied from a failure of either party to exercise a right or remedy. In addition, no waiver of a party’s right or remedy will affect the other provisions of these EULA.
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Relationship. The relationship between you and DNAS is that of independent contractor. No joint venture, partnership, employment, or agency relationship exists between you and DNAS as a result of these EULA or your access to the SOFTWARE. Neither party has the authority to create any obligations for the other, or to bind the other to any representation, statement or document.