YOU MUST READ THE SOFTWARE LICENSE AGREEMENT
ACCOMPANYING THIS SOFTWARE BEFORE USING IT.
CLICK ON THE BUTTON THAT STATES “I AGREE” TO INDICATE THAT YOU HAVE
READ AND UNDERSTOOD, AND THAT YOU AGREE TO THE SOFTWARE LICENSE
AGREEMENT. IF YOU DO NOT AGREE, CLICK
ON THE BUTTON THAT STATES “CANCEL”. BY CLICKING THE “CANCEL” BUTTON, YOU WILL
NOT BE PERMITTED TO INSTALL OR USE THE SOFTWARE.
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1.
Grant of license
This Software License
Agreement (the “Agreement”) is being entered into by and between
Proxim Corporation, with its principal place of business in Sunnyvale,
California (“Proxim”) and the entity (including its agents
and employees) which has accepted and agreed to the terms of this Agreement by
clicking the “I Accept” button (“Licensee”).
1.1
License. Subject
to the limitations set forth in this Paragraph 1 and in Paragraph 2, Proxim
grants Licensee a non-exclusive, non-transferable, personal license,
with no right to sublicense and solely for Licensee’s internal use, to use, in
executable object code form only, the Proxim software and firmware
(i) included on the CD-ROM accompanying this Agreement and (ii) any software or
firmware downloaded from Proxim’s web site by any Proxim
software or equipment, and all associated documentation (collectively, the “Software”) for the purpose of using or
installing Proxim equipment at Licensee’s place(s) of business. Licensee may use the Software only in
connection with equipment manufactured by or for Proxim (“Proxim equipment”) and sold
by Proxim or its authorized distributors or value added resellers.
1.2
Reservation of Rights. All rights not expressly granted to Licensee in Paragraph 1.1 are
reserved to Proxim.
1.3
Upgrades. Licensee
acknowledges that Proxim is under no obligation to create
modifications, updates, upgrades, maintenance releases, revisions, patches,
enhancements, fixes, new developments and releases, improvements or derivative
works related to or based upon the Software (the “Upgrades”). If Proxim creates any Upgrades
during the term of this Agreement, Proxim may include Licensee on
communications or notices regarding such Upgrades, if any, and may make such
Upgrades available to Licensee on terms reasonably similar to those provided to
other similarly situated Proxim licensees.
1.4
Term. The
term of this Agreement begins on the date that the Software is first installed
and used by Licensee (the “Start Date”) and shall continue indefinitely
unless terminated sooner by Proxim.
2.
Intellectual Property Rights and confidentiality
2.1
Ownership. Licensee
acknowledges that Proxim is the owner or licensee of the Software
and all intellectual property rights in, to and under the Software, including
all patent, copyright, trademark, trade secret and mask work rights. Licensee agrees not to directly or
indirectly contest or in any other manner impugn Proxim’s
intellectual property rights relating to the Software, or the enforceability of
this Agreement, nor shall Licensee willingly become a party adverse to Proxim
in litigation in which a third party contests same. Notwithstanding the first sentence of this
Paragraph 2.1, if Licensee is held to, or becomes the owner of any rights to
the Software, Licensee hereby assigns permanently the entirety of such rights
to Proxim and agrees to execute any necessary documents to effect
such assignment.
2.2
No Modification or Copying. Licensee shall not modify, alter,
change, reproduce, reduce, reverse engineer, dissemble, decompile, decode,
distribute or copy the Software, any files, data or other materials derived
therefrom, or derive any algorithms therefrom, and shall use its best efforts
to prevent third parties from doing the same. Notwithstanding the foregoing,
Licensee may create one backup copy of the Software for archival and
maintenance purposes only. Licensee
will return all copies of the Software to Proxim when Licensee
chooses to permanently cease using the Software or when this Agreement is
terminated.
2.3
Intellectual Property Notices. Licensee agrees that Proxim’s
patents, copyrights, trademarks and mask works, the right to register the same
and the goodwill associated therewith, belong exclusively to
Proxim. Licensee agrees not to
remove, modify, obfuscate or alter any patent, copyright or trademark notice or
other proprietary or restrictive notice or legend contained or included in or
on the Software.
2.4
Usage. Licensee
agrees that the Software will be installed and used only to operate Proxim
equipment in a manner consistent with the provisions of this
Agreement and any agreement relating to Licensee’s use of any Proxim
equipment. Licensee will only use the
Software on a single microcomputer installation.
2.5
Confidential Information. The Software and
related technology and any training materials provided to Licensee, its agents
or employees (“Confidential Information”), contain the know-how, trade
secrets and other valuable, confidential and proprietary information of
Proxim. Licensee shall maintain,
safeguard and protect the Confidential Information and shall use its best
efforts to prevent unauthorized access or use by third parties. Licensee shall not duplicate, publicize or
disclose any Confidential Information without Proxim’s prior written
permission. Licensee shall limit use
of, and access to, the Software to its employees who must have use of and
access to the Software for the proper operation and/or maintenance of the
Software by Licensee.
3.
Software SPECIFICATIONS, CONFIGURATION, engineering and
system design
3.1
Proxim may, without notice to Licensee, make
changes to the specifications of the Software.
3.2
Licensee is solely responsible for the engineering,
design, integration and normal preventative and remedial maintenance of
Licensee’s system, including the Software used in Licensee’s system. This Agreement does not entitle Licensee to
any maintenance, training, customization, debugging, error correction or other
technical support for the Software.
3.3
Proxim is not responsible for the
satisfactory operation of the Software in conjunction with any other
manufacturer’s equipment or software, or for any losses which may occur as a
result of any failure of the Software to operate in conjunction with any other
manufacturer’s equipment or software.
4.
Termination
4.1
Proxim may terminate this Agreement and the
accompanying license without incurring any liability to Licensee upon the
occurrence of any of the following:
(a)
Licensee breaches any of the obligations set forth in
this Agreement;
(b)
Licensee makes any unauthorized modifications to the
Software;
(c)
Licensee assigns or transfers its rights under this
Agreement without the written consent of Proxim;
(d)
Licensee ceases, or threatens to cease, to carry on its
business in the ordinary course, including without limitation maintaining the
ability to meet its obligations as they mature, or transfers all or
substantially all of its property;
(e)
Proceedings in bankruptcy, insolvency, receivership or
liquidation are instituted by or against Licensee, a receiver in bankruptcy is
applied for or appointed, Licensee makes an assignment for the benefit of
creditors, or commits an act of bankruptcy or insolvency;
(f)
The Software is seized or confiscated; or
(g)
Proxim believes, in good faith, that the
ability of Licensee to perform its obligations under this Agreement is
impaired, or that any of the events listed above is about to occur.
4.2
In the event Proxim terminates the
Agreement, payment for all outstanding invoices shall become immediately due
and payable despite any other agreements to the contrary and Licensee shall
immediately discontinue all use of the Software and at Proxim’s
request, destroy or return the same promptly and certify that such action was
taken.
5.
limited software MEDIA warranty
5.1
Proxim warrants that for a period of ninety (90) days from the date on which
the Software was shipped to Licensee (the “Shipping
Date”) that the physical materials embodying the Software are free from
defects in materials and workmanship under normal use (the “Software Media
Warranty”).
5.2
Proxim will replace the materials embodying
the Software if there are physical defects in the same, at no charge to
Licensee, provided Licensee returns the item to be replaced, with the
applicable receipt, postage prepaid during the ninety (90) day period following
the Shipping Date.
5.3
Proxim’s entire liability under this
Paragraph 5 and Licensee’s exclusive remedy shall be replacement by
Proxim of the relevant media that fails the Software Media Warranty and is
returned to Proxim with a copy of Licensee’s receipt.
6.
LIMITATIONS AND QUALIFICATIONS OF The limited WARRANTY
6.1
The Software
Media Warranty does not apply to any damage, defect or failure caused by:
(a)
the Software having been modified, adapted, repaired,
or improperly installed, operated, maintained, transported or relocated by any
person other than Proxim personnel or a Proxim authorized
service agent, without Proxim’s prior written consent;
(b)
storage or environmental conditions which do not
conform to the applicable sections of the appropriate Proxim manual;
(c)
failure to conform with the installation, operating and
maintenance Instructions of the appropriate Proxim manual;
(d)
external causes, including external electrical stress
or lightning, or use in conjunction with incompatible equipment, unless such
use was with Proxim’s prior written consent;
(e)
accidental damage, negligence, neglect, mishandling,
abuse or misuse, other than by Proxim personnel or a
Proxim authorized service agent; or
(f)
Force Majeure.
6.2
Any misuse or unauthorized modification of the Software
will void the Software Media Warranty.
7.
LIMITATIONS OF RIGHTS AND disclaimer of other
warranties
7.1
THE SOFTWARE MEDIA WARRANTY CONTAINS LlMITATIONS ON
LICENSEE’S RIGHTS AND REMEDIES AGAINST PROXIM UNDER THE AGREEMENT. LICENSEE ACKNOWLEDGES HAVING READ,
UNDERSTOOD AND AGREED TO THOSE LIMITATIONS.
7.2
Proxim does not warrant that the functions
contained in the Software will meet Licensee’s requirements or that the
Software’s operation will be uninterrupted and free of system and design bugs,
errors or defects. EXCEPT AS PROVIDED
HEREIN, SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF
THIRD PARTY RIGHTS. ALL OTHER
WARRANTIES ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. The warranty and remedies set forth above
are exclusive and in lieu of all others, oral or written, express or implied. No dealer, agent, or employee is authorized
to make any modification, extension, or addition to this warranty.
8.
limitation of liability
PROXIM
SHALL NOT BE LIABLE TO LICENSEE FOR INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR
CONSEQUENTIAL DAMAGES OF ANY KIND SUSTAINED OR INCURRED IN CONNECTION WITH THIS
AGREEMENT AND THE SOFTWARE THAT IS SUBJECT TO THIS AGREEMENT REGARDLESS OF THE
FORM OF ACTION AND WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE, AND EVEN IF
PROXIM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS. IN NO CASE WILL PROXIM BE LIABLE
FOR ANY REPRESENTATION OR WARRANTY MADE TO ANY THIRD PARTY BY LICENSEE OR ANY
AGENT OF LICENSEE. PROXIM’S
TOTAL LIABILITY TO LICENSEE SHALL NOT EXCEED THE PURCHASE PRICE OF THE SINGLE
TSUNAMI® QUICKBRIDGE PURCHASED BY LICENSEE ON WHICH THE SOFTWARE IS
RUN.
9.
indemnities.
9.1
Intellectual
Property Indemnification.
Proxim will defend, indemnify and hold Licensee harmless from liability
resulting from misappropriation of any trade secret or infringement of any
United States copyright or United States patent by the Software if Licensee (i)
notifies Proxim within twenty (20) days of the assertion of any such
claim and (ii) cooperates with Proxim in the resolution of any such
claim, including permitting Proxim to control the defense and
settlement of such claim.
Proxim shall not be liable for any infringement or misappropriation claims
related to (i) modification of the Software; (ii) combination of the Software
with equipment or software not supplied by Proxim; or (iii) use of
other than the most current version of the Software if the claim would have
been avoided by use of the current version.
Proxim may, at its sole option, (i) obtain for Licensee at
Proxim's cost the continued right to use the Software, (ii) replace
or modify the Software so that it is no longer infringing but remains
functionally equivalent; or (iii) terminate this Agreement. THE FOREGOING STATES LICENSEE’S SOLE AND
EXCLUSIVE REMEDY AND PROXIM'S SOLE AND EXCLUSIVE LIABILITY FOR ANY
ALLEGED INFRINGEMENT OF ANY THIRD-PARTY PROPERTY RIGHTS.
9.2
Licensee Indemnification. Licensee shall indemnify and hold harmless
Proxim (including its directors, officers, employers and agents)
against any and all claims (including all expenses and reasonable attorneys’
fees) arising from or relating to the operation of the Software due to, in
whole or in part, Licensee’s (including its agents’ or employees’) negligence,
gross negligence or misconduct.
10.
ENTIRE AGREEMENT
10.1
This Agreement shall constitute the entire agreement
between Proxim and Licensee regarding licensing of the Software.
10.2
Any terms and/or conditions of sale, which may be
included on Licensee's purchase order form or any communication from Licensee,
that in any manner modify, limit or contradict the terms and conditions of this
Agreement, shall NOT become a part of the agreement between Proxim
and Licensee unless expressly agreed to in writing by both Proxim
and Licensee.
10.3
Proxim's failure to object to any terms
and/or conditions of sale contained in any communication from Licensee shall
not be considered acceptance of such terms and/or conditions or a waiver of the
terms and conditions contained herein.
10.4
No variation of the Agreement shall be binding unless
agreed to in writing by authorized representatives of Proxim and
Licensee.
11.
MISCELLANEOUS
11.1
Export Provisions. Licensee shall not, whether directly or indirectly (including
facilitating a third party) export or re-export the Software outside the
country in which Licensee has stated the Software is to be used without obtaining
the licenses or permits required under all applicable rules and
regulations. Licensee shall indemnify
Proxim against any liability incurred by Proxim due to
any violation by Licensee of any of the provisions of this Paragraph 11.1. Upon receipt of a governmental consent to
export, Licensee shall immediately notify Proxim in writing.
11.2
Assignment.
This Agreement shall inure to the benefit of Proxim’s
successors and assigns. Without
Proxim’s prior written consent, Licensee shall not assign, sublicense or
transfer, whether by operation of law or otherwise, Licensee’s rights or
obligations under this Agreement. Any
assignments made in violation of this Paragraph 11.2 shall be void.
11.3
Governing Law.
The Agreement shall be governed by the laws of the State of California,
without reference to its conflicts of laws provisions. Notwithstanding the foregoing,
Proxim may enforce the provisions of the Agreement in accordance with the
laws of the jurisdiction in which the Software is situated. This Agreement
shall be deemed to have been made in and entered into in the State of
California. The United Nations
Convention on Contracts for the International Sale of Goods shall not apply to
this Agreement.
11.4
Arbitration.
Any dispute, controversy or claim arising out of or in connection with
the Agreement, including any question regarding its existence, validity, or
termination, shall be finally resolved by arbitration under the International
Arbitration Rules of the American Arbitration Association, which rules are
deemed incorporated by reference into this Paragraph. The place of arbitration shall be Sunnyvale, California. The number of arbitrators shall be one. The language of arbitration shall be
English. If either party is successful
in any arbitration between the parties based on the Agreement, the successful
party shall recover from the other, in addition to direct damages, the
successful party’s reasonable attorney’s fees and other costs of arbitration.
This arbitration provision shall not preclude a party from obtaining equitable
relief in any court of competent jurisdiction.
11.5
Force Majeure.
Proxim (including its agents and employees) shall not be
liable if its performance of the Agreement becomes commercially impractical due
to any contingency beyond Proxim's reasonable control, including
acts of God, fires, floods, wars, terrorist acts, sabotage, civil unrest,
accidents, labor disputes or shortages, government laws, rules and regulations,
whether valid or invalid, inability to obtain material, equipment or
transportation, incorrect, delayed or incomplete specifications, drawings or
data supplied by Licensee or others (collectively "Force Majeure").
11.6
Notices.
All requests, instructions and notices from one party to the other must
be in writing and may be given via registered post, overnight delivery service
or facsimile transmission to the address of the parties shown on the quotation
or order acknowledgment.
11.7
General Terms.
The Paragraph and Subparagraph headings in the Agreement are for
convenience of reference only and shall not affect the meaning or
interpretation of the same. Any
provision of the Agreement which is, or is deemed to be, unenforceable in any
jurisdiction shall be severable from the Agreement in that jurisdiction without
in any way invalidating the remaining portions of the Agreement, and that
unenforceability shall not make that provision unenforceable in any other
jurisdiction.
11.8
Governing Language. The parties have required that the Agreement and all contracts,
documents or notices relating hereto be in the English language. If this Agreement is translated into another
language, the English language version shall control if any dispute arises over
the interpretation of the wording.
11.9
Waiver.
No waiver by Proxim of any breach of this Agreement shall be
considered a waiver of any subsequent breach of the same or any other
provision.
11.10 Survivability. The terms and conditions set forth in Paragraphs 2
(Intellectual Property Rights and Confidentiality), 8 (Limitation of Liability)
and Paragraph 9 (Indemnities) shall be and remain enforceable despite the
suspension, expiration or termination of this Agreement.