KAI C++ End User License Agreement

THIS IS A LEGAL AGREEMENT BETWEEN YOU, EITHER AN INDIVIDUAL OR ENTITY, ("LICENSEE") AND KUCK & ASSOCIATES, INC. ("KAI"). BY INSTALLING THE ACCOMPANYING SOFTWARE, LICENSEE AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS KAI END USER LICENSE AGREEMENT ("AGREEMENT"). IF LICENSEE DOES NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT CONTINUE THE INSTALLATION PROCESS, IMMEDIATELY DELETE ALL DOWNLOADED FILES OF THE ACCOMPANYING SOFTWARE FROM LICENSEE'S COMPUTER SYSTEM AND/OR PROMPTLY RETURN THE MEDIA TOGETHER WITH ALL ASSOCIATED MATERIALS TO KAI OR TO THE SUPPLIER FROM WHOM LICENSEE OBTAINED IT FOR A FULL REFUND.

GRANT OF LICENSE

KAI grants Licensee the following non-exclusive rights with respect to the accompanying KAI product (the "Licensed Product") composed of software programs (the "Software") and related user documentation (the "Documentation") and any update thereof Licensee may receive from KAI. Licensee may:

  1. use the Licensed Product in accordance with the terms of this Agreement;
  2. make additional copies of the Licensed Product solely for the purpose of backup or archive;
  3. if Licensee receives the Documentation electronically, print one paper copy of the Documentation; and
  4. create derivatives of the components of the Licensed Product that are provided in source code form, provided that Licensee uses such derivatives only in conjunction with and as a part of the Licensed Product.

PERSONAL-USE LICENSE

If Licensee is using the Licensed Product under the control of a personal-use license, Licensee may use the Licensed Product on a single computer and Licensee's portable or home computer as long as only one copy of the Licensed Product is in use at any one time. A separate license is required for each computer in all other cases. KAI will provide Licensee with a license codekey that enables the Licensed Product.

PER SEAT LICENSES

If Licensee is using the Licensed Product under the control of a per seat, node-locked license, Licensee may use the Licensed Product only on a single designated computer, and only by the designated number of concurrent users. A separate license is required for each computer on which the Licensed Product will be used. KAI will provide Licensee with a license codekey that enables the Licensed Product.

If Licensee is using the Licensed Product under the control of a per seat, one platform type license, Licensee may use the Licensed Product only on a single designated type of computing platform on a single designated computer network, and only by the designated number of concurrent users. The type of a computing platform is determined by the operating system and the underlying computer hardware. A separate license is required for each other platform type where the Licensed Product will be used. A separate license is required for each computer network where the Licensed Product will be used. KAI will provide Licensee with a license codekey that enables the Licensed Product.

If Licensee is using the Licensed Product under the control of a per seat, all platform type license, Licensee may use the Licensed Product only on all computing platforms where the Licensed Product is offered with any per seat license, on a single designated computer network, and only by the designated number of concurrent users. The type of a computing platform is determined by the operating system and the underlying computer hardware. KAI will provide Licensee with a license codekey that enables the Licensed Product.

UNLIMITED USERS, NODE LOCKED LICENSE

If Licensee is using the Licensed Product under the control of an unlimited users, node-locked license, Licensee may use the Licensed Product only on a single designated computer. Any number of concurrent users can use the Licensed Product. A separate license is required for each computer on which the Licensed Product will be used. KAI will provide Licensee with a license codekey that enables the Licensed Product.

RESTRICTIONS

Licensee may NOT:

  1. use or copy the Licensed Product except as provided in this Agreement;
  2. rent or lease the Licensed Product to any third party;
  3. assign this Agreement or transfer the Licensed Product without the express written consent of KAI;
  4. modify, adapt, or translate the Licensed Product in whole or in part except as provided above;
  5. reverse engineer, decompile, or disassemble the Software;
  6. attempt to modify or tamper with the normal function of a license manager that regulates usage of the Licensed Product; or
  7. distribute, sublicense or transfer the source code form of any components of the Licensed Product and derivatives thereof to any third party.

REDISTRIBUTION RIGHTS

The Software includes run-time components (the "RTCs") that are specifically designated as such by KAI in the Documentation. Licensee has a non-exclusive, royalty-free, restricted right to

  1. embed the RTCs and derivatives thereof, in object code form only, in application software programs that Licensee develops and compiles by using the Software, and
  2. reproduce and distribute the RTCs and derivatives thereof embedded in such application software programs, in object code form only, provided that:
    1. Licensee distributes the RTCs and derivatives thereof only in conjunction with and as a part of Licensee's application software programs;
    2. Licensee will be solely responsible to anyone receiving Licensee's application software programs for any updates, technical or other support obligations or other liability which may arise from the distribution of Licensee's application software programs;
    3. Licensee does not use KAI's or its licensors' names, logos, or trademarks to market Licensee's application software programs;
    4. Licensee shall not remove KAI's and its licensors' copyright and/or proprietary notices and legends from the executable images of Licensee's application software programs; and
    5. Licensee agrees to indemnify, hold harmless and defend KAI and its licensors from and against any claims or lawsuits, including attorney's fees, that arise or result from the use or distribution of Licensee's application software programs.

ELECTRONIC AND MEDIA SOFTWARE

If Licensee receives its first copy of the Licensed Product electronically, and a second copy on media, then Licensee may use the second copy for backup or archival purposes only. Licensee may not use the second copy on another computer or provide it to another user.

TERM: PERPETUAL LICENSE

If Licensee purchased a perpetual license to use the Licensed Product, the term of this Agreement will be perpetual from the date KAI issues Licensee a license codekey.

TERM: ANNUAL LICENSE

If Licensee purchased an annual license to use the Licensed Product, the term of this Agreement will be a period of twelve (12) months from the date KAI issues Licensee a license codekey. During the term of this Agreement, Licensee has the option to renew this Agreement for additional twelve (12) month terms by issuing a purchase order to KAI. This Agreement terminates if Licensee does not renew it prior to the expiration date.

TERM: EVALUATION LICENSE

If Licensee is using the Licensed Product free of charge under a KAI evaluation program, KAI will set the term of this Agreement. Under a KAI evaluation license, Licensee agrees to:

  1. use the Licensed Product for internal purposes only; and
  2. report to KAI the results of Licensee's evaluation of the Licensed Product, including performance results.

Licensee will NOT:

  1. disclose any data resulting from the use of the Licensed Product, including, but not limited to, performance and reliability data, to any third party without the express written consent of KAI; or
  2. reproduce and distribute the RTCs and derivatives thereof as part of Licensee's application software programs.

OWNERSHIP & COPYRIGHT

Title, ownership rights and intellectual property rights in and to the Licensed Product and all copies thereof shall remain in KAI and/or its licensors. The Licensed Product is copyrighted and protected by United States copyright laws and international treaty provisions. Licensee agrees:

  1. not to remove any copyright or other proprietary notices from the Licensed Product;
  2. to reproduce all such notices on any authorized copies Licensee makes; and
  3. to use best efforts to prevent any unauthorized copying of the Licensed Product.

LIMITED WARRANTY

For a period of ninety (90) days from the date Licensee receives the Licensed Product, KAI warrants that:

  1. the media on which the Licensed Product is distributed will be free from defects in material and workmanship under normal use; and
  2. the Software will conform substantially to the Documentation.

KAI does not warrant or represent that the functions contained in the Licensed Product will meet Licensee's requirements or that the operation of the Licensed Product will be uninterrupted or error free. In the case of defective media, KAI's and its suppliers' entire liability and Licensee's exclusive remedy will be the replacement of the media. If within ninety (90) days from the date Licensee receives the Licensed Product Licensee gives KAI a written description of a significant, reproducible error where the Software does not conform to the Documentation, along with a machine readable example, KAI's and its suppliers' entire liability and Licensee's exclusive remedy will be that KAI will, at its sole discretion, provide Licensee with either:

  1. corrective or workaround instructions;
  2. corrections to the nonconforming Software and/or Documentation; or
  3. a refund of Licensee's license fee.

If the license fee is refunded, this Agreement will terminate immediately. This Limited Warranty extends only to the original recipient of the Licensed Product, and is void if failure of the Licensed Product has resulted from accident, abuse, or misapplication. Any replacement item will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer.

NO OTHER WARRANTIES

EXCEPT FOR THE LIMITED WARRANTY PROVIDED ABOVE, THE LICENSED PRODUCT IS PROVIDED "AS IS". KAI AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. THIS LIMITED WARRANTY GIVES LICENSEE SPECIFIC LEGAL RIGHTS. LICENSEE MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.

LIMITATION OF LIABILITY

REGARDLESS OF WHETHER ANY EXCLUSIVE REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL KAI OR ITS SUPPLIERS BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF REVENUES, PROFITS, DATA, BUSINESS INTERRUPTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF THE USE OF OR INABILITY TO USE THE LICENSED PRODUCT, EVEN IF KAI OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO LICENSEE.

IN NO EVENT WILL KAI'S OR ITS SUPPLIERS' CUMULATIVE LIABILITY TO LICENSEE OR ANY THIRD PARTY EXCEED THE AGGREGATE AMOUNT PAID BY LICENSEE FOR THE LICENSED PRODUCT.

TERMINATION

Licensee may terminate this Agreement at any time. KAI will immediately terminate this Agreement and Licensee's right to use the Licensed Product without notice upon any of the following events:

  1. Licensee's evaluation license expires;
  2. this Agreement expires;
  3. KAI refunds Licensee's license fee under the provisions of the Limited Warranty; or
  4. Licensee fails to comply with any provision of this Agreement.

If this Agreement is terminated for any reason, Licensee will:

  1. cease all use of the Licensed Product;
  2. destroy or return to KAI the original and all copies of the Licensed Product, including the license codekeys; and
  3. delete the Licensed Product and license codekeys from all computers on which it was resident.

All disclaimers of warranties and limitation of liability set forth in this Agreement will survive termination of this Agreement.

EXPORT ASSURANCE

Licensee agrees and certifies that none of the Software, Documentation, underlying information or technology, or any direct products thereof, will be downloaded or otherwise exported or reexported

  1. into, or used by a national or resident of, Cuba, Iran, Iraq, Libya, North Korea or any other country to which the United States embargoes goods, or
  2. to the Bosnian Serbs or to anyone on the United States Treasury Department's list of Specially Designated Nationals or the United States Department of Commerce's Table of Deny Orders.

By downloading or using the Licensed Product, Licensee represents and warrants that Licensee is not located in, under the control of, or a national or resident of any such country or on any such list.

GOVERNMENT RESTRICTED RIGHTS

The Licensed Product is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the United States Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights clause at 48 CFR 52.227-19, as applicable. Contractor/manufacturer is Kuck & Associates, Inc., 1906 Fox Drive, Champaign IL 61820.

GENERAL

This Agreement is governed by and interpreted in accordance with the laws of the State of Illinois, USA except for that body of law dealing with conflicts of law. This Agreement represents the complete agreement between the parties relating to this license for the Licensed Product and supersedes all prior agreements, communications, proposals and representations between the parties and prevails over any conflicting or additional terms of any quote, order, acknowledgment or similar communication. This Agreement may only be modified by license addendum which accompanies this license or by a written document signed by both parties. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect.

If Licensee has any questions concerning this Agreement, please send email to: kai@kai.com, OR write to: Kuck & Associates, Inc., 1906 Fox Drive, Champaign, IL 61820, USA.

KAI Document#: KCC-990603-W