END USER LICENSE AGREEMENT
NOTICE: This is a legally binding contract between you, the end user, and PVComplete Inc.
PVComplete Inc. (“PVComplete” or “LICENSOR”) LICENSES THE ENCLOSED SOFTWARE TO YOU (“USER” or “LICENSEE”)ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED INTHIS LICENSE AGREEMENT. PLEASE READ THE TERMS CAREFULLY. BY OPENING THIS PACKAGE, BREAKING THE SEAL, CLICKING ON THE AGREE OR YES BUTTON OR OTHERWISE INDICATING ASSENT ELECTRONICALLY, OR LOADING THE SOFTWARE, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IFYOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, CLICK ON THE I DONOT AGREE, NO BUTTON, OR MAKE NO FURTHER USE OF THE SOFTWARE. IF YOU DO NOT AGREE TO THESE TERMS, THEN PVCOMPLETE IS UNWILLING TO LICENSE THE SOFTWARE TO YOU, IN WHICH EVENT YOU SHOULD RETURN THE FULL PURCHASED PRODUCT WITH PROOF OF PURCHASE TO THE LICENSOR OR THE DEALER FROM WHOM IT WAS ACQUIRED WITHIN 15 DAYS OF PURCHASE
1. License Grant. As used herein, “Software” means all software design tool sand any documentation provided by PVComplete to Licensee for use in connection with the PVComplete software under this Agreement. PVComplete grants to Licensee a limited, non-exclusive, personal,non-transferable, non-sub licensable license to use the Software.The Software may only be used by Licensee’s employees and contractors who have a need to use the Software to perform engineering design services for Licensee (“Contractors”), provided thatLicensee causes such Contractors agree to the terms of this Agreement in writing and PVComplete is notified in writing of such Agreement. PVComplete has no obligation to maintain or support the Software.
2. Ownership. The Software is owned by PVComplete. The Software is protected byUnited States copyright laws and international treaty provisions. LICENSEE SHALL NOT, AND SHALL NOT AUTHORIZE OR ASSIST ANY THIRD PARTY TO, MODIFY, REVERSE ENGINEER, REVERSE COMPILE OR DISASSEMBLE THE SOFTWARE. Licensee shall not remove, alter or destroy any copyright,proprietary or confidential notices placed on the Software. Licensee may copy the Software solely to make one backup or archival copy. Licensee acknowledges that it has and shall have no right whatsoever, whether by the express terms of this Agreement or by any course of conduct, to use, review, or access the source code for the Software. Licensee shall be responsible and liable for compliance with, and any breach of, thisAgreement by its employees and Contractors.
3. No Transfers. Licensee shall not sell, sublicense, rent, lease, or otherwise permit the use of the Software to or by anyone (other than itself and its employees and Contractors), to provide services to others, or other than as expressly permitted hereunder.
4. DISCLAIMER. THE SOFTWARE IS PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND PVCOMPLETE EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, TERMS, CONDITIONS, AND WARRANTIES,INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON INFRINGEMENT, OR ARISING OUT OF COURSE OF DEALING OR TRADE USAGE. PVCOMPLETE DOES NOT REPRESENT, WARRANT OR GUARANTY THE RESULTS OF USEOF THE SOFTWARE OR ANY CONFIDENTIAL INFORMATION OR THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED OR ERROR FREE. PVCOMPLETE ASSUMES NO RESPONSIBILITY FOR THE SAFETY, QUALITY, DESIGN, SPECIFICATIONS,COMPLETENESS OR OTHER CHARACTERISTICS OF THE PERFORMANCE, OUTPUT, OREND PRODUCT RESULTING FROM THE USE OF THE SOFTWARE OR CONFIDENTIAL INFORMATION. LICENSEE’SUSE OF THE SOFTWARE, CONFIDENTIAL INFORMATION AND ALL ENGINEERING DESIGNS, LAYOUTS AND OTHER RESULTS OF SUCH USE IS AT LICENSEE’S SOLE RISK AND LICENSEE IS SOLELY RESPONSIBLE AND LIABLE FOR ALL SUCH RESULTS OF ITS USE OF THE SOFTWARE AND CONFIDENTIAL INFORMATION.
5. Limitation on Liability. In no event shall PVComplete have any liability for any incidental,special, indirect or consequential damages; loss of profit, data or revenue; business interruption. Furthermore, in no event shall the liability of PVComplete exceed the amount paid by you for the software directly responsible for such damages arising out of or claimed as a result of the license. The limitations of liability in this section 5 shall apply to the maximum extent permitted by applicable law to any damages, however caused and regardless of the theory of liability. It applies even if any remedy fails of its essential purposed; and PVComplete has been advised, or should have known, of the possibility of damages.
6. Confidentiality. The Software and all information and documentation that PVComplete may provide to Licensee regarding the Software or its content, use or maintenance or the results obtained through use of the Software constitutes valuable proprietary and confidential information ofPVComplete (the Confidential Information). Licensee shall hold the Confidential Information in strict confidence, shall not disclose or cause it to be disclosed to any third party except to those of its employees and Contractors who require access to the ConfidentialInformation to perform under this Agreement.
7. Term. PVComplete may immediately terminate this Agreement and the license it grants if Licensee or any of its employees or Contractors fails to comply with any material term or condition of this Agreement. Upon such termination Licensee shall, and shall cause its employees andContractors to, immediately cease using the Software and ConfidentialInformation and must follow PVComplete’s instructions regarding return of all copies of the Software and Confidential Information inLicensee’s, its employees’ and Contractors’ possession or control. Sections 2, 3, 5, 6, 7, 8 and 9 shall survive termination of thisAgreement for any reason.
(a) This is the entire Agreement between Licensee and PVComplete, and supersedes any prior agreement or understanding, whether written or oral, relating to the subject matter of this Agreement. This Agreement may not be modified, amended, or terminated except by an instrument in writing, signed by Licensee and by a duly authorized representative of PVComplete. This Agreement may be executed in one or more counterparts each of which shall be an original and all of which together shall constitute one and the same instrument.
(b) Licensee may not assign or delegate its rights or obligations under this Agreement, by operation of law or otherwise, without PVComplete’s prior written consent. This Agreement will be binding on and inure to the benefit of the parties and their heirs, successors and assigns.
(c) This Agreement is governed by the laws of the State of California without regard to its conflicts of laws rules. The parties disclaim the application of the United Nations Convention on the InternationalSale of Goods. If any provision of this Agreement is ruled invalid,such invalidity shall not affect the validity of the remaining portions of this Agreement. No failure to exercise and no delay in exercising any right, remedy, or power under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, or power under this Agreement preclude any other or further exercise thereof, or the exercise of any other right, remedy, or power provided herein or by law or in equity. Licensee may not export or re‑export the Software without the appropriate United States or foreign government licenses.
(d) A breach of any of the promises or agreement contained in thisAgreement may result in irreparable and continuing damage toPVComplete for which there may be no adequate remedy at law, andPVComplete is therefore entitled to seek injunctive relief as well as such other and further relief as may be appropriate.