ATTENTION: SUBJECT TO PAYMENT OF THE APPLICABLE FEES, THE SOFTWARE AND DOCUMENTATION PROVIDED UNDER THIS AGREEMENT ARE BEING LICENSED TO YOU BY MASV INCORPORATED (“MASV”), OR ITS AUTHORIZED
DISTRIBUTORS AND ARE NOT BEING SOLD. THIS AGREEMENT CONTAINS LIMITATIONS ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES, AND LIABILITIES THAT ARE APPLICABLE TO THE SOFTWARE.
Commercial Software License
IMPORTANT: BEFORE DOWNLOADING, INSTALLING, OR USING THE SOFTWARE AND DOCUMENTATION, PLEASE CAREFULLY READ THIS AGREEMENT WHICH CONSTITUTES A LEGAL AGREEMENT BETWEEN YOU AND MASV INC., AND CONTAINS THE TERMS AND CONDITIONS UNDER WHICH YOU ARE ACQUIRING A LICENSE TO USE THE SOFTWARE AND DOCUMENTATION UNLESS YOUR USE OF THIS SOFTWARE IS OTHERWISE SUBJECT TO A SEPARATE LICENSE AGREEMENT BETWEEN YOU AND MASV (MASV). IF YOU DOWNLOAD, INSTALL, OR USE THE SOFTWARE AND/OR DOCUMENTATION, YOU WILL BE ACCEPTING THIS AGREEMENT, AND YOU WILL HAVE ACCEPTED AND AGREED TO THESE TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT PLEASE DO NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE AND DOCUMENTATION AND PROMPTLY (I) RETURN OR DESTROY THE SOFTWARE AND DOCUMENTATION, OR (II) IF YOU PAID A LICENSE FEE FOR THE SOFTWARE AND DOCUMENTATION, RETURN THE SOFTWARE AND DOCUMENTATION UNUSED TO MASV OR THE DISTRIBUTOR FROM WHOM YOU RECEIVED THE SOFTWARE AND DOCUMENTATION WITHIN THIRTY (30) DAYS OF YOUR RECEIPT OF THE SOFTWARE AND DOCUMENTATION FOR A REFUND. THE SOFTWARE AND DOCUMENTATION ARE ALSO PROTECTED BY COPYRIGHT LAWS AND INTERNATIONAL COPYRIGHT TREATIES, AS WELL AS OTHER INTELLECTUAL PROPERTY LAWS. IF YOU ARE AN AGENT OR EMPLOYEE OF ANOTHER ENTITY YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY’S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER.
1. Definitions: In this Agreement:
“Agreement” means this MASV Commercial Software License;
“Concurrent Bandwidth” means the maximum concurrent bit rate of data that may be processed in a specific period of time by a copy of Software;
“Confidential Information” means any business, marketing, technical, scientific or other information disclosed by MASV or embodied in the Software and/or Documentation which, at the time of disclosure is designated as confidential (or like designation), is disclosed in circumstances of confidence, or would be understood by someone exercising reasonable business judgment to be confidential;
“Connection” means each unique connection processed using the Software where a connection is characterized by a unique combination of the following resources: VLAN tag, source IP address, destination IP address, protocol, source port, and destination port;
“Documentation” means the technical publications prepared and delivered to You with the Software relating to the installation and operation of the Software, such as reference, user, installation, systems administrator and technical guides and release notes;
“MASV” means MASV Incorporated;
“Licensing String” means a series of computer-generated characters used for the purpose of controlling the operation of the Software;
“Software” means the commercial version of the MASV Desktop binary and/or bytecode software program that (i) is made available to You for download after acceptance of this Agreement, (ii) is packaged with this Agreement, or (iii) embeds this Agreement in its installer and which is installed after acceptance of this Agreement, and which binary and/or bytecode software program includes the storage media containing the software program, if any, and any printed, online, or electronic Documentation;
“Your Invoice” means the invoice document provided to You by MASV or one of its distributors or resellers; and
“You” or “Your” means the individual acquiring the Software license or any entity on whose behalf such individual is acting. In the case of an entity, “You” includes any entity that by majority voting interest controls, is controlled by, or is under common control with You.
2. Grant of Software License: Subject to the terms and conditions of this Agreement and Your payment of the applicable fees specified in Your Invoice, MASV grants You a non-exclusive, non-transferable, non-sublicensable, internal license to use the number of copies of the Software specified in Your Invoice to process no more than the number of Connections specified in Your Invoice for each such copy of Software up to the Concurrent Bandwidth limitation specified in Your Invoice for each such copy of Software. Subject to the terms and conditions of this Agreement and Your payment of the applicable fees specified in Your Invoice, MASV grants You a non-exclusive, non-transferable, non-sublicensable, internal license to use as many copies of the Documentation as are reasonably required to support Your permitted use of the Software. You acknowledge and agree that use of the Software is controlled by a Licensing String and that the Licensing String provided by MASV will control features of the Software that You can use, the number of computers on which You may install and operate the Software and the number and Connections and the amount of Concurrent Bandwidth that may be processed by the Software. You may make one (1) copy of the Software for archival purposes only. Any copies of the Software shall include all trademarks, copyright notices, restricted rights legends, proprietary markings and the like exactly as they appear on the copy of the Software originally provided to You. No other rights in the Software or Documentation are granted to You.
3. Restrictions: The terms set forth in this Section 3 shall constitute conditions to the licenses granted in Section 2. You shall not reverse engineer, disassemble, reverse translate, decompile or in any other manner decode the Software except to the extent the foregoing restriction is expressly prohibited by applicable law notwithstanding a contractual obligation to the contrary. You acknowledge and agree that no rights in respect to the source code of the Software are granted to You. You shall not distribute, lease, rent, grant a security interest in, assign, or otherwise transfer the Software except as expressly provided in this Agreement. You shall not modify or create any derivatives works of the Software or merge all or any part of the Software with another program. You shall not use the Software or make the Software available to any third parties as part of any service bureau, time sharing service, application service provider offering, software-as-a-service offering or any other managed service offering. You shall not disclose any performance, benchmarking, or feature-related information about the Software. You further agree not to disclose, transfer or otherwise provide to any third party any portion of the Software or Confidential Information, except as expressly permitted herein. You shall not disable or circumvent or do anything to disable or circumvent a Licensing String or any restrictive measures imposed using the Licensing String or otherwise implemented in the Software. You shall not copy or alter a Licensing String. You may only use a Licensing String provided by MASV and only in conjunction with the copy of the Software for which it was delivered.
4. Limited Warranties: MASV warrants that the Software will perform substantially in accordance with its accompanying
Documentation for a period of thirty (30) days from the date the Software is delivered to You. MASV does not, however, warrant that the Software will be free of all defects, errors, or inaccuracies. MASV does not warrant that the Software will meet Your requirements. If the Software does not perform in accordance with the warranty set forth in this Section 4, Your exclusive remedy, upon presentation of Your receipt of purchase of a license for the Software, shall be, at MASV’s sole option, to (i) terminate this Agreement and return the license fees paid for the Software, or (ii) repair or replace the Software. The limited warranty set forth in this Section 4 will not apply if the Software has not been properly installed, is used outside the scope of licenses granted in this Agreement, is modified, altered or operated in an environment other than that specified in the Documentation.
5. DISCLAIMER OF WARRANTIES: EXCEPT FOR THE LIMITED WARRANTY PROVIDED IN SECTION 4, THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS”, WITHOUT ANY REPRESENTATIONS, CONDITIONS, OR WARRANTIES OF ANY KIND. WITHOUT LIMITATION, MASV AND ITS LICENSORS, SUPPLIERS, SUBCONTRACTORS AND DISTRIBUTORS DISCLAIM ANY EXPRESS OR IMPLIED REPRESENTATIONS, CONDITIONS, OR WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT, DURABILITY, TITLE, SATISFACTORY QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE WHETHER ARISING BY STATUTE, COURSE OF DEALING, USAGE OF TRADE, OR OTHERWISE. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE ENTIRE RISK OF THE USE OF THE SOFTWARE AND DOCUMENTATION SHALL BE BORNE BY YOU. NEITHER MASV NOR ANY OF ITS LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS MAKE ANY REPRESENTATIONS OR PROVIDE ANY CONDITIONS AND/OR WARRANTIES ABOUT THE SUITABILITY OF THE SOFTWARE AND/OR DOCUMENTATION OR ABOUT ANY INFORMATION AND/OR DATA THAT MAY BE PROCESSED BY OR MADE AVAILABLE USING THE SOFTWARE.
6. LIMITATION OF LIABILITY: NEITHER MASV NOR ANY OF ITS LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS SHALL HAVE ANY LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES ARISING FROM THIS AGREEMENT, RELATED TO THE SOFTWARE OR DOCUMENTATION, OR RELATED TO ANY SERVICES PROVIDED TO YOU BY MASV (INCLUDING ITS LICENSORS, SUPPLIERS, SUBCONTRACTORS AND/OR DISTRIBUTORS) IN RELATION TO THE SOFTWARE AND/OR DOCUMENTATION FOR ANY INDIRECT, RELIANCE, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFIT, LOSS OF OR DAMAGE TO DATA, BUSINESS INTERRUPTION, LOSS OF DATA, REPLACEMENT OR RECOVERY COSTS, OR OTHER COMMERCIAL OR ECONOMIC LOSS, WHETHER ARISING FROM CONTRACT, EQUITY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER THEORY OF LIABILITY, EVEN IF MASV (INCLUDING ITS LICENSORS, SUPPLIERS, SUBCONTRACTORS AND DISTRIBUTORS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THEY ARE FORESEEABLE. THE LIMITATIONS IN THIS SECTION SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM OR FUNDAMENTAL BREACH. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THESE LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT SHALL THE TOTAL CUMULATIVE LIABILITY OF MASV (INCLUDING ITS LICENSORS, SUPPLIERS, SUBCONTRACTORS AND DISTRIBUTORS) TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES ARISING FROM THIS AGREEMENT, RELATED TO THE SOFTWARE, DOCUMENTATION AND/OR RELATED TO ANY SERVICES PROVIDED TO YOU BY MASV (INCLUDING ITS LICENSORS, SUPPLIERS, SUBCONTRACTORS AND DISTRIBUTORS) IN RELATION TO THE SOFTWARE AND/OR DOCUMENTATION, EXCEED THE LICENSE FEES PAID BY YOU FOR THE SOFTWARE.
THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT. YOU ACKNOWLEDGE THAT BUT FOR THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY, NEITHER MASV NOR ANY OF ITS LICENSORS OR SUPPLIERS WOULD GRANT THE RIGHTS GRANTED IN THIS AGREEMENT.
7. Term and Termination: This Agreement shall continue for as long as You use the Software, however, it may be terminated sooner as provided in this Section 7. You may terminate this Agreement by destroying all copies of the Software and
Documentation under Your control and providing certification of such destruction to MASV or the distributor or reseller from whom you obtained the Software or by returning the Software to MASV or the applicable distributor or reseller. MASV may terminate this Agreement immediately by providing You with written notice if any of the following events occur: (a) You fail to pay any amount due within thirty (30) days after MASV or the applicable distributor or reseller gives You written notice of such non-payment; (b) You are in material breach of any non-monetary provision of this Agreement, which breach, if capable of being cured, is not cured within thirty (30) days after MASV or its distributor or reseller gives You written notice thereof; or (c) You have committed a non-curable material breach of this Agreement. Upon termination You shall destroy all copies of the Software. In addition to this Section, the Sections entitled Definitions, Limited Warranties, Disclaimer of Warranties, Limitation of Liability, Fees and Taxes, Title, High-Risk Activities, Intellectual Property and Confidentiality, and General shall continue in force even after any termination of this Agreement. No termination of this Agreement will entitle You to a refund of any amounts paid by You to MASV or affect any obligations You may have to pay any outstanding amounts owing to MASV or the distributor or reseller from whom you obtained the Software. Upon any termination by MASV, You shall destroy all copies of the Software and Documentation under Your control and certify such destruction to MASV or return the Software and Documentation to MASV.
8. Fees and Taxes: You shall pay MASV (or the distributor or reseller from whom you obtain the Software) the charges and fee(s) specified in Your Invoice within the time specified in Your Invoice. All charges and fees specified in Your Invoice are exclusive of and do not include any taxes, duties or similar charges imposed by any Government (“Taxes”). You agree to pay or reimburse MASV or the distributor or reseller (as applicable) for all such Taxes (other than taxes on the net income of MASV). If You are outside Canada, the amounts You remit shall be the actual amounts due without withholding taxes or other assessments that may be imposed by authorities in the jurisdiction within which You are located, and which withholding taxes or assessments shall be paid by You. Upon request, You shall promptly furnish MASV or the distributor or reseller (as applicable) with certificates evidencing payment of any withholding taxes or other assessments You may be required to pay in connection with Your payment of the amounts owing under this Agreement.
9. Support and Updates: This Agreement does not grant You the right to any updates or enhancements of the Software or the right to receive any technical support for the Software. Such updates and other technical support services, if available, may be purchased separately from MASV in accordance with the MASV technical support program. Use of any updates or enhancements provided pursuant to any technical support You may procure from MASV shall be governed by the terms and conditions of this Agreement. MASV reserves the right at any time not to release or to discontinue the release of any Software and to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the Software.
10. Title: All right, title, and interest (including all intellectual property rights) in, to, and under the Software (including all copies thereof) shall remain with MASV Incorporated and its licensors.
11. High-Risk Activities: The Software is not fault-tolerant and is not designed, manufactured or intended for use in or in conjunction with on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation systems, air traffic control, or direct life support machines. MASV, its licensors, suppliers, subcontractors and distributors specifically disclaim any express or implied representations, warranties and/or conditions for such uses.
12. U.S. Government End-Users: The Software and Documentation are each a “commercial item” as that term is defined at FAR 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are defined in FAR 12.212, and are provided to the U.S. Government only as commercial end items. Government end users acquire the rights set out in this Agreement for the Software and Documentation consistent with: (i) for acquisition by or on behalf of civilian agencies, the terms set forth in FAR12.212; or (ii) for acquisition by or on behalf of units of the Department of Defense, the terms set forth in DFARS 227.7202. Use of the Software and Documentation is further restricted by the terms and conditions of this Agreement. For the purposes of any applicable government use, the Software and Documentation were developed exclusively at private expense, and are trade secrets of MASV Incorporated for the purpose of any Freedom of Information legislation or any other disclosure statute, regulation or provision.
13. Export Restrictions: The Software, Documentation and related information are subject to export and import restrictions. By downloading, installing, or using the Software, Documentation and/or related information, You are representing and warranting that You are not located in, are not under the control of, and are not a national or resident of any country to which the export of the Software, Documentation and/or related information would be prohibited by the laws and/or regulations of Canada or the United States. You are also representing and warranting that You are not an individual to whom the export of the Software, Documentation or related information would be prohibited by the laws and/or regulations of Canada or the United States. You shall comply with the export laws and regulations of Canada and the United States that are applicable to the Software, Documentation and related information and You shall comply with any local laws and/or regulations in Your jurisdiction that may impact Your right to export, import, or use the Software, Documentation or related information, and You represent and warrant that You have complied with any such applicable laws and/or regulations. The Software, Documentation and related information shall not be used for any purposes prohibited by export laws and/or regulations, including, without limitation, nuclear, chemical, or biological weapons proliferation. You shall be responsible for procuring all required permissions for any subsequent export, import, or use of the Software, Documentation or related information.
14. Intellectual Property and Confidentiality: MASV is a trademark or a registered trademark of MASV Incorporated in certain countries. All MASV product names and logos, including MASV, are trademarks or registered trademarks of MASV Incorporated in certain countries. All other company and product names and logos are trademarks or registered trademarks of their respective owners in certain countries. The Software is covered by U.S. Patent 7,742,501 and other patents pending. You shall not disclose, transfer or otherwise provide to any third party any portion of the Software or Confidential Information, except as expressly permitted in this Agreement.
15. General: This Agreement is the entire agreement between You and MASV in respect to the Software, superseding any other agreements or discussions, oral or written, and may not be changed except by a written license agreement with MASV or a distributor of MASV. The terms and conditions of this Agreement shall prevail over any pre-printed terms on any quotes, orders, purchase orders, or purchase order acknowledgements, and shall prevail over any other communications between the parties in relation to the Software and the Software shall be deemed to be licensed pursuant to the terms and conditions of this Agreement unless You have executed a written license agreement with MASV or a distributor of MASV, in which case the Software shall be deemed to have been licensed pursuant to the terms and conditions of such written license agreement. You may not assign this Agreement whether voluntarily, by operation of law, or otherwise without MASV’ prior written consent. MASV may assign this Agreement at any time without notice. The failure of a party to claim a breach of any term of this Agreement shall not constitute a waiver of such breach or the right of such party to enforce any subsequent breach of such term. If any provision of this Agreement is held to be unenforceable or illegal, such decision shall not affect the validity or enforceability of such provisions under other circumstances or the remaining provisions of this Agreement and such remaining provisions shall be reformed only to the extent necessary to make them enforceable under such circumstances. This Agreement shall be governed by the laws of the Province of Ontario and the laws of Canada applicable therein. No choice or conflict of laws rules of any jurisdiction shall apply to this
Agreement. You shall only be entitled to bring any action or proceeding arising out of or relating to this Agreement, the Software, Documentation or any services provided in respect to the Software and/or Documentation in a court in Ottawa, Ontario, Canada, and You consent to the jurisdiction of such courts for any such action or proceeding. You waive all rights that You may have or that may hereafter arise to contest the jurisdiction of such courts for any action or proceeding brought by You. You hereby waive any right You may have to request a jury trial with respect to any action brought by You in connection with this Agreement, the Software or any services provided in respect to the Software. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded. The Uniform Computer Information Act does not apply to this Agreement.
© Copyright 2019-2020 MASV Inc. The information contained herein is subject to change without notice.
Last Updated: Oct 28, 2020