Emoko ALPHA Software
Graham Software Development, LLC, d/b/a Emoko or Emoko.com, (the "Company") is willing to license the Emoko ALPHA Software defined below, related documentation, and any other material or information relating to such software (the "Software") provided by the Company to you (personally and/or on behalf of your employer, as applicable) ("Licensee") along with any services or functionality provided by the Company in conjunction with the Software (the "Services") ONLY IF YOU ACCEPT ALL OF THE TERMS IN THIS LICENSE AGREEMENT ("License"). The Company is not willing to make the Software available under any other terms or subject to any other conditions.
BEFORE YOU CHOOSE THE "AGREE" OPTION, CAREFULLY READ THE TERMS AND CONDITIONS OF THIS LICENSE. BY CHOOSING THE "AGREE" BUTTON AND/OR BY INSTALLING OR USING THE EMOKO BETA SOFTWARE YOU ARE CONSENTING TO BE BOUND BY THIS LICENSE. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS LICENSE, OR DO NOT REPRESENT THE FOREGOING, CHOOSE THE "DECLINE" BUTTON, IN WHICH CASE YOU MAY NOT RECEIVE, INSTALL OR USE THE SOFTWARE. Any use of the Software other than pursuant to the terms of this License is a violation of U.S. and international copyright laws and conventions.
1. GRANT OF LICENSE
Subject to the terms and conditions of this License, the Company hereby grants to Licensee a limited, personal, non-exclusive, non-sublicensable, non-transferable license to install on magnetic or optical media and use for its own personal use the Software.
Licensee may distribute the Software to others, provided such distribution is not in consideration for a fee, and provided that each recipient of the Software agrees to be bound by this License.
The license granted to Licensee is expressly made subject to the following limitations: Licensee may not itself (and shall not permit any third party to): (i) copy, other than as expressly permitted, all or any portion of the Software, except that Licensee may make one copy of the Software for archival purposes for use by Licensee only in the event the Software shall become inoperative; (ii) modify or translate the Software; (iii) reverse engineer, decompile or disassemble the Software, in whole or in part; (iv) use the Software to directly or indirectly provide a time-sharing or subscription service to any third party or to function as a service bureau or application service provider; (v) create derivative works based on the Software; (vi) publicly display the Software; (vii) rent, lease, sublicense, sell, market, assign, or otherwise permit access to the Software to any third party consideration for a fee; (viii) install and use the Software unless Licensee has installed on such magnetic or optical medium a valid, licensed copy of an operating system compatible with said Software; or (ix) exercise any right to the Software not expressly granted in this License.
This License will also govern any software modifications provided by the Company that replace and/or supplement the original Product, unless such modifications are accompanied by a separate license, in which case the terms of that license will govern.
The Software may include software applications and tools licensed to the Company by third parties. This third-party software provided with the Software is provided AS IS AND WITH ALL FAULTS.
The Software contains Mozilla Firefox web browsing software, which is covered under the Mozilla Public License Version 1.1. Source Code for Mozilla Firefox my be obtained at http://developer.mozilla.org/en/docs/Download_Mozilla_Source_Code.
The Software contains the C++ implementation of the Chain Hull algorithm provided by softSurfer.com which may be located at http://geometryalgorithms.com/Archive/algorithm_0109/algorithm_0109.htm#Implementation.
2. OWNERSHIP OF SOFTWARE AND FEEDBACK
This License does not convey to Licensee an interest in or to the Software, but only a limited right of use revocable in accordance with the terms of this License. The Software is NOT sold to Licensee. The Company and its licensors own all right, title and interest in and to the Software. No license or other right in or to the Software is granted to Licensee except for the rights specifically set forth in this License. Licensee hereby agrees to abide by United States copyright law and all other applicable laws of the United States and other nations and by any applicable international treaties.
If Licensee provides suggestions, comments or other feedback ("Feedback") to the Company with respect to the Software, Licensee agrees that all Feedback is and shall be given entirely voluntarily. All Feedback and any intellectual property relating to Feedback shall become the sole property of the Company. The Company shall be free to use, disclose, reproduce, license or otherwise distribute, and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind from Licensee.
3. NO WARRANTY AND DISCLAIMER OF LIABILITY
THE SOFTWARE IS PROVIDED TO LICENSEE "AS IS." THE COMPANY AND ITS LICENSORS DO NOT MAKE ANY, AND HEREBY SPECIFICALLY DISCLAIM ANY, REPRESENTATIONS, ENDORSEMENTS, GUARANTIES, OR WARRANTIES, EXPRESS OR IMPLIED, RELATED TO THE SOFTWARE INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. The Company does not warrant that use of the Software, or Licensee's ability to use the Software and Services will be uninterrupted or error free. Licensee acknowledges that the Company does not guarantee compatibility between the Software and any future versions thereof. The entire risk as to the quality and performance of the Software and any obligation with respect to service and support is borne by Licensee.
LICENSEE'S SOLE EXCLUSIVE REMEDY FOR ANY CLAIM ARISING UNDER THIS LICENSE OR FROM USE OF THE SOFTWARE IS TO DISCONTINUE USE OF THE SOFTWARE. THE COMPANY AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, LICENSORS AND AGENTS (THE "COMPANY PARTIES") SHALL NOT BE LIABLE UNDER ANY LEGAL THEORY FOR ANY DAMAGES SUFFERED IN CONNECTION WITH THE USE OF THE SOFTWARE, INCLUDING WITHOUT LIMITATION, INDIRECT, SPECIAL, INCIDENTAL, MULTIPLE, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, DATA OR USE ("EXCLUDED DAMAGES"), EVEN IF ANY PARTY WAS ADVISED OF THE POSSIBILITY OF ANY EXCLUDED DAMAGES OR ANY EXCLUDED DAMAGES WERE FORESEEABLE. IN THE EVENT OF A FAILURE OF ESSENTIAL PURPOSE OF THE EXCLUSIVE REMEDY, THE COMPANY WILL USE COMMERCIALLY REASONABLE EFFORTS TO ISSUE LICENSEE REPLACEMENT SOFTWARE AS LICENSEE'S SOLE AND EXCLUSIVE ALTERNATIVE REMEDY. LICENSEE HEREBY EXPRESSLY RELEASES THE COMPANY PARTIES FROM ANY AND ALL LIABILITY OR RESPONSIBILITY FOR ANY DAMAGE CAUSED, DIRECTLY OR INDIRECTLY, TO LICENSEE OR ANY THIRD PARTY AS A RESULT OF THE USE OF THE SOFTWARE OR THE INTRODUCTION THEREOF INTO LICENSEE'S COMPUTER ENVIRONMENT.
Title and related rights in the materials, data, content, and programs ("Content") accessible through the Software is the property of the applicable Content owners and is protected by applicable law. This License gives Licensee no rights to such Content.
Licensee may be exposed to Content that licensee finds offensive, indecent, or objectionable or that is inaccurate, and Licensee bears all risks associated with the Content. Licensee agrees not to use the Software to upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party.
The above disclaimer of warranty and liability constitutes an essential part of this License and Licensee acknowledges that Licensee's installation and use of the Software reflect Licensee's acceptance of this disclaimer of warranty and liability. Certain jurisdictions may limit the Company's and its licensors' ability to disclaim their liability to you, in which case, the foregoing disclaimer shall be construed to limit the Company's and its licensors' liability to the maximum extent permitted by applicable law.
4. TERM AND TERMINATION OF LICENSE
This License is valid until terminated. Licensee may terminate this License at any time by destroying or returning Licensee's copy of the Software. The Company may terminate this License at any time for any reason. This License will terminate immediately if Licensee defaults or breaches any term of this License. Upon termination of this License for any reason, any right, license or permission granted to Licensee with respect to the Software shall immediately terminate and Licensee hereby undertakes to: (i) immediately cease to use any part of the Software; and (ii) promptly and fully destroy, delete and/or de-install any copy of the Software installed or copied by Licensee. The provisions regarding ownership, disclaimers of warranty, limitation of liability, equitable relief and governing law and venue will survive termination of this License indefinitely in accordance with their terms.
5. USER DATA
Licensee acknowledges that any information entered into the Software may be transmitted to the Company and/or third parties in accordance with the Emoko ALPHA privacy policy available at www.emoko.com/privacy.php.
6. GOVERNING LAW
This License shall be governed by and construed in accordance with New York law without regard to conflict of law provisions thereto and, as to matters affecting copyrights, trademarks and patents, in addition, by applicable United States federal law.
7. EQUITABLE RELIEF
It is agreed that because of the proprietary nature of the Software, the Company's and its Licensors' remedies at law for a breach by the Licensee of its obligations under this License will be inadequate and that the Company and its Licensors shall, in the event of such breach, be entitled to, in addition to any other remedy available to it, equitable relief, including injunctive relief, without the posting of any bond and in addition to all other remedies provided under this License or available at law.
8. EXPORT CONTROLS
This license is subject to all applicable export restrictions. You must comply with all export and import laws and restrictions and regulations of any United States or foreign agency or authority relating to the Product and its use.
9. U.S. GOVERNMENT END-USERS
This Product is a "commercial item," as that term is defined in 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995) and 48 C.F.R. 227.7202 (June 1995). Consistent with 48 C.F.R. 12.212, 48 C.F.R. 27.405(b)(2) (June 1998) and 48 C.F.R. 227.7202, all U.S. Government End Users acquire the Product with only those rights as set forth therein.
10. COPYRIGHT NOTICES AND OTHER NOTICES
The Software is protected by the copyright laws of the United States and all other applicable laws of the United States and other nations and by any international treaties, unless specifically excluded herein.
11. RIGHT TO MODIFY LICENSE
The Company reserves the right to modify this License from time to time. Any changes to this license will be posted at www.emoko.com/eula.php. Substantive changes may also be announced through any means in which the Company typically communicates with users. In the event Licensee does not wish to be bound by the License as modified, Licensee must immediately terminate the License in accordance with Section 4 of this License.