VOLFLO 1.5 SOFTWARE LICENSE
The Software License Agreement must be agreed to before downloading updates.
Link to download is at end of Software License Agreement.
READ THE TERMS OF THIS AGREEMENT BEFORE PROCEEDING. BY USING THE SOFTWARE, YOU ARE AGREEING TO THE FOLLOWING CONDITIONS. SHOULD YOU NOT AGREE, DO NOT DOWNLOAD UPDATE.
GEOSTRUCTURAL TOOL KIT, INC., 12885 Research Blvd., 209A Austin, Texas("GTK"), GRANTS THE CUSTOMER PERSONAL, NONEXCLUSIVE, NONTRANSFERABLE LICENSE TO USE THIS LICENSED SOFTWARE IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT; LICENSED SOFTWARE IS SUPPLIED TO CUSTOMER EITHER BY GTK DIRECTLY OR THROUGH AN AUTHORIZED GTK DISTRIBUTOR.
WHILE GTK HAS TAKEN EVERY PRECAUTION TO ASSURE THE CORRECTNESS OF THE ANALYTICAL SOLUTION AND DESIGN TECHNIQUES USED IN THIS SOFTWARE, IT CANNOT GUARANTEE THE PERFORMANCE OF THE SOFTWARE, NOR CAN IT BEAR ANY RESPONSIBILITY FOR DEFECTS OR FAILURES IN STRUCTURES IN CONNECTION WITH WHICH THIS SOFTWARE IS USED. POST TENSIONING INSTITUTE LOCATED IN PHOENIX, ARIZONA ("PTI") HAS NOT PARTICIPATED IN THE DESIGN OR DEVELOPMENT OF THIS SOFTWARE AND NEITHER GUARANTEES THE PERFORMANCE OF THE SOFTWARE NOR BEARS ANY RESPONSIBILITY FOR DEFECTS OR FAILURES IN STRUCTURES IN CONNECTION WITH WHICH THIS SOFTWARE IS USED.
GTK AND PTI EXPRESSLY DISCLAIM ANY WARRANTY (1) THAT THE FUNCTIONS CONTAINED IN THE LICENSED SOFTWARE WILL MEET THE REQUIREMENTS OF CUSTOMER OR OPERATE IN COMBINATIONS WHICH MAY BE SELECTED FOR USE BY CUSTOMER; (2) THAT OPERATION OF THE SOFTWARE WILL BE FREE OF ALL "BUGS" OR PROGRAM ERRORS; OR (3) THAT THE LICENSED SOFTWARE CONFORMS TO ANY PERFORMANCE SPECIFICATIONS.
THE WARRANTIES IN SECTION 6 HEREOF ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
IN NO EVENT SHALL GTK OR PTI BE LIABLE FOR (A) LOSS OF PROFITS, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR OTHER DAMAGES, EVEN IF GTK OR PTI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (B) ANY CLAIM AGAINST CUSTOMER BY ANY THIRD PARTY EXCEPT AS PROVIDED IN SECTION 7 ENTITLED "INFRINGEMENT"; (C) ANY DAMAGES CAUSED BY CUSTOMER'S FAILURE TO PERFORM CUSTOMER'S RESPONSIBILITIES UNDER THIS AGREEMENT; OR (D) ANY DAMAGES CAUSED BY (1) DELAY IN DELIVERY OF LICENSED SOFTWARE UNDER THIS AGREEMENT; (2) PERFORMANCE OR NONPERFORMANCE OF LICENSED SOFTWARE; (3) RESULTS FROM USE OF LICENSED SOFTWARE, INCLUDING, WITHOUT LIMITATION, MISTAKES, ERRORS, INACCURACIES, FAILURES, OR CUSTOMER'S INABILITY TO PROVIDE SERVICES TO THIRD PARTIES THROUGH USE OF LICENSED SOFTWARE; (4) CUSTOMER'S FAILURE TO PERFORM CUSTOMER'S RESPONSIBILITIES; (5) GTK's NOT PROVIDING UPDATES OF ANY OF THE LICENSED SOFTWARE; (6) LABOR, EXPENSE, OR MATERIALS NECESSARY TO REPAIR DAMAGE TO LICENSED SOFTWARE CAUSED BY (1) ACCIDENT; (2) NEGLIGENCE OR ABUSE BY CUSTOMER; (3) ACTS OF THIRD PERSONS INCLUDING, BUT NOT LIMITED TO, INSTALLATION, REPAIR, MAINTENANCE, OR OTHER CORRECTIVE WORK RELATED TO ANY EQUIPMENT BEING USED; (4) CAUSES EXTERNAL TO LICENSED SOFTWARE SUCH AS POWER FLUCTUATION AND FAILURES; OR (5) FLOODS, WINDSTORMS, OR OTHER ACTS OF GOD. MOREOVER, IN NO EVENT SHALL GTK BE LIABLE FOR WARRANTIES, GUARANTEES, REPRESENTATIONS, OR ANY OTHER UNDERSTANDINGS BETWEEN CUSTOMER AND PTI RELATING TO THE LICENSED SOFTWARE.
THIS AGREEMENT CONSTITUTES THE ENTIRE AND EXCLUSIVE AGREEMENT, UNDERSTANDING, AND REPRESENTATIONS, EXPRESS OR IMPLIED, BETWEEN CUSTOMER AND GTK AND PTI WITH THE RESPECT TO THE LICENSED SOFTWARE AND SERVICES TO BE FURNISHED HEREUNDER; IT IS A FINAL EXPRESSION OF THAT AGREEMENT AND UNDERSTANDING; IT SUPERSEDES ALL PRIOR COMMUNICATIONS BETWEEN THE PARTIES (INCLUDING ALL ORAL AND WRITTEN PROPOSALS). ORAL STATEMENTS MADE BY GTK OR PTI REPRESENTATIVES ABOUT THE LICENSED SOFTWARE DO NOT CONSTITUTE WARRANTIES, SHALL NOT BE RELIED ON BY CUSTOMER, AND ARE NOT PART OF THIS LICENSE AGREEMENT.
1. LICENSE RESTRICTIONS
Except as expressly provided in this Agreement or as otherwise authorized in writing by GTK, Customer has no right to (1) use, print, copy, display, reverse assemble, reverse engineer, or decompile the Licensed Software in whole or in part; (2) disclose, publish, release, sublicense, or transfer to another person any Licensed Software; (3) reproduce the Licensed Software for the use or benefit of anyone other than Customer; or (4) modify any Licensed Software. All rights to the Licensed Software not expressly granted to Customer hereunder are retained by GTK. All copyrights and other proprietary rights except as expressed elsewhere in the Licensed Software and legal title thereto shall remain in GTK. Customer may have installed Licensed Software at only one workstation at customer's site at any given time. Customer may not transmit the software electronically to any other workstation, computer, or terminal device whether via a local area network, telecommunications transmission, or other means without prior written permission by GTK.
As an alternate to Section 1, you may install a copy of the Software on a network storage device, such as a server computer, and allow one access device, such as a personal computer, to access and use that licensed copy of the Software over a private network. You must obtain a license to the Software for each additional device that accesses and uses the Software installed on the network storage device.
You may use remote access technologies, such as Remote Desktop, PC Anywhere, Terminal Server, to access and use the licensed copy of the Software, provided that only the primary user of the device hosting the remote session accesses and uses the Software with a remote access device. These remote access rights do not permit you to use the Software on both the device hosting the remote session and the access device at the same time.
2. TERM AND TERMINATION
This Agreement shall be in effect from the date Customer accesses software until terminated by Customer, by PTI on behalf of Customer or GTK, or by GTK as set forth herein. This Agreement may be terminated by GTK without cause upon 30 days written notice, or immediately upon notice to Customer if Customer breaches this Agreement or fails to comply with any of its terms or conditions.
3. BACKUP AND REPLACEMENT COPIES
Customer shall be permitted to make one back-up copy, provided GTK's copyright notice and Software License Agreement is included in the copy.
4. PROTECTION AND SECURITY OF LICENSED SOFTWARE
(a) Customer will not provide or otherwise make available any Licensed Software in any form to any person other than employees of Customer with the need to know, without GTK's written permission.
(b) All Licensed Software in Customer's possession including, without limitation, translations, compilations, back-up, and partial copies is the property of GTK. Upon expiration or termination of this Agreement, for any reason, Customer shall immediately destroy any Licensed Software, including all media and reference manuals, and destroy any Licensed Software that has been copied onto hard disks. Upon request, Customer shall certify its compliance in writing with the foregoing to GTK.
(c) Customer shall take appropriate action, by instruction, agreement, or otherwise, with any persons permitted access to the Licensed Software, to enable Customer to satisfy its obligations under this Agreement with respect to use, copying, protection, and security of Licensed Software.
(d) If GTK prevails in an action against Customer for breach of the provisions of this paragraph, Customer shall pay the reasonable attorney's fees, costs, and expenses incurred by GTK in connection with such action in addition to any final judgment of damages.
5. CUSTOMER'S RESPONSIBILITY
The essential purpose of this Agreement is to provide Customer with use rights for Licensed Software. Customer accepts full responsibility for (1) selection of adequate and appropriate Licensed Software to satisfy Customer's business needs and achieve Customer's intended results; (2) use, set-up, or installation of the Licensed Software; (3) all results obtained from the Licensed Software; and (4) selection, use of, and results obtained from any other software, programming equipment, or services used with the Licensed Software.
6. LIMITED WARRANTIES
GTK warranties that (a) GTK has title to the Licensed Software and/or the right to grant Customer the rights granted hereunder; (b) the Licensed Software provided hereunder is GTK's most current version thereof; (c) the copies of the Licensed Software provided hereunder are accurate reproductions of the originals from which they were made; and (d) the Licensed Software does not infringe any current United States patents or copyrights or any other right of any third parties.
7. INFRINGEMENT
GTK will defend Customer against a claim that Licensed Software furnished and used within the scope of the license granted hereunder infringes an existing U.S. patent, copyright, trade secret, or other property right, and GTK will pay resulting costs, damages, and attorney's fees finally awarded subject to the limitation of liability set forth in the paragraph entitled "Limitation of Remedy", provided that:
(a) Customer promptly notifies GTK in writing of the claim.
(b) GTK has sole control of the defense and all related settlement negotiations. However, if the costs and damages attributable to a claim of infringement of a U.S. patent or copyright may exceed such limitation of liability, Customer may elect to defend against the claim provided that GTK may fully participate in the defense and/or agrees to any settlement to such claim.
(c) If such claim has occurred, or in GTK's opinion is likely to occur, Customer agrees to permit GTK at its option and expense either to procure for Customer the right to continue using the Licensed Software or to replace or modify the same so that they become non-infringing. If neither of the foregoing alternatives is reasonably available, Customer shall, on one month's written notice from GTK, return the original and all copies of the Licensed Software.
(d) GTK shall have no obligation to defend Customer or to pay costs, damages, or attorney's fees for any claim based upon (1) use of other than a current unaltered release of the Licensed Software or (2) the combination, operation, or use of any Licensed Software furnished hereunder with any other software or data if such infringement would have been avoided by the combination, operation or use of the Licensed Software with other Software or data.
The foregoing states the entire obligation of GTK with respect to infringement of patents or copyrights.
8. LIMITATION OF REMEDY
GTK's AND PTI's ENTIRE LIABILITY AND CUSTOMER'S EXCLUSIVE REMEDY FOR DAMAGES DUE TO PERFORMANCE OR NONPERFORMANCE OF ANY LICENSED SOFTWARE, ACTIONS BY GTK, PTI, OR ANY OTHER CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, SHALL BE LIMITED TO THE AMOUNT PAID TO GTK OR PTI.
NEITHER GTK NOR PTI IS AN INSURER WITH REGARD TO PERFORMANCE OF THE LICENSED SOFTWARE. THE TERMS OF THIS LICENSE AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THE LIMITED WARRANTIES, AND THE LIMITATION OF LIABILITY AND REMEDY, ARE A REFLECTION OF THE RISKS ASSUMED BY THE PARTIES. IN ORDER TO OBTAIN THE LICENSED SOFTWARE FROM GTK OR PTI, CUSTOMER AGREES TO ASSUME THE RISKS FOR (1) ALL LIABILITIES DISCLAIMED BY GTK AND PTI ON THE FACE HEREOF; AND (2) ALL ACTUAL OR ALLEGED DAMAGES IN EXCESS OF THE AMOUNT OF THE LIMITED REMEDY PROVIDED HEREUNDER. THE ESSENTIAL PURPOSE OF THE LIMITED REMEDY PROVIDED CUSTOMER HEREUNDER IS TO ALLOCATE THE RISKS AS PROVIDED ABOVE.
9. CUSTOMER'S INDEMNITIES
Customer shall indemnify, defend and hold GTK and PTI harmless from and against all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries, and deficiencies, including interest, penalties, and reasonable attorney's fees, that arise out of or result from (1) any breach of this Agreement by Customer; (2) failure of Customer to perform or satisfy any of its obligations hereunder; or (3) any use of the Licensed Software furnished hereunder not adhering to the terms of this agreement.
10. GTK's INDEMNITIES
GTK shall indemnify, defend, and hold Customer harmless from and against any and all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries and deficiencies, including interest, penalties, and reasonable attorney's fees, that Customer shall incur or suffer that arise, result from, or relate to any breach of this Agreement by GTK or PTI or any failure of GTK or PTI to perform or satisfy any of their obligations under this Agreement.
11. GENERAL
(a) No action arising out of any claimed breach of this Agreement or transactions under this Agreement may be brought by Customer more than two years after the cause of such action has arisen.
(b) This Agreement is not assignable. None of the licenses granted hereunder nor any of the Licensed Software may be sublicensed, assigned, sold, hypothecated, or transferred by Customer without the prior written consent of GTK. Any attempt to sublicense, assign, or transfer any of the rights, duties, or obligations under this Agreement is void.
(c) Customer acknowledges that the Licensed Software and other proprietary information of GTK are unique and that in the event of any breach of this Agreement by Customer, GTK may not have an adequate remedy at law and shall be entitled to enforce its rights hereunder by any action for damages and/or injunctive or other equitable relief without the necessity of proving actual damage.
(d) This Agreement shall be understood and interpreted according to law of the State of Texas applicable to contracts entered into and performed entirely within the State of Texas.
(e) This Agreement shall be treated as though it were executed in the County of Travis, State of Texas, and was to have been performed in the County of Travis, State of Texas. Any action relating to this Agreement shall be instituted and prosecuted in a court located in Travis County, Texas. Customer specifically consents to extraterritorial service of process.
(f) Except as prohibited elsewhere in this Agreement, this Agreement shall be binding upon and inure to the benefit of the personal and legal representatives, successors, and assigns of the parties hereto and also upon the heirs, executors, and administrators of the individual persons executing this Agreement.
(g) All notices, demands, consents, or requests that may be or are required to be given by any party to another party shall be in writing. All notices, demands, consents, or requests given by the parties hereto shall be sent by United States certified mail, postage prepaid, addressed to the respective parties. Notices, demands, consents, or requests served in the manner hereinabove described shall be deemed sufficiently served or given at the time of the mailing thereof.
(h) The various rights, options, elections, powers, and remedies of a party or parties to this Agreement shall be construed as cumulative and no one of them exclusive of any others or of any other legal or equitable remedy that said party or parties might otherwise have in the event of breach or default in the terms hereof. The exercise of one right or remedy by a party or parties shall not in any way impair its rights to any other right or remedy until all obligations imposed on a party or parties have been fully performed.
(i) No waiver by Customer, GTK, or PTI of any breach, provision, or default by the other shall be deemed a waiver of any other breach, provision, or default.
(j) The parties hereto, and each of them, agree that the terms of this Agreement shall be given a neutral interpretation and any ambiguity or uncertainty herein should not be construed against any party hereto.
(k) In the event that any of the provisions, or portions thereof, of this Agreement are held to be unenforceable or invalid by any court or competent jurisdiction, the validity and enforceability of the remaining provisions or portions of this Agreement shall not be affected thereby.
(I) This Agreement may be modified or amended only by a written instrument signed by a duly authorized representative of GTK and Customer.
GEOSTRUCTURAL TOOL KIT, INC., 12885 Research Blvd., 209A Austin, Texas("GTK"), GRANTS THE CUSTOMER PERSONAL, NONEXCLUSIVE, NONTRANSFERABLE LICENSE TO USE THIS LICENSED SOFTWARE IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT; LICENSED SOFTWARE IS SUPPLIED TO CUSTOMER EITHER BY GTK DIRECTLY OR THROUGH AN AUTHORIZED GTK DISTRIBUTOR.
WHILE GTK HAS TAKEN EVERY PRECAUTION TO ASSURE THE CORRECTNESS OF THE ANALYTICAL SOLUTION AND DESIGN TECHNIQUES USED IN THIS SOFTWARE, IT CANNOT GUARANTEE THE PERFORMANCE OF THE SOFTWARE, NOR CAN IT BEAR ANY RESPONSIBILITY FOR DEFECTS OR FAILURES IN STRUCTURES IN CONNECTION WITH WHICH THIS SOFTWARE IS USED. POST TENSIONING INSTITUTE LOCATED IN PHOENIX, ARIZONA ("PTI") HAS NOT PARTICIPATED IN THE DESIGN OR DEVELOPMENT OF THIS SOFTWARE AND NEITHER GUARANTEES THE PERFORMANCE OF THE SOFTWARE NOR BEARS ANY RESPONSIBILITY FOR DEFECTS OR FAILURES IN STRUCTURES IN CONNECTION WITH WHICH THIS SOFTWARE IS USED.
GTK AND PTI EXPRESSLY DISCLAIM ANY WARRANTY (1) THAT THE FUNCTIONS CONTAINED IN THE LICENSED SOFTWARE WILL MEET THE REQUIREMENTS OF CUSTOMER OR OPERATE IN COMBINATIONS WHICH MAY BE SELECTED FOR USE BY CUSTOMER; (2) THAT OPERATION OF THE SOFTWARE WILL BE FREE OF ALL "BUGS" OR PROGRAM ERRORS; OR (3) THAT THE LICENSED SOFTWARE CONFORMS TO ANY PERFORMANCE SPECIFICATIONS.
THE WARRANTIES IN SECTION 6 HEREOF ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
IN NO EVENT SHALL GTK OR PTI BE LIABLE FOR (A) LOSS OF PROFITS, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR OTHER DAMAGES, EVEN IF GTK OR PTI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (B) ANY CLAIM AGAINST CUSTOMER BY ANY THIRD PARTY EXCEPT AS PROVIDED IN SECTION 7 ENTITLED "INFRINGEMENT"; (C) ANY DAMAGES CAUSED BY CUSTOMER'S FAILURE TO PERFORM CUSTOMER'S RESPONSIBILITIES UNDER THIS AGREEMENT; OR (D) ANY DAMAGES CAUSED BY (1) DELAY IN DELIVERY OF LICENSED SOFTWARE UNDER THIS AGREEMENT; (2) PERFORMANCE OR NONPERFORMANCE OF LICENSED SOFTWARE; (3) RESULTS FROM USE OF LICENSED SOFTWARE, INCLUDING, WITHOUT LIMITATION, MISTAKES, ERRORS, INACCURACIES, FAILURES, OR CUSTOMER'S INABILITY TO PROVIDE SERVICES TO THIRD PARTIES THROUGH USE OF LICENSED SOFTWARE; (4) CUSTOMER'S FAILURE TO PERFORM CUSTOMER'S RESPONSIBILITIES; (5) GTK's NOT PROVIDING UPDATES OF ANY OF THE LICENSED SOFTWARE; (6) LABOR, EXPENSE, OR MATERIALS NECESSARY TO REPAIR DAMAGE TO LICENSED SOFTWARE CAUSED BY (1) ACCIDENT; (2) NEGLIGENCE OR ABUSE BY CUSTOMER; (3) ACTS OF THIRD PERSONS INCLUDING, BUT NOT LIMITED TO, INSTALLATION, REPAIR, MAINTENANCE, OR OTHER CORRECTIVE WORK RELATED TO ANY EQUIPMENT BEING USED; (4) CAUSES EXTERNAL TO LICENSED SOFTWARE SUCH AS POWER FLUCTUATION AND FAILURES; OR (5) FLOODS, WINDSTORMS, OR OTHER ACTS OF GOD. MOREOVER, IN NO EVENT SHALL GTK BE LIABLE FOR WARRANTIES, GUARANTEES, REPRESENTATIONS, OR ANY OTHER UNDERSTANDINGS BETWEEN CUSTOMER AND PTI RELATING TO THE LICENSED SOFTWARE.
THIS AGREEMENT CONSTITUTES THE ENTIRE AND EXCLUSIVE AGREEMENT, UNDERSTANDING, AND REPRESENTATIONS, EXPRESS OR IMPLIED, BETWEEN CUSTOMER AND GTK AND PTI WITH THE RESPECT TO THE LICENSED SOFTWARE AND SERVICES TO BE FURNISHED HEREUNDER; IT IS A FINAL EXPRESSION OF THAT AGREEMENT AND UNDERSTANDING; IT SUPERSEDES ALL PRIOR COMMUNICATIONS BETWEEN THE PARTIES (INCLUDING ALL ORAL AND WRITTEN PROPOSALS). ORAL STATEMENTS MADE BY GTK OR PTI REPRESENTATIVES ABOUT THE LICENSED SOFTWARE DO NOT CONSTITUTE WARRANTIES, SHALL NOT BE RELIED ON BY CUSTOMER, AND ARE NOT PART OF THIS LICENSE AGREEMENT.
1. LICENSE RESTRICTIONS
Except as expressly provided in this Agreement or as otherwise authorized in writing by GTK, Customer has no right to (1) use, print, copy, display, reverse assemble, reverse engineer, or decompile the Licensed Software in whole or in part; (2) disclose, publish, release, sublicense, or transfer to another person any Licensed Software; (3) reproduce the Licensed Software for the use or benefit of anyone other than Customer; or (4) modify any Licensed Software. All rights to the Licensed Software not expressly granted to Customer hereunder are retained by GTK. All copyrights and other proprietary rights except as expressed elsewhere in the Licensed Software and legal title thereto shall remain in GTK. Customer may have installed Licensed Software at only one workstation at customer's site at any given time. Customer may not transmit the software electronically to any other workstation, computer, or terminal device whether via a local area network, telecommunications transmission, or other means without prior written permission by GTK.
As an alternate to Section 1, you may install a copy of the Software on a network storage device, such as a server computer, and allow one access device, such as a personal computer, to access and use that licensed copy of the Software over a private network. You must obtain a license to the Software for each additional device that accesses and uses the Software installed on the network storage device.
You may use remote access technologies, such as Remote Desktop, PC Anywhere, Terminal Server, to access and use the licensed copy of the Software, provided that only the primary user of the device hosting the remote session accesses and uses the Software with a remote access device. These remote access rights do not permit you to use the Software on both the device hosting the remote session and the access device at the same time.
2. TERM AND TERMINATION
This Agreement shall be in effect from the date Customer accesses software until terminated by Customer, by PTI on behalf of Customer or GTK, or by GTK as set forth herein. This Agreement may be terminated by GTK without cause upon 30 days written notice, or immediately upon notice to Customer if Customer breaches this Agreement or fails to comply with any of its terms or conditions.
3. BACKUP AND REPLACEMENT COPIES
Customer shall be permitted to make one back-up copy, provided GTK's copyright notice and Software License Agreement is included in the copy.
4. PROTECTION AND SECURITY OF LICENSED SOFTWARE
(a) Customer will not provide or otherwise make available any Licensed Software in any form to any person other than employees of Customer with the need to know, without GTK's written permission.
(b) All Licensed Software in Customer's possession including, without limitation, translations, compilations, back-up, and partial copies is the property of GTK. Upon expiration or termination of this Agreement, for any reason, Customer shall immediately destroy any Licensed Software, including all media and reference manuals, and destroy any Licensed Software that has been copied onto hard disks. Upon request, Customer shall certify its compliance in writing with the foregoing to GTK.
(c) Customer shall take appropriate action, by instruction, agreement, or otherwise, with any persons permitted access to the Licensed Software, to enable Customer to satisfy its obligations under this Agreement with respect to use, copying, protection, and security of Licensed Software.
(d) If GTK prevails in an action against Customer for breach of the provisions of this paragraph, Customer shall pay the reasonable attorney's fees, costs, and expenses incurred by GTK in connection with such action in addition to any final judgment of damages.
5. CUSTOMER'S RESPONSIBILITY
The essential purpose of this Agreement is to provide Customer with use rights for Licensed Software. Customer accepts full responsibility for (1) selection of adequate and appropriate Licensed Software to satisfy Customer's business needs and achieve Customer's intended results; (2) use, set-up, or installation of the Licensed Software; (3) all results obtained from the Licensed Software; and (4) selection, use of, and results obtained from any other software, programming equipment, or services used with the Licensed Software.
6. LIMITED WARRANTIES
GTK warranties that (a) GTK has title to the Licensed Software and/or the right to grant Customer the rights granted hereunder; (b) the Licensed Software provided hereunder is GTK's most current version thereof; (c) the copies of the Licensed Software provided hereunder are accurate reproductions of the originals from which they were made; and (d) the Licensed Software does not infringe any current United States patents or copyrights or any other right of any third parties.
7. INFRINGEMENT
GTK will defend Customer against a claim that Licensed Software furnished and used within the scope of the license granted hereunder infringes an existing U.S. patent, copyright, trade secret, or other property right, and GTK will pay resulting costs, damages, and attorney's fees finally awarded subject to the limitation of liability set forth in the paragraph entitled "Limitation of Remedy", provided that:
(a) Customer promptly notifies GTK in writing of the claim.
(b) GTK has sole control of the defense and all related settlement negotiations. However, if the costs and damages attributable to a claim of infringement of a U.S. patent or copyright may exceed such limitation of liability, Customer may elect to defend against the claim provided that GTK may fully participate in the defense and/or agrees to any settlement to such claim.
(c) If such claim has occurred, or in GTK's opinion is likely to occur, Customer agrees to permit GTK at its option and expense either to procure for Customer the right to continue using the Licensed Software or to replace or modify the same so that they become non-infringing. If neither of the foregoing alternatives is reasonably available, Customer shall, on one month's written notice from GTK, return the original and all copies of the Licensed Software.
(d) GTK shall have no obligation to defend Customer or to pay costs, damages, or attorney's fees for any claim based upon (1) use of other than a current unaltered release of the Licensed Software or (2) the combination, operation, or use of any Licensed Software furnished hereunder with any other software or data if such infringement would have been avoided by the combination, operation or use of the Licensed Software with other Software or data.
The foregoing states the entire obligation of GTK with respect to infringement of patents or copyrights.
8. LIMITATION OF REMEDY
GTK's AND PTI's ENTIRE LIABILITY AND CUSTOMER'S EXCLUSIVE REMEDY FOR DAMAGES DUE TO PERFORMANCE OR NONPERFORMANCE OF ANY LICENSED SOFTWARE, ACTIONS BY GTK, PTI, OR ANY OTHER CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, SHALL BE LIMITED TO THE AMOUNT PAID TO GTK OR PTI.
NEITHER GTK NOR PTI IS AN INSURER WITH REGARD TO PERFORMANCE OF THE LICENSED SOFTWARE. THE TERMS OF THIS LICENSE AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THE LIMITED WARRANTIES, AND THE LIMITATION OF LIABILITY AND REMEDY, ARE A REFLECTION OF THE RISKS ASSUMED BY THE PARTIES. IN ORDER TO OBTAIN THE LICENSED SOFTWARE FROM GTK OR PTI, CUSTOMER AGREES TO ASSUME THE RISKS FOR (1) ALL LIABILITIES DISCLAIMED BY GTK AND PTI ON THE FACE HEREOF; AND (2) ALL ACTUAL OR ALLEGED DAMAGES IN EXCESS OF THE AMOUNT OF THE LIMITED REMEDY PROVIDED HEREUNDER. THE ESSENTIAL PURPOSE OF THE LIMITED REMEDY PROVIDED CUSTOMER HEREUNDER IS TO ALLOCATE THE RISKS AS PROVIDED ABOVE.
9. CUSTOMER'S INDEMNITIES
Customer shall indemnify, defend and hold GTK and PTI harmless from and against all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries, and deficiencies, including interest, penalties, and reasonable attorney's fees, that arise out of or result from (1) any breach of this Agreement by Customer; (2) failure of Customer to perform or satisfy any of its obligations hereunder; or (3) any use of the Licensed Software furnished hereunder not adhering to the terms of this agreement.
10. GTK's INDEMNITIES
GTK shall indemnify, defend, and hold Customer harmless from and against any and all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries and deficiencies, including interest, penalties, and reasonable attorney's fees, that Customer shall incur or suffer that arise, result from, or relate to any breach of this Agreement by GTK or PTI or any failure of GTK or PTI to perform or satisfy any of their obligations under this Agreement.
11. GENERAL
(a) No action arising out of any claimed breach of this Agreement or transactions under this Agreement may be brought by Customer more than two years after the cause of such action has arisen.
(b) This Agreement is not assignable. None of the licenses granted hereunder nor any of the Licensed Software may be sublicensed, assigned, sold, hypothecated, or transferred by Customer without the prior written consent of GTK. Any attempt to sublicense, assign, or transfer any of the rights, duties, or obligations under this Agreement is void.
(c) Customer acknowledges that the Licensed Software and other proprietary information of GTK are unique and that in the event of any breach of this Agreement by Customer, GTK may not have an adequate remedy at law and shall be entitled to enforce its rights hereunder by any action for damages and/or injunctive or other equitable relief without the necessity of proving actual damage.
(d) This Agreement shall be understood and interpreted according to law of the State of Texas applicable to contracts entered into and performed entirely within the State of Texas.
(e) This Agreement shall be treated as though it were executed in the County of Travis, State of Texas, and was to have been performed in the County of Travis, State of Texas. Any action relating to this Agreement shall be instituted and prosecuted in a court located in Travis County, Texas. Customer specifically consents to extraterritorial service of process.
(f) Except as prohibited elsewhere in this Agreement, this Agreement shall be binding upon and inure to the benefit of the personal and legal representatives, successors, and assigns of the parties hereto and also upon the heirs, executors, and administrators of the individual persons executing this Agreement.
(g) All notices, demands, consents, or requests that may be or are required to be given by any party to another party shall be in writing. All notices, demands, consents, or requests given by the parties hereto shall be sent by United States certified mail, postage prepaid, addressed to the respective parties. Notices, demands, consents, or requests served in the manner hereinabove described shall be deemed sufficiently served or given at the time of the mailing thereof.
(h) The various rights, options, elections, powers, and remedies of a party or parties to this Agreement shall be construed as cumulative and no one of them exclusive of any others or of any other legal or equitable remedy that said party or parties might otherwise have in the event of breach or default in the terms hereof. The exercise of one right or remedy by a party or parties shall not in any way impair its rights to any other right or remedy until all obligations imposed on a party or parties have been fully performed.
(i) No waiver by Customer, GTK, or PTI of any breach, provision, or default by the other shall be deemed a waiver of any other breach, provision, or default.
(j) The parties hereto, and each of them, agree that the terms of this Agreement shall be given a neutral interpretation and any ambiguity or uncertainty herein should not be construed against any party hereto.
(k) In the event that any of the provisions, or portions thereof, of this Agreement are held to be unenforceable or invalid by any court or competent jurisdiction, the validity and enforceability of the remaining provisions or portions of this Agreement shall not be affected thereby.
(I) This Agreement may be modified or amended only by a written instrument signed by a duly authorized representative of GTK and Customer.
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