CST PUL License Agreement

CINCOM SYSTEMS, INC. SOFTWARE LICENSE AGREEMENT FOR CINCOM SMALLTALK PERSONAL USE

BY DOWNLOADING, AND/OR OPENING THE PACKAGE/FILE CONTAINING THE PRODUCT, AND/OR INSTALLING, AND/OR ACCESSING AND/OR USING THE PRODUCT ON A COMPUTER AND/OR RETAINING OF ANY PART OF THE PRODUCT (“ACCESSING”), YOU ARE ACCEPTING AND AGREEING TO THE TERMS OF THIS AGREEMENT (“ACCEPTED” OR “ACCEPTANCE”).

THIS IS AN AGREEMENT BETWEEN CINCOM SYSTEMS, INC. (REFERRED TO HEREIN AS “CINCOM“) AND YOU THE INDIVIDUAL ACCESSING THE PRODUCT (“LICENSEE”). THE PRODUCT IS COPYRIGHTED AND ITS USE IS LICENSED (NOT SOLD).

IF YOU ARE UNDER THE AGE OF 18, THEN YOU CANNOT LICENSE THE PRODUCT UNDER THIS AGREEMENT, AND YOU SHOULD NOT DOWNLOAD THE PRODUCT. IF YOU HAVE ALREADY “ACCEPTED” THIS AGREEMENT (AS DEFINED ABOVE) THIS AGREEMENT IMMEDIATELY TERMINATES AND YOU MUST COMPLY WITH CLAUSE 5. TERM AND TERMINATION IN THIS AGREEMENT.

YOU AGREE TO ABIDE BY ALL EXPORT REGULATIONS AND RESTRICTIONS CONTAINED IN SECTION 19 OF THIS AGREEMENT. IF YOU CANNOT, AND YOU HAVE ALREADY “ACCEPTED” THIS AGREEMENT (AS DEFINED ABOVE) THEN THIS AGREEMENT IMMEDIATELY TERMINATES AND YOU MUST COMPLY WITH CLAUSE 5. TERM AND TERMINATION IN THIS AGREEMENT.

IF YOU HAVE AN EXISTING COMMERCIAL LICENSE FOR THE “PRODUCT” YOU CANNOT LICENSE THIS PRODUCT UNDER THIS AGREEMENT.

THIS LICENSE SUPERSEDES ANY AND ALL PRIOR CINCOM SMALLTALK PERSONAL USE LICENSES AND CINCOM SMALLTALK NON-COMMERCIAL LICENSES BETWEEN CINCOM AND LICENSEE.

IF YOU ARE NOT WILLING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT (“REJECTION”), YOU SHOULD NOT DOWNLOAD THE PRODUCT. IF YOU HAVE ALREADY “ACCEPTED” THIS AGREEMENT (AS DEFINED ABOVE), YOU MUST TERMINATE THIS AGREEMENT AS PER CLAUSE 5. TERM AND TERMINATION.

THIS LICENSE AGREEMENT REPRESENTS THE ENTIRE AGREEMENT CONCERNING THE PRODUCT BETWEEN YOU AND CINCOM, AND THIS AGREEMENT SUPERSEDES ANY PRIOR PROPOSALS, REPRESENTATIONS, LICENSES OR UNDERSTANDING BETWEEN THE PARTIES PERTAINING TO THE PRODUCT GOVERNED UNDER THIS LICENSE AGREEMENT. FOR THE PURPOSES OF CLARITY ALL LICENSE AGREEMENTS OF EARLIER RELEASES OF THE PRODUCT, AND OF CINCOM SMALLTALK NON-COMMERCIAL, ARE CONSIDERED PRIOR LICENSES. NO LETTER, PURCHASE ORDER, OR OTHER NOTICE WILL ESTABLISH A LICENSE TO USE THE PRODUCT UNLESS OTHERWISE AGREED TO BY CINCOM IN WRITING. THIS AGREEMENT MAY ONLY BE MODIFIED IN WRITING BY THE LEGAL DEPARTMENT OF CINCOM.

1. License Grant. Cincom hereby grants to Licensee, and Licensee does hereby accept, a nonexclusive, revocable, non-perpetual, and nontransferable license to use the Product subject to the terms and conditions contained in this Agreement.

1.1. The Product may be used or accessed only by Licensee, and only on up to four (4) computers owned, leased or otherwise controlled by Licensee.

1.2. Licensee shall have the right to use the Product as described in this Agreement, but only to the extent required for Licensee to develop software for Licensee’s personal use.

1.3. Licensee is not permitted to use the Product (or any part of the Product) to develop a product, software program, object, documentation, system or other material that is competitive with the Product (or any part of the Product).

1.4. Licensee agrees that Licensee will not, assign, sublicense, transfer, pledge, lease, rent, distribute, allow access to or share the Product and/or Licensee’s rights under this Agreement.

1.5. Licensee agrees that Licensee’s rights under this Agreement does not cover the use of the Product for any commercial and/or revenue generating purpose or operation of any business venture, and such rights shall not pass to a successor through sale, merger or consolidation. This means that anything that Licensee creates using this license is for Licensee’s personal use and cannot be later used for commercial and/or revenue generating purposes or the operation of any business venture.

1.6. Licensee shall not decompile or otherwise reverse engineer or decode the Product or otherwise translate the Product or defeat protection methods used for preventing unauthorized uses of the Product unless this is permitted by mandatory law in which case Licensee shall notify Cincom in writing in advance.

1.7. Licensee agrees that Licensee receives no rights other than those expressly granted to Licensee in this Agreement.

1.8. Licensee may make sufficient copies of the Product for their own backup purposes. Any such copies of the Product shall include Licensor’s copyright and other proprietary notices. Except as authorized under this Clause 1. License Grant, no copies of the Product or any portions thereof may be made by Licensee.

1.9. Licensee may not remove or alter ownership, trademark and/or copyright notices embedded in or on the Product.

2. U.S. Government Restricted Rights: Cincom provides the Product with RESTRICTED RIGHTS. Use, duplication, or disclosure by the U.S. Government or any agency or instrumentality thereof is subject to restrictions set forth in subparagraphs (c) (1) and (2) of the Commercial Computer Software – Restricted Rights clause at 48 C.F.R. 52.227-19, or any successor provision, as applicable. The Contractor/Manufacturer is Cincom Systems, Inc., 55 Merchant Street, Cincinnati, Ohio 45246. No U.S. Government or any agency or instrumentality can license this Product under this Agreement.
3. Licensor’s Rights. Licensee acknowledges and agrees that the Product is a proprietary product of Cincom protected under U.S. copyright law and international treaty provisions. Licensee further acknowledges and agrees that all right, title, and interest in and to the Product, including associated intellectual property rights, are and shall remain with Licensor. This Agreement does not convey to Licensee any interest in or to the Product, but only a limited right of use revocable in accordance with the terms of this Agreement.
4. License Fees. This license is granted to Licensee for Licensee’s personal use only. No license fees are involved, unless Licensee breaches the terms and conditions of this Agreement. Upon any such breach Licensee shall pay Cincom any and all applicable damages relating to the breach, including, but not limited to the applicable license fees for the Product for Licensee’s nonconforming use, such license fees will be set to the then current license fees of the commercial product Cincom Smalltalk™ according to the usage of Licensee.
5. Term and Termination. This License Agreement is effective upon Acceptance by the Licensee and will remain in effect until terminated (“Termination”). Licensee may terminate this Agreement at any time by writing to Cincom at the address below, such Termination will not absolve Licensee of any License Fees that are due which must be paid within 30 days of Termination. Cincom shall automatically terminate this Agreement upon Licensee’s breach of any term of this Agreement and this Agreement may automatically Terminate as specified in this Agreement. Cincom may terminate this Agreement for any reason upon 120 days prior written notice to Licensee. Upon Termination, Licensee agrees to discontinue all usage and will comply in full with Clause 6. Deletion. Clause 13. Proprietary Information shall survive Termination.
6. Deletion. No later than ten days after the effective date of any Termination, Licensee shall return or destroy the Product, including all copies and versions, and shall certify in writing to Cincom that Licensee has discontinued all use of the Product, including all copies and versions, and parts thereof, and has returned or destroyed them. FAILURE TO CONFIRM TO CINCOM IN WRITING COMPLIANCE WITH THIS CLAUSE MAY RESULT IN A LICENSE FEE BEING DUE AS PER Clause 4. License Fees.
7. Limited Warranty. THE PRODUCT IS LICENSED “AS IS,” AND CINCOM DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. Limitation of Liability. Licensor’s cumulative liability to Licensee or any other party for any loss or damages resulting from any claims, demands, or actions arising out of or relating to this Agreement will not exceed the total amount paid by Licensee to Cincom.

8.1. CINCOM AND ITS LICENSORS WILL NOT BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, UNDER AN INDEMNITY OR OTHERWISE ARISING, FOR ANY:

8.1.1. INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES;

8.1.2. LOST PROFITS;

8.1.3. LOSS OF BUSINESS;

8.1.4. LOSS OF CONTRACTS;

8.1.5. LOSS OF REVENUE; AND/OR

8.1.6. LOSS OF REPUTATION,

IN ALL CASES WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL AND WHETHER FORESEEABLE OR EVEN IF CINCOM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE ABOVE LIMITATION OR EXCLUSION MAY NOT BE ALLOWED BY ALL JURISDICTIONS.

8.2. Licensee agrees that it has accepted the terms and conditions of this Agreement with full knowledge that Cincom’s liability is limited and that the prices and charges payable, if any, have been calculated accordingly. 

9. Trademarks and Copyrights. The trademarks and copyrights listed in this License Agreement, on the Product, or related documentation are trademarks and copyrights of Licensor. No right, license, or interest to such trademarks and copyrights is granted hereunder, and Licensee agrees that no such right, license, or interest shall be implied and/or asserted by Licensee with respect to such trademarks and copyrights.
10. Governing Law. This License Agreement shall be construed and governed in accordance with the laws of the State of Ohio. The parties hereby irrevocably submit to the jurisdiction of the Courts of Ohio in respect of any and all claims, actions and disputes arising out of or relating to the subject matter of this Agreement. Venue for any such claims, actions and disputes shall be the Courts in Hamilton County, Ohio.
11. Notifications. All notifications and notices to Licensee which are required to be given hereunder shall be in writing and shall be sent to the last known address of the Licensee, or such other address as the Licensee may have provided to Cincom by notice given to Cincom in accordance with the provisions of this clause. Should Licensee not have provided a valid address or other form of contact to Cincom, such as email, then Cincom shall have no obligation to provide notification to Licensee. Alternatively, Cincom, at Cincom’s sole discretion, may send any notification or notice to any other address of the recipient. Any such notification or notice may be delivered by hand or be sent by recorded post.
12. Costs of Litigation. If any proceeding or lawsuit is brought by Cincom against Licensee to enforce the terms and conditions of this Agreement, including but not limited to collecting any amounts due under this Agreement, Cincom shall be entitled to recover its costs and reasonable attorney fees.
13. Proprietary Information.

13.1. Licensee acknowledges that the Product constitutes proprietary and confidential information of Cincom or its licensors, that the protection of this information is of the highest importance, and that Cincom may employ protection methods within the Product’s code to prevent unauthorized uses of the Product.  Licensee shall keep the Product in strict confidence, shall take appropriate steps to ensure that persons authorized to have access to the Product refrain from any unauthorized reproduction or disclosure of the Product, and shall restrict access to the Product to Licensee to enable Licensee to use the Product as contemplated by this Agreement and having agreed to treat the Product in accordance with this Clause 13. Proprietary Information.

13.2. Licensee shall not transfer or otherwise disclose (i) the Product, (ii) any associated programs derived or developed from the Product, or (iii) the results of any benchmark tests run on the Product, without the prior express written approval of Cincom.  Depending on the circumstances, Cincom’s approval may be contingent upon the payment of a fee.

13.3. Licensee will not be liable for disclosure of any information of the Product if:

13.3.1.   the information is rightfully known to Licensee prior to receipt of it from Cincom without restriction on disclosure; or

13.3.2.   the information is in or comes into the public domain through no act or omission on the part of Licensee; or

13.3.3.   the information is rightfully disclosed to Licensee by a third party without restriction on disclosure; or

13.3.4.   the information is independently developed by Licensee as evidenced by Licensee to Cincom’s satisfaction; or

13.3.5.   the information is required by law to be disclosed by Licensee, provided Licensee gives Cincom (to the extent legally permissible) written notice of such requirement and a reasonable opportunity to contest the disclosure and/or obtain a protective order.

13.4. Cincom agrees that proprietary and confidential information of Licensee shall be similarly protected by Cincom and that Cincom shall be similarly obliged to Licensee.

13.5. Licensee agrees that the Product and all copies and versions of the Product provided to or made by Licensee are and shall remain the sole property of Cincom or its licensors.  Licensee shall include the Product’s proprietary notice on all copies of the Product, in whole or in part and in any form, made by Licensee.

13.6. The obligations set forth in this Clause 13. Proprietary Information and Clause 1.6(“The Clauses”) shall survive the termination of this Agreement.  Each Party acknowledges that a breach of its obligations under The Clauses will cause irreparable harm to the other Party and/or its licensors for which monetary damages would be inadequate.  Each Party will be entitled to injunctive relief for any such breaches, threatened or actual.

14. Agreement Update. This Agreement, which includes all addenda, and written amendments, supersedes all prior Personal Use License agreements granted by Cincom regarding the Product and further includes all proposals, statements, whether oral or written, arrangements and undertakings between Cincom and the Licensee, and constitutes the entire agreement between Cincom and the Licensee relating to the subject matter hereof. No addition to or modification of any provisions of this Agreement shall be binding unless made by a written instrument signed by duly authorized representative of Cincom and the Licensee.  Cincom shall not be liable to the Licensee for loss arising from, or in connection with, any representations, agreements, statements or undertakings relating to the subject matter of this Agreement made prior to the execution hereof, save those set out in the Recitals to this Agreement. Any representation, statement, term, condition or warranty not expressly contained in this Agreement shall not be enforceable by the parties.
15. Severability. If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provisions of this Agreement shall not affect the other provisions of this Agreement which shall remain in full force and effect. The parties shall substitute any invalid provision or any incompleteness of the Agreement by such provision which comes as close as possible to the economic intent of the present agreement.
16. No Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of such or any other such rights or any subsequent actions in the event of future breaches.
17. Licensee shall notify Cincom in writing, at the address specified in Clause 22. Address, as soon as it becomes aware of any actual or suspected unauthorized access, installation or use of the Product.
18. Licensee shall not use any technology of any kind, such as code libraries for development, marketing, installation support and any other activities in relation to the code developed using the Product, if their use affects, or may affect, the intellectual property or the copyrights, exploitation rights and/or license rights of Cincom and/or its licensors.

19. Export.

19.1. Licensee shall ensure that the Product, including any encryption software (and application technology) owned by Cincom (hereinafter “Controlled Assets“), are not (re-)exported, directly or indirectly, in violation of the export laws and regulations of the United States of America (“U.S.”) including the Export Administration Regulations. Diversion contrary to U.S. law is prohibited. Licensee acknowledges and agrees that the Controlled Assets may be subject to the United Nations (“UN”), U.S., United Kingdom (“UK”), European Union (“EU”) and/or other national export and import controls and sanctions laws and regulations. 

By using such Controlled Assets, Licensee represents and warrants that Licensee is not located in, or a national or resident of,any country subject to embargoes, sanctions laws and regulations under any (amended or new) sanctioned parties list of the UN, U.S., UK or EU.

20. Cincom shall have the right to audit Licensee’s facilities and records during normal business hours to verify compliance with the provisions of this Agreement.
21. The headings to clauses of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement.
22. Address. Cincom address for all communications by Licensee to Cincom is either:

22.3. by post to: Cincom Systems, Inc 55 Merchant Street Cincinnati, OH 45246

22.4. by email to:  Legal@cincom.com   Email is only valid if an email confirmation of receipt is received by Licensee and should one not be received within 48 hours then Licensee should write to the address at Clause 22.3. above.