This Software End User License Agreement (“Agreement”) is between you (both the individual installing the Program and any single legal entity for which the individual is acting) (“You” or “Your”) and ALPHATHETA CORPORATION (“AlphaTheta”).
TAKING ANY STEP TO SET UP OR INSTALL THE PROGRAM MEANS THAT YOU ACCEPT ALL OF THE TERMS OF THIS LICENSE AGREEMENT. PERMISSION TO DOWNLOAD AND/OR USE THE PROGRAM IS EXPRESSLY CONDITIONED ON YOUR FOLLOWING THESE TERMS. WRITTEN OR ELECTRONIC APPROVAL IS NOT REQUIRED TO MAKE THIS AGREEMENT VALID AND ENFORCEABLE. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU ARE NOT AUTHORIZED TO USE THE PROGRAM AND MUST STOP INSTALLING IT OR UNINSTALL IT, AS APPLICABLE.
1.1 “Documentation” means written documentation, specifications and help content made generally available by AlphaTheta to aid in installing and using the Program.
1.2 “Program” means all or any part of AlphaTheta’s software licensed to You by AlphaTheta under this Agreement.
2.1 Limited License. Subject to this Agreement’s restrictions, AlphaTheta grants to You a limited, non-exclusive, non-transferable, license (without the right to sublicense):
2.2 Restrictions. You will not copy or use the Program or Documentation except as expressly permitted by this Agreement. You will not transfer, sublicense, rent, lease or lend the Program, or use it for third-party training, commercial time-sharing or service bureau use. You will not Yourself or through any third party modify, reverse engineer, disassemble or decompile the Program, except to the extent expressly permitted by applicable law, and then only after You have notified AlphaTheta in writing of Your intended activities.
2.3 Ownership. AlphaTheta or its licensor retains all right, title and interest in and to all patent, copyright, trademark, trade secret and other intellectual property rights in the Program and Documentation, and any derivative works thereof. You do not acquire any other rights, express or implied, beyond the limited license set forth in this Agreement.
2.4 No Support. AlphaTheta has no obligation to provide support, maintenance, upgrades, modifications or new releases for the Program or Documentation under this Agreement.
THE PROGRAM AND DOCUMENTATION ARE PROVIDED “AS IS” WITHOUT ANY REPRESENTATIONS OR WARRANTIES, AND YOU AGREE TO USE THEM AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, ALPHATHETA EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE PROGRAM AND DOCUMENTATION, WHETHER EXPRESS, IMPLIED, STATUTORY, OR ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY, TITLE OR NON-INFRINGEMENT.
You may not use or otherwise export or re-export the Program except as authorized by United States law and the laws of the jurisdiction in which the Program was obtained. In particular, but without limitation, the Program may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department's Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Program, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Program for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.
The Program and Documentations are “commercial computer software” and “commercial computer software documentation” as those terms are defined in 48 C.F.R. §252.227-7014 (a) (1) (2007) and 252.227-7014 (a) (5) (2007). The U.S. Government’s rights with respect to the Program and Documentations are limited by this license pursuant to 48 C.F.R. § 12.212 (Computer software) (1995) and 48 C.F.R. §12.211 (Technical data) (1995) and/or 48 C.F.R. §227.7202-3, as applicable. As such, the Program and Documentations are being licensed to the U.S. Government end users: (a) only as “commercial items” as that term is defined in 48 C.F.R. §2.101 generally and as incorporated in DFAR 212.102; and (b) with only those limited rights as are granted to the public pursuant to this license. Under no circumstance will the U.S. Government or its end users be granted any greater rights than we grant to other users, as provided for in this license. Manufacturer is AlphaTheta Corporation, 6F, Yokohama i-Mark Place 4-4-5 Minatomirai, Nishi-ku, Yokohama, Kanagawa 220-0012 Japan.
You agree that any breach of this Agreement’s restrictions would cause AlphaTheta irreparable harm for which money damages alone would be inadequate. In addition to damages and any other remedies to which AlphaTheta may be entitled, You agree that AlphaTheta may seek injunctive relief to prevent the actual, threatened or continued breach of this Agreement.
AlphaTheta may terminate this Agreement at any time upon Your breach of any provision. If this Agreement is terminated, You will stop using the Program, permanently delete it from your computer or mobile device where it resides, and destroy all copies of the Program and Documentation in Your possession, confirming to AlphaTheta in writing that You have done so. Sections 2.2, 2.3, 2.4, 3, 4, 5, 6, 7 and 8 will continue in effect after this Agreement’s termination.
8.1 Limitation of Liability. In no event will AlphaTheta or its subsidiaries be liable in connection with this Agreement or its subject matter, under any theory of liability, for any indirect, incidental, special, consequential or punitive damages, or damages for lost profits, revenue, business, savings, data, use, or cost of substitute procurement, even if advised of the possibility of such damages or if such damages are foreseeable. In no event will AlphaTheta’s liability for all damages exceed the amounts actually paid by You to AlphaTheta or its subsidiaries for the Program. The parties acknowledge that the liability limits and risk allocation in this Agreement are reflected in the Program price and are essential elements of the bargain between the parties, without which AlphaTheta would not have provided the Program or entered into this Agreement.
8.2 The limitations or exclusions of warranties and liability contained in this Agreement do not affect or prejudice Your statutory rights as consumer and shall apply to You only to the extent such limitations or exclusions are permitted under the laws of the jurisdiction where You are located.
8.3 Severability and Waiver. If any provision of this Agreement is held to be illegal, invalid or otherwise unenforceable, that provision will be enforced to the extent possible or, if incapable of enforcement, deemed to be severed and deleted from this Agreement, and the remainder will continue in full force and effect. The waiver by either party of any default or breach of this Agreement will not waive any other or subsequent default or breach.
8.4 No Assignment. You may not assign, sell, transfer, delegate or otherwise dispose of this Agreement or any rights or obligations under it, whether voluntarily or involuntarily, by operation of law or otherwise, without AlphaTheta’s prior written consent. Any purported assignment, transfer or delegation by You will be null and void. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
8.5 Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior or contemporaneous agreements or representations, whether written or oral, concerning its subject matter. This Agreement may not be modified or amended without AlphaTheta’s prior and express written consent, and no other act, document, usage or custom will be deemed to amend or modify this Agreement.
8.6 You agree that this Agreement shall be governed and construed by and under the laws of Japan.