MISYS MANUFACTURING END USER LICENSE AGREEMENT
IMPORTANT--READ CAREFULLY: This End-User License Agreement ("EULA") is a legal agreement between You ("You" and "Your" includes a person and/or an individual entity) and Manufacturing Information Systems, Inc., its subsidiaries, affiliates and licensees (collectively "MISYS") concerning specified software products(s) (hereinafter referred to as "SOFTWARE PRODUCT" or "SOFTWARE"). The SOFTWARE PRODUCT includes computer software with object code component parts, all other component parts, the associated media, any printed materials, any updates, and any "online" or electronic documentation, as applicable. By accessing, installing, copying or otherwise using the SOFTWARE PRODUCT, You agree to be bound by the terms of this EULA.
1. a. License Grant. Subject to the payment of all applicable license fees, and the terms and conditions of this EULA, MISYS hereby grants to You a limited, non-sub licensable, non-exclusive, non-transferable right to use one copy of the specified version of the Software, solely for Your individual use.
1. b. License Activation. Exercise of the license granted herein requires that You pay a periodic license fee which is related to the specific Software modules selected.
1. c. License Termination. Your license hereunder will terminate immediately without notice from MISYS if You fail to pay the applicable license fees, or You fail to comply with any provision of the EULA. If Your license is terminated, the Software will cease to function. License Termination will not operate to relieve You of liability to MISYS for any violation of this EULA.
1. d. Single Database. Your license of this Software authorizes You to create and maintain one Database for the licensed company regardless of where that Database is physically located. You may backup the Database for archival purposes only.
1. e. Additional Databases. At the sole discretion of MISYS, you may be granted a license to create one or more additional Databases provided that you have installed and are using this Software in compliance with this EULA.
2. Term. This EULA is effective unless and until You or MISYS terminates the EULA earlier, in accordance with the terms set forth herein.
3. Updates. MISYS, at its sole discretion, has the right to modify the Software at any time. Software modifications and updates will be made available to all currently licensed users without additional charge.
4. a. Ownership Rights. The Software is protected by United States patent, copyright and other intellectual property laws, and international treaty provisions. All right, title and interest in and to all copyrights, patents, trade secret rights, trademarks and other intellectual property rights in and to the Software is owned by MISYS. You acknowledge that Your possession, installation, or use of the Software does not transfer to You any ownership, title, or registrable interest of any kind to the intellectual property in the Software, and that You will not acquire any rights to the Software.
4. b. Customer Feedback. You grant MISys a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into MISys Products/Services, any suggestions, enhancement requests, recommendations or other feedback provided by you relating to the operation of the MISys Products/Services.
5. Restrictions. You may not rent, lease, sub license, or loan the Software. You may only use the Software on hardware that is either under your exclusive control or utilizes cloud infrastructure available to you. You may not provide any access to the Software Product with the intention to process the data of another entity. You may not transfer any or all of the rights granted to You under this EULA. You may not reverse engineer, decompile, or disassemble the Software, or create derivative works based upon, the Software in whole or in part, except to the
extent the foregoing restriction is expressly prohibited by applicable law. You may not duplicate or copy any portion of the Software, unless otherwise set forth herein. You may not remove any proprietary notices or labels on the Software. All rights not expressly set forth hereunder are reserved by MISYS. MISYS reserves the right to periodically conduct audits upon advance written notice to verify compliance with the terms of this EULA.
6. a. Warranty Disclaimer. To the maximum extent permitted by applicable law, and except for the limited warranty set forth herein, THE SOFTWARE IS PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING PROVISIONS, YOU ASSUME SOLE RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, AND SOLE RESPONSIBILITY FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SOFTWARE. WITHOUT LIMITING THE FOREGOING PROVISIONS, MISYS MAKES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE, VIRUS FREE, OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SOFTWARE WILL SATISFY YOUR SPECIFIC REQUIREMENTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MISYS DISCLAIMS ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY (IF ANY) IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF LACK OF VIRUSES, OF LACK OF ACCURACY OR COMPLETENESS OF RESPONSES, OF RESULTS, AND LACK OF NEGLIGENCE OR LACK OF WORKMANLIKE EFFORT, ALL WITH REGARD TO THE SOFTWARE PRODUCT. THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION, OR NON-INFRINGEMENT WITH REGARD TO THE SOFTWARE PRODUCT. THE ENTIRE RISK OF THE QUALITY OF OR ARISING OUT OF USE OR PERFORMANCE OF THE SOFTWARE, IF ANY, REMAINS SOLELY WITH YOU. SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THE FOREGOING PROVISIONS SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
6. b. Indemnification. You agree to indemnify and hold harmless MISYS and its directors, officers, employees, affiliates, sub licensees, and agents from and against all claims, defense costs (including reasonable expert and attorneys' fees), judgments and other expenses arising out of or on account of any negligent act, omission, or willful misconduct by You or on Your behalf in the performance of this EULA.
6. c. Data. You acknowledge that any data conversion is subject to the likelihood of human and machine errors, omissions, delays, and losses, including inadvertent loss of data or damage to media that may result in loss or damage to You and/or Your property. MISYS shall not be liable for any such errors, omissions, delays, or losses, unless directly caused by data conversion for the Software performed by MISYS with gross negligence or willful misconduct. You are responsible for adopting reasonable measures to limit the impact of such problems, including backing up data, adopting procedures to ensure the accuracy of input data, examining and confirming results prior to use, adopting procedures to identify and correct errors and omissions, replacing lost or damaged media, and reconstructing data.
6. d. Authorized Resellers. Any authorized MISYS reseller, installer or consultant is not affiliated with MISYS in any capacity other than as a distributor, installer or consultant of MISYS's products and has no authority to bind MISYS or modify any license or warranty. MISYS makes no representations, warranty, endorsement or guarantee with respect to the skills or qualifications of any authorized MISYS reseller, installer or consultant and You are encouraged to independently investigate the skills and qualifications of any authorized MISYS reseller, installer or consultant with whom You associate.
7. Limitation of Liability. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL MISYS BE LIABLE TO YOU OR TO ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, FOR
PERSONAL INJURY, LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING A DUTY OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OR INABILITY TO USE THE SOFTWARE PRODUCTS, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN THE EVENT OF FAULT, TORT (INCLUDING NEGLIGENCE, AND GROSS NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT, OR BREACH OF WARRANTY BY MISYS, AND EVEN IF MISYS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL MISYS BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE LIST PRICE MISYS CHARGES FOR A LICENSE TO THE SOFTWARE. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT THAT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU. THE FOREGOING PROVISIONS SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8. Entire Agreement. This EULA expressly supersedes and completely replaces any and all prior end user license agreements. MISYS shall not be bound by or liable to You for any pre-existing or contemporaneous written or oral representations or warranties, made by any third party, with respect to the Software Product, including any authorized distributor or reseller or their respective agents, employees, or representatives, nor shall You be deemed a third party beneficiary of any obligations of MISYS to any such distributor or reseller.
9. Attorneys' Fees. If any party employs attorneys to enforce any rights arising out of or relating to this EULA, the prevailing party shall be entitled to seek recovery of its reasonable attorneys' fees, costs, and other expenses.
10. Severability. If any provision of this license is held to be unenforceable, the enforceability of the remaining provisions shall in no way be affected or impaired thereby.
11. United States Government. The Software is deemed to be "commercial computer software" and "commercial computer software documentation," respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Software by the United States Government shall be governed solely by the terms of this EULA and shall be prohibited except to the extent expressly permitted by the terms of this EULA.
12. High Risk Activities. The Software is not specifically designed, manufactured or intended for use in the planning, construction, maintenance or direct operation neither of a nuclear facility, nor for use in on-line control or fail safe operation of aircraft navigation, control or communication systems, weapon systems or direct life support systems.
13. Confidentiality. You agree that the Software provided to You is "Confidential Information" of MISYS. You shall retain all Confidential Information in strict confidence at least with the same amount of diligence that You exercise in preserving the secrecy of Your most-valuable information, but in no event less than reasonable diligence. You shall: (i) only disclose Confidential Information to Your employees and agents to the extent required to use the Software under the terms of this EULA, and (ii) bind Your employees and agents in writing to maintain the confidentiality of such Confidential Information, and not use or disclose such information except as permitted under this EULA.
14. Miscellaneous. This EULA is governed by the laws of the United States and the State of Vermont, without reference to conflicts of law principles. In the event of a dispute or legal action between the parties, they agree to waive any objections to personal jurisdiction, and agree to service of process and venue in the Federal District Court for Vermont or the Vermont Superior Court of Windsor County. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. This EULA sets forth all rights for the user of the Software and is the entire agreement between the parties. This EULA supersedes any other communications with respect to the Software. This EULA may not be modified except by a written addendum
issued by a duly authorized representative of MISYS. No provision hereof shall be deemed waived unless such waiver shall be in writing and signed by MISYS or a duly authorized representative of MISYS. You hereby acknowledge a breach of this EULA would cause irreparable harm and significant injury to MISYS that may be difficult to ascertain and that a remedy at law would be inadequate. You agree that MISYS shall have the right to seek and obtain immediate injunctive relief to enforce the obligations under the EULA in addition to any other rights and remedies it may have. If any provision of this EULA is held invalid, the remainder of this EULA shall continue in full force and effect. If Licensee has received a translation into another language, it has been provided for Licensee's convenience only.
15. MISYS Customer Contact. If You have any questions concerning these terms and conditions, or if You would like to contact MISYS for any other reason, please call (802) 457-4600, or write to us at: Manufacturing Information Systems, Inc., 217-4 Maxham Meadow Way, Ste. 2G, Woodstock, VT 05091 USA. You may also reach us by email at [email protected]