This is a legal agreement ("this Agreement") between Senomix Software Inc. ("Senomix") and the licensee ("the Licensee"). This Agreement is governed by the laws of Ontario, Canada.
Senomix licenses the Espresso Profiler software ("the Software") only if all the following terms are accepted by the Licensee. The Software includes any updates that may be applied to the Software in the future.
By installing the Software, the Licensee is indicating that the Licensee has read and understands this Agreement and agrees to be bound by its terms and conditions. If this Agreement is unacceptable to the Licensee, the Licensee must destroy any copies of the Software in the Licensee's possession immediately.
1. LICENSE CONDITIONS
1.1 The Software is licensed, not sold. The Licensee is granted a non-transferable license to install the Espresso Profiler Software on ONE computer. Any copies of the Software should be complete copies including any copyright notices.
1.2 This License may not be transferred or assigned by the Licensee without the prior written consent of Senomix; any attempt by the Licensee to transfer or assign the License or its rights hereunder shall constitute a material breach of this License.
1.3 In the event any provision of this License is held to be invalid or unenforceable, the remaining provisions of this License will remain in full force and effect.
1.4 The Licensee may not reverse engineer, disassemble, decompile, alter, translate or otherwise attempt to modify or derive the source code of the Software.
1.5 The Licensee may not create derivative works based on the Software.
1.6 If the Software is an upgrade, the Licensee may use the Software only in conjunction with the upgraded Software. Both the upgrade and the original Software will be considered part of the same Software product for License purposes.
1.7 The Licensee agrees to not distribute any Registration Key provided to them at the time of purchase for activation of the Software.
1.8 Should the Licensee request a refund within the 30-day evaluation period, the Licensee agrees to destroy all Software, documentation and software Registration Keys associated with the Software under refund. The Licensee shall warrant in writing to Senomix within thirty (30) days of termination of this Agreement that these conditions have been complied with.
1.9 The conditions described within this Agreement shall survive termination or expiry of this Agreement for any reason.
1.10 Senomix may terminate this Agreement if the Licensee fails to comply with the terms and conditions of this Agreement. In such event, the Licensee agrees to destroy any and all copies of the Software and all of its component parts and/or its contents.
1.11 Where Senomix provides a service to the Licensee, Senomix reserves the right to change the fees charged for the service or to change the services provided to the Licensee, including the termination of those services, after providing 30 days of notice of those changes to the Licensee. Unless otherwise indicated to the Licensee, the Licensee may terminate their use of a service provided by Senomix by providing notice of termination to Senomix within at least 30 days of the Licensee's intended date of termination of the service.
1.12 This License shall be construed in accordance with the laws of Ontario and the laws of Canada, applicable herein. If there is any controversy, dispute or claim arising out of or relating to interpretation or breach of this License, the parties will endeavour to settle it promptly. If such a dispute cannot be resolved, the parties will promptly submit such to binding arbitration in accordance with the Commercial Arbitration Act (Ontario).
1.13 Any notice required or permitted under the terms of this License or required by statute, law or regulation shall (unless otherwise provided) be in writing and shall be delivered in person, sent by registered mail or air mail as appropriate, properly posted and fully prepaid in an envelope properly addressed or sent by facsimile to the respective parties at the address set forth on the most recent invoice or receipt, or to such other address or facsimile number as may from time to time be designated by notice. Any such notice shall be in the English language and shall be considered to have been given at the time when actually delivered if delivered by hand, or upon the next working day following sending by facsimile or in any other event within ten days after it was mailed in the manner previously described.
2. DISTRIBUTION
2.1 No distribution is to be made of the Software by the Licensee. The Licensee may make one copy of the Software for backup purpose only.
2.2 The Licensee may not sell the use of the software as a service or otherwise derive revenue from its use.
2.3 The Licensee may not sell, rent, lease, or lend the Software to any party.
3. INTELLECTUAL PROPERTY
3.1 The Licensee may not remove, modify or alter any Senomix copyright or trademark notice from any part of the Software or its associated documentation.
3.2 The Software is owned by Senomix and is protected by Canadian intellectual property laws and applicable international laws, treaties, and/or conventions. Senomix owns and retains all right, title, trademarks, copyrights and interest in and to the Software and accompanying documentation. The Licensee hereby agrees to use its best efforts to protect the Software from unauthorized use, reproduction, distribution or publication. The Licensee shall not during or at any time after the expiry or termination of this License in any way question or dispute the ownership thereof by Senomix.
4. LIMITED WARRANTY
4.1 Senomix warrants that for a period of ninety (90) days from the date of acquisition, the Software, if operated as directed, will substantially achieve the functionality described in the accompanying documentation. Senomix does not warrant that the Licensee's use of the Software will be uninterrupted or that the operation of the Software will be error-free. Senomix's sole liability for any breach of this warranty shall be, in Senomix's sole discretion: a. to replace the Licensee's defective software; or b. to advise the Licensee how to achieve substantially the same functionality with the Software as described in the documentation through a procedure different from that set forth in the documentation. Repaired, corrected or replaced Software shall be covered by this limited warranty for the period remaining under the warranty that covered the original Software or, if longer, for thirty (30) days after the date Senomix advised the Licensee how to operate the software so as to achieve the functionality described in the documentation. Only if the Licensee informs Senomix of their problem with the Software during the applicable warranty period and provides evidence of the date the Licensee acquired the Software will Senomix be obligated to honour this warranty. Senomix will use reasonable commercial efforts to repair, replace or advise to the foregoing warranty within 30 days of being so notified.
4.2 This is a limited warranty and is the only warranty made by Senomix.
4.3 Senomix makes no other express warranty. No Senomix dealer, agent or employee is authorized to make any modifications, extensions or additions to this warranty.
4.4 The Software has been checked for malicious programs such as viruses, trojans and worms. It is the responsibility of the Licensee to check the Software for viruses and other infections before the use.
4.5 If any modifications are made to the Software by the Licensee or if the Licensee violates the terms of this Agreement, then this warranty shall immediately be terminated. This warranty shall not apply if the Software is used on or in conjunction with hardware or software other than the unmodified version of hardware and software with which the Software was designed to be used as described in the documentation.
4.6 This Agreement is the entire Agreement between Senomix and the Licensee and supersedes any other communications, advertisements or understandings with respect to the Software.
5. LIMITATION OF LIABILITY
5.1 EXCEPT AS PROVIDED ABOVE, THE SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS WITH THE LICENSEE. SUBJECT TO THE TERMS OF SECTION 4.1 ABOVE, IF THE SOFTWARE PROVES DEFECTIVE, THE LICENSEE ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THIS LIMITATION MAY NOT APPLY.
5.2 UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL SENOMIX BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF DATA, OR LOSS OF USE, WHETHER ARISING OUT OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, ARISING OUT OF OR RELATING TO THIS LICENSE, EVEN IF SUCH PARTY HAS ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.
5.3 IN NO EVENT SHALL SENOMIX'S TOTAL LIABILITY UNDER THIS LICENSE EXCEED THE LICENSE FEE PAID BY THE LICENSEE FOR THE SOFTWARE.