This Agreement constitutes the terms under which Kinesix Software will provide the Customer with one or more copies of Kinesix developed software including, but not limited to, the Sammi product suite, the Sendera product suite, the KX EDGE product suite and supporting utilities. Any one or more of these software components shall be called the “Software”. The number of copies may be increased from time to time by Customer’s Purchase Orders. Such Purchase Orders become extensions of this Agreement, and the Software which such Purchase Orders cause to be purchased shall be subject to the provisions of this Agreement. This Agreement embodies the entire contract between Kinesix Software and Customer and shall supersede all previous agreements, written or oral, with respect to Software to be provided under this Agreement.
GRANT OF LICENSE:
Kinesix Software grants to Customer a non-exclusive, non-transferable license to use each of the above mentioned copies of the Software on a single workstation or PC. Customer may not use one copy of the Software on more than one workstation or PC at the same time. Additionally, the Customer may not use more than one copy of the software on a single workstation or PC at the same time. There are no copy restrictions on the use of the executable code that is produced using the API (application programming interface) except that the executable code must interface with at least one licensed copy of the Sammi Runtime Environment, the KX EDGE Client Environment, the KX EDGE web application server or the Sendera application server.
Customer may distribute Software only under separate license from Kinesix Software. Further licensing information is available by request through www.kiniesix.com. Kinesix is under no obligation to provide any support under this Agreement, including upgrades or future versions of the software or documentation to Customer.
Upon reasonable notice to Customer, Kinesix Software may audit, at Kinesix Software’s expense, Company’s computer systems, books and records to determine Company’s compliance with this Agreement and other applicable agreements (OEM, VAR, Distributor, etc.). In the event any such audit reveals that Company has installed the Software on more Work Stations than authorized, or that Company has knowingly breached any other material obligation under this Agreement and/or the OEM Agreements then, in addition to such other remedies as Kinesix Software may have, Company shall pay or reimburse to Kinesix Software the cost of the audit.
The Software is owned by Kinesix Software or its suppliers and is protected by United Stated Copyright laws and international treaty provisions. Therefore, Customer must treat the Software like any other copyrighted material except that Customer may either (a) make a copy of the Software solely
for backup or archival purposes provided that Customer reproduces all Software provided to Customer, or (b) transfer the Software to a single hard disk provided Customer keeps the original solely for backup or archival purposes. The Customer may not copy the written materials accompanying the Software. If electronic documentation is received, Customer may produce one (1) copy of this documentation in hardcopy form for personal use and/or load the electronic documentation onto a single computer for viewing on one (1) display screen. Any other reproduction, duplication, or distribution of the documentation in any form, including but not limited to electronic, magnetic, and hardcopy form, is unauthorized and prohibited.
Customer may not rent, lease or transfer the Software or documentation. Customer may not decompile, disassemble, or create derivative works from the Software.
If Customer is acquiring the Software on behalf of any unit or agency of the United States (the “Government”), the following provisions apply:
The Government acknowledges Kinesix Corporation’s representation that the Software and its documentation were developed at private expense and no part of them is in the public domain.
The Government acknowledges Kinesix Software’s representation that the Software is “Restricted Computer Software” as that term is defined in Clause 52.227-19 of the Federal Acquisition Regulations (FAR) and is “Commercial Computer Software” as that term is defined in subpart 227.401 of the Department of Defense Federal acquisition Regulation Supplement (DFARS). The Government agrees that:
(i) if the Software is supplied to the Department of Defense (DOD), the Software is classified as “Commercial Computer Software” and the Government is acquiring only “restricted rights”
to the Software and its documentation as that term is defined in Clause 52.227-7013(c)(1) of the DFARS, and
(ii) if the Software is supplied to any unit or agency of the United States Government other than DOD, the Government’s rights to the Software and its documentation will be as defined in Clause 52.227-19(c)(2) of the FAR.
RESTRICTED RIGHTS LEGEND:
Use, duplication, or disclosure by the Government is subject to restriction as set forth in subparagraph (c)(1)(ii) of the Right in Technical Data and Computer Software clause of DFARS 52.227-7013.
EXPORT LAW ASSURANCES:
Customer acknowledges and agrees that the Software is subject to restrictions and controls imposed by the United Stated Export Administration Act (the “Act”) and the regulations thereunder. Customer agrees and certifies that neither the Software nor any direct product thereof is being or will be acquired, shipped, transferred or re-exported, directly or indirectly, into any country prohibited by the Act and the regulations thereunder or will be used for any purpose prohibited by the same.
The Agreement will be governed by the laws of the State of Texas except for that body of law dealing with conflicts of law.
This Agreement is effective until terminated. Kinesix Software has the right to terminate this Agreement immediately if Customer fails to comply with any term of this Agreement. Upon any such termination, Customer must return all full and partial copies of the software and documentation.
KINESIX WARRANTS THE CD-ROM, DVD OR PHYSICAL DISKETTES, ON WHICH THE PROGRAM IS FURNISHED, AND PHYSICAL DOCUMENTATION TO BE FREE OF DEFECTS IN MATERIALS AND WORKMANSHIP UNDER NORMAL USE FOR A PERIOD OF NINETY (90) DAYS FROM THE DATE OF DELIVERY TO CUSTOMER AS EVIDENCED BY CUSTOMER RECEIPT. THE SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND.
KINESIX SOFTWARE IS NOT RESPONSIBLE FOR PROBLEMS CAUSED BY CHANGES IN THE OPERATING CHARACTERISTIC OF COMPUTER HARDWARE OR COMPUTER OPERATING SYSTEMS WHICH ARE MADE AFTER THE RELEASE OF THE SOFTWARE NOR FOR PROBLEMS IN THE INTERACTION OF THE SOFTWARE WITH NON-KINESIX SOFTWARE SOFTWARE. KINESIX SOFTWARE WILL HAVE NO RESPONSIBILITY TO REPLACE OR REFUND THE PURCHASE PRICE OF THE MEDIA DAMAGED BY ACCIDENT, ABUSE, OR MISAPPLICATION. FURTHERMORE, KINESIX SOFTWARE DOES NOT WARRANT THAT THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS, THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL SOFTWARE ERRORS WILL BE CORRECTED.
KINESIX SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY KINESIX SOFTWARE, ITS EMPLOYEES, DISTRIBUTORS, DEALERS OR AGENTS SHALL INCREASE THE SCOPE OF THE ABOVE WARRANTIES OR CREATE ANY NEW WARRANTIES.
THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT, HOWSOEVER CAUSED, BUT THIS SHALL NOT IMPLY OR CREATE ANY CONTINUED RIGHT TO USE THE SOFTWARE AFTER TERMINATION OF THIS AGREEMENT. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO CUSTOMER.
THIS WARRANTY GIVES THE CUSTOMER SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE.
LIMITATIONS OF REMEDIES:
REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL KINESIX SOFTWARE BE LIABLE TO CUSTOMER FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT OR SIMILAR DAMAGES, INCLUDING ANY LOST PROFITS OR LOST DATA ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR ANY DATA SUPPLIED THEREWITH EVEN IF KINESIX SOFTWARE OR ANY AUTHORIZED KINESIX SOFTWARE DEALER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR ACCICENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
"Kinesix’s Sammi has been instrumental in allowing us to provide 100 percent uptime since commissioning the Hong Kong KCRC project in 1998. Sammi is very important in our system. " - Ian Whitehead, Project Manager Westinghouse Rail Systems