BY CLICKING ON THE “ACCEPT” BUTTON, YOU AND THE ENTITY OR COMPANY THAT YOU REPRESENT (“LICENSEE”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS LICENSE AGREEMENT (“AGREEMENT”) WITH CUBIC ITS, INC., A TEXAS CORPORATION. LICENSEE’S USE OF THE DOWNLOADED MATERIALS AND ASSOCIATED SOFTWARE SHALL ALSO CONSTITUTE ASSENT TO THE TERMS OF THIS AGREEMENT. IF LICENSEE DOES NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “CANCEL” BUTTON AND THE DOWNLOAD AND INSTALLATION PROCESS WILL NOT CONTINUE. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS WITHOUT MODIFICATIONS OR ADDITIONS.
COPYING, INSTALLATION, UPLOADING, ACCESS OR USE OF THIS SOFTWARE OR ANY ACCOMPANYING DOCUMENTATION OR MATERIALS EXCEPT AS PERMITTED BY THIS AGREEMENT IS UNAUTHORIZED AND CONSTITUTES A MATERIAL BREACH OF THIS AGREEMENT AND AN INFRINGEMENT OF THE COPYRIGHT AND OTHER INTELLECTUAL PROPERTY RIGHTS IN SUCH SOFTWARE AND DOCUMENTATION. IF YOU COPY, INSTALL, UPLOAD, ACCESS OR USE ALL OR ANY PORTION OF THIS SOFTWARE OR ITS DOCUMENTATION WITHOUT ENTERING INTO THIS AGREEMENT OR OTHERWISE OBTAINING WRITTEN PERMISSION OF LICENSOR YOU ARE VIOLATING COPYRIGHT AND OTHER INTELLECTUAL PROPERTY LAW. YOU MAY BE LIABLE TO LICENSOR FOR DAMAGES AND INJUNCTIVE RELIEF, AND YOU MAY BE SUBJECT TO CRIMINAL PENALTIES. UNLESS PROHIBITED BY LAW, THE MINIMUM PENALTY FOR UNLICENSED USE OF SOFTWARE IS $10,000 FOR EACH UNLICENSED ACCESS OR COPY.
SOFTWARE OBTAINED FROM THIRD PARTIES THAT HAVE NOT BEEN AUTHORIZED OR LICENSED BY TRAFFICWARE, DIRECTLY OR INDIRECTLY, TO SUPPLY SOFTWARE IS LIKELY TO HAVE BEEN MADE AVAILABLE IN VIOLATION OF TRAFFICWARE’S RIGHTS. IN SUCH AN EVENT TRAFFICWARE IS NOT OBLIGATED TO ISSUE AN ACTIVATION CODE OR OTHERWISE PERMIT YOU TO INSTALL OR USE THE SOFTWARE.
1. LICENSE GRANT. Subject to the terms of this Agreement, Trafficware hereby grants Licensee a limited, personal, non- sublicensable, non-transferable, royalty-free, nonexclusive license to use the software that Licensee is about to download (“Software”) only for personal use and only in accordance with any documentation that accompanies it. Licensee may download, install and use the Software only on a single workstation for a single user only. The parties agree that any other downloading, installation or use of the Software, or installation on a computer or network server where the software may be accessed by multiple users, is unlicensed access or copying under this Agreement. This is not a concurrent user, multi-user, or network license, and use of the Software as if under such a license is also unlicensed access or copying under this Agreement. Licensor shall have the right to inspect and audit Licensee’s facilities to confirm use in accordance with this License Grant and the terms and conditions of this Agreement including, without limitation, physical inspection and access to computer facilities either physically or remotely.
2. LICENSE RESTRICTIONS. Except as expressly and unambiguously permitted by this Agreement, Licensee shall not, nor permit anyone else to, directly or indirectly: (i) copy (except for a reasonable number of backup copies), modify, or distribute the Software; (ii) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of the Software (except where the foregoing is required by applicable local law, and then only to
the extent so permitted); (iii) rent, lease, or use the Software for timesharing or service bureau purposes, or otherwise use the Software for any commercial purpose/on behalf of any third party; or, (iv) use the Software for performing comparisons or other “benchmarking” activities, either alone or in connection with any software (and Licensee will not publish any such performance information or comparisons). Licensee shall maintain and shall not remove or obscure any proprietary notices on the Software. As between the parties, title, ownership rights, and intellectual property rights in and to the Software, computer programs derived from the Software and any copies or portions thereof, shall remain in Licensor. Licensee understands that Licensor may modify or discontinue offering the Software at any time. The Software is protected by the copyright laws of the United States and international copyright treaties. This Agreement does not give Licensee any rights not expressly granted herein.
3. INTELLECTUAL PROPERTY; CONTENT. As a condition of Licensee’s use of the Software, Licensee represents, warrants and covenants that Licensee will not use the Software: (i) to infringe the intellectual property rights or proprietary rights, or rights of publicity or privacy, of any third party; (ii) to violate any law, statute, ordinance or regulation; (iii) to generate or disseminate information, output or materials in any form or format (collectively, “Content”) that is harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, or otherwise objectionable under applicable laws or community standards; or
(iv) to disseminate any software viruses or any other computer code, files or programs that may interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment. The Software is intended to be used only by trained professionals. The Software is intended to assist with product and/or system design and is not a substitute for the professional judgment of an engineer, or a professional’s independent design analysis, estimation or testing for the efficacy, safety and utility of all Content generated from the Software. Licensee is solely responsible for the supervision, management and control of Licensee’s use of the Software and the use of all Content generated from the Software. This responsibility includes, without limitation, the determination of the appropriate uses of the Software and the selection of the Software to achieve intended results. Licensee is also responsible for establishing the adequacy of its independent procedures for testing the reliability and accuracy of all Content generated from the Software, including all products or systems designed by using the Software. Licensee, not Licensor, remains solely responsible for all Content that Licensee uploads, posts, emails, transmits, produces, generates or otherwise disseminates using, or in connection with, the Software. Licensee acknowledges that all
Content that Licensee accesses, produces, generates or otherwise disseminates using the Software is at Licensee’s own risk and Licensee shall be solely responsible for any and all damages to any party resulting therefrom.
4. SUPPORT AND VERSION MAINTENANCE. This Agreement does not entitle Licensee to any support, upgrades, patches, enhancements, or fixes for the Software (collectively, “Support”). Telephonic or online support, at Licensor’s sole discretion, is provided free of charge for 60-days, from date of purchase. An extended period of support may be purchased for an additional fee. Support is solely to assist Licensee with basic installation and getting started with the Software as provided in the documentation that accompanies the Software. Licensor shall not be required to provide any responses to any special requests, advanced support, upgrades, enhancements, training or customization, unless Licensor and Licensee agree in a separate, written support agreement, training agreement, or license. If Licensee violates any term of this agreement, Licensor will terminate support services with all support fees nonrefundable.
5. FEES. Licensee shall pay Licensor the license fees for the Software as set forth on Licensor’s Web site at www. trafficware.com, including, but not limited to, upfront license fees, and any support fees if Licensee requests Support from Licensor and Licensor agrees to provide the Support to Licensee in a separate written agreement signed by the Parties. All fees shall be nonrefundable, and payable in U.S. dollars on the date they come due. Licensor shall invoice Licensee for all fees and/or Licensee hereby authorizes Licensor to charge Licensee’s credit card for all fees. Licensee shall also pay all sales, use, value-added and other taxes, tariffs and duties of any type assessed against Licensor except for taxes on Licensor’s income.
Licensee acknowledges that the Software contains a routine to permit Licensor to disable the Software remotely if Licensee fails to pay any fees when they are due, or otherwise breaches any term of this Agreement, and Licensee hereby gives Licensor the right to disable the Software under such circumstances and shall have no claim against Licensor for any damages incurred by such action by Licensor.
6. HOLD HARMLESS. Licensee agrees to release and hold harmless Licensor, its officers, directors, employees, representatives, and their successors and assigns from any claims, obligations, liabilities, costs, demands, liabilities, damages (including, without limitation, damage to property or injury to or death of any person), expenses (including reasonable attorneys’ fees and costs for all investigations, preparation, discovery, negotiations, trials and appeals), fines or penalties, suits or causes ofaction in law and/or in equity, upon or by reason of any matter, cause or thing whatsoever, whether known or unknown, relating in any way to or arising out of Licensee’s use of the Software or its failure to comply with any term of this Agreement. Licensor acknowledges that some government agencies have limitations to this clause, and therefore this clause applies to them to the maximum allowed extent.
7. WARRANTY DISCLAIMER. LICENSOR PROVIDES The Software “AS IS” and without warranty of any kind, AND hereby disclaims all express or implied warranties, including without limitation warranties of merchantability, fitness for a particular purpose, PERFORMANCE, ACCURACY, RELIABILITY, and non-infringement. This disclaimer of warranty constitutes an essential part of this Agreement. Licensor acknowledges that some states have limitations to this clause, and therefore this clause applies in those states to the maximum allowed extent.
8. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOTLIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, SHALL LICENSOR OR ITS SUPPLIERS OR RESELLERS BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSSOF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, OR DAMAGES RESULTING FROM YOUR USE OF THE SOFTWARE., LICENSOR’S SOLE LIABILITY FOR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO REPLACEMENT OF DEFECTIVE MEDIA. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF LICENSEE SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSOR ACKNOWLEDGES THAT SOME STATES HAVE LIMITATIONS TO THIS CLAUSE OR DO NOT ALLOW THIS LIMITATIONOF LIABILITY, AND THEREFORE THIS CLAUSE APPLIES IN THOSE STATES TO THE MAXIMUM ALLOWED EXTENT, WHERETHEY ARE ALLOWED AT ALL.
9. TERM AND TERMINATION. This Agreement shall continue until terminated as set forth in this section. Licensee may terminate this Agreement at any time. Licensor may terminate this Agreement immediately if Licensee violates any provision of this Agreement. Any termination of this Agreement shall also terminate the licenses granted hereunder. Upon termination of this Agreement for any reason, Licensee shall destroy and remove from all computers, hard drives, networks, and other storage media all copies of the Software, and shall so certify to Licensor that such actions have occurred. Sections 2 and 5 through 13, and all accrued rights to payment, shall survive termination of this Agreement.
10. HIGH RISK USES. Licensee acknowledges that the Software is not intended for use in connection with any high risk or strict liability activity (including, without limitation, air travel, space travel, fire fighting, police operations, power plant operation, military operations, rescue operations, hospital and medical operations or the like) and Licensee agrees not to use or allow the use of the Software or any portion thereof for, or in connection with, any such activity.
11. GOVERNMENT USE. If Licensee is part of an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the Software is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Software is a “commercial item,” “commercial computer software” and “commercial computer software documentation.” In accordance with such provisions, any use of the Software by the Government shall be governed solely by the terms of this Agreement.
12. EXPORT CONTROLS. Licensee shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (“OFAC”), or other United States or foreign agency or authority, and Licensee shall not export, or allow the export or re-export of the Software in violation of any such restrictions, laws or regulations. By downloading or using the Software, Licensee agrees to the foregoing and represents and warrants that Licensee is not located in, under the control of, or a national or resident of any restricted country.
13. MISCELLANEOUS. This Agreement represents the complete agreement concerning this license between the parties and supersedes all prior agreements and representations between them. This Agreement may be amended only by a writing executed by both parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of Licensor to act with respect to a breach of this Agreement by Licensee or others does not constitute a waiver and shall not limit Licensor’s rights with respect to such breach or any subsequent breaches. This Agreement is personal to Licensee and may not be assigned
or transferred for any reason whatsoever (including, without limitation, by operation of law, merger, reorganization, or as a result of an acquisition or change of control involving Licensee) without Licensor’s consent and any action or conduct in violation of the foregoing shall be void and without effect. Licensor expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder. This Agreement shall be governed by and construed under Texas law
as such law applies to agreements between Texas residents entered into and to be performed within Texas. The sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be the State and Federal courts in Fort Bend County, Texas; Licensee hereby agrees to service of process in accordance with the rules of such courts. The party prevailing in any dispute under this Agreement shall be entitled to its costs and legal fees, unless the Parties mutually agree to settle the dispute. Each party intends that this Agreement shall not benefit, or create any right or cause of action in or on behalf of, any person or entity other than Licensor and Licensee.
14. UNIVERSITY CLASSROOM / LAB USE. Software marked for Educational Use is subject to verification of licensed use and additional restrictions apply. Support is limited solely to the instructor and specifically excludes training and assistance to students with classwork and/or educational projects. Use of Software marked for Educational Use for commercial training including continuing education programs, research and development, research for any entity public, private, commercial or otherwise, any paid research project, any paid engineering projects, deployment of software output for the purpose of controlling actual traffic, usage of software output for providing guidance in the control of actual traffic, application and usage of the software output in any form with regard to control of actual traffic, and/or usage of software for any for-profit purposes is strictly forbidden, violates the terms of this Agreement and automatically terminates the License Grant.
15. UNIVERSITY STUDENT USE. Software marked for Educational Use is subject to verification of student enrollment, verification of university participation in a university classroom/lab license program with Trafficware, and additional restrictions apply. Licensed Professional Engineers (P.E.s) are ineligible for student license purchase. Purchase is limited to one license per student. Support is limited solely to access to the Trafficware forum and specifically excludes training and assistance with classwork and/or educational projects. The license is valid for only two years, a product key must
be entered to activate the Software, and the product key will automatically expire two years from the date of purchase. Use of Software marked for Educational Use for commercial training including continuing education programs, research and development, research for any entity public, private, commercial or otherwise, any paid research project, any paid engineering projects, deployment of software output for the purpose of controlling actual traffic, usage of software output for providing guidance in the control of actual traffic, application and usage of the software output in any form with regard to control of actual traffic, and/or usage of software for any for-profit purposes is strictly forbidden, violates the terms of this Agreement and automatically terminates the License Grant.