Custom License

RIGHT HEMISPHERE, INC. END USER SOFTWARE LICENSE AGREEMENT

PLEASE READ THIS AGREEMENT CAREFULLY. IT LIMITS WHAT YOU ARE AUTHORIZED TO DO WITH THE SOFTWARE; IT ALSO LIMITS YOUR REMEDIES AND OUR RESPONSIBILITIES AND LIABILITY. IT MAY OR MAY NOT BE SIMILAR TO OTHER END USER LICENSE AGREEMENTS, AND MAY INCLUDE UNFAMILIAR TERMS.

This End User License Agreement (“Agreement”) is a legal agreement between you (also referred to as “You” or “Customer”) and Right Hemisphere, Inc. (“RH” or “Licensor”) regarding your use of the Software (as defined below). By clicking to accept this Agreement, You agree to be bound by the terms of this Agreement. If either (a) You do not agree to the terms of this Agreement, or (b) the Customer is a corporation, partnership or similar entity and you are not authorized to bind that entity, then do not click to accept this agreement (which will terminate the download or install process), and promptly return the Software (if you have a copy) and any accompanying items to the place from which you obtained them for a full refund.

1.        SOFTWARE LICENSED. This Agreement covers software products that are delivered to you on the enclosed media, available through Licensor's web site, or otherwise attached to or connected with this Agreement, including accompanying user manuals, documentation or instructions (collectively the 'Software'). Software includes third party products and documentation related thereto as well as any upgrades, modified versions, updates additions and copies of such third party products that Licensor may make available to You.

2.         GRANT OF LICENSE. Subject to Customer’s payment of the appropriate license fee to Licensor or to the reseller or distributor from which You received the copy of the Software, Licensor grants Customer a personal, non-transferable, non-sublicensable, non-exclusive license to use the Software under the terms of this Agreement for the term selected at the time of purchase solely for internal business operations and purposes. You may embed copies of the font software into your electronic documents for purpose of printing, viewing and editing the document.

3.        LICENSE RESTRICTIONS. Customer shall abide by the following restrictions:

3.1         Floating Use License: If You purchase a Floating Use License, the Software may be used concurrently on different devices up to the maximum number of floating seats selected at the time of purchase. You may install a copy of the Software on a storage device (“Designated Network”), such as a network server, and allow individuals within your business or enterprise to access and use the Software from other devices, provided that the number of users at any one time does not exceed the number of floating seats licensed.

3.2         Node Locked License: If you purchase a Node Locked License, unless otherwise set forth on a signed document between You and Licensor or its authorized distributor or reseller, the Software may be installed on only one computer (“Designated Computer”), and used by only one computer and one user. To permit use by additional users, at any time, requires an additional license. You may make those copies of the Software necessary to the use by You for which rights are granted hereunder.

3.3        Designated Country: You may only install and operate the Software on Designated Networks (if you elect the Floating Use License) or Designated Computers (if you elect the Node Locked License option) that are physically located in your Designated Country. “Designated Country” means the country you were in at the time you purchased the Software. You may, from time to time, change the Designated Country, provided that in each case: (a) you shall give RH prior written notice of any such change; and (b) immediately upon moving the Software to a different Designated Country, you shall pay RH all applicable transfer fees as well as any taxes, tariffs or duties that may be payable as a result of such transfer. For abundance of clarity, the restrictions in this Section 3.3 apply to both Floating Use Licenses and Node Locked Licenses.

3.4        Additional Restrictions: The licenses granted in this Agreement do not include the right to, and You shall not and You shall not permit any third party to: (a) sell, lease, license or sublicense any rights in or to the Software; (b) make or allow others to make copies or reproductions of the Software in any form (except for one backup copy of the Software, provided the backup copy is not installed or used on any computer), or remove or permit removal of any proprietary labels or notices on the Software; (c) directly or indirectly distribute the Software to others, or allow others to use or have access to the Software; (d) make any modifications or alterations to the Software, including but not limited to, using macros or any other automation technologies that could extend the functionality or use of the Software or any other derivative work, and you may not merge the Software with other Software, and if such unauthorized modifications, alterations or derivative works are made, then they are owned by Licensor and automatically assigned to Licensor by operation of this Agreement; (e) decompile, reverse engineer, disassemble or otherwise derive or attempt to derive source code from the Software or any portion thereof; and (f) use the Software to provide processing services to third parties, or otherwise use the Software on a ‘service bureau’ basis. Other than as set forth in Section 2, no other embedding rights are implied or permitted under this Agreement. The source code of the Software, and other materials provided by Licensor and designated in writing as “confidential” or “proprietary” are proprietary to and constitute trade secret information of the Licensor, and you may not use or disclose that source code except as explicitly authorized in this Agreement. The restrictions in this Section 3.4 apply to both Floating Use Licenses and Node Locked Licenses.

4.        ADDITIONAL RIGHTS FOR FREE OF CHARGE SOFTWARE. The terms of this Section will apply if and only if Licensor makes the Software generally available free of charge. Notwithstanding anything to the contrary in this Agreement, Customer may provide copies of the Software, without modification of any kind, to third party contractors and service providers who are performing services for Customer, solely for use for the benefit of Customer; provided, however that Customer hereby guarantees that such third party contractors or service providers shall abide by the terms of this Agreement. Upon Licensor’s request, Customer shall provide Licensor with a list of all such third parties.

5.        OPEN SOURCE SOFTWARE. The Software may contain open source software components, each of which has its own copyright notice requirements and own applicable license conditions. These components are subject to the terms of third party open source licenses, and not the terms of this Agreement. A list of these components and the licenses that cover them can be found at: . If any such license requires Licensor to deliver the source code for such component to Customer, Licensor shall do so upon request at a nominal fee.

6.        RESERVATION OF RIGHTS. The Software is licensed, not sold. The Software (including without limitation any images, “applets,” photographs, animations, video, audio, music and text incorporated in the Software, accompanying printed materials, improvements, new versions, updates and upgrades and any copies of the Software You are permitted to make herein) is owned by Licensor and its suppliers, and its structure, organization and code are the valuable trade secrets of Licensor and its suppliers. The Software is also protected by United States Copyright law and International Treaty provisions. You may not copy the Software except as provided in this Agreement. Any copies that you are permitted to make pursuant to this Agreement must contain the same copyright and other proprietary notices that appear on or in the Software. The license granted hereunder does not include any license or right to use any name, trade name, trademark, service mark, symbol or any other identification or any abbreviation, contraction or simulation thereof, of Licensor. Except as stated above, this Agreement does not grant you any intellectual property rights in the Software.

7.        NO TRANSFER OR ASSIGNMENT. The license granted herein also may not be assigned to others, in whole or in part, or transferred, by operation of law, in connection with a change of control, or otherwise, without the prior written consent of the Licensor.
8.        TERM AND TERMINATION. The Agreement will commence on the earlier of the date upon which You (a) open the sealed Software package(s), (b) install the Software, or (c) use the Software and will remain in force until terminated in accordance with this Agreement. You may terminate this Agreement at any time by destroying the Software altogether along with all copies and collateral materials, and certifying to Licensor that you have done so (or, if Licensor requests, returning the Software and all copies of the Software to Licensor); provided, however that no such termination will entitle You to a refund of any portion of the license fee. This Agreement will also automatically terminate upon conditions set forth elsewhere in this Agreement or if you fail to comply with any term or condition of this license. You agree upon such termination to destroy the Software along with any collateral material relating thereto. RH may terminate this agreement if You fail to pay any amount do to RH or if you are in material breach of this Agreement, and such breach is not cured within 30 days after RH gives You written notice of such breach.

9.        LIMITED WARRANTY AND DISCLAIMERS. If the Licensor is furnishing the Software to You on CDs, the Licensor warrants the CDs to be free from defects in materials and workmanship under normal use for a period of ninety (90) days after purchase. The Software is provided 'AS IS' without warranty of any kind, either expressed or implied. The entire risk as to the quality and performance of the Software is with You. Licensor does not warrant that the functions contained in the Software will meet your requirements that the operation of the Software will be uninterrupted or error free.
THE FOREGOING STATES THE SOLE AND EXCLUSIVE REMEDIES FOR LICENSOR’S BREACH OF WARRANTY AND THIS AGREEMENT. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, LICENSOR AND ITS SUPPLIERS (INCLUDING ADOBE) DISCLAIM ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. IN NO EVENT WILL THE LICENSOR, ITS SUPPLIERS (INCLUDING ADOBE) BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, INCLUDING ANY LOST PROFITS OR LOST SAVINGS, EVEN IF LICENSOR, ITS SUPPLIERS (INCLUDING ADOBE) HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY.

Some states or jurisdictions do not allow the exclusion or limitation of incidental, consequential or special damages, or the exclusion of implied warranties, or limitations on how long an implied warranty may last, so the above limitations may not apply to you. To the extent permissible, any implied warranties are limited to thirty (30) days. This warranty gives you specific legal rights. You may have other rights which vary from state to state or jurisdiction to jurisdiction.

10.        LIMITATION OF LIABILITY. To the maximum extent permitted by applicable law, the Licensor is not and will not be liable for loss of profit, loss of business, loss of business information, business interruption, loss of use, or incidental, special or consequential damages, or other financial loss, whether based in contract, tort (including negligence), strict liability, or any other theory or form thereof, which may be caused by, directly or indirectly, the inadequacy of the Software for any purpose or any use thereof, or by any defect or deficiency therein. In no event, shall Licensor have liability under this Agreement in excess of the licensing fees received by Licensor for the licenses You have obtained hereunder. Your exclusive remedy shall be, in Licensor's sole discretion, either (i) repair or replace the Software or (ii) refund the licensing fees paid by You under this Agreement.

11.        LICENSOR SUPPORT POLICY. It is understood that a purchase of the Software does not include a right to obtain technical support, and that technical support is provided pursuant to a separate agreement, either with Licensor or with a third party authorized by Licensor to provide technical support.

12.         GOVERNING LAW AND JURISDICTION. This Agreement is governed by the laws of the State of California, without regard to conflict of law principles. Venue for any lawsuit or claim will be in California. This Agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

13.         EXPORT REQUIREMENTS AND GOVERNMENT RIGHTS.

13.1        EXPORT REQUIREMENTS. By entering into this Agreement, you represent and warrant that you are not a national of or in the employ of any government or entity to which the United States has an embargo. You agree that the Software will not be shipped or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively, “Export Laws”.) In addition, if the Software is identified as export controlled items under the Export Laws, you represent and warrant that you are not a citizen, or otherwise located within, an embargoed nation (including without limitation Iran, Iraq, Syria, Sudan, Libya, Cuba, North Korea and Serbia) and that you are not otherwise prohibited under the Export Laws from receiving the Software. All rights to use the Software are granted on condition that such rights are forfeited if you fail to comply with the terms of this End User License Agreement.

13.2        GOVERNMENT REQUIREMENTS. The Product is commercial, and consists of 'commercial computer software' and 'commercial computer software documentation' as defined in the Federal Acquisition Regulation ('FAR') 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement ('DFARSS') 227.7202 for military agencies. If You are an agency, department, or other entity of the United States Government ('Government'), Your use, duplication, reproduction, release, modification, disclosure or transfer of the Software is restricted by this Agreement.

14.         THIRD PARTY BENEFICIARY. You acknowledge and agree that a third party licensor is the owner of certain proprietary information and intellectual property rights included in the Software. Such third party licensors are direct and intended third party beneficiaries of this Agreement with respect to software provided to Licensor by such third party licensors and included in the Software (including Parametric Technology Corporation with respect to the Granite functionality or the Granite module). As such, they are entitled to enforce Licensor’s rights and obligations hereunder and to seek appropriate legal and equitable remedies, including but not limited to, damages and injunctive relief, for your breach of such obligations.

15.         DEEP EXPLORATION COPYRIGHT POLICY. The following terms apply when the “Software” is Licensor’s Deep Exploration product or similar functionality. The Deep Exploration functionality includes an integrated search engine to enable 3D artists to locate content freely available in a variety of digital file formats. The files located using Deep Exploration are not stored on Right Hemisphere's servers. Deep Exploration users decide what to download. Right Hemisphere respects the prerogatives of copyright owners to control commercial uses of their material, and expects users of Deep Exploration to do the same. Users are responsible for complying with all international, federal and state laws applicable to the content found by the Deep Exploration search engine, including copyright laws. Unauthorized copying, distribution, modification, public display, or public performance of copyrighted works may be an infringement of the copyright holders' rights in certain circumstances. Deep Exploration users should be aware that some files may have been created or distributed without the authorization of the copyright owner or as authorized by law. As a condition of your license to use Deep Exploration, you agree that you will not use Deep Exploration to infringe the copyrights or other intellectual property rights of others in any way. Right Hemisphere reserves the right to terminate the software license of any user in appropriate circumstances upon any single infringement of the rights of others in conjunction with use of Deep Exploration; or for those users identified as repeat infringes; or if Right Hemisphere believes the user's conduct is harmful to the interests of Right Hemisphere, its affiliates, or other users; or for any other reason in Right Hemisphere's sole discretion, with or without cause. We strongly recommend that the source URL for any 3D objects always be checked for additional copyright information relating to any files found by the Deep Exploration search engine.

16.         TRADEMARKS. Trademarks appearing herein are either registered trademarks or trademarks of their respective owners in the United States and/or other countries.

17.        GENERAL. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. This Agreement shall not prejudice the statutory rights of any party dealing as a consumer.