CYGNA LABS CORP. END-USER LICENSE AGREEMENT
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE YOU INSTALL OR USE ANY SOFTWARE, RELATED HARDWARE, DOCUMENTATION, AND/OR SERVICES FROM CYGNA LABS CORP. THAT HAS BEEN DELIVERED OR OTHERWISE MADE AVAILABLE TO YOU (COLLECTIVELY “DELIVERABLE(S)”). THIS AGREEMENT FORMS A LEGALLY BINDING CONTRACT BETWEEN YOU AND CYGNA LABS CORP. WITH RESPECT TO YOUR USE OF SUCH DELIVERABLE(S). UNLESS YOU HAVE ENTERED INTO A SIGNED AGREEMENT WHICH GOVERNS THE PURCHASE OF THE DELIVERABLE(S), BY DOWNLOADING, INSTALLING OR USING THE DELIVERABLE(S), YOU INDICATE ACCEPTANCE OF AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. FURTHERMORE, TO THE EXTENT PERMITTED BY LAW, YOU WAIVE ANY RIGHTS OR REQUIREMENTS UNDER ANY APPLICABLE LAW WHICH REQUIRE AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS. UNLESS YOU HAVE ENTERED INTO A SIGNED AGREEMENT WHICH GOVERNS THE PURCHASE OF THE DELIVERABLE(S), THE TERMS AND CONDITIONS HEREIN SHALL SUPERSEDE AND TAKE PRECEDENCE OVER ANY OTHER TERMS AND CONDITIONS, INCLUDING BUT NOT LIMITED TO, ANY PREPRINTED TERMS AND CONDITIONS ON OR PROVIDED WITH ANY PAST, PRESENT OR FUTURE PURCHASE ORDER (OTHER THAN THE IDENTIFICATION OF THE DELIVERABLE(S), THE TERM OF THE LICENSE, THE PRICE AND QUANTITY OF THE DELIVERABLE(S), DURATION OR LEVEL OF SERVICE DESIRED, THE ADDRESS FOR INVOICING, AND THE REQUIRED DELIVERY DATE AND DELIVERY LOCATIONS). IF YOU DO NOT WISH TO ACCEPT THESE TERMS AND CONDITIONS, DO NOT DOWNLOAD, INSTALL, USE OR CONTINUE TO USE THE DELIVERABLE(S). THIS AGREEMENT SHALL APPLY TO ALL RENEWALS AND UPGRADES OF ANY DELIVERABLES.
This End-User License Agreement (this “Agreement”) is made between Cygna Labs Corp. (“Cygna Labs”), a Delaware corporation, and you, the customer (“Licensee”). The terms and conditions of this Agreement are intended by the parties as a final expression of their agreement with respect to the subject matter hereof and may not be contradicted by evidence of any prior or contemporaneous agreement unless such agreement is signed by both parties. In the absence of such an agreement, this Agreement shall constitute the complete and exclusive statement of the terms and conditions and no extrinsic evidence whatsoever may be introduced in any judicial proceeding that may involve the Agreement.
SECTION 1. GENERAL PROVISIONS.
The provisions of this Section 1 shall apply to any and all Software, as defined below.
1.1 Software. For the purpose of this Agreement, the licensed computer software program(s) downloaded and/or installed pursuant to this Agreement and the supporting documentation for such software program(s) (“Documentation”) will be collectively referred to as the “Software.”
1.2 Ownership and Intellectual Property Rights; Restrictions.
1.2.1 Cygna Labs reserves any and all rights, implied or otherwise, which are not expressly granted to Licensee hereunder, and retains all rights, title and interest in and to the Software. Licensee agrees that it has no right whatsoever to modify the Software or any portion thereof in any manner. Licensee agrees that the source code applicable to the Software is proprietary to Cygna Labs and/or its licensors. Nothing herein shall be construed, explicitly or implicitly, as transferring or conveying to Licensee ownership in any intellectual property owned by Cygna Labs or its licensors, including software programs and derivative works, screen formats, and data transfer methodology. The Software is protected by copyright and other intellectual property rights. Licensee must reproduce and maintain on any copy that Licensee makes or uses all copyright and other intellectual property notices of Cygna Labs’s or a third party’s intellectual property rights that are contained in the Software.
1.2.2 Licensee shall not reverse engineer, decompile, disassemble, modify, adapt, rent, lease, loan, create derivative works based upon the Software or any part thereof, or otherwise manipulate the Software so as to derive such source code. Licensee may not use the Software as a managed service provider, application service provider, in any commercial time share arrangement, or in any other activity intended to directly produce revenue. Licensee may not resell the Software licensed hereunder nor use the Software to provide consulting or training services to third parties. Licensee shall not assign the Software to a third party for use in managing Licensee’s environment without the prior written consent of Cygna Labs. Licensee may not copy or otherwise use the Software, in whole or part, except as expressly permitted in this Agreement.
1.3 Third Party Software. Certain third-party software (“Third Party Software”) may be provided by Cygna Labs with the delivery of the Software or may be incorporated into the Software, and such Third Party Software may include applicable third-party product specific click-wrap or web-based license terms. To the extent of any inconsistency between the third-party product specific terms and this Agreement, such third-party product specific terms accompanying the Software shall govern. Without limiting the foregoing, Licensee hereby agrees to be bound by and comply with the third-party terms set forth in Section 7 below. Licensee hereby agrees to waive any and all claims against Cygna Labs, its subsidiaries and any of the licensors, directors, officers, employees or affiliates of any of the foregoing related to Third Party Software.
1.4 Export Law Assurances. Licensee shall not (nor will Licensee authorize or permit its employees, agents or subcontractors to) export or re-export, or allow the export or re-export of the Software or any copy, portion or direct product of the foregoing, in any manner that would violate any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority, including but not limited to the regulations of the U.S. Department of Commerce and/or the U.S. State Department, as shall from time to time govern the license and delivery of technology abroad by persons subject to the jurisdiction of the U.S. government, including the Export Administration Act of 1979, as amended, and any export administration regulations.
1.5 Limitation of Remedies and Damages. IN NO EVENT WILL CYGNA LABS, ITS SUBSIDIARIES OR ANY OF THE LICENSORS, DIRECTORS, OFFICERS, EMPLOYEES OR AFFILIATES OF ANY OF THE FOREGOING BE LIABLE TO LICENSEE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES WHATSOEVER, OR FOR ANY DAMAGES FOR LOSS OF REVENUES OR PROFITS, BUSINESS INTERRUPTION, LOSS OR CORRUPTION OF BUSINESS INFORMATION AND DATA AND THE LIKE, OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, IN EACH CASE, WHETHER FORESEEABLE OR UNFORESEEABLE, REGARDLESS OF THE BASIS OF THE CLAIM, AND EVEN IF CYGNA LABS OR A CYGNA LABS REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. CYGNA LABS’S CUMULATIVE LIABILITY FOR DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO CYGNA LABS FOR THE SOFTWARE THAT CAUSED THE DAMAGES. NO ACTION MAY BE BROUGHT AGAINST CYGNA LABS LATER THAN ONE (1) YEAR FROM THE TERMINATION OF THIS AGREEMENT.
1.6 Nondisclosure. “Confidential Information” means this Agreement, Software, source code, object code, trade secrets, know-how and any proprietary tools, proprietary knowledge or proprietary methodologies disclosed by Cygna Labs to Licensee and not generally available to the public, which Licensee may gain access to or knowledge of as a result of this Agreement. Licensee agrees: (a) to hold Confidential Information in complete confidence indefinitely; (b) to use commercially reasonable efforts and take all reasonable steps to protect the Confidential Information from any use, reproduction, publication, disclosure, or distribution except as specifically authorized by this Agreement; (c) not to disclose Confidential Information to any person (other than (i) Licensee’s employees, representatives, contractors, legal counsel, accountants, or professional advisers who, in each case, need to know such information and are bound by confidentiality obligations equivalent to those set forth herein or (ii) as may be required to be disclosed by law, court action, or regulatory or governmental authority) without the consent of Cygna Labs; and (d) to use Confidential Information only to exercise Licensee’s rights and fulfill its obligations under this Agreement. Licensee shall promptly notify Cygna Labs of any known unauthorized use or disclosure of the Confidential Information and will cooperate with Cygna Labs in any litigation Cygna Labs brings against third parties to protect its proprietary rights. Upon expiration or termination of this Agreement, Licensee shall immediately return to Cygna Labs, or, if Cygna Labs elects, destroy, all Confidential Information in its possession. A violation of this Section 1.6 might cause irreparable harm to Cygna Labs, for which monetary damages may be inadequate and injunctive relief may be sought for a breach of this Section 1.6.
1.7 Assignment. Licensee may not assign, sublicense or transfer its rights or obligations under this Agreement without prior written approval by Cygna Labs, and any purported assignment, sublicense or transfer without Cygna Labs’s consent shall be null and void.
1.8 Injunctive Relief. Licensee hereby expressly agrees that Cygna Labs, in addition to any other rights or remedies which Cygna Labs may possess, shall be entitled to injunctive and other equitable relief without having to post bond or other security to prevent a material breach or continuing material breach of Licensee’s obligations under Section 1.2.2 and Section 1.6 under this Agreement.
1.9 Software Supplied to the U.S. Government.
1.9.1 The Software is a “commercial product” as defined under Federal Acquisition Regulations (“FAR”) section 2.101. Consistent with FAR section 12.212 and Defense Federal Acquisition Regulation Supplement (“DFARS”) section 227.7202, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Software by the U.S. government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted herein.
1.9.2 If Licensee is, or is entering into this Agreement on behalf of, the U.S. Department of Defense (“DoD”), the Software is classified as “Commercial Computer Software” under DFARS section 252.227-7014 (or any successor regulations) and the DoD only requires the license rights granted herein (the license rights customarily provided to non-Government users). If Licensee is, or is entering into this Agreement on behalf of, any unit or agency of the U.S. Government other than DoD, the Software is classified as a “Restricted Computer Software” and such unit or agency’s rights in the Software are defined in FAR section 52.227-19 (or any successor regulations) or, in the case of NASA, in section 18.52.227-86 of the NASA Supplement to the FAR (or any successor regulations).
1.10 Survival. The parties’ rights and obligations which by their nature would continue beyond the termination or expiration of this Agreement, shall survive termination or expiration of this Agreement, including but not limited to Sections 1.2, 1.3, 1.5, 1.6, 1.8, 1.10, 1.11, 1.12, 1.13, 1.14, 2.2, 3.3, 3.4, 5 and 6 of this Agreement.
1.11 Warranties. THE LIMITED WARRANTIES AS DESCRIBED IN SECTION 2.2 AND SECTION 3.3 OF THIS AGREEMENT ARE THE ONLY WARRANTIES PROVIDED BY CYGNA LABS AND ITS LICENSORS, WHO EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO THE DELIVERABLES.
1.12 Term; Termination. Unless this is a Trial License (as defined below) (in which case the term of the license provided in this Agreement expires at the end of the Evaluation Period (as defined below)), the term of the license provided in this Agreement is as set forth in the applicable purchase order. This Agreement or an individual license granted hereunder may be terminated (a) by mutual agreement of Cygna Labs and Licensee; (b) by either party, upon thirty (30) days’ prior written notice to the other party, provided that neither Cygna Labs nor any reseller shall owe Licensee a refund of any license fees paid or owed under this Agreement; or (c) by Cygna Labs, if Licensee or its affiliate breaches this Agreement and fails to cure such breach to Cygna Labs’s reasonable satisfaction within thirty (30) days (or ten (10) days with respect to payment obligations) following receipt of Cygna Labs’s notice thereof. Notwithstanding the foregoing, this Agreement and the associated license for the Software will terminate automatically and without provision of notice by Cygna Labs if (x) Licensee fails to comply with any of the terms set forth in Section 1.2.2 of this Agreement; or (y) (i) Licensee becomes subject to a bankruptcy order, becomes insolvent, makes any arrangement or assignment for the benefit of creditors, or goes into voluntary or compulsory liquidation, or (ii) a receiver or administrator is appointed over Licensee’s assets. Upon any termination of this Agreement or a license granted hereunder, Licensee shall immediately cease use of the applicable Software and certify in writing to Cygna Labs within thirty (30) days after termination that Licensee has destroyed or returned to Cygna Labs or its authorized reseller such Software and all copies thereof. Termination of this Agreement shall not limit either party from pursuing any remedies available to it, including injunctive relief, or relieve Licensee of its obligation to pay all fees that have accrued or have become payable by Licensee hereunder.
1.13 Payment and Taxes. Licensee shall make all payments in full within thirty (30) days from the date of the applicable invoice. Any amounts payable by Licensee that remain unpaid after the due date shall be subject to a late charge equal to 1.5% of the invoice amount per month from the due date until such amount is paid, or the maximum rate permitted by law if less. Charges are exclusive of applicable value-added, sales, use, excise, customs duties or other taxes, fees or surcharges (including, but not limited to regulatory fees or surcharges) (“Taxes”), relating to the sale, purchase, delivery, installation, license, use or processing of the Software, Cygna Labs-provided equipment and/or provision of any Services under this Agreement. Licensee will pay all such Taxes, including those paid or payable by Cygna Labs and any related interest and penalties, for goods or services supplied under this Agreement, except to the extent a valid exemption certificate is provided by Licensee to Cygna Labs prior to the delivery of the Software or Services. In the event that payment of any amount of the charges becomes subject to withholding tax, levy or similar payment obligation on sums due to Cygna Labs under the Agreement, such withholding tax amounts shall be borne and paid for by Licensee in addition to the sums due to Cygna Labs. Licensee will provide Cygna Labs free of charge with the appropriate certificate(s) from the relevant authorities confirming the amount of the withholding taxes, levies or similar payments borne and paid for by Licensee.
1.14.1 This Agreement will be construed under the laws of the State of Delaware, except for that body of law dealing with conflicts of law and the U.N. Convention of Contracts for the Sale of International Goods, which shall not apply. Any legal suit, action, or proceeding related to or arising from this Agreement shall be instituted exclusively in the state and federal courts in Wilmington, Delaware, United States of America, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding and waives any objection based on lack of personal jurisdiction, improper venue, or forum non conveniens.
1.14.2 Performance of any obligation required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party, which waiver shall be effective only with respect to the specific obligation described therein.
1.14.3. If any provision of this Agreement shall be held by a court of competent jurisdiction to be invalid, unenforceable or otherwise contrary to law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this Agreement will remain in full force and effect.
1.14.4 Except for the obligation to make payments hereunder, neither party shall be liable for failure to perform its obligations caused by or resulting from force majeure, which shall include but not be limited to events that are unpredictable, unforeseeable, irresistible and beyond a party’s reasonable control, such as any extremely severe weather, flood, landslide, earthquake, storm, lightning, fire, epidemic, pandemic, acts of terrorism, military hostilities (whether or not war is declared), riot, explosions, strikes or other labor unrest, civil disturbance, sabotage, expropriation by governmental authorities or other act or any event that is outside the reasonable control of the concerned party. In the event of such a force majeure event, the affected party shall be entitled to a reasonable extension of time for the performance of its obligations under this Agreement.
1.14.5 The parties agree that this Agreement is the complete and exclusive statement of the agreement between Cygna Labs and Licensee, and this Agreement supersedes any proposal or prior agreement, oral or written, and any other communication relating to the Software. For purposes of this Agreement: (a) the words “include,” “includes,” and “including” will be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (i) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (ii) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement. This Agreement may not be modified except (A) that Cygna Labs may update this Agreement upon written notice to Licensee (including by email), and by continuing to use the Software after such notice, Licensee agrees to this Agreement as modified, or (B) by a writing executed by an authorized representative of both parties hereto. For clarity, no vendor, distributor, reseller, sales representative or other person is authorized to modify this Agreement or to make any warranty, representation or promise which is different from those set forth in this Agreement. No other terms and conditions shall apply, including but not limited to those provided on or with a purchase order (other than the identification of the Software, the price and the quantity of Software, duration or level of service desired, the address for invoicing, and the required delivery date and delivery locations).
1.14.6 Any notice given under this Agreement must be in writing and may be delivered by hand or by courier, or sent by registered first-class mail to the office addresses of Licensor (to the attention of the legal department). Notice shall be deemed to have been given (i) on the date when delivered if delivered personally or by overnight courier (unless delivered after normal business hours, in which case it shall be deemed given on the next business day); or (ii) if delivered by mail, five (5) days after the date of mailing.
1.14.7 This Agreement benefits solely the parties hereto and their respective permitted successors and permitted assigns and nothing in this Agreement, express or implied, confers on any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
SECTION 2. TRIAL LICENSE TERMS AND CONDITIONS.
The provisions of this Section 2 shall apply to Software downloaded for temporary and/or trial use.
2.1 Trial License. Subject to the terms and conditions of this Agreement, the Software and the related Software appliance hardware (“Hardware”), if any, is licensed, not sold, to Licensee by Cygna Labs for an evaluation period of seven (7) days from the download date (such license, “Trial License” and such period, “Evaluation Period”).
2.1.1 The Trial License is a personal, non-exclusive, non-transferrable and non-sublicensable license to use the Software in object code form, together with Hardware (if any), solely for Licensee’s own internal evaluation in a non-production environment and for no other purpose.
2.1.2 Licensee’s opportunity for a free evaluation of the Software is limited to one Evaluation Period per release of the Software.
2.1.3 There is no fee for Licensee’s use of the Software in accordance with this Agreement during the Evaluation Period; however, Licensee is responsible for any applicable shipping charges or taxes which may be incurred under this Agreement, and any fees which may be associated with usage beyond the scope permitted herein.
2.1.4 Licensee acknowledges that it is downloading the Software with the intent to purchase a license to use the Software upon completion of a successful evaluation thereof. A Cygna Labs sales representative may contact Licensee after the download to discuss Licensee’s purchase of a license.
2.1.5 Upon the conclusion of the Evaluation Period, Cygna Labs and Licensee shall meet to discuss the results of the evaluation and Licensee shall promptly notify Cygna Labs of Licensee’s decision of whether or not Licensee has elected to purchase a license under the terms hereunder. In the event that Licensee determines not to purchase a license, the Trial License shall expire at the end of the Evaluation Period and Licensee shall promptly either (i) destroy all copies of the Deliverables; or (ii) if the Software had been delivered preloaded in the Hardware, return the Hardware and Software in good condition and repair, reasonable wear and tear excepted.
2.1.6 During the Evaluation Period, Licensee will provide Cygna Labs with access to the Deliverables at such reasonable times as may be required by Cygna Labs.
2.2 “AS-IS” Warranty. Cygna Labs or its licensors retain(s) all intellectual property rights in the Software and any accompanying materials provided by Cygna Labs, including but not limited to copyright, and Cygna Labs warrants that it has the legal right to grant Licensee the Trial License granted under this Agreement. LICENSEE AGREES THAT THE DELIVERABLES ARE PROVIDED “AS IS” AND UNSUPPORTED, AND THAT CYGNA LABS DOES NOT MAKE ANY WARRANTY AS TO THE DELIVERABLES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
SECTION 3. “FULL” LICENSE TERMS AND CONDITIONS.
The provisions of this Section 3 shall apply to all Software other than Software provided to Licensee pursuant to a Trial License.
3.1 License. Subject to the terms and conditions of this Agreement, and in consideration for Licensee’s payment of the applicable license fees, Cygna Labs hereby grants to Licensee, and Licensee accepts from Cygna Labs, a perpetual (subject to Section 1.12), non-exclusive, non-transferable and non-sublicensable right to use the Software. This license consists of the right for Licensee to install, use, access, run, or otherwise interact with the Software within the scope of license granted, solely for Licensee’s own internal business operations and in accordance with the related Documentation. For clarity, Licensee may install the Software on one or more authorized server computers and use the Software on the concurrent number and type of server computers for which Licensee has paid Cygna Labs (or its authorized reseller) the applicable license fees. Licensee may also make a reasonable number of additional copies of the Software solely for non-productive archival purposes, so long as (a) neither the original and a copy nor two copies of the same license are in use at the same time, and (b) each copy contains all titles, trademarks, and copyrights and restricted rights notices as in the original. Nothing in this Agreement entitles Licensee to receive source code for any part of the Software. Licensee agrees to ensure that anyone who uses the Software does so only for Licensee’s authorized use and complies with the terms of this Agreement. Licensee is responsible for the assuring that its network environment meets any site specifications and network requirements as specified in Cygna Lab’s published documentation.
3.2 Services. During any Maintenance Period and for the applicable fees, Cygna Labs shall provide Licensee the Services as listed in this Section 3.2. The “Maintenance Period” begins on the date of the first invoice for the Software and ends twelve (12) months thereafter. Each Maintenance Period shall be non-cancellable and shall automatically renew for another twelve (12) months unless the renewal has been cancelled by either party’s giving written notice at least sixty (60) days prior to the first day of the renewal Maintenance Period. Fees for Services shall be due in advance of renewal. Cygna Labs will provide other services (other than Services) subject to availability and under the terms and conditions, including service rates, as indicated on the applicable ordering document.
“Services” consist of the following, in each case, solely during the Maintenance Term:
- Cygna Labs shall make available to Licensee new versions and releases of the Software, including Software corrections, enhancements and upgrades, if and when Cygna Labs makes them generally available without charge as part of maintenance services for the Software.
- Cygna Labs shall respond to communications from Licensee that report software failures not previously reported to Cygna Labs.
- Cygna Labs shall respond to a reasonable number of communications from Licensee that request consultation on the operational/technical aspects of the Software.
- Licensee shall have access to Cygna Labs’s Technical Support Web site at https://support.cygnalabs.com/.
During the Maintenance Term, Services are available during standard support hours as indicated on Cygna Labs’s Technical Support Web site. For all Software, Cygna Labs’s Services shall be available according the then current Cygna Labs SLA.
3.3 Limited Warranty.
3.3.1 Cygna Labs warrants that for a period of thirty (30) days from the date of initial delivery (i) the media provided by Cygna Labs, if any, on which the Software is recorded will be free from material defects in materials and workmanship under normal use, and (ii) the operation of the Software, as provided by Cygna Labs, will substantially conform to the Documentation applicable to the Software. Cygna Labs shall have no responsibility for warranty service under this Section 3.3.1 if the defect in such media or the Software is (a) the result of an accident, abuse or misuse, (b) cured by a modification of other Cygna Labs software, any third-party hardware or the Software, or (c) the result of Licensee’s failure to use the most current version of the Software.
3.3.2 THE SOFTWARE IS PROVIDED “AS IS” AND UNSUPPORTED, AND THE FOREGOING WARRANTIES SET FORTH IN THIS SECTION 3.3 ARE EXCLUSIVE AND IN LIEU OF, AND CYGNA LABS HEREBY DISCLAIMS, ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
3.3.3. Licensee must report in writing any breach of the foregoing warranties in this Section 3.3 to Cygna Labs during the 30-day warranty period. Licensee’s exclusive remedy, and Cygna Labs’s sole obligation, for any such breach of warranty shall be for (a) Cygna Labs to replace defective media and to correct or provide a workaround for reproducible errors that cause a breach of the warranty within a reasonable time considering the severity of the error and its effect on Licensee; or (b) at Cygna Labs’s option, refund the license fees paid for the nonconforming Software upon return of such Software to Cygna Labs and termination of the related license hereunder.
3.4. Usage Verification. At Cygna Labs’s request, but not more frequently than annually, Licensee shall furnish Cygna Labs with a document signed by Licensee’s authorized representative verifying Licensee’s usage of the Software. Licensee will permit Cygna Labs to review Licensee’s deployment and use of the Software for compliance with the terms of this Agreement at Cygna Labs’s expense. Any reviews shall be scheduled at least 15 days in advance, shall be conducted during normal business hours at Licensee’s facilities, and shall not unreasonably interfere with Licensee’s business activities. If Licensee’s use of the Software is found to be greater than contracted for, Licensee will be invoiced for the additional licenses or license upgrades (based on the applicable units of measure, e.g., users or servers) and the unpaid license fees shall be payable in accordance with this Agreement. Additionally, if the unpaid fees exceed 5% of the license fees paid for the subject Software, then Licensee shall also pay Cygna Labs’s reasonable costs of conducting the audit.
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IN ADDITION TO THE FOREGOING, THE FOLLOWING TERMS AND CONDITIONS APPLY TO THE DIAMOND IP SOFTWARE. “DIAMOND IP SOFTWARE” MEANS IMAGECONTROL, IPCONTROL, SAPPHIRE, IPAM AUDITOR, EXECUTIVE MANAGEMENT APPLIANCE, AND CLOUD AUTOMATION APPLIANCE.
SECTION 4. HARDWARE.
Title and risk of loss to any Hardware as provided to Licensee by Cygna Labs, if any, shall pass to Licensee upon delivery to a common carrier, FOB shipping point. Licensee shall be responsible for any Hardware shipping charges. Hardware will be delivered to Licensee at:
- the address on the purchase order if within the United States; or
- the applicable port of entry in the delivery country, in which case the Hardware will be supplied DDU (INCO terms 2000), as modified by the express provisions of this Agreement. Licensee will act as the importer of record and Cygna Labs will be the exporter of record. Licensee must clear the Hardware through the applicable customs authority in the destination country and shall be liable for any import tax, duty and/or excise duty incurred.
It may be possible for Cygna Labs to arrange shipping services to deliver the Hardware to the final destination address(es) specified in the purchase order if outside the United States. Cygna Labs will provide end-to-end delivery services to the delivery destination address(es) except that Licensee will:
- perform any import clearance tasks that the law of the applicable country requires;
- pay import duty and other charges in accordance with DDU (INCO Terms 2000) to Cygna Labs (or the relevant person if Cygna Labs cannot lawfully pay on behalf of the Licensee); and
- if requested by Cygna Labs, provide authorization as soon as practicable authorizing Cygna Labs or its agent to carry out its obligations as shipping agent. Any such authorization shall be as narrow as is required for the fulfillment of the task. If Licensee cannot give such authorization, Licensee will undertake those tasks itself at its own cost.
Cygna Labs may, at its sole discretion, assign the supply of Hardware outside the U.S. to an affiliate of Cygna Labs to provide and invoice for. Notwithstanding any other provisions of this Agreement, Licensee hereby agrees to any such assignment.
SECTION 5. WEEE REGULATION COMPLIANCE.
In the event any equipment supplied under this Agreement is imported into a European Union State, then Licensee shall be responsible, pursuant to regulation (9) of the Waste Electrical and Electronic Equipment Regulations (2006) (the “WEEE Regulations”), for the costs of collection, treatment, recovery, and environmentally sound disposal of any equipment supplied under this Agreement which has become waste electrical and electronic equipment. In accordance with the WEEE Regulations, this paragraph shall be considered an agreement between the parties stipulating that Licensee accepts responsibility and liability for any financial arrangements necessary for the collection, treatment, recovery, recycling and environmentally sound disposal of such equipment. Licensee shall also be responsible for any information recording or reporting obligations imposed by the WEEE Regulations. Licensee shall indemnify and hold harmless Cygna Labs against all losses, costs, damages, expenses, liabilities and claims caused to and made against Cygna Labs which would not have been caused or made had Licensee fulfilled its express or implied obligations under this Section 5 or in connection with the WEEE Regulations.
SECTION 6. LIMITED WARRANTY.
Cygna Labs warrants that the Hardware shall be free from defects in material and workmanship for thirty (30) days after delivery to Licensee and shall conform to the design and specifications as provided with the Hardware from Cygna Labs. This warranty includes all internal components as provided by Cygna Labs; however, any components added in after the original assembly shall not be covered by this warranty. Cygna Labs shall, for any Hardware which fails to conform with the warranties in this Section 6, promptly either repair or replace it, at Cygna Labs’s option and cost, which shall be Licensee’s exclusive remedy, and Cygna Labs’s sole obligation, for any such breach of warranty. Cygna Labs shall have no responsibility for warranty service under this Section 6 if the defect is the result of an accident, abuse or misuse. The start date for any actual warranty under this Section 6 will be determined by the date of shipment. THE HARDWARE IS PROVIDED “AS IS” AND UNSUPPORTED, AND THE FOREGOING WARRANTIES SET FORTH IN THIS SECTION ARE EXCLUSIVE AND IN LIEU OF, AND CYGNA LABS HEREBY DISCLAIMS, ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
SECTION 7. OPEN SOURCE SOFTWARE LICENSE TERMS.
The terms in this Section 7 apply to the Diamond IP Software:
7.1 Java Runtime. Portions of this Software may require the following license information: Java Runtime Environment Binary Code License (“Java License”) contains rights and restrictions associated with use of the accompanying Java Runtime Environment software and documentation (“Java Software”). Read this Section carefully before using the Java Software. By using the Java Software, Licensee agrees to the additional terms and conditions which apply to the Java License:
7.1.1 Java Platform Interface. Licensee may not modify the Java Platform Interface (“JPI”, identified as classes contained within the “java” package or any subpackages of the “java” package), by creating additional classes within the JPI or otherwise causing the addition to or modification of the classes in the JPI. In the event that Licensee creates any Java-related API and distributes such API to others for applet or application development, Licensee must promptly publish broadly, an accurate specification for such API for free use by all developers of Java-based software.
7.1.2 Restrictions. The Java Software is confidential copyrighted information of Sun and title to all copies is retained by Sun and/or its licensors. Licensee shall not decompile, disassemble, decrypt, extract, or otherwise reverse engineer the Java Software. The Java Software may not be leased, assigned, or sublicensed, in whole or in part, except as specifically authorized. The Java Software is not designed or intended for use in online control of aircraft, air traffic, aircraft navigation or aircraft communications; or in the design, construction, operation or maintenance of any nuclear facility. Licensee warrants that it will not use or redistribute the Java Software for such purposes.
7.1.3 Disclaimer of Warranty. The Java Software is provided “AS-IS,” without a warranty of any kind. ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, ARE HEREBY EXCLUDED.
7.1.4 Limitation of Liability. SUN AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY DAMAGES SUFFERED BY LICENSEE OR ANY THIRD PARTY AS A RESULT OF USING OR DISTRIBUTING THE JAVA SOFTWARE. IN NO EVENT WILL SUN OR ITS LICENSORS BE LIABLE FOR LOST REVENUE, PROFIT OR DATA, OR FOR DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF THE USE OF OR INABILITY TO USE THE JAVA SOFTWARE, EVEN IF SUN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.1.5 Export Regulations. The Java Software, including technical data, is subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Licensee agrees to comply strictly with all such regulations and acknowledge that Licensee has the responsibility to obtain licenses to export, re-export, or import the Java Software. The Java Software may not be downloaded, or otherwise exported or re-exported (i) into, or to a national or resident of Cuba, Iraq, Iran, North Korea, Libya, Sudan, Syria or any country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nations or the U.S. Commerce Department’s Table of Denial Orders.
7.1.6 Restricted Rights. Use, duplication or disclosure by the United States government is subject to the restrictions as set forth in the Rights in Technical Data and Computer Software Clauses in DFARS 252.227-7013(c)(1)(ii) and FAR 52.227-19(c)(2) as applicable.
7.2 Internet Systems Consortium. Portions of this Software may be based on code from the Internet Software Consortium, and require the following license information. Read this Section carefully before using the Internet Software Consortium software. By using the Internet Software Consortium software, Licensee agrees to the additional terms and conditions which apply to the Internet Software Consortium license:
Copyright (c) 2004 Internet Systems Consortium, Inc. (“ISC”)
Copyright (c) 1995-2003 Internet Software Consortium.
All rights reserved.
THIS SOFTWARE IS PROVIDED BY INTERNET SYSTEMS CONSORTIUM AND CONTRIBUTORS “AS IS” AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL ISC OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
Portions of this Software may be based on code from the Internet Software Consortium that is licensed under the Mozilla Public License (MPL 2.0). Licensee may obtain a copy of the license at:
7.3 Apache. Portions of this Software may be based on code from Apache, and require the following license information. Read this Section carefully before using the Apache software. By using the Apache software, Licensee agrees to the additional terms and conditions which apply to the Apache License:
Licensed under the Apache License, Version 2.0 (the “Apache License”);
Licensee may not use this file except in compliance with the Apache License.
Licensee may obtain a copy of the Apache License at:
Unless required by applicable law or agreed to in writing, software distributed under the Apache License is distributed on an “AS IS” BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied. See the Apache License for the specific language governing permissions and limitations under the Apache License.
7.4 MySQL Community Edition. The MySQL Community Edition in object and source code is included on the distribution media. MySQL Community Edition requires the following license information. Read this Section carefully before using the MySQL Community Edition. By using the MySQL Community Edition software, Licensee agrees to the additional terms and conditions which apply to the MySQL Community Edition License:
Licensed under the GNU GPL Version 2 License (the “MySQL Community Edition License”);
Licensee may obtain a copy of the MySQL Community Edition License at
Unless required by applicable law or agreed to in writing, software distributed under the MySQL Community Edition License is distributed on an “AS IS” BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied. See the MySQL Community Edition License for the specific language governing permissions and limitations under the MySQL Community Edition License.
The Cygna Labs distribution of the MySQL Community Edition includes the object and source code of the application as per the requirements in the GNU GPL Version 2.0 License. Cygna Labs does not make any changes to the source code or object code, and does not charge for the MySQL Community Edition component. It is included on the distribution media only as a convenience for the end user. During the installation process the End User can choose to provide their own copy of the MySQL database if they do not want to use the free supplied copy of the MySQL Community Edition.
7.5 Oracle JDBC Driver. Portions of this Software may be based on code from Oracle and require the following license information. Read this Section carefully before using the Java Software. By using the Java Software, Licensee agrees to the additional terms and conditions which apply to the Oracle JDBC Driver License:
“We grant you a nonexclusive, nontransferable limited license to use the programs: (a) for purposes of developing, testing, prototyping and running applications you have developed for your own internal data processing operations; (b) to distribute the programs with applications you have developed to your customers provided that each such licensee agrees to license terms consistent with the terms of this Agreement, you do not charge your end users any additional fees for the use of the programs, and your end users may only use the programs to run your applications for their own business operations; and (c) to use the programs to provide third party demonstrations and training. You are not permitted to use the programs for any purpose other than as permitted under this Agreement. If you want to use the programs for any purpose other than as expressly permitted under this agreement you must contact us, or an Oracle reseller, to obtain the appropriate license. We may audit your use and distribution of the programs. Program documentation is either shipped with the programs, or documentation may be accessed online at http://otn.oracle.com/docs.”
7.6 Berkeley Software Distribution. Portions of this Software may be based on code covered under the Berkeley Software Distribution (BSD) license under respective copyrights. Read this Section carefully before using this Software.
Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met:
Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer.
Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution.
Neither the name of the copyright holders nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission.
THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS “AS IS” AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THEIMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSEARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT OWNER OR CONTRIBUTORS BELIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER INCONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
7.7 COMMON DEVELOPMENT AND DISTRIBUTION LICENSE (CDDL) and General Public License (GPL). Portions of this Software may be based on code covered under the CDDL and GPL license under respective copyrights. Read this Section carefully before using this Software.
Copyright (c) 1997-2018 Oracle and/or its affiliates. All rights reserved.
The contents of this file are subject to the terms of either the GNU General Public License Version 2 only (“GPL”) or the Common Development and Distribution License (“CDDL”) (collectively, the “License”). Licensee may not use this file except in compliance with the License. This program is distributed in the hope that it will be useful, but WITHOUT ANY WARRANTY; without even the implied warranty of MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE.
See the GNU General Public License for more details. Licensee can obtain a copy of the License at https://oss.oracle.com/licenses/CDDL+GPL-1.1. See the License for the specific language governing permissions and limitations under the License.
7.8 Eclipse Foundation. Portions of this Software may be based on code covered under the Eclipse Distribution License (EDL). Read this Section carefully before using this Software.
Copyright (c) 2007, Eclipse Foundation, Inc. and its licensors.
All rights reserved.
Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met:
Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer.
* Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution.
* Neither the name of the Eclipse Foundation, Inc. nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission.
THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS “AS IS” AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT OWNER OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
Portions of this Software may be based on code covered under the Eclipse Public License (EPL) versions 1 and 2. Full texts of these licenses may be obtained at https://www.eclipse.org/legal/epl-v10.html and https://www.eclipse.org/legal/epl-2.0/ respectively and are incorporated herein.
7.9 GNU Lesser Public License. Portions of this Software may be based on code covered under the GNU Lesser Public License (GLPL) license versions 2.1 and 3.0 under respective copyrights. Full texts of these licenses may be obtained at https://www.gnu.org/licenses/old-licenses/lgpl-2.1.html and https://www.gnu.org/licenses/lgpl-3.0.en.html respectively and are incorporated herein.
7.10 International Components for Unicode. Portions of this Software may be based on code covered under the International Components for Unicode (ICU) license version 1.8.1 and above, under respective copyrights. Read this Section carefully before using this Software.
Copyright (c) 1995-2016 International Business Machines Corporation and others
All rights reserved.
Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the “ICU Software”), to deal in the ICU Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, and/or sell copies of the ICU Software, and to permit persons to whom the ICU Software is furnished to do so, provided that the above copyright notice(s) and this permission notice appear in all copies of the ICU Software and that both the above copyright notice(s) and this permission notice appear in supporting documentation.
THE ICU SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. IN NO EVENT SHALL THE COPYRIGHT HOLDER OR HOLDERS INCLUDED IN THIS NOTICE BE LIABLE FOR ANY CLAIM, OR ANY SPECIAL INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THIS ICU SOFTWARE.
Except as contained in this notice, the name of a copyright holder shall not be used in advertising or otherwise to promote the sale, use or other dealings in this ICU Software without prior written authorization of the copyright holder.
All trademarks and registered trademarks mentioned herein are the property of their respective owners.
7.11 Massachusetts Institute of Technology. Portions of this Software may be based on code covered under the Massachusetts Institute of Technology (MIT) License under respective copyrights listed below. Read this Section carefully before using this Software.
Copyright (c) 2004-2011 QOS.ch
All rights reserved.
Copyright (c) 2000 - 2020 The Legion of the Bouncy Castle Inc.
Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the “MIT Software”), to deal in the MIT Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the MIT Software, and to permit persons to whom the MIT Software is furnished to do so, subject to the following conditions:
The above copyright notice and this permission notice shall be included in all copies or substantial portions of the MIT Software.
THE MIT SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE MIT SOFTWARE OR THE USE OR OTHER DEALINGS IN THE MIT SOFTWARE.
SECTION 8. UNIQUE TERMS FOR COUNTRIES OTHER THAN THE UNITED STATES.
The terms in this Section 8 apply to the Diamond IP Software. To the extent Licensee is located in a country other than the United States, the provisions set forth in this Section 8 that are applicable to such country shall supplement and/or modify the corresponding terms specified above in this Agreement.
8.1.1 Limitation of Remedies and Damages (Section 1.5). The following paragraph is added to this Section: “Where Cygna Labs is in breach of a condition of warranty implied by the Trade Practices Act 1974, Cygna Lab’s liability is limited to: (a) where Cygna Labs supplied Services - the cost of having the Services supplied again; or (b) where Cygna Labs supplied goods - the repair or replacement of the goods, or the supply of equivalent goods.” Where that condition or warranty relates to right to sell, quiet possession or clear title, or the goods are of a kind ordinarily acquired for personal, domestic or household use or consumption, then none of the limitations in this paragraph apply.
8.1.2 Limited Warranty (Section 3.3; Section 6). The warranties specified these Sections are in addition to any rights Licensee may have under the Trade Practices Act or other legislation and are only limited to the extent permitted by the applicable legislation.
8.2 Canada. Miscellaneous (Section 1.14). This Agreement is governed by the laws of the Province of Ontario.
8.3 Central Europe and Russia.** Miscellaneous (Section 1.14). This Agreement is governed by the material laws of Austria. All disputes and controversies between the parties arising out of, or in connection with, this Agreement or its implementation, performance or interpretation, shall be finally settled under the Rules of Arbitration and Reconciliation of the Arbitral Centre of the Federal Economic Chamber in Vienna (Vienna Rules), by three arbitrators appointed in accordance with said Rules. The arbitration shall be held in Vienna, Austria. The official language of the proceedings shall be English. The decision of the arbitrators shall be final and binding upon both parties and therefore, the parties pursuant to paragraph 588(2) of the Austrian code of Civil Procedure, expressly waive the application of paragraph 595(1), figure 7 of said Code. The clauses set forth above shall, however, in no way limit Cygna Labs’s right to institute proceedings in any court of competent jurisdiction.
8.4 Estonia, Latvia and Lithuania.** Miscellaneous (Section 1.14). All disputes arising in connection with the present Agreement shall be finally settled in Arbitration. Each party shall appoint one arbitrator and they shall jointly appoint the chairman. If they cannot agree on the chairman, then the chairman shall be appointed by the Central Chamber of Commerce in Helsinki. In the Arbitration the law on Arbitration will be adhered to. Finnish law shall apply. The arbitrators shall come together in Helsinki.
8.5 Germany, Austria and Switzerland.**
8.5.1 Limitation of Remedies and Damages (Section 1.5). The limitations and exclusions specified in the Agreement will not apply to damages caused by Cygna Labs with intention or gross negligence.
8.5.2 Miscellaneous (Section 1.14). The limitation on bringing a legal action is not applicable in case of tort by either Cygna Labs, its agents or Licensee.
8.5.3 Limited Warranty (Section 3.3; Section 6). The warranty for the Deliverable(s) covers the functionality of the Deliverable(s) for their normal use. In case the Deliverable(s) are delivered without specifications, Cygna Labs will only warrant that the information provided with the Deliverable(s) correctly describes the Deliverable(s) and that the Deliverable(s) can be used according to the information provided. In case non-Cygna Labs software, hardware and documentation are delivered by Cygna Labs, the warranty for such non-Cygna Labs software or documentation is the same warranty as specified in this Agreement, unless otherwise agreed by the parties in writing.
8.6 Israel.** Miscellaneous (Section 1.14). The limitation on bringing a legal action will be according to the law of limitation provided a notification concerning the cause of action was sent no more than two years after the cause of action arose or became known to plaintiff.
8.7 Ireland.** Limited Warranty (Section 3.3; Section 6). No statement in this Agreement shall affect the statutory rights of consumers.
8.8 Middle Eastern Countries (Abu-Dhabi (U.A.E.), Bahrain, Dubai (U.A.E.), Oman, Kuwait and Qatar). Miscellaneous (Section 1.14). This Agreement is governed by the law and jurisdiction of Bahrain.
8.9 New Zealand.**
8.9.1 Limitation of Remedies and Damages (Section 1.5). The following paragraph will be added to this Section: “Where products or services are not acquired for the purposes of a business as defined in the Consumer Guarantees Act 1983, the limitations in this Section are subject to the limitations in that Act.”
8.9.2 Limited Warranty (Section 3.3; Section 6). The warranties specified in these Sections are in addition to any rights Licensee may have under the Consumers Guarantee Act 1993 or other legislation which cannot be excluded or limited. The Consumer Guarantees Act 1993 will not apply in respect of any goods or services which Cygna Labs provides if Licensee requires the goods or services for the purposes of a business as defined in that Act.
8.10 People’s Republic of China.**
8.10.1 Miscellaneous (Section 1.14). The laws of the State of New York govern this Agreement. Any dispute concerning this Agreement may be settled by arbitration. The arbitration will take place in Stockholm, Sweden, under the auspices of the International Arbitration Center in English in accordance with the rules then in effect under the United Nations Commission on International Trade Law (UNCITRAL). The arbitration award will be final and binding on both parties and both parties shall act accordingly. The arbitration fee shall be borne by the losing party.
8.10.2Licenses (Section 3.1). All banking charges incurred in the People’s Republic of China shall be borne by Licensee and those incurred outside the People’s Republic of China shall be borne by Cygna Labs.
8.11 United Kingdom.** Limitation of Remedies and Damages (Section 1.5). The limitation of liability shall not apply to any breach of Cygna Labs’s obligations implied by Section 12 of the Sales of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act of 1982.