Enterprise End User License Agreement
File Viewer Plus Software

This Enterprise End User License Agreement (this “Agreement”) is made between Sharpened Productions, Inc (“Company”), and you (“Customer,” “you” or “your”), for the use of File Viewer Plus (the “Software”), as described herein. By downloading, installing or using the Software accompanying this Agreement, you acknowledge that you have reviewed and accept this Agreement. If you are agreeing to this Agreement as an individual, “Customer,” “you” and “your” refers to you individually. If you are agreeing to this Agreement as a representative of an entity, you represent that you have the authority to bind that entity, and “Customer,” “you” and “your” refers to that entity.

If you do not agree with all of the terms of this Agreement, do not download or otherwise use the Software.

1. Definitions. In this Agreement, the following capitalized terms have the following meanings.

   1. 1.1 “Affiliate” means any entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with the subject entity. For purposes of this definition, “control” means direct or indirect possession of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract or otherwise.

   2. 1.2 “Authorized Purposes” means Customer’s internal business purposes.

   3. 1.3 “Customer System” means Customer’s internal website(s), servers and other equipment and software, including, without limitation, mobile devices and systems based on virtual or logical emulations.

   4. 1.4 “Delivery Date” means the date (1) the Software is scheduled to be made available to Customer, as set forth in the applicable Purchase Agreement, or (2) Customer first installs Evaluation Software. Notwithstanding anything else herein or in a Purchase Agreement, if a License is being acquired pursuant to a Purchase Agreement, the Delivery Date shall not be before the date on which full payment is received by Company for the relevant Software. 1.5 “Evaluation Offer” means a communication from Company to you in writing (including, for example, by e-mail or via a prompt when using the Software) offering you one or more licenses to the Software on a short-term limited basis so you may evaluate the Software for potential purchase. If there is any inconsistency or conflict between an Evaluation Offer and this Agreement, this Agreement controls, unless the Evaluation Offer specifically identifies by Section reference the provision that such Evaluation Offer is modifying, and then such change will apply for such Evaluation Offer only. Any terms or conditions stated in any Evaluation Offer that are inconsistent or contrary to this Agreement (except for details of the software provided, quantity of licenses, evaluation period, Delivery Date and other details of delivery which are not pre-printed and which are not inconsistent with the terms of this Agreement) shall be of no force and effect, and no course of dealing, usage of trade, or course of performance shall be relevant to explain or modify any term expressed in this Agreement.

   5. 1.6 “Evaluation Software” means Software installed or used under a License provided pursuant to an Evaluation Offer.

   6. 1.7 “Intellectual Property Rights” means all intellectual property rights or similar proprietary rights, including (a) patent rights and utility models, (b) copyrights and database rights, (c) trademarks, trade names, domain names and trade dress and the goodwill associated therewith, (d) trade secrets, (e) mask works, and (f) industrial design rights; in each case, including any registrations of, applications to register, and renewals and extensions of, any of the foregoing in any jurisdiction in the world.

   7. 1.8 “Open Source Software” means all software that is available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that approved by the Open Source Initiative (www.opensource.org).

   8. 1.9 “Procurement Documentation” means a Purchase Agreement or Evaluation Offer.

   9. 1.10 “Purchase Agreement” means the ordering documents for Services and licenses for Software purchased from Company that are entered into or otherwise mutually accepted in writing hereunder by the parties from time to time, including modifications, supplements and addenda thereto. If there is any inconsistency or conflict between a Purchase Agreement and this Agreement, this Agreement controls, unless the Purchase Agreement specifically identifies by Section reference the provision that such Purchase Agreement is modifying, and then such change will apply for such Purchase Agreement only. Any terms or conditions stated in any Purchase Agreement, sales acknowledgment or invoice that are inconsistent or contrary to this Agreement (except for details of the software provided, price, quantity of licenses, subscription term, Delivery Date and other details of delivery which are not pre-printed and which are not inconsistent with the terms of this Agreement) shall be of no force and effect, and no course of dealing, usage of trade, or course of performance shall be relevant to explain or modify any term expressed in this Agreement.

   10. 1.11 “Software” means the File Viewer Plus software product specified in the applicable Procurement Documentation and any Company Updates that Company provides to Customer in accordance with Support Services that Customer is entitled to receive pursuant to this Agreement, all in object code form only. For all purposes of this Agreement, “Software” excludes any open source software and all Third Party Offerings, such as third party software, content and other virtual and digital assets.

   11. 1.12 “Software Documentation” means the printed, paper, electronic or online user instructions and help files made generally available by Company for use with the Software, as may be updated from time to time by Company.

   12. 1.13 “Support Services” means the support and maintenance services provided by Company under Section 6 below.

   13. 1.14 “Third Party Offerings” means certain software or services delivered or performed by third parties that are required for the operation of the Software.

   14. 1.15 “Updates” means bug fixes, patches and maintenance releases to the Software to the extent made generally available by Company to its licensees.

   15. 1.16 “Users” means Customer’s or its Affiliates’ employees, consultants, contractors, agents and third parties with whom Customer may transact business and (a) for whom access to the Software has been purchased pursuant to a Purchase Agreement or is being provided on a trial basis as specified in an Evaluation Offer, (b) who are authorized by Customer or its Affiliates to access and use the Software, and (c) where applicable, who have been supplied user identifications and passwords for such purpose by Customer (or by Company at Customer’s request).

2. Orders; License Grant, Activation Key, and Performance Warranty

   • 2.1 Orders. Subject to the terms and conditions contained in this Agreement, you may purchase licenses for Users to use the Software pursuant to a Purchase Agreement, or be offered licenses for Users to use the Software on a short-term trial basis pursuant to an Evaluation Offer. Unless otherwise specified in the applicable Procurement Documentation, Customer shall install and use the software in accordance with one or more of the following only: (1) on up to two computers for each User; or (2) in the case of shared or virtual systems, on one or more systems for which the number of users does not exceed the number of Users; but in no event shall the number of users in (1) and (2), separately or in combination, exceed the number of Users. Users may not transfer licenses and may not install or use the Software on more than the designated number of unique computers specified in the Procurement Documentation.

   • 2.2 License Grant and License Limitations. Subject to the terms and conditions of this Agreement, Company hereby grants you a non-exclusive, non-transferable, non-assignable, revocable, limited license (the “License”) to reproduce the Software so as to maintain the number of installations permitted in Section 2.1, and to use the Software and any Software Documentation, without the right to sublicense the Software, solely for Customer’s Authorized Purposes and not for the benefit of any other person or entity. The License shall automatically terminate at the end of the period specified in Customer’s Procurement Documentation (or if no such period is specified in an Evaluation Offer, then thirty (30) days from the Delivery Date), absent extension of the License’s term in new Procurement Documentation or as otherwise authorized by Company in writing. You may not, nor permit any third party to, loan, lease, distribute, transfer or make available the Software to any third party. Except as necessary for your personal use of the Software, you may not copy the Software, in whole or in part, except for the open source third party components listed in Section 13 whose licenses provide the right to copy such components. Your use of the Software may be subject to certain limitations as set forth in the applicable Procurement Documentation. Any such limitations will be specified either in the Procurement Documentation or in the Software Documentation. Except as expressly granted in this Agreement, there are no other licenses granted to Customer, express, implied or by way of estoppel. All rights not granted in this Agreement are reserved by Company.

   • 2.3 Restrictions. You may not, directly or indirectly, and you will not permit any User or third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Software; (b) modify, translate, or create derivative works based on any element of the Software or any related Software Documentation; (c) rent, lease, distribute, sell, resell, assign, or otherwise transfer your rights to use the Software, unless Company has authorized you in writing to resell the Software; (d) use the Software for timesharing purposes or otherwise for the benefit of any person or entity other than for the benefit of Customer and Users; (e) remove any proprietary notices from the Software Documentation; (f) publish or disclose to third parties any evaluation or benchmarking of the Software without Company’s prior written consent; (g) use the Software for any purpose other than its intended purpose; (h) interfere with or disrupt the integrity or performance of the Software; or (i) attempt to gain unauthorized access to the Software or Company’s systems or networks.

   • 2.4 Activation Key. You may activate the Software using an activation key provided by Customer or by Company, as set forth in the applicable Procurement Documentation.

   • 2.5 Performance Warranty. If your License has been purchased via a Purchase Agreement, Company warrants the Software will perform in material respect as described in the Software Documentation (the “Warranty”) for a period of 30 days from the date of the order purchase (the “Warranty Period”). If Customer becomes aware of the Software not functioning in substantial conformance with the Software Documentation (a “Defect”), Customer must provide Company with written notice that includes a reasonably detailed explanation of the Defect within the Warranty Period. If you are provided with a Warranty pursuant to this Section 2.5, Company is notified of a Defect within the Warranty Period, and Company is able to reproduce the Defect in Company’s own operating environment, Company will use commercially reasonable efforts to promptly correct the Defect or provide a replacement software product to Customer with substantially similar functionality. THE FOREGOING SETS FORTH COMPANY’S SOLE AND EXCLUSIVE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY DEFECTIVE SOFTWARE.

   • 2.6 Evaluation Software. Any use of Evaluation Software shall only be for demonstration, evaluation and training purposes. NOTWITHSTANDING ANYTHING ELSE HEREIN, EVALUATION SOFTWARE IS PROVIDED “AS IS” AND ANY ACCESS TO OR USE OF ANY OUTPUT CREATED WITH EVALUATION SOFTWARE IS ENTIRELY AT YOUR OWN RISK. You may only install or use Evaluation Software pursuant to one Evaluation Offer. After the evaluation period specified in an Evaluation Offer expires, you shall not be eligible for a License again pursuant to an Evaluation Offer. If an Evaluation Offer does not specify the length of the applicable evaluation period, the evaluation period shall be deemed to be thirty (30) days.

3. Confidentiality.

   • 3.1 Confidential Information. “Confidential Information” means any and all non-public technical and non-technical information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in any form or medium, whether oral, written, graphical or electronic, pursuant to this Agreement, that is marked confidential and proprietary, or that the Disclosing Party identifies as confidential and proprietary, or that by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as confidential and proprietary information, including but not limited to: (a) techniques, sketches, drawings, models, inventions (whether or not patented or patentable), know-how, processes, apparatus, formulae, equipment, algorithms, software programs, software source documents, APIs, and other creative works (whether or not copyrighted or copyrightable); (b) information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising and marketing plans and information; (c) proprietary or confidential information of any third party who may disclose such information to Disclosing Party or Receiving Party in the course of Disclosing Party’s business; and (d) the terms of this Agreement and any Procurement Documentation. Confidential Information of Company shall include the Software, the Software Documentation, Company’s pricing, and information regarding the characteristics, features or performance of Beta Licenses and Non-GA Solutions. Confidential Information also includes all summaries and abstracts of Confidential Information.

   • 3.2 Non-Disclosure. Each party acknowledges that in the course of the performance of this Agreement, it may obtain the Confidential Information of the other party. The Receiving Party shall, at all times, both during the term of this Agreement and thereafter, use reasonable efforts to keep in confidence and trust all of the Disclosing Party’s Confidential Information received by it. The Receiving Party shall not use the Confidential Information of the Disclosing Party other than as necessary to fulfill the Receiving Party’s obligations or to exercise the Receiving Party’s rights under this Agreement. Each party agrees to secure and protect the other party’s Confidential Information with the same degree of care and in a manner consistent with the maintenance of such party’s own Confidential Information (but in no event less than reasonable care), and to take appropriate action by instruction or agreement with its employees, Affiliates or other agents who are permitted access to the other party’s Confidential Information to satisfy its obligations under this Section. The Receiving Party shall not disclose Confidential Information of the Disclosing Party to any person or entity other than its officers, employees, affiliates and agents who need access to such Confidential Information in order to effect the intent of this Agreement and who are subject to confidentiality obligations at least as stringent as the obligations set forth in this Agreement.

   • 3.3 Exceptions to Confidential Information. The obligations set forth in Section 3.2 (Non-Disclosure) shall not apply to the extent that Confidential Information includes information which: (a) was known by the Receiving Party prior to receipt from the Disclosing Party either itself or through receipt directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) was developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except as a result of a breach of this Agreement or any obligation of confidentiality by the Receiving Party. Nothing in this Agreement shall prevent the Receiving Party from disclosing Confidential Information to the extent the Receiving Party is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the Receiving Party shall (x) assert the confidential nature of the Confidential Information to the agency; (y) immediately notify the Disclosing Party in writing of the agency’s order or request to disclose; and (z) cooperate fully with the Disclosing Party in protecting against any such disclosure and in obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.

   • 3.4 Injunctive Relief. The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Receiving Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.

4. Proprietary Rights.

   • 4.1 Software. As between Company and Customer, all right, title and interest in the Software and any materials, software, virtual items and other content furnished or made available hereunder, and all modifications and enhancements thereof, and all suggestions, ideas and feedback proposed by Customer regarding any such items, including all copyright rights, patent rights and other Intellectual Property Rights in each of the foregoing, belong to and are retained solely by Company or Company’s licensors and providers, as applicable, and to the extent Customer has any right, title or interest to any of the foregoing, Customer hereby assigns all such right, title and interest to Company.

   • 4.2 Company Developments. All inventions, works of authorship and developments conceived, created, written, or generated by or on behalf of Company, whether solely or jointly, and all Intellectual Property Rights therein, shall be the sole and exclusive property of Company. Customer agrees that to the extent that the ownership of any contribution by Customer or its employees to the creation of the Software is not, by operation of law or otherwise, vested in Company, Customer hereby assigns and agrees to assign to Company all right, title and interest in and to such contributions, including without limitation all the Intellectual Property Rights therein, without the necessity of any further consideration.

   • 4.3 Further Assurances. To the extent any of the rights, title and interest in and to Intellectual Property Rights therein cannot be assigned by Customer to Company, Customer hereby grants to Company an exclusive, royalty-free, transferable, irrevocable, worldwide, fully paid-up license (with rights to sublicense through multiple tiers of sublicensees) to fully use, practice and exploit those non-assignable rights, title and interest. If the foregoing assignment and license are not enforceable, Customer agrees to waive and never assert against Company those non-assignable and non-licensable rights, title and interest. Customer agrees to execute any documents or take any actions as may reasonably be necessary, or as Company may reasonably request, to perfect ownership of such rights. If Customer is unable or unwilling to execute any such document or take any such action, Company may execute such document and take such action on Customer’s behalf as Customer’s agent and attorney-in-fact. The foregoing appointment is deemed a power coupled with an interest and is irrevocable.

5. Customer Obligations. Customer is responsible for (a) obtaining, deploying and maintaining Customer’s computer system and all computer hardware, software, modems, routers and other computer and communications equipment necessary for Customer, its Affiliates and their respective Users to use the Software; and (b) paying all third party fees and access charges incurred in connection with the foregoing. Except as specifically set forth in this Agreement or a Purchase Agreement, Company shall not be responsible for supplying any hardware or other equipment to Customer under this Agreement.

6. Maintenance and Support Services

   • 6.1 Maintenance and Support. Subject to the terms and conditions of this Agreement (including payment of the applicable fees, if any), Company will use commercially reasonable efforts to provide Support Services to Customer if Customer has an active paid subscription to a License to the Software (for the sake of clarity, no Support Services shall be provided in connection with Evaluation Software). Support Services shall include (and be limited to) (a) technical support by email (with responses being provided in a reasonable time frame), and (b) Updates generally issued by Company to customers. Company shall only provide Support Services for the then-current version of the Software and any other versions of the Software that were initially released by Company in the two years prior to the reference date (such supported versions of the Software referred to herein as the “Supported Versions”). In no event will Support Services apply with respect to Third Party Offerings. Company does not guarantee that it will provide Support Services for any versions other than the Supported Versions.

   • 6.2 Support Term; Termination. Unless otherwise specified in a Purchase Agreement, Company will provide Support Services starting on the Delivery Date and ending on the date that Customer’s paid subscription ends.

7. Audit. Company shall have the right to review Customer’s use of the Software and enter Customer’s facilities and premises solely to verify only that the number of computers with the Software used by Customer does not exceed the number of licenses granted to Customer under this Agreement. Any visit to Customer’s facilities under this Section shall be subject to Customer’s on site regulations and shall occur at a mutually agreed upon day and time no earlier than 10 days after notice from Company. Alternatively, Company may request that Customer provide a written report as to identity the location of the computers with the Software (detailed on a monthly basis) in order to verify compliance with the license granted herein. If an audit reveals an overuse of licenses, Company shall issue an invoice for the number of licenses equal to the number of such excess computers at the then-current rate for the Software and Customer shall pay such invoice within thirty (30) days of date of invoice. Company will pay the costs of the audit unless such audit reveals additional computers being operated by the Customer without permission of Company, in which event the costs of the audit shall be paid by Customer.

8. Representations and Warranties; Disclaimer

   • 8.1 Mutual Representations and Warranties. Each party represents, warrants and covenants that: (a) it has the full power and authority to enter into this Agreement and to perform its obligations hereunder, without the need for any consents, approvals or immunities not yet obtained; and (b) its acceptance of and performance under this Agreement shall not breach any oral or written agreement with any third party or any obligation owed by it to any third party to keep any information or materials in confidence or in trust.

   • 8.2 WARRANTY DISCLAIMER. EXCEPT FOR THE LIMITED WARRANTY PROVIDED ABOVE IN SECTION 2.5, THE SOFTWARE IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF NON-INFRINGEMENT, PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK IN CONNECTION WITH THE SOFTWARE AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY SHALL CREATE A WARRANTY. COMPANY DOES NOT GUARANTEE THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, OR BE ERROR-FREE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS AS SPECIFIED HERE AND TO THE LEAST EXTENT AS ALLOWED BY LAW, SUCH EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.

     NO AGENT OF COMPANY IS AUTHORIZED TO ALTER OR EXPAND THE WARRANTIES OF COMPANY AS SET FORTH HEREIN. COMPANY DOES NOT WARRANT THAT: (A) THE USE OF THE SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY NON-SUPPORTED HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; OR, (C) THE SOFTWARE WILL BE ERROR-FREE OR THAT ERRORS OR DEFECTS IN THE SOFTWARE WILL BE CORRECTED. THE SOFTWARE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS

9. Indemnity; Limitation on Liability.

   • 9.1 Company Indemnity.

     • (a) General. During such time as Customer maintains a current version of the Software (but excluding Evaluation Software), Company shall defend Customer and its Affiliates (the “Customer Indemnified Parties”) from and against all actions, proceedings, claims and demands by a third party (a “Third-Party Claim”) alleging that the Software infringes any copyright or misappropriates any trade secret. Company’s obligations under this Section are conditioned upon (i) Company being promptly notified in writing of any claim under this Section, (ii) Company having the sole and exclusive right to control the defense and settlement of the claim, and (iii) Customer providing all reasonable assistance in the defense of such claim. In no event shall Customer settle any claim without Company’s prior written approval. Customer may, at its own expense, engage separate counsel to advise Customer regarding a Claim, subject to Company’s right to control the defense and settlement.

     • (b) Mitigation. If any claim which Company is obligated to defend has occurred, or in Company’s determination is likely to occur, Company may, in its sole discretion and at its option and expense (a) obtain for Customer the right to use the Software, (b) substitute a functionality equivalent, non-infringing replacement for such the Software, (c) modify the Software to make it non-infringing and functionally equivalent, or (d) terminate this Agreement.

     • (c) Exclusions. Notwithstanding anything to the contrary in this Agreement, the foregoing obligations shall not apply with respect to a claim of infringement if such claim arises out of (i) use of the Software in combination with any software, hardware, network or system not supplied by Company where the alleged infringement relates to such combination, (ii) any modification or alteration of the Software other than by Company, (iii) Customer’s continued use of the Software after Company notifies Customer to discontinue use because of an infringement claim, (iv) use of Open Source Software, (v) Customer’s violation of applicable law, (vi) Customer System, or (vii) Evaluation Software.

     • (d) Sole Remedy. THIS SECTION 9.1 STATES THE ENTIRE LIABILITY OF COMPANY WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY THE SOFTWARE OR OTHERWISE, AND CUSTOMER HEREBY EXPRESSLY WAIVES ANY OTHER LIABILITIES OR OBLIGATIONS OF COMPANY WITH RESPECT THERETO.

   • 9.2 Customer Indemnity. Customer shall defend and indemnify Company and its Affiliates, licensors and their respective officers, directors and employees (“Company Indemnified Parties”) from and against any and all Third-Party Claims which arise out of or relate to: (a) Customer’s use or alleged use of the Software other than as permitted under this Agreement, (b) Customer or its Affiliates’ Users use of the Software in violation of any applicable law or regulation, or the Intellectual Property Rights or other rights of any third party, or (c) arising from the occurrence of any of the exclusions set forth in Section 9.1(c) (Exclusions). Customer shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) paid to the Third Party bringing any such Third-Party Claim. Customer’s obligations under this Section 9.2 are conditioned upon (x) Customer being promptly notified in writing of any claim under this Section 9.2, (y) Customer having the sole and exclusive right to control the defense and settlement of the claim, and (z) Company providing all reasonable assistance (at Customer’s expense and reasonable request) in the defense of such claim. In no event shall Company settle any claim without Customer’s prior written approval, which approval shall not be unreasonably withheld, delayed or conditioned. Company may, at its own expense, engage separate counsel to advise Company regarding a Third-Party Claim and to participate in the defense of the claim, subject to Customer’s right to control the defense and settlement.

   • 9.3 LIMITATION OF LIABILITY AND DAMAGES; EXCLUSION OF REMEDIES AND DAMAGES. IN NO EVENT WILL COMPANY BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR SIMILAR DAMAGES OF ANY KIND ARISING UNDER OR IN ANY WAY RELATED TO THE SOFTWARE, THIS AGREEMENT OR ANY PROCUREMENT DOCUMENTATION. IN NO EVENT WILL COMPANY’S AGGREGATE LIABILITY ARISING UNDER OR IN ANY WAY RELATED TO THE SOFTWARE, THIS AGREEMENT OR ANY PROCUREMENT DOCUMENTATION EXCEED THE AGGREGATE LICENSE FEES PAID BY YOU IN THE TWELVE (12) MONTHS PRECEDING THE DATE THE RELEVANT LIABILITY ACCRUED FOR THE LICENSE GRANTED HEREUNDER, OR, IF NO FEES HAVE BEEN PAID, THE SUM OF ONE DOLLAR. THE FOREGOING LIMITATIONS WILL APPLY REGARDLESS OF THE FORM OF ANY CLAIM HEREUNDER, WHETHER FOR BREACH OR REPUDIATION OF ANY OTHER TERM OR CONDITION OF THIS AGREEMENT OR ANY RELATED WRITING, FOR NEGLIGENCE, ON THE BASIS OF STRICT LIABILITY, OR OTHERWISE. THIS IS YOUR EXCLUSIVE REMEDY. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY AS SPECIFIED HERE AND TO THE LEAST EXTENT AS ALLOWED BY LAW, SUCH EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.

10. Term and Termination.

    • 10.1 Term. The term of this Agreement commences on the Delivery Date and continues until terminated as provided in this Agreement.

    • 10.2 Termination for Cause. A party may terminate this Agreement (and all Licenses granted hereunder) upon written notice to the other party in the event the other party (a) files a petition for bankruptcy or has a petition for bankruptcy filed against it that is not dismissed within sixty (60) days after filing or admits its inability to pay its debts as they mature, makes an assignment for the benefit of its creditors or ceases to function as a going concern or to conduct its operations in the normal course of business and such termination shall occur immediately upon notice; or (b) commits a material breach of any provision of this Agreement and does not remedy such breach within 30 days (or 10 days after a failure to pay any fees hereunder) after receipt of notice from the other party or such other period as the parties may agree. Upon any termination for cause by Company, Customer shall pay any unpaid fees covering the remainder of the term of all Purchase Agreements after the effective date of termination. In no event shall any termination relieve Customer of the obligation to pay any fees payable to Company for the period prior to the effective date of termination.

    • 10.3 Termination for Convenience. Company shall have the right to terminate this Agreement or any License for convenience on at least 10 days prior written notice to Customer, provided that Company provides a pro rata refund of any pre-paid fees for remainder of the subscription term. Absent Company’s termination of this Agreement or any License pursuant to this Section 10.3, all pre-paid fees are non-refundable.

    • 10.4 Effects of Termination. Upon expiration or termination of this Agreement, (a) the License shall terminate, (b) Customer’s use of and access to the Software and Company’s performance of all Support Services shall cease, and (c) all fees and other amounts owed to Company shall be immediately due and payable by Customer. Within ten (10) days of the effective date of termination each Receiving Party shall: (a) return to the Disclosing Party, or at the Disclosing Party’s option, the Receiving Party shall destroy, all items of Confidential Information then in the Receiving Party’s possession or control, including any copies, extracts or portions thereof, and (b) upon request shall certify in writing to Disclosing Party that it has complied with the foregoing.

11. Copyright. The Software is protected by United States copyright laws and international treaty provisions. Unauthorized use or copying of the Software is expressly prohibited, except as explicitly set forth in this Agreement. Any copies that you are authorized to make pursuant to this Agreement must contain the same, unmodified copyright and proprietary rights notices that appear in the Software.

12. Confidentiality. You acknowledge and agree that the Software and Software Documentation related to its use include proprietary information that are Company’s exclusive property. You agree not to use or disclose this proprietary information except as authorized under this Agreement.

13. Third Party Software Components. The Software uses open source components, and your use of the Software is subject to the terms and conditions of the software licenses governing those components. The open source components in the Software include 7-Zip (7z.dll, LGPL); ATViewer 3.1.0 (MPL 1.1); dcraw (non-GPL); FFmpeg (LGPL 2.1) (further information available here: http://ffmpeg.org/about.html); ImageMagick (Apache 2.0 License); JEDI JCL (MPL 1.1); libgsm (LGPL); libmp3lame (LGPL); libopenjpeg (BSD); librtmp (LGPL); libspeex (BSD); libtheora (BSD); libvo-aacenc (LGPL); libvorbis (BSD); libvpx (BSD); libwps (LGPL 2.0); opencore-amr (Apache 2.0 License); SDL (LGPL 2.1); ExifTool (The “Artistic License”). Information about the authors and copyright ownership of those open source components, and the applicable license terms, can be found within the Software’s installation directory. The source code of LGPL components can be found on the Software’s website at FileViewerPlus.com.

14. Miscellaneous.

    • 14.1 Notices. Company may give notice to Customer by means of electronic mail to Customer’s e-mail address on record with Company, or by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service to Customer’s address on record with Company. Customer may give notice to Company by written communication sent by e-mail to [email protected] for by first class postage prepaid mail or nationally recognized overnight delivery service addressed to Company, 7455 France Ave. S. #100, Edina, MN 55435. Notice shall be deemed to have been given upon receipt or, if earlier, two (2) business days after mailing, as applicable. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.

    • 14.2 U.S. Government Customers. If Customer is a Federal Government entity, Company provides the Software, including related software and technology, for ultimate Federal Government end use solely in accordance with the following: Government technical data rights include only those rights customarily provided to the public with a commercial item or process and Government software rights related to the Software include only those rights customarily provided to the public, as defined in this Agreement. The technical data rights and customary commercial software license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If greater rights are needed, a mutually acceptable written addendum specifically conveying such rights must be included in this Agreement.

    • 14.3 Export. The Software utilizes software and technology that may be subject to United States and foreign export controls. Customer acknowledges and agrees that the Services shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Software, Customer represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National, or that has been designated by the U.S. Government as a “terrorist supporting” country. The Software may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. Customer agrees to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. Company and its licensors make no representation that the Software is appropriate or available for use in other locations. None of the information acquired through the use of the Software, is or will be used for nuclear activities, chemical or biological weapons, or missile projects.

    • 14.4 General. Customer shall not assign its rights hereunder, or delegate the performance of any of its duties or obligations hereunder, whether by merger, acquisition, sale of assets, operation of law, or otherwise, without the prior written consent of Company. Any purported assignment in violation of the preceding sentence is null and void. Subject to the foregoing, this Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of the parties thereto. With the exception of Affiliates of Customer who have executed Purchase Agreements under this Agreement, there are no third-party beneficiaries to this Agreement. Except as otherwise specified in this Agreement, this Agreement may be amended or supplemented only by a writing that refers explicitly to this Agreement and that is signed on behalf of both parties. No waiver will be implied from conduct or failure to enforce rights. No waiver will be effective unless in a writing signed on behalf of the party against whom the waiver is asserted. If any of this Agreement is found invalid or unenforceable that term will be enforced to the maximum extent permitted by law and the remainder of the terms will remain in full force. The parties are independent contractors and nothing contained herein shall be construed as creating an agency, partnership, or other form of joint enterprise between the parties. This Agreement, including all applicable Procurement Documentation and separate or additional terms referred to herein, constitute the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral. Except for payment obligations hereunder, neither party shall be liable to the other party or any third party for failure or delay in performing its obligations under this Agreement when such failure or delay is due to any cause beyond the control of the party concerned, including, without limitation, acts of God, governmental orders or restrictions, fire, or flood, provided that upon cessation of such events such party shall thereupon promptly perform or complete the performance of its obligations hereunder.

15. Governing Law; Jurisdiction and Venue. This Agreement and all Procurement Documentation shall be governed by and construed in accordance with the laws of Delaware without regard to its choice of law principles. For purposes of confirmation or enforcement of any arbitration award, and for purposes of any proceedings to seek injunctive relief pursuant to Section 16(d), the parties irrevocably and unconditionally consent to venue in Hennepin County, Minnesota (and hereby expressly consent, and waive any claims of forum non conveniens with respect to such venue or any other objections to subject matter jurisdiction, personal jurisdiction and venue in such courts) and to the exclusive jurisdiction of: (a) the U.S. District Court of Minnesota, Minneapolis Division, if such jurisdiction exists; and (b) otherwise in the Minneapolis state court of competent jurisdiction located in Hennepin County, Minnesota for all litigation that may be brought with respect to, and the transactions and relationships contemplated by, the Agreement or any Procurement Documentation. The parties further consent to the jurisdiction of any state court located within a district that encompasses assets of a party against which a judgment has been rendered for the enforcement of such judgment against the assets of such party. The Uniform Computer Information Transactions Act (UCITA) and the United Nations Convention on Contracts for the International Sale of Goods will not apply to the Agreement or any Procurement Documentation.

16. Arbitration.

    • (a) IN CONSIDERATION OF THE PROMISES IN THIS AGREEMENT, CUSTOMER AND COMPANY AGREE THAT ANY AND ALL CONTROVERSIES, CLAIMS, OR DISPUTES RELATED TO A CLAIM OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT) THAT MAY BE BASED UPON, ARISE OUT, OR RELATE TO THIS AGREEMENT OR ANY PROCUREMENT DOCUMENTATION, OR THE NEGOTIATION, VALIDITY, EXECUTION, INTERPRETATION OR PERFORMANCE THEREOF, SHALL BE SUBJECT TO BINDING ARBITRATION. THE ARBITRATION SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT, 9 U.S.C. § 1 ET SEQ., TO THE EXCLUSION OF STATE LAWS INCONSISTENT THEREWITH.

    • (b) Procedure. CUSTOMER AGREES THAT ANY ARBITRATION WILL BE ADMINISTERED BY JAMS (FORMERLY KNOWN AS JUDICIAL ARBITRATION AND MEDIATION SERVICES, INC.) IN HENNEPIN COUNTY, MINNESOTA AND THAT THE NEUTRAL ARBITRATOR WILL BE SELECTED IN A MANNER CONSISTENT WITH JAMS’S APPLICABLE RULES. CUSTOMER AGREES THAT THE ARBITRATOR SHALL HAVE THE POWER TO DECIDE ANY MOTIONS BROUGHT BY ANY PARTY TO THE ARBITRATION, INCLUDING MOTIONS FOR SUMMARY JUDGMENT AND/OR ADJUDICATION AND MOTIONS TO DISMISS AND DEMURRERS, PRIOR TO ANY ARBITRATION HEARING. CUSTOMER ALSO AGREES THAT THE ARBITRATOR SHALL HAVE THE POWER TO AWARD ANY REMEDIES, INCLUDING ATTORNEYS’ FEES AND COSTS, AVAILABLE UNDER APPLICABLE LAW. CUSTOMER AGREES THAT THE DECISION OF THE ARBITRATOR SHALL BE IN WRITING. THE ARBITRATOR’S AWARD MAY BE ENFORCED IN ANY COURT WITH JURISDICTION.

    • (c) Remedy. EXCEPT AS PROVIDED BY APPLICABLE LAW AND THIS AGREEMENT, ARBITRATION SHALL BE THE SOLE, EXCLUSIVE AND FINAL REMEDY FOR ANY DISPUTE BETWEEN CUSTOMER AND COMPANY.

    • (d) Availability of Injunctive Relief. BOTH PARTIES AGREE THAT ANY PARTY MAY PETITION A COURT FOR INJUNCTIVE RELIEF WHERE EITHER PARTY ALLEGES OR CLAIMS A VIOLATION OF ANY CONFIDENTIAL INFORMATION OR INTELLECTUAL PROPERTY ASSIGNMENT AGREEMENT BETWEEN CUSTOMER AND COMPANY OR ANY OTHER AGREEMENT REGARDING TRADE SECRETS OR CONFIDENTIAL INFORMATION. BOTH PARTIES UNDERSTAND THAT ANY BREACH OR THREATENED BREACH OF SUCH AN AGREEMENT WILL CAUSE IRREPARABLE INJURY AND THAT MONEY DAMAGES WILL THEREFORE NOT PROVIDE AN ADEQUATE REMEDY AND BOTH PARTIES HEREBY CONSENT TO THE ISSUANCE OF AN INJUNCTION WITHOUT THE NEED TO POST A BOND. IN THE EVENT EITHER PARTY SEEKS INJUNCTIVE RELIEF, THE PREVAILING PARTY SHALL BE ENTITLED TO RECOVER REASONABLE COSTS AND ATTORNEYS’ FEES.

17. No Class Claims. THE PARTIES SHALL BRING ANY ARBITRABLE DISPUTES IN ARBITRATION ON AN INDIVIDUAL BASIS ONLY AND NOT AS A CLASS, COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE BASIS. ALL ARBITRATIONS SHALL BE CONDUCTED AS INDIVIDUAL CLAIMS AND EACH RESOLVED IN A SINGLE BINDING ARBITRATION BETWEEN PARTIES. THE PARTIES AGREE AND UNDERSTAND THAT THEY ARE WAIVING VALUABLE RIGHTS SUCH AS THE RIGHT TO HAVE A TRIAL IN COURT AND THE ABILITY TO ADJUDICATE CLAIMS ON A CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE BASIS.

18. Jury Trial Waiver. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY AND ALL CLAIMS, CAUSES OF ACTION, OR ANY OTHER PROCEEDINGS ARISING OUT OF OR RELATING TO THE AGREEMENT OR ANY PROCUREMENT DOCUMENTATION. THE PARTIES ACKNOWLEDGE THAT A RIGHT TO A JURY IS A CONSTITUTIONAL RIGHT, AND THAT THIS JURY TRIAL WAIVER HAS BEEN ENTERED INTO KNOWINGLY AND VOLUNTARILY BY ALL SUCH PARTIES.

Sharpened Productions Enterprise End User License Agreement
© 2024 Sharpened Productions, Inc All rights reserved.

Updated May 20, 2024