MegaSpeed/Speedstream End-User License Agreement

End User License Agreement Redistribution or Rental Not Permitted These Terms apply to the accelerator software downloaded to the end-user upon acceptance of this License Agreement (the "Product"). BY CLICKING THE ACCEPTANCE BUTTON OR INSTALLING OR USING THE PRODUCT, THE END-USER INDIVIDUAL OR ENTITY LICENSING THE PRODUCT ("LICENSEE") IS CONSENTING TO BE BOUND BY AND IS BECOMING A PARTY TO THIS AGREEMENT. IF LICENSEE DOES NOT AGREE TO ALL OF THE TER MS OF THIS AGREEMENT, THE BUTTON INDICATING NON-ACCEPTANCE MUST BE SELECTED, AND LICENSEE MUST NOT INSTALL OR USE THE SOFTWARE. 1. License Agreement In this Agreement "Licensor" shall mean the third-party supplier and owner of the copyright in the Product that has granted the right and license to the Licensee pursuant to this Agreement. 2. Licensee Grant Licensor grants Licensee a non-exclusive and non-transferable license to reproduce and use for personal or internal business purposes the executable code version of the Product, provided any copy must contain all of the original proprietary notices. This license does not entitle Licensee to receive from the Licensor hard-copy documentation, technical support, telephone assistance or enhancements or updates to the Product. Licensee may not customize the Product. Licensee may not redistribute the Product. 3. Restrictions Except as otherwise expressly permitted in this Agreement, Licensee may not: (a) modify or create any derivative works of the Product or documentation, including translation or localization; (b) decompile, disassemble, reverse engineer, or otherwise attem pt to derive the source code for the Product (except to the extent applicable laws specifically prohibit such restriction); (c) redistribute, encumber, sell, rent, lease, sub-license or otherwise transfer rights to the Product; (d) remove or alter any tra demark, logo, copyright or other proprietary notices, legends, symbols or labels in the Product; or (e) publish any results of benchmark tests run on the Product to a third party without the Licensor's prior written consent. 4. Fees The license fee for the Product is the fee charged by your supplier of the Product. Licensee is responsible for any and all taxes. 5. Termination Without prejudice to any other rights, Licensor may terminate this Agreement if Licensee breaches any of its terms and conditions. On termination, Licensee shall destroy all copies of the Product. 6. Proprietary Rights Title, ownership rights and intellectual property rights in the Product shall remain in the Licensor and/or its suppliers. Licensee acknowledges such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with the Licensor's or its suppliers' ownership of or rights with respect to the Product. The Product is protected by copyright and other intellectual property laws and by international treaties. Title and related rights in the content acce ssed through the Product is the property of the applicable content owner and is protected by applicable law. The license granted under this Agreement gives Licensee no rights to such content. 7. Disclaimer of Warranty THE PRODUCT IS PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, INCLUDING WITHOUT LIMITATION THE WARRANTIES THAT IT IS FREE OF DEFECTS, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE OR NON-INFRINGING. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PRODUCT IS BORNE BY LICENSEE. SHOULD THE PRODUCT PROVE DEFECTIVE IN ANY RESPECT, LICENSEE AND NOT LICENSOR OR ITS SUPPLIERS OR RESELLERS ASSUMES THE ENTIRE COST OF ANY SERVICE AND REPAIR. IN ADDITION, THE SECURITY MECHANISMS IMPLEM ENTED BY THE PRODUCT HAVE INHERENT LIMITATIONS, AND LICENSEE MUST DETERMINE THAT THE PRODUCT SUFFICIENTLY MEETS ITS REQUIREMENTS. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE PRODUCT IS AUTHORIZED UNDER THIS A GREEMENT EXCEPT UNDER THIS DISCLAIMER. 8. Limitation of Liability TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS OR RESELLERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT, INCLUDING, WITHO UT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) ON WHICH THE CLAIM IS BASED. IN ANY CASE, LICENSOR'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES LICENSEE PAID FOR THIS LICENSE (IF ANY) AND FEES FOR SUPPORT OF THE PRODUCT RECEIV ED BY THE LICENSOR UNDER A SEPARATE SUPPORT AGREEMENT (IF ANY), WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF LICENSOR TO THE EXTENT APPLICABLE LAW PROHIBITS THE LIMITATION OF DAMAGES IN SUCH CASES. SOME JURISDICTIONS DO NOT A LLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE. THE LICENSOR IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY LICENSEE OR A THIRD PARTY THAT IS ACCESSE D THROUGH THE PRODUCT AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT. 9. Encryption If Licensee wishes to use the cryptographic features of the Product, then Licensee may need to obtain and install a signed digital certificate from a certificate authority or a certificate server. Licensee may be charged additional fees for certification services. Licensee is responsible for maintaining the security of the environment in which the Product is used and the integrity of the private key file used with the Product. In addition, the use of digital certificates is subject to the terms specified by the certificate provider, and there are inherent limitations in the capabilities of digital certificates. If Licensee is sending or receiving digital certificates, Licensee is responsible for familiarizing itself with and evaluating such terms and limi tations. 10. U.S. Export Control Provisions Licensee agrees to comply with all export laws and restrictions and regulations of the United States or foreign agencies or authorities, and not to export or re-export the Product or any direct product thereof in violation of any such restrictions, laws o r regulations, or without all necessary approvals. As applicable, each party shall obtain and bear all expenses relating to any necessary licenses and/or exemptions with respect to its own export of the Product from the U.S. Neither the Product nor the un derlying information or technology may be downloaded or otherwise exported or re-exported (a) into Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria or any other country subject to U.S. trade sanctions covering the Product, to individuals or entities con trolled by such countries, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions; or (b) to anyone on the U.S. Treasury Department's list of Specially D esignated Nationals and Blocked Persons or the U.S. Commerce Department's Table of Denial Orders. By downloading or using the Product, Licensee agrees to the foregoing and represents and warrants that it complies with these conditions. If the Product is i dentified as being not-for-export (for example, on the box, media or in the installation process), then, unless Licensee has an exemption from the United States government, the following applies: EXCEPT FOR EXPORT TO CANADA FOR USE IN CANADA BY CANADIAN C ITIZENS, THE PRODUCT AND ANY UNDERLYING ENCRYPTION TECHNOLOGY MAY NOT BE EXPORTED OUTSIDE THE UNITED STATES OR TO ANY FOREIGN ENTITY OR "FOREIGN PERSON" AS DEFINED BY U.S. GOVERNMENT REGULATIONS, INCLUDING WITHOUT LIMITATION, ANYONE WHO IS NOT A CITIZEN, NATIONAL OR LAWFUL PERMANENT RESIDENT OF THE UNITED STATES. BY DOWNLOADING OR USING THE PRODUCT, LICENSEE AGREES TO THE FOREGOING AND WARRANTS THAT IT IS NOT A "FOREIGN PERSON" OR UNDER THE CONTROL OF A "FOREIGN PERSON". 11. High Risk Activities The Product is not fault-tolerant and is not designed, manufactured or intended for use or resale as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation o r communication systems, air traffic control, direct life support machines or weapons systems, in which the failure of the Product could lead directly to death, personal injury or severe physical or environmental damage ("High Risk Activities"). According ly, Licensor and its suppliers specifically disclaim any express or implied warranty of fitness for High Risk Activities. Licensee agrees that Licensor and its suppliers will not be liable for any claims or damages arising from the use of the Product in s uch applications. 12. Miscellaneous (1) This Agreement constitutes the entire agreement between the parties concerning the subject-matter hereof. (2) This Agreement may be amended only by a writing signed by both parties. (3) Except to the extent applicable law, if any, provides otherwise, this Agreement shall be governed by the laws of Ontario, excluding its conflict of law provisions. (4) Unless otherwise agreed in writing, all disputes relating to this Agreement (excepting any dispute relating to intellectual property rights) shall be subject to final and binding arbitration in the Province of Ontario, under the auspices of an arbitr ator mutually agreed upon by the Licensee and the Licensor and failing which a court appointed arbitrator, with the losing party paying all costs of arbitration. (5) This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. (6) If any provision in this Agreement should be held illegal or unenforceable by a court having jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this Agreement if no such modification is possible, and other provisions of this Agreement shall remain in full force and effect. (7) The controlling language of this Agreement is English. If Licensee has received a translation into another language, it has been provided for Licensee's convenience only. (8) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof. (9) The provisions of this Agreement which require or contemplate performance after the expiration or termination of this Agreement shall be enforceable notwithstanding said expiration or termination. (10) Licensee may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein except in the case of a merger or the sale of all or substantially all of Licensee's assets to another entity. (11) This Agreement shall be binding on and shall enure to the benefit of the parties, their successors and permitted assigns. (12) Neither party shall be in default or be liable for any delay, failure in performance (excepting the obligation to pay) or interruption of service resulting directly or indirectly from any cause beyond its reasonable control. (13) The relationship between Licensor and Licensee is that of independent contractors and neither Licensee nor its agents shall have any authority to bind Licensor in any way. (14) If any dispute arises under this Agreement, the prevailing party shall be reimbursed by the other party for any and all legal fees and costs associated therewith. (15) If any Licensor professional services are being provided, then such professional services are provided pursuant to the terms of a separate Professional Services Agreement between Licensor and Licensee. The parties acknowledge that such services are a cquired independently of the Product licensed hereunder, and that provision of such services is not essential to the functionality of such Product. (16) The headings to the sections of this Agreement are used for convenience only and shall have no substantive meaning. (17) Licensor may use Licensee's name in any customer reference list or in any press release issued by Licensor regarding the licensing of the Product and/or provide Licensee's name and the names of the Product licensed by Licensee to third parties. 13. Licensee in the Province of Quebec Canada The following applies only to Licensees in the Province of Quebec, Canada: (1) Les parties aux pr‚sent‚s confirment que cet Accord et toute la documentation apparent‚e sont et seront dans la langue anglaise. The parties confirm that this Agreement and all related documentation are and will be in the English language. (2) Licensee is responsible for complying with any local laws in its jurisdiction which might impact its right to import, export or use the Product, and Licensee represents that it has complied with any regulations or registration procedures required by applicable law to make this license enforceable.

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