CHARTFACTOR LICENSE AGREEMENT
PLEASE READ CAREFULLY THIS CHARTFACTOR LICENSE AGREEMENT (THIS “AGREEMENT”), WHICH CONSTITUTES A LEGALLY BINDING AGREEMENT AND GOVERNS ALL OF YOUR USE OF ALL OF THE CHARTFACTOR SOFTWARE WITH WHICH THIS AGREEMENT IS INCLUDED (“CHARTFACTOR SOFTWARE”). BY INSTALLING OR USING ANY OF THE CHARTFACTOR SOFTWARE GOVERNED BY THIS AGREEMENT, YOU ARE ASSENTING TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH SUCH TERMS AND CONDITIONS, YOU MAY NOT INSTALL OR USE THE CHARTFACTOR SOFTWARE GOVERNED BY THIS AGREEMENT. IF YOU ARE INSTALLING OR USING THE SOFTWARE ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE ACTUAL AUTHORITY TO AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT ON BEHALF OF SUCH ENTITY.
Posted Date: October 12, 2018
This Agreement is entered into by and between you or the legal entity on behalf of whom You are acting (Licensee or you) and Aktiun Inc. with a business address located at 4000 Legato Road Suite 1100, Fairfax, VA 22033, USA (“Aktiun”) for the Licensor’s ChartFactor product (ChartFactor Software) and its API (Documentation).
1. END USER LICENSES AND RESTRICTIONS
1.1 End User License. Subject to the terms and conditions of Section 1.2 of this Agreement, AKTIUN hereby grants to You, AT NO CHARGE and for so long as you are not in breach of any provision of this Agreement, a License to the Basic Features and Functions of the CHARTFACTOR Software.
1.2 Reservation of Rights; Restrictions. As between AKTIUN and You, AKTIUN owns all right, title and interest in and to the CHARTFACTOR Software, and except as expressly set forth in Sections 1.1, and 2.1 of this Agreement, no other license to the CHARTFACTOR Software is granted to You under this Agreement, by implication, estoppel or otherwise. You agree not to: (i) reverse engineer or decompile, decrypt, disassemble or otherwise reduce any CHARTFACTOR Software provided to You, or any portion thereof, to Source Code, except and only to the extent any such restriction is prohibited by applicable law, (ii) except as expressly permitted in this Agreement, prepare derivative works from, modify, copy or use the CHARTFACTOR Software in any manner; (iii) except as expressly permitted in Section 1.1 above, transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer, CHARTFACTOR Software, in whole or in part, to any third party; (iv) use CHARTFACTOR Software for providing time-sharing services, any software-as-a-service, service bureau services or as part of an application services provider or other service offering (“Prohibited SaaS Offering”); (v) circumvent the limitations on use of CHARTFACTOR Software provided to You that are imposed or preserved by any License Key, or (vi) alter or remove any Marks and Notices in the CHARTFACTOR Software. If You are interested in obtaining AKTIUN’s permission to engage in commercial or non-commercial distribution of the CHARTFACTOR Software, please contact email@example.com.
2. COMMERCIAL SOFTWARE
2.1 Limited License. Subject to the terms and conditions of Section 2.2 of this Agreement, AKTIUN hereby grants to You, AT NO CHARGE and for so long as you are not in breach of any provision of this Agreement, a limited, non-exclusive, non-transferable, fully paid up royalty free right and license to the Commercial Software, without the right to grant or authorize sublicenses, to prepare Derivative Works of the Commercial Software, provided You (i) do not hack the licensing mechanism, or otherwise circumvent the intended limitations on the use of CHARTFACTOR Software to enable features other than Basic Features and Functions or those features You are entitled to as part of a Subscription, and (ii) use the software only for reasonable testing purposes.
2.2 Restrictions. Nothing in Section 2.1 grants You the right to (i) use the Commercial Software other than in accordance with Section 2.1 above, (ii) use a Derivative Work of the Commercial Software outside of a Non-production Environment, in any production capacity, on a temporary or permanent basis, or (iii) transfer, sell, rent, lease, distribute, sublicense, loan or otherwise make available the Commercial Software, in whole or in part, to any third party.
3.1 Termination. This Agreement will automatically terminate, whether or not You receive notice of such Termination from AKTIUN, if You breach any of its provisions.
3.2 Post Termination. Upon any termination of this Agreement, for any reason, You shall promptly cease the use of the CHARTFACTOR Software.
3.3 Survival. Sections 1.2, 2.2. 3.3, 4 and 5 shall survive any termination or expiration of this Agreement.
4. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
4.1 Disclaimer of Warranties. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE CHARTFACTOR SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND CHARTFACTOR AND ITS LICENSORS MAKE NO WARRANTIES WHETHER EXPRESSED, IMPLIED OR STATUTORY REGARDING OR RELATING TO THE CHARTFACTOR SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, CHARTFACTOR AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE CHARTFACTOR SOFTWARE, AND WITH RESPECT TO THE USE OF THE FOREGOING. FURTHER, CHARTFACTOR DOES NOT WARRANT RESULTS OF USE OR THAT THE CHARTFACTOR SOFTWARE WILL BE ERROR FREE OR THAT THE USE OF THE CHARTFACTOR SOFTWARE WILL BE UNINTERRUPTED.
4.2 Limitation of Liability. IN NO EVENT SHALL CHARTFACTOR OR ITS LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, IN CONNECTION WITH OR ARISING OUT OF THE USE OR INABILITY TO USE THE CHARTFACTOR SOFTWARE, OR THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF AKTIUN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
This Agreement completely and exclusively states the entire agreement of the parties regarding the subject matter herein, and it supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding such subject matter. This Agreement may be modified by AKTIUN from time to time, and any such modifications will be effective upon the “Posted Date” set forth at the top of the modified Agreement. If any provision hereof is held unenforceable, this Agreement will continue without said provision and be interpreted to reflect the original intent of the parties. This Agreement and any non-contractual obligation arising out of or in connection with it, is governed exclusively by The United States of America law. This Agreement shall not be governed by the 1980 UN Convention on Contracts for the International Sale of Goods. All disputes arising out of or in connection with this Agreement, including its existence and validity, shall be subject to the exclusive jurisdiction of the state and federal courts within Fairfax County, Virginia, USA. The parties hereby irrevocably waive any and all claims and defenses either might otherwise have in any such action or proceeding in any of such courts based upon any alleged lack of personal jurisdiction, improper venue, forum non conveniens or any similar claim or defense. A breach or threatened breach, by You of Section 2 may cause irreparable harm for which damages at law may not provide adequate relief, and therefore AKTIUN shall be entitled to seek injunctive relief without being required to post a bond. You may not assign this Agreement (including by operation of law in connection with a merger or acquisition), in whole or in part to any third party without the prior written consent of AKTIUN, which may be withheld or granted by AKTIUN in its sole and absolute discretion. Any assignment in violation of the preceding sentence is void. Notices to AKTIUN may also be sent to firstname.lastname@example.org
The following terms have the meanings ascribed:
6.1 “Affiliate” means, with respect to a party, any entity that controls, is controlled by, or which is under common control with, such party, where “control” means ownership of at least fifty percent (50%) of the outstanding voting shares of the entity, or the contractual right to establish policy for, and manage the operations of, the entity.
6.2 “Basic Features and Functions” means those features and functions of the CHARTFACTOR Software that are eligible for use under a Basic license, as set forth at https://chartfactor.com/downloads/, as may be modified by AKTIUN from time to time.
6.3 “Commercial Software” means the CHARTFACTOR Software.
6.4 “Derivative Work of the Commercial Software” means, for purposes of this Agreement, any application built on top of the Commercial Software, which represent, as a whole, an original work of authorship.
6.5 “License” means a limited, non-exclusive, non-transferable, fully paid up, royalty free, right and license, without the right to grant or authorize sublicenses, solely for Your internal business operations to (i) install and use the applicable Features and Functions of the CHARTFACTOR Software, and (ii) permit Contractors and Your Affiliates to use the CHARTFACTOR software as set forth in (i) above, provided that such use by Contractors must be solely for Your benefit and/or the benefit of Your Affiliates, and You shall be responsible for all acts and omissions of such Contractors and Affiliates in connection with their use of the CHARTFACTOR software that are contrary to the terms and conditions of this Agreement.
6.6 “License Key” means a sequence of bytes, including but not limited to a JSON blob, that is used to enable certain features and functions of the CHARTFACTOR Software.
6.7 “Marks and Notices” means all CHARTFACTOR trademarks, trade names, logos and notices present on the CHARTFACTOR Software and the Documentation as originally provided by AKTIUN.
6.8 “Non-production Environment” means an environment for development, testing or quality assurance, where software is not used for production purposes.
6.9 “Source Code” means the preferred form of computer software for making modifications, including but not limited to software source code, documentation source, and configuration files.
6.10 “Subscription” means the right to receive Support Services and a License to the Commercial Software.