Subject to the terms and conditions contained in this Purchased License Agreement (the "Agreement") Amped Software USA., Inc. a company duly incorporated under the laws of the State of New York, with an office at 18 Bridge Street, Unit 2A, Brooklyn, NY 11201 - U.S.A. (the "Licensor") hereby grants you (the "Licensee") a non-exclusive license to use the proprietary FIVE, a forensic image and video processing software (the "Software") and the relevant materials (the "Licensed Materials").
Licensor and Licensee also are referred hereto individually as a “Party” and jointly as the “Parties”.
a. Amped S.r.l., a company duly incorporated under the laws of Italy, with registered office at Padriciano 99, Area Science Park, Trieste – Italy, is the owner of the Software, a forensic image and video processing software. The Software is more specifically described in the following link https://ampedsoftware.com/five (and Licensee understands that the description of functionalities therein may be updated from time to time).
b. Licensor is authorized to distribute, market and license the Software and the Licensed Materials in certain countries, including the United States of America and Canada. Licensor is also authorized to provide user support services for the Software, including installation, training and maintenance.
c. The installation package of the Software includes: one (1) copy of the Software in machine-readable object code form and one (1) copy of the Licensed Materials containing detailed specifications for the operation and use of the Software.
d. Licensee agrees to retain user support services for the Software from the Licensor upon such terms and conditions as agreed herein.
a. License Grant. Subject to the terms and conditions of this Agreement, Licensor grants to Licensee a non-transferable, non-sublicensable and non-exclusive license to install and to use the Software for the term of this Agreement in accordance with the uses authorized under section 3 herein.
b. Authorization Key. In connection with the license granted herein, Licensor shall provide Licensee with an individual user license device or file (the "License Key") which shall be valid solely for the installation and use of the Software on a single machine.
Title to each License Key will remain with Licensor and Licensor may reclaim any License Key and cancellation of the relevant license device upon termination of this Agreement as provided under in section 11 of this Agreement.
Licensee shall not take any or all of the following actions:
i. use the Software to provide any services under any trade names, trademarks or service marks other than that of the Licensee;
ii. make the Software accessible by third parties in any way including through network connections or other electronic means, without the Licensor’s prior written consent;
iii. sell, license, sub-license, lease, assign or otherwise transfer (whether by sale, exchange, gift, operation of law or otherwise) to third parties the Software, any copy thereof, in whole or in part, without Licensor’s prior written consent;
iv. modify or change the Software;
v. decompile, disassemble or otherwise reverse engineer the Software;
vi. make any use of the Software that violates any applicable local, state, national, or international laws or regulations.
The term of the license of the Software shall be on a perpetual basis, unless terminated earlier as provided under section 11a. of this Agreement, commencing upon Licensee's acceptance of the general terms and conditions contained herein by selecting the button "I AGREE" appearing at the bottom of this screen or by signing the relevant document in any legal and binding form.
It remains understood that the terms and conditions contained in the Agreement shall enter into force upon acceptance by Licensee of the Software license fees as determined by Licensor (the “License Price”).
a. Proper Conditions of Use. Licensee shall be exclusively responsible for the supervision, management and control of its use of the Software, including without limitation:
i. assuring proper machine configurations, audit controls and operating methods;
ii. establishing adequate backup plans based on alternative procedures and access to qualified programming personnel;
iii. implementing sufficient recovery procedures and checkpoints to satisfy its requirements for security and accuracy of input, as well as system restart and recovery in the event of a malfunction.
b. Copying. Licensee may not copy or otherwise reproduce the Software, or any part thereof (except such copying, strictly limited in number, as is essential for system backup, testing, maintenance or recovery purposes as provided by applicable law). Licensee may reproduce the Licensed Materials solely for its own internal use, provided that all titles, trademarks, trade names, copyright notices and other proprietary notices of Licensor are retained.
a. License Services. The Software updates and the support services associated with the use of the Software shall be carried out via email or through support portal and shall terminate 1 (one) year after the date of acceptance of the general terms and conditions contained herein. Thereafter, the Software updates and the support services related thereto, may be extended 1 (one) or more years, commencing from the date of the termination of the updates and support services, on the basis of new terms and conditions to be agreed upon between Licensee and Licensor.
b. Perpetual Licenses. All perpetual licensees for the Software granted by Licensor pursuant to this Agreement and for which Licensor has issued a License Key for an unlimited period of time, do not include the fees due for updates and support services for the extended period, as described under paragraph a. above.
a. For the license granted in this Agreement, Licensee shall pay to Licensor the license fees relating to the Software on the basis of a license price as set forth on the price list (the "License Price").
b. Licensee, in addition to all other amounts payable to Licensor under this Agreement, shall pay all taxes, including withholding, sales, use, personal property, value added, excise, customs, fees, import duties, stamp duties, and any other similar taxes and duties, including penalties and interests, imposed by the United States federal, state, or local government entity or any non U.S. government entity on the transactions contemplated by this Agreement, excluding, for the sake of clarity, taxes based on Licensor’s net income. Licensor shall submit such taxes to Licensor for a determination of applicability prior to invoicing unless specifically agreed to otherwise.
Licensee shall not, either directly or indirectly, disclose to third parties or use any information which are not in the public domain, in any form, whether obtained prior to or after the execution of this Agreement and for a period of two (2) years following its termination, relating to the Software, the Licensed Materials, Licensor and any information concerning the technical data, contacts, know how, software applications, license files, the License Price, the correspondence, names and addresses of customers, and any other written or oral information which may be used in relation to the Agreement (the "Confidential Information"); it remains understood that information shall not be considered Confidential Information for the purposes of any section of this Agreement in the event disclosure shall be necessary: (i) in order to execute this Agreement and (ii) in order to be in compliance with applicable laws. Licensee shall implement reasonable procedures to prohibit the disclosure, unauthorized duplication, misuse or removal of the Confidential Information.
Licensee agrees that all title, copyright, trade secret, patent, trademark and other proprietary rights in and to the Software, including all modifications thereto, shall remain with Licensor (or with Amped S.r.l., as applicable). All rights not expressly granted to Licensee under this Agreement are reserved by Licensor (or by Amped S.r.l., as applicable).
a. Licensor warrants that it has clear title to the Software. Licensor further warrants that the Software will conform to Licensor's specifications.
b. THE ABOVE IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE BY LICENSOR. LICENSOR MAKES AND LICENSEE RECEIVES NO WARRANTY, EXPRESS OR IMPLIED, AND THERE ARE EXPRESSLY EXCLUDED ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OF THE SOFTWARE. THE STATED EXPRESS WARRANTY IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF LICENSOR FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, USE, OR PERFORMANCE OF THE SOFTWARE AND OF THE LICENSED MATERIALS.
c. If any modifications are made to the Software at any time by Licensee, this warranty shall immediately be terminated. Licensee agrees that Licensor's liability arising out of contract, negligence, strict liability in tort or warranty shall not exceed any amounts payable by Licensee for the Software and the Licensed Materials.
a. Licensor shall have the right to terminate this Agreement by giving written notice to the Licensee upon the occurrence of any of the following events:
i. Any use of the Software by Licensee in any manner other than as authorized in this Agreement;
ii. Any copy or otherwise reproduction of the Software by Licensee, other than as provided by applicable law;
iii. In the event of breach of the obligation to pay the license fees by Licensee as provided in the License Price.
b. In the event of termination of this Agreement by reason of the Licensee's failure to comply with any of the obligations provided under section 11.a above, Licensor shall have the right, at any time, to terminate the license and take immediate possession of the Software and the Licensed Materials and all copies wherever located, including the License Key. Termination under this paragraph shall not relieve Licensee of its obligations regarding confidentiality of the Software. Within five (5) days after termination of the Agreement, Licensee will return to Licensor the Software in the form provided by Licensor, and upon request of Licensor, will delete any license file relating to the Software and certify in writing that they have been deleted.
c. Licensee may terminate this Agreement at any time provided that payment in full has been made to Licensor and Licensee shall return the original and all copies of the Software and of the Licensed Materials to Licensor.
a. Assignability. This Agreement and all rights and obligations hereunder shall not be assignable by Licensee, except with the prior written consent of Licensor. If Licensee is a government agency, if necessary Licensor shall seek prior approval before assigning this Agreement. A change of control of Licensee shall be deemed an assignment subject to this subsection. This Agreement shall be binding upon each Party's permitted successors and assigns.
b. Liability. No action or claim relating to this Agreement or the Software may be instituted by Licensee more than one (1) year after the event giving rise to such action or claim.
c. Indemnification. Licensor shall indemnify and hold Licensee harmless from and against any claim of infringement of any patent or copyright based upon the Software, provided that Licensee provides Licensor with prompt written notice of and the opportunity to defend any such claim. Licensor shall have the right to settle such claim or, at Licensor's option, provide Licensee with: (i) a paid-up license; (ii) substitute, functionally equivalent software or (iii) a refund of a pro rata portion of the license fees paid by the Licensee, associated with the remaining term of the Agreement, from the date the infringement claim if filed with a court of competent jurisdiction and until the expiration or termination of this Agreement.
d. Entire Agreement; Amendment. Licensee acknowledges that he or she has read this Agreement, understands it and agrees to be bound by all terms and conditions hereof which replace any previous written or oral agreements between the Parties. All subsequent modifications, amendments, and waivers to this Agreement, must be by written instrument, executed by authorized representatives of the Parties hereto.
e. Survival. The rights and obligations contained in Sections 7a., 8, 9, 10, 11.b, 12.b, 12.e and 12.f shall survive any termination of this Agreement.
f. Choice of Law and Venue. This Agreement shall be governed by the laws of the State of New York, without giving effect to its conflict of laws principles. The Parties hereby agree to submit to the exclusive jurisdiction of a federal or state court located in New York County, New York with respect to any and all unresolved disputes arising under this Agreement and the Software.
g. Government Restricted Rights. Licensee acknowledges that the Software and the Licensed Materials have been developed entirely at private expense and are “commercial items” as defined at 48 CFR 2.101 consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation” as such terms are used in 48 CFR 12.212. Licensee agrees that any rights granted under this Agreement are in accordance with 48 CFR 227.7201 through 227.7202-4 if acquired by or for Department of Defense (DOD). Any use, modification, reproduction, release, performance, display or disclosure of the Software and the Licensed Material by or on behalf of any federal, state or local governing agencies, departments and bodies of any countries, including but not limited to the United States of America, shall be subject to a “RESTRICTED RIGHTS” use in compliance with the applicable laws and regulations. Consequently, the use of the Software and the Licensed Material shall be governed solely in compliance with terms of this Agreement. If a government agency, department or body has a need for rights not conveyed under these terms, it must negotiate with Licensor to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
h. Severability. In the event that any provision under this Agreement shall be deemed illegal or otherwise unenforceable by any applicable statute or rule of law, such provision shall be omitted and the entire Agreement shall not fail on account thereof and the remainder of the Agreement shall continue in full force and effect.
i. Third Party Components. Licensor reserves the right to use and/or to provide within the Software third party software, libraries, executables or other components, either commercial or open source, in accordance with applicable law.
j. Notices. All notices and other communications required under this Agreement shall be in writing and shall be sent either by personal delivery, recognized courier service or first class registered mail. All notices shall be deemed to have been received the same day, when personally delivered, or three days after posting, when sent by any of the other methods listed above.