PURCHASED LICENSE AGREEMENT FOR AMPED REPLAY (USA AND CANADA)

GENERAL TERMS AND CONDITIONS

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 Amped Replay, an image and video processing software (the "Software"), including the relevant licensed materials.

Licensor and Licensee also are referred hereto individually as a “Party” and collectively as the “Parties”.

1. Software

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, more specifically described in the following link https://ampedsoftware.com/replay (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 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 shall be downloaded by Licensee on the Licensor’s server via login at https://support.ampedsoftware.com. The installation package includes one (1) copy of the Software in machine-readable object code form.

d. Licensee agrees to retain user support services for the Software from the Licensor upon such terms and conditions as agreed herein.

2. License

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. Digital License Activation Mode. In connection with the license granted herein, Licensee shall be entitled to install and use the Software on a single machine through exchange of the activation license files between the Licensor’s server and the Licensee’s machine. Each license with multiple seats is valid for the installation and use of the Software on a number of machines equal to the number of seats purchased.

c. Local Dongle Activation Mode. As an alternative to the Digital License Activation Mode described above, upon written request made by Licensee when ordering the license which must be approved by Licensor, Licensor may provide Licensee with a software protection local dongle for license activation which shall be valid solely for the installation and use of the Software on a single machine. In such case, the dongle shall be provided directly by Licensor or indirectly by the Distributor.

d. Floating License with Online Activation Mode. As an alternative to the Digital License Activation Mode described above, upon written request made by Licensee when ordering the license which must be approved by Licensor, Licensor may provide Licensee with a floating license; each floating license with multiple seats allows the installation of the Software on multiple Licensee’s machines not exceeding the number of seats multiplied by 10 (ten) and the concurrent use of the Software on a number of machines equal to the number of seats purchased through communications between the Licensor’s server and Licensee’s machine, which should be connected to the internet during the entire use of the Software.

e. Floating License with Network Dongle Activation Mode. As an alternative to the Digital License Activation Mode described above, upon written request made by Licensee when ordering the license which must be approved by Licensor, Licensor may provide Licensee with a software protection network dongle for license activation; each network dongle license with multiple seats allows the installation of the Software on multiple Licensee’s machines not exceeding the number of seats multiplied by 10 (ten) and the concurrent use of the Software on a number of machines equal to the number of seats purchased. In such case, the dongle shall be provided directly by Licensor or indirectly by the Distributor.

3. License Restrictions

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 or to 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.

4. License Term

The term of the license of the Software shall be on a temporary basis (“Subscription License”) or on perpetual basis (“Perpetual License”), as the case may be, unless terminated earlier as provided under Section 11.a 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 this Agreement shall enter into force upon acceptance by Licensee of the Software license fees as determined by Licensor (the “License Price”).

5. Use

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 related to the Software solely for its own internal use, provided that all titles, trademarks, trade names, copyright notices and other proprietary notices of Licensor are retained and unaltered.

6. Software Maintenance and Support Services

The Software maintenance and support services (the “SMS Services”) include access to the most recent Software updates which can be obtained via login at https://support.ampedsoftware.com and technical support associated with the use of the Software through the email address support@ampedsoftware.com.

With respect to the Subscription Licenses, the SMS Services shall run for the whole duration of the license and shall be included in the License Price.

With respect to the Perpetual Licenses, the SMS Services shall terminate 1 (one) year after the date of acceptance of the general terms and conditions contained herein. Thereafter, the SMS Services may be extended 1 (one) or more years, commencing from the date of expiry of the SMS Services on the basis of new terms and conditions to be agreed upon between Licensee and Licensor or Distributor, as the case may be.

Licensee may request in writing (to be sent on Licensee's letterhead to Licensor or Distributor as an email attachment) Licensor to replace Licensee's broken dongle to activate the Software. In such case Licensee must ship at its own expense the broken dongle to Licensor’s headquarters (directly or through Distributor), and Licensor shall provide Licensee with a temporary serial code and forward to Licensee a new dongle (directly or through Distributor). The replacement of the dongle is free of charge to Licensee in the event the SMS Services are duly updated. In the event the SMS Services are not updated, or replacement is requested more than once per calendar year, then the replacement of the dongle shall be subject to the payment of a fee.

7. License Fees and Payments

a. Licensee shall promptly pay the License Price for the services provided under this Agreement, indirectly through the Distributor or directly to the Licensor, as the case may be.

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 Canadian and 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.

8. Confidential Information

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, Licensor and any information concerning the technical data, contacts, know how, software applications, license files, the License Price, 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 Licensee may disclose Confidential Information: (i) in order to execute this Agreement and (ii) in order to be in compliance with applicable law, regulation, court order, or other legal process, provided Licensee has given Licensor prior written notice of and, to the extent reasonably possible, an opportunity to contest such required disclosure.

Licensee shall implement reasonable procedures to prohibit the disclosure, unauthorized duplication, misuse or removal of the Confidential Information.

9. Title

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. or their relevant third parties, as applicable). All rights not expressly granted to Licensee under this Agreement are reserved by Licensor (or by Amped S.r.l., as applicable).

It remains understood that title to activation license files and activation dongles will remain with Licensor, and Licensor may reclaim any dongles and cancellation of activation license files upon termination of this Agreement as provided under Section 11 of this Agreement.

10. Warranties

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.

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.

11. Termination

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. 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 or Distributor, as the case may be, and Licensee shall return the original and all copies of the Software to Licensor.

12. General Provisions

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 Federal 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 7.a, 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 has been developed entirely at private expense and is “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 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 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, or electronically.