ACD/Labs™
SOFTWARE LICENSE AGREEMENT
ATTENTION:
Prior versions of ACD/Labs software being superseded by a new version upgrade
must be removed from the licensee's computer(s) prior to the installation or
deployment of the latter. If you have received this version as an upgrade, you
are agreeing to this term and the ones that follow by clicking on the next
button below.
This is a
binding legal agreement (this "AGREEMENT") between Advanced Chemistry
Development, Inc. ("ACD/LABS") and you ("LICENSEE").
By opening the package containing the software (the "SOFTWARE")
or clicking on the "I agree" button on the click-wrap version of this
agreement and proceeding with the installation and/or use of the computer
program to which this agreement applies, you agree to be bound by the terms and
conditions of this agreement effective from the date of having done so
("effective date"). If you do not agree to the terms of this
agreement, you must immediately uninstall the software and, within thirty (30)
days, return to ACD/Labs or, if requested by ACD/Labs, destroy all copies of
the software in your possession, together with accompanying items (including
written materials), if any.
- GRANT OF
LICENSE. Subject to the terms and conditions of this Agreement,
ACD/Labs grants to the Licensee, a non-exclusive and non-transferable
license during the term of this Agreement to use the Software contained
herewith, in object code form, for the Licensee's internal use solely in
the Licensee's ordinary course of business, and for no other purpose
("License"). The Licensee agrees to adhere to ACD/Labs'
instructions and related materials for the installation of the Software.
The Licensee acknowledges and agrees that the License is for the use of
the Software only and not for the use of any other software of ACD/Labs or
any third party. The Licensee is solely responsible for obtaining from the
owner of any third party software that can be used in conjunction with the
Software all necessary licenses to use the third party software in
conjunction with the Software.
- OWNERSHIP
OF SOFTWARE. ACD/Labs retains all right, title and interest, including
associated intellectual property rights, in and to the Software and all
related documentation. The Software is protected by Canadian copyright
laws, international treaty provisions and all other applicable national
laws. Licensee will not copy the Software except: (i) in connection with
the installation of the Software; and (ii) one (1) copy per site for
backup and disaster recovery purposes. Any copies of the Software Licensee
makes will bear all copyright, trade-mark and/or other proprietary notices
of ACD/Labs included in the Software. The Licensee acknowledges that the
Software is proprietary to and is considered confidential information of
ACD/Labs. The Licensee agrees to treat the Software with the same degree
of care to maintain its confidentiality as the Licensee uses to maintain
the confidentiality of its own confidential information, and in any event,
no less than a reasonable degree of care.
- TAXES.
The Licensee agrees to pay any and all taxes, including without limitation
any sales tax, use tax, value added tax, goods and services tax, excise
tax, customs or duties, arising out of this Agreement, except for any
taxes based upon the income of ACD/Labs.
- TERMS OF
USE AND RESTRICTIONS. The Software is licensed or provided subject to
any one or a combination of the following restrictions, specified in the
Order Document or in another written agreement between the Parties:
- By Named
User: The Software is limited to a fixed number of user(s) selected and
paid for by Licensee in accordance with ACD/Labs pricing. The users are
located at a specific geographical location identified to ACD/Labs (the
"Site") and are personnel of Licensee. Licensee will have the
right to assign such number of users for using the Software at that Site.
Usernames and passwords will be assigned to specific individuals and no
sharing of usernames and passwords is permitted, although user licenses
are transferable between users when a former user no longer requires
ongoing use of the Software at the Site.
- By
Machine/Seat: The use of the Software is limited to specific hardware,
instruments or computers ("machines") at the designated Site
that have been expressly licensed to have the Software installed on them,
as identified in writing between the parties. For greater certainty, the
use of the Software on non-licensed machines through a licensed machine
by way of a virtual desktop application or similar technology is
prohibited. The particular machines may be specified, but if not
specified, then any machines up to the maximum number paid for by the
Licensee may be licensed at the Site.
- By Server:
The use of the Software is limited to a specific server at the designated
Site, to be used in a server-client application with no more than an
aggregate maximum number of licensed machines or licensed users specified
in writing between the parties, if any maximum is specified. If the
Licensee operates the Software on a server to enable users to access the
Software over an intranet or any other type of internal network use, the
Licensee shall pay to ACD/Labs the cost associated with such batch software
in addition to a license fee per user.
- By Maximum
Number of Concurrent Users: The use of the Software is limited such that
no more than the maximum number of concurrent users may be using the
Software at the same time. When not specified, the maximum number of
concurrent users is limited to the maximum number of licensed named users
or licensed machines/seats, as applicable.
- By Physical
Location: The use of the software is limited to use by users at or within
a particular physical location within a Site, such as a particular
building or floor of a building, or to an entire Site.
- By Software
as a Service: The service consists of the Software being made available
to Licensee for use over the Internet via a standard web browser or
through an intranet portal or any other type of internal network use. The
use of the service is otherwise limited by the same terms of use and
restrictions described under subsection 4.1, "By Named User".
- Trials of ACD/Labs’ applications are for evaluation purposes
only and not to be used as a production system, or for diagnostics
purposes. Evaluation of the application may be conditional upon the User
accepting additional EULA conditions, otherwise the application cannot be
accessed and tested. Availability of the application will be at ACD/Labs
sole discretion and access may be terminated without notice or cause. At
the end of the trial, any and all data and results that were produced
with the application must be destroyed by the termination date of the
trial, unless otherwise approved by ACD/Labs in writing. You agree to
provide feedback to ACD/Labs only about the results of your evaluation.
You acknowledge that you will not publicize the results of your
evaluation to anyone outside your organization, without obtaining written
approval first from ACD/Labs.
- SCRIPTING
AND AUTOMATION. The Software may have scripting, macro generation, an
application programming interface, a software development kit or other
automation features that have been included by ACD/Labs' design that
permit certain operations of the Software to be automated ("Automation
Features"). The use of the Automation Features is subject to the
restrictions enclosed with the Software, and the following additional
restrictions:
- Automation
Features cannot be developed or used that permit use of the Software
outside the scope of the License granted;
- Automation
Features cannot be developed or used in one type of Software to replicate
or reverse engineer functionality within other Software that is available
for license from ACD/Labs.
- GENERAL
RESTRICTIONS: Licensee will not use the Software for any purpose
and/or by any means other than as expressly permitted by this Agreement.
Without limiting the generality of the foregoing, the Licensee will not:
- attempt to
use or modify the Software, using Automation Features or otherwise, to
circumvent any license conditions, or permit any third Person to do so;
- use the
Software in conjunction with, or integrate, modify or incorporate the
Software with any third party software application or program that will
automate the use of the Software to any extent, including, without
limitation, automating key strokes for inputting data to generate
results;
- permit any
affiliates (except if agreed to in writing by ACD/Labs) or third Persons
to use the Software;
- process or
permit to be processed the data of any third Persons or the processing of
any data of or for any other office or location of the Licensee;
- use the
Software in performing or conducting research on behalf of third parties
except where expressly agreed in writing by the parties;
- if the
License is restricted for academic use, the use of the Software for any
commercial use whatsoever, whether for the Licensee or indirectly to the
benefit of any third party;
- use the
Software in the operation of a service bureau;
- allow
access to the Software through any computers or terminals located outside
of the Site, through the Internet, VPN or otherwise, unless expressly
agreed otherwise in writing by ACD/Labs; or
- transmit,
disclose, translate, adapt, modify, decompile, or otherwise reverse
engineer the Software or the embodied algorithms or databases contained
in the Software, or permit others to do the same.
Licenses are not transferrable between
users, machines, servers or physical locations, as the case may be, without
ACD/Labs' consent. Notwithstanding the foregoing, Licensee will be permitted to
transfer the Software to a new physical location, server, between users or
between machines with the prior written or electronic approval of ACD/Labs upon
payment of the applicable transfer fee, if any, specified by ACD/Labs or as
otherwise agreed in writing by the parties. If no fee is specified in writing
by the parties in advance of the transfer, the applicable transfer fee(s) will
be specified by ACD/Labs at the time of transfer based on its then current
rates. Electronic approval may be provided by ACD/Labs activation server
service, where available.
- TRADEMARKS.
ACD/Labs is a trademark of Advanced Chemistry Development Inc. Any other
trademarks or service marks appearing in association with the Software or
its documentation are the property of their respective owners.
- TERM AND
TERMINATION. This Agreement, subject to Section 10 herein, shall
continue until: i) in the case where a fixed license term is specified on
the ACD/Labs invoice which has been issued in response to your request,
order or purchase order for the Software ("Order Document"), the
expiry of that fixed license term; and ii) in all other cases, such time
as the Licensee no longer uses the Software or the license is terminated
in accordance with this Section 8. The above grant of rights will
immediately terminate without notice from ACD/Labs if the Licensee
breaches any of the terms or conditions of this Agreement. If the License
specified in an Order Document is for a fixed period of time (a "Term
License"), provided Licensee is not in breach of the applicable Order
Document or this Agreement, the License to the Licensee will automatically
renew for successive terms of one year each or such other period specified
in the Order Document, unless cancelled by giving ACD/Labs written notice
of such cancellation at least sixty (60) days prior to the expiration of
the then current term. The license fees for the renewal term will be
ACD/Labs' standard fees for the corresponding fixed period licenses in
effect at the time ACD/Labs receives written notice of renewal from you,
unless otherwise specified in the Order Document. Upon termination of this
Agreement, Licensee shall immediately return (at Licensee's expense) to
ACD/Labs or, destroy all copies of the Software, documentation, and any
other items related thereto, and upon request, an officer of the Licensee
shall certify to ACD/Labs in writing that all such items have been
returned or destroyed. Furthermore, all Software existing on any computer
or computers must be rendered useless by overriding or destroying the
storage media on which it resides, and Licensee must certify in writing to
ACD/Labs that this has occurred. Sections 2, 11, 12, 15 and 16 shall
survive the termination of this Agreement.
- MAINTENANCE.
For non-Customized Software (defined below) that is licensed to the
Licensee as a Term License, ACD/Labs will provide the Licensee with
maintenance services for the term of the Term License if maintenance
services are purchased and set out in an Order Document. The maintenance
services will be provided in accordance with ACD/Labs standard maintenance
and support terms, which are available online at https://www.acdlabs.com/technical-support/maintenance-support-policies/
or upon request. In all other cases, including where Software has been
customized for Licensee pursuant to an Order Document or other written
agreement agreed to by the parties ("Customized Software"),
this Agreement does not entitle Licensee to maintenance services from
ACD/Labs. Unless otherwise agreed by the parties in a written agreement,
all maintenance services for Customized Software including any services
required to repair defects or errors in Customized Software arising from
an update will be provided on a time and material basis. If the Licensee
has executed a Master Agreement or a Maintenance Agreement with ACD/Labs,
and provided payment of applicable maintenance fees in accordance with the
terms therein ACD/Labs will provide technical support in accordance with
the terms and conditions of the Master Agreement or the Maintenance
Agreement. Where the Licensee qualifies for technical support and receives
a new version upgrade of the Software from ACD/Labs or one of its
distributors, the Licensee shall, immediately after installing such
upgrade, override and/or destroy any and all prior versions of the
Software installed. For certainty, the number of concurrent users of the
Software, regardless of the Software version in use, shall not exceed the
number of valid Licenses held by the Licensee.
- REFUNDS.
The Licensee shall have seven (7) days from the date the Software was
initially purchased to review the Software. If, during the said seven (7)
day period, the Software fails to function in all material respects in
accordance with its specifications contained in the documentation provided
by ACD/Labs, the Licensee shall be entitled to return the Software to
ACD/Labs or the distributor from whom Licensee obtained this license and
receive a refund of the license fee, if already paid to ACD/Labs.
- DISCLAIMER
OF WARRANTY. The software is provided "as is" without
warranty of any kind, either express or implied, including, but not
limited to, implied warranties and conditions of merchantability and
fitness for a particular purpose and those arising by statute or otherwise
in law or from a course of dealing or usage of trade. ACD/Labs does not
warrant that the software will meet all or any of the licensee's
requirements, that the operation of the software will be uninterrupted or
error free, or that any defect in the software will be corrected. ACD/Labs
makes no warranties or representations relating to the results of the
licensee's use of the software with respect to its capability,
correctness, accuracy, reliability or otherwise. No oral or written
information, representation or advice given by ACD/Labs or an authorized
representative of ACD/Labs shall create a warranty. ACD/Labs has no
control over the licensee's use of the software. The licensee assumes the
entire risk as to results and performance of the software.
- LIMITATION
OF LIABILITY. ACD/Labs disclaims, and licensee hereby agrees, that in
no event shall ACD/Labs be liable for any indirect, special,
consequential, punitive or incidental damages of any nature (including,
without limitation, damages for loss of business profits, business
interruption, loss of business information, or other pecuniary loss)
whether foreseeable or not, arising out of the installation, use or
inability to use the software or removal of the software, regardless of
whether ACD/Labs has been advised of the possibility of such damages. In
respect of any claim against ACD/Labs whether based in contract or tort
(including negligence) or otherwise, including a breach by ACD/Labs of any
of its obligations under this agreement, licensee's exclusive remedy shall
be to receive from ACD/Labs payment for actual and direct damages to a
maximum amount equal to the fee paid by licensee for this license,
regardless of the form of the claim.
- COMPATIBILITY
WITH THIRD PARTY SOFTWARE. The Software only operates on compatible
third party software. At Licensee's request, ACD/Labs will provide
Licensee with a specific list of compatible third party software products.
- COLLECTION
OF INFORMATION AND PROCESSING OF PERSONAL DATA. The Software has the
capacity to gather and log statistics pertaining to usage of the Software
by the Licensee, including without limitation, network installation by the
Licensee, number and identification of users and concurrent use of the
Software. For the purpose of ensuring compliance, Licensee hereby agrees
to provide such information to ACD/Labs and to authorize ACD/Labs to
remotely collect such information. Failure to provide such information
shall be deemed a material default by Licensee under this Agreement. If
requested by ACD/Labs and provided that Licensee consents, ACD/Labs may
access such information remotely. If Licensee consents to such remote
access, ACD/Labs shall follow any reasonable security protocols of
Licensee in respect of such remote access. Licensee further acknowledges
and agrees that ACD/Labs may use the information for the purposes of
ensuring compliance with the terms and conditions of this Agreement by
Licensee, creating enhancements to the Software and/or for any other purpose
consented to by Licensee, which consent shall not be unreasonably
withheld. Where ACD/Labs processes personal data on Licensee's behalf with
respect to the Software, such processing will be in accordance with
ACD/Labs' personal data processing addendum available at:
https://www.acdlabs.com/dataprocessing/.
- The Spectrus Processor JS Trial Environment website uses only
strictly necessary cookies that are essential to the operation of the
software and the website in order for you, the user, to access the Trial
Environment and use its features (session cookies). Without these
cookies, the service cannot be provided to you. This website does not use
any functional, performance, marketing or advertising cookies.
- CONFLICT.
To the extent that there is any conflict between the terms of this
Agreement and any Master Agreement entered into by the parties, the terms
of the Master Agreement shall govern, but only to the extent of such
inconsistency.
- GENERAL.
This Agreement shall be construed under and governed by the laws of the
Province of Ontario and the laws of Canada applicable therein, without
reference to any conflict of law rules. The Licensee and ACD/Labs agree to
submit to the non-exclusive jurisdiction of the courts of the Province of
Ontario. If any term, provision, covenant or condition of this Agreement
is held by a court of competent jurisdiction to be invalid, void, or
unenforceable, the remainder of the provisions shall remain in full force
and effect, and in no way shall be affected, impaired or invalidated. This
Agreement will not be governed by the United Nations Convention on
Contracts for the International Sale of Goods, the application of which is
expressly excluded. This Agreement and the Master Agreement, if
applicable, is the complete contract between the parties and supersedes
any prior agreement whether written or oral, and its terms shall not be
varied, supplemented, qualified, or interpreted by any prior course of
dealing between the Licensee and ACD/Labs. Any subsequent agreement which
modifies any part of this Agreement must be in writing and signed by both
parties. Upon any termination or expiry of this Agreement, provisions
relating to ACD/Labs' intellectual property rights, limitations of
liability and any other provisions which, by their nature, are intended to
survive, shall survive any such termination or expiry.
Advanced Chemistry Development Inc.
Attention: By agreeing to ACD/Labs' software license
agreement, for sales through ACD/Labs' webstore you specifically accept license
term 4b in 'Terms of Use and Restrictions' (by machine). If you have indicated
affiliation with academic/government institutions you also agree to comply with
article 6f in 'General Restrictions'. All purchases on the webstore are final
after seven (7) days.