409 lines
22 KiB
Text
409 lines
22 KiB
Text
END USER LICENSE AGREEMENT
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Last updated 25 June 2025
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IMPORTANT: PLEASE READ THIS END USER LICENSE AGREEMENT
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CAREFULLY. INSTALLING OR USING THINLINC SOFTWARE CONSTITUTES
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ACCEPTANCE OF THIS AGREEMENT.
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THIS AGREEMENT CONTAINS CERTAIN WAIVERS OF YOUR RIGHTS INCLUDING A
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REQUIREMENT THAT CERTAIN CLAIMS MUST BE RESOLVED THROUGH BINDING
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ARBITRATION.
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This License Agreement ("License") is entered into by you, the Licensed
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User or representative of the Licensed User ("Licensee") and (depending
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on how you obtained the software license) Cendio AB (for free licenses
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and licenses acquired from Cendio AB), or ThinLinc USA Inc., an Indiana
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corporation (for licenses acquired from ThinLinc USA Inc.) (the
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applicable entity, the “Licensor”).
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THIS IS A LICENSE AND NOT A SALE
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1. License
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1.1 Subject to the terms and conditions of this License, Licensor
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grants solely for use by Licensee a non-exclusive, non-transferable
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license to use the software programs ("Program(s)") and related user
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guides ("Documentation") solely for its own internal business purposes,
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including for the provision of offering hosting solutions where you
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remain the Licensee, at the site specified in the applicable business
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records of Licensor and solely in accordance with the accompanying
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Documentation.
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1.2 All proprietary rights, trade secrets, inventions, algorithms,
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processes, systems, techniques, designs, and developments in the
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Program(s) and the Documentation, and any modifications to or
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improvements thereof, and all copies (in whole or part) shall be the
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exclusive property of Licensor (and its licensors), and are protected by
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copyright laws, international treaty provisions, and other applicable
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laws, rules, and regulations. Licensee shall have no right, title, or
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interest therein except for the rights expressly granted under this
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License.
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1.3 Licensee may not use, copy, alter, merge, adapt, modify, rent,
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or lease the Program(s) or the Documentation, or any copy thereof, in
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whole or in part, except as expressly provided in this License or under
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applicable statutes.
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1.4 Licensee acknowledges that the Program(s) contains certain third
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party software for which Licensor has obtained the right to sub-license
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to Licensee under all the terms hereof save as set out expressly in the
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license agreements accompanying such products.
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1.5 The Program(s) may consist of software that provide services on
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a computer ("Server Program(s)") and software that allows a computer to
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access or utilize the services provided by the Server Program(s)
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("Client Program(s)"). The Server Program(s) are provided free of charge
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and may be redistributed and downloaded, provided all copyright notices
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and the terms of this License are not altered in any way or removed.
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The Client Program(s) are also provided free of charge and may be
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redistributed and downloaded, provided all copyright notices and the
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terms of this License are not altered in any way or removed. Subject to
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Sections 1.6 and 1.7, Licensee may connect the Client Program(s) to the
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Server Program(s).
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1.6 With exception of what is stated in Section 1.7, Licensee must
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have user licenses ("User License(s)") corresponding to the number of
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physical persons that have Server Program(s) or that have other software
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that is being monitored by the Server Program(s), running on behalf of
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said person ("Concurrent User(s)"). A non-human operated device shall be
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counted as a Concurrent User in addition to all individuals whenever
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such a device accesses the Server Program(s).
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1.7 Licensee may utilize the services provided by the Server
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Program(s) worldwide, free of charge and without acquiring User Licenses
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for up to three (3) Concurrent Users within Licensee’s organization. If
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the number of Concurrent Users within Licensee’s organization exceed
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three, Licensee must acquire User Licenses for all Concurrent Users.
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Where the Licensee uses the Program(s) without a valid User License, the
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warranty referenced in Section 4.1 and the indemnity in Section 6 is no
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longer applicable.
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1.8 User License(s) may be perpetual or limited to an expiration
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date ("Expiration Date"). After the Expiration Date, if any, the
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Licensee is no longer entitled to use any of the User License(s).
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1.9 A User License(s) is valid for the version of the Server
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Program(s) specified in the User License(s) and any older versions of
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the same Server Program(s). The User License(s) is also only valid for
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one specific installation of the Server Program(s). Two separate
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installations, even by the same legal entity, require separate User
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Licenses.
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1.10 The Licensee may reassign one or more User License(s) to a
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different installation any number of times. A User License may only be
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used on a single installation of the Server Program(s) at a time.
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1.11 Licensor provides no maintenance or support of the Program(s)
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under this License.
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2. Open Source Software
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2.1 The Program(s) may include certain third party open source and
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free software components ("Open Source Components"), each of which has
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its own copyright and its own license conditions ("Open Source
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License"). A list of included Open Source Components and their
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respective licenses can be found in the open_source_licenses.txt file.
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You agree to comply with the terms of all applicable Open Source
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Licenses.
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2.2 Upon request Licensor will deliver all the corresponding source
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code for the Open Source Components at the cost of postage charges
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incurred. This offer to obtain the source code is valid for three years
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from the date you acquired the Program(s).
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2.3 To the extent any Open Source License grants the Licensee rights
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to use, copy or modify the Open Source Component that are broader than
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the rights granted in Section 1, then such rights shall take precedence
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over the rights and restrictions granted in this License solely for such
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Open Source Components.
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2.4 The Open Source Components are provided "as is" by the third
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party licensors who disclaim all liabilities, damages, (even if they
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have been advised of the possibility of such damages), warranties,
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indemnities and other obligations of any kind, express or implied, with
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regard to the Open Source Components. The Open Source Components are
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excluded from any indemnity provided by Licensor in this
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License. Nothing in the foregoing affects any performance warranty
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provided by Licensor with regard to the Program(s) as a whole.
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3. Confidentiality
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3.1 Confidential Information. "Confidential Information" shall mean
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business information, pricing and terms, the Programs, Documentation,
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technical information, algorithms, source code of the Programs, future
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plans, product road maps, know-how, trade secrets, and any other
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information of a non-public nature that is known or used by a party.
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Confidential Information includes information generated as a result of
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the activities of the parties hereunder, as well as information owned by
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a party prior to or after the date hereof and made available to the
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other party hereunder, whether disclosed in writing, orally or in any
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other way. Confidential Information shall be held confidential at all
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times for Programs and any other information in the nature of a trade
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secret, and during the 5 (five) year period from the date of disclosure
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of other Confidential Information. Neither party shall disclose,
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directly or indirectly, any Confidential Information of the other party
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to any third person, firm or corporation without the prior written
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consent of the other party. Each party shall use protective measures no
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less stringent than that party uses to protect its own similar
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proprietary information, which protective measures shall under all
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circumstances be at least reasonable measures designed to ensure the
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continued confidentiality of the Confidential Information. The
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restrictions on disclosure of Confidential Information do not extend to
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any item of information which (i) is or becomes publicly known without
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breach of this License, (ii) is lawfully received by the receiving party
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from a third party who lawfully possesses the information and who is not
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bound to keep such information confidential, whether by contract or law,
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(iii) is published or otherwise made known to the public by the
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disclosing party, or (iv) is generated independently by the receiving
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party, without use of or reference to Confidential Information. Either
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party may disclose Confidential Information required to be disclosed
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pursuant to a subpoena or as otherwise required by law or regulation,
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provided that the receiving party where legally permissible appeals such
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requirement and that prior written notice of such required disclosure is
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furnished to the disclosing party as soon as possible in order to afford
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the disclosing party an opportunity to seek a protective order.
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4. Limited Warranty and Disclaimer
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4.1 Licensor warrants that the Program(s) will operate substantially
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as set forth in the accompanying Documentation for a period of 90
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(ninety) days following delivery of the Program(s) to Licensee.
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4.2 Licensor warrants that prior to delivery of the Program(s) to
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Licensee, Licensor has used commercially reasonable efforts to prevent
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the Program(s) and any modified or enhanced versions of the Program(s)
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prepared by, or at the direction of, Licensor from being infected with,
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any "worms", "viruses", "Trojan Horses", "protect codes", "data destruct
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keys" or other programs or programming devices that might be used to
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access, modify, delete or damage the Program(s), or other software,
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computer hardware or data of Licensee.
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4.3 Licensee's sole and exclusive remedy for breach of any of the
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above warranties shall be, at Licensor's option, the repair or
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replacement of the Program(s) or the media, or the refund of the license
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fee paid by the Licensee, reduced by a reasonable depreciation based on
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the time the Program(s) have been in use.
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4.4 EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 4 AND
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NOTWITHSTANDING ANY OTHER TERMS IN THIS LICENSE, (I) LICENSOR MAKES NO
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EXPRESS OR IMPLIED WARRANTY WITH RESPECT TO THE PROGRAM(S) OR
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DOCUMENTATION, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF
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MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT
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OF THIRD PARTY RIGHTS, (II) LICENSEE’S USE OF THE PROGRAM(S), ITS
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CONTENTS, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SAME, IS AT
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YOUR OWN RISK, AND (III) PROGRAM(S) AND DOCUMENTATION ARE PROVIDED ON AN
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"AS-IS" AND "AS-AVAILABLE" BASIS. LICENSOR DOES NOT WARRANT THAT ANY
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PROGRAM(S) WILL BE ERROR-FREE, OR THAT ANY DEFECTS THAT MAY EXIST IN ANY
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PROGRAM(S) CAN BE CORRECTED.
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5. Limitation on Liability
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5.1 IN NO EVENT SHALL LICENSOR OR ITS AFFILIATES, SERVICE PROVIDERS,
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EMPLOYEES, AGENTS, OFFICERS, DIRECTORS, OR EQUITY HOLDERS (“LICENSOR
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PARTIES”) BE LIABLE FOR ANY LOSS OF PROFITS, USE, BUSINESS, DATA OR
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INFORMATION, OR FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR
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EXEMPLARY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO DAMAGES
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RESULTING FROM LOSS OF ANTICIPATED SAVINGS OR LOST DATA, EVEN IF
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LICENSOR HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY
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THEREOF, OR FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR
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EXEMPLARY DAMAGES RESULTING FROM ANY AND ALL CLAIMS BY ANY THIRD
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PARTIES. THE AGGREGATE LIABILITY OF LICENSOR PARTIES HEREUNDER WHETHER
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IN CONTRACT OR IN TORT SHALL IN NO EVENT EXCEED THE LESSER OF THE FEES
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PAID BY LICENSEE OVER THE PRECEDING 12 (TWELVE) MONTHS OR $100,000 (ONE
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HUNDRED THOUSAND DOLLARS). PROVIDED THAT IF THE LICENSEE HAS NOT PAID
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ANY FEES TO THE LICENSOR, THEN THE MAXIMUM AGGREGATE LIABILITY OF THE
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LICENSOR PARTIES IS $250.00. THE FOREGOING DOES NOT AFFECT ANY LIABILITY
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THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
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6. Indemnity
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6.1 Licensor shall indemnify Licensee for any claim, demand or cause
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of action by a third party ("Demand") to the extent that it is based
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upon a claim that the Program(s) infringe any patent, trademark, or
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Berne Convention copyright, or that the Program(s) misappropriate any
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trade secret of any third party within the country in which the site is
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located. The foregoing indemnification is conditioned on Licensee
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notifying Licensor promptly in writing of such Demand, Licensee not
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making any admissions or prejudicial statements, Licensee giving
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Licensor sole control of the defense thereof (and any negotiations for
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settlement or compromise thereof), and Licensee cooperating in the
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defense thereof at Licensor’s request, provided that Licensee may, at
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its own expense, assist in such defense if it so chooses. Licensor, at
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its sole option and expense may: (a) procure for Licensee the right to
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continue using the Program(s); or (b) substitute a non-infringing
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version of the Program(s) so that the Program(s) become non-infringing
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and still conform to the applicable specifications; or (c) return the
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license fee paid by Licensee hereunder for the Program(s), less an
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amount equal to straight line depreciation of the Program(s) over four
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years, and Licensee shall immediately return the Program(s) to
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Licensor. Licensee shall not incur any costs or expenses on behalf of
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Licensor under or pursuant to this Section without Licensor's prior
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written consent.
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6.2 Licensor shall have no liability to Licensee for any Demand by a
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third party alleging infringement or misappropriation based upon (a) any
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use of the Program(s) in a manner other than as permitted in this
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License; or (b) any use of the Program(s) in combination with any
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product not provided by Licensor, to the extent that such Demand is
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directed against the combination. Notwithstanding the foregoing, no
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indemnification is given in relation to Open Source Components. The
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licensors of any third party software may extend indemnities which are
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to be found in the third party licenses referred to in 1.4 above.
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6.3 THE FOREGOING STATES THE ENTIRE LIABILITY OF THE PARTIES AND
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LICENSEE'S SOLE AND EXCLUSIVE REMEDY FOR SUCH DEMANDS.
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7. Termination
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7.1 Licensor may terminate this License immediately upon written
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notice to Licensee if Licensee breaches the provisions of Section 1
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(License). Either party may at its option terminate this License
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immediately upon written notice in the event that the other party: (a)
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breaches any term of this License, which breach remains uncured for a
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period of 30 (thirty) days after written notice of such breach to the
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other party; or (b) becomes insolvent or asserts that it is insolvent,
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fails to pay its general obligations as they become due, institutes or
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has instituted against it any proceeding, arrangement, receivership or
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assignment for the benefit of creditors, or files or has filed against
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it any petition under applicable bankruptcy laws.
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7.2 ON TERMINATION OF THIS LICENSE FOR ANY REASON LICENSEE SHALL
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CEASE USING THE PROGRAM(S) AND THE DOCUMENTATION AND ALL COPIES OF THE
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SAME SHALL BE IMMEDIATELY RETURNED TO LICENSOR UPON WRITTEN REQUEST.
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7.3 The operation of Clauses 3, 4, 5, 7 and 8 shall survive the
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termination of this License.
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8. General
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8.1 The Program(s) is subject to laws and regulations of the United
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States and European Union that restrict its export. Licensee agrees not
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to export or "re-export" (transfer) the Program(s) unless all applicable
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United States, European Union and other relevant government export
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controls and approvals have been complied with.
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8.2 Licensor licenses products for ultimate end use by federal
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government agencies and other federal government customers ("federal
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government customers") only under the following conditions. Rights
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granted herein include only those rights customarily provided to end use
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customers of Program(s) and Documentation as defined in this
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License. This customary commercial license in software is provided in
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accordance with FAR 12.211 (Technical Data) and 12.212 (Computer
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Software) and, for Department of Defense purchases, DFAR 252.227-7015
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(Technical Data - Commercial Items) and DFAR 227.7202-3 (Rights in
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Commercial Computer Software or Computer Software Documentation). If a
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federal government or other public sector customer has a need for rights
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not conveyed under these terms, it must negotiate with Licensor to
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determine if there are acceptable terms for transferring such rights,
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and a mutually acceptable written agreement specifically conveying such
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rights must be executed by both parties. To the extent that Licensee
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sublicenses Program(s) pursuant to the terms and conditions of the
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License to any sub-licensee that is a federal government agency or other
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federal government customer, Licensor will accept only the following
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subcontract or flow-down provisions: FAR 52.222-26, "Equal Opportunity";
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FAR 52.222-35, "Affirmative Action for Disabled Veterans and Veterans of
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the Vietnam Era"; and FAR 52.222-36, "Affirmative Action for Workers
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with Disabilities." Any additional subcontract or flow-down provisions,
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including any provisions imposed by federal, state, local or other
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governmental or quasi-governmental entities, must be negotiated between
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the parties and reflected in a mutually acceptable written agreement
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executed by both parties.
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8.3 Licensor and its licensors shall have the right to conduct an
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audit of (and to copy) Licensee's records on reasonable notice and not
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more than once in each twelve month period to verify that Licensee is
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complying with the terms hereof. In the event that an underpayment is
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revealed as the result of such audit Licensee shall immediately upon
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being so requested by Licensor pay such underpayment together with the
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costs of any such audit.
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8.4 If one or more provisions of this License are held to be illegal
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or unenforceable under applicable law, such illegal or unenforceable
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provision(s) shall be limited or excluded from this License to the
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minimum extent required so that this License shall otherwise remain in
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full force and effect and enforceable in accordance with its terms.
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8.5 Depending on the contracting entity, the following governing law
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and dispute resolution shall apply:
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- Cendio AB (for free licenses and User Licenses acquired from Cendio
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AB) This License shall be governed by and construed in accordance
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with Swedish law. Any dispute, controversy or claim arising out of
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or in connection with this License, or the breach, termination or
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invalidity thereof shall be finally settled by arbitration
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administered by the SCC Arbitration Institute (the "SCC"). The
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Rules for Expedited Arbitrations shall apply where the amount in
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dispute does not exceed EUR 200,000. Where the amount in dispute
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exceeds EUR 200,000 the Arbitration Rules shall apply. The amount
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in dispute includes the claims made in the Request for Arbitration
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and any counterclaims made in the Answer to the Request for
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Arbitration. The Arbitral Tribunal shall be composed of a sole
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arbitrator. The place of arbitration shall be Stockholm. The
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language to be used in the arbitral proceedings shall be English.
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- ThinLinc USA Inc. (for User Licenses acquired from ThinLinc USA
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Inc.) This License shall be governed by and construed under the
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laws of the State of Delaware. Any controversy or claim arising out
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of or relating to this contract, or the breach thereof, shall be
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settled by arbitration administered by the American Arbitration
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Association in accordance with its Commercial Arbitration Rules and
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judgment on the award rendered by the arbitrator may be entered in
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any court having jurisdiction thereof. The arbitral tribunal shall
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be composed of a sole arbitrator. The place of arbitration shall be
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Indianapolis, Indiana.
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8.6 ANY CAUSE OF ACTION OR CLAIM LICENSEE MAY HAVE ARISING OUT OF OR
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RELATING TO THIS AGREEMENT OR THE PROGRAM(S) MUST BE COMMENCED WITHIN
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ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF
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ACTION OR CLAIM IS PERMANENTLY BARRED.
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8.7 Licensee agrees that this License is the complete and exclusive
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statement of the mutual understanding between the parties and supersedes
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all previous written and oral agreements and communications relating to
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the subject matter of this License, including any information provided
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on Licensor’s website about the Programs. It may not be modified or
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waived except in writing signed by authorized representatives of both
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parties.
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8.8 All notices under this License shall be in writing, and shall be
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deemed delivered 5 (five) days after sending in the case of notices sent
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by post or the next business day after sending in the case of notices by
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email. Licensee is required to inform Licensor in writing of any changes
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to Licensee’s contact information occurring after the date that Licensee
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agrees to this License; if Licensee does not, then notice provided to
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Licensor’s information on file for Licensee shall be considered
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effective.
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8.9 Licensee shall not assign, transfer, or sublicense any
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obligations or benefit under this License without the prior written
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consent, which shall not be unreasonably withheld, of Licensor (and any
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such attempt shall be void). Licensor may assign this License in whole
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or in part without notice to Licensee.
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8.10 The Program(s) are not specifically developed or licensed for
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use in any nuclear, aviation, mass transit or medical application or in
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any other inherently dangerous applications. Neither Licensor nor its
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suppliers shall be liable for any claims or damages arising from such
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use and Licensee agrees to indemnify and hold harmless Licensor and its
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suppliers from any claims for losses, costs, damages, or liability
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arising out of or in connection with such use of the Program(s).
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8.11 No waiver by Licensor of any term or condition herein shall be
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deemed a further or continuing waiver of such term or termination or a
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waiver of any other term or condition, and any failure of Licensor to
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assert a right or provision hereunder shall not constitute a waiver of
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such right or provision.
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8.12 Comments and questions regarding this License may be directed to
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contact@cendio.com.
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