License Agreement

Avinti End-User License Agreement

IMPORTANT: READ BEFORE BREAKING THE SEAL ON THE ACCOMPANYING MEDIA JACKET (IF INSTALLING FROM OPTICAL MEDIA) OR BEFORE INSTALLING ANY SOFTWARE. Except as set forth in the paragraph below, the use of any Avinti, Inc. ("Avinti") software (including the documentation) in this package ("Software") is subject to the terms and conditions of this License Agreement (the "Agreement"). If you are acquiring the Software on behalf of your company or organization (collectively “Company”), BY BREAKING THE SEAL ON THE ACCOMPANYING CD JACKET, YOU REPRESENT THAT (A) YOU ARE DULY AUTHORIZED TO REPRESENT YOUR COMPANY AND (B) YOU ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT ON BEHALF OF YOUR COMPANY. AN AGREEMENT IS THEN FORMED. IF YOU OR THE COMPANY YOU REPRESENT (COLLECTIVELY “YOU”) DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, PLEASE DO NOT ACCEPT THIS OFFER, BUT PROMPTLY (BUT NO LATER THAN 30 DAYS AFTER RECEIPT OF THE SOFTWARE) RETURN THE SOFTWARE (INCLUDING THE UNOPENED CD PACKAGE, WRITTEN MATERIALS AND PACKAGING) TO THE RESELLER OR DEALER FROM WHICH YOU PURCHASED THE SOFTWARE FOR A FULL REFUND.

1. LICENSE GRANT . Avinti grants to You a perpetual, non-transferable and non-exclusive right to install the Software on server(s) for use by no more than the maximum number of Users for which license fees have been paid (as specified on the invoice You receive from Avinti or its authorized reseller, Your sales receipt or purchase order, as applicable). License fees must be paid for each computer on which Avinti Software is installed. “User” means you if You are an individual. If You are a Company, “Users” means employees and independent consultants who use a computer to perform work for You. This license to use the Software is conditioned upon Your compliance with the terms of this Agreement.
2. Termination . This Agreement is effective until terminated. You may terminate it at any point by destroying all copies of the documentation together with all copies of the Software. Avinti has the option to terminate this Agreement if You fail to comply with any material term or condition of this Agreement. You agree upon such termination to destroy the documentation together with all copies of the Software. The provisions of sections 2 through 16 shall survive the termination of this Agreement and all fees paid or payable are non-refundable.
3. Confidentiality. You acknowledge that the Software and the related product serial number(s) constitute valuable trade secrets and confidential information of Avinti. You agree not to make available or disclose the Software to any third party, except (if You represent a Company) to employees or independent consultants who are bound by industry standard non-disclosure obligations.
4. COPYRIGHT . The Software is protected by trade secret, copyright and United States patent laws, and international treaty provisions. You acknowledge that no title to the Software or any intellectual property therein is transferred to You and all title and ownership rights to the Software will remain the exclusive property of Avinti (or its licensors). You do not acquire any rights to the Software except as expressly set forth in this Agreement. You agree that any copies of the Software will contain the same proprietary notices, which appear on and in the Software.
5. REVERSE ENGINEERING . To the extent legally permissible, You agree that You will not attempt to rent, lease, sub-license, loan, auction, deal in, modify, create derivative works of, adapt, merge, translate, reverse compile, de-compile, or disassemble the Software, in whole or in part, use the Software to provide services to third parites, or authorize others to do any of the foregoing.
6. LIMITED WARRANTY . Avinti warrants that, upon initial delivery of the Software and for thirty (30) days thereafter, the Software will perform in substantial accordance with the applicable documentation, including updates thereto, “ReadMe” files and release notes available on-line (“Limited Warranty”). Any implied warranties relating to the Software that cannot be effectively disclaimed shall be limited to thirty (30) days.
7. CUSTOMER REMEDIES. If the Software does not conform to the Limited Warranty in Section 7 above, Avinti’s entire liability and Your sole remedy shall be, at Avinti’s option, for Avinti to (a) to use commercially reasonable efforts to correct the error; or (b) help You work around or avoid the error; provided that You notify Avinti of Your claim under the Limited Warranty within the 30-day warranty period. The Limited Warranty does not apply to any error caused by accident, abuse, misapplication or any problem or error in the operating system software with which the Software is designed to operate. Any replacement Software will be warranted for the remainder of the original Limited Warranty period.
8. NO OTHER WARRANTIES . AVINTI DOES NOT WARRANT THAT THE SOFTWARE IS ERROR FREE. EXCEPT FOR THE EXPRESS LIMITED WARRANTY IN SECTION 7 and to the extent permitted by applicable law, AVINTI DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE SOFTWARE, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
9. SEVERABILITY . If a court or other competent tribunal in any jurisdiction finds any provision of this Agreement invalid, such invalidity shall not affect the remaining provisions of the Agreement which shall remain in full force and effect. .
10. limitation of LIABILITY; CONSEQUENTIAL DAMAGES . to the extent permitted by applicable law, IN NO EVENT SHALL AVINTI OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND ARISING OUT OF THIS AGREEMENT OR THE DELIVERY, PERFORMANCE OR USE OF THE SOFTWARE, EVEN IF AVINTI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES and REGARDLESS OF THE NATURE OF THE CAUSE OF ACTION OR THEORY ASSERTED. IN NO EVENT WILL AVINTI'S LIABILITY FOR ANY CLAIM, WHETHER IN CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY, EXCEED THE LICENSE FEE PAID or payable BY YOU.
11. PRODUCT Updates. Product Updates shall be treated as Software and governed by the terms and conditions of this Agreement, unless Avinti specifies different terms and conditions in connection with their delivery, download, or installation. Product Updates provided hereunder will replace or patch previously licensed copies of the Software, but will not increase the authorized number of Users. Nothing in this Agreement will prevent Avinti from offering any modified version of the Software or other products as a new product for additional consideration.
12. GOVERNING LAW. This Agreement and any dispute arising out of or in connection with this Agreement shall be governed by the laws of the State of Utah, excluding its conflict of laws provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods.
13. Non-Assignability. You may not assign any right under this Agreement. Any purported assignment by You shall be null and void.
14. AUDIT . Upon reasonable notice and during regular business hours, Avinti shall have the right to audit Your use of the Software to verify compliance with this Agreement, including the restrictions on Users. If the audit reveals unlicensed Users, You shall, within thirty (30) days of notice, pay to Avinti the then-current license fees due for such unlicensed Users.
15. BACK-UP . For as long as You use the Software, You will regularly back-up Your computer system(s) on a separate media. You acknowledge that any failure to do so may significantly decrease Your ability to mitigate any harm or damage arising from any problem or error in the Software.
16. Compliance with all Laws, Export Control . Both parties shall comply with all applicable laws including but not limited to the export control laws of the United States. You shall not export nor re-export the Software or any confidential information related thereto without the appropriate United States and foreign government licenses, and You shall defend, indemnify and hold Avinti and all Avinti suppliers harmless from any claims arising out of Your violation of such export control laws. By accepting this Agreement, You confirm that You are not a resident or citizen of any country currently embargoed by the U.S. A list of embargoed countries is available at the official web site of the Office of Foreign Assets Control of the U.S. Department of the Treasury at http://www.treas.gov/ofac/.
17. U.S. GOVERNMENT RESTRICTED RIGHTS. The Software may only be transferred to the U.S. Government with the prior written consent of an officer of Avinti and solely with "Restricted Rights", as that term is defined in the Department of Defense ("DOD") Supplement to the Federal Acquisition Regulations ("DFARS") in paragraph 252.227-7202.32 (c)(1) if to the DOD, or, if the Software is supplied to any unit or agency of the US Government other than DOD, the Government's rights in Avinti Software shall be no greater than those set forth in FAR 52.227-19(c)(1) or (c)(2), Commercial Computer software - Restricted Rights; or FAR 52.227-14, Rights in General Data Alternative III, as applicable. Contractor: Avinti Inc., 392 South 400 West, Lindon, UT 84042.

By breaking the seal on the accompanying cd package, you accept Avinti incorporated’s offer TO LICENSE THE SOFTWARE UNDER THESE TERMS AND CONDITIONS.

If You do not accept Avinti’s offer or You wish to contact Avinti for any reason, please write to Avinti Inc., 392 South 400 West, Lindon, UT 84042. Telephone: (801) 443-3200. Fax: (801) 443-0004.