END-USER LICENSE AGREEMENT
IMPORTANT-READ CAREFULLY: This End-User License Agreement (“EULA” or “Agreement”) is a legal agreement between the individual or entity licensee hereto (“Licensee”), and CORAL LLC, an Oklahoma limited liability company (“Licensor”), with an address of 12352 Market Drive, Oklahoma City, OK 73114, for the software product or products identified herein, which includes computer software and may include associated media, printed materials, and online or electronic documentation.
LICENSOR PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY EXECUTING THIS AGREEMENT, LICENSEE (A) ACCEPTS THIS AGREEMENT AND AGREES THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENTS AND WARRANTS THAT: (I) IF LICENSEE IS AN INDIVIDUAL, LICENSEE IS 18 YEARS OF AGE OR OLDER; AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION OR OTHER LEGAL ENTITY, THE PERSON EXECUTING BELOW HAS THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE, AND LICENSEE MUST NOT DOWNLOAD OR USE THE SOFTWARE OR DOCUMENTATION IN ANY MANNER.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR LICENSEE’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF LICENSOR’S SOFTWARE.
1. Definitions. For purposes of this Agreement, the following terms shall have the meanings specified in this Section 1.
(a) “Acceptable Use Policy” means the Coral Acceptable Use Policy in effect from time to time.
(b) “Documentation” means user manuals, technical manuals and any other materials provided by Licensor, in printed, electronic or other form, that describe the installation, operation, use or technical specifications of the Software, including the Acceptable Use Policy.
(c) “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
(d) “Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.
(e) “Software” means the Coral application software, a license of which Licensee is acquiring hereunder.
(f) “Term” has the meaning set forth in Section 8.
(g) “Third Party” means any Person other than Licensor or Licensee.
2. License Grant and Scope. Subject to and conditioned upon Licensee’s strict compliance with all terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee a non-exclusive, non-transferable, non-sub licensable, limited license during the Term to use, solely by and through its authorized users, the Software and Documentation, solely as set forth in this Section 2 and subject to all conditions and limitations set forth in Section 3 or elsewhere in this Agreement. This license granted herein provides Licensee the right to:
(a) Download, install, and run, in accordance with the Documentation one (1) copy of the Software on one (1) network environment owned or leased, and controlled by, Licensee. In addition to the foregoing, Licensee has the right to make one copy of the Software solely for archival purposes and backup purposes, provided that Licensee shall not, and shall not allow any Person to, install or use any such copy other than if and for so long as any copy installed in accordance with the preceding sentence is inoperable and, provided, further, that Licensee uninstalls and otherwise deletes such inoperable copies.
(b) Use and run the Software as properly installed in accordance with this Agreement and the Documentation, solely as set forth in the Documentation. Such use is permitted only on one environment on which the Software is installed, at the physical location thereof and not via any remote access or other network.
(c) Download or otherwise make one (1) copy of the Documentation and use such Documentation, solely in support of its licensed use of the Software in accordance herewith.
Notwithstanding anything to the contrary herein, all copies of the Software made by the Licensee: (i) will be the exclusive property of the Licensor; (ii) will be subject to the terms and conditions of this Agreement; and (iii) must include all Intellectual Property Rights notices contained in the original copy licensed to Licensee.
3. Use Restrictions. Licensee shall not directly or indirectly:
(a) Use (including make any copies of) the Software or Documentation beyond the scope of the license granted under Section 2.
(b) Provide any other Person, including any subcontractor, independent contractor, affiliate or service provider of Licensee, with access to or use of the Software or Documentation.
(c) Modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof.
(d) Combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs.
(e) Reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Software or any part thereof.
(f) Remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof.
(g) Except as expressly set forth in Section 2(a) and Section 2(c), copy the Software or Documentation, in whole or in part.(h) Rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Software, or any features or functionality of the Software, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud or other technology or service.
(i) Use the Software or Documentation in violation of any law, regulation or rule.
(j) Use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service or any other purpose that is to the Licensor’s commercial disadvantage.
4. Responsibility for Use of Software. Licensee is responsible and liable for all uses of the Software and Documentation through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation by any Person to whom Licensee may provide access to or use of the Software or Documentation, whether such access or use is permitted by or in violation of this Agreement.
5. Intellectual Property Rights. Licensee acknowledges and agrees that the Software and Documentation are provided under the license granted herein, and are not being sold to Licensee. Licensee shall not acquire any ownership interest in the Software or Documentation under this Agreement, or any other rights other than the right to use the same in accordance with the license granted herein, and subject to all terms, conditions and restrictions, under this Agreement. Licensor reserves and shall retain its entire right, title and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to the Licensee in this Agreement. Licensee shall safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access. Licensee shall promptly notify Licensor if Licensee becomes aware of any infringement of the Licensor’s Intellectual Property Rights and reasonably cooperate with Licensor in any legal action taken by Licensor to enforce its Intellectual Property Rights.
6. Consent to Use of Data. Licensee agrees that Licensor may collect and use technical information Licensee provides as a part of support services related to the Software. Licensor agrees not to use this information in a form that personally identifies Licensee.
7. Term and Termination. The term of this Agreement (“Term”) shall begin on the date hereof and continue in force and effect until terminated by either party upon written notice from one party to the other.
8. Disclaimer of Warranties. THE SOFTWARE IS PROVIDED "AS IS", WHERE IS" WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. LICENSOR SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY CONTENT POSTED USING THE SOFTWARE. LICENSOR MAKES NO GUARANTEES AS TO UPTIME OR AVAILABILITY OF THE SOFTWARE. TO THE FULLEST EXTENT POSSIBLE PURSUANT TO THE APPLICABLE LAW, LICENSOR DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR OTHER VIOLATION OF RIGHTS. THE SOFTWARE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. LICENSOR IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS, INCLUDING INTERNET CONGESTION, VIRUS ATTACKS, AND DENIAL OF SERVICE (DOS) ATTACKS.
9. Exclusion of Incidental, Consequential, and Certain Other Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF LICENSOR EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. Limitation of Liability and Remedies. Notwithstanding any damages that Licensee might incur for any reason whatsoever (including, without limitation, all damages referenced above and all direct or general damages), the entire liability Licensor under any provision of this EULA and Licensee’s exclusive remedy for all of the foregoing (except for any remedy of repair or replacement elected by Licensor with respect to any breach of the Limited Warranty) shall be limited to the greater of the amount actually paid by Licensee for the Software or USD $5.00. The foregoing limitations, exclusions and disclaimers (including Sections 9 and 10 above) shall apply to the maximum extent permitted by applicable law.
11. Assignment. Other than to an affiliates or a purchaser of, or successor to, substantially all of Licensor’s assets or operations, this Agreement may not be assigned to a third party, in whole or part, whether voluntarily, by operation of law, or otherwise, by either Party without the prior written consent of the other Party. Subject to the preceding sentence, the rights and liabilities of the Parties hereto are binding on, and shall inure to the benefit of, the Parties and their respective successors and permitted assigns. Any attempted assignment other than in accordance with this Article 11 shall be null and void.
12. No Third Party Beneficiaries. Except as expressly set forth herein, the provisions of this Agreement are for the benefit of the parties and not for any other person.
13. Waivers and Amendments. No waiver of any right or remedy will be implied by failure to enforce such right or remedy and no express waiver will affect any rights or remedies other than that to which the waiver is applicable and only for that occurrence. No provision of this Agreement shall be deemed waived, amended or modified by either party, unless such waiver, amendment or modification is in writing and signed by authorized representatives of both parties; Notwithstanding the foregoing, Licensor may amend the terms of this Agreement from time to time, provided that any such amendment shall not be detrimental to Licensee’s rights hereunder as reasonably determined by Licensor.
14. Headings. The article, section and paragraph headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
15. Severability. If any provision, or any portion of any provision, contained in this Agreement is determined to be invalid under any statute or rule of law, then it shall, to that extent alone, be deemed omitted, and the remainder of this Agreement shall remain in full force and effect.
16. Governing Law; Submission to Jurisdiction. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Oklahoma without giving effect to any choice or conflict of law provision or rule (whether of the State of Oklahoma or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of Oklahoma. Any legal suit, action, or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in the federal courts of the United States of America or the courts of the State of Oklahoma in each case located in Oklahoma City, Oklahoma. Each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action, or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action, or proceeding brought in any such court has been brought in an inconvenient forum.
17. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements, understandings, proposals and communications, oral or written, regarding such subject matter. Each party acknowledges and agrees that in entering into this Agreement it does not rely on any statement, representation, warranty or understanding other than as expressly set out in this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement.