All titles, trademarks, copyright, and restricted rights notices shall be reproduced in any copies of the Firefly Software. You will not, directly or through others: (a) modify or create derivative works of the Firefly Software nor translate or port the Firefly Software into any other computer or human language without the prior written consent of Firefly; (b) disassemble, reverse engineer or decompile the Firefly Software or otherwise attempt to discover any portion of the object or source code or trade secrets related to the Firefly Software; or (c) reproduce the Firefly Software without Firefly’s copyright and trademark notices.
1.3 Ownership; Proprietary Rights. Any Firefly Software provided hereunder is licensed, not sold, to you and any and all rights not specifically granted to you by this Agreement, remain with Firefly and its suppliers. The Firefly Software and Firefly Hardware are protected by patent, copyright, trademark, trade secret and other proprietary rights of Firefly and its suppliers, and you acquire no rights, express or implied, in the Firefly Software or the Firefly Hardware, other than those specified in this Agreement. No title to, or ownership of, any Firefly Software, or copyright, trademark, trade secret, or other proprietary rights in any Software are transferred to you under this Agreement. All modifications, adjustments, or error corrections to the Firefly Software become part of the Firefly Software and remain the exclusive property of Firefly
2. Firefly Hardware. You expressly acknowledge that Firefly makes no representations or warranties regarding the functionality or use of the Firefly Hardware beyond those stated in the Limited Hardware Warranty.
3. Copyright Notices; No Prohibited Combination with Open Source Software; Compliance with License Terms and Laws. You agree that you will not remove, alter, cover or obfuscate any copyright notices or other proprietary rights notices placed on or embedded in Firefly Software unless you are expressly authorized to do so by Firefly. You acknowledge and agree that you will ensure that any and all Firefly Software provided to you by Firefly is not used, copied, modified, distributed or combined with any other software, in any case so as to (i) create, or purport to create, obligations, limitations, or restrictions on the part of Firefly; (ii) grant, or purport to grant, to any third party any rights to, or immunities under, any Firefly intellectual property or proprietary rights; (iii) require or condition the use or distribution of Firefly Software on the disclosure, licensing, delivery, or distribution of any source code for any portion of such Firefly Software; or (iv) in any way conflict with the rights and obligations stated in any Third Party Software license or with any provision of applicable law.
4. You Agree to Pay us for our Products and Services; Substitutability. You agree to pay our Fees and any applicable taxes. You agree to pay us for the Licenses and Hardware you are purchasing, at the time you accept the terms of this Agreement. Subject to Section 7(a), all payments are not cancelable and not refundable. Fees charged by us do not include any sales (except where it may be required), use, excise, value-added, or similar taxes, and do not include any duties or fees payable on the delivery of the Firefly Software and Hardware in countries other than the United States. Any such taxes, duties, or fees are your sole responsibility and shall be either added to our invoice or paid directly by you as required by the jurisdiction in which you are located.
5. Termination. You can terminate this Agreement for any reason upon written notice to us; however, except as stated in Section 7(a), all fees paid are not subject to cancellation and are not refundable. We may terminate this Agreement at any time upon notice to you for cause, which shall include breach by you of this Agreement. In the case of non-payment by you of any fees, we can terminate this Agreement unless you pay such fees in full within ten (10) days after written notice. Sections 1.2, 1.3, 2, 3, 5, 6, 7(b), 7(c) 7(d), and 8-12 of Article IV of this Agreement, and all accrued rights to payment, shall survive termination. In the event of termination of this Agreement by Firefly for any reason, (i) your rights to use the Firefly Software shall immediately terminate, (ii) you will cease use of any and all Firefly Software, (iii) you will return or destroy any copies you have in your possession of such Firefly Software and (iv) any and all licenses by Firefly hereunder shall revert in their entirety to Firefly. Termination is not an exclusive remedy, and all other remedies will be available whether or not termination occurs.
6. Indemnification by You. You agree to, at your expense, indemnify and hold Firefly and its resellers harmless from and against any and all liabilities, losses, actions, damages, or claims (including all reasonable expenses, costs, and attorneys fees) that result from your misappropriation of any intellectual property rights contained in the Firefly Software or the Firefly Hardware, or your violation of any of the terms of Sections 3 or 10 of this Agreement.
7. Warranty and Disclaimers.
(a) Our Promises Regarding our Software. We warrant to you, and you only, that for a period of fifteen (15) days from the Effective Date, the Firefly Software, when used as anticipated by this Agreement, will be capable of functioning substantially in accordance with the Documentation published by us at the time of delivery to you of such Firefly Software. If we breach this warranty, our sole obligation shall be to remedy it in one of the following ways. At our discretion, we will either: repair or replace the defective Firefly Software or Firefly Hardware to enable it to perform substantially in accordance with such Documentation; or upon your written request, terminate this Agreement and, after receiving the Firefly Hardware and Firefly Software, refund to you the fees paid by you to us. This warranty will not apply if you fail to implement all Updates to the Firefly Software made available to you.
(b) We Make No Warranty With Respect to Third Party Products. ALL THIRD PARTY HARDWARE AND SOFTWARE ARE DISTRIBUTED BY FIREFLY ON AN “AS IS” BASIS, WITHOUT ANY WARRANTY PROVIDED BY OR ON BEHALF OF FIREFLY. PLEASE REFER TO THE APPLICABLE THIRD PARTY SOFTWARE LICENSE OR WARRANTY INFORMATION FOR ANY WARRANTY THAT MAY BE OFFERED OR DISCLAIMED BY THE LICENSOR OF SUCH SOFTWARE.
(c) WE MAKE NO OTHER PROMISES. EXCEPT AS STATED IN SECTION 7(a), WE MAKE NO OTHER WARRANTIES OR REPRESENTATIONS AS TO ANY SOFTWARE OR HARDWARE PROVIDED HEREUNDER, AND HEREBY DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE DO NOT WARRANT THAT ANY SOFTWARE OR HARDWARE WILL BE UNINTERRUPTED OR ERROR FREE.
(d) HIGH RISK ACTIVITIES. The Firefly Software and Firefly products are not designed, manufactured or intended for use or resale as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, air traffic control, or direct life support machines, in which the failure of the Software or Hardware could lead directly to death, personal injury, or severe physical or environmental damage (“High Risk Activities”). Accordingly, we specifically disclaim any express or implied warranty of fitness for High Risk Activities.
8. OUR LIABILITY IS LIMITED. BY ENTERING INTO THIS AGREEMENT, YOU AGREE THAT, DESPITE ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, FIREFLY WILL NOT BE LIABLE OR OBLIGATED WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY: (I) FOR ANY AMOUNTS IN EXCESS OF THE TOTAL OF THE FEES PAID TO US HEREUNDER IN THE SIX (6) MONTHS PRECEDING ANY CLAIM; (II) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; OR (III) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA. DESPITE ANY OTHER PROVISION OF THIS AGREEMENT, WE SHALL NOT BE LIABLE NOR OBLIGATED WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY: (I) FOR ANY MATTER BEYOND OUR REASONABLE CONTROL, OR (II) FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR LOST PROFITS, EVEN IF WE ARE INFORMED OF THEIR POSSIBILITY. THESE LIMITATIONS SHALL APPLY DESPITE THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. ANY ACTIONS BASED ON OR ARISING OUT OF THIS AGREEMENT MUST BE BROUGHT WITHIN ONE YEAR OF THE DATE OF TERMINATION OF THIS AGREEMENT.
9. Publicity. Neither party may issue press releases or endorsements which reference the other party or make any use of the other party’s name, logo, or trademark without the prior written consent of the other party.
10. You Will Comply with Export Regulations and other Applicable Laws. You agree that the Firefly Software components will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other applicable laws, restrictions or regulations (collectively the “Laws”). In addition, if the Firefly Software is identified as export-controlled items under any export Laws, you represent and warrant that you are not a citizen, or otherwise located within, an embargoed nation (including without limitation Iran, Syria, Sudan, Libya, Cuba, North Korea, and Serbia) and that you are not otherwise prohibited under any Laws from receiving or using the Software.
11. U.S. Government Users. The Firefly Software are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 and 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Firefly Software are being provided to U.S. Government end users (1) only as a Commercial Item, and (2) with only those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement.
12. Miscellaneous.
(a) You may not assign, transfer, or sublicense any obligations or benefit under this Agreement without the written consent of Firefly.
(b) We agree that we are independent contractors and neither of us has the right or authority to assume or create any obligation or responsibility on behalf of the other.
(c) All notices under this Agreement shall be in writing, and shall be deemed given when personally delivered or three (3) days after being sent by prepaid, certified, or registered mail to the address of the party to be noticed as set forth herein or such other address as such party last provided to the other by written notice.
(d) No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise.
(e) If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
(f) This Agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of, the Commonwealth of Massachusetts and the United States without regard to the conflict of law provisions thereof. The United Nation’s Convention on Contracts for the International Sale of Goods is expressly excluded from application to this Agreement. The sole venue for all disputes relating to this Agreement shall be in Middlesex County, Massachusetts.
(g) This Agreement may be executed in any number of counterparts, each of which shall be considered an original, but all of which together will constitute one and the same instrument.
(h) This Agreement may be modified, replaced or rescinded only in writing, and signed by a duly authorized representative of each party.
(i) References in this Agreement, or any of its attachments, to a capitalized term shall have the meaning set forth in this Agreement.
(j) Headings herein are for convenience of reference only and shall in no way affect interpretation of the Agreement.
Updated June 30, 2013