End User License Agreement (EULA)
CMC Driver Framework and CMC Driver End User License Agreement
This CMC Driver Framework and CMC Driver End User License Agreement (“Agreement”) is made by and between you (as defined below) and Choose Movement Consulting, LLC (“CMC” which may also be referred to in this Agreement as “we”, “us” and “our”). This Agreement constitutes a binding contract between you and CMC (together, the “Parties” and individually, each a “Party”).
YOU WILL HAVE ACCEPTED THIS AGREEMENT IF YOU: 1) DOWNLOAD, ACCESS, SUBSCRIBE TO OTHERWISE PURCHASE LICENSES TO, OR USE THE CMC SOFTWARE; OR 2) CLICK AN “I ACCEPT” OR SIMILAR BUTTON INDICATING AGREEMENT ASSOCIATED WITH THIS AGREEMENT.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A CORPORATION, PARTNERSHIP, COMPANY OR ANY OTHER ENTITY, YOU HEREBY REPRESENT AND WARRANT TO CMC THAT YOU ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF AND BIND THE ENTITY TO THE TERMS AND CONDITIONS CONTAINED HEREIN.
CMC IS WILLING TO ALLOW THE LICENSE AND YOUR ACCESS AND USE OF THE CMC SOFTWARE ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. BY ACCEPTING THIS AGREEMENT YOU ARE BINDING YOURSELF TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN CMC IS UNWILLING TO ALLOW THE LICENSE OF THE CMC SOFTWARE AND YOU MUST NOT ACCESS OR USE THE CMC SOFTWARE.
- CERTAIN DEFINITIONS. In addition to other terms that are defined as set forth in this Agreement, the following terms shall have the following definitions:
- “Authorized CMC Reseller” means a person or entity that has entered into a signed, written agreement with CMC to resell some or all of the CMC Software and that is in compliance with that written agreement, including without limitation in relation to you and the sale of any licenses of CMC Software to you.
- “Device” means your computer, tablet, smartphone, or any other electronic device.
- “Intellectual Property” means any and all of the following in any jurisdiction throughout the world and all rights in, arising out of, or associated therewith: (a) patents, utility models, and applications therefor, and all reissues, divisions, re-examinations, renewals, extensions, provisionals, continuations and continuations-in-part thereof, and equivalent or similar rights anywhere in the world in inventions and discoveries, including invention disclosures; (b) all trade secrets, inventions (whether or not patentable and whether or not reduced to practice), and other rights in know-how and confidential or proprietary information; (c) all mask works, works of authorship and copyrights, registrations and applications therefor, and all other rights corresponding thereto (including moral rights), throughout the world; (d) rights in software (including without limitation APIs, source code, object code, and mark-up language); (e) rights of publicity, personality, identification, or similar personal or group attributes; (f) trade names, logos, common law trademarks and service marks, trade dress, trademark and service mark registrations, and applications therefor and any goodwill associated therewith; and (g) any similar, corresponding, or equivalent rights to any of the foregoing and any other intellectual property or proprietary rights throughout the world.
- “CMC Driver” means the software interface provided by CMC that includes the code necessary to communicate with certain pieces of hardware (e.g., to set configuration values or take certain actions), and may also include a simulated version of the hardware device in software form in addition to the software code necessary for communicating with the designated hardware device, and its content, documentation, and all Intellectual Property in and related thereto.
- “CMC Driver Framework” means the LabVIEW coding framework provided by CMC, which is used to rapidly implement a hardware abstraction lawyer, and which consists of a set of tools built to expedite configuration of hardware and debugging of hardware communication, and its content, documentation, any drivers designated as free and provided free of charge by CMC, and all Intellectual Property in and related thereto.
- “CMC Tests and Validation Documentation” means testing and validation documentation provided by CMC and to be used to aid in demonstrating that the software is validated for a specific regulated industry, and its content, documentation, and all Intellectual Property in and related thereto.
- “Fee-Based CMC Software” means software licensed by CMC subject to the payment of fees, which includes all CMC Drivers except those included for free as a part of the CMC Driver Framework and CMC Tests and Validation Documentation.
- “Modifications” means additional or modified functionality, updates, enhancements, security updates and patches, and upgrades to CMC Software or to remove or terminate the functionality of any CMC Software in accordance with the termination provisions of this Agreement.
- “CMC Software” means collectively and individually the CMC Driver Framework, the CMC Drivers, and the CMC Tests and Validation Documentation.
- “Users” means each individual user of the CMC Software.
- “You” and “Your” (capitalized or otherwise) refer to any person or entity acquiring or using under the terms of this Agreement the CMC Software. In this Agreement, “you” and “your” refer collectively to you, the customer, and any corporation, partnership, company or other entity you represent.
- Unless otherwise noted in this Agreement, and to the fullest extent allowed under any applicable laws, all terms and conditions of this Agreement apply to the license and your downloading, installing, accessing and using of any and all CMC Software. CMC Software is a LabVIEW coding framework, and therefore your license to the CMC Software is contingent upon LabVIEW continuing to offer compatible software and services and your continued compliance with LabVIEW’s relevant licensing terms and conditions for such services. You may make a reasonable number of copies of the CMC Software you have licensed solely for backup or archival purposes and a reasonable number of copies of the documentation that accompanies the CMC Software solely for your internal use in connection with your use of the CMC Software.
- LIMITED EVALUATION LICENSE. Subject to the terms of this Agreement, you are hereby granted a non-exclusive, perpetual, revocable, non-sublicensable, non-transferrable license to download, install, access, and use for your internal evaluation purposes only the CMC Driver Framework. The Fee-Based CMC Software is not subject to the aforementioned license, but may instead be subject to a separate evaluation license as indicated by the terms set forth in relation to the downloadable files, as a part of the download and installation, or pursuant to a written agreement with an Authorized CMC Reseller, for a period of thirty (30) days after you first install Fee-Based CMC Software (“Evaluation Period”). If you want to continue to use any version of the Fee-Based CMC Software after the Evaluation Period, you must acquire from CMC or through an Authorized CMC Reseller an extension to the Evaluation Period or, for a fee, a fee-based license for such CMC Software. If you do not purchase a license to Fee-Based CMC Software after the Evaluation Period (as extended, if applicable), your ability to use the Fee-Based CMC Software subject to the evaluation license may automatically cease to function after the Evaluation Period.
- NON-EVALUATION LICENSE AND FEES. You may purchase a fee-based license for the Fee-Based CMC Software from CMC, an Authorized CMC Reseller, or through the NI Tools Network. All such fee-based licenses are conditioned upon your compliance with the terms and conditions of this Agreement including without limitation the payment of fees for such licenses. All fees are non-refundable and licenses purchased are non-returnable by you. All fees associated with Fee-Based CMC Software are hereby incorporated by reference and will be displayed in conjunction with the download of such software and/or as a part of a checkout and payment process through which you will be charged the applicable fee, or in the case of a purchase through the NI Tools Network, through that network, or in the case of a sale by an Authorized CMC Reseller, in accordance with your agreement with that reseller. Fee-Based CMC Software installation and use is also subject to a registration process. CMC, or potentially an Authorized CMC Reseller in the case of a sale through a reseller, will provide you with a serial number for each piece of Fee-Based CMC Software once you have paid for the applicable license. You will then use the serial number to activate the Fee-Based CMC Software you have licensed. The tool used to activate the Fee-Based CMC Software gathers information to form a unique identification of the hardware and you agree to such gathering of data (e.g., motherboard ID or MAC address from your computer, and other information requested from you such as your name and/or company name) and transmits such information to CMC’s servers where they are stored. CMC then activates the Fee-Based CMC Software you have licensed. Activation requires the Device on which the Fee-Based CMC Software is installed to be connected to the Internet, otherwise activation will require you to contact CMC for support in activating the software. All Fee-Based CMC Software licenses are non-exclusive, revocable, non-sublicensable, and non-transferrable, and solely to be used for your internal business. You may unregister and re-register Fee-Based CMC Software licenses to transfer those licenses for use on a new or different Device, provided that such unregistration and re-registration is not for the purpose of, or has the practical effect of, avoiding limitations on license counts or usage according to the license you have purchased. Fee-Based CMC Software licenses will be subject to additional terms that are hereby incorporated by reference and that will be displayed in conjunction with the download of such software and/or as a part of a checkout and payment process, or in the case of a purchase through the NI Tools Network, through that network, or in the case of a sale of a license by an Authorized CMC Reseller, in conjunction with that sale, including without limitation whether the software license is perpetual or on a subscription basis. In any event, Authorized CMC Resellers are not allowed to sell to you a license with less restrictions than were placed on that license by CMC at the time of its purchase by the reseller from CMC, and any purported greater rights are null and void with the sole liability for any such differences between what the reseller was authorized to sell and what you believed you purchased being between you and that reseller and not with CMC.
- THIRD PARTY SOFTWARE. You acknowledge that CMC may have incorporated into the CMC Software Intellectual Property created by third parties (“Third Party Intellectual Property”), and you agree that your right to use the CMC Software containing Third Party Intellectual Property may be subject to the rights of third parties and limited by agreements with such third parties.
- Title to and ownership of the CMC Software and all copies thereof remain with CMC and any other licensor(s) of the same, regardless of the form or media in or on which they may exist, and you agree to protect all of CMC’s ownership interests therein. This is a license to the CMC Software during the term of any Evaluation Period and for any time period associated with your license. You are granted no implied licenses to any other Intellectual Property rights other than as specifically granted herein. You acknowledge that the CMC Software contains trade secrets of CMC, its suppliers, or licensors, including but not limited to, the specific internal design and structure of individual programs and associated interface information, databases and database structures, and other content accessed within the CMC Software. All rights not expressly granted in this Agreement are reserved by CMC and its licensors. You represent and warrant that (a) you are the owner or an authorized user of the Device on which the CMC Software is to be accessed and used, and that your use of the CMC Software and all information you provide in relation to the CMC Software will comply with all applicable federal, state, and local laws and regulations applicable to the use of the same.
- LICENSE RESTRICTIONS. Except as explicitly allowed under this Agreement, you will not and you will not permit or assist, directly or indirectly, any User or other entity or individual to:
- transfer, assign, rent, lease, lend, or sublicense your subscription license to another person or entity and you acknowledge that any such transfer, assignment, rental, leasing, lending, or sublicense shall be void;
- install or use the CMC Software in a floating, concurrent, or any other shared context;
- distribute or otherwise make the CMC Software or any password, key, or other access code for the CMC Software available to any third party;
- defeat or work around any access restrictions or encryption in the CMC Software, unless and only to the extent that applicable law expressly prohibits this restriction;
- make error corrections to, or otherwise modify or adapt, the CMC Software or to create derivative works based upon the CMC Software or permit third parties to do the same;
- reverse engineer, decrypt, disassemble, decompile or otherwise attempt to derive the source code of the CMC Software, except where expressly permitted under applicable law notwithstanding this restriction;
- sublicense, lease, lend, or rent the CMC Software or perform, display, or otherwise access or use the CMC Software for the benefit of others or to provide services or make available to others whether on a service bureau or time sharing basis or otherwise;
- remove, minimize, block, or modify any titles, logos, trademarks, copyrights and patent notices, digital watermarks, disclaimers, or other legal notices that are included in the CMC Software, whether or not they are CMC’s or a third party’s;
- cause any of the CMC Software to become subject to a license that requires, as a condition of use, modification, or distribution, that (a) code subject to the license be disclosed or distributed in source code form or (b) others have the right to modify or create derivative works of the code subject to the license;
- use any CMC Software scripting functionality to create an application that performs the functionality of an editor for a graphical programming environment;
- use the CMC Software except as in accordance with the applicable documentation that accompanies the CMC Software, if any, and not in any manner that circumvents or is intended to circumvent such documentation or the intent of this Agreement;
- access or use the CMC Software to develop any competitive software application or similar products and services; or
- access or use all or any portion of the CMC Software in any manner that is inconsistent with the terms of this Agreement or in violation of any applicable law or regulation.
- MAINTENANCE AND UPGRADES. You acknowledge that the CMC Software licenses are granted separately from any subscription to future upgrades, updates and fixes to it, unless specifically stated in relation to the particular license, and you are not automatically entitled to any of the same or any software maintenance services under this Agreement. Nothing herein shall prevent you and CMC from entering into a separate agreement regarding such upgrades, updates, fixes, maintenance services or other service provided by CMC, and to the extent CMC supplies any Modifications to you through any existing subscription without a separate agreement, such Modifications shall be subject to the rights and obligations, including without limitation the applicable license terms and license restrictions, set forth in and referenced by this Agreement.
- PROPRIETARY RIGHTS AND CONFIDENTIALITY.
- The CMC Software and its content, including, but not limited to, source and object code, logic and structure, and any and all copies of the foregoing, regardless of the form or media in or on which any of them may exist (all together, the “Confidential Information”) constitute valuable trade secrets, are the Intellectual Property and confidential information of CMC and any other of their licensor(s), and are protected by copyright and intellectual property laws, international treaty provisions, and applicable laws of the country in which such Confidential Information is being used. Confidential Information additionally includes non-public information disclosed by CMC if it is clearly and conspicuously marked as “confidential” or with a similar designation at time of disclosure or non-public information disclosed by CMC if, by its nature, would generally be considered by CMC to be confidential. Confidential Information shall not include information which: (i) is or becomes public knowledge through no fault of you; (ii) was in your possession before receipt from CMC; (iii) is rightfully received by you from a third party without any duty of confidentiality; (iv) is disclosed to a third party by CMC without a duty of confidentiality on the third party; (v) is independently developed by you; or (vi) is disclosed with the prior written approval of CMC. Disclosures of Confidential Information will be restricted to those individuals who are participating in the performance of this Agreement and who need to know such Confidential Information for purposes of receiving and/or using the Confidential Information in a way expressly permitted by this Agreement, and Confidential Information of CMC may not be used for any purpose except as authorized under this Agreement. Confidential Information of CMC may be disclosed in response to a valid court order or other legal process only to the extent required by such order or process and only after you have given CMC written notice, if legally allowed, of such court order or other legal process promptly and the opportunity for CMC to seek a protective order or confidential treatment of such Confidential Information, at CMC’s expense, with reasonable cooperation by you. CMC shall retain all ownership of its Confidential Information including without limitation all Intellectual Property rights in that Confidential Information. Subject to the licenses granted in this Agreement, you agree, both during the term of the Agreement and after the termination of the Agreement to hold CMC Confidential Information in confidence and to protect the disclosed Confidential Information by using the same degree of care to prevent the unauthorized use, dissemination or publication of the Confidential Information as you use to protect your own Confidential Information of a like nature but in no event with less than reasonable care. You shall be responsible and liable under the terms of this Agreement for any violation of the confidentiality requirements of this Section committed by your employees, agents, representatives, or independent contractors.
- You may provide feedback to CMC, directly or indirectly (e.g., through Authorized CMC Resellers) with respect to the CMC Software. Notwithstanding any provision of the Agreement to the contrary, CMC may use such feedback for any purpose without obligation or payment of consideration to you of any kind. You hereby assign to CMC all right title, and interest in any such feedback, including without limitation all Intellectual Property in and related to such feedback.
- DEVICE RESPONSIBILITY. In order to use the CMC Software, you must provide all Devices, equipment and software necessary to use CMC Software and a Device that is in working order running an operating system and software compatible with the CMC Software and that is suitable for use in connection with the CMC Software. You are responsible for ensuring that your Device, equipment and/or software do not disturb or interfere with CMC operations or the operations of other users of the CMC Software or any third party data or systems. If any Modification to the CMC Software requires changes in your Device, equipment or software, you must effect these changes at your own expense.
- ACCOUNT DETAILS, SERIAL NUMBERS, SUSPENSION OR TERMINATION OF ACCESS. You agree to keep all account details and CMC Software serial numbers private and to not share them with anyone else in order to prevent unauthorized access to the CMC Software. One serial number is valid for no more than one installation and activation on a single Device. CMC is not liable for any loss or damage arising from any access to, sharing or use of your account details or CMC Software serial numbers. You are solely responsible for any use of the CMC Software using your account or serial numbers provided to you. You acknowledge and agree that CMC reserves the right to remotely prevent access to and/or use of the CMC Software, including without limitation by withholding or deactivating keys, serial numbers, or other information necessary for its operation, in the event that (i) CMC becomes aware, from you or otherwise, of unauthorized access or use of the CMC Software, or (ii) your actual or reasonably suspected violation of any term or condition of this Agreement.
- PROPRIETARY NOTICES. You agree to maintain and reproduce all copyright, patent, trademark and other proprietary notices on all copies, in any form, of the CMC Software in the same form and manner that such copyright and other proprietary notices are included on the CMC Software, whether they are CMC notices or those of third parties.
- TERM AND TERMINATION. In addition to any other termination rights set forth in this Agreement, the licenses granted under this Agreement terminate at the end of their designated term unless perpetual, whether that term is for an Evaluation Period or a subscription term. The licenses granted under this Agreement also immediately terminate upon any breach by you of this Agreement. The CMC Software may contain security device(s) that renders it inoperable after an Evaluation Period, at the end of a subscription term, or in the event of a breach by you of this Agreement. Upon termination of a license under this Agreement for any reason, you shall immediately cease using the Confidential Information of CMC, and you shall (i) cease accessing and using the CMC Software subject to the terminated license and remove any copies of such CMC Software from memory and/or other storage in your computer system, (ii) return the Confidential Information to CMC or destroy it, at CMC’s election, and (iii) at CMC’s request, provide CMC with certification from a principal officer of your organization that you have complied in full with the requirements of this Section.
- The CMC software IS provided “AS IS” without any warranties whatsoever, and You are not relying on any descriptions, statements, specifications, photographs or other illustrations representing the CMC software. neither CMC nor its licensors warrant that the CMC Software will meet your REQUIREMENTS, or that the CMC Software will operate uninterrupted or error free. the CMC Tests and Validation Documentation may not be appropriate for your use or for every system, and you are solely liable for ensuring proper testing and validation for your systems and intended purposes. CMC and its licensors HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF TITLE, ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. to the fullest extent allowed by law, You expressly waive any claim that You may have against CMC or its licensors based on any product liability or infringement or alleged infringement of any patent, copyright, trademark, trade secret, or other intellectual property rights with respect to the CMC software and also waive any right to indemnification from CMC or its licensors against any such Claim made against You by a third party. You acknowledge that no employee of CMC or AUTHORIZED CMC RESELLER is authorized to make any representation or warranty on behalf of CMC that is not in this Agreement.
- HIGH RISK USES AND RESPONSIBILITIES FOR YOUR SYSTEMS. CMC SOFTWARE IS NOT DESIGNED, MANUFACTURED, OR TESTED FOR USE IN HAZARDOUS ENVIRONMENTS OR ANY OTHER ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, INCLUDING IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION, AIR TRAFFIC CONTROL SYSTEMS; LIFE SAVING OR LIFE SUSTAINING SYSTEMS OR SUCH OTHER MEDICAL DEVICES; OR ANY OTHER APPLICATION IN WHICH THE FAILURE OF THE CMC SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, SEVERE PROPERTY DAMAGE, OR ENVIRONMENTAL HARM. YOU WILL DEFEND, INDEMNIFY, AND HOLD HARMLESS CMC, ITS LICENSORS, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) ARISING OUT OF YOUR USE OF THE CMC SOFTWARE FOR HIGH-RISK USES, INCLUDING CLAIMS FOR PRODUCT LIABILITY, PERSONAL INJURY OR DEATH, OR DAMAGE TO PROPERTY, AND REGARDLESS OF WHETHER SUCH CLAIMS ARE FOUNDED IN WHOLE OR IN PART ON THE ALLEGED OR ACTUAL NEGLIGENCE OF CMC OR ITS LICENSORS. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE RESPONSIBLE FOR TAKING STEPS TO PROTECT AGAINST PRODUCT AND SYSTEM FAILURES, INCLUDING PROVIDING BACK-UP OR SHUTDOWN MECHANISMS. BECAUSE EACH END-USER SYSTEM IS CUSTOMIZED AND DIFFERS FROM CMC’S AND ITS LICENSORS’ TESTING PLATFORMS AND BECAUSE YOU MAY USE CMC SOFTWARE IN COMBINATION WITH OTHER PRODUCTS IN A MANNER NOT EVALUATED OR CONTEMPLATED BY CMC OR ITS LICENSORS, YOU ARE ULTIMATELY RESPONSIBLE FOR VERIFYING AND VALIDATING THE SUITABILITY OF CMC SOFTWARE AND THAT OF ITS LICENSORS FOR YOUR INTENDED USE. YOU WILL DEFEND, INDEMNIFY, AND HOLD HARMLESS CMC AND ITS LICENSORS, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) ARISING OUT OF YOUR USE OF THE CMC SOFTWARE IN COMBINATION WITH OTHER PRODUCTS; PROVIDED, HOWEVER, THAT YOUR CONTRACTUAL OBLIGATION OF INDEMNIFICATION SHALL NOT EXTEND TO THE PERCENTAGE OF THE CLAIMANT’S DAMAGES OR INJURIES OR THE SETTLEMENT AMOUNT ATTRIBUTABLE TO CMC’S OR ITS LICENSORS’ NEGLIGENCE OR OTHER FAULT OR TO STRICT LIABILITY IMPOSED UPON CMC OR ITS LICENSORS AS A MATTER OF LAW.
- LIMITATION OF LIABILITY. TO THE FULL EXTENT ALLOWED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SET FORTH HEREIN WILL CMC OR ITS LICENSORS, SUPPLIERS, RESELLERS, DISTRIBUTORS, SUBCONTRACTORS OR AGENTS (THE “CMC PARTIES”) BE LIABLE FOR: (A) ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, UNAUTHORIZED ACCESS TO, LOSS, OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF REVENUES OR SAVINGS, OR OTHERWISE ARISING OUT OF OR IN RELATION TO THIS AGREEMENT, INCURRED BY YOU OR ANY THIRD PARTY, EVEN IF CMC HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES OR IF SUCH DAMAGES ARE OTHERWISE FORESEEABLE, IN EACH CASE, WHETHER A CLAIM FOR ANY SUCH LIABILITY IS PREMISED UPON BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY OF LIABILITY; (B) ANY CLAIMS, DEMANDS OR ACTIONS AGAINST YOU BY ANY THIRD PARTY; (C) ANY LOSS OR CLAIM ARISING OUT OF OR IN CONNECTION WITH YOUR IMPLEMENTATION OF ANY CONCLUSION OR RECOMMENDATION BY CMC BASED ON, RESULTING FROM, ARISING OUT OF OR OTHERWISE RELATED TO THE CMC SOFTWARE OR ANY DAMAGE CAUSED BY YOUR PRODUCTS OR SERVICES THAT USE OR RELY UPON THE CMC SOFTWARE (INCLUDING WITHOUT LIMITATION DAMAGES CAUSED BY OR IN RELATION TO YOUR PRODUCTS OR SERVICES INCORPORATING OR USING A CMC DRIVER); OR (D) ANY UNAVAILABILITY OF THE CMC SOFTWARE FOR USE OR ANY LOST, DAMAGED OR CORRUPTED DATA OR SOFTWARE. IN THE EVENT OF ANY LIABILITY INCURRED BY ANY OF THE CMC PARTIES, THEIR AGGREGATE AND CUMULATIVE LIABILITY FOR DAMAGES FROM ANY CAUSE WHATSOEVER RELATED TO THE CMC SOFTWARE OR ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL IN NO EVENT EXCEED THE GREATER OF THE MINIMUM AMOUNT ALLOWED BY LAW OR THE DOLLAR AMOUNT PAID BY YOU IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT THAT GAVE RISE TO THE LIABILITY FOR THE LICENSE TO THE SPECIFIC PIECE OF CMC SOFTWARE THAT GAVE RISE TO THE LIABILITY.
- INDEMNITY BY YOU. In addition to the indemnities otherwise set forth in this Agreement, you will, to the fullest extent permitted by law, indemnify the CMC Parties and their respective officers, directors, shareholders, members, parent companies, subsidiaries, employees and agents and their respective successors and assigns (collectively, the “CMC Indemnified Parties”) against and hold the CMC Indemnified Parties harmless from any and all claims, liabilities, losses, damages, judgments, awards, costs and expenses, including reasonable expert and attorneys’ fees in connection with investigating, defending, and settling any claim relating to or arising out of any acts or omissions on the part of you which are a breach of this Agreement or give rise to claims against CMC Indemnified Parties by third parties in relation to your downloading, installing, accessing, or using the CMC Software, excluding any claim to the extent due to the negligent or intentionally wrongful acts of CMC.
- This Agreement contains the entire understanding of the Parties with respect to the matters contained herein and supersedes and replaces in its entirety any and all other prior and contemporaneous agreements and understandings, whether oral, written, electronic or implied between CMC and you with respect to your use of the CMC Software, and/or any other subject matter hereof. No course of prior dealings between the Parties and no usage of trade will be relevant to determine the meaning of this Agreement. No provision of this Agreement will be deemed waived, amended or modified by CMC unless such waiver, amendment or modification is made by an officer of CMC in a signed written document. CMC may make changes to this Agreement at its sole discretion. Changes will be communicated to You by us posting the new version of the Agreement on its website at http://www.choose-mc.com/LEGAL and your acceptance of and/or continued access or use of any CMC Software after such notification of changes to this Agreement will constitute your acceptance of such changes. No valid waiver or consent will be construed as a waiver of or consent to subsequent acts or failures to act. Any delay or failure by either Party to exercise any right or remedy will not constitute a waiver of that Party to thereafter enforce such rights. You acknowledge and agree that CMC’s rights in and to CMC Software, its Intellectual Property, and its Confidential Information are unique and that the remedies at law are insufficient to compensate CMC for any breach or infringement of such rights. In addition to any other rights and remedies available to it, CMC shall be entitled to such injunctive and other equitable relief as may be necessary to protect, maintain, defend, enforce and preserve such right, without the requirement that CMC post a bond or other collateral in exchange for such an injunction or equitable remedy. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section. CMC may assign and/or subcontract all or any portion of its rights and/or obligations under this Agreement and/or assign the right to receive payments, without your consent. You may not assign this Agreement or any of its rights or obligations herein except to the extent permitted by an officer of CMC in a signed written document. Subject to such restriction on assignment, this Agreement will be binding on and inure to the benefit of the Parties hereto and their successors and assigns. Except for the CMC Indemnified Parties, no third-party beneficiaries are intended or shall be construed as created by virtue of this Agreement. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not affect the other terms or conditions hereof or the whole of this Agreement. THIS AGREEMENT AND ALL CLAIMS OR CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, OR STATUTE) THAT MAY BE BASED UPON, ARISE OUT OF, OR RELATE TO THIS AGREEMENT, OR THE NEGOTIATION, EXECUTION, OR PERFORMANCE OF THIS AGREEMENT (INCLUDING ANY CLAIM OR CAUSE OF ACTION BASED UPON, ARISING OUT OF, OR RELATED TO ANY REPRESENTATION OR WARRANTY MADE IN OR IN CONNECTION WITH THIS AGREEMENT) OR AS AN INDUCEMENT TO ENTER INTO THIS AGREEMENT, AND YOUR USE OF THE CMC SOFTWARE, SHALL BE GOVERNED BY THE LAWS OF THE STATE OF MINNESOTA, WITHOUT REGARD TO CONFLICTS OF LAWS RULES. ANY LITIGATION WILL BE BROUGHT EXCLUSIVELY IN the State of MINNESOTA, AND EACH PARTY CONSENTS TO THE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED THEREIN, SUBMITS TO THE JURISDICTION THEREOF AND WAIVES THE RIGHT TO CHANGE VENUE. EACH PARTY FURTHER CONSENTS TO THE EXERCISE OF PERSONAL JURISDICTION BY ANY SUCH COURT WITH RESPECT TO ANY SUCH PROCEEDING. Your use of the CMC Software may also be subject to other local, state, national, or international laws. Except in the case of nonpayment of fees due from you to CMC or your violation of CMC’s rights and your restrictions as to CMC’s Intellectual Property, including without limitation CMC Confidential Information, neither Party may institute any action in any form arising out of or in relation to this Agreement more than one (1) year after the cause of action has arisen. The 1980 United Nations Convention on Contracts for the International Sale of Goods, the United Nations Convention on the Limitation Period in the International Sale of Goods, and the Uniform Computer Information Transactions Act, and any implementations or subsequent revisions thereto, do not apply to this Agreement. The provisions of this Agreement shall survive any termination of this Agreement or any license rights granted to you except for those provisions granting you any license or rights in relation to the CMC Software.
Last updated September, 2019
The CMC Software is Copyright © 2019, Choose Movement Consulting, LLC, or to the extent applicable, its licensors such as National Instruments Corporation. All Rights Reserved.