Radiator Evaluation End User License Agreement (“License Agreement”)
Radiator Evaluation End User License Agreement Version 1.1
Last Changed 2018-09-26
1. Scope of the License Agreement; Definitions
This License Agreement applies to the evaluation use of the Licensor’s Software (both as defined below in this Section) by the firm, company, corporation or other entity who has acquired a valid license to use the Software (“Licensee”). If you have not acquired a valid license to use the Software, you are not entitled to download, install or use the Software.
The Licensee represents and warrants that each person who downloads, installs and/or otherwise takes the Software (or any later update, upgrade, modification or other release of the Software, with which a modified or a new version of the License Agreement is provided or presented) into use or otherwise accepts the License Agreement or a modified or new version thereof is authorized to conclude a binding agreement on behalf of the Licensee and that the Licensee is bound by the License Agreement and the modified or new version thereof. Where the Software is replaced with a later update, upgrade, modification or other release of the Software, with which a modified or a new version of the License Agreement is provided or presented, the use of the Software is thereafter governed by the modified or new version of the License Agreement.
“Evaluation Period” shall mean a period of [thirty (30) days] starting from the date the Licensor has given the Licensee the opportunity to download the Software.
“Licensor” means Radiator Software. Radiator Software is the primary business name of Radiator Software Ltd and a business name used by Open System Consultants Pty Ltd. Radiator Software Ltd and Open System Consultants Pty Ltd are jointly deemed as the Licensor, and they both under their respective rights grant the license to the Licensee in accordance with the terms of this License Agreement. Radiator Software Ltd and Open System Consultants Pty Ltd are each entitled to use any and all rights of the Licensor and to enforce any and all terms of this License Agreement separately, without the requirement of the other to join the claim or action, or they may decide to use the rights of the Licensor and to enforce terms of this License Agreement also jointly.
“Software” means the software of the Licensor that is licensed to the Licensee based on this License Agreement. The definition of the Software includes also the modifications, fixes, updates, upgrades and derivative works of the Software (together referred to as “Updates”) that may be provided to the Licensee by the Licensor or its authorized reseller or distribution partner, unless other license terms accompany and govern the Licensee’s use of the Update. Based on this License Agreement, the Licensor is not committed to release or provide any Updates.
“Documentation” means usage and installation manuals and other documentation related to the Software in written or electronic form, that are supplied to the Licensee or included in the Software media or that otherwise accompany the Software.
“Intellectual Property Rights” means patents, right to inventions, trademarks, domain names, rights in know-how, trade secrets, copyrights, database rights, rights related to copyrights, and all other rights or forms of protection having equivalent or similar effect as any of the foregoing which may now or at any time hereafter exist anywhere in the world, whether registered or not, and including but not limited to any applications for grant of any of the foregoing.
”Operating Partner” means a third party who runs and operates the Software on its equipment only on behalf of the Licensee and for the benefit of the Licensee.
“Specific License Terms” or “SLT” means specific license terms which the Licensor issues for the purpose of the Licensee and which deviate from the Section “License Grant” of this License Agreement. The Specific License Terms issued for the purpose of the Licensee are incorporated in this License Agreement by reference.
BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE, THE LICENSEE IS CONSENTING TO BE BOUND BY THIS LICENSE AGREEMENT. IF THE LICENSEE DOES NOT CONSENT TO BE BOUND BY ALL OF THE TERMS OF THIS LICENSE AGREEMENT, THE LICENSEE IS NOT ENTITLED TO DOWNLOAD, INSTALL OR USE THE SOFTWARE.
2. License Grant
The Licensee is granted a non-exclusive and non-transferable right to use the Software during the Evaluation Period in the Licensee’s own internal operations in non-commercial use but otherwise as specified in the Documentation. The Software is provided to the Licensee only in electronic form for download. Unless otherwise consented to by the Licensor, each Software version or Update (as the case may be) licensed to the Licensee will be made available to the Licensee only once.
The Licensee may install and use the Software on one (1) computer, whether that computer is physical or virtual.
The Licensee may make one (1) back-up copy of the Software solely for back-up purposes, provided that the Licensee affixes to such copies all copyright and proprietary notices that appear on the original copy.
The Software may only be installed and operated on a computer that is owned by or leased to the Licensee or its Operating Partner. The Licensee shall ensure that the Operating Partner runs and operates the Software only on behalf of the Licensee and only for the benefit of the Licensee. The Licensee shall be liable for the actions of the Operating Partner.
The Licensee and the Licensee’s Operating Partner may use the Documentation internally in order to support the above-mentioned licensed use of the Software only on behalf of and for the benefit of the Licensee.
On the expiry of the Evaluation Period, the Licensee agrees to either purchase a Software license at the Licensor’s list price in force at that time or to destroy all copies of the Software and Documentation in the Licensee’s possession, including any copies on back-up tapes or other media.
Possible Specific License Terms issued by the Licensor for the purpose of the Licensee prevail over the terms of this License Agreement.
The Software and the Documentation are licensed, not sold. The Licensor reserves all rights not expressly granted in this License Agreement.
Except as otherwise expressly set forth herein, the Licensee may not:
- rent, lease, license, loan, assign, resell or otherwise transfer the Software or the Documentation or any copy thereof or to permit the Software or the Documentation to be used, directly or indirectly, by any third party;
- use the Software to offer service bureau, time-sharing or other services to third parties;
- disassemble, decompile, translate, decrypt or reverse engineer the Software;
- modify or create derivative works of the Software or the Documentation;
- use, reproduce or copy the Software or the Documentation;
- otherwise compromise the Licensor’s or its licensors’ rights in the Software or the Documentation; or
- remove any proprietary notices or labels from the Software or the Documentation.
4. Title and Intellectual Property Rights
Title, ownership and any and all Intellectual Property Rights in and to the Software and the Documentation shall remain solely with the Licensor and/or its licensors. Without limiting the foregoing, the Software and the Documentation are protected by copyright laws of Finland, Australia and/or other countries and international copyright treaties.
5. Disclaimer of Warranty and Liability
NOTWITHSTANDING ANY POSSIBLE WARRANTY GIVEN OR OTHER LIABILITY TAKEN BY THE LICENSOR IN ANY OTHER CONTRACTUAL DOCUMENT, THE SOFTWARE AND THE DOCUMENTATION ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND. THE LICENSOR DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE AND THE DOCUMENTATION IS BORNE BY THE LICENSEE. SHOULD THE SOFTWARE OR THE DOCUMENTATION PROVE TO BE DEFECTIVE, THE LICENSEE (AND NOT THE LICENSOR) ASSUMES THE ENTIRE COST OF ANY SERVICE AND REPAIR. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THE LICENSE AGREEMENT. THIS DISCLAIMER OF WARRANTY SUPERSEDES ALL STATEMENTS IN MARKETING MATERIALS OR BROCHURES RELATING THE SOFTWARE OR THE DOCUMENTATION AND NO STATEMENT IN MARKETING MATERIALS OR BROCHURES BINDS THE LICENSOR.
THE WARRANTIES ARE PROVIDED IN ADDITION TO THE CONSUMER GUARANTEES AND DO NOT OVERRIDE OR LIMIT CONSUMERS’ RIGHTS UNDER THE AUSTRALIAN CONSUMER LAW. UNDER THE AUSTRALIAN CONSUMER LAW, IF THERE IS A PROBLEM WITH THE SOFTWARE THAT ENTITLES THE LICENSEE TO A REMEDY, THE LICENSOR SHALL ONLY BE REQUIRED TO REPLACE OR REPAIR THE SOFTWARE SUPPLIED TO THE LICENSEE.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (TORT, CONTRACT, NEGLIGENCE OR OTHERWISE) SHALL THE LICENSOR BE LIABLE TO THE LICENSEE OR ANY OTHER PERSON OR THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL, PUNITIVE OR OTHER DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY COMMERCIAL DAMAGES OR LOSSES, EVEN IF THE LICENSOR HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
The Licensor may assign the License Agreement to any third party at any time. The Licensee shall not have the right to assign the License Agreement, or any of its duties, rights or obligations based on the License Agreement, to any third party without the express written consent of the Licensor.
The Licensee shall follow all laws and regulations that apply to the export of the Software or the Documentation. The Licensee agrees not to export or re-export the Software or the Documentation in contradiction to any law or regulation.
The Licensor may terminate this License Agreement and consequently the Licensee’s right to use the Software and the Documentation in case the Licensee commits a breach of the License Agreement.
On expiry of the Evaluation Period or other termination of the Licensee’s right to use the Software, the Licensee shall destroy all copies of the Software and Documentation in the Licensee’s possession, including any copies on back-up tapes or other media.
This License Agreement constitutes the complete agreement between the parties with respect to the subject matter of the License Agreement and it supersedes all previous proposals and marketing materials and other communications between the parties with respect to the subject matter of the License Agreement. Except for the Specific License Terms possibly issued by the Licensor for the purpose of the Licensee, modifications of this License Agreement are valid only in signed written form. If any provision of this License Agreement is found to be contrary to law, the other provisions of this License Agreement will remain in full force and effect and the License Agreement shall be interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law. Such invalid provision shall also be amended by the parties so as to best accomplish the objectives of the original provision to the fullest extent allowed by law. Upon any termination or expiry of this License Agreement, the Licensor’s rights based on this License Agreement shall survive. The same apply to such Licensee’s obligations, which by their nature contemplate effectiveness beyond the termination of the License Agreement. Without limiting the foregoing, this Section “Miscellaneous” shall survive. This License Agreement shall be governed by and construed under the laws of Finland, without giving effect to the principles of conflicts of law. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. Any dispute, controversy or claim arising out of or relating to the License Agreement shall be finally settled by arbitration in accordance with the Rules for Expedited Arbitration of the Finland Chamber of Commerce. The arbitrator shall have at least a master’s degree in law from a Finnish university and the arbitrator shall be experienced in dispute resolution within ICT sector. The arbitration shall take place in Helsinki, Finland, and shall be conducted in English. Notwithstanding the above, the Licensor may seek equitable and/or injunctive relief to prevent or stop a violation of the License Agreement, and the Licensor may select to bring an action based on the License Agreement (such as based on breach or suspected breach of the License Agreement by the Licensee) in any court having jurisdiction over the Licensee’s domicile or any place where the Licensee has assets.