Cascade Acoustic Research Software License Agreement
IMPORTANT – READ CAREFULLY
READ THE TERMS OF THIS AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE OPENING SOFTWARE MEDIA PACKAGE. BY OPENING SOFTWARE MEDIA PACKAGE, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCESSING SOFTWARE ELECTRONICALLY, INDICATE YOUR ACCEPTANCE OF THESE TERMS BY SELECTING THE “ACCEPT” (OR EQUIVALENT) BUTTON AT THE END OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS, PROMPTLY RETURN THE UNUSED SOFTWARE TO YOUR PLACE OF PURCHASE FOR A REFUND OR, IF SOFTWARE IS ACCESSED ELECTRONICALLY, SELECT THE “DECLINE” (OR EQUIVALENT) BUTTON AT THE END OF THIS AGREEMENT.
As used throughout this Contract Agreement, the following terms shall have the meanings set forth below:
- “Cascade Acoustic Research” shall mean the principals of the Cascade Acoustic Research group.
- “Client” shall mean the contracting party, the name, contact details and address for services of notice for whom are included on the order form.
- “Project” shall mean the research project set out in the attached proposal and/or order form and shall include any information delivered by Cascade Acoustic Research referred to as “material”, “intellectual property”, “report”, “design”, and “data”, within this Agreement.
- “End User” shall mean any agency, firm, provider, organization, individual or other entity for which the Client is providing a service as a contractor of that entity.
- “Contractor” shall mean any agency, firm, provider, organization, individual or other entity performing services for the Client or Cascade Acoustic Research. It shall include any Subcontractor retained by the prime Contractor as permitted under the terms of this Agreement.
- “Subcontractor” shall mean one not in the employment of the Contractor, who is performing all or part of those services under a separate contract agreement with the Contractor. The terms “Subcontractor” and “Subcontractors” mean Subcontractor(s) in any tier.
- “Entitlement” means the collective set of applicable documents authorized by Cascade Acoustic Research evidencing your obligation to pay associated fees (if any) for the license, associated Services, and the authorized scope of use of Software under this Agreement.
- “Licensed Unit” means the unit of measure by which your use of Software and/or Service is licensed, as described in your Entitlement.
- “Permitted Use” means the licensed Software use(s) authorized in this Agreement as specified in your Entitlement. The Permitted Use for any bundled Cascade Acoustic Research software not specified in your Entitlement will be evaluation use as provided in Section 3.
- “Service” means the service(s) that Cascade Acoustic Research or its delegate will provide, if any, as selected in your Entitlement and as further described in the applicable Terms and Conditions for Consultancy.
- “Software” means the Cascade Acoustic Research software described in your Entitlement. Also, certain software may be included for evaluation use under Section 3.
- “You” and “Your” means the Client specified in the Entitlement, or for evaluation purposes, the contracting entity performing the evaluation.
2. License Grant and Entitlement
Subject to the terms of your Entitlement, Cascade Acoustic Research grants you a nonexclusive, nontransferable limited license to use Software for its Permitted Use for the license term. Your Entitlement will specify (a) Software licensed, (b) the Permitted Use, (c) the license term, and (d) the Licensed Units.
Additionally, if your Entitlement includes Services, then it will also specify the (e) Service and (f) service term.
If your rights to Software or Services are limited in duration and the date such rights begin is other than the purchase date, your Entitlement will provide that beginning date(s).
The Entitlement may be delivered to you in various ways depending on the manner in which you obtain Software and Services, for example, the Entitlement may be provided by your receipt, invoice or your contract with Cascade Acoustic Research or authorized Cascade Acoustic Research reseller. It may also be in electronic format if you download Software.
3. Permitted Use
As selected in your Entitlement, one or more of the following Permitted Uses will apply to your use of Software. Unless you have an Entitlement that expressly permits it, you may not use Software for any of the other Permitted Uses. If you don’t have an Entitlement, or if your Entitlement doesn’t cover additional software delivered to you, then such software is for your Evaluation Use.
a) Evaluation Use. You may evaluate Software internally for a period of 90 days from your first use.
b) Research and Instructional Use. You may use Software internally to design, develop and test, and also to provide instruction on such uses.
c) Individual Use. You may use Software internally for personal, individual use.
d) Commercial Use. You may use Software internally for your own commercial purposes and make Software functionally accessible (but not by providing Software itself) to your End Users.
e) Service Provider Use. You may make Software functionality accessible (but not by providing Software itself) to your End Users, Contractors, and Subcontractors.
4. Licensed Units
Your Permitted Use is limited to the number of Licensed Units stated in your Entitlement. If you require additional Licensed Units, you will need additional Entitlement(s).
a) The copies of Software provided to you under this Agreement are licensed, not sold, to you by Cascade Acoustic Research. Cascade Acoustic Research reserves all rights not expressly granted.
b) You may make a single archival copy of Software, but otherwise may not copy, modify, or distribute Software. However if the Cascade Acoustic Research documentation accompanying Software lists specific portions of Software, such as header files, class libraries, assembly files, reference source code, and/or redistributable files, that may be handled differently, you may do so only as provided in the Cascade Acoustic Research documentation.
c) You may not rent, lease, lend or encumber Software unless specified by your Entitlement.
d) Unless enforcement is prohibited by applicable law, you may not decompile, or reverse engineer Software.
e) The terms and conditions of this Agreement will apply to any Software updates, provided to you at Cascade Acoustic Research’s discretion, that replace and/or supplement the original Software, unless such update contains a separate license.
f) You may not publish or provide the results of any benchmark or comparison tests run on Software to any third party without the prior written consent of Cascade Acoustic Research.
g) Software is confidential and copyrighted.
h) Unless otherwise specified, if Software is delivered with embedded or bundled software that enables functionality of Software, you may not use such software on a stand-alone basis or use any portion of such software to interoperate with any program(s) other than Software.
j) Software is not designed, licensed or intended for use in the design, construction, operation or maintenance of any nuclear facility and Cascade Acoustic Research and its licensors disclaim any express or implied warranty of fitness for such uses. (k) No right, title or interest in or to any trademark, service mark, logo or trade name of Cascade Acoustic Research or its licensors is granted under this Agreement.
6. Term and Termination
The license and service term are set forth in your Entitlement(s). Your rights under this Agreement will terminate immediately without notice from Cascade Acoustic Research if you materially breach it or take any action in derogation of Cascade Acoustic Research’s and/or its licensors’ rights to Software. Cascade Acoustic Research may terminate this Agreement should any Software become, or in Cascade Acoustic Research’s reasonable opinion likely to become, the subject of a claim of intellectual property infringement or trade secret misappropriation. Upon termination, you will cease use of, and destroy, Software and confirm compliance in writing to Cascade Acoustic Research. Sections 1, 5, 6, and 8-13 will survive termination of the Agreement.
7. Limited Warranty
Cascade Acoustic Research warrants to you that for a period of 90 days from the date of purchase, as evidenced by a copy of the receipt, the media on which Software is furnished (if any) will be free of defects in materials and workmanship under normal use. Except for the foregoing, Software is provided “AS IS”. Your exclusive remedy and Cascade Acoustic Research’s entire liability under this limited warranty will be at Cascade Acoustic Research’s option to replace Software media or refund the fee paid for Software. Some states do not allow limitations on certain implied warranties, so the above may not apply to you. This limited warranty gives you specific legal rights. You may have others, which vary from state to state.
8. Disclaimer of Warranty
UNLESS SPECIFIED IN THIS AGREEMENT, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT ARE DISCLAIMED, EXCEPT TO THE EXTENT THAT THESE DISCLAIMERS ARE HELD TO BE LEGALLY INVALID.
9. Limitation of Liability
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL CASCADE ACOUSTIC RESEARCH OR ITS LICENSORS BE LIABLE FOR ANY LOST REVENUE, PROFIT OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF OR RELATED TO THE USE OF OR INABILITY TO USE SOFTWARE, EVEN IF CASCADE ACOUSTIC RESEARCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
In no event will Cascade Acoustic Research’s liability to you, whether in contract, tort (including negligence), or otherwise, exceed the amount paid by you for Software under this Agreement. The foregoing limitations will apply even if the above stated warranty fails of its essential purpose. Some states do not allow the exclusion of incidental or consequential damages, so some of the terms above may not be applicable to you.
10. Export Regulations
All Software, documents, technical data, and any other materials delivered under this Agreement are subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree to comply strictly with these laws and regulations and acknowledge that you have the responsibility to obtain any licenses to export, re-export, or import as may be required after delivery to you.
11. Governing Law
Any action related to this Agreement will be governed by Washington state law and controlling U.S. federal law. No choice of law rules of any jurisdiction will apply.
If any provision of this Agreement is held to be unenforceable, this Agreement will remain in effect with the provision omitted, unless omission would frustrate the intent of the parties, in which case this Agreement will immediately terminate.
This Agreement, including any terms contained in your Entitlement, is the entire agreement between you and Cascade Acoustic Research relating to its subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals, representations and warranties and prevails over any conflicting or additional terms of any quote, order, acknowledgment, or other communication between the parties relating to its subject matter during the term of this Agreement. No modification of this Agreement will be binding, unless in writing and signed by an authorized representative of each party.
Cascade Acoustic Research Terms and Conditions for Consultancy Projects
As used throughout this Contract Agreement, the following terms shall have the meanings set forth below:
a) “Cascade Acoustic Research” shall mean the principals of the Cascade Acoustic Research group;
b) “Client” shall mean the contracting party, the name, contact details and address for services of notice for whom are included on the order form;
c) “Project” shall mean the research project set out in the attached proposal and/or order form and shall include any information delivered by Cascade Acoustic Research referred to as “material”, “intellectual property”, “report”, “design”, and “data”, within this Agreement;
d) “Contractor” shall mean any agency, firm, provider, organization, individual or other entity performing services for the Client or Cascade Acoustic Research. It shall include any Subcontractor retained by the prime Contractor as permitted under the terms of this Agreement;
e) “Subcontractor” shall mean one not in the employment of the Contractor, who is performing all or part of those services under a separate contract agreement with the Contractor. The terms “Subcontractor” and “Subcontractors” mean Subcontractor(s) in any tier.
1. CONSULTANCY PROJECT
Cascade Acoustic Research and Client agree that:
a) Cascade Acoustic Research will supply the Project defined by Article 1 (c) on the Terms and Conditions set forth below;
b) By signing the order form, the Client unequivocally accepts the Terms and Conditions set forth herein;
c) The Project will be designed to produce a report to meet agreed objectives as far as possible, although the actual findings of the Project cannot be predicted in advance or guaranteed to agree with any set objectives.
2. OWNERSHIP OF INTELLECTUAL PROPERTY
Cascade Acoustic Research and Client agree that:
a) All Intellectual Property Rights (IPR) -including all patents, copyrights, rights in software, design rights, trademarks, service marks, trade secrets, know-how, and all other intellectual or industrial property rights- (whether registered or unregistered) and all applications for the same anywhere in the world) in the Project, the information contained therein, in all documentation, training materials and related matter, and in all parts thereof, are owned by Cascade Acoustic Research or third party data sources;
b) Client does not have any IPR or any other proprietary interests neither in the Project, nor in any data or material contained in it except that data provided by Client itself;
c) Except as expressly permitted in these Conditions, nothing herein shall be taken as conferring by implication or otherwise any license or right to use any IPR in the Services without the prior written approval of Cascade Acoustic Research or third parties who may own such IPR;
d) Whilst always abiding by Article 7, Cascade Acoustic Research and Client agree there is no guarantee that the Project will yield unique results- where the Project draws upon other Cascade Acoustic Research data, either published or unpublished, then it is understood this data is also available to be used in similar projects commissioned by other clients;
e) Cascade Acoustic Research and the Cascade Acoustic Research staff involved in the Project may undertake similar projects for other clients, who may be competitive to Client; and
f) Nothing in this Agreement means that Cascade Acoustic Research is prevented from publishing analyses, reports and/or whitepapers on the same subject area covered by the Project, or shall have to use sources different to those used to undertake the Project.
3. USE OF THE DATA PROVIDED BY THE PROJECT
a) The Client undertakes that it will not copy, reproduce, print or store in any manner, extract or transmit in any form or otherwise deal with in any way, the whole or part of the data, materials or information provided by the Project except as provided in Article 3 (c) below.
b) Unless otherwise agreed in writing in advance by Cascade Acoustic Research, the material (in whole or in part) may not be sold, nor passed on, communicated or disseminated in any form, nor access granted to it, to any third party (including but not limited to clients/potential clients/suppliers/agents/partners in other ventures/brokers/licensees).
c) The Client may only use the data provided by the Project as follows:-
i. for its own internal business use;
ii. in dealings with its professional advisors, Contractors and Subcontractors;
iii. extracts of the data may be provided to clients and potential clients, an extract being defined as not more than thirty (30) % of the data provided by the project.
d) The Client will not place financial reliance upon any figure, statement or inference contained within the Data provide by the Project, or invite investment from others, without first obtaining the written consent of the Cascade Acoustic Research Company President so to do.
e) The Project carried out for the Client is for the sole use of the Client and Client shall procure that any Data provided by the Project will not be relied upon by any third party.
The Client shall settle all invoices issued by Cascade Acoustic Research in respect of the Project within 30 days of receipt, or in full in advance if no account facility has been set up with Cascade Acoustic Research prior to this Agreement. Cascade Acoustic Research reserves the right to cease work on the Project if the Client fails to settle any Invoice in full within 30 days from issue without the need to serve notice of such action.
5. LIMITATION ON LIABILITY
a) Client shall indemnify and hold Cascade Acoustic Research harmless from and against any direct loss, damage, cost, liability or expense (including reasonable legal and professional fees) arising out of any third party legal action taken against Cascade Acoustic Research claiming actual or alleged infringement of copyright or other intellectual property rights in respect of information or data or other material supplied by Client to Cascade Acoustic Research in the course of this Agreement.
b) All conditions and warranties whether express or implied by statute or otherwise (including but not limited to those as to description, merchantability or fitness for purpose) are excluded from this agreement. In particular whilst Cascade Acoustic Research aims to ensure that material contained within the Project is accurate and complete, Cascade Acoustic Research gives no warranty, express or implied, that the material supplied as part of the Project is suitable for any particular purpose, nor that it is complete, correct, or up to date.
c) Cascade Acoustic Research will use all reasonable efforts to ensure that the Project is completed to agreed timescales. In the event that it proves impossible to complete a project within the agreed timescales, Cascade Acoustic Research’s obligation shall be limited to using its reasonable efforts to complete the project within timescales that it considers reasonable, or at its sole option, to cancel, credit or refund any or all charges due from the Client. Similarly, with regard to defects, Cascade Acoustic Research’s sole obligations shall be to, at its sole option, correct such defects or cancel, credit or refund a proportionate part of the charges. The remedies described above shall constitute the full extent of Cascade Acoustic Research’s liability in respect of any loss or damage sustained by the Client whether caused by breach of this Agreement, misrepresentation, negligence of Cascade Acoustic Research (or its employees or agents) or from any other cause, and in particular, Cascade Acoustic Research shall not be liable for any consequential, economic or other direct or indirect loss (including but not limited to any damages payable to a third party, loss of profits or wasted resources) suffered by the Client. Furthermore, the maximum aggregate liability of Cascade Acoustic Research shall not exceed the total charges payable by the Client for the Project. The foregoing exclusions and limitations of liability shall not apply in the case of death or personal injury.
This Agreement shall terminate on the completion of the Project.
Cascade Acoustic Research may terminate this Agreement with immediate effect, without notice, in the event that the Client has defaulted in the performance of any material provision contained in this agreement and (where capable of remedy) such default has not been remedied within 30 days after written notice thereof shall have been served.
Termination of this Agreement for any reason shall not affect Cascade Acoustic Research’s right to recover any monies due at the time of termination or to recover damages for any breach of contract before termination.
Both parties to this Agreement undertake to keep confidential and not to disclose to any third party or to use itself, any confidential or secret information in any form directly or indirectly belonging to or relating to the other party, its affiliates, its or their business affairs, disclosed by or received by either party to this Agreement pursuant to or in the course of this Agreement (“Confidential Information”).
Both parties to this Agreement undertake to disclose Confidential Information of the other party only to those of its officers, employees, agents and contractors to whom and to the extent to which disclosure is necessary for the purposes contemplated under this Agreement.
The above obligations of confidentiality and non-use shall not apply to information or material:
a) which is named prior to receipt by the receiving party as evidenced by documents in the possession of the receiving party at the time of disclosure;
b) which, after receipt, is disclosed to the receiving party by a third party having the legal right to do so;
c) which is available to the public at the time of receipt; or
d) which becomes available to the public after receipt through no fault of the receiving party.
This clause shall survive the termination of this Agreement.
8. TREATMENT OF ASSETS
a) Any property of Cascade Acoustic Research furnished to the Client shall, unless otherwise provided herein, or approved by Cascade Acoustic Research, be used only for the performance of the Project;
b) the Client shall be responsible for any loss or damage to property of Cascade Acoustic Research which results from the negligence of the Client, the Client’s Contractors, or which results from the failure on the part of the Client to maintain and administer that property in accordance with sound management practices, and shall maintain an inventory of Cascade Acoustic Research property;
c) upon the happening of loss or destruction of, or damage to, any Cascade Acoustic Research property, the Client shall notify Cascade Acoustic Research thereof and shall take all reasonable steps to protect that property from further damage;
d) the Client shall surrender to Cascade Acoustic Research all property of Cascade Acoustic Research prior to settlement upon completion, termination, or cancellation of this Agreement.
9. FORCE MAJEURE
No party shall be liable to the other for the delay or non-performance of its obligations under this Agreement arising from any cause or causes beyond its reasonable control including without limitation, any of the following: act of God, government act, war, fire, flood, explosion or civil commotion.
No forbearance or delay by Cascade Acoustic Research in enforcing its rights will prejudice or restrict the rights of Cascade Acoustic Research, and no waiver of any such rights or of any breach of any contractual terms will be deemed to be a waiver of any other right or of any later breach.
11. NO ASSIGNMENT
The benefit of this Agreement may not be assigned in whole or in part by the Client without the prior written consent of Cascade Acoustic Research.
The Client’s only remedy in respect of a breach of the terms of this Agreement is in damages.
13. ENTIRE AGREEMENT
This Agreement constitutes the whole Agreement between Cascade Acoustic Research and the Client relating to the Project and supersedes and replaces all prior Agreements and arrangements of whatever nature relating thereto.
If any provision of this Agreement or any provision of any document incorporated by reference shall be held invalid, such invalidity shall not affect the other provisions of this Agreement which can be given effect without the invalid provision, and to this end the provisions of this Agreement are declared to be severable.
Any notice or other communication given or made under or in connection with this Agreement shall be in writing and shall be deemed to have been received at the time of delivery or at the expiration of three days after posting as appropriate and in proving service it shall be sufficient to prove that delivery was made or that the envelope containing such notice or document was properly addressed and posted as a prepaid first class registered letter.
16. LICENSING AND ACCREDITATION STANDARDS
The Client shall comply with all applicable local, state and federal licensing and accrediting requirements/standards, necessary for their implementation of the Project.
17. GOVERNING LAW
This Contract Agreement shall be governed by the laws of the state of Washington. Any action brought hereunder must be brought in Pierce County, Washington.