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not modify, port, or translate the Software or the Documentation. Where Licensee has other rights with respect to the Software or the Documentation mandated
under statute, Licensee will provide MPT with reasonably detailed information regarding any intended modifications, porting, translations, reverse engineering,
disassembly, decryption, or decompilation, and the purposes therefore.
5.4. Proprietary Notices and Legends. If Licensee makes any copies of the Software or the Documentation in accordance with this EULA, Licensee must reproduce in
all such copies all proprietary notices and legends contained in the originals.
5.5. Updates. Upon Licensee’s installation of any Update to Software, Licensee shall have no further rights, and MPT shall have no further obligations, with respect
to those portions of the Software that such Update was intended to replace. If additional or different license terms or conditions accompany an Update, Licensee
acknowledges and agrees that Licensee’s Use of that Update will be subject to those additional or different terms and conditions.
5.6. Export Restrictions; Compliance with Laws. Licensee agrees that Licensee will not, directly or indirectly, export or transmit the Software or the Documentation
to any country, entity, or person to which such export or transmission is restricted by any applicable government regulation or statute without the prior written
consent, if required, of the governmental entity as may have jurisdiction over such export or transmission. Licensee agrees to comply with and conform to all
applicable laws, regulations, and ordinances relating to Licensee’s use of the Software and/or the Documentation.
6. RESPONSIBILITIES OF LICENSEE.
6.1. Payment. In consideration for the licenses and rights granted to Licensee herein, Licensee agrees to pay all amount(s) for such licenses and rights as set forth in
the corresponding invoice, in accordance with the payment terms agreed upon by Licensee.
6.2. Indemnification. Licensee hereby agrees to indemnify, protect, defend, and hold MPT and its licensors harmless from and against any and all claims, losses, or
damages (including but not limited to reasonable attorneys’ and experts’ fees) attributable to
(a) Licensee’s use or misuse of the Software or the Documentation, or
(b) any failure by Licensee to comply with any term, condition, or restriction in this EULA.
7. COMPLIANCE AUDIT. MPT shall have the right, upon reasonable notice, to conduct and/or have an independent accounting firm conduct, during normal business
hours on Licensee’s premises under Licensee’s reasonable supervision, an audit to verify Licensee’s compliance with the terms of this EULA. If an audit reveals
underpayments, then Licensee will immediately pay MPT such underpayments together with the costs reasonably incurred by MPT in connection with the audit and
seeking compliance with this section.
8. USE OF LICENSEE INFORMATION. With respect to any information Licensee provides to MPT in connection with the Software or the Documentation, MPT may use
such information for any purpose without restriction, including, without limitation, for product support and development purposes, provided that MPT will not use
such information in a form that identifies Licensee.
9. TERM AND TERMINATION.
9.1. General. Except as provided below with respect to evaluation and limited term licenses, this EULA and the license(s) granted herein will remain effective until
terminated. Licensee may terminate this EULA and the licenses granted herein by ceasing all use of the Software and the Documentation, and returning all copies of
the Software and the Documentation to MPT. This EULA (including but not limited to the licenses granted to Licensee herein) will automatically terminate if Licensee
fails to comply with any term or condition of this EULA.
9.2. Evaluation and Term Licenses. If the Software and the Documentation have been licensed to Licensee for evaluation purposes, this EULA will be effective
only until the end of the designated evaluation period. If the Software and the Documentation have been licensed to Licensee for a limited term as specified
in the applicable sales acknowledgment, invoice, or otherwise, then this EULA will be effective only until the end of such term. Software that is subject to any
evaluation or limited term license may contain code that can disable most or all of the features of such software upon expiration of such evaluation or limited term
license, and unless Licensee has paid the applicable license fee for any additional licenses, Licensee shall have no rights to use such Software or the corresponding
Documentation upon expiration of any such license.
9.3. Obligations Upon Termination or Expiration. Licensee agrees, upon any termination or expiration of this EULA, to cease use of, and to destroy or return to MPT,
all copies of the Software and the Documentation. At MPT’s request, Licensee will certify in writing to MPT that Licensee has complied with these requirements.
Notwithstanding anything in this EULA to the contrary, Sections 1, 3, 4, 5.3, 5.6, 6, 7, 8, 9, 10.2, 10.3, 11, 12, and 13 of this EULA shall survive any expiration or
termination of this EULA and continue in perpetuity.
10. LIMITED WARRANTY; DISCLAIMER; LIMITATION OF LIABILITY.
10.1. refer to micropower.com for current warranty information
11. U.S. GOVERNMENT RESTRICTED RIGHTS.
11.1. Commercial Software. The Software and the Documentation are deemed to be “commercial computer software” and
“commercial computer software documentation,” respectively, for purposes of Federal Acquisition Regulations (“FAR”) 12.212 and the Defense FAR Supplement
(“DFARS”) 227.7202-1, 227.7202-3, and 227.7202-4, and the restrictions set forth in such regulations, and this EULA shall be deemed to be the license described in
such regulations. Any use, modification, reproduction, release, performance, display, or disclosure of the Software or the Documentation by any agency, department,
or entity of the United States Government (the “Government”) shall be governed solely by the terms of this EULA and is prohibited except to the extent expressly
permitted by the terms of this EULA. The Software and the Documentation are also deemed to be “restricted computer software” for purposes of FAR 52.227-14(g)
(3) (Alternate III (June 1987)) and FAR 52.227-19, which clauses are incorporated herein by reference subject to the express restrictions and prohibitions set forth
above.
11.2. Certain Technical Data. Any technical data provided by MPT in connection with the Software or the Documentation that is not covered by the above provisions
is deemed to be “technical information related to commercial computer software or commercial computer software documentation” for purposes of FAR 12.212 and
the restrictions set forth therein, and is deemed to be “technical data or information related or pertaining to commercial items or processes” developed at private
expense for purposes of DFARS 227.7102-1
and 227.7102 2 and the restrictions set forth therein, and this EULA shall be deemed to be the license described in such regulations. Any use, modification,
reproduction, release, performance, display, or disclosure of such technical data by the Government shall be governed solely by the terms of this EULA and is
prohibited except to the extent expressly permitted by the terms of this EULA. Such technical data is also deemed to be “limited rights data” as defined in FAR
52.227-14(a) (Alternate I (June 1987)) and for purposes of FAR 52.227-14(g)(2) (Alternate II (June 1987)), which clauses are incorporated herein by reference subject
to the express restrictions and prohibitions set forth above. Such technical data shall also be deemed to be “technical data” for purposes of DFARS 252.227-7015,
which clause is incorporated herein by reference subject to the express restrictions and prohibitions set forth above.
11.3. Third Party Acceptance of Restrictions. Licensee shall not provide the Software, the Documentation, or the technical data described in Section 11.2 above
to any party, including but not limited to the Government, unless such third party accepts the same restrictions as are set forth in this Section 11. Licensee is
responsible for ensuring that the proper notice is given to all such third parties and that the Software, the Documentation, and such technical data is properly
marked with the required legends. Nothing in this Section 11.3 shall be deemed to modify the restrictions on transfer or disclosure set forth elsewhere in this EULA.
12. GOVERNING LAW; ENFORCEMENT.
12.1. Governing Law. This EULA and the rights and obligations of the parties hereunder shall be governed by the laws of the State of California, without reference to
conflicts of laws principles; provided, however, that if the Software and the Documentation is licensed outside the United States, then certain local laws may apply.
The parties agree to the non exclusive jurisdiction of the state and federal courts in San Diego County, California in connection with the litigation of any dispute
pertaining to this EULA and waive any objection to such jurisdiction based on venue or personal jurisdiction. IN ADDITION, THIS EULA WILL NOT BE GOVERNED OR
INTERPRETED IN ANY WAY BY REFERRING TO ANY LAW BASED ON THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT (UCITA), EVEN IF THAT LAW HAS
BEEN ADOPTED IN CALIFORNIA, AND THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS HEREBY EXCLUDED.
12.2. Equitable Relief. Licensee acknowledges that any actual or threatened breach of the provisions of this EULA will constitute immediate, irreparable harm to MPT
for which monetary damages would be an inadequate remedy; that injunctive relief is an appropriate remedy for any such breach or threatened breach; and that, in
such event, MPT will be entitled to immediate injunctive relief without the requirement of posting bond.
13. MISCELLANEOUS. Except as otherwise expressly agreed in a written, signed agreement between MPT and Licensee, this EULA sets forth the entire agreement
between MPT and Licensee with respect to the Software, the Documentation, and/or Licensee’s use of the Software and the Documentation, and it is expressly
agreed that the terms of this EULA will supersede the terms in any of Licensee’s purchase orders or other ordering documents. There are no implied licenses with
respect to the Software or the Documentation. No provision of this EULA may be waived, modified, or superseded except by a written instrument signed by each
of MPT and Licensee. No failure or delay in exercising any right or remedy shall operate as a waiver of any such (or any other) right or remedy. The language of this
EULA shall be construed as a whole, according to its fair meaning and intent, and not strictly for or against either party, regardless of who drafted or was principally
responsible for drafting this EULA or any specific term or condition hereof. This EULA shall bind and inure to the benefit of the parties and their successors and