Wijmo Commercial License Agreement

THIS COMMERCIAL LICENSE AGREEMENT (THIS “CLA”) CONTAINS THE TERMS AND CONDITIONS FOR YOUR USE OF WIJMO PROFESSIONAL, WIJMO ENTERPRISE AND OF ANY OTHER  DENOMINATION OF PRODUCTS OF THE WIJMO PRODUCT LINE, A SET OF SUITES OF JQUERY UI WIDGETS (THE “Software”). THIS CLA IS A BINDING AGREEMENT BETWEEN YOU AND MESCIUS, INC. (“C1”); HOWEVER, IF YOU ARE ACTING AS AN AGENT FOR ANOTHER PERSON OR ENTITY, SUCH AS ON BEHALF OF YOUR EMPLOYER, THEN “YOU” MEANS THE PERSON ON WHOSE BEHALF YOU ARE ACTING.  BY INSTALLING, COPYING, USING OR OTHERWISE ACCESSING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN.

The term “Software” includes all source and object code, in whole and/or part; all printed materials; “online” or electronic documentation; data, data engines, images; updates and upgrades; and anything provided to You for use with or in conjunction with the Software.

1. Grant of License. Subject to the payment of the fee required and the terms and conditions herein, You are hereby granted a limited, revocable, non-exclusive license to use the Software to design, develop, test and distribute software products that are developed through or by the use of the Software (“Applications”).
   a. You are hereby granted one (1) license for You as one (1) designated user to use the Software for the purpose of developing Applications (“Developer”). You must purchase another separate license to the Software for each and any additional Developer. There is no limit or restriction on the number of installations of Software, which may be on different machines; provided, however, that the Software may not be used by anyone other than You as a single Developer.  By way of example, if a company has five developers using the Software, the company needs to purchase five licenses, irrespective of how the Software is accessed or how many installations are accessed. The Software is not transferable by You, except with the prior written consent of C1.
   b. You are granted the right to use and to modify the source code of the Software for use in Applications. You own any original work authored by you; C1 continues to retain all copyright and other intellectual property rights in and to the Software.  You are not permitted to move, remove, edit, or obscure any copyright, trademark, attribution, warning or disclaimer notices in the Software. c. Updates/Upgrades; Subscription.  Subject to the terms and conditions of this CLA updates and upgrades to the Software may be provided by C1 from time-to-time, and, if so provided by C1, are provided upon the terms and conditions offered at that time by C1 in its sole discretion.  C1 may provide updates and upgrades to the Software for free or for any charge, at any time or never, and through its chosen manner of access and distribution, all in C1’s sole discretion.
   The Software is revised from time-to-time (meaning, for example, revised with updates, upgrades and, in some cases, sometimes changes to the mix of widgets included in the bundle).  To receive any such revisions to the Software, you must have a valid Software license coupled with a subscription.   Together with the Licenses, the original purchaser is granted a one-year subscription from the date of purchase.  Upon expiration, you must renew your license subscription to continue to be entitled to receive Software revisions.
   d. You may use the Software only to create Applications that are significantly different than and do not compete with the Software.  You are granted the license to distribute the Software as part of your Applications on a royalty-free basis.
   Users of your Applications are not permitted to use the Software or your modifications of the Software for development purposes unless they also purchase a separate commercial license from C1 for each of the users.
   e. You agree to indemnify, hold harmless, and defend C1, its suppliers and resellers, from and against any claims or lawsuits, including attorney’s fees that may arise from the use or distribution of your Applications.
2. Copyright and Other Rights and Limitations.
   The Software is licensed to You, not sold.  The Software is protected by copyright laws and international copyright treaties, as well as by other intellectual property laws and treaties.  You agree that C1 owns all right, title, and interest in and to the Software, including any copyrights, and all other intellectual property rights in and to the Software.  C1’s copyright includes, but is not limited to, documentation and C1’s significant online developer assistance resources, source code, and any images, photographs, animations, video, audio, music, and text incorporated into the Software.  You may not rent, lease or sublicense the Software.  Without prejudice to any other rights it may have, this CLA shall automatically terminate if You fail to comply with the terms and conditions of this CLA, with the exception of any provisions which, by their nature, are intended to survive termination. Upon termination, You agree to destroy all copies of the Software.  You agree that C1 may identify You as a customer in C1 marketing materials.  C1 reserves all rights not otherwise expressly and specifically granted herein.
   The Software is of U.S. origin.  The license and distribution of the Software is subject to the export control laws and regulations of the United States of America which restrict exports and re-exports of software, technical data, and direct products of technical data, including services and applications created with or derived from use of the Software.  You agree that you will comply all with such laws.
3. Warranties and Remedies.
   C1 EXPRESSLY DISCLAIMS ANY WARRANTY.  THE SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SOFTWARE IS AND REMAINS WITH YOU. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHERS WHICH VARY FROM STATE TO STATE.
   C1’S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY UNDER THIS CLA SHALL BE, AT C1’S OPTION, EITHER: (a) RETURN OF THE PRICE PAID FOR THE SOFTWARE, OR (b) REPLACEMENT, UPDATE OR UPGRADE OF THE SOFTWARE.  EXCEPT AS STATED IN THE PRECEDING SENTENCE, IN NO EVENT SHALL C1 BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, GENERAL, COMPENSATORY, CONSEQUENTIAL AND/OR INCIDENTAL DAMAGES, DAMAGES FOR LOSS OF BUSINESS PROFIT, BUSINESS INTERRUPTION, LOSS OF INFORMATION, OR ANY OTHER LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF C1 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IN CERTAIN CASES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
4. MISCELLANEOUS.
   This CLA (including any additional terms, addendum or amendment to this CLA included with the Software) is the final, complete and exclusive statement of the entire agreement between You and C1 relating to the Software and supersedes any prior and contemporaneous communications, whether oral or written.  This CLA may not be modified unless in writing or by a manner in which the parties are bound to this CLA (such as by “clicking-through” acceptance, etc.)  You agree to indemnify, hold harmless, and defend C1 and its suppliers and resellers from and against any and all claims or lawsuits, including attorney’s fees that arise or result from this CLA.
   If for any reason a court of competent jurisdiction finds any provision of this Agreement, or any portion thereof, to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.  Failure by either party to enforce any provision of this agreement will not be deemed a waiver of future enforcement of that or any other provision.  Except as otherwise required or superseded by law, this Agreement is governed by the laws of the State of Pennsylvania, without regard to its conflict of laws principles. The parties consent to the personal jurisdiction and venue of the Commonwealth of Pennsylvania, in the County of Allegheny, and agree that any legal proceedings arising out of this Agreement shall be conducted solely in such Commonwealth.  If the Software was acquired outside the United States, then local law may apply.
   Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth above and in subparagraph (c) (1) (ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.2277013.  Rights for non-DOD U.S. Government departments and agencies are as set forth in FAR 52.22719(c) (1,2).  MESCIUS inc., 211 North Whitfield Street, 7th Floor, Pittsburgh, PA 15206, USA.