5.1 If Customer is a company or
organization that has more than one physical location, these Models may be used at only
the one location for which the Models were originally licensed.
5.2 If Customer is a company or
organization that has more than one department or unit, these Models may only be used by
personnel within the department or unit for which the Models were originally licensed.
5.3 This Agreement is non-transferable. No
rights are granted or may be granted to anyone other than Customer.
6 Disclaimers and Limitation
6.1 MODELS ARE LICENSED "AS
IS" AND WITHOUT WARRANTY.
6.2 CG2 DISCLAIMS ALL
WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, WITH RESPECT TO
THE MODELS AND DOCUMENTATION.
6.3 In no event will CG2 be
liable to customer for damages, under any claim of contract, tort, statutory violation or
otherwise, consisting of or including any loss of profits, claims of customers,
distributees, or customers, or any other special, incidental, or consequential or punitive
damages of any nature arising from the models or out of use or inability to use the model,
even if CG2 has been warned of such damages.
6.4 CG2s maximum aggregate
liability under this Agreement shall not exceed the license fee for the CD-ROM disk
containing the Models.
7 Restrictions; Rights Reserved
7.1 Customer acknowledges that CG2
holds and will continue to hold (either in its own right or under license) all copyright,
trademark, and all other property rights in the Models and Documentation. No ownership
rights are granted by this Agreement.
7.2 Uses of the Models and Documentation
not expressly permitted by this Agreement are forbidden.
8.1 This Agreement shall continue in
effect unless terminated under its terms.
8.2 CG2 may terminate this
Agreement forthwith by notice in writing if Customer is in breach of any term of this
Agreement, including, without limitation, any payment obligation, and does not remedy the
breach within 30 days of written notice.
9 Consequences of Termination
9.1 Upon termination of this Agreement,
Customer shall cease to use the Models and shall at CG2s option retain or
destroy the Models and Documentation together with all copies and all related materials,
and shall certify in writing to CG2 that this has been done.
9.2 Termination shall not affect existing
obligations of Customer, in particular (without limitation), payment of monies then due.
Termination shall not affect those obligations and limitations which of their nature and
meaning survive, including without limitation, those relating to CG2s
intellectual property, confidentiality, restrictions regarding the Model, and Customers
10.1 Any claim made by Customer against
CG2 shall be barred unless made in writing within one year of the date on which
the subject matter became known to the Customer.
11.1 Unless CG2 has given
its consent, which will not be unreasonably refused, Customer agrees that it will not
transfer or assign this Agreement or the license granted in this Agreement. Transfer or
assignment of the Agreement in violation of this section renders the assignment or
transfer void at CG2s option. CG2 may transfer this Agreement
in connection with the sale or disposition of the line of business then associated with
12.1 Should Customer breach its
obligations under this Agreement regarding use of the Models, the parties agree that CG2
and/or its licensors will suffer immediate and irreparable harm and be entitled to
preliminary and final injunction relief, in addition to all other remedies available under
12.2 In case of any legal proceeding or
legal action to address Customers material breach of this Agreement, CG2
will be entitled to its costs of action, including court costs and reasonable attorneys
and experts fees.
13 Governing Law
13.1 This Agreement shall be governed
by the laws of the United States of America and of the state of Alabama. Without prejudice
to either partys right to claim injunctive relief, Customer and CG2
hereby submit unconditionally to the exclusive jurisdiction and venue of the state and
federal courts located in Madison county in Alabama for any action relating to this
Agreement of the relationship of the parties.
14 Modification of Agreement;
14.1 No modification of this Agreement
shall be binding on either party unless made in a written amendment to this Agreement and
signed by an authorized signatory of each party.
14.2 Forbearance by either party as to any
breach of any obligation under this Agreement shall only constitute a waiver of that
obligation to the extent that (in its absolute discretion) it is formally waived in
writing by an authorized signatory of that party.
15.1 Each clause in this Agreement
shall be deemed to be separate and severable and enforceable accordingly. In the event any
provision in this Agreement is held by a court of competent jurisdiction to be
unenforceable, all other provisions, and the Agreement as a whole shall remain in effect.
16 License to US Government
16.1 The Program and the Documentation
are provided with restricted and limited rights for purposes of US government contracting
and subcontracting, Including any use by any department, agency, board or other part of
instrumentality of the government. Use, duplication or disclosure by the Government is
subject to restrictions as set forth in Subparagraph 252.227-7013(c)(1)(ii) (Rights in
Technical Data and Computer Software) of the Department of Defense Federal Acquisition
Regulations Supplement or Subparagraphs 52.227-19(c)(1) and (c)(2) (Commercial Computer
Software - Restricted Rights) of Title 48 of the Code of Federal Regulations, as
applicable. Supplier is CG2, Inc. 200 Randolph Ave., Huntsville, AL 35801.
17 Entire Agreement
17.1 This Agreement is the complete contract of the Parties
and supercedes all prior writings, agreements, discussions and statements on this subject