VISUAL ENGINEERING, INC. ("VE") IS WILLING TO LICENSE THE SOFTWARE ONLY
UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS SOFTWARE
SOFTWARE LICENSE AGREEMENT
1. Parties. The parties to this Agreement are you, the licensee
("You") and VE. If You are not acting on behalf of Yourself as an individual,
then "You" means Your company or organization.
2. The Software. The Software licensed under this Agreement consists
of computer programs known as applets, data compilation(s), and documentation
referred to as KavaChart AlaCarte (the 'Applets' or 'Software').
3. Use License.
3.1 Basic Grant. Subject to the terms and conditions hereof, this
license permits You to download, create, install and use the Applets royalty
free and without the need for any other license, when such Applets are viewed
as part of a browser page, by the public or registered users of Your site,
and accessed from a single domain or collection of domains owned and or controlled
by You, provided however, no content fees, access fees, syndication fees,
or other fees are charged by You to access pages which include the Applets.
To the extent You do charge a fee, of any kind, for others to access pages,
which include Applets, then such use shall be considered a commercial application
and You must purchase an Application Distribution License. Contact firstname.lastname@example.org for Application Distribution pricing.
3.2 Restrictions. You may not: (i) incorporate all or part of
the Software in any toolkit, development kit or other application that attempts
to duplicate or in the opinion of VE substitute for the Software, (ii) incorporate
the Software in an application unless Your application adds significant and
primary functionality to the Software, (iii) use, copy, modify, alter, or
transfer, electronically or otherwise, the Software, including documentation,
except as expressly permitted in this Agreement, (iv) reverse engineer,
decompile, or disassemble the Software, except to the extent this restriction
is expressly prohibited by applicable law; (v) remove or obscure any proprietary
rights notices or labels on the Software.
3.3 License Term For Use License. The term of the use license
granted herein for the registered version of the Software shall be perpetual
unless terminated by written notice by You for convenience or terminated
by either party for material breach. Immediately upon termination of this
license for any reason, You shall destroy or return to VE all copies of the
Software, including documentation.
4. Evaluation License. If You have downloaded or otherwise received
an evaluation version of the Software, You are authorized to use the Software,
free of charge, for evaluation purposes during the evaluation period of thirty
(30) days. During the evaluation period, You may copy the Software for archival
purposes, provided that any copy must contain the original Software's proprietary
notices in unaltered form. At the end of the evaluation period You must either
purchase a license(s) to use the Software or remove and destroy or return
the Software to VE. Your use of the Software for any purpose after the expiration
of the evaluation period is not authorized. The evaluation copy of the Software
is subject to the terms and conditions of this Agreement except that the
Software is provided to You 'AS IS' with no support, warranty, or other obligation
5. Purchase of Additional Licenses. Registered users of the Software
may purchase license rights for additional authorized use of the Software
in accordance with VE's then-current pricing schedule. Such additional licenses
shall be governed by the terms and conditions hereof. You agree that, absent
VE's express written acceptance thereof, the terms and conditions contained
in any purchase order or other document issued by You to VE for the purchase
of additional licenses, shall not be binding on VE to the extent that such
terms and conditions are additional to or inconsistent with those contained
in this Agreement.
6. Support. For a period of thirty (30) days from the date of purchase,
You shall have access to technical support and at VE's sole discretion, use
of applet design software referred to as the KavaChart Wizard (the 'Wizard').
Thereafter, VE may but shall not be obligated to provide on-going technical
support relating to Your use of the Applets and/or the Wizard. You may continue
to use the fully functional version of the Wizard after the initial thirty
(30) day period, by purchasing an annual Wizard Use and Update Subscription
in accordance with VE's then-current pricing schedule; otherwise Your use
of the Wizard shall be limited to a significantly less functional demo version
of the Wizard. VE reserves the right to update and/or enhance the Wizard
without obligation to notify You of such changes. The Wizard shall be considered
Software and subject to the terms and conditions of this Agreement except
for paragraph 3.3 (License Term For Use License).
7. Ownership. VE and its suppliers own the Software and all intellectual
property rights embodied therein, including copyrights and valuable trade
secrets embodied in the Software's design and coding methodology. The Software
is protected by United States copyright laws and international treaty provisions.
This Agreement provides You only a limited use license, and no ownership
of any intellectual property.
8. Limited Warranty; Limitation of Liability. VE warrants only
to You that the Software shall perform substantially in accordance with accompanying
documentation under normal use for a period of thirty (30) days from the
purchase date. The entire and exclusive liability and remedy for breach
of this Limited Warranty shall be, at VE's option, either (i) return of the
license fees paid for the Software, or (ii) replacement of defective Software
and/or documentation provided the Software and/or documentation is returned
to VE or destroyed. EXCEPT FOR THE LIMITED EXPRESS WARRANTY PROVIDED ABOVE,
NEITHER VE NOR ANY OF ITS SUPPLIERS OR RESELLERS MAKES ANY WARRANTY OF ANY
KIND, EXPRESS OR IMPLIED, AND VE AND ITS SUPPLIERS SPECIFICALLY DISCLAIM
THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, AND DATA ACCURACY. THERE IS
NO WARRANTY OR GUARANTEE THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED,
ERROR-FREE, OR THAT THE SOFTWARE WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE,
QUALITY, ACCURACY, PURPOSE, OR NEED. YOU ASSUME THE ENTIRE RISK OF SELECTION,
INSTALLATION, AND USE OF THE SOFTWARE. THIS DISCLAIMER OF WARRANTY CONSTITUTES
AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE SOFTWARE IS AUTHORIZED
HEREUNDER EXCEPT UNDER THIS DISCLAIMER. No action for the above Limited
Warranty may be commenced after one (1) year following the expiration date
of the warranty.
9. Local Law. If implied warranties may not be disclaimed under
applicable law, then ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO THE
PERIOD REQUIRED BY APPLICABLE LAW. Some states do not allow limitations
on how long an implied warranty may last, so the above limitations may not
apply to You. This warranty gives You specific rights, and You may have
other rights which vary from jurisdiction to jurisdiction.
10. Limitation of Liability. INDEPENDENT OF THE FORGOING PROVISIONS,
IN NO EVENT AND UNDER NO LEGAL THEORY, INCLUDING WITHOUT LIMITATION, TORT,
CONTRACT, OR STRICT PRODUCTS LIABILITY, SHALL VE OR ANY OF ITS SUPPLIERS
BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, DAMAGES
FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER MALFUNCTION, OR ANY OTHER KIND
OF COMMERCIAL DAMAGE, EVEN IF VE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. THIS LIMITATION SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL
INJURY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. IN NO EVENT SHALL VE'S
LIABILITY FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF
THE FORM OF ACTION, EXCEED THE AMOUNT OF THE PURCHASE PRICE PAID FOR THE
11. Export Controls. You agree to comply with all export laws and
restrictions and regulations of the United States or foreign agencies or
authorities, and not to export or re-export the Software or any direct product
thereof in violation of any such restrictions, laws or regulations, or without
all necessary approvals. As applicable, each party shall obtain and bear
all expenses relating to any necessary licenses and/or exemptions with respect
to its own export of the Software from the U.S. Neither the Software nor
the underlying information or technology may be electronically transmitted
or otherwise exported or re-exported (i) into Cuba, Iran, Iraq, Libya, North
Korea, Sudan, Syria or any other country subject to U.S. trade sanctions
covering the Software, to individuals or entities controlled by such countries,
or to nationals or residents of such countries other than nationals who are
lawfully admitted permanent residents of countries not subject to such sanctions;
or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated
Nationals and Blocked Persons or the U.S. Commerce Department's Table of
Denial Orders. By downloading or using the Software, You agree to the foregoing
and represent and warrant that You comply with these conditions.
12. U.S. Government End-Users. The Software is a "commercial item,"
as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial
computer software" and "commercial computer software documentation," as such
terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R.
12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S.
Government End Users acquire the Software with only those rights set forth
13. Licensee Outside The U.S. If You are located outside the U.S.,
then the following provisions shall apply: (i) Les parties aux presentes
confirment leur volonte que cette convention de meme que tous les documents
y compris tout avis qui siy rattache, soient rediges en langue anglaise (translation:
"The parties confirm that this Agreement and all related documentation is
and will be in the English language."); and (ii) You are responsible for
complying with any local laws in Your jurisdiction which might impact Your
right to import, export or use the Software, and You represent that You have
complied with any regulations or registration procedures required by applicable
law to make this license enforceable.
14. Assignment. You may not assign the Software or any rights under
this Agreement without the prior written consent of VE, which consent shall
not be unreasonably withheld. A condition to any transfer or assignment
shall be that the recipient agrees to the terms of this Agreement. Any attempted
transfer or assignment in violation of this provision shall be null and void.
15. Severability. If any provision of this Agreement is declared
invalid or unenforceable, such provision shall be deemed modified to the
extent necessary and possible to render it valid and enforceable. In any
event, the unenforceability or invalidity of any provision shall not affect
any other provision of this Agreement, and this Agreement shall continue
in full force and effect, and be construed and enforced, as if such provision
had not been included, or had been modified as above provided, as the case
16. Arbitration. Except for actions to protect intellectual property
rights and to enforce an arbitrator's decision hereunder, all disputes, controversies,
or claims arising out of or relating to this Agreement or a breach thereof
shall be submitted to and finally resolved by arbitration under the rules
of the American Arbitration Association (.AAA.) then in effect. There shall
be one arbitrator, and such arbitrator shall be chosen by mutual agreement
of the parties in accordance with AAA rules. The arbitration shall take
place in San Jose, California, and may be conducted by telephone or online.
The arbitrator shall apply the laws of the State of California, USA to all
issues in dispute. The controversy or claim shall be arbitrated on an individual
basis, and shall not be consolidated in any arbitration with any claim or
controversy of any other party. The findings of the arbitrator shall be
final and binding on the parties, and may be entered in any court of competent
jurisdiction for enforcement. Enforcement of any award or judgment shall
be governed by the United Nations Convention on the Recognition and Enforcement
of Foreign Arbitral Awards. Should either party file an action contrary
to this provision, the other party may recover attorney's fees and costs
up to $1000.00.
17. Jurisdiction And Venue. The courts of Santa Clara County in
the State of California, USA and the nearest U.S. District Court shall be
the exclusive jurisdiction and venue for all legal proceedings that are not
arbitrated under this Agreement.
18. Force Majeure. Neither party shall be liable for damages for
any delay or failure of delivery arising out of causes beyond their reasonable
control and without their fault or negligence, including, but not limited
to, Acts of God, acts of civil or military authority, fires, riots, wars,
embargoes, Internet disruptions, hacker attacks, or communications failures.
Notwithstanding anything to the contrary contained herein, if either party
is unable to perform hereunder for a period of thirty (30) consecutive days,
then the other party may terminate this Agreement immediately without liability
by ten (10) days written notice to the other.
19. Miscellaneous. This Agreement constitutes the entire understanding
of the parties with respect to the subject matter of this Agreement and merges
all prior communications, representations, and agreements. This Agreement
may be modified only by a written agreement signed by the parties. If any
provision of this Agreement is held to be unenforceable for any reason, such
provision shall be reformed only to the extent necessary to make it enforceable.
This Agreement shall be construed under the laws of the State of California,
USA, excluding rules regarding conflicts of law. The application the United
Nations Convention of Contracts for the International Sale of Goods is expressly
excluded. This license is written in English, and English is its controlling
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