TURING VIDEO End User License Agreement
This is an agreement between TURING VIDEO, located at 1730 S El Camino Real #350, San Mateo, CA 94402 (“TURING”), and the person or company that is software (“Software”). You or as an agent for your company (“Licensee”) agree to these terms by accepting the terms or using the Software If you disagree, do not use the Software.
This is a license agreement to use the Software, perpetually, in binary only, as an operating system on a hardware device.
- 1. Perpetual License. TURING grants Licensee, effective upon delivery of the Software, a perpetual, non-exclusive, non-transferable, right to a) use the Software on a single piece of hardware, (b) copy and distribute the provided documentation internally for use with the Software. Each copy of the Software used on piece of hardware must have a separate Perpetual License. The License is not transferable between different pieces of hardware.
- 2. Ownership and Title. Licensee agrees that the Software is licensed and not sold to Licensee under this Agreement and the Software and documentation, and all intellectual property rights therein, are and shall remain the sole and exclusive property of TURING and its licensors.
- 3. Indemnity. TURING shall defend or settle at its sole expense any claim brought against Licensee, its directors, officers, employees and/or agents by a third party alleging that the Software as delivered by TURING infringes any copyright or misappropriates a trade secret of such third party under U.S. law, and TURING shall pay all damages finally awarded or costs of settlement of such claim. If use of the Software is enjoined or in TURING’s reasonable judgment is likely to be enjoined by reason of such infringement or misappropriation, or the Software may infringe or misappropriate such rights (“Infringing Code”), TURING may, at its sole option and expense: (a) procure for Licensee the right to continue using the Software according to the terms of this Agreement, (b) modify the Software such that it operates with materially equivalent functionality without infringing or misappropriation, or (c) if neither of the foregoing options is commercially reasonable, terminate the license granted by this Agreement with respect to the Infringing Code and refund a prorated amount of the license fees based on a three year amortization. TURING’s indemnity obligations shall not apply to any claim resulting from or is based on (a) use of the Software, or any part thereof, in combination with hardware or software not supplied by TURING, or (c) failure to use the most recent version or release of the Software that has been made available to Licensee by TURING; provided that, in each case above, no such claim would arise but for such modification, use, or failure to use. The foregoing states TURING’s sole and exclusive obligation with regard to any claim of infringement or misuse or misappropriation of trade secrets and is Licensee’s sole remedy. TURING’s is obligated to indemnify Licensee only if: (a) Licensee gives prompt written notice of such claim to the TURING; (b) Licensee cooperates with TURING in all reasonable respects in connection with the defense of such claim at the expense of the TURING; and (c) the Licensee gives the TURING sole control of the defense and settlement of such claim.
- 4. Limited Warranty. TURING warrants to Licensee that for a period of sixty (60) days after TURING makes the Software available to Licensee (“Warranty Period”), the Software will conform in all material respects to the provided documentation. Any claims under this warranty must be in writing and must be received by TURING within the Warranty Period. If the Software fails to conform to this warranty, then TURING shall have thirty (30) days following receipt of Licensee’s warranty claim to make commercially reasonable efforts to repair or replace the Software at no charge to Licensee. If TURING is unable to repair or replace the Software, Licensee may terminate this Agreement. This is TURING’s sole obligation and Licensee’s sole remedy for any breach of this warranty.
- 5. DISCLAIMER OF OTHER WARRANTIES. EXCEPT AS EXPRESSLY ABOVE THE SOFTWARE, DOCUMENTATION AND ANY SERVICES PROVIDED BY TURING ARE DELIVERED “AS IS,” AND TURING MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE OR NON-INFRINGEMENT. WITHOUT LIMITATION, TURING DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION, AND NO WARRANTY IS PROVIDED FOR USE OF THE SOFTWARE ON A PLATFORM (HARDWARE AND/OR SOFTWARE) NOT SPECIFIED IN THE APPLICABLE DOCUMENTATION.
- 6. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER, ITS AFFILIATES OR ANY THIRD PARTY, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES (INCLUDING LOST PROFITS, LOST DATA, OR COST OF SUBSTITUTE GOODS OR SERVICES) OR FOR PUNITIVE DAMAGES, ARISING OUT OF THIS AGREEMENT, HOWEVER CAUSED AND WHETHER SUCH DAMAGES ARE BASED IN TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL TURING’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY RECEIVED BY TURING FROM LICENSEE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRIOR TO LICENSEE’S CLAIM. THIS SECTION DOES NOT APPLY TO MISUSE OF INTELLECTUAL PROPERTY RIGHTS OR INDEMNITY OBLIGATIONS.
- 7. Support. For any support, contact firstname.lastname@example.org.
- 8. Term and Termination. The term of this Agreement shall begin when Licensee first uses the Software and terminate when this Agreement is terminated under this clause and terms of the Agreement. Either party may terminate this Agreement upon written notice to the other party, in the event of a material breach by the other party that is not cured within thirty (30) days after written notice thereof. In the event of any termination of this Agreement, all accrued obligations, including, without limitation, all obligations to pay License fees and maintenance and support fees shall remain in effect, Licensee’s right and licenses under this Agreement shall immediately terminate, and Licensee shall, (i) at TURING’s option, return to TURING or destroy all copies of the Software and Documentation, and (ii) provide written certification in the form specified by TURING of such return or destruction; provided, however, that if the termination is for TURING’s breach, Licensee may continue using the Software and documentation..
- 9. General. Licensee represents and warrants that it will at all times comply with all applicable U.S. and foreign export control laws and regulations governing export or re-export of the Software, and all applicable U.S. and foreign laws and regulations which restrict use of controlled technical data by foreign nationals. This Agreement, including all exhibits hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous agreement, statement, representation or condition, whether oral or written. This is a license and not a sale of intellectual property, and must be treated to by any company and any government purchaser. All fees are nonrefundable and this Agreement may not be cancelled except as provided in this Agreement. This Agreement shall be governed by and construed under California law, excluding any conflict of laws principles. The parties agree that the exclusive venue for any dispute arising under this Agreement shall be in the federal or state courts in Santa Clara County, California, and the parties consent to the exclusive jurisdiction in those courts.
- 10. Third party open source software (“OSS”) is aggregated and provided as object code in a separate library which is used with the Software but is not part of the Software. The OSS is provided at no charge and is subject to the license agreements provided with the OSS. Attributions and OSS licenses are provided with the OSS. TURING will provide a copy of the source code to OSS on the same FTP site as the object code at no charge. TURING will provide support for OSS in the binary version provided by TURING as part of support and maintenance.