End User License Agreement Ekahau HeatMapper 1.1

Ekahau HeatMapper™ 1.1 End User License Agreement
Installation du 13/04/2013

Ekahau Inc., a Delaware (USA) corporation (“Ekahau”) is willing to license this Ekahau HeatMapper™ 1.1 software (the “Software”) to you only if you accept all of the terms in this End User License Agreement (the “Agreement”). Please read the terms carefully before using the Software, because by installing or using this Software you are agreeing to be bound by the terms of this Agreement. If you do not agree to these terms, Ekahau will not license this Software to you, and you may not use the Software.

You agree that your assent to the terms of this Agreement on-line by clicking “I accept” or similar action shall constitute your valid signature and your consent to be bound by the terms of this Agreement.

SOFTWARE LICENSE

Ownership of the Software. The enclosed Software and the accompanying written materials (“Documentation”) are owned by Ekahau, or its suppliers, and are protected by national copyright laws (including in the USA) and by international treaties. The Software is licensed, not sold, to you. This license shall not be deemed to result in sale, transfer or any other conveyance to you of Ekahau’s trademarks, copyrights, proprietary rights or any other intellectual property right of whatever nature held or used by Ekahau. Ekahau reserves all rights not expressly granted.

Grant of License. Ekahau grants to you a revocable, nonexclusive and nontransferable license to install and use the Software.

Restrictions on Use and Transfer. You agree not to copy the Software or Documentation except solely for backup or archival purposes. You agree not to distribute (on-line or otherwise), rent, lease, lend, sublicense or provide commercial hosting services with the Software or the Documentation. You agree not to reverse engineer, decompile, or disassemble the Software. You agree not to modify, or create derivative works from, the Software or the Documentation. You agree not to remove any copyright or trademark notices or any other proprietary legends from the Software or its Documentation. You agree that neither you nor your affiliates will, anywhere in the world, attack or otherwise challenge the title, validity or any rights of Ekahau in and to the Software, nor claim or apply for copyright protection for any software that is the same as or substantially similar to the Software.

Termination. Ekahau may terminate this Agreement if you fail to comply with its terms and conditions. You may terminate this Agreement at any time. In the event of termination of this Agreement, you agree to destroy all copies of the Software in your possession.

LIMITED WARRANTY

Disclaimer. TO THE EXTENT ALLOWED BY MANDATORY AND APPLICABLE LOCAL LAW, THE SOFTWARE AND ITS DOCUMENTATION ARE PROVIDED TO YOU “AS IS” WITHOUT WARRANTY OF ANY KIND, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED. EKAHAU SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. Some countries, states and provinces do not allow exclusions of implied warranties or conditions, so the above exclusion may not apply to you. You may have other rights that vary by country, state, or province.

Should the Software prove defective, you assume the entire cost of all service, repair or correction. In the event mandatory and applicable local law does not permit the disclaimer of warranty for a noninfringing or defective Software as set forth above, Ekahau will, in its discretion, either fix or replace any Software it determines was defective or infringing at the time of you downloaded or during the 30-day period thereafter, provided that you have complied with all terms and conditions this Agreement. Repair or replacement shall be your exclusive remedy. If Ekahau determines that a fix cannot be procured under commercially reasonable terms, Ekahau shall have the right to terminate this Agreement.

LIMITATION OF LIABILITY

Except to the extent prohibited by mandatory and applicable local law, in no event will Ekahau or its affiliates or suppliers be liable for direct, indirect, special, incidental, collateral, exemplary, punitive, consequential or other damages (including lost profit, lost data, or downtime costs), arising out of the use, inability to use, or the results of use of the Software and Documentation, whether based in warranty, contract, product liability, tort or other legal theory, and whether or not advised of the possibility of such damages. You must use of the Software entirely at your own risk and in accordance with the Documentation. Some countries, states and provinces do not allow the exclusion or limitation of liability for incidental or consequential damages, so this limitation may not apply to you.

U.S. GOVERNMENT RESTRICTED RIGHTS

The Software and Documentation are provided with Restricted Rights. The Software and its Documentation are “Commercial Items” as that term is defined in 48 CFR section 2.101, consisting of Commercial Computer Software and Commercial Computer Software Documentation. Consistent with 48 CFR section 12.212 and 48 CFR Sections 227.7202-1 through 227.7202-4, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement. Unpublished rights reserved under the copyright laws of the United States. Ekahau Inc., 12930 Saratoga Avenue, Suite B-9, Saratoga, CA 95070, USA.

GENERAL

Severability. Whenever possible, each provision of this Agreement shall be interpreted in a manner as to be valid and effective under applicable law. If any provision is found to be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of the remaining provisions.

Governing Law and Disputes. This Agreement is governed by the laws of the State of California, USA, without regard to the principles of conflicts of law of any country or jurisdiction. Application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Any controversy or claim arising out of or relating to this Agreement shall be primarily settled amicably. If this is not possible, the controversy or claim shall be finally settled by arbitration in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce by one (1) arbitrator selected according to the referred arbitration rules. The arbitration shall be conducted in San Jose, CA, USA.

Compliance with Laws. You shall take the proper steps at your own expense to obtain all necessary governmental approvals and validations and other official licenses, permits and certificates, and to comply with all applicable laws, including export or import control laws when either exporting or re-exporting or importing the Software or the Documentation.

Language. English language shall govern all documents, notices and meetings as well as the arbitration procedure and awards relating to this Agreement.

Waiver. No delay, neglect or forbearance by either party in enforcing against the other party any term or condition of this Agreement shall be, or be deemed to be, a waiver nor shall it in any way prejudice any right of that party under this Agreement.

Entire Agreement. This Agreement sets forth the entire agreement and understanding of the parties relating to the object hereof and merges all prior discussions and agreements of the matter hereof between them

No Agency. This Agreement shall not create a relationship of principal and agent between the parties, and under no circumstances shall either party be considered to be an agent of the other. Neither party shall have any authority to bind the other party to any obligation or to represent the other in any circumstances and both parties agree not to so bind or represent the other.