Solstice Display Software – End User License Agreement (EULA)

Solstice: Software to create your Pixel Landscape®

SOFTWARE LICENSE AGREEMENT

THE SOLSTICE DISPLAY SOFTWARE, TOGETHER WITH ANY PROVIDED UPDATES OR UPGRADES TO SUCH SOFTWARE (THE “SOFTWARE”) IS PROVIDED BY OR ON BEHALF OF MERSIVE TECHNOLOGIES INC. (“MERSIVE”) TO YOU THE LICENSEE (REFERRED TO AS “YOU” OR “YOUR”) SUBJECT TO THE TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE AGREEMENT (THE “LICENSE”). BY DOWNLOADING, INSTALLING AND/OR USING THE SOFTWARE, YOU AGREE TO BE LEGALLY BOUND BY THIS LICENSE. IF YOU DO NOT AGREE TO THIS LICENSE, YOU MUST NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE.

If you are downloading or installing the Software on behalf of your company, then you represent that you have the authority to enter into this License on behalf of the company. All orders placed by you are subject to and governed by the terms and conditions of this License, regardless of whether the orders reference this License. Any different or additional terms or conditions in any order, proposal, acknowledgment form or any other document will be of no force or effect and will not become part of the agreement between you and Mersive. If there is another signed, written agreement in place between you and Mersive with respect to the Software, then the terms and conditions of such agreement will prevail in the event of a conflict between the terms and conditions of such agreement and those of this License.

  1. License. Mersive grants you a nonexclusive, nontransferable license to use one copy of the Software on your computing device that utilizes Windows 7 or 8 as its operating system (the “Device”) and any accompanying printed material and “online” or electronic documentation (“Documentation”) in connection with your lawful operation of the Software on your Device as permitted by this License. The Software may be accessed and managed by using our Solstice client software (the “Client Software”) on your digital mobile device. You acknowledge that you must license and download the Client Software separately from the Software, and that the Client Software is not licensed to you pursuant to the terms of this License.
  2. Upgrades. If the Software is labeled as an upgrade (“New Version”) to software previously licensed to you (“Previous Version”), you must destroy the original and all copies of the Previous Version, including any copies resident on your hard disk drive that accompanied the software previously licensed to you, within ten (10) days of acquiring the New Version. Unless otherwise allowed by Mersive in writing, you may under no circumstances operate the New Version and Previous Version concurrently on different computers. If requested by Mersive, you agree to show satisfactory proof that the Previous Version and all copies thereof have been destroyed. Software patches, if any, provided to you by Mersive or an authorized third-party in connection with the Software licensed to you hereunder shall be subject to the terms and conditions of this License unless otherwise specified at the time of delivery.
  3. Evaluation and Fees. To the extent agreed by you and the Provider, you may download, test and evaluate the Software at no charge to you for that evaluation period specified by the Provider (which shall in no event exceed a period of thirty (30) days after your initial download of the Software). During the evaluation period, you must not use the Software for any purpose other than to evaluate it. If you do not elect to purchase a full production license to the Software at the end of the evaluation period, this License automatically terminates and you must promptly discontinue all use of the Software and erase the Software from your Device. If you do elect to purchase a full production license to the Software, then you may continue to use the Software in accordance with the terms of this License, and you agree to pay Mersive or its Provider all license fees due. You agree to pay all fees for the Software and for any maintenance or support services provided by Mersive or its Provider pursuant to Section 7 below.  All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you are responsible for payment of all such taxes, levies or duties.  All fees are non-refundable.  Except to the extent otherwise agreed by you and the Provider, all invoices shall be due and payable within 30 days after the invoice date.  If timely payment is not received or cannot be charged to your credit card for any reason, Mersive has the right to suspend any services and/or terminate this License.
  4. Term and Termination. This License is effective on the earlier of the date you download, install, or start using the Software and, unless earlier terminated as permitted by this License, shall continue for as long as you own the Device on which the Software is installed. This License shall terminate (a) immediately without notice from Mersive if you breach this License, or (b) upon notice from Mersive in the event of discontinuance of or material modification to the Software (or any part thereof). In the event of any termination of this License, all licensed rights granted in this License will immediately cease to exist, and you must promptly discontinue all use of the Software and erase the Software from your Device.  Upon termination of this License, the following sections of this License will survive remain in effect:  4, 5, 6, 7(c), 8, 9, 10, 11 and 12.
  5. Restrictions. Under the terms of this License, you may install and use a single copy of the Software on one Device at a time. You may also make one copy of the Software in machine-readable form for backup purposes only. All copies of the Software must include all copyright information contained on the original.

The following actions are beyond the scope of this License and may constitute copyright infringement and/or a violation of intellectual property laws. You may NOT : (a) install, copy, or use the Software or the Documentation other than as expressly authorized in this License; (b) decompile, reverse engineer, disassemble, rent, lease, sell, sublicense, loan, distribute, or transmit over a network, the Software; (c) remove, alter, or obscure any copyright or other proprietary notices, labels, or marks from the Software or Documentation; (d) modify, translate, adapt, arrange, or create derivative works based on the Software or Documentation for any purpose; or (e) utilize any equipment, device, software, or other means designed to circumvent or remove any form of copy protection used by Mersive in connection with the Software, or use the Software together with any hardware lock, authorization code, serial number, or other copy protection device not supplied by Mersive directly or through an authorized Mersive reseller. The digital distribution provider from whom you acquired the Software and the Documentation (the “Provider”) is not a party to this License and is not responsible in any way for the Software, the Documentation or the performance of the Software.

  1. Intellectual Property. The Software and the Documentation accompanying this License are licensed, not sold, to you by Mersive for your personal use only on the Device and subject to the terms of this License. The License is entered into between you and Mersive. Mersive owns and retains all right, title and interest to the Software, the Documentation and all intellectual property rights therein or thereto. Mersive reserves all rights not expressly granted to you in this License. The structure, organization, and code of the Software are valuable trade secrets of Mersive, which you shall use your best efforts to protect from disclosure and use except as expressly permitted by this License.  In no event shall you permit the disclosure or use Mersive’s trade secrets by any other person.  Upon reasonable notice during the term of the License and within six (6) months after termination or expiration of the License, Mersive may in its sole discretion arrange for the inspection and review of your computer systems to assure compliance with all terms and provisions of this License during your normal business hours and in such a manner as not to interfere unreasonably with your business operations. In the event such audit discloses that the number of permitted copies has been exceeded, you shall promptly pay to Mersive the appropriate license fees and charges for the additional computers or users.
  2. Support and Maintenance.

(a) Mersive shall provide you with all corrections, revisions, patches, service packs and updates of the Software made available by Mersive to other licensees of the Software for a period of one (1) year after you initially download the Software, at no additional charge.

(b) The maintenance period will renew on each anniversary of the date on which you initially downloaded the Software for an additional one year period, subject to your payment of maintenance fees (at Mersive’s then-current rates at the time of renewal). Either party may elect in its sole discretion not to renew maintenance by terminating maintenance in writing. Upon any expiration or termination of maintenance, or any termination of the License, Mersive will no longer be responsible for providing maintenance. If maintenance lapses for more than ninety (90) days and up to a year, payment of any and all past unpaid maintenance fees, plus a re-instatement fee of 25% of the annual maintenance fee, shall be required before maintenance is reinstated.

(c) Mersive does not provide support for the Software. If you wish to procure support for the Software, please contact the Provider from whom you acquired the Software. Mersive shall have no support or maintenance obligations with respect to the Software except those maintenance obligations that are expressly set forth in this Section.

  1. Disclaimer of Warranties. THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. MERSIVE EXPRESSLY DISCLAIMS ON BEHALF OF ITSELF, ITS SUPPLIERS AND PROVIDERS, ALL WARRANTIES AND/OR CONDITIONS RELATING TO THE SOFTWARE, THE DOCUMENTATION AND ANY SERVICES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY OR SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. MERSIVE DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED.  FURTHERMORE, MERSIVE DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE , INCLUDING WITHOUT LIMITATION WITH RESPECT TO ITS CORRECTNESS, ACCURACY OR RELIABILITY.  THE SOFTWARE is provided with all faults, and the entire risk as to satisfactory quality, performance, accuracy, and effort is with YOU, the user.

Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusions may not apply to you. The terms of this disclaimer do not affect or prejudice the statutory rights of a consumer acquiring Software otherwise than in the course of a business, neither do they limit or exclude any liability for death or personal injury caused by Mersive’s negligence.

  1. Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL MERSIVE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS LICENSE OR THE USE OF THE SOFTWARE DOCUMENTATION, OR ANY ACCOMPANYING MATERIALS OR THE PERFORMANCE OF ANY SERVICES. Some jurisdictions do not allow the limitation of incidental or consequential damages so this limitation may not apply to you. INDEPENDENT OF THE FOREGOING LIABILITY LIMITATION, IN NO EVENT SHALL MERSIVE’S TOTAL LIABILITY TO YOU OR ANYONE ELSE EXCEED THE AMOUNT YOU HAVE PAID MERSIVE OR ITS PROVIDER FOR THE RIGHTS GRANTED UNDER THIS LICENSE OR THE AMOUNT OF FIVE HUNDRED DOLLARS ($500.00 U.S.), WHICHEVER IS GREATER. MERSIVE DISCLAIMS ALL LIABILITY OF ANY KIND OF ITS SUPPLIERS OR PROVIDERS.
  2. Export Law Assurances. You may not use or otherwise export or re-export the Software except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained and/or is used. In particular, but without limitation, the Software may not be used or otherwise exported or re-exported (a) into (or to a national or resident of) any country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country; or (b) to anyone listed on any U.S. government list of prohibited or restricted parties. By using the Software, you represent and warrant that you are not located in, under control of, or a national or resident of any such country or on any such list.
  3. U.S. Government – Restricted Rights. The Software is provided with RESTRICTIVE RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions: if supplied to the Department of Defense (DoD), the Software is ”Commercial Computer Software” and the Government acquires the Software with ”restricted rights”, as defined in Clause 252.227-7013(c)(1) of the DFARS; if the Software is supplied to any other Government unit or agency, the Government’s rights in the Software are defined in Clause 52.227-19(c)(2) of the FAR; but if the Software is supplied to NASA, the Government’s rights are defined in Clause 18-52.227-86(d) of the NASA supplement to the FAR. The manufacturer is Mersive Technologies, Inc., located at 2399 Blake Street, Suite 100, Denver, Colorado 80205.
  4. Choice of Law and Forum Selection. This License shall be governed by and construed in accordance with the laws of the State of Colorado and the United States without regard to the conflict of laws provisions therein. Any dispute arising from or relating to this License or the use of the Software or Documentation shall be governed by the laws of the United States and the State of Colorado. All disputes arising out of or relating to this License shall be finally settled by arbitration conducted in Denver, Colorado, USA under the rules of commercial arbitration of the American Arbitration Association. Both parties shall bear equally the cost of arbitration (exclusive of legal fees and expenses, all of which each party shall bear separately). All decisions of the arbitrator(s) shall be final and binding on both parties and enforceable in any court of competent jurisdiction. Notwithstanding the foregoing, in the event of breach by a party of its obligations hereunder, the non-breaching party may seek injunctive or other equitable relief in any court of competent jurisdiction.
  5. Miscellaneous. Neither the rights nor the obligations arising under this License are assignable by you, and any such attempted assignment or transfer shall be void and without effect. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this License. The failure of Mersive to exercise or enforce any right or provision of this License shall not constitute a waiver of such right or provision. In the event that any provision of this License is found to be contrary to law, then such provision shall be construed as nearly as possible to reflect the intention of the parties, with the other provisions remaining in full force and effect.  Any notice intended to have legal effect: (a) from Mersive to you may be provided by email, postal mail, or custom feed, (b) from you to Mersvie must be sent by postal mail to Mersive Technologies, Inc.; Attn: Chief Executive Officer; 2399 Blake Street, Suite 100, Denver, Colorado 80205.  This License constitutes the entire agreement between the parties pertaining to the subject matter hereof, and any and all written or oral agreements previously existing between the parties are expressly canceled.

Pixel Landscape® and Mersive® are registered trademarks of Mersive Technologies, Inc.

TERMS AND CONDITIONS FOR USE, REPRODUCTION, AND DISTRIBUTION

1. Definitions.

“License” shall mean the terms and conditions for use, reproduction, and distribution as defined by Sections 1 through 9 of this document.

“Licensor” shall mean the copyright owner or entity authorized by the copyright owner that is granting the License.

“Legal Entity” shall mean the union of the acting entity and all other entities that control, are controlled by, or are under common control with that entity. For the purposes of this definition, “control” means (i) the power, direct or indirect, to cause the direction or management of such entity, whether by contract or otherwise, or (ii) ownership of fifty percent (50%) or more of the outstanding shares, or (iii) beneficial ownership of such entity.

“You” (or “Your”) shall mean an individual or Legal Entity exercising permissions granted by this License.

“Source” form shall mean the preferred form for making modifications, including but not limited to software source code, documentation source, and configuration files.

“Object” form shall mean any form resulting from mechanical transformation or translation of a Source form, including but not limited to compiled object code, generated documentation, and conversions to other media types.

“Work” shall mean the work of authorship, whether in Source or Object form, made available under the License, as indicated by a copyright notice that is included in or attached to the work (an example is provided in the Appendix below).

“Derivative Works” shall mean any work, whether in Source or Object form, that is based on (or derived from) the Work and for which the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work of authorship. For the purposes of this License, Derivative Works shall not include works that remain separable from, or merely link (or bind by name) to the interfaces of, the Work and Derivative Works thereof.

“Contribution” shall mean any work of authorship, including the original version of the Work and any modifications or additions to that Work or Derivative Works thereof, that is intentionally submitted to Licensor for inclusion in the Work by the copyright owner or by an individual or Legal Entity authorized to submit on behalf of the copyright owner. For the purposes of this definition, “submitted” means any form of electronic, verbal, or written communication sent to the Licensor or its representatives, including but not limited to communication on electronic mailing lists, source code control systems, and issue tracking systems that are managed by, or on behalf of, the Licensor for the purpose of discussing and improving the Work, but excluding communication that is conspicuously marked or otherwise designated in writing by the copyright owner as “Not a Contribution.”

“Contributor” shall mean Licensor and any individual or Legal Entity on behalf of whom a Contribution has been received by Licensor and subsequently incorporated within the Work.

2. Grant of Copyright License. Subject to the terms and conditions of this License, each Contributor hereby grants to You a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable copyright license to reproduce, prepare Derivative Works of, publicly display, publicly perform, sublicense, and distribute the Work and such Derivative Works in Source or Object form.

3. Grant of Patent License. Subject to the terms and conditions of this License, each Contributor hereby grants to You a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable (except as stated in this section) patent license to make, have made, use, offer to sell, sell, import, and otherwise transfer the Work, where such license applies only to those patent claims licensable by such Contributor that are necessarily infringed by their Contribution(s) alone or by combination of their Contribution(s) with the Work to which such Contribution(s) was submitted. If You institute patent litigation against any entity (including a cross-claim or counterclaim in a lawsuit) alleging that the Work or a Contribution incorporated within the Work constitutes direct or contributory patent infringement, then any patent licenses granted to You under this License for that Work shall terminate as of the date such litigation is filed.

4. Redistribution. You may reproduce and distribute copies of the Work or Derivative Works thereof in any medium, with or without modifications, and in Source or Object form, provided that You meet the following conditions:

    (a) You must give any other recipients of the Work or Derivative Works a copy of this License; and

    (b) You must cause any modified files to carry prominent notices stating that You changed the files; and

    (c) You must retain, in the Source form of any Derivative Works that You distribute, all copyright, patent, trademark, and attribution notices from the Source form of the Work, excluding those notices that do not pertain to any part of the Derivative Works; and

    (d) If the Work includes a “NOTICE” text file as part of its distribution, then any Derivative Works that You distribute must include a readable copy of the attribution notices contained within such NOTICE file, excluding those notices that do not pertain to any part of the Derivative Works, in at least one of the following places: within a NOTICE text file distributed as part of the Derivative Works; within the Source form or documentation, if provided along with the Derivative Works; or, within a display generated by the Derivative Works, if and wherever such third-party notices normally appear. The contents of the NOTICE file are for informational purposes only and do not modify the License. You may add Your own attribution notices within Derivative Works that You distribute, alongside or as an addendum to the NOTICE text from the Work, provided that such additional attribution notices cannot be construed as modifying the License.

You may add Your own copyright statement to Your modifications and may provide additional or different license terms and conditions for use, reproduction, or distribution of Your modifications, or for any such Derivative Works as a whole, provided Your use, reproduction, and distribution of the Work otherwise complies with the conditions stated in this License.

5. Submission of Contributions. Unless You explicitly state otherwise, any Contribution intentionally submitted for inclusion in the Work by You to the Licensor shall be under the terms and conditions of this License, without any additional terms or conditions.

Notwithstanding the above, nothing herein shall supersede or modify the terms of any separate license agreement you may have executed with Licensor regarding such Contributions.

6. Trademarks. This License does not grant permission to use the trade names, trademarks, service marks, or product names of the Licensor, except as required for reasonable and customary use in describing the
origin of the Work and reproducing the content of the NOTICE file.

7. Disclaimer of Warranty. Unless required by applicable law or agreed to in writing, Licensor provides the Work (and each Contributor provides its Contributions) on an “AS IS” BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied, including, without limitation, any warranties or conditions of TITLE, NON-INFRINGEMENT, MERCHANTABILITY, or FITNESS FOR A PARTICULAR PURPOSE. You are solely responsible for determining the appropriateness of using or redistributing the Work and assume any risks associated with Your exercise of permissions under this License.

8. Limitation of Liability. In no event and under no legal theory, whether in tort (including negligence), contract, or otherwise, unless required by applicable law (such as deliberate and grossly negligent acts) or agreed to in writing, shall any Contributor be liable to You for damages, including any direct, indirect, special, incidental, or consequential damages of any character arising as a result of this License or out of the use or inability to use the Work (including but not limited to damages for loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses), even if such Contributor has been advised of the possibility of such damages.

9. Accepting Warranty or Additional Liability. While redistributing the Work or Derivative Works thereof, You may choose to offer, and charge a fee for, acceptance of support, warranty, indemnity, or other liability obligations and/or rights consistent with this License. However, in accepting such obligations, You may act only on Your own behalf and on Your sole responsibility, not on behalf of any other Contributor, and only if You agree to indemnify, defend, and hold each Contributor harmless for any liability incurred by, or claims asserted against, such Contributor by reason of your accepting any such warranty or additional liability.