Under Construction
Source: Corel PDF (2009Aug14)
The original has no dots following subsection numbers; here dots are added, parallel to those already present for section numbers.
1. §1Definitions.
§1¶1§1¶1ṣ1Capitalized terms,
as used herein,
are defined in
Schedule A
annexed hereto.
2. §2License Purchases. §2¶1§2¶1ṣ1Nothing contained in this Agreement shall be deemed to be considered as an offer to sell a Software license or a Maintenance License to Licensee. §2¶1ṣ2Licensee shall purchase from and pay to COREL the applicable Software Prices or to Reseller the applicable reseller price for any Software License or Maintenance License purchased by Licensee from COREL or Reseller.
3.1. §3.1License Terms and Conditions.
§3.1¶1§3.1¶1ṣ1These terms
and conditions shall apply to any Software License
or Maintenance License purchased by Licensee from COREL
or Reseller.
§3.1¶1ṣ2Any Software License
or Maintenance License granted by COREL
is conditional upon Licensee's acceptance of these terms
and conditions
and Licensee's continuing compliance herewith.
§3.1¶1ṣ3Licensee may accept these terms
and conditions by written acknowledgment
or by acceptance of,
or payment for,
any of COREL's products
or services
or in any other fashion,
including the acceptance of the delivery of Software.
§3.1¶1ṣ4In any event,
Licensee shall be deemed to have accepted these terms
and conditions
unless they are expressly rejected in writing
within ten (10) days of Licensee's receipt of the License Certificate.
§3.1¶1ṣ5The agreement between COREL
and Licensee resulting from such acceptance
is hereinafter referred to as the
Agreement
.
§3.1¶1ṣ6The Agreement,
which includes these terms
and conditions,
shall supersede any additional
or inconsistent provision in any purchase order
or elsewhere,
and all such inconsistent provisions are hereby expressly rejected
and shall not be binding upon COREL.
§3.1¶1ṣ7Licensee hereby agrees
that COREL's failure to specifically object
to any such provision submitted by Licensee
shall not constitute an acceptance by COREL thereof
nor shall it constitute an acceptance by COREL of any waiver of,
or modification to,
the provisions hereof.
§3.1¶1ṣ8In the event of a conflict between the EULA
and these terms
and conditions,
these terms
and conditions shall prevail.
3.2. §3.2Modifications. §3.2¶1§3.2¶1ṣ1COREL expressly reserves the right to modify the Software Prices and Maintenance Prices from time to time, and each payment Licensee makes shall be calculated according to prices current at time of payment. §3.2¶1ṣ2COREL also expressly reserves the right to modify these terms and conditions from time to time without notice.
4. §4Software License. §4¶1§4¶1ṣ1Subject to these terms and conditions and the EULA and Licensee's continuing compliance therewith, COREL hereby grants Licensee the following non-exclusive and non-transferable rights to:
5. §5Ownership. §5¶1§5¶1ṣ1Save and except for the limited Software License granted to Licensee, no title to, or ownership of, or any other proprietary rights in the Software are transferred to Licensee.
6.1. §6.1Maintenance License. §6.1¶1§6.1¶1ṣ1At the time of Software License purchase, Licensee has the option of purchasing a Maintenance License from COREL or Reseller. §6.1¶1ṣ2During the Maintenance Period only, Licensee shall be entitled to the Maintenance, including Upgrades and premium support, set out in Sections 6.3 to 6.5 below. §6.1¶1ṣ3For greater certainty, Maintenance shall only be available for those Software Licenses for which a Maintenance License is purchased.
6.2. §6.2Maintenance Period. §6.2¶1§6.2¶1ṣ1The Maintenance License shall expire on the last day of the Maintenance Period.
6.3. §6.3Upgrades. §6.3¶1§6.3¶1ṣ1During the Maintenance Period and subject to these terms and conditions and Licensee's continuing compliance herewith, the Maintenance License shall entitle Licensee to the following:
6.4. §6.4Limitation. §6.4¶1§6.4¶1ṣ1Upgrades may require Licensee to agree to additional or alternative terms and conditions other than as set out in this Agreement. §6.4¶1ṣ2If Licensee does not agree to the terms and conditions of any Upgrade license, COREL may, upon five (5) business days' notice, terminate this Agreement. §6.4¶1ṣ3In the event COREL does not provide additional license terms for the relevant Upgrade, the license terms applicable the Software shall apply to such Upgrade.
6.5. §6.5Premium Support.
§6.5¶1§6.5¶1ṣ1Premium technical support shall entitle Licensee to support
in the amount of one (1) Incident to twenty (20) Software Licenses.
§6.5¶1ṣ2Licensee shall be assigned a Service Account Manager
to act as a liaison between Licensee
and COREL.
§6.5¶1ṣ3COREL's business hours are
8:308.30
in original AM to 5:00 PM EST.
§6.5¶1ṣ4Premium technical support is only available in selected countries
as specified by COREL from time to time
and is only available during COREL's business hours.
7.1. §7.1Classic Support.
§7.1¶1§7.1¶1ṣ1Subject to these terms
and conditions
and Licensee's continued compliance herewith,
the purchase of a Software License shall entitle Licensee to receive
Classic Support
,
as defined from time to time by COREL in its sole
and absolute discretion.
§7.1¶1ṣ2As at the date hereof,
Classic Support is defined by COREL
to entitle Licensee to receive
§7.1¶1ṣ3Such support is only available in respect of the most current version of the Software. §7.1¶1ṣ4COREL will address technical support requests on a reasonable efforts basis only and may not be able to resolve all problems or requests. §7.1¶1ṣ5COREL agrees to support the Software only if it is used under appropriate operating conditions, and in conjunction with hardware systems, components and software operating systems for which it was designed. §7.1¶1ṣ6COREL reserves the right to change its Classic Support services at any time and from time to time, and without notice to Licensee.
8.1. §8.1Updates.
§8.1¶1§8.1¶1ṣ1COREL,
in its sole discretion,
may develop
and deliver at no charge to Licensee one
or more bug fixes,
upgrades,
enhancements,
replacement versions
or other updates to the Software (collectively,
Updates
).
§8.1¶1ṣ2Such Updates may require Licensee to agree to additional
or alternative terms
and conditions other than as set out in this Agreement.
§8.1¶1ṣ3If Licensee does not agree to the terms
and conditions of any Update license,
COREL may,
upon five (5) business days' notice,
terminate this Agreement.
§8.1¶1ṣ4In the event COREL does not provide additional license terms
for the relevant Update,
the license terms applicable the Software shall apply to such Update.
8.2. §8.2Mandatory Updates.
§8.2¶1§8.2¶1ṣ1In the event COREL provides Licensee with an Update to address a threatened
or actual security breach in the Software,
to replace technologies
that may infringe third party intellectual property rights
or for any other reason of similar significance to COREL
(such Updates hereinafter referred to as
Mandatory Updates
),
Licensee agrees to promptly,
and in no event later than ten (10) business days
after COREL provides such Mandatory Update to Licensee,
cease Use of any Software
that has not been updated with the Mandatory Update.
§8.2¶1ṣ2If Licensee fails to comply
within the timeframe specified in this
Section 8.2,
COREL may terminate Licensee's Software License and,
if applicable,
Maintenance License effective immediately upon notice to Licensee.
9.1. §9.1Protection. §9.1¶1§9.1¶1ṣ1Licensee agrees to take reasonable steps to protect the Software and Documentation from unauthorized copying or use. §9.1¶1ṣ2Licensee shall not disassemble, decompile or reverse engineer the Software. §9.1¶1ṣ3Where Licensee has a statutory right to disassemble or decompile the Software for the purpose of obtaining information needed to achieve interoperability with other programs, Licensee agrees that such right may not be exercised unless COREL fails to respond within sixty (60) days after receipt of a written request to provide the necessary information.
9.2. §9.2Restrictions. §9.2¶1§9.2¶1ṣ1Except as expressly authorized in this Agreement, Licensee shall not rent, lease, time share, sub-license, distribute, resell, transfer, copy, reproduce, display, or modify the Software.
9.3. §9.3Responsibility. §9.3¶1§9.3¶1ṣ1Licensee shall be fully liable for any breach of the terms and conditions of this Agreement and each EULA by any End User.
9.4. §9.4Audit Rights. §9.4¶1§9.4¶1ṣ1Licensee shall maintain adequate records evidencing its Use and licensing of the Software pursuant to this Agreement. §9.4¶1ṣ2Upon COREL's written request, Licensee shall, within seven (7) days of the date of such request, provide COREL with a statement signed by an authorized officer or representative of Licensee evidencing Licensee's current Use of Software. §9.4¶1ṣ3During the term of this Agreement, but no more often than once per annual period or more frequently if COREL has reason to believe that Licensee is not in compliance with the licensing or reporting provisions of this Agreement, COREL may, at its own expense and upon not less than forty-eight (48) hours' prior written notice, audit Licensee's Use of the Software. §9.4¶1ṣ4If the audit shows that Licensee has understated its Use of the Software, Licensee shall immediately purchase, from COREL or Reseller, sufficient licenses to support the actual Use. §9.4¶1ṣ5If Licensee has understated its Use by more than five percent (5%), Licensee shall also pay the reasonable expenses of the audit.
9.5. §9.5§9.5¶1ṣ1Nothing in this Agreement shall be construed to warrant or imply that Upgrades or Updates will be produced for any product or, if so produced, when such Upgrades or Updates will be made commercially available.
9.6. §9.6Confidentiality.
§9.6¶1§9.6¶1ṣ1Confidential Information
means all information,
software,
processes
and materials relating to COREL,
COREL's business activities
and COREL's software,
in whatever format.
§9.6¶1ṣ2Licensee shall treat as confidential all Confidential Information
and shall not use such Confidential Information
except to exercise its rights
or perform its obligations under this Agreement
and shall not disclose such Confidential Information to any third party
or to any employee of Licensee without a need to know.
§9.6¶1ṣ3Information which is generally known,
available
or in the public domain through no fault of the receiver
shall be deemed not to be Confidential Information.
10.1. §10.1§10.1¶1ṣ1This Agreement is effective when Licensee receives the License Certificate and shall continue until the earlier of Licensee's
§10.1¶1ṣ2COREL has the right to terminate this Agreement immediately upon notice to Licensee if Licensee is in breach of this Agreement. §10.1¶1ṣ3Upon termination, at COREL's request, Licensee shall promptly, at its own costs and expenses, return or destroy any COREL proprietary information and the Software, in all forms, including, without limitation, all summaries, copies and excerpts and those in the possession or control of its employees. §10.1¶1ṣ4At COREL's option, License shall provide written certification of its compliance with this section through its senior management. §10.1¶1ṣ5For greater certainty, failure of COREL to make such request shall not entitle Licensee to make any further use of COREL proprietary information or Software, or otherwise extend Licensee's rights set out herein, after expiration or termination of this Agreement; ṣ5.1and Licensee specifically agrees to cease any further use thereof unless COREL and Licensee have signed a written license agreement for such use.
11. §11Limited Warranty/Liability Limitation.
§11¶1§11¶1ṣ1THE SOFTWARE IS LICENSED BY TO LICENSEE ON AN AS IS
BASIS.
§11¶1ṣ2IF LICENSEE RECEIVES FROM COREL OR RESELLER
DEFECTIVE MEDIA OR DOCUMENTATION RELATING TO THE SOFTWARE,
LICENSEE MAY RETURN THEM TO COREL WITHIN 90 DAYS OF THE DATE OF PURCHASE,
AND THEY WILL BE REPLACED AT NO CHARGE.
§11¶1ṣ3THESE WARRANTIES ARE IN LIEU OF ANY OTHER WARRANTIES,
EXPRESS OR IMPLIED,
WRITTEN OR ORAL,
ARISING BY STATUTE,
OPERATION OF LAW,
COURSE OF DEALING,
USAGE OF TRADE OR OTHERWISE,
INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY,
NON INFRINGEMENT OF THIRD PARTY RIGHTS SATISFACTORY QUALITY,
MERCHANTABLE QUALITY AND FITNESS FOR A PARTICULAR PURPOSE,
ALL OF WHICH IMPLIED WARRANTIES ARE EXPRESSLY EXCLUDED.
§11¶1ṣ4IN NO EVENT WILL COREL OR ITS LICENSORS
BE LIABLE TO LICENSEE FOR ANY INCIDENTAL,
INDIRECT,
SPECIAL OR CONSEQUENTIAL DAMAGES,
OR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE,
DATA OR PROFITS,
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT
OR THE USE OR PERFORMANCE OF COREL,
THE SOFTWARE,
STORAGE MEDIA,
DOCUMENTATION,
OR OTHER COREL PROVIDED MATERIAL
WHETHER SUCH ACTION IS BASED IN CONTRACT OR IN TORT
INCLUDING BUT NOT LIMITED TO NEGLIGENCE
AND WHETHER OR NOT COREL HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE.
§11¶2§11¶2ṣ1In no event shall COREL's total liability exceed the total fees paid by the Licensee in respect of Software to COREL or a Reseller during the past calendar quarter.
12. §12U.S. Government Rights.
§12¶1§12¶1ṣ1With respect to any acquisition of the Software by
or for any unit
or agency of the United States Government
(the Government
),
the Software shall be classified as
commercial
computer software
,
as
that term is defined
in the applicable provisions of
the Federal Acquisition Regulation
(the FAR
)
and supplements thereto,
including the Department of Defense (DoD) FAR Supplement
(the DFARS
).
§12¶1ṣ2The Software was developed entirely at private expense,
and no part of the Software
was first produced in the performance of a Government contract.
§12¶1ṣ3If the Software is supplied
for use by DoD,
the Software is delivered subject to the terms of this Agreement
and either:
§12¶1ṣ4If the Software is supplied for use by a Federal agency other than DoD, the Software is restricted computer software delivered subject to the terms of this Agreement and:
§12¶1ṣ5The contractor/manufacturer is Corel Corporation, 1600 Carling Avenue, Ottawa, Ontario, Canada, K1Z 8R7.
13.1. §13.1Binding Effect/Assignment. §13.1¶1§13.1¶1ṣ1This Agreement is binding upon the parties' respective representatives, successors and assigns; ṣ1.1however, Licensee shall not assign this Agreement without the prior written consent of COREL. §13.1¶1ṣ2COREL shall be entitled to assign this Agreement to any purchaser of COREL's rights to any of the Software.
13.2. §13.2Remedies. §13.2¶1§13.2¶1ṣ1Nothing in this Agreement is intended to waive or limit any remedy available to COREL at law or in equity, including without limitation any remedy available under International copyright laws.
13.3. §13.3Survival. §13.3¶1§13.3¶1ṣ1The provisions of Sections 1, 2, 5, 9, 11, 12 and 13 shall survive termination or expiration of this Agreement.
13.4. §13.4Governing Law. §13.4¶1§13.4¶1ṣ1This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario, Canada, excluding that body of law applicable to choice of law and excluding the United Nations Convention on Contracts for the International Sale of Goods and any legislation implementing such Convention, if applicable. §13.4¶1ṣ2Licensee hereby irrevocably consents and attorns to the exclusive jurisdiction of the courts of such Province. §13.4¶1ṣ3If either party employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees. §13.4¶1ṣ4Each party waives any right, and agrees not to apply to have any disputes under this Agreement tried or otherwise determined by a jury, except where required by law.
§14¶1§14¶1ṣ1The following amendments are only applicable to Academic Institutions purchasing Software pursuant to the terms and conditions of this Agreement.
1. §14.1§14.1¶1ṣ1Section 4 (iii) of the Agreement shall be deleted and replaced with the following:
§14.1¶2§14.1¶2ṣ14. (iii) Home and Laptop Use for each copy of a Special Application In Use by a faculty or staff member only, except that Home and Laptop Use is prohibited in China, India, Vietnam and Indonesia;
2. §14.2§14.2¶1ṣ1The provisions of Section 6.5 (Premium Support) do not apply to Academic Institutions purchasing Software pursuant to this Agreement.
3. §14.3§14.3¶1ṣ1Section 7.1 of the Agreement shall be deleted and replaced with the following:
§14.3¶2§14.3¶2ṣ17.1 Academic Support. Licensee shall be entitled to receive free-of-charge electronic support (i.e. Knowledge base and other online tools). §14.3¶2ṣ2COREL will address technical support requests on a reasonable efforts basis only and may not be able to resolve all problems or requests. §14.3¶2ṣ3COREL agrees to support the Software only if it is used under appropriate operating conditions, and in conjunction with hardware systems, components and software operating systems for which it was designed. §14.3¶2ṣ4COREL reserves the right to change the terms and conditions of its support offering without notice.
A
§15¶1§15¶1ṣ1The following definitions shall apply to this Agreement:
§15¶2§15¶2ṣ1COREL
means
the Corel entity identified on the License Certificate
to which these terms
and conditions are attached.
§15¶3§15¶3ṣ1Documentation
means
the documentation accompanying the Software.
§15¶4§15¶4ṣ1End User
means
any individual who is authorized by Licensee
to Use the Software in accordance with this Agreement.
§15¶5§15¶5ṣ1EULA
means
COREL's end user license agreement
as contained within the Software licensed pursuant to this Agreement.
§15¶6§15¶6ṣ1Incident
means
the resolution of a distinct technical question,
problem
or issue regardless of the number of telephone calls required.
§15¶7§15¶7ṣ1License Certificate
means
the license certificate delivered by COREL
to Licensee evidencing Licensee's Software License.
§15¶8§15¶8ṣ1Licensee
means
the party identified as such on the License Certificate
to which these terms
and conditions are attached.
§15¶9§15¶9ṣ1Home and Laptop Use
means
Use of a second copy of the Software on a portable computer
or a home personal computer,
so long as the second copy is never in memory
or virtual memory at the same time the primary copy is in memory
or virtual memory on the primary computer.
§15¶10§15¶10ṣ1Maintenance
means,
in general,
the provision as described in
Section 6
of this Agreement.
§15¶11§15¶11ṣ1Maintenance License
means
the right to receive Maintenance services
and support as defined in
Section 6
of this Agreement
for a period of two (2) consecutive calendar years
from the date of purchase of the Maintenance License.
§15¶12§15¶12ṣ1Maintenance Period
meansOriginal has comma
the period beginning on the date of purchase of the Maintenance License
and which terminates on
the second anniversary of the date of purchase of such Maintenance License.
§15¶13§15¶13ṣ1Maintenance Price
means
the current suggested list prices
for Maintenance licenses published by COREL
or Reseller as amended from time to time.
§15¶14§15¶14ṣ1Multiplatform Use
means
the Use of equivalent versions of the Software on applicable Windows
or Macintosh operating systems (excluding Unix
and Linux).
§15¶15§15¶15ṣ1Multilingual License
means
the Use of any
or all equivalent supported language versions of the Software
in support of a single user on one machine at any one time.
§15¶15ṣ2Nothing in this Agreement should be construed to warrant
or imply
that any new language version will be produced
for any product or,
if
so produced,
when such version will be made commercially available.
§15¶16§15¶16ṣ1New Product
means
either an entirely new Software product
or a major revision of Software released by COREL
that is consistently designated by COREL as a
new product
rather than as an Upgrade.
§15¶16ṣ2If a question arises as to whether
a major revision product offering is an Upgrade
or a new product,
COREL's opinion will prevail,
provided
that COREL treats the major revision product offering the same
for its end uses generally.
§15¶17§15¶17ṣ1Reseller
means
a reseller authorized by COREL to resell
and distribute Software
and Maintenance.
§15¶18§15¶18ṣ1Software
means,
collectively,
the software set out on the License Certificate
and any Upgrades
and Updates licensed by Licensee under this Agreement.
§15¶19§15¶19ṣ1Software License
mean
a revocable,
non-exclusive,
non-transferable,
limited license to use the Software.
§15¶20§15¶20ṣ1Software Prices
means
the current suggested list prices
for Software licenses published by COREL as amended from time to time.
§15¶21§15¶21ṣ1Special Application
means
only the following software applications:
ṣ1.1Corel CAPTURE,
CorelDRAW,
Corel DESIGNER,
Corel Painter,
Paint Shop Pro Photo,
Paradox,
PHOTO-PAINT,
Presentations,
Quattro Pro
and WordPerfect.
§15¶22§15¶22ṣ1Update(s)
has the meaning as set out in
Section 8.1.
§15¶23§15¶23ṣ1Upgrade
means
a revision of Software released by COREL during the Maintenance Period
that is consistently designated by COREL as an Upgrade
,
rather than a New Product.
§15¶23ṣ2In most instances an Upgrade will generally be designated by
a version number change in the Software immediately to either the right
or the left of the decimal (e.g. version 5.1 to 6.0
or version 6.0 to 6.1).
§15¶24§15¶24ṣ1Use
or
In Use
means:
§16¶1§16¶1ṣ1The following definition amendments are only applicable to Academic Institutions purchasing software pursuant to the terms and conditions of this Agreement.
Items in the following list are here made subsections, parallel to the layout of §14 ACADEMIC AMENDMENTS.
1. §16.1§16.1¶1ṣ1The definition of End User shall be deleted and replaced with the following:
§16.1¶2§16.1¶2ṣ1End User
means
any individual who is authorized by Licensee
and designated as a qualified Academic Institution,
to Use the Software in accordance with this Agreement.
2. §16.2§16.2¶1ṣ1The definition of Licensee shall be deleted and replaced with the following:
§16.2¶2§16.2¶2ṣ1Licensee
means
the party identified on the License Certificate,
provided
that such institutions are deemed by COREL to be
qualified Academic Institutions.
3. §16.3§16.3¶1ṣ1The following definition of qualified Academic Institution shall be added to this Agreement for the academic licensing program.
§16.3¶2§16.3¶2ṣ1Academic Institution
means
a public
or private accredited school
whose sole purpose is to provide educational instruction.
§16.3¶3§16.3¶3ṣ1The institution must be a preschool, elementary school, secondary school, vocational school, correspondence school, junior college, college, university or scientific or technical institute accredited by associations recognized by their relevant ministry or department of education. §16.3¶3ṣ2Academic Institution includes institutions which are either supervisory or organizations of any entity meeting the qualifications set out above, such as, state departments of education, boards of education, ministries of education, and school district administrative officials, hospitals which are wholly owned or affiliated to an educational institution, public libraries which provide general library services to community, region or districts without charge, which may be supported by public or private funds and which may impose charges to users outside of its service area only, museums which own or utilize tangible objects for exhibit purposes to the general public on a regular basis which may be public or private non-profit agencies or institutions organized on a permanent basis for education or aesthetic purposes, or correctional institutions of any security level. §16.3¶3ṣ3Only registered non-profit and charitable organizations who are not affiliated to a profit making company in any way qualify. §16.3¶3ṣ4If a question arises as to whether a Licensee is a Academic Institution, COREL's opinion shall prevail.
§16.3¶4§16.3¶4ṣ1Precedent February, 2007
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