TERMS OF SALE AND SOFTWARE LICENSE AGREEMENT
These Terms of Sale and Software License Agreement (these “Terms of Sale”) are entered into by and between Pace-O-Matic, Inc. (“Pace”) and you (“Customer” or “you”), and shall govern the sale (with or without charge) of Hardware and Services and the license (with or without charge) of Software to Customer. If Pace and Customer have entered into another written agreement and such agreement is in effect at the time of the applicable Invoice (an “Existing Agreement”), then the terms and conditions of such Existing Agreement shall govern the sale or license of those Products or Services to the extent such terms and conditions conflict with these Terms of Sale. Exhibit A is incorporated into and shall be a part of these Terms of Sale.
1.0 DEFINITIONS
1.1 Affiliate means any corporation, firm, partnership or other entity that directly or indirectly controls, or is controlled by, or is under common control with Pace or Customer.
1.2 Effective Date is the date these Terms of Sale are electronically accepted, click-accepted, accepted by facsimile transmission or signed in hard copy by Customer. Such acceptance will include, but is not limited to, electronically accepting, click-accepting, accepting by facsimile transmission or signing a hard copy of a document (e.g., a credit card authorization form) or an electronic file (e.g., on a computer screen) that incorporates these Terms of Sale by reference.
1.3 Hardware is the tangible product acquired by Customer from Pace including, but not limited
to, computer chips, motherboards, security devices, printers, bill acceptors and cabinets.
1.4 Invoice is the invoice sent by Pace to Customer in response to a Sales Order.
1.5 Products are, individually or collectively as appropriate, Hardware and Software.
1.6 Sales Order is an order created by Pace for the Customer for Products or Services to be purchased, licensed or provided.
1.7 Services are any maintenance, technical support, customer service or any other services performed or to be performed by Pace.
1.8 Software is the machine readable (object code) version of the computer programs listed on the Invoice, provided with the Hardware and/or made available by Pace for license to Customer including firmware, and any copies made, bug fixes for, updates to, or upgrades thereof. Software also includes (i) codes that are sold or provided that allow the computer programs to continue operating, reload, or extend play (i.e., “fill codes”), (ii) computer programs written for security devices, and (iii) documentation such as user manuals, training materials, descriptions, specifications and technical manuals, if any, related to the Software.
1.9 Territory is the states or territories within the U.S. for which the various Products were designed by Pace as determined in Pace’s sole discretion from time to time.
2.0 SCOPE
All transactions between Customer and Pace (or its Affiliates) shall be governed by these Terms of Sale. Customer may use the Products and Services only in the Territory for each specific Product and solely for (i) Customer’s business use or (ii) resale but only if and where Customer has been granted appropriate reseller or distribution rights in writing by Pace for the specific Products or Services to be resold/distributed. Customer shall not resell to, make available for use by, or otherwise transfer title to any Product to, any end user or other third party, including any reseller, without such reseller or distribution rights.
3.0 PRICES
3.1 Prices for Products and Services shall be those specified in the Invoice. Pace shall have the authority to correct any errors regarding pricing at any time.
3.2 All prices are exclusive of any freight, handling, insurance charges, taxes, fees and duties and other similar items, however designated. Customer shall pay, and shall indemnify and hold harmless Pace against, any taxes related to Products and Services provided pursuant to these Terms of Sale (except for taxes based on Pace’s revenue income). Customer may present an exemption certificate acceptable to all relevant taxing authorities, if applicable. Applicable taxes may, to the extent practical, be billed as a separate item on the invoice. Regardless of what appears on the Invoice, Customer shall be responsible for all freight, handling, insurance charges, taxes, fees and duties and other similar items.
3.3 Pace reserves the right to charge (i) a fee for any updates, fixes, upgrades, new versions, new games or other changes to the Software or Hardware, and (ii) a fee or new fill charge for “fills” lost due to dead batteries.
4.0 ORDERS
Customer may purchase or license Products or Services by placing an order with Pace, which order will be evidenced by a Sales Order and an Invoice. The terms of these Terms of Sale shall apply and govern, regardless of any additional or conflicting terms on any purchase order or other correspondence or documentation submitted by Customer to Pace, and any such additional or conflicting terms are deemed rejected by Pace.
5.0 SHIPPING AND DELIVERY
5.1 Scheduled shipping dates will be assigned by Pace in its discretion, and Pace shall select the carrier.
5.2 Title and risk of loss shall pass from Pace to Customer and delivery shall be deemed to occur upon transfer of possession to the first common carrier or Customer’s representative at Pace’s warehouse dock.
5.3 PACE SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR PENALTY FOR DELAY IN DELIVERY OR FOR FAILURE TO GIVE NOTICE OF ANY DELAY. PACE SHALL NOT HAVE ANY LIABILITY IN CONNECTION WITH SHIPMENT, NOR SHALL THE CARRIER BE DEEMED TO BE AN AGENT OF PACE.
5.4 All sales are final. Except as provided in Pace’s written warranty statements, Pace does not accept returns unless (i) Pace shipped a product other than as specified in the Invoice, (ii) such Product is unopened, and (iii) the Product is returned in accordance with Pace’s then current RMA policy and procedures. If Pace agrees to cancel a Sales Order or Invoice or repurchase Products at a later date for reasons other than as stated in the preceding sentence, Customer agrees to a 20% restocking fee to compensate Pace for the work required to cancel the order or purchase the Product.
6.0 PAYMENT
Unless otherwise stated in writing on the Invoice, payment is due (i) in full at the time of the order for all orders except game terminals, and (ii) one half at the time of order and one half before shipment for orders of game terminals. If at any time Customer is delinquent in the payment of any invoice, or is otherwise in breach of these Terms of Sale, Pace may, in its discretion, and without prejudice to its other rights, withhold shipment (including partial shipments) of any order, require Customer to prepay for further shipments, and/or withhold the provision of Services, until complete payment has been received. Any sum not paid by Customer when due shall bear interest from the due date until paid at a rate of (i) ten per cent per annum or (ii) the maximum rate permitted by law, whichever is less.
7.0 PROPRIETARY RIGHTS AND SOFTWARE LICENSING
7.1 Subject to the terms contained in the End User License Agreement set forth in Exhibit A (the “EULA”) and the other provisions of these Terms of Sale, Pace grants to Customer a non-exclusive, non-transferable license (a) to use the Software for Customer’s business use, and (b) where Customer is an authorized reseller or distributor, to market and resell the Products in accordance with such reseller or distributing agreement, or if there is no such agreement, then solely in the Territory for each specific Product during the term of these Terms of Sale. Customer may not sublicense, to any person or entity, any rights to distribute the Software. Customer agrees to comply with the terms of the EULA.
7.2 For non-Pace software delivered in connection with these Terms of Sale which is separately licensed by a third party, Customer’s rights and responsibilities with respect to such software shall be governed in accordance with the third party’s applicable software license.
7.3 Where Customer is an authorized reseller or distributor, Customer shall provide a copy of the EULA and any applicable third party license agreement to each end user with delivery of the Product or prior to installation of the Software. Customer shall notify Pace promptly of any breach or suspected breach of the EULA or third party license and further agrees that it will, at Pace’s request, assist Pace in efforts to preserve Pace’s or its supplier’s intellectual property rights including pursuing an action against any breaching third parties.
8.0 LIMITED WARRANTIES
8.1 Limited Warranty for Products. The written warranty for Products (the “Limited Warranty Statement”) may be found at the following URL: www.paceomatic.com. Notwithstanding any other term of these Terms of Sale, Pace’s sole and exclusive warranty and obligations are set forth in the Limited Warranty Statement. Customer shall not make any warranty commitment, whether written or oral, on Pace’s behalf. Customer shall indemnify Pace against any warranties made by Customer in addition to the Limited Warranty Statement and for any misrepresentation of Pace’s reputation or of Pace’s Products and Services. In the event of any breach by Pace of the Limited Warranty Statement, the Customer agrees that its sole an exclusive remedy for such breach shall be the remedies set forth in the Limited Warranty Statement.
8.2 Services. Services provided hereunder shall be performed in a workmanlike manner consistent with industry standards. Customer must notify Pace promptly, but in no event more than thirty (30) days after completion of the Services, of any claimed breach of this warranty. Customer’s sole and exclusive remedy for breach of this warranty shall be, at Pace’s option, (i) re-performance of the Services, or (ii) termination of these Terms of Sale or the applicable Service and return of the portion of the Service fees paid to Pace by Customer for such non-conforming Services. The provision of Services under these Terms of Sale shall not extend the warranties provided with any Hardware purchased or Software licensed by Customer.
8.3 Restrictions. The limited warranties referenced in this Section do not apply if the Product (a) has been altered, except by Pace, (b) has not been installed, operated, repaired, used or maintained in accordance with instructions made available by Pace, (c) has been subjected to abnormal or unusual physical or electrical stress or environmental conditions, misused, or negligently handled or operated; or (d) is acquired by Customer for beta, evaluation, testing, demonstration purposes or other circumstances for which Pace does not receive a payment of a purchase price or license fee.
8.4 Non-Pace products. Unless otherwise specified in writing by Pace, the limited warranties referenced in this Section do not apply to any non-Pace software or hardware that may be offered for sale in the name of a third party. Non-Pace hardware and software are warranted solely by the applicable manufacturer or licensor. Pace will pass through, to the extent permitted, the manufacturer’s and/or licensor’s warranties and Customer shall look solely to such manufacturer and/or licensor for warranty claims.
8.5 DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN THIS
SECTION, THE PRODUCTS AND SERVICES ARE PROVIDED “AS IS” AND PACE HEREBY DISCLAIMS AND CUSTOMER WAIVES ALL REPRESENTATIONS, CONDITIONS AND WARRANTIES (WHETHER EXPRESS, IMPLIED, OR STATUTORY), INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OR CONDITION (A) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, TITLE, SATISFACTORY QUALITY, QUIET ENJOYMENT, ACCURACY, OR SYSTEM INTEGRATION, OR (B) ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN THE INDUSTRY. TO THE EXTENT AN IMPLIED WARRANTY OR CONDITION CANNOT BE DISCLAIMED, SUCH WARRANTY OR CONDITION IS LIMITED IN DURATION TO THE APPLICABLE EXPRESS WARRANTY PERIOD.
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, WITH RESPECT TO YOUR USE OF THE SOFTWARE, PACE (INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, AFFILIATES, AND ASSIGNS) MAKES NO EXPRESS OR IMPLIED WARRANTY OR REPRESENTATION (I) THAT SOFTWARE PROVIDED TO YOU IS OR WILL BE SECURE, ACCURATE, COMPLETE, UNINTERRUPTED, WITHOUT ERROR, OR FREE OF VIRUSES, WORMS, OTHER HARMFUL COMPONENTS, OR OTHER PROGRAM LIMITATIONS; (II) THAT ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED; (III) THAT THE PRODUCTS ARE APPROPRIATE OR LEGAL FOR USE OR POSSESSION; (IV) REGARDING THE TAXES THAT MAY BE DUE ARISING FROM THE USE OR OPERATION OF THE SOFTWARE; (V) AS TO THE ACCURACY, QUALITY, RELIABILITY, SUITABILITY, COMPLETENESS, TRUTHFULNESS, USEFULNESS, OR EFFECTIVENESS OF ANY REPORTS, DATA, RESULTS, OR OTHER INFORMATION OBTAINED OR GENERATED BY CUSTOMER RELATED TO CUTOMER’S USE OF THE SOFTWARE, OR (VI) THAT PACE WILL PROVIDE LEGAL SUPPORT IN CONNECTION WITH THE PRODUCTS.
8.6 Used Products. Customer understands and agrees that the Hardware (or parts thereof) may be used or refurbished. Pace makes no warranties, express, implied or statutory, that the Hardware is new.
9.0 TERM AND TERMINATION
9.1 These Terms of Sale shall commence on the Effective Date and continue thereafter for a period of one year, unless sooner terminated as set forth herein. These Terms of Sale shall be automatically renewed thereafter, for successive one-year periods, unless sooner terminated as set forth herein.
9.2 Either party may terminate these Terms of Sale (including the provision of “fill codes” by Pace) at any time by providing the other party with at least ninety (90) days’ prior written notice of termination. For the avoidance of doubt, the termination of these Terms of Sale means the termination of the agreement(s) between Pace and Customer as evidenced by the Sales Order, the Invoice and the terms and conditions set forth herein.
9.3 If a party breaches any of the provisions of these Terms of Sale, the non-breaching party may terminate these Terms of Sale and Pace, if it is the non-breaching party, may also suspend the provision of “fill codes” as follows:
- (a) immediately upon providing written notice to the breaching party if the breach is not capable of being cured, and
- (b) thirty (30) days after providing written notice to the breaching party if the breaching party fails to cure such breach within such thirty (30) day period.
9.4 Pace may terminate these Terms of Sale or suspend the provision of “fill codes” immediately upon written notice (i) in the event that Customer is in breach of Section 7.0 (Proprietary Rights and Software Licensing), the EULA or Section 11.0 (Compliance with Laws), (ii) Customer is using a Product in a Territory for which such Product was not designed as determined by Pace in its sole discretion, (iii) Customer purchases a “fill code” from someone other than Pace without Pace’s prior written consent, or (iv) if, in Pace’s sole opinion, a statutory change or judicial or governmental decision or interpretation prohibits the sale, use or license of the Software or the Hardware in the Territory.
9.5 Upon termination or expiration of these Terms of Sale, (a) Pace reserves the right to cease all further delivery of Products or Services, (b) all outstanding invoices immediately become due and payable, and (c) all rights and licenses of Customer under these Terms of Sale shall terminate. If Pace agrees to complete delivery of any further Products or Services due against any existing Sales Order, then Customer shall pay for such Products or Services in advance.
10.0 SERVICES
Customer may order various Services offered by Pace. Such Services, if accepted by Pace, shall be subject to these Terms of Sale, as well as the additional terms and conditions set forth in Pace’s then-current applicable Service descriptions that describe the deliverables and other terms applicable to such Services unless an Existing Agreement is in effect in which case the terms of the Existing Agreement shall govern any such Services to the extent of any conflict with these Terms of Sale.
11.0 COMPLIANCE WITH LAWS
In connection with the purchase, use or distribution of the Products or Services, or otherwise in carrying out its obligations under these Terms of Sale, Customer represents and warrants the following:
(a) Customer shall obtain all licenses, permits and approvals required by any government or applicable authority. In addition, Customer will comply with all country, federal, state and local laws, ordinances, codes, regulations, rules, policies and procedures of any government or other competent authority where the Products or Services are purchased by Customer or are to be sold, used or deployed, including, without limitation, all anti-corruption laws, including, the U.S. Foreign Corrupt Practices Act (“Applicable Laws”).
(b) Customer shall not take any action or permit or authorize any action in violation of the Applicable Laws;
(c) In no event shall Pace be obligated under these Terms of Sale or otherwise to take any action or omit to take any action that Pace believes, in good faith, would cause it to be in violation of any Applicable Laws;
(d) Notwithstanding any other provision in these Terms of Sale, Pace may suspend the provision of “fill codes” or terminate these Terms of Sale immediately upon written notice if Customer breaches any of the representations and warranties set forth in this section. Customer will indemnify and hold harmless Pace for any violation by Customer of any Applicable Laws; and
(e) Customer shall use its best efforts to regularly inform Pace of any requirements under any Applicable Laws that directly or indirectly affect the sale, use or distribution of Products or Services, or Pace’s trade name, trademarks or other commercial, industrial or intellectual property interests.
12.0 LIMITATION OF LIABILITY
12.1 General. NOTWITHSTANDING ANYTHING ELSE IN THESE TERMS OF SALE TO THE CONTRARY, ALL LIABILITY OF PACE, ITS AFFILIATES, OFFICERS,
DIRECTORS, EMPLOYEES AND AGENTS COLLECTIVELY FOR CLAIMS UNDER THESE TERMS OF SALE OR OTHERWISE HOWSOEVER ARISING SHALL BE LIMITED TO THE MONEY PAID TO PACE FOR PRODUCTS AND FOR SERVICES UNDER THESE TERMS OF SALE DURING THE SIX (6) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES FIRST GIVING RISE TO SUCH LIABILITY. THIS LIMIT OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT (I.E., THE EXISTENCE OF TWO OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT).
12.2 Indemnification. TO THE FULLEST EXTEND PERMITTED BY LAW, CUSTOMER SHALL INDEMNIFY AND HOLD HARMLESS PACE AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS AGAINST ALL CLAIMS, ACTIONS, CAUSES OF ACTION, LOSSES, DAMAGES AND LIABILITIES ARISING OUT OF OR IN CONNECTION WITH THE PURCHASE, USE OR RESALE OF THE PRODUCTS OR SERVICES.
12.3 No Class Actions. CUSTOMER SHALL NOT BE ENTITLED, AND WAIVES ALL RIGHTS, TO JOIN OR CONSOLIDATE CLAIMS WITH OTHER CUSTOMERS, OR PURSUE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION AGAINST PACE.
12.4 Limitation Period. PACE SHALL NOT BE LIABLE FOR ANY CLAIM BROUGHT MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION FOR SUCH CLAIM FIRST AROSE.
12.5 No Jury Trial. CUSTOMER HEREBY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY RIGHT TO A JURY TRIAL WITH RESPECT TO ANY DISPUTE ARISING FROM THE PURCHASE, USE OR RESALE OF THE PRODUCTS OR SERVICES.
13.0 WAIVER OF CONSEQUENTIAL AND OTHER DAMAGES; ASSUMPTION OF RISK BY CUSTOMER
IN NO EVENT SHALL EITHER PACE, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR LOST REVENUE, LOST PROFITS, OR LOST OR DAMAGED DATA, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF EITHER PARTY OR BOTH PARTIES HAVE BEEN INFORMED OF THE POSSIBILITY THEREOF. USE OR RESALE OF THE PRODUCTS AND SERVICES ARE AT THE CUSTOMER’S SOLE RISK AND CUSTOMER ASSUMES THE RISK OF USING AND RESELLING THE PRODUCTS AND SERVICES. PACE SHALL HAVE NO LIABILITY RELATING TO SUCH USE OR RESALE. CUSTOMER ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION OF PROBLEMS CAUSED BY VIRUSES OR OTHER HARMFUL COMPONENTS.
14.0 GENERAL
14.1 Choice of Law. The validity, interpretation, and performance of these Terms of Sale shall be controlled by and construed under the laws of the State of Georgia, United States of America, as if performed wholly within the state and without giving effect to the principles of conflicts of law. The state and federal courts of the State of Georgia shall have exclusive jurisdiction over any claim arising hereunder and Customer waives any rights or objections based upon the doctrine of forum non conveniens. The parties specifically disclaim the application of the UN Convention on Contracts for the International Sale of Goods. Notwithstanding the foregoing, either party may seek interim injunctive relief in any court of appropriate jurisdiction with respect to any alleged breach of such party’s intellectual property or proprietary rights.
14.2 Force Majeure. Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including, without limitation, acts of God, earthquakes, labor disputes, industry-wide shortages of supplies, actions of governmental entities, riots, war, terrorism, fire, epidemics, or delays of common carriers or other circumstances beyond its reasonable control. The obligations and rights of the defaulting party shall be extended for a period equal to the period during which such event prevented such party’s performance.
14.3 No Waiver. The waiver by either party of any right provided under these Terms of Sale shall not constitute a subsequent or continuing waiver of such right or of any other right under these Terms of Sale.
14.4 Assignment. Neither these Terms of Sale nor any rights or obligations under these Terms of Sale shall be assigned by Customer without the Pace’s prior written consent, which will not be unreasonably withheld or delayed. Notwithstanding any assignment by Customer, Customer shall remain liable for the payment of all amounts due under these Terms of Sale.
14.5 Severability. In the event that part of or one or more terms of these Terms of Sale become or are declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, each such part or term shall be null and void and shall be deemed deleted from these Terms of Sale. All remaining terms of these Terms of Sale shall remain in full force and effect. Notwithstanding the foregoing, if this paragraph is invoked and, as a result, the value of these Terms of Sale is materially impaired to Pace as determined by Pace in its sole discretion, then Pace may terminate these Terms of Sale by written notice with immediate effect to the Customer.
14.6 No Agency. These Terms of Sale do not create any agency, partnership, joint venture, or franchise relationship. No employee of either party shall be or become, or shall be deemed to be or become, an employee of the other party by virtue of the existence or implementation of these Terms of Sale. Each party hereto is an independent contractor. Neither party shall assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.
14.7 Entire Agreement. These Terms of Sale constitute the entire agreement between the parties concerning the subject matter of these Terms of Sale and replace any prior oral or written communications between the parties, all of which are excluded. There are no conditions, understandings, agreements, representations or warranties, expressed or implied, that are not specified herein. These Terms of Sale may be revised, in whole or in part, by Pace from time to time by posting the revised Terms of Sale to its website at www.paceomatic.com.
14.8 Notices. All notices required or permitted under these Terms of Sale will be in writing and will be deemed given one day after deposit with a commercial express courier specifying next day delivery (or two (2) days for international courier packages specifying 2-day delivery), with written verification of receipt. All communications will be sent to (i) Pace at 4150 Blue Ridge Industrial Parkway, Norcross, Georgia 30071 (with a copy to the General Counsel at the same address), and (ii) to the Customer at the addresses set forth on the Invoice, or such other address as may be designated by a party by giving written notice to the other party pursuant to this paragraph, or, in the absence of such an address from customer, to the address to which the last invoice under these Terms of Sale was sent before notice is served. Notwithstanding the foregoing, Pace notices regarding changes in pricing, Software license terms, policies or programs may be made by posting on www.paceomatic.com or by e-mail or fax.
14.9 Survival. The following sections shall survive the expiration or earlier termination of these Terms of Sale: Sections 2.0 (Scope), 6.0 (Payment), the Customer’s obligations set forth in 7.0 (Proprietary Rights and Software Licensing) and the EULA, 8.0 (Limited Warranties), 9.0 (Term and Termination), 12.0 (Limitation of Liability), 13.0 (Waiver of Consequential and Other Damages), 14.0 (General), subject to the termination provisions set forth in Section 9.0 (Term and Termination) of these Terms of Sale.
14.10 Headings. Headings of sections have been added solely for convenience of reference and shall not be deemed part of these Terms of Sale.
EXHIBIT A — END USER LICENSE AGREEMENT
ORDERING, DOWNLOADING, INSTALLING OR USING THE SOFTWARE CONSTITUTES ACCEPTANCE OF THIS END USER LICENSE AGREEMENT (“EULA”).
General. This EULA governs Customer’s access and use of the Software (as such term is defined in the Pace-O-Matic, Inc. (“Pace”) Terms of Sale and Software License Agreement (“Terms of Sale”)), except to the extent there is a separate signed contract between Customer and Pace governing Customer’s use of the Software. To the extent of a conflict between the provisions of the foregoing documents, the order of precedence shall be (1) the signed contract, and (2) this EULA.
License. Conditioned upon compliance with the terms and conditions of this EULA and the Terms of Sale, Pace grants to customer a nonexclusive and nontransferable license to use for Customer’s business purposes the Software for which Customer has paid the required license fees. In order to use the Software, Customer may be required to input a registration number or product authorization key and register Customer’s copy of the Software on-line at Pace’s website to obtain the necessary license key or license file. Customer’s license to use each set of Software shall be limited to, and Customer shall not use the Software in excess of, a single hardware chassis. No other licenses are granted by implication, estoppel or otherwise. For evaluation sets, beta sets or other sets of Software for which Pace does not charge a license fee, the above requirement to pay license fees does not apply.
Limitations. This is a license, not a transfer of title, to the Software, and Pace retains ownership of all copies of the Software. Customer acknowledges that the Software contains trade secrets of Pace or its licensors including, but not limited to, the specific internal design and structure of individual programs and associated interface information. Except as otherwise expressly provided under this EULA or the Terms of Sale, Customer shall have no right, and Customer specifically agrees not to:
(i) transfer, assign or sublicense its license rights to any other person or entity (other than in compliance with any Pace written agreement with Customer), and Customer acknowledges that any such attempted transfer, assignment or sublicense shall be void;
(ii) make error corrections to or otherwise modify or adapt the Software or create derivative works based upon the Software, or permit third parties to do the same;
(iii) reverse engineer or decompile, decrypt, disassemble or otherwise reduce the Software to human-readable form;
(iv) publish any results of benchmark tests run on the Software;
(v) use or permit the Software to be used without a security device if a security device is required by Pace;
(vi) disclose, provide, or otherwise make available trade secrets contained within the Software in any form to any third party without the prior written consent of Pace. Customer shall implement reasonable security measures to protect such trade secrets;
(vii) make any copies or duplicates of the Software (including the “fill codes”);
(ix) use the Software in a state or territory for which such Product was not designed as determined by Pace in its sole discretion, or
(x) purchase a “fill code” from someone other than Pace without Pace’s prior written consent.
Proprietary Notice. Customer agrees to maintain and reproduce all copyright and other proprietary notices on all copies, in any form, of the Software in the same form and manner that such copyright and other proprietary notices are included on the Software.
Term and Termination. This EULA and the license granted herein shall remain effective until terminated or suspended as provided in the Terms of Sale. Upon termination and upon request by Pace, Customer shall destroy or return all copies of Software in its possession or control.
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