SOFTWARE LICENSE TERMS & CONDITIONS

These terms & conditions if agreed to by Customer constitute a binding legal agreement (the “Agreement”) with Ariva Group, Inc. (“Ariva Group”) regarding the licensing of Ariva Group Software (the “Software”) contained in the attached Purchase Order issued by Ariva Group (the “P.O.”). Please read them carefully. If you sign this document below on behalf of Customer, you are indicating that you have the authority to so bind Customer. If you do not sign this document you will have no right to access the Software. Any provisions of a purchase order or other document or internet file provided by Customer that conflicts with these terms & conditions shall be of no force or effect.

 

DEFINITIONS.

“Designated Site” means Customer's physical location identified on the P.O. and is where the Software is authorized by Ariva Group to be used.

SCOPE OF LICENSE. Ariva Group grants to Customer a non-exclusive, non-transferable, fully paid, limited license, without right to sublicense, to execute the Software in machine-readable form, and to use the Documentation provided by Ariva Group for that Software as specified in the Evaluation or P.O. as applicable. The terms “Ariva Group” or “Licensor” may be used interchangeably in this Agreement. The term “Customer” or “Licensee” may also be used interchangeably in this Agreement. Customer is authorized to use the Software for the period defined in the P.O. Customer is authorized to use the Software only for Customer's own use, only in Customer's normal course of business and only on properly designated HostIDs located at properly Designated Sites. An employee or independent contractor of Customer located at a Designated Site is allowed remote login from the home of the employee or independent contractor of Customer or during travel. The Software may be used concurrently by no more than the number of permitted concurrent users of Customer specified and at no site other than the Designated Site. A site is restricted to a 50 mile (80 kilometer) radius and the User located at a Designated Site is allowed remote login from the home of the User or during travel, unless Customer receives a written exception to this restriction. Except as expressly permitted, Customer may not make or have any copies of the Software, other than one (1) copy of archival or back-up purposes only. Nothing herein entitles Customer to the receipt of, use of, or access to source code. Customer shall not reverse assemble, reverse compile or otherwise reverse engineer the Software, in whole or in part, or otherwise attempt to obtain the source code, or the function and structure, of the Software. Customer may not modify or prepare derivative works of the Software unless previously agreed to in writing by Ariva Group. Ariva Group will not maintain or support any such modified Software.

APPLICABLE SOFTWARE LICENSE TERMS. The applicable software licenses terms and conditions are deemed to be those terms and conditions in effect as of the time of the issuance of the license. If Customer wants access to the certain software license terms and conditions, please contact sales@JvmBulgaria.com.

OWNERSHIP. All ownership rights, title and interest in the Software, Documentation and related Confidential Information (as defined below), and all copies derivatives and abstracts thereof, including without limitation all copyrights, patent rights, trademark rights, trade secret rights, inventions, mask work rights and other proprietary rights therein and thereto, are and shall remain exclusively in Ariva Group or its licensor(s).

PAYMENT & DELIVERY TERMS. Excluding evaluation licenses, Customer agrees to pay the license fees for the licensed products as specified on the P.O./Evaluation Agreement and subsequent invoice. The license fees do not include taxes, shipping, or handling charges, all of which shall be paid by Customer, except for taxes based on Ariva Group's net income. The scheduled delivery date shall be that date set or acknowledged by Ariva Group in accordance with the P.O./Evaluation Agreement. All delivery dates are estimated. Payment terms are net thirty (30) days from date of invoice unless specified otherwise in the P.O. Any and all payments made under the provisions of the Agreement shall be payable in the currency as listed on the accompanying invoice. Ariva Group reserves the right to request such payments be made by wire transfer according to instructions for such transfer as specified by Ariva Group from time to time. The Software is subject to disconnection if the payment is not received by the due date specified in this Section 4. Ariva Group may, at its option, make delivery in installments and invoice and receive payments for each installment. Customer may purchase annual maintenance for the Software in accordance with the P.O. as it may be updated from time to time. If Customer elects not to purchase or fails to pay an invoice for maintenance when due, Ariva Group will have no further obligation to update or maintain either the Software or the license keys providing access thereto. Non-fulfillment of payments will be considered breach.

CONFIDENTIALITY. Customer shall keep the Software, Documentation and related information disclosed by Ariva Group on a confidential or proprietary basis (collectively "Confidential Information") confidential and shall not, without the prior written consent of Ariva Group, directly or indirectly provide, disclose or otherwise make available any item of Confidential Information in any form to any person other than to those of Customer's employees/license sites whose job performance requires access to the Confidential Information and are obligated to the confidentiality and restricted use provisions herein. Customer agrees to use the Confidential Information only as expressly authorized. Customer and customer license sites shall take all reasonable actions to protect the security of the Confidential Information and control its employees' use, copying and disclosure. Customer will immediately inform Ariva Group of any violation and use Customer's best efforts to remedy any such breach. Customer's non- disclosure obligations and use restrictions continue with respect to any item of Confidential Information until Customer can show that it: (a) was rightfully known to Customer prior to disclosure by Ariva Group; (b) is or becomes publicly available through a source other than Customer and through no wrongful act or failure to act by Customer; or (c) has been rightfully disclosed to Customer by an unrelated third party, without an obligation to keep it confidential.

LIMITED WARRANTY. Ariva Group warrants it has the right to license the Software. Ariva Group warrants, for the period of ninety (90) days following shipment of the Software, that the Documentation will be free from material errors and that the Software, if not modified and if properly used in accordance with the manual therefor, will conform substantially to Ariva Group's current documentation and will be free from manufacturing defects such as defective media or Software configuration errors. Ariva Group's total liability will not exceed the actual amount paid to Ariva Group by Customer for the failing Software. Ariva Group will not be liable for the costs of substitute software or services. Ariva Group EXCLUDES AND DISCLAIMS ALL WARRANTIEaS, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND THE STATUTORY WARRANTY OF NONINFRINGEMENT. CUSTOMER EXPRESSLY WAIVES ANY AND ALL SUCH WARRANTIES.

LIMITATION OF LIABILITY. LIMITATION OF LIABILITY. NEITHER Ariva Group NOR ITS SUPPLIERS WILL BE LIABLE FOR ANY LOST PROFITS, INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR PUNITIVE DAMAGES WHATSOEVER, EVEN IF Ariva Group HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Ariva Group'S ENTIRE LIABILITY UNDER OR RELATED TO THIS AGREEMENT IS LIMITED TO THE REMEDIES SPECIFIED BY THIS AGREEMENT. Ariva Group'S LIABILITY FOR DAMAGES, REGARDLESS OF THE FORM OF THE ACTION, SHALL NOT EXCEED THE FEES PAID FOR THE APPLICABLE SERVICES OR FOR THE LICENSE OF THE LICENSED PRODUCT THAT GAVE RISE TO THE CLAIM. THIS LIMITATION OF LIABILITY ALSO APPLIES TO MAINTENANCE AND SUPPORT SERVICES. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY TO FULFILL ITS ESSENTIAL PURPOSE.

INFRINGEMENT. If promptly notified in writing by Licensee of such action, Licensor agrees to defend or settle at its option, and hold Licensee harmless from, any action at law or in equity finally adjudicated against Licensee arising from a claim that Licensee's use of the Licensed Products or documentation under this Agreement infringes any United States patent, copyright, or proprietary right; provided that Licensee shall give Licensor the right to control and direct the investigation, preparation, defense, and settlement of each such claim and Licensee shall fully cooperate with Licensor or its designee in connection with the foregoing; further provided, Licensor may, immediately upon notice of such an infringement claim, replace all or part of the Licensed Products to make it non infringing or Licensor may obtain the right for Licensee to use the allegedly infringing Licensed Products. The foregoing is Licensee's sole and exclusive remedy for any claim of infringement of intellectual property rights against Licensee's use of the Licensed Products.

ANTI-PIRACY. Software piracy is illegal and Ariva Group and its affiliates reserve the right to take all legal steps to stop piracy of their products and pursue those who take part in these activities. As part of these anti-piracy efforts, the Software may contain security mechanisms intended to detect the installation or use of illegal copies of the Software, and collect and transmit data relating to those illegal copies, and installation or use thereof, to Ariva Group and/or its affiliates, and/or their agents, contractors, suppliers, successors and assigns. By installing or using the Software, Customer agrees to such detection, collection and transmission, as well as to the use of such data, for the purposes of identifying illegal usage and protecting and enforcing intellectual property rights.

TERMS & TERMINATIONS. Either party may terminate the license for the Software upon written notice to the other party, if the other party violates any provision of these terms & conditions, or if the other party terminates or suspends its business, becomes subject to any bankruptcy or insolvency proceeding under federal or state statues, becomes insolvent or subject to direct control by a trustee, receiver or similar authority, or has wound up or liquidated its business. All amounts owing to Ariva Group accelerate and become immediately due and payable in full. Within then (10) days of termination, Customer shall completely remove all portions of the Software from any updated work and permanently remove and delete any and all complete or partial copies of the Software from all systems under Customer's control. Also within ten (10) days of termination, Customer shall return to Ariva Group all copies of the Software, all related Documentation and all other related Confidential Information, together with a certificate, signed by an officer of Customer, to the effect that all copies, complete and partial, or all affected Software have been returned to Ariva Group and/or destroyed and no copy of any affected Software, or any portion thereof, remaining in the Customer's possession or under its control. The payment, ownership, confidentiality and compliance with laws provisions survive termination.

COMPLIANCE WITH LAWS. Customer shall comply with all applicable laws and regulations. Customer shall not export, directly or indirectly, any Software without first obtaining any licenses required by the United States Department of Commerce or any other agency of the United States Government. Customer shall indemnify Ariva Group for any liability or claim which may arise from Customer's direct or indirect export of any Software.

USE OF LICENSEE'S NAME. Licensee agrees that, unless notified by Customer in writing within seven days of the acceptance of this license, Ariva Group may freely use Licensee's name without charge and may disclose that Licensee is a licensee of Ariva Group products or services in Ariva Group advertising, press, promotion and similar public disclosures with respect to the Software and professional services; provided, however, that such advertising, promotion, or similar public disclosures shall not indicate that Licensee in any way endorses any Ariva Group products, without prior written permission from Licensee. Licensee also agrees that Ariva Group may issue from time to time press releases regarding the relationship; provided, that the parties mutually agree to the content and timing of such release which approval shall not be unreasonably withheld or delayed.

SUCCESSORS AND ASSIGNS. The Agreement shall be binding on and inure to the benefit of the parties, permitted assigns and legal representatives. Licensee may not assign this Agreement without Ariva Group's prior written consent.

GOVERNING LAW. These terms & conditions shall be governed and interpreted in accordance with the laws of the State of California, USA, without application of its conflicts of law principles and without application of the United Nations Convention on the International Sale of Goods.

ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and understanding of the parties with respect to their subject matter and may be modified or amended, or any provision thereof waived, only in a writing signed on behalf of the party against which such modification, amendment or waiver is asserted.

DISPUTE RESOLUTION. Any dispute arising under or related to these terms & conditions will be referred to senior management of the parties for resolution and if not so resolved within thirty (30) days from written notice of the dispute given by one party to the other (or such longer period as may be mutually agreed in writing), the dispute will be resolved by binding arbitration administered by the Centre for International Dispute Resolution in accordance with its International Arbitration Rules in proceedings conducted in the English language in San Francisco, California USA. Judgment on the arbitration award may be entered in any court having jurisdiction. Notwithstanding, either party may at any time apply for injunctive relief in any court having jurisdiction.

PURCHASE ORDERS. All purchase orders are subject to acceptance by Ariva Group, in its sole discretion. Nothing contained in any purchase order, purchase order acknowledgment, or invoice shall in any way modify such terms or add any additional terms or conditions.

COUNTERPARTS. This Agreement may be executed in two counterparts, each of which shall be deemed an original and together which shall constitute one and the same instrument. A validly executed counterpart that is delivered by one party to the other via electronic transmission (a “Counterpart Image”) shall be valid and binding to the same extent as one delivered physically, provided that the valid signature is clearly visible in the Counterpart Image. If a party delivers a Counterpart Image in place of an originally-executed counterpart, such party shall retain the originally-executed counterpart in its files for at least the duration of these Terms of Sale.