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2. DEFINITIONS
(a) "User" means (i) if the Licensee is an individual, solely Licensee; (ii) if the Licensee is a legal entity, any employee, independent contractor, and other temporary worker authorized by the Licensee to use the Software while performing duties within the scope of their employment or assignment.
(b) "Software" means a software program known as SubGit , developed by TMate Software s.r.o. and distributed via one of its websites, in binary form, including its documentation, any third-party software programs that are owned and licensed by parties other than the Licensor, and that either integrated with or made part of SubGit the software program, developed by TMate Software s.r.o. (collectively, "Third-Party Software").
(c) "Import" means a one-time conversion of a SVN project to Git repository, with the help of Software 'configure' and 'import' commands.
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(a) The Software is the property of the Licensor or its suppliers. The Software is licensed, not sold. Title and copyrights to the Software, in whole, and in part and all copies thereof, and all modifications, enhancements, derivatives and other alterations of the Software regardless of who made any modifications, if any, are, and will remain, the sole and exclusive property of the Licensor and its suppliers.
(b) The Software is protected by United States Copyright Law and International Treaty provisions. Further, the structure, organization, and code embodied in the Software are the valuable and confidential trade secrets of the Licensor and its suppliers and are protected by intellectual property laws and treaties. The Licensee agrees to abide by the copyright law and all other applicable laws of the United States including, but not limited to, export control laws.
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Subject to the terms, conditions, and limitations set forth in this Agreement, the Licensor hereby grants to the Licensee a limited, non-exclusive, non-transferable license to use the Software as follows:
(a) The Licensee may:
(i) install, register, and use the Software on multiple computers, operating systems, and accounts;
(ii) make general commercial use of the registered Software OR use unregistered Software for evaluation purposes;
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(iv) make back-up copies of the Software solely for archival purposes;
(b) The Licensee may not:
(i) sell, redistribute, encumber, give, lend, rent, lease, sublicense, or otherwise transfer the Software, or any portions of the Software, to anyone without the prior written consent of the Licensor;
(ii) reverse engineer, decompile, disassemble, modify, translate, make any attempt to discover the source code of the Software, or create derivative works from the Software;
(iii) use the Software as a part of commercial or otherwise business-essential services provided to the third parties;
(iv) make use of the unregistered Software for purposes other than evaluation or other than import as defined in 2(c) of this Agreement.
5. THIRD-PARTY SOFTWARE LICENSE
Third-Party Software is licensed to Licensee in accordance with a separate license agreement(s) agreements included with the Software, and is subject to any restrictions set forth herein. The Licensee agrees to abide by the terms and conditions of the Third-Party Software license agreements. The Licensor will have no responsibility with respect to any Third-Party Software, and the Licensee will look solely to the licensor(s) licensors of the Third-Party Software for any remedy. The Licensor claims no right in the Third-Party Software, and the same is owned exclusively by the licensor(s) licensors of the Third-Party Software. LICENSOR PROVIDES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, WITH RESPECT TO ANY THIRD_PARTY SOFTWARE.
6. PATENT AND COPYRIGHT INDEMNITY
(a) The Licensor will defend and indemnify the Licensee for all costs (including reasonable attorneys fees) arising from a claim that the Software furnished and used within the scope of this Agreement infringes a U.S. copyright or U.S. patent provided that: (i) the Licensee notify notifies the Licensor in writing within 30 days of the claim; (ii) the Licensor has sole control of the defense and all related settlement negotiations, and (iii) the Licensee provide provides the Licensor with the assistance, information, and authority necessary to perform the above.
(b) The Licensor will have no liability for any claim of infringement based on (i) code contained within the Software which was not created by the Licensor; (ii) use of a superseded or altered release of the Software, except for such alteration(s) or modification(s) alterations or modifications which have been made by the Licensor or under the Licensor's direction, if such infringement would have been avoided by the use of a current, unaltered release of the Software that the Licensor provides to the Licensee, or (iii) the combination, operation, or use of any Software furnished under this Agreement with programs or data not furnished by the Licensor if such infringement would have been avoided by the use of the Software without such programs or data.
(c) In the event the Software is held or believed by the Licensor to infringe, or the Licensee's use of the Software is enjoined, the Licensor will have the option, at its expense, to (i) modify the Software to cause it to become non-infringing; (ii) obtain for the Licensee a license to continue using the Software; (iii) substitute the Software with other Software reasonably suitable to the Licensee, or (iv) if none of the foregoing remedies are commercially feasible, terminate the license for the infringing Software and refund any license fees paid for the Software, prorated over a three-year term from the effective date of the Agreement. This Section states the Licensor's entire liability for infringement.
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THE SOFTWARE IS PROVIDED TO LICENSEE "AS IS" AND WITHOUT WARRANTIES. THE LICENSOR MAKES NO WARRANTY AS TO ITS USE OR PERFORMANCE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSOR, AND ITS SUPPLIERS AND RESELLERS, DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, WITH REGARD TO THE SOFTWARE, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES. THIS LIMITED WARRANTY GIVES THE LICENSEE SPECIFIC LEGAL RIGHTS. THE LICENSEE MAY HAVE OTHERS, WHICH VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION.
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(a) REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL THE LICENSOR OR ITS SUPPLIERS OR RESELLERS BE LIABLE TO THE LICENSEE UNDER ANY THEORY FOR ANY DAMAGES SUFFERED BY THE LICENSEE OR ANY USER OF THE SOFTWARE, OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR SIMILAR DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF THE LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
(b) IN ANY CASE, THE LICENSOR'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY THE LICENSEE FOR THE SOFTWARE. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY TO THE LICENSEE.
9. U.S. GOVERNMENT RESTRICTED RIGHTS
The Software has been developed entirely at private expense and is provided as "Commercial Computer Software" or "restricted computer software". Use, duplication , or disclosure by the United States Government is subject to restrictions as set forth in subparagraph (c) (1) (ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c) (1) and (2) of the Commercial Computer Software-Restricted Rights clause at 48 CFR 52.227-19, and successor thereof, as applicable.
10. TERMINATION
If the Licensee fails to comply with the terms and conditions of this Agreement, this Agreement and the Licensee's right and license to use the Software will terminate immediately. The Licensee may terminate this Agreement at any time by notifying the Licensor. Upon the termination of this Agreement, the Licensee must delete the Software from its computers and archives. THE LICENSEE AGREES THAT UPON TERMINATION OF THIS AGREEMENT FOR ANY REASON, THE LICENSOR MAY TAKE ACTIONS SO THAT THE SOFTWARE NO LONGER OPERATES.
11. MARKETING
The Licensee agree agrees to be identified as a customer of the Licensor and that the Licensor may refer to the Licensee by name, trade name, and trademark, if applicable, and may briefly describe the Licensee's business in the Licensor's marketing materials, on at the Licensor's website, in public or legal documents. The Licensee hereby grants the Licensor a license to use the Licensee's name and any of the Licensee's trade names and trademarks solely pursuant to this marketing section.
12. GENERAL
(a) The Licensor reserves the right at any time to cease the support of the Software and to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability, or other characteristics of the Software.
(b) This Agreement, including the Third-Party Software license agreements, constitutes the entire agreement between the parties concerning the Licensee's use of the Software , and supersedes any and all prior or contemporaneous oral or written representations, communications, or advertising with respect to the Software. No purchase order, other ordering document documents, or any hand written handwritten or typewritten text which purports to modify or supplement the printed text of this Agreement or any schedule will add to or vary the terms of this Agreement unless signed by both the Licensee and the Licensor.
(c) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach. The provisions of this Agreement which that require or contemplate performance after the expiration or termination of this Agreement will be enforceable notwithstanding said expiration or termination.
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(e) Titles are inserted for convenience only and will not affect in any way the meaning or interpretation of this Agreement. If any provision of this Agreement is held invalid, the remainder of this Agreement will continue in full force and effect. Either the Licensor or the Licensee may assign this Agreement in the case of a merger or sale of substantially all of its respective assets to another entity. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and assigns.
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