HSMAG Super Magnets End-User License Agreement (EULA)
This User Agreement (the “Agreement”) is a legal agreement between you and MagnetN Magnets Inc. (“SUPERMAG Magnets”) respecting your use of the accompanying software provided to you by SUPERMAG Magnets. BY INDICATING YOUR ACCEPTANCE BY CLICKING ON THE APPROPRIATE BUTTON BELOW, OR BY OTHERWISE USING THE SOFTWARE, YOU ARE REPRESENTING THAT YOU HAVE READ AND UNDERSTAND, AND AGREE TO BE BOUND BY, THE TERMS OF THIS AGREEMENT. If you have any questions or concerns about the terms of this agreement, please contact us at email@example.com.
1.1. “Instance” means a copy of the Software that a User is, or multiple Users are, authorized to use, in accordance with the terms set forth in this Agreement and on the documentation accompanying the Key.
1.2. “Key” means a license key provided to you by SUPERMAG Magnets in relation to an Instance that allows a User to use the Software.
1.3. “Software” means all components of this software, dongles, USB thumb drives, media, printed materials, and “online” or electronic documentation and any copies or modifications thereto or thereof, in whole or in part, provided to you by SUPERMAG Magnets.
1.4. “User” means a user of the Software using the Software in the regular course of their business or for personal use, in accordance with the Software user documentation, and not for the purposes of development for commercial resale or further distribution of the Software, including without limitation by resale or sublicensing, or for the purposes of providing services to third parties using the Software.
1.5. “You” or “you” means the user of the Software, including the individual using the Software and the corporation or other legal entity, if any, that employs such individual or to which such individual is under contract.
2. License Grant
2.1. SUPERMAG Magnets hereby grants to you a personal, non-exclusive, revocable, non-transferable license to use the Software internally, solely as a User for the purposes and in accordance with the terms set forth in this Agreement and the user documentation accompanying the Software.
2.2. You shall not:
(a) copy, reproduce, modify, enhance, improve, alter, reverse engineer, disassemble, deconstruct, translate, decrypt, reverse compile or convert into human readable form the Software or any part thereof;
(b) distribute, assign, license, sublicense, lease, rent, transfer, sell or otherwise provide access to the Software, in whole or in part, to any third party on a temporary or permanent basis;
(c) remove, deface, cover or otherwise obscure any proprietary rights notice or identification on the Software (including without limitation any copyright notice);
(d) copy any written materials accompanying any portion of the Software unless specifically authorized in writing to do so by MagnetN Magnets;
(e) use the Software in any unlawful manner; or
(f) authorize, permit or otherwise acquiesce in any other party engaging in any of the activities set forth in (a) – (e) above, or attempting to do so.
For the purposes of this provision “copy or reproduce” shall not include copying of statements and instructions of the Software during program execution when used in accordance with and for the purposes described in the user documentation or in the course of making backups of the computer or system on which the Software is installed, in accordance with industry standard business practices.
2.3. You acknowledge that use of the Software may result in the collection of information obtained from third parties, that such third party information is not under the control of SUPERMAG Magnets, and SUPERMAG Magnets is not responsible or in any way liable for third party information, including without limitation their accuracy, reliability, copyright compliance, legality, decency, or any other aspect of their content. It is solely your responsibility to evaluate the accuracy, completeness or usefulness of any such third party information. SUPERMAG Magnets has no special relationship with or fiduciary duty to you, and you acknowledge that SUPERMAG Magnets has no control over, and no duty to take any action regarding any of your acts or omissions, including without limitation: (a) what material you access through the Software, (b) how you may interpret or use materials accessed through the Software, or (c) what actions you may take as a result of having been exposed to information obtained through the Software. You therefore agree to indemnify, defend and hold MagnetN Magnets harmless from any and all claims that arise as a result of your use of the Software, including without limitation claims arising from your non-compliance with applicable privacy or other legislation, and claims by third parties relating to their rights in materials accessed by you.
2.4. You specifically acknowledge that the Software is not developed, or licensed for use in any nuclear, aviation, mass transit, or medical application or in any other inherently dangerous, time-sensitive or mission critical applications. You agree that MagnetN Magnets shall not be liable for any claims or damages arising from such use if you use the Software for such applications. You agree to hold SUPERMAG Magnets harmless from any claims for losses, costs, damages, or liability arising out of or in connection with the use of the Software for such applications.
2.5. You hereby represent and warrant that (i) you are not located in a 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; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
2.6. You must ensure that all your employees and contractors that have access to the Software comply with the terms and conditions of this Agreement, and you shall be vicariously liable for the acts or omissions of such employees and contractors with respect to the Software. You do not have the right to obtain or use source code of the Software.
2.7. SUPERMAG Magnets may impose certain restrictions on your use of the Software, such as restrictions on site, equipment and usage, by providing you with such restrictions in writing at the time that your Key is provided. Such restrictions are binding upon you, and are hereby incorporated herein by this reference.
2.8. This Agreement may be amended or added to from time to time by agreement in writing between you and SUPERMAG Magnets, and all software contained in such written amendments or additions shall be considered Software under this Agreement, subject to all terms, conditions and restrictions contained herein. For greater certainty, all updates and upgrades to the Software that are provided to you by MagnetN Magnets pursuant to a separate support and maintenance agreement shall also be considered Software hereunder.
2.9. In order to use the Software, you must:
(a) provide and maintain with SUPERMAG Magnets up-to-date, complete and accurate registration information, including your first and last name, your valid mailing address, your phone number and your valid email address; and
(b) be at all times in compliance with the terms and conditions of this Agreement and applicable law.
2.10. SUPERMAG Magnets reserves the right to change, suspend, end-of-life or otherwise discontinue any version of the Software at any time, including the availability of any feature or content, or any promotion offered by SUPERMAG Magnets. SUPERMAG Magnets further reserves the right to change its standard pricing for its software, including the Software at any time.
3. Fees and Taxes
3.1. Your use of the Software is conditional upon your payment to SUPERMAG Magnets of all applicable license fees for the Software. If you fail to pay any amount due under this Agreement within ten (10) days of such payment becoming due and payable, in addition to any other rights and remedies available to SUPERMAG Magnets, SUPERMAG Magnets shall be entitled to charge interest on all outstanding amounts at the lesser of 1.5% per month or the maximum rate permitted by law, such interest commencing as of the due date for such payment, and SUPERMAG Magnets shall also be entitled to terminate your license to use the Software. You shall also be responsible for paying for all reasonable fees and costs incurred by SUPERMAG Magnets, including legal fees, in collecting any overdue amounts or enforcing any provision of this Agreement.
3.2. You are responsible for, and shall pay all taxes relating to this Agreement, excluding any taxes based on the net income of SUPERMAG Magnets. Unless otherwise indicated, all amounts payable by you under this Agreement are exclusive of any tax, duty, levy, or similar government charge that may be assessed by any jurisdiction, whether based on gross revenue, the delivery, possession or use of the Software, the execution of this Agreement or otherwise. If you are required to withhold any taxes from payments owed under this Agreement, the amount of payment due shall automatically be increased to offset such tax, so that the amount actually remitted to SUPERMAG Magnets shall equal the amount invoiced or otherwise due.
4.1. This license does not imply any rights to future upgrades or updates of the Software. However, if SUPERMAG Magnets does provide you with any upgrades or updates to the Software, such updates or upgrades shall be subject to the terms and conditions of this Agreement or such agreement, if any, which accompanies such upgrades or updates. For greater certainty, you must specifically purchase support from SUPERMAG Magnets in order to obtain upgrades or updates to the Software or any support for the Software (telephonic or otherwise) beyond SUPERMAG Magnets’s warranty obligations set forth herein, and all such support shall be subject to SUPERMAG Magnets’s Support and Maintenance Terms and Conditions (see below).
4.2. SUPERMAG Magnets shall not be responsible for the installation or integration of the Software with any hardware or software whatsoever, whether belonging to you or any third party. In no event shall SUPERMAG Magnets be obligated to customize or otherwise modify the Software to meet your requirements or those of any third party.
5. Intellectual Property Rights
5.1. You are responsible for complying with all applicable intellectual property laws in your use of the Software, and agree to indemnify, defend and hold SUPERMAG Magnets harmless from any and all claims that arise as a result of your non-compliance with intellectual property laws and/or your infringement of any intellectual property rights.
5.2. You acknowledge that the Software is owned by SUPERMAG Magnets, who retains all right, title and interest therein, and is protected by Canadian, U.S. and international copyright laws. In addition, other intellectual property laws (including patent laws) and treaties may protect the Software. It is therefore your responsibility to fully comply with such laws in using and handling the Software. Nothing herein shall be construed as constituting a sale of the Software or any portion thereof to you.
5.3. You do not acquire any intellectual property or other proprietary rights under this Agreement, including without limitation any right, title or interest in and to patents, copyrights, trade-marks, industrial designs, confidential information, or trade secrets, whether registered or unregistered, relating to the Software or any part thereof. Your only rights to the Software and any part thereof shall be those rights expressly licensed or granted to you under this Agreement. Any rights not expressly granted under this Agreement are reserved.
6.1. The Software is provided to you “AS IS”, without any warranty whatsoever. Where the media on which the Software is provided is defective, or you are unable to download the Software in accordance with directions provided by SUPERMAG Magnets, and you notify SUPERMAG Magnets of such issues within ten (10) days of the delivery of the Software to you, SUPERMAG Magnets will provide you with another copy of the Software at no charge to you.
6.2. THE WARRANTY SET FORTH IN THIS SECTION 6 IS THE EXCLUSIVE WARRANTY MADE BY SUPERMAG Magnets TO YOU, AND IS YOUR SOLE AND EXCLUSIVE REMEDY RESPECTING ANY DEFECTS, NON-CONFORMITIES OR PROBLEMS WITH THE SOFTWARE. SUPERMAG Magnets DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, TITLE, NON-INFRINGEMENT, OR ANY OTHER WARRANTY OR CONDITION ARISING BY STATUTE, CUSTOM OR USAGE OF TRADE RELATED TO THE SOFTWARE PROVIDED HEREUNDER. MagnetN Magnets SPECIFICALLY DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. Some jurisdictions may not allow the exclusion or limitation of implied warranties and conditions. To the extent permitted by law, any implied warranties or conditions relating to the Software to the extent that they cannot be excluded as set out above are limited to thirty (30) days from the date that the Software is delivered to you.
6.3. To the limited extent that SUPERMAG Magnets is not able to disclaim any warranty respecting the Software, any implied or imposed warranty respecting the Software shall nevertheless not apply to defects, non-conformities or problems resulting from: (a) improper or inadequate maintenance or installation of the Software, (b) use of the Software in combination with software, interfaces, or other materials that are not supplied or specifically authorized by SUPERMAG Magnets, (c) unauthorized or improper use or modification of the Software, including use that is not contemplated under the terms of this Agreement or the user documentation accompanying the Software, (d) abuse, negligence, accident, or other damage from external sources, (e) improper preparation of your facilities for Software installation and use, or (f) unauthorized maintenance or repair of the Software.
7. Limitation of Liability
7.1. In no event will SUPERMAG Magnets be liable under this Agreement for any damages other than your direct damages to the extent arising from SUPERMAG Magnets’s gross negligence or willful misconduct, and in no event shall SUPERMAG Magnets’s aggregate liability exceed the amounts paid by you to SUPERMAG Magnets for the Software.
7.2. EXCEPT FOR THE LIMITED DIRECT DAMAGES SPECIFIED IN THIS SECTION 10, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SUPERMAG Magnets BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, DATA, USE OR OPPORTUNITY, WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN, AND WHETHER OR NOT SUPERMAG Magnets WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ADDITIONALLY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, MagnetN Magnets SHALL ONLY BE LIABLE TO YOU AS EXPRESSLY SET FORTH IN THIS AGREEMENT, AND SHALL HAVE NO OTHER OBLIGATION, DUTY OR LIABILITY TO YOU.
7.3. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS AGREEMENT SHALL APPLY IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION, DEMAND OR ACTION BY YOU, INCLUDING BUT NOT LIMITED TO BREACH OF CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL THEORY.
8.1. You must defend, indemnify and hold SUPERMAG Magnets, its successors, assigns, officers, directors, employees and agents harmless with respect to amounts required to be paid to a third party, and all costs, expenses, and liability, including without limitation attorney’s fees and court costs, arising from: (a) a claim of infringement of any intellectual property or proprietary right arising from your combination or use of the Software with equipment, software, interfaces, or other materials that are not supplied or specifically authorized by SUPERMAG Magnets, (b) a claim respecting any injury, death or damages in connection with your use or misuse of the Software, (c) any third party claim arising from your use of the Software or any portion thereof (other than claims that arise solely from the use of the Software strictly in accordance with this Agreement and the user documentation specifically pertaining to the use of the Software), and (d) any third party claim arising out of your material breach of this Agreement. SUPERMAG Magnets reserves the right, at your expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with SUPERMAG Magnets, at your expense, in asserting any available defences.
9.1. Your license to use the Software in accordance with Section 2 herein shall continue until and unless this Agreement is terminated pursuant to this Section 9.
9.2. You may terminate this Agreement at any time upon notice to SUPERMAG Magnets. Upon any termination of this Agreement for any reason (whether by you or by SUPERMAG Magnets), you must cease all use of the Software and destroy and/or permanently delete all copies of the Software in your possession.
9.3. SUPERMAG Magnets may terminate this Agreement or any and/or all Keys immediately upon notice to you if: (a) you materially breach, fail to comply with, or otherwise contravene a term or condition of this Agreement, (b) you materially breach any other agreement that you may have with SUPERMAG Magnets, or (c) you become involved in any legal proceeding concerning your solvency, commence liquidation proceedings, have a receiver or administrator appointed of any of your assets, cease or threaten to cease operations, or otherwise have a serious and reasonable doubt arise respecting your solvency. Additionally, SUPERMAG Magnets may terminate this Agreement if required to do so by any law, regulation, requirement or ruling issued in any form whatsoever by any judicial or other governmental body.
9.4. Upon termination of any individual Key, you will cease all use of the Instance associated with such Key. Upon expiration or termination of this Agreement, you will cease all use of the Software and destroy and/or permanently delete all copies of the Software in your possession.
9.5. SUPERMAG Magnets reserves the right to investigate suspected violations of this Agreement. You hereby authorize SUPERMAG Magnets to cooperate with law enforcement authorities in the investigation of suspected criminal violations.
9.6. The above-described actions are not SUPERMAG Magnets’s exclusive remedies and SUPERMAG Magnets may take any other legal, equitable or technical action it deems appropriate in the circumstances. SUPERMAG Magnets will not be liable for any damage caused by the termination of this Agreement.
10. Injunctive Relief
10.1. You agree that SUPERMAG Magnets will have the right to seek, in addition to any of its other rights and remedies under law and equity, injunctive relief for any violation of these terms and conditions without posting bond or by posting bond at the lowest amount required by law, as the Software is of significant commercial value to SUPERMAG Magnets and inappropriate use of the Software could cause SUPERMAG Magnets irreparable harm. Should you become aware of any activities by any third party contrary to these terms and conditions, you will promptly notify SUPERMAG Magnets and shall reasonably assist SUPERMAG Magnets to enforce its rights against such third party.
11. Compliance with Laws/Export
11.1. In using the Software, you will observe and comply with all applicable laws, ordinances, codes and regulations of governmental agencies, including federal, provincial, state, municipal and local governing bodies, of any country having jurisdiction over the Software or any part thereof.
11.2. You will not import, export, or re-export the Software except in compliance with all applicable laws, which shall include refraining from exporting to any country that is on any export control list unless you have a valid and applicable permit to do so. You agree to indemnify SUPERMAG Magnets from any loss, claims, liability or damages arising out of your failure to comply with such laws.
12. General Provisions
12.1. This Agreement constitutes the entire agreement between the parties and supersedes all previous agreements and understandings relating to the subject matter hereof. This Agreement may not be altered, amended, or modified except by a written instrument signed by the duly authorized representatives of both parties. Your additional or different terms and conditions, whether on your purchase order or otherwise, shall not apply.
12.2. This Agreement is governed by the laws of the Province of zhejiang, China, without regard to conflict of laws provisions, and you agree to submit to the exclusive jurisdiction of the courts located in the Province of zhejiang, Canada. The parties expressly agree that neither the United Nations Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act shall apply to this Agreement or to any contracts relating to goods or services obtained through this site.
12.3. Neither party shall be deemed to be in default of this Agreement for failure to fulfill its obligations due to causes beyond its reasonable control. This provision shall not be construed as excusing any payment obligations of either party hereunder.
12.4. No waiver by either party of a breach or omission by the other party under this Agreement shall be binding on the waiving party unless it is expressly made in writing and signed by the waiving party. Any waiver by a party of a particular breach or omission by the other party shall not affect or impair the rights of the waiving party in respect of any subsequent breach or omission of the same or different kind.
12.5. Any notices, reports or other communications required or permitted to be given under this Agreement shall be in writing and shall be delivered by hand or sent by registered mail, courier or facsimile, delivered in electronic form in accordance with Section 12.8 herein.
12.6. Neither party shall assign or transfer this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld, conditioned or delayed. This Agreement shall be binding upon the parties hereto and their respective lawful successors and permitted assigns.
12.7. Any provision of this Agreement which expressly states that it is to continue in effect after termination or expiration of this Agreement, or which by its nature would survive the termination or expiration of this Agreement, shall do so.
12.8. You acknowledge and agree that by clicking on the “I AGREE” button (or similar buttons or links as may be designated by SUPERMAG Magnets to show your acceptance of this Agreement and/or your agreement to download and install the Software), you are entering into a legally binding contract. You hereby agree to the use of electronic communication in order to enter into contracts, place orders and create other records and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Software. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable mandatory law. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
12.9. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement shall continue in full force and effect.
12.10. It is the express will of the parties that this Agreement and all related documents have been drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
12.11. If you are residing in a jurisdiction which restricts the use of internet-based applications according to age, or which restricts the ability to enter into agreements such as this Agreement according to age and you are under such a jurisdiction and under such age limit, you may not enter into this Agreement and download, install or use the Software. Furthermore, if you are residing in a jurisdiction where it is forbidden by law to offer or use software for internet communication, you may not enter into this Agreement and you may not download, install or use the Software. By entering into this Agreement you explicitly state that you have verified in your own jurisdiction if your use of the Software is allowed.
12.12. SUPERMAG Magnets reserves the right to make announcements, press releases, publications, presentations and other public statements that reference your identity as a customer, without your prior written approval, provided that SUPERMAG Magnets does not disclose your confidential information in the course of such publicity or misrepresent your relationship with SUPERMAG Magnets.
13.1. If you have any questions regarding this Agreement, or if you have any questions, complaints, claims or other legal concerns relating to MagnetN Magnets or its business, please contact SUPERMAG Magnets at:
SUPERMAG Magnets Inc. / Ningbo HangSeng Magnetech Co., Ltd
Add: Room 1204, GuoHua Buliding, Yinzhou Center Area, Ningbo City, Contact Person: Jacky Zu
Mobile Phone: 86-159 9020 5383
Address: No.8 East Section Yinxian Road, Ningbo, Zhejiang, China
Support and Maintenance Terms and Conditions
The following document describes the terms and conditions under which you will receive support and maintenance services from MagnetN Magnets Inc. (“SUPERMAG Magnets”) in relation to software purchased by you from SUPERMAG Magnets and subject to SUPERMAG Magnets’s User Agreement.
1.1 “Software” means the software licensed to you by SUPERMAG Magnets pursuant to the terms and conditions of the User Agreement.
1.2 “Term” means: (a) the initial thirty (30) day period after your purchase of the Software, and (b) the period for which you have purchased support and/or maintenance services from SUPERMAG Magnets, if any.
1.3 “Updates” means software releases from SUPERMAG Magnets, identified by SUPERMAG Magnets as updates, which supplement a version of Software that you have obtained from SUPERMAG Magnets and that may correct defects, bugs or programming errors in such version of Software or provide minor increases in functionality for such version of Software.
1.4 “Upgrades” means software releases from SUPERMAG Magnets, identified by MagnetN Magnets as upgrades, which replace a version of Software that you have obtained from SUPERMAG Magnets with a newer version of such Software.
1.5 “User Agreement” means the user agreement under which SUPERMAG Magnets provided the software to you, either by providing you with the user agreement or by providing you with access to the user agreement
2. SUPPORT AND MAINTENANCE SERVICES
2.1 During the Term, subject to the payment of all applicable fees and subject to the restrictions set forth herein, SUPERMAG Magnets will provide support and/or maintenance services, as agreed upon by the parties on SUPERMAG Magnets’s purchase form. Support and maintenance services consist of the following:
(a) Advice provided telephonically and by e-mail on the use and maintenance of the Software where such Software is not operating in accordance with its specifications;
(b) Instruction provided telephonically and by e-mail on the use and maintenance of the Software where such instructions are not included in the documentation accompanying the Software; and
(c) Guidance on software failure diagnoses and suggestions for Software error correction provided telephonically and by e-mail; and
(d) Commercially reasonable efforts to correct any defects in the Software which prevent the Software from operating in accordance with its specifications (including the provision of Updates or Upgrades where necessary to correct a defect in the Software which prevents the Software from operating in accordance with its specifications).
Support services may take the form of specific bug fixes, special releases to remedy defects in the Software or, where bugs or defects are not critical (as determined in SUPERMAG Magnets’s sole discretion) inclusion of fixes in a future scheduled release of the Software.
(a) the provision of Updates to the Software including, without limitation, enhancements to the Software.
(b) where specifically agreed upon by you and SUPERMAG Magnets in your support and maintenance purchase form, the provision of Upgrades to the Software.
2.2 SUPERMAG Magnets’s obligations to perform the support and maintenance services hereunder, as applicable, will apply only to the Software provided to you by SUPERMAG Magnets and not to peripheral data or any third party hardware or software. Support and maintenance services shall be available between 8:30 a.m. to 5:30 p.m., Eastern Time, Monday to Friday, excluding China statutory or national holidays (each a “Business Day”).
2.3 The following services (the “Excluded Services”) are specifically not included in the support and maintenance services:
(a) advice or instructions related to general usage of the Software;
(b) installation of the Software;
(c) on-site support related to the Software;
(d) corrections of defects found by SUPERMAG Magnets to be:
(i) in other than a current, unaltered release of the Software provided free of charge to you;
(ii) caused by your negligence or that of a third party (other than a third party working on SUPERMAG Magnets’s behalf), or modifications made to the Software by you or by any third party other than a third party working on SUPERMAG Magnets’s behalf;
(iii) arise from use or interoperability of the Software in combination with hardware or software not specifically approved by SUPERMAG Magnets;
(iv) caused by normal wear and tear;
(v) caused by improper or unauthorized use of the Software;
(vi) caused by use of the Software in a manner contrary to, or otherwise not in accordance with, documentation, guidelines or instructions provided by SUPERMAG Magnets in relation to the Software;
(vii) due to external causes such as, but not limited to, power failure or electrical power surges; or
(viii) defects which do not prevent the Software from operating in accordance with its specifications.
In the event that you wish SUPERMAG Magnets to perform any Excluded Service, such Excluded Service must be pursuant to a separate, mutually agreed upon written agreement between you and SUPERMAG Magnets.
3.1 This Agreement may be terminated immediately upon notice for cause if:
a) either Party commits a material breach of this Agreement, or consistently fails to properly perform and observe its obligations under this Agreement, and fails to rectify the situation within thirty (30) calendar days of the non-breaching Party delivering notice of the breach or consistent failure to perform; or
b) either Party becomes insolvent, or a receiver or receiver-manager is appointed for any part of the property of such Party, or such Party makes an assignment, proposal or arrangement for the benefit of its creditors or such Party files an assignment in bankruptcy, or any proceedings under any bankruptcy or insolvency laws are commenced against such Party.
3.2 SUPERMAG Magnets shall have the right to terminate this Agreement immediately upon notice to you if your license to use the Software under the User Agreement is terminated for any reason.
3.3 Each Party shall have the right to terminate this Agreement for convenience upon ninety (90) days’ notice to the other Party.
3.4 If you have pre-paid for the support and maintenance services, you will not be entitled to any refund of any portion of such payment due to early termination, other than termination by SUPERMAG Magnets for convenience or termination by you due to SUPERMAG Magnets’s breach or insolvency. Termination of this Agreement shall not affect your payment obligation for any support and maintenance services rendered by SUPERMAG Magnets prior to the date of termination. SUPERMAG Magnets shall not be obligated to provide any support and maintenance services after the expiration or termination date, for whatever reason.
3.5 Any provision of this Agreement which expressly states that it is to continue in effect after termination or expiration of this Agreement, or which by its nature would survive the termination or expiration of this Agreement, shall do so.
4.1 You shall pay fees for the support and maintenance services in accordance with your purchase form with MagnetN Magnets. MagnetN Magnets shall invoice you for all fees in accordance with its normal billing practices, and you will pay all fees within thirty (30) days following receipt of invoice.
4.2 SUPERMAG Magnets reserves the right to change its fee schedule for support and maintenance services at any time, provided that the fee schedule in effect at the time of your purchase of support and maintenance services shall apply for the duration of your purchased Term. For greater certainty, for any renewal term of support and maintenance services, SUPERMAG Magnets has no obligation to offer you the same fees for support and maintenance services as you may previously have had.
4.3 You are responsible for, and shall pay all taxes relating to this Agreement, excluding any taxes based on the net income of SUPERMAG Magnets. Unless otherwise indicated, all amounts payable by you under this Agreement are exclusive of any tax, duty, levy, or similar government charge that may be assessed by any jurisdiction, whether based on gross revenue, the delivery, possession or use of the Software or services hereunder, the execution of this Agreement or otherwise.
4.4 If you fail to pay any amount due under this Agreement within thirty (30) days of such payment becoming due and payable, in addition to any other rights and remedies available to SUPERMAG Magnets, SUPERMAG Magnets shall be entitled to charge interest on all outstanding amounts at the lesser of 18% per annum or the maximum rate permitted by law, such interest commencing as of the due date for such payment. You will also be responsible for paying for all reasonable fees and costs incurred by SUPERMAG Magnets, including legal fees, in collecting any overdue amounts or enforcing any provision of this Agreement.
4.5 All amounts herein are in United States dollars.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 You acknowledge and agree that SUPERMAG Magnets shall own all intellectual property rights (whether or not patentable or registrable under copyright, trade-mark or similar legislation or subject to analogous protection) in and to the Software, including any and all enhancements and modifications made to the Software, and all work conceived, created, invented produced, designed or reduced to practice by SUPERMAG Magnets and its personnel as a result of or with respect to any and all services provided to you pursuant to this Agreement (collectively, the “Modifications”). Your rights and obligations relating to the use of the Software shall be governed by the terms of the User Agreement regardless of whether you, your employees or contractors may have contributed to any Modifications in any way.
6. LIMITED WARRANTY AND LIMITATION OF LIABILITY
6.1 Limited Warranty. SUPERMAG Magnets warrants that all services provided in accordance with the terms of this Agreement shall be provided in a competent, professional manner by persons who are fully trained and qualified in respect of the Software. SUPERMAG Magnets does not represent or warrant that the services provided hereunder will be capable of achieving a particular result for your business, or that the operation of the Software will be error free or uninterrupted, or that all errors in the Software can be found or corrected, although SUPERMAG Magnets shall use commercially reasonable efforts to do so.
6.2 Limitation of Liability. OTHER THAN AS OTHERWISE PROVIDED IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SUPERMAG Magnets MAKES NO WARRANTY OR CONDITION, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SOFTWARE, MODIFICATIONS, THE SUPPORT SERVICES, THE MAINTENANCE SERVICES OR ANY OTHER SERVICES PROVIDED IN ACCORDANCE WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON DURATION OF AN IMPLIED WARRANTY, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SUPERMAG Magnets, ITS DISTRIBUTORS, AGENTS, DIRECTORS, OFFICERS, OR EMPLOYEES (COLLECTIVELY, “AGENTS”) SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. OTHER THAN AS SPECIFICALLY PROVIDED IN THE USER AGREEMENT, YOU ASSUME THE ENTIRE RISK AS TO THE USE AND PERFORMANCE OF THE SOFTWARE AND THE MODIFICATIONS IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE. IN NO EVENT SHALL SUPERMAG Magnets, ITS AGENTS OR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF THE SOFTWARE, THE MODIFICATIONS, THE SUPPORT SERVICES, THE MAINTENANCE SERVICES OR ANY OTHER SERVICES BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF REVENUES OR PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THE USE, INABILITY TO USE OR THE PERFORMANCE OR NON-PERFORMANCE OF, THE SOFTWARE, THE MODIFICATIONS, OR THE PROVISION OF THE SERVICES, EVEN IF SUPERMAG Magnets OR ITS AGENTS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR CLAIM, OR IT IS FORESEEABLE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL SUPERMAG Magnets’S MAXIMUM AGGREGATE LIABILITY TO YOU FOR DAMAGES EXCEED THE TOTAL AMOUNT PAID BY YOU FOR THE SERVICES PERFORMED BY SUPERMAG Magnets IN ACCORDANCE WITH THIS AGREEMENT WITHIN THE 12 MONTHS PRECEDING THE DATE ON WHICH THE CLAIM AROSE. THE LIMITATIONS OF THIS SECTION SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM.
7.1 Incorporation of Terms: All terms and conditions of the User Agreement shall, unless expressly in conflict with the terms and conditions of this Agreement, apply, and are hereby incorporated herein by this reference. Where such a conflict exists, the terms and conditions of this Agreement shall govern.