AudaxCeph End-User License Agreement
Software license terms and conditions

BY CLICKING THE “I ACCEPT” BOX / “AGREE” BUTTON OR INSTALLING THE LICENSED SOFTWARE FROM AUDAX D.O.O. (“Audax”) THE INDIVIDUAL, COMPANY, EDUCATIONAL OR NON-PROFIT INSTITUTION, GOVERNMENTAL AGENCY OR OTHER ENTITY (“CUSTOMER”) IS AGREEING TO BE BOUND BY THIS SOFTWARE LICENSE AGREEMENT (“AGREEMENT”). IF CUSTOMER DOES NOT AGREE TO THIS AGREEMENT, DO NOT INSTALL THE LICENSED SOFTWARE AND CUSTOMER CANNOT USE THE LICENSED SOFTWARE. THE “EFFECTIVE DATE” FOR THIS AGREEMENT IS THE DAY CUSTOMER CLICKS THE “I ACCEPT” BOX / “AGREE” BUTTON.

1. DEFINITIONS.

“Affiliates” or “Affiliate” means an entity, institution or organization that controls, is controlled by, or under common control with another entity, institution or organization, with at least majority ownership.

“Authorization Code” means, collectively, the specific code and authorization key for each copy of the Licensed Software issued by Audax to Customer.

“Authorized User” means an employee, contractor, registered student, research assistant, or agent of Customer authorized by Customer to use the Licensed Software.

“Authorized Reseller” means an authorized distributor, authorized reseller, or dealer of the Licensed Software.

“Concurrent Authorized Users” means Authorized Users who use the software at the same time in accordance with the terms of this Agreement.

“Confidential Information” has the meaning set forth in Section 7 of this Agreement.

“Customer Enhancements” means enhancements to AudaxCeph Special Files in which the copyright is owned by Customer and which are derivative works of the Audax Enhancements.

“Documentation” means the user’s manuals and supporting documentation, which may be in printed or electronic form, provided with the Licensed Software under this Agreement.

“License Fee” means the applicable fee for which Customer licenses the Licensed Software.

“License Period” means a perpetual term unless (a) terminated as provided below or (b) a specific fixed term is otherwise set forth in the License and Authorization Key document.

“Licensed Software” means the AudaxCeph software licensed by Customer under the terms of this Agreement, including any Updates and Upgrades thereto.

“Serial Number” means a set of unique characters associated with a specific copy of the Licensed Software issued by Audax to Customer (based on the specific configuration and release of the Licensed Software and the license type, license term, number of Concurrent Authorized Users, network, and/or operating system designated by Customer during the ordering process).

“AudaxCeph Enhancements” means AudaxCeph Special Files or enhancements to AudaxCeph Special Files in which the copyright is owned by Audax or distributed by Audax from time to time. Audax Enhancements are not defined as Software.

“AudaxCeph Special Files” are files with file extensions of .acx, .acxT, .acxs. These files may be modified and distributed by the Customer pursuant to the terms and conditions of this license.

“Third-Party Software” means certain software supplied by third parties that Audax provides access to as part of the Licensed Software.

“Update” means a revision to the Licensed Software or patch that improves the functionality of the Licensed Software, and may contain new features or enhancements, which is not an Upgrade.

“Upgrade” means a subsequent version of the Licensed Software that Audax designates as a new release and makes generally commercially available.

1. ACCEPTANCE OF TERMS

1.1 The services that Audax d.o.o. ("AudaxCeph") provide to you are subject to these Terms of Use ("Terms"). Please read the Terms carefully before you accept these Terms by: (a) placing an order through our web shop at https://www.cleverbridge.com  (b) use the www.audaxceph.com website ("Website") in any other manner. If you do not agree to all of these terms, please do not use this Website. If you are using this Website on behalf of your employer, you represent to AudaxCeph that you are authorized to accept these Terms on your employer’s behalf. If you are using or otherwise participating in AudaxCeph forums, you represent to AudaxCeph that you are at least 18 years of age.


1.2 AudaxCeph provides you access to different resources including the AudaxCeph online store, download area, communications forums ("Forums"), technical support and product information (collectively "Services"). These Terms will govern your use of any new features that augment or enhance the current Services, including the release of new AudaxCeph resources. In addition to the Terms and unless otherwise noted, the AudaxCeph License Agreement governs purchases you make through the Website, unless You have currently in effect a separate written purchase or license agreement with AudaxCeph for that product, in which case that separate agreement governs. If there is a conflict between: (a) these Terms, and (b) either the AudaxCeph License Agreement or other applicable purchase or license agreement, the latter prevail.

2. LICENSE AND AUTHORIZATION KEY DOCUMENT, LICENSE GRANTS, THIRD-PARTY RESTRICTIONS AND OWNERSHIP.

2.1 License and Authorization Key Document, and Affiliate Usage.
Audax shall issue Customer a License and Authorization Key document via e-mail, fax, postal mail, or courier (e.g., FedEx, UPS, DHL) that sets forth the specific Licensed Software and the specific number of Concurrent Authorized Users and Serial Number and Authorization Code associated with the Licensed Software (the “License and Authorization Key document”). The License and Authorization Key document is hereby incorporated by reference into this Agreement. Affiliates of Customer may use and access the Licensed Software in accordance with this Agreement. Customer is responsible for their compliance with this Agreement.

 

2.2 License.

(i) Network Concurrent Authorized-User License Grant — Licensed Software.
This Section 2.2(b)(i) applies only to a Customer whose License and Authorization Key document issued by Audax specifies the “License Type” as “Network”. Subject to the terms and conditions of this Agreement, Audax grants to Customer a non-assignable, non-transferable license, without the right to sublicense, to use the Licensed Software, in object-code form only, within a single local geographic location or physical site solely for Customer’s internal business, research, or educational purposes. Customer is authorized by Audax to install the Licensed Software on an unlimited number of machines within Customer's local area network and connect them on a concurrent license file.

(ii) Customer Obligations.
Customer is responsible for managing the usage of the Licensed Software to ensure that such usage does not exceed the specific number of Concurrent Authorized Users for which Customer has paid the applicable License Fee. Customer may add additional Concurrent Authorized Users to Customer’s account for the Licensed Software by placing an order with Audax or an Authorized Reseller.

 

2.3 Third-Party Software.
The Third-Party Software is subject to various other terms and conditions imposed by the licensors of such Third-Party Software. A list of the applicable Third-Party Software license terms is located on the AudaxCeph website located at http://www.audaxceph.com/axceph/3rd-party-software/ and provided by the Audax Command, copyright. Customer’s use of the Third-Party Software is subject to, and governed by, the specified Third-Party license terms, except that this Section 2.3 (Third-Party Software) and Section 4 (Limited Warranty) and Section 8 (Limitation on Liability) of this Agreement also govern Customer’s use of the Third-Party Software. Customer agrees to comply with such Third-Party license terms.

 

2.4 Serial Number and Authorization Code.
Audax shall issue to Customer a Serial Number and Authorization Code in the License and Authorization Key document for each copy of the Licensed Software. Customer is entirely responsible for any and all activities that occur under Customer’s account and all charges incurred from use of the copy of the Licensed Software assigned by Serial Number and Authorization Code to Customer (e.g., maintenance, support, or license or subscription fee charges). The Licensed Software shall be deemed accepted upon Audax’s delivery of the Authorization Code to Customer by Audax or an Authorized Reseller.

 

2.5 License to Audax Enhancements.
Subject to the terms and conditions of this Agreement, Audax grants to Customer a non-assignable, non-transferable, royalty-free license, without the right to sublicense, to use the Audax Enhancements solely with the Software for Customer’s internal business, research, or educational purposes. In addition, subject to the terms and conditions of this Agreement, Audax grants to Customer a non-assignable, non-transferable, royalty-free license to modify, reproduce, and distribute the Audax Enhancements to create Customer Enhancements solely for use with the Software. Customer may distribute the Customer Enhancements to third parties either at no charge or for a fee. THE AUDAX ENHANCEMENTS ARE PROVIDED TO CUSTOMER ON AN ‘AS IS’ AND ‘WHERE IS’ BASIS AND WITHOUT WARRANTY OF ANY TYPE OR KIND. AUDAX AND ITS THIRD PARTY LICENSORS HEREBY EXPRESSLY DISCLAIM AND EXCLUDE ALL WARRANTIES AND CONDITIONS, WHETHER STATUTORY, EXPRESS, IMPLIED OR OTHERWISE, WITH RESPECT TO THE AUDAX ENHANCEMENTS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.

 

2.6 License to Customer Enhancements.
If Customer submits Customer Enhancements to Audax or makes Customer Enhancements generally available for modification, use or distribution without charge by third parties, Customer grants to Audax a perpetual, irrevocable, transferable, royalty-free license to modify, reproduce, and distribute the Customer Enhancements, with the right to sublicense through multiple tiers of distribution. THE CUSTOMER ENHANCEMENTS ARE PROVIDED TO AUDAX ON AN ‘AS IS’ AND ‘WHERE IS’ BASIS AND WITHOUT WARRANTY OF ANY TYPE OR KIND. CUSTOMER HEREBY EXPRESSLY DISCLAIMS AND EXCLUDES ALL WARRANTIES AND CONDITIONS, WHETHER STATUTORY, EXPRESS, IMPLIED OR OTHERWISE, WITH RESPECT TO THE CUSTOMER ENHANCEMENTS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.

 

2.7 Restrictions.
Customer shall not, nor permit any person (including any Authorized User) to: (i) reverse engineer, reverse compile, decrypt, disassemble, or otherwise attempt to derive the source code of the Licensed Software (except to the extent that this restriction is expressly prohibited by law); (ii) modify, translate, or create derivative works of the Licensed Software; (iii) sublicense, resell, rent, lease, distribute, market, commercialize, or otherwise transfer rights or usage to the Licensed Software (except as expressly permitted under this Agreement); (iv) remove, modify, or obscure any copyright notices or other proprietary notices or legends appearing on or in the Licensed Software, or any portion thereof; (v) transfer, use, or export the Licensed Software in violation of any applicable laws, rules, or regulations of any government or governmental agency; (vi) use the Licensed Software or any system services accessed through the Licensed Software to disrupt, disable, or otherwise harm the operations, software, hardware, equipment, and/or systems of a business, institution, or other entity, including, without limitation, exposing the business, institution, or other entity to any computer virus, trojan horse, or other harmful, disruptive, or unauthorized component; or (vii) embed the Licensed Software in any third-party applications, unless otherwise authorized in writing in advance by an officer of Audax.

 

2.8 Ownership.
Audax shall retain all right, title, and interest, including all intellectual property rights, in and to the Licensed Software, Audax Enhancements owned by Audax and Documentation provided by Audax to Customer under this Agreement. Customer will not remove, alter, or destroy any form of copyright notice, proprietary markings, or confidential legends placed upon or contained within the Licensed Software, Audax Enhancements or Documentation, or any component thereof.

3. TECHNICAL SUPPORT AND UPGRADES AND UPDATES.

3.1 Technical Support.
Audax agrees to provide Customer with technical support services which include periodic distribution of bug fixes and minor enhancements as Updates scheduled by Audax. All registered users of the then-current release of AudaxCeph and the previous release of AudaxCeph are eligible for free limited technical support: phone support, remote assistance support, web chat support. Installation support inquiries by telephone will be accepted by Audax during normal business hours. Technical support email inquiries are accepted at anytime and will be answered during normal Audax business hours. Audax will attempt to respond to inquiries within the same business day.

 

3.2 Updates and Upgrades.
To receive and use an Upgrade, Customer must pay the applicable fees for that Upgrade and agree to Audax’s standard terms and conditions governing the use of that Upgrade. If no such standard terms and conditions are stated by Audax, the terms of this Agreement shall apply, and the Upgrade shall be deemed Licensed Software. Audax will issue a new Serial Number for the Upgraded version of the Licensed Software. Once Audax issues the new Serial Number for an Upgraded version of the Licensed Software, Customer shall be able to continue to use the prior version of the Licensed Software on the condition that the total, combined number of Concurrent Authorized Users who are using the Licensed Software (either t he prior or current version, or both) does not exceed the specific number of Concurrent Authorized Users for which Customer has paid the applicable fee. For any type of license selected by Customer, technical support services are provided only for the Authorized Users of the then-current version of the Licensed Software.

4. LIMITED WARRANTY; WARRANTY DISCLAIMER.

4.1 Limited Media Warranty.
For thirty (30) days from the date of purchase, Audax warrants that the media on which the Licensed Software, Audax Enhancements and Documentation is furnished shall be free from defects in material and faulty workmanship. Customer may return for replacement, without charge, any media that fails to meet this limited media warranty to Audax or the dealer from whom the Licensed Software (and Audax Enhancements) was purchased, as applicable, within the 30-day period. Audax or the applicable dealer will not be responsible for replacing any media that contains defects due to Customer’s misuse. THE FOREGOING IS CUSTOMER’S SOLE REMEDY, AND AUDAX’S SOLE OBLIGATION, WITH RESPECT TO A BREACH OF THE LIMITED MEDIA WARRANTY.

 

4.2 Performance Warranty.
Audax represents and warrants for a period of 90 days from the date of the order that the Licensed Software substantially conforms to the functional specifications in the AudaxCeph Reference Manual available at http://www.audaxceph.com/axceph/reference-manual/. Audax will repair or replace the Licensed Software if this warranty is breached, and if it cannot do so within a reasonable period of time then refund the fee paid for that license under the order (the license will then terminate). Customer must notify Audax during the warranty period or 30 days after it ends of any alleged breach of the warranty. THIS SECTION CONTAINS CUSTOMER’S EXCLUSIVE REMEDY AND AUDAX’S SOLE LIABILITY FOR BREACH OF THIS WARRANTY.

 

4.3 No Disabling Code.
With respect to the Licensed Software (including any Updates or Upgrades) and as of the date of delivery, Audax represents and warrants that (i) it has used commercially reasonable efforts consistent with industry standards to scan for and remove any software viruses, and (ii) it has not inserted any Disabling Code. “Disabling Code” means computer code inserted by Audax that is not addressed in the Documentation and that is designed to delete, interfere with, or disable the normal operation of the Products. This Disabling Code warranty does not apply for any use by Customer outside the scope of the license.

 

4.4 Conformity

Audax, d.o.o., Ljubljana, Tehnoloski park 18, SI 1000 Ljubljana, registration number 5832420, phone +386 1 200 40 50, fax +386 1 423 47 00, web www.audaxceph.com declares under our sole responsibility that the Licensed Software marketed under name AudaxCeph version 3 or Romexis Cephalometric Analysis Module version 3 to which this declaration relates is in conformity with the following standard(s) or other normative document(s): (a) European Council Directive 93/42/EEC and (b) Rules concerning medical devices in Republic of Slovenia Ur.l. RS, st. 37/2010.

 

4.5 No Warranty.
EXCEPT FOR THE WARRANTIES ABOVE, THE LICENSED SOFTWARE, DOCUMENTATION, AND SUPPORT SERVICES ARE PROVIDED TO CUSTOMER ON AN ‘AS IS’ AND ‘WHERE IS’ BASIS AND WITHOUT WARRANTY OF ANY TYPE OR KIND. AUDAX HEREBY EXPRESSLY DISCLAIMS AND EXCLUDES ALL WARRANTIES AND CONDITIONS, WHETHER STATUTORY, EXPRESS, IMPLIED, OR OTHERWISE, WITH RESPECT TO THE LICENSED SOFTWARE AND SUPPORT SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON- INFRINGEMENT OF THIRD-PARTY RIGHTS.

5. TERM AND TERMINATION.

5.1 Term.
Except for Customers with a fixed-term License Period, this Agreement shall commence on the Effective Date and shall continue in effect until terminated as set forth below. If the License Period is for a fixed term, this Agreement will commence on the Effective Date and shall continue until the earlier to occur of the expiration of the License Period or the termination of this Agreement as set forth below. In the case of additional Concurrent Authorized Users who are authorized and added after the initial License Fee payment, the term of their usage of the Licensed Software shall be coterminous with the preexisting then-current term. If Customer purchases an Upgrade, the term of the Agreement shall continue in effect for the specific term set forth in the new License and Authorization Key document issued for the Upgrade.

 

5.2 Termination.
Customer may terminate this Agreement at any time upon thirty (30) days’ prior written notice to Audax. Audax may terminate this Agreement immediately without notice if Customer breaches any term of this Agreement, including, without limitation, breaching the scope of the license granted or confidentiality obligations under this Agreement.

 

5.3 Effect of Expiration or Termination.
Upon expiration or termination of this Agreement, (i) the rights and licenses granted to Customer pursuant to this Agreement shall automatically and immediately terminate and (ii) Customer shall immediately cease using the Licensed Software. In addition, for a fixed-term License Period, upon expiration of the License Period, the Authorization Code will expire and the Licensed Software will cease to function. Sections 2.3, 2.5, 2.6, 4.4, 5.3, 7, 8, 9, and 10 of this Agreement shall survive any expiration or termination of this Agreement.

6. FEES AND PAYMENT.

6.1 Fees and Payment Terms.
Customer licenses the Licensed Software from Audax. This Agreement is between Customer and Audax solely. The applicable License Fee is specified on the Audax website or in the specific price proposal provided by Audax or an Authorized Reseller. The payment terms and conditions for the License Fee payable to Audax are specified on the Audax website at the following URL: http://audaxceph.com/download/shop/ (“Payment Page”), and processed through secure transaction sales point at https://www.cleverbridge.com. The payment terms and conditions for the License Fee payable to an Authorized Reseller are as specified by the specific Authorized Reseller. All fees paid to Audax are non-refundable except as explicitly permitted from time to time on http://audaxceph.com. Audax may terminate this Agreement and/or invalidate Customer’s Serial Code and/or Authorization Code if the billing or contact information is false, fraudulent, or invalid. Customer will pay all taxes, including sales, use, personal property, value-added, excise, customs fees, import duties, stamp duties, and any other similar taxes and duties, including penalties and interest, imposed by German or any non-German government entity on the transactions contemplated by this Agreement, excluding taxes based upon Audax’s net income.

 

6.2 Additional Concurrent Authorized Users Fee.
During the License Period, Customer shall pay to Audax or the specific Authorized Reseller the then-current rate for any licenses for additional Concurrent Authorized Users. This fee shall be charged or invoiced to Customer on the date such additional Concurrent Authorized Users are added to Customer’s account.

 

6.3 Concurrent Authorized User Accounting.
Customer shall maintain business practices and records necessary to manage the number of Concurrent Authorized Users and compliance with the terms of this Agreement. If Audax determines that Customer has more Concurrent Authorized Users than Customer has paid for, Customer shall immediately pay Audax the applicable additional fees.

7. CONFIDENTIALITY.

Customer and Audax agree to maintain the confidentiality of any confidential or proprietary information of one party (the “disclosing party”) received by the other party (the “receiving party”) during, or prior to entering into, this Agreement that the receiving party should know is considered confidential or proprietary by the disclosing party based on the circumstances surrounding the disclosure, including, without limitation, non-public technical and business information (“Confidential Information”). The Licensed Software is copyrighted and shall be deemed Audax’s Confidential Information. The Documentation is copyrighted material of Audax. This section shall not apply to any information that is or becomes publicly available through no breach of this Agreement by the receiving party or is independently developed by the receiving party without access to or use of the Confidential Information of the disclosing party. The foregoing confidentiality obligations will not restrict either party from disclosing Confidential Information of the other party pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to enable the other party to seek a protective order or otherwise limit such disclosure. The receiving party of any Confidential Information of the disclosing party agrees not to use the disclosing party’s Confidential Information for any purpose except as necessary to fulfill its obligations and exercise its rights under this Agreement. The receiving party shall protect the secrecy of and avoid disclosure and unauthorized use of the disclosing party’s Confidential Information to the same degree that it takes to protect its own confidential information of similar nature (but in no event less than reasonable care). All the disclosing party’s information remains the property of the disclosing party.

8. LIMITATION OF LIABILITY.

8.1 Consequential Damages Waiver.
IN NO EVENT SHALL AUDAX HAVE ANY LIABILITY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF ANY REPRESENTATIVE OF AUDAX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.

 

8.2 Limitation of Liability.
IN NO EVENT SHALL AUDAX’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED: (I) IF THE LICENSED SOFTWARE IS LICENSED FROM AUDAX DIRECTLY, THE LICENSE FEES PAID BY CUSTOMER TO AUDAX FOR THE LICENSED SOFTWARE, OR (II) IF THE LICENSED SOFTWARE IS LICENSED THROUGH AN AUTHORIZED RESELLER, THE LICENSE FEES PAID BY CUSTOMER TO THE APPLICABLE AUTHORIZED RESELLER, AS APPLICABLE. NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.

9. GENERAL.

Except as expressly provided herein, Customer may not assign or transfer any of its rights under this Agreement (including its licenses with respect to the Licensed Software and Documentation) without the prior written consent of Audax. This Agreement will be governed by and construed in accordance with the laws of the Republic of Slovenia andEuropean Community and Customer and Audax agree to submit to the personal and exclusive jurisdiction of the courts located in Ljubljana, Slovenia. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. If any provision of this Agreement is found void and unenforceable, it will be replaced to the extent possible by Audax with a provision that comes closest to the meaning of the original provision. This Agreement and the documents referenced in this Agreement constitute the entire agreement between Customer and Audax relating to its subject matter and all terms herein and supersede all prior or contemporaneous agreements or understandings. This Agreement may be modified or changed only in writing signed by authorized representatives of Customer and Audax. Notices hereunder shall be in writing and addressed to Customer at the address provided when purchasing this license or, in the case of Audax, when addressed to Attn: Director of Operations AudaxCeph, Audax d.o.o. Tehnoloski park 18, SI-1000 Ljubljana, Slovenia.

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