THIS IS AN AGREEMENT ON END-USER RIGHTS AND NOT AN AGREEMENT FOR SALE. NovAtel continues to own the copy of the Software and the physical media contained in the sales package and any other copies that the End User is authorized to make pursuant to this EULA.
IMPORTANT: Please read the terms and conditions of product application set out below carefully prior to download, installation, copy or use.
YOU AGREE THAT YOUR USE OF THE SOFTWARE AND DATA SERVICES ACKNOWLEDGES THAT YOU HAVE READ THIS EULA, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
As used in this EULA the term "Software" means: (i) the WaypointTM computer program and all components thereof, firmware and script files; (ii) all the contents of the software installation, e-mails and any attachments, or other media with which this EULA is provided, and/or whether embedded in the hardware, including the object code form of the Software supplied on a data carrier, via electronic mail or downloaded via the Internet from NovAtel's website and servers; (iii) any related explanatory written materials and any other possible documentation related to the Software, above all any description of the Software, its specifications, any description of the Software properties or operation, any description of the operating environment in which the Software is used, instructions for use or installation of the Software or any description of how to use the Software (hereinafter referred to as "Documentation"); and (iv) copies of the Software, patches for possible errors in the Software, additions to the Software, extensions to the Software, modified versions of the Software, upgrades and updates of Software components, if any, licensed to You by NovAtel pursuant to Article 3 of this EULA. The Software shall be provided exclusively in the form of executable object code.
Software supplied on a data carrier, sent via electronic mail, downloaded from the Internet, downloaded from NovAtel's servers or obtained from other sources requires installation. You must install the Software on a correctly configured computer, complying at least with requirements set out in the Documentation. The installation methodology is described in the Documentation. No computer programs or hardware which could have an adverse effect on the Software may be installed on the computer on which You install the Software.
3. DATA SERVICES
As used in this EULA, "Data Services" shall mean (i) TerraStar-NRTTM GNSS orbit and clock data files provided via internet delivery which may be licensed to You exclusively for the Permitted Use (as defined in Section 4.5). The term of any Data Services license will run concurrently with the term of the associated Software license, save where Data Services are provided on a subscription basis, in which case the term of the Data Services license will terminate separately from the Software License at the end of the relevant subscription period without renewal (hereinafter "Data Services Term" as appropriate).
Subject to the condition that You have agreed to the terms of this EULA, You agree not to use the Software or Data Services for any purpose other than the due exercise of the rights and licenses hereby agreed to be granted to You, You pay the License Fee within the maturity period and You comply with all the terms and conditions stipulated herein, Novatel Inc. ("NovAtel") shall grant You the following rights ("License"):
4.1 Installation and use. You shall have the non-exclusive, non-transferable, non-perpetual, revocable limited right to install the Software on the hard disk of a computer or other permanent medium for data storage, installation and storage of the Software in the memory of a computer system and to implement, store and display the Software subject to the limitations set forth below.
4.2 Copies. You may make one copy of the Software on a permanent storage medium as an archival back-up copy.
4.3 Stipulation of the number of licenses. The right to use the Software shall be bound by the number of Licenses purchased. You may only use the Software on the computer on which the License has been activated.
4.4 Multiple language versions, dual media software, multiple copies. In the event that the Software supports multiple platforms or languages, or if You receive multiple copies of the Software, You may only use the Software for the number of computer systems and for the versions for which You obtained a License. You may not sell, rent, lease, sub-license, lend or transfer versions or copies of the Software which You do not use.
4.5 Data Services. Where You have made payment of the applicable Data Services license fee, then NovAtel hereby grants You, in accordance with the terms and conditions of this EULA, a non-exclusive, non-transferable, non-perpetual, revocable, worldwide and limited license to use the Data Services exclusively in connection with the Software for the duration of the applicable Data Services Term ("Permitted Use").
You shall not use the Data Services (TerraStar-NRTTM) for any purpose other than the defined Permitted Use. All other means of use (including but not limited to those restrictions in Section 6) of the Data Services is expressly prohibited both during the Data Services Term and after the expiry of this EULA. For the avoidance of doubt, You shall not use Data Services in connection with any oil and gas offshore applications. You hereby give warranty to NovAtel that You shall not utilise and shall not permit any third party to utilise any of the Data Services for any other use or purpose except for the Permitted Use. You understand and accept that where it comes to NovAtel's notice that the Data Services are being utilised for any use or purpose other than the Permitted Use, that such use or purpose shall be deemed to be a material breach of this EULA. In such an event, the Data Services shall be disabled with immediate effect and this EULA between You and NovAtel shall be terminated in accordance with Section 8, notwithstanding any other right or remedy available to NovAtel by operation of the law or otherwise.
As the end user, You acknowledge and accept that reception of the Data Services is dependent on Your location and access to the internet. NovAtel and its affiliates shall have no liability to You or any third party howsoever arising by reason of the unavailability of the Data Services irrespective of the negligence, breach of duty whether statutory or otherwise, of NovAtel and its affiliates.
NovAtel owns, or has the right to sublicense, all copyright, trade secret, patent and other proprietary rights in the Software and Data Services. The Software and Data Services and all rights, without limitation including proprietary rights and intellectual property rights thereto are owned by NovAtel, its affiliates and/or its licensors. They are protected by international treaty provisions and by all other applicable national laws of the country in which the Software and Data Services are being used. The structure, organization, algorithms and code of the Software and Data Services are the valuable trade secrets and confidential information of NovAtel, its affiliates and/or its licensors. You must not copy the Software, except as set forth in Article 3(a). Any copies which You are permitted to make pursuant to this EULA must contain the same copyright and other proprietary notices that appear on the Software. If You reverse engineer, reverse compile, disassemble or otherwise attempt to discover the source code of the Software and/or Data Services, in breach of the provisions of this EULA, You hereby agree that any information thereby obtained shall automatically and irrevocably be deemed to be transferred to and owned by NovAtel in full, from the moment such information comes into being, notwithstanding NovAtel's rights in relation to breach of this EULA. You may not copy the Documentation. No right is conveyed by this EULA for the use, directly, indirectly, by implication or otherwise by Licensee of the name of NovAtel, or of any trade names or nomenclature used by NovAtel, or any other words or combinations of words proprietary to NovAtel in connection with this EULA, without the prior written consent of NovAtel.
6. THE FOLLOWING ARE PROHIBITED FOR YOUR SOFTWARE AND DATA SERVICES LICENSE:
6.1 You may not use the Software or Data Services on more than one computer simultaneously;
6.2 You may not distribute, transfer, rent, lease, borrow, lend, sell or sublicense all or any portion of the Software or Data Services, in any form whether modified or unmodified, without the written permission of NovAtel;
6.3 You may not attempt to disable or work around any software licensing security mechanisms that are part of the Software or Data Services thus disabling the software copy protection;
6.4 You may not modify, translate, reproduce or prepare derivative works of the Software or Data Services;
6.5 You may not use the Software or Data Services in connection with computer-based or cloud-based services business without the written permission of NovAtel;
6.6 You may not publicly display visual output of the Software or Data Services without crediting NovAtel and the Software/Data Services name;
6.7 You may not implement DLLs and libraries in a manner that permits automated internet based post- processing (contact NovAtel for special pricing);
6.8 You may not reverse engineer, decompile or disassemble the Software or Data Services or otherwise attempt to interpret any underlying algorithm or object code; or
6.9 You may not use the Software or Data Services for any purposes associated with development or production of chemical, biological or nuclear weapons or their delivery systems.
7. RESERVATION OF RIGHTS
NovAtel hereby reserves all rights to the Software and Data Services, with the exception of rights expressly granted under the terms of this EULA to You as the End User of the Software and Data Services.
8. TERM AND TERMINATION
The duration of the relevant license grant is defined by the agreement of purchase and sale for the Software and Data Services or until your Software and/or Data Services subscription or lease expires without being renewed (as the case may be). In the event that You shall at any time during the term of this EULA be in breach of your obligations hereunder, where such breach is irremediable, or if capable of remedy is not remedied within thirty (30) calendar days of notice from NovAtel requiring its remedy, NovAtel may forthwith by notice in writing terminate this EULA together with the rights and licenses hereby granted by NovAtel. You may terminate this EULA by providing written notice to NovAtel. You agree upon the earlier of the termination of this EULA or expiration of your Software subscription, to cease using the Software and to permanently destroy, delete or return at your own cost the Software (and any copies, modifications and merged portions of the Software in any form, and all of the component parts of the Software) and certify such destruction in writing to NovAtel. Termination shall be without prejudice to the accrued rights of either party, including payments due to NovAtel. This provision shall survive termination of this EULA.
9.1 AS THE END USER, YOU ACKNOWLEDGE THAT THE SOFTWARE AND DATA SERVICES ARE PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. NEITHER NOVATEL, ITS LICENSORS OR AFFILIATES NOR THE COPYRIGHT HOLDERS MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE OR RESULTS OR THAT THE SOFTWARE OR DATA SERVICES WILL NOT INFRINGE ANY THIRD-PARTY PATENTS, COPYRIGHTS, TRADEMARKS OR OTHER RIGHTS. THERE IS NO WARRANTY BY NOVATEL OR BY ANY OTHER PARTY THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE OR DATA SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE OR DATA SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR THE SELECTION OF THE SOFTWARE AND DATA SERVICES TO ACHIEVE YOUR INTENDED RESULTS AND FOR THE INSTALLATION, USE AND RESULTS OBTAINED FROM IT. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE OR DATA SERVICES IS ASSUMED BY YOU.
9.2 Disclaimer. THE WARRANTIES IN THIS EULA REPLACE ALL OTHER WARRANTIES, AND NOVATEL EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
9.3 NovAtel will not be liable for any loss or damage caused by delay in furnishing the Software, Data Services or any other performance under this EULA.
9.4 This EULA creates no obligations on the part of NovAtel, affiliates and its licensors other than as specifically set forth herein.
10. CUSTOMER SUPPORT
10.1 Post Contractual Support (PCS). Each Software license has a PCS subscription period associated with it. Perpetual Software licenses have, by default, one-year of PCS subscription from the time of purchase. Thereafter, PCS subscription periods can be extended by purchasing additional periods in one-year increments. Software which is licensed under a term subscription or lease shall be entitled to PCS benefits for the term of the license.
10.2 While within a PCS subscription period You are entitled to:
10.2.1 Bug fixes and maintenance patches ("Updates") and version releases and enhancements ("Upgrades") if and when released during the PCS subscription period for the covered Software; and
10.2.2 Expert phone and e-mail support.
10.3 For software Updates and Upgrades, and regular customer support, contact the NovAtel Support Hotline at 1-800-NOVATEL (U.S. or Canada only), or 403-295-4900, Fax 403-295-4901, e-mail to firstname.lastname@example.org, website: http://www.novatel.com or write to: NovAtel Inc., at the address found on NovAtel's website.
10.4 Software Version Support. NovAtel will support versions of the Software for a minimum of three (3) years from the Software release date. This support period includes version-specific auto-download content such as manufacturer files.
10.5 Lost or Stolen Licenses. You are responsible to ensure that your licenses are properly tracked and maintained. NovAtel is not responsible for any lost or stolen licenses howsoever caused, or cases where the hardware supporting the Software and Data Services is damaged and cannot be repaired.
NovAtel shall have the right, during your normal business hours, to audit your use of the Software and Data Services and your compliance with the provisions of this EULA. NovAtel will provide You with ten (10) business days prior written notice of an audit. The right of audit shall be limited to twice per calendar year. Prior to the start of an audit, NovAtel's personnel will sign a reasonable non-disclosure agreement provided by You. During the audit, You shall allow NovAtel's personnel to be provided reasonable access to both your records and personnel. The cost of the audit shall be paid by NovAtel unless the results of the audit indicate that (a) You are in breach of the terms of this EULA, or (b) You have underpaid fees to NovAtel, in which case, You agree to promptly pay NovAtel such fees at the price previously agreed to for the Software license or software subscription plus interest on such underpayments from the original due date at the lesser of two percent (2%) per month or the highest rate allowed by applicable law, and You further agree to bear all costs associated with the audit.
NovAtel nor its affiliates shall not be liable to indemnify You against any loss sustained by it as the result of any claim made or action brought by any third party for infringement of any intellectual property breaches including letters patent, registered design or like instrument of privilege by reason of the use or application of the Software and any Data Services by You or any other information supplied or to be supplied to You pursuant to the terms of this EULA. NovAtel shall not be bound to take legal proceedings against any third party in respect of any claim of infringement of intellectual property including letters patent, registered design or like instrument of privilege which may now or at any future time be owned by it. However, should NovAtel elect to take such legal proceedings, at NovAtel's request, You shall co-operate reasonably with NovAtel in all legal actions concerning this license of the Software and any Data Services under this EULA taken against any third party by NovAtel to protect its rights in the Software and any Data Services. NovAtel shall bear all reasonable costs and expenses incurred by You in the course of co-operating with NovAtel in such legal action.
NovAtel nor its affiliates shall be under no obligation or liability of any kind (in contract, tort or otherwise and whether directly or indirectly or by way of indemnity contribution or otherwise howsoever) to You and You will indemnify and hold NovAtel and its affiliates harmless against all or any loss, damage, actions, costs, claims, demands and other liabilities or any kind whatsoever (direct, indirect, incidental, consequential, punitive, special or otherwise) arising directly or indirectly out of or by reason of your use of the Software and/or Data Services whether the same shall arise in consequence of any such infringement, deficiency, inaccuracy, error or other defect therein and whether or not involving negligence on the part of any person. Except as required by applicable law, no claim, regardless of form, arising out of or in connection with this EULA may be brought by You more than one (1) year after the cause of action has occurred.
13. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL NOVATEL, ITS AFFILIATES, ITS AND THEIR EMPLOYEES OR LICENSORS BE LIABLE FOR ANY LOST PROFITS, REVENUE, SALES, DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, PROPERTY DAMAGE, PERSONAL INJURY, INTERRUPTION OF BUSINESS, LOSS OF BUSINESS INFORMATION OR FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, ECONOMIC, COVER, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE OR OTHER THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE AND/OR DATA SERVICES, EVEN IF NOVATEL, ITS AFFILIATES, ITS AND THEIR EMPLOYEES OR ITS LICENSORS ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME COUNTRIES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF LIABILITY, BUT MAY ALLOW LIABILITY TO BE LIMITED, IN SUCH CASES, THE LIABILITY OF NOVATEL, ITS AFFILIATES, ITS AND THEIR EMPLOYEES OR LICENSORS SHALL BE LIMITED TO THE SUM THAT YOU PAID FOR THE LICENSE.
14.1 United States Government Restricted Rights. If the Software or any Data Services (including any Updates, Upgrades, Documentation or technical data related to such Software) is licensed, purchased, subscribed to or obtained, directly or indirectly, by or on behalf of a unit or agency of the United States Government, then this Section 10.1 also applies:
14.1.1 NovAtel is a Canadian corporation and is an actively registered U.S. Government contractor in the System for Award Management (SAM) under DUNS# 240662007 and NCAGE Code# 38757. NovAtel certifies that all Software or any Data Services under this EULA are "Commercial Items" as defined under FAR §2.101 developed at private expense. Notwithstanding the foregoing, for the avoidance of doubt, this certification does not apply to subcontractor or any third-party software product.
14.1.2 For civilian agencies. The Software and Data Services were developed at private expense and is "restricted computer software" submitted with restricted rights in accordance with the Federal Acquisition Regulations ("FAR") 52.227-19 (a) through (d) (Commercial Computer Software - Restricted Rights).
14.1.3 For units of the Department of Defense. The Software and Data Services were developed at private expense and is "commercial computer software" submitted with restricted rights in accordance with the Defense Federal Acquisition Regulations ("DFARS") DFARS 227.7202-3 (Rights in commercial computer software or commercial computer software documentation).
14.2 Export Restrictions. You acknowledge that provision of the Software and any Data Services hereunder may be subject to applicable export laws, rules and regulations ("Applicable Export Laws"), and as such Software and any Data Services may be restricted or prohibited with respect to You, or the country or nature of end-use. You understand and accept that such Applicable Export Laws shall include, but shall not be limited to, those of Canada, the United States of America (USA), the United Kingdom (UK) and the European Union (EU) and the laws of the jurisdiction in which the Software and any Data Services are utilized. You understand and accept that NovAtel shall not enable Data Services for use, or dispatch any Software and NovAtel personnel to You for use, diversion, export, re-export or import of Software and any Data Services or any portion thereof: (a) to or in a restricted country; (b) by any entity or person on any denial/debarment list; or (c) for any prohibited use, as designated by Applicable Export Laws. Applicable Export Laws are subject to change and the onus is upon You to ensure that it familiarises itself with Applicable Export Laws which specify: (a) restricted countries; (b) denial/debarment lists; and (c) prohibited uses. You hereby warrant to NovAtel that You shall not utilise, divert, export, re-export or import, and shall not permit any third-party to utilise, divert, export, re-export or import, any Software and any Data Services: (a) to or in a restricted destination; (b) to any entity or person listed on any denial/debarment list; or (c) for any prohibited use, as designated by Applicable Export Laws.
Any breach of the obligations or representations set forth in this Section shall be deemed to be a material breach of this EULA, entitling NovAtel to terminate this EULA without notice and seek such remedies as may be appropriate in the circumstances.
15. DATA PROTECTION AND PRIVACY
16.1 Entire Agreement. This EULA constitutes the entire agreement between the parties hereto with regard to the end use license by End User of the Software and any Data Services. This EULA supersedes any and all prior discussions and/or representations, whether written or oral, and no reference to prior dealings may be used to in any way modify the expressed understandings of this EULA. Any future representations, promises and verbal agreements related to the Software, including but not limited to features, future enhancements, functionality, or services covered by this EULA will be of no force or effect unless reduced in writing and made a part of this EULA.
THIS EULA MAY NOT BE AMENDED OR MODIFIED UNLESS SO DONE IN WRITING SIGNED BY AUTHORIZED REPRESENTATIVE OF NOVATEL. THE PRE-PRINTED TERMS AND CONDITIONS OF ANY PURCHASE ORDER OR ANY OTHER TERMS AND CONDITIONS OF A PURCHASE ORDER WHICH MAY CONFLICT IN ANY WAY WITH THE TERMS AND CONDITIONS OF THIS EULA SHALL BE VOID, EVEN IF ISSUED SUBSEQUENT TO THE EFFECTIVE DATE OF THIS EULA AND SHALL NOT BE DEEMED TO CONSTITUTE A CHANGE TO THIS EULA.
16.2 Severability. If a provision of this EULA is or becomes or is found by a court or other competent authority to be illegal, invalid or unenforceable, in whole or in part, under any law, such provision will to that extent only be deemed not to form part of this EULA and the legality, validity and enforceability of the remainder of this EULA will not be affected or impaired. The parties will negotiate in good faith to replace any such illegal, invalid or unenforceable provision with a valid and enforceable provision which, as far as possible, has the same legal and commercial effect as that which it replaces.
16.3 No Waiver. No delay or failure on the part of any party in exercising a right, power or remedy provided by law or under this EULA will impair that right, power or remedy or operate as a waiver of it or any other rights and remedies. The single or partial exercise of any right, power or remedy provided by applicable mandatory law or under this EULA will not preclude any other or further exercise or the exercise of such rights, power or remedy.
16.4 Governing Law and Venue. This EULA shall be interpreted under the laws of the Province of Alberta, Canada. This EULA shall not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. In the event of a dispute arising out of or relating to this EULA, the parties agree that venue is proper in and that they will submit irrevocably to the exclusive jurisdiction of the courts of relevant jurisdiction in Calgary, Alberta, Canada.
16.5 Notices. Any notice or other communication ("Notice") required or permitted under this EULA shall be in writing and either delivered personally or sent by electronic mail, facsimile, overnight delivery, express mail, or certified or registered mail, postage prepaid, return receipt requested. A Notice delivered personally shall be deemed given only if acknowledged in writing by the person to whom it is given. A Notice sent by electronic mail or facsimile shall be deemed given when transmitted, provided that the sender obtains written confirmation from the recipient that the transmission was received. A Notice sent by overnight delivery or express mail shall be deemed given twenty-four (24) hours after having been sent. A Notice that is sent by certified mail or registered mail shall be deemed given forty-eight (48) hours after it is mailed. If any time period in this EULA commences upon the delivery of Notice to any one or more parties, the time period shall commence only when all of the required Notices have been deemed given. NovAtel's address for Notices is NovAtel Inc., 10921-14th Street N.E., Calgary, Alberta T3K 2L5 Canada, Attn: Legal Department, +1-403-295-4500.
16.6 Assignment. Neither Party shall assign any of its rights or delegate any of its obligations under this EULA without the prior written consent of the other party, provided that such consent shall not be unreasonably withheld, except that NovAtel may assign its rights and obligations under this EULA without your consent to an entity which acquires all or substantially all of the assets of NovAtel Inc. or to any subsidiary, affiliate or a successor in a merger or acquisition of NovAtel Inc.