MOC’S SOFTWARE END USER LICENSE AGREEMENT
THIS MOC SOFTWARE END USER LICENSE AGREEMENT (“AGREEMENT”) IS BY AND BETWEEN MOC PRODUCTS COMPANY, INC., LOCATED AT 12306 MONTAGUE STREET, CALIFORNIA 91331 USA (“MOC”) AND THE INDIVIDUAL OR LEGAL ENTITY WHO IS USING THE APPLICABLE SOFTWARE MADE AVAILABLE BY MOC (“CUSTOMER”) AND GOVERNS ALL USE BY CUSTOMER OF SUCH SOFTWARE.
BY DOWNLOADING OR USING THE SOFTWARE YOU EXPRESSLY ACCEPT AND AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE AN INDIVIDUAL AGREEING TO THE TERMS OF THIS AGREEMENT ON BEHALF OF AN ENTITY, SUCH AS YOUR EMPLOYER, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY AND “YOU” AND “YOUR” SHALL REFER HEREIN TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH ALL THE TERMS OF THIS AGREEMENT, YOU MUST NOT DOWNLOAD, INSTALL, DEPLOY, OR USE THE SOFTWARE.
- DEFINITIONS
The following capitalized terms shall have the meanings set forth below:
1.1 “Licensed Software” means the MOC software licensed to you pursuant to the terms of this Agreement, excluding any Open-Source Software contained therein.
1.2 “Open-Source Software” means MOC or third-party software that is distributed or otherwise made available as “free software”, “open-source software” or under a similar licensing or distribution model.
- LICENSE
2.1 Licensed Software. Subject to your compliance with the terms and conditions of this Agreement, MOC hereby grants You a limited, non-exclusive, non-transferable, non-sub-licensable license to install, copy and use the Licensed Software solely for your internal use.
2.2 Open-Source Software. If applicable, Open-Source Software is distributed or made available under the terms of the open-source license agreements referenced in the applicable distribution or the applicable help, notices, about or source files. Copyrights and other proprietary rights to the Open-Source Software are held by the copyright holders identified in the applicable distribution or the applicable help, notices, about or source files.
- RESTRICTIONS. You shall not, and shall not encourage any third party to: (a) modify, adapt, alter, translate, or create derivative works of the Licensed Software; (b) reverse-engineer, decompile, disassemble, or attempt to derive the source code for the Licensed Software, in whole or in part, except to the extent that such activities are permitted under applicable law; (c) distribute, license, sublicense, lease, rent, loan, or otherwise transfer the Licensed Software to any third party; (d) remove, alter, or obscure in any way the proprietary rights notices (including copyright, patent, and trademark notices and symbols) of MOC or its suppliers contained on or within any copies of the Licensed Software; (e) use the Licensed Software for the purpose of creating a product or service competitive with the Licensed Software; (f) use the Licensed Software for any time-sharing, outsourcing, service bureau, hosting, application service provider or like purposes; (g) disclose the results of any benchmark tests on the Licensed Software without MOC’s prior written consent; or (h) use the Licensed Software other than as described in the documentation provided therewith, or for any unlawful purpose.
- OWNERSHIP. MOC and its licensors own and retain all right, title, and interest, including all intellectual property rights, in and to the Licensed Software, including any improvements, modifications, and enhancements to it. Except for the rights expressly granted in this Agreement, You shall acquire no other rights, express or implied, in or to the Licensed Software, and all rights not expressly provided to you hereunder are reserved by MOC and its licensors. All the copies of the Licensed Software provided or made available hereunder are licensed, not sold.
- FEEDBACK. Feedback means any comments or other feedback You may provide to MOC, at your sole discretion, concerning the functionality and performance of the Licensed Software, including identification of potential errors and improvements. By submitting any Feedback, You hereby assign to MOC all right, title, and interest in and to the Feedback, if any.
- NO WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT ALL USE OF THE LICENSED SOFTWARE IS AT YOUR SOLE RISK AND THAT THE LICENSED SOFTWARE IS PROVIDED “AS IS” AND “AS AVAILABLE.” MOC, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS MAKE NO EXPRESS WARRANTIES AND DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE LICENSED SOFTWARE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, TOGETHER WITH ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE IN TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM MOC OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MOC, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE LICENSED SOFTWARE WILL MEET YOUR REQUIREMENTS; AND/OR (B) YOUR USE OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR. NOTWITHSTANDING THE FOREGOING, NOTHING HEREIN SHALL EXCLUDE OR LIMIT MOC’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. YOU UNDERSTAND AND ACKNOWLEDGE THAT THE LICENSED SOFTWARE IS NOT DESIGNED, INTENDED OR WARRANTED FOR USE IN AUTOMOTIVE SERVICE AND EQUIPMENT TRAINING.
- INDEMNIFICATION BY YOU. You agree to hold harmless, defend, and indemnify MOC and its subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners from and against any third party claim arising from or in any way related to your breach of this Agreement, use of the Licensed Software, or violation of applicable laws, rules or regulations in connection with the Licensed Software, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature. You acknowledge the duty to defend any claim or suit is separate and apart from any indemnity obligation and that You shall defend any and all claims or actions against MOC as allowed to the fullest extent of California Law. The foregoing indemnity and defense obligations shall survive the date of expiration and termination of the Agreement.
- LIMITATION OF LIABILITY.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT MOC, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS. THE FOREGOING LIMITATIONS ON MOC’S LIABILITY SHALL APPLY WHETHER OR NOT MOC HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING. NOTWITHSTANDING THE FOREGOING, NOTHING HEREIN SHALL EXCLUDE OR LIMIT MOC’S LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. THE TOTAL LIABILITY OF MOC ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED USD $100.
- EXPORT RESTRICTIONS. You understand that the software provided under this Agreement may contain encryption technology and other software programs that may require an export license from the U.S. State Department and that export or re-export of the software to certain entities (such as a foreign government and its subdivisions) and certain countries is prohibited. You agree that you will comply with all applicable export and import control laws and regulations of the United States and the foreign jurisdiction in which the software is used and, in particular, You will not export or re-export the software without all required United States and foreign government licenses. You will defend, indemnify, and hold harmless MOC and its suppliers and licensors from and against any violation of such laws or regulations by you or any of your agents, officers, directors, or employees.
- MISCELLANEOUS. The Licensed Software and any other software covered under this Agreement are “commercial items” as that term is defined at 48 C.F.R. 2.101; consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Licensed Software and any other software and documentation covered under this Agreement with only those rights set forth herein. This Agreement will be governed, construed, interpreted, and enforced by the laws of the State of California without reference to conflict of law principles. Each party agrees to absolutely and irrevocably consents and submits to the exclusive jurisdiction of the courts located in Chatsworth, California to resolve any legal matter arising from this Agreement. You may not assign any of your rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of MOC. Notwithstanding the foregoing, MOC may assign the entirety of its rights and obligations under this Agreement without your consent. The application of the UN Convention of International Sale of Goods to this Agreement is disclaimed in its entirety. This Agreement constitutes the entire agreement between You and MOC governing your use of the Licensed Software and supersedes any prior agreements between You and MOC, including but not limited to, any prior versions of this Agreement. The failure of MOC to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement will continue in full force and effect and the invalid or unenforceable provision shall be reformed to the extent necessary to make it valid and enforceable.