End-user license agreement (EULA)

APPLICABLE FEES, IF ANY, THE SOFTWARE PROVIDED UNDER THIS AGREEMENT IS LICENSED TO YOU AND NOT SOLD.  THE THIRD-PARTY SOFTWARE IS BEING DISTRIBUTED TO YOU BY NANOMETRICS, OR ONE OF ITS DISTRUBUTORS OR RESELLERS, AND SUCH THIRD-PARTY SOFTWARE IS SUBJECT TO THE TERMS AND CONDITIONS OF THE APPLICABLE THIRD-PARTY LICENSE AGREEMENT FOR SUCH THIRD-PARTY SOFTWARE.  THE THIRD-PARTY SOFTWARE IS BEING LICENSED TO YOU, AND NOT SOLD, BY THE APPLICABLE THIRD PARTY.  THIS AGREEMENT CONTAINS LIMITATIONS ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES, AND LIABILITIES THAT ARE APPLICABLE TO THE SOFTWARE AND THE THIRD-PARTY SOFTWARE.

 

Nanometrics Inc. Software License

 

IMPORTANT:  BEFORE DOWNLOADING, INSTALLING, OR USING THE SOFTWARE, PLEASE CAREFULLY READ THIS AGREEMENT WHICH CONTAINS THE TERMS AND CONDITIONS UNDER WHICH YOU ARE ACQUIRING A LIMITED LICENSE TO USE THE SOFTWARE. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT PLEASE DO NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE AND PROMPTLY (I) RETURN OR DESTROY THE SOFTWARE, OR, (II) IF YOU PAID A LICENSE FEE FOR THE SOFTWARE, RETURN THE SOFTWARE TO NANOMETRICS OR THE DISTRIBUTOR OR RESELLER FROM WHOM YOU RECEIVED THE SOFTWARE WITHIN THIRTY (30) DAYS OF YOUR RECEIPT OF THE SOFTWARE FOR A REFUND. IF YOU DOWNLOAD, INSTALL, OR USE THE SOFTWARE, YOU WILL BE ACCEPTING THIS AGREEMENT, AND YOU WILL HAVE ACCEPTED AND AGREED TO THESE TERMS AND CONDITIONS. THIS SOFTWARE IS ALSO PROTECTED BY COPYRIGHT LAWS AND INTERNATIONAL COPYRIGHT TREATIES, AS WELL AS OTHER INTELLECTUAL PROPERTY LAWS. IF YOU ARE AN AGENT OR EMPLOYEE OF ANOTHER ENTITY YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY’S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT.

 

1. Definitions:  In this Agreement:

 

“Affiliate” of Nanometrics means any corporation or other legal entity that Nanometrics directly or indirectly controls, is controlled by, or is under common control with.  In this context, an entity “controls” a corporation or other entity if it or any combination of it and/or its Affiliates own fifty percent (50%) or more of the voting rights for the board of directors or other mechanism of control for such corporation or other entity;

 

“Agreement” means this Nanometrics Software License;

 

“Nanometrics” means Nanometrics Inc.;

 

“Software” means the Nanometrics software program in binary or bytecode form, excluding the Third-Party Software (as defined below in Section 2) that (i) is made available to You for download after acceptance of this Agreement, (ii) is packaged with this Agreement, or (iii) embeds this Agreement, and which binary and/or bytecode software program includes the storage media containing the software program, if any, and any printed, online, or electronic documentation or release notes; and

 

“You” or “Your” means the individual acquiring the Software or any entity on whose behalf such individual is acting. In the case of an entity, "You" includes any entity that by majority voting interest controls, is controlled by, or is under common control with You.

 

2. Grant of License:  Subject to the terms and conditions of this Agreement and Your payment of the applicable fees, if any, Nanometrics grants You a non-exclusive, non-transferable, internal license to use one (1) copy of the Software.  You may make one (1) copy of the Software for archival purposes only.  Any copies of the Software shall include all trademarks, copyright notices, restricted rights legends, proprietary markings and the like exactly as they appear on the copy of the Software originally provided to You.  Binary code or bytecode versions of certain third-party software may be embedded in or delivered with the Software (“Third-Party Software”).  If a separate license agreement for an item of third-party software is: delivered to You with the Software or referenced in any material that is provided with the Software, then such third-party software shall be Third-Party Software and such separate license agreement shall govern Your use of that item or version of such third-party software.  Your right to use any Third-Party Software, third-party data, or other third-party content provided with the Software shall be limited to the use necessary to operate the Software as permitted by this Agreement.  No other rights in the Software or Third-Party Software are granted to You.  Notwithstanding the foregoing, in the case of Third-Party Software that is licensed pursuant to open source licenses that prohibit the imposition of any restrictions on rights beyond those contained in such open source licenses, the restrictions on rights contained in this Agreement shall not be applicable to such Third-Party Software.

 

3. Restrictions:  The terms set forth in this Section 3 shall constitute conditions to the license granted in Section 2.  You shall not reverse engineer, disassemble, reverse translate, decompile or in any other manner decode the Software except to the extent the foregoing restriction is expressly prohibited by applicable law notwithstanding a contractual obligation to the contrary. You shall not distribute, lease, rent, grant a security interest in, assign, or otherwise transfer the Software. You shall not modify or create any derivative works of the Software or merge all or any part of the Software with another program.  You acknowledge that the Software contains confidential information and know-how and You shall not use such confidential information or know-how except to the extent necessary to exercise the rights granted to You under Section 2 of this Agreement. For greater certainty, You shall not disclose any performance, benchmarking, or feature-related information about the Software. You further agree not to disclose, transfer or otherwise provide to any third party any portion of the Software or confidential information or know-how, except as expressly permitted herein. Any third-party software, data or content (including the Third-Party Software) included with or as a part of the Software may be used only with the Software unless otherwise authorized in writing by Nanometrics.

 

4. DISCLAIMER OF WARRANTIES:  THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT ANY REPRESENTATIONS, CONDITIONS, OR WARRANTIES OF ANY KIND. WITHOUT LIMITATION, NANOMETRICS AND ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS, DISTRIBUTORS AND RESELLERS DISCLAIM ANY AND ALL EXPRESS OR IMPLIED REPRESENTATIONS, CONDITIONS, OR WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT, TITLE, DURABILITY, SATISFACTORY QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE WHETHER ARISING BY STATUTE, COURSE OF DEALING, USAGE OF TRADE, OR OTHERWISE. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE ENTIRE RISK OF THE UTILIZATION OF THE SOFTWARE SHALL BE BORNE BY YOU.  NEITHER NANOMETRICS NOR ANY OF ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS, DISTRIBUTORS AND/OR RESELLERS MAKE ANY REPRESENTATIONS OR PROVIDE ANY CONDITIONS AND/OR WARRANTIES ABOUT THE SUITABILITY OF THE SOFTWARE OR ABOUT ANY INFORMATION AND/OR DATA THAT MAY BE PROCESSED BY OR MADE AVAILABLE USING THE SOFTWARE.

 

5. LIMITATION OF LIABILITY:  TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER NANOMETRICS NOR ANY OF ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS, DISTRIBUTORS AND/OR RESELLERS SHALL HAVE ANY LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES ARISING FROM THIS AGREEMENT, RELATED TO THE SOFTWARE, OR RELATED TO ANY SERVICES PROVIDED TO YOU BY NANOMETRICS (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS, DISTRIBUTORS AND/OR RESELLERS) IN RELATION TO THE SOFTWARE FOR ANY INDIRECT, RELIANCE, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFIT, LOSS OF OR DAMAGE TO DATA, BUSINESS INTERUPTION, LOSS OF DATA, REPLACEMENT OR RECOVERY COSTS, OR OTHER COMMERCIAL OR ECONOMIC LOSS, WHETHER ARISING FROM CONTRACT, EQUITY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER THEORY OF LIABILITY, EVEN IF NANOMETRICS (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS, DISTRIBUTORS AND RESELLERS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THEY ARE FORESEEABLE.  THE LIMITATIONS IN THIS SECTION SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM OR FUNDAMENTAL BREACH. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THESE LIMITATIONS MAY NOT APPLY TO YOU.  TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE TOTAL CUMULATIVE LIABILITY OF NANOMETRICS (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS, DISTRIBUTORS AND RESELLERS) TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES ARISING FROM THIS AGREEMENT, RELATED TO THE SOFTWARE, OR RELATED TO ANY SERVICES PROVIDED TO YOU BY NANOMETRICS (INCLUDING ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS, DISTRIBUTORS AND RESELLERS) IN RELATION TO THE SOFTWARE, EXCEED FIVE CANADIAN DOLLARS ($5.00).

 

THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT. YOU ACKNOWLEDGE THAT BUT FOR THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY, NEITHER NANOMETRICS NOR ANY OF ITS LICENSORS OR SUPPLIERS WOULD GRANT THE RIGHTS GRANTED IN THIS AGREEMENT.

 

6. Term:  This Agreement shall continue for as long as You use the Software, however, it will terminate, without notice from Nanometrics, if You fail to comply with any of its terms or conditions.  You must, upon termination, destroy all copies of the Software. You may terminate this Agreement by destroying all copies of the Software under Your control and notifying Nanometrics such destruction or by returning the Software to Nanometrics. In addition to this Section, the Sections entitled Definitions, Disclaimer of Warranties, Limitation of Liability, Title, High-Risk Activities, Third-Party Beneficiaries, and General shall continue in force even after any termination of this Agreement.

 

7. Support and Updates:  This Agreement does not grant You the right to any updates or enhancements of the Software or the right to receive any technical support in respect to the Software. Such updates and other technical support services, if available, may be purchased separately from Nanometrics in accordance with the Nanometrics technical support program.  Use of such updates or enhancements shall be governed by the terms and conditions of this Agreement.

 

8. Title:  All right, title, and interest (including all intellectual property rights) in, to, and under the Software (including all copies thereof) shall remain with Nanometrics and its licensors.

 

9. High-Risk Activities:  The Software is not fault-tolerant and is not designed, manufactured or intended for use in or in conjunction with on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation systems, air traffic control, or direct life support machines. Nanometrics, its Affiliates, licensors, suppliers, subcontractors and distributors specifically disclaim any express or implied representations, warranties and/or conditions for such uses.

 

10. U.S. Government End-Users:  The Software is a "commercial item" as that term is defined at FAR 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are defined in FAR 12.212, and is provided to the U.S. Government only as a commercial end item. Government end users acquire the rights set out in this Agreement for the Software consistent with: (i) for acquisition by or on behalf of civilian agencies, the terms set forth in FAR12.212; or (ii) for acquisition by or on behalf of units of the Department of Defense, the terms set forth in DFARS 227.7202. Use of this Software and related documentation is further restricted by the terms and conditions of this Agreement.  For the purposes of any applicable government use, the Software was developed exclusively at private expense, and is a trade secret of Nanometrics for the purpose of any Freedom of Information legislation or any other disclosure statute, regulation or provision.

 

11. Export Restrictions:  The Software and related information are subject to export and import restrictions. By downloading, installing, or using the Software, You are representing and warranting that You are not located in, under the control of, nor are a national or resident of any country to which the export of the Software or related information would be prohibited by the laws and/or regulations of Canada and/or the United States. You are also representing and warranting that You are not an individual to whom the export of the Software or related information would be prohibited by the laws and/or regulations of Canada and/or the United States. You shall comply with the export laws and regulations of Canada and the United States that are applicable to the Software and related information and You shall comply with any local laws and regulations in Your jurisdiction that may impact Your right to export, import, or use the Software or related information, and You represent and warrant that You have complied with any such applicable laws and/or regulations. The Software shall not be used for any purposes prohibited by export laws and/or regulations, including, without limitation, nuclear, chemical, or biological weapons proliferation. You shall be responsible for procuring all required permissions for any subsequent export, import, or use of the Software or related information.

 

11. Intellectual Property:  Nanometrics Software License and Nanometrics are trademarks or registered trademarks of Nanometrics Inc. in certain countries.  All Nanometrics product or service names and logos are trademarks or registered trademarks of Nanometrics Inc. in certain countries. All other company and product or service names and logos are trademarks or registered trademarks of their respective owners in certain countries.

 

12. Third-Party Beneficiaries:  You are hereby notified that there may be third-party beneficiaries to this Agreement. To the extent that this Agreement contains provisions that relate to (i) the use by You of certain components of the Software in which such third parties have an interest, or (ii) services provided by Affiliates, licensors, subcontractors, distributors and/or resellers of Nanometrics; the intellectual property protection and limitation of liability provisions of this Agreement are made expressly for the benefit of such third-party beneficiaries and are enforceable by such third-party beneficiaries in addition to being enforceable by Nanometrics.

 

14. General:  This Agreement is the entire agreement between You and Nanometrics in respect to the Software, superseding any other agreement or discussions, oral or written, and may not be changed except by a written license agreement with Nanometrics or a distributor of Nanometrics. The terms and conditions of this Agreement shall prevail over any pre-printed terms on any quotes, orders, purchase orders, or purchase order acknowledgements, and shall prevail over any other communications between the parties in relation to the Software and the Software shall be deemed to be licensed pursuant to the terms and conditions of this Agreement unless You have executed a written license agreement with Nanometrics or a distributor or reseller of Nanometrics, in which case the Software shall be deemed to have been licensed pursuant to the terms and conditions of such written license agreement. You may not assign this Agreement whether voluntarily, by operation of law, or otherwise without Nanometrics’s prior written consent. Nanometrics may assign this Agreement at any time without notice. The failure of a party to claim a breach of any term of this Agreement shall not constitute a waiver of such breach or the right of such party to enforce any subsequent breach of such term. If any provision of this Agreement is held to be unenforceable or illegal, such decision shall not affect the validity or enforceability of such provisions under other circumstances or the remaining provisions of this Agreement and such remaining provisions shall be reformed only to the extent necessary to make them enforceable under such circumstances.  This Agreement shall be governed by the laws of the Province of Ontario and the laws of Canada applicable therein. No choice or conflict of laws rules of any jurisdiction shall apply to this Agreement.  You shall only be entitled to bring any action or proceeding arising out of or relating to this Agreement, the Software or any services provided in respect to the Software in a court in Ottawa, Ontario, Canada, and You consent to the jurisdiction of such courts for any such action or proceeding. You waive all rights that You may have or that may hereafter arise to contest such jurisdiction of such courts for any action or proceeding brought by You. You hereby waive any right You may have to request a jury trial with respect to any action brought by You in connection with this Agreement, the Software or any services provided in respect to the Software. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded.  The Uniform Computer Information Act does not apply to this Agreement.

 

March 27, 2017