Download a PDF of the Mekko Graphics Software End User License Agreement or view the agreement below.
KNOWLEDGE MANAGEMENT ASSOCIATES, LLC
MEKKO GRAPHICS SOFTWARE
END USER LICENSE AGREEMENT
BEFORE INSTALLING AND USING THE SOFTWARE PRODUCT (THE "SOFTWARE"), YOU (EITHER AN INDIVIDUAL OR A SINGLE ENTITY) SHOULD CAREFULLY READ THE FOLLOWING END USER LICENSE AGREEMENT (THE "AGREEMENT") THAT APPLIES TO THE SOFTWARE. BY CLICKING ON THE "YES" BUTTON, YOU ARE CONSENTING TO BE BOUND BY AND AGREE TO ALL OF THE PROVISIONS OF THIS LICENSE AGREEMENT. CLICKING "ACCEPT" ESTABLISHES A BINDING AGREEMENT BETWEEN YOU AS THE PERSON LICENSING THE SOFTWARE AND KNOWLEDGE MANAGEMENT ASSOCIATES, LLC ("KMA"). IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE "DO NOT ACCEPT" BUTTON. YOUR ACCEPTANCE OF THIS AGREEMENT IS REQUIRED AS A CONDITION TO PROCEEDING WITH THE INSTALLATION OF THE SOFTWARE. INTRODUCTION This AGREEMENT has three parts. Part I applies if you have acquired the Software from KMA free of charge in order to evaluate the Software. Part II applies if you have purchased an ongoing license to use the Software by paying the applicable license fees. Part III applies to any use of the Software. If you have determined that you wish to purchase an ongoing license, please visit the Buy Now page.
PART I - EVALUATION LICENSE GRANT (TERMS APPLICABLE TO YOUR USE OF SOFTWARE PRIOR TO PAYMENT OF LICENSE FEES (LIMITED TO EVALUATION, EDUCATIONAL AND NON-PROFIT USE)).
LICENSE GRANT: Subject to the terms of this Agreement, KMA grants you a limited, non-exclusive, non-transferable, non-sublicenseable license to use the Software and accompanying "online" or electronic documentation ("Documentation") free of charge solely in the manner described under the heading "PERMITTED USES" in Part III below solely for the purpose of evaluating the performance of the Software and determining whether to purchase an ongoing license to the Software (the "Evaluation License"). The term of the Evaluation License is limited to thirty (30) days from the date you download the Software, or such longer period as permitted in writing by KMA (the "Evaluation Period"); provided that KMA may terminate this Evaluation License for any reason at any time immediately upon notice. On the last day of the Evaluation Period you will, unless you have paid the applicable license fees for an ongoing license to use the Software, immediately cease all use of the Software and Documentation and destroy all copies of the Software and Documentation.
DISCLAIMER OF WARRANTIES: FREE OF CHARGE SOFTWARE IS PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND. KMA MAKES NO AND DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. The entire risk as to the quality and performance of the Software is borne by you. Should the Software prove defective in any respect, you and not KMA or its suppliers assume the entire cost of any service and repair. In addition, the security mechanisms implemented by the Software have inherent limitations, and you must determine that the Software sufficiently meets your requirements. You agree that this disclaimer of warranty constitutes an essential part of this Agreement. No use of the Software without payment of license fees to KMA is authorized hereunder except as expressly set forth under this Part I.
PART II - TERMS APPLICABLE WHEN LICENSE FEES PAID
LICENSE GRANT: Subject to the terms of this Agreement and particularly to payment of all applicable license fees, KMA grants to you a limited, non-exclusive, non-transferable and non-sublicenseable license during the term of this Agreement to use the Software and Documentation solely in the manner described under the heading "PERMITTED USES" in Part III below.
LIMITED PERFORMANCE WARRANTY: KMA warrants that for a period of thirty (30) days from the date on which KMA delivers you the license key for the Software (such date, the "Effective Date"), the Software, if operated as directed, will substantially achieve the functionality described in the Documentation (the "Performance Warranty"). KMA does not warrant, however, that your use of the Software will be uninterrupted or that the operation of the Software will be error-free or secure. In addition, the security mechanisms implemented by the Software have inherent limitations, and you must determine that the Software sufficiently meets your requirements. KMA's sole liability for any breach of the Performance Warranty shall be, in KMA's sole discretion: (i) to replace the defective Software; or (ii) to advise you how to achieve substantially the same functionality with the Software as described in the Documentation through a procedure different from that set forth in the Documentation; or (iii) if the above remedies are not commercially reasonable, to refund the license fee you paid for the Software. Repaired, corrected, or replaced Software and Documentation shall be covered by this limited Performance Warranty for the period remaining under the Performance Warranty that covered the original Software, or if longer, for fifteen (15) days after the date (a) of delivery to you of the repaired or replaced Software, or (b) KMA advised you how to operate the Software so as to achieve substantially the same functionality described in the Documentation.
CONDITIONS TO WARRANTY: Only if you inform KMA of your problem with the Software during the applicable warranty period and provide evidence of the date you purchased a license to the Software will KMA be obligated to honor the Performance Warranty.
WARRANTY EXCLUSIONS: If any modifications are made to the Software by you; if the Software is subjected to accident, abuse, or improper use; or if you violate the terms of this Agreement, then the Performance Warranty shall immediately terminate. Moreover, the Performance Warranty shall not apply if the Software is used on or in conjunction with hardware or software other than the unmodified version of hardware and software with which the Software was designed to be used as described in the Documentation.
DISCLAIMER OF WARRANTIES: THE PERFORMANCE WARRANTY IS A LIMITED WARRANTY, AND IT IS THE ONLY WARRANTY MADE BY KMA OR ITS SUPPLIERS. KMA MAKES NO AND DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE AND NONINFRINGEMENT. NO DEALER, AGENT, OR EMPLOYEE OF KMA IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THE PERFORMANCE WARRANTY.
TERM; TERMINATION: The term of the license granted in Part II begins on the Effective Date and will continue for one year unless this Agreement is terminated earlier in accordance with this section. You may renew the license for additional one year periods. KMA can immediately terminate this Agreement, including your right to use this Software and Documentation, if you fail to perform any of your obligations under this Agreement which is not remedied within thirty (30) days of written notice, fail to pay any fees related to the Software, or you cease to do business or become bankrupt. You may terminate this Agreement at any time by delivering written notice of such termination to KMA. Upon any termination of this Agreement, you will immediately cease all use of the Software and Documentation and destroy all copies of the Software and Documentation.
PART III - TERMS APPLICABLE TO ALL LICENSE GRANTS
* If you purchase a single user license, you may install and use the Software (in object code format only) on a single computer or workstation (the initial such computer or workstation, a "Designated Computer") in your facilities or premises on which such Designated Computer is originally located (the "Site") solely for your internal business purposes. In addition, you, as a purchaser of the single user license and primary user of the Designated Computer on which the Software is installed, may make a second copy of the Software for your exclusive use on either a portable computer or a computer located at your home, provided the Software on the portable or home computer is not used at the same time as the Software on the Designated Computer. * If you have paid for the right to use more than one copy of the Software (a volume license), you may permit each of, but no more than, the number of copies of the Software which you have paid for to be installed and used on such Designated Computers at the Site solely for your internal business purposes. * You may transfer the Software from a Designated Computer to another computer or workstation located in the Site upon written notice to KMA, which, upon installation of the Software, will be deemed to be the Designated Computer for purposes of this Agreement; provided that you remove and destroy the Software from the former Designated Computer prior to such transfer. * You may use the Software and Documentation solely for your internal business purposes.
* You must maintain all copyright notices on all copies of the Software. * You may not modify, reverse engineer, decompile, or disassemble the Software. * You may not rent or lease or lend the Software. * You may not permit other individuals or organizations to use the Software. * You may not copy the Software or Documentation other than one copy for archival or backup purposes. All archival and backup copies are subject to the provisions of this Agreement and all titles, trademarks, and copyright and restricted rights notices shall be reproduced in such copies.
UPGRADES AND SUPPORT: Your license to use Software includes the right to receive upgrades to the Software and support services which KMA generally makes available to customers. After installing the upgrade, you may no longer use the original Software that formed the basis for your upgrade eligibility, except as part of the upgraded Software.
COPYRIGHT: All title and copyrights in and to the Software (including but not limited to any images, photographs, animations, video, audio, music, text and "applets," incorporated into the Software), the accompanying printed materials, and any copies of the Software, are owned by KMA or its suppliers. All rights not expressly granted to you hereunder are reserved by KMA.
USE OF NAME: KMA shall be permitted to use your name or trade name in KMA’s customer list, provided such list contains at least five (5) names in alphabetical sequence and that your name is not highlighted more prominently than any other name on the list.
NON-DISCLOSURE: You acknowledge that the Software and Documentation contain trade secret or proprietary information of KMA or its supplier, and agree (a) not to disclose the Software or Documentation to anyone except to your personnel who have a need to use the Software and Documentation in order to exercise your rights under this Agreement and who are bound to a written agreement protecting the confidentiality of such Software and Documentation as required hereby; and (b) to protect the Software and Documentation using the same degree of care as with your own materials of a similar nature, but not less than a reasonable degree of care. U.S. GOVERNMENT RESTRICTED RIGHTS: The Software and documentation are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is Knowledge Management Associates, LLC, 77 Rumford Avenue, Suite 2, Waltham, MA 02453.
LIMITATION ON LIABILITY: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL KMA OR ITS SUPPLIERS BE LIABLE (WHETHER IN AN ACTION IN NEGLIGENCE, CONTRACT OR TORT OR BASED ON A WARRANTY OR OTHERWISE) FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR ANY INJURY TO PERSON OR PROPERTY, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, FOR LOSS OF PRIVACY FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF KMA OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS EXCLUSION OF DAMAGES SHALL BE EFFECTIVE EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL KMA BE LIABLE (WHETHER IN AN ACTION IN NEGLIGENCE, CONTRACT OR TORT OR BASED ON A WARRANTY OR OTHERWISE) FOR ANY DAMAGES IN EXCESS OF THE AMOUNT KMA RECEIVED FROM YOU FOR A LICENSE TO THE SOFTWARE IN THE TWELVE MONTH PERIOD PRIOR TO ANY CLAIM FOR DAMAGES, EVEN IF KMA SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. Some states/jurisdictions do not allow the limitation of damages or the exclusion of incidental and special damages, so the above limitation and exclusion may not apply to you.
GOVERNING LAW: This Agreement shall be governed by the laws of the Commonwealth of Massachusetts, excluding conflict of law provisions (except to the extent applicable law, if any, provides otherwise). The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. You hereby irrevocably and unconditionally consent to submit to the sole and exclusive jurisdiction of the courts of the Commonwealth of Massachusetts and of the United States of America located in the Commonwealth of Massachusetts (the "Massachusetts Courts") for any litigation arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement. You hereby waive any objection to the laying of venue of any such litigation in the Massachusetts Courts and agree not to plead or claim in any Massachusetts Court that such litigation brought therein has been brought in any inconvenient forum or that there are indispensable parties to such litigation that are not subject to the jurisdiction of the Massachusetts Courts.
ASSIGNMENT: You may not assign this Agreement without KMA's prior written consent and any such purported assignment or transfer shall be void and without effect.
LICENSE KEYS: You acknowledge that the Software contains "license keys" which enables KMA to enforce certain restrictions relating to your use of the Software (e.g., the term of the license, number of virtual users and number of concurrent users that may access the Software). You further acknowledge that such "license keys" may be used to enforce such license restrictions.
ENTIRE AGREEMENT: This Agreement, any upgrade assurance and/or support agreement(s) entered into by KMA, and any associated purchase documentation, is the complete and exclusive statement of the understandings of the parties, and it supersedes and merges all prior proposals and understandings, whether oral or written, relating to the subject matter of this Agreement. This Agreement may not be modified except in writing, signed by you and a duly authorized representative of KMA, and expressly referring to this Agreement.
EXPORT: You agree that you will not knowingly, in conjunction with exercising your rights hereunder (a) export or re-export, from the United States directly or indirectly, any technical data (as defined by the U.S. Export Administration Regulations); or (b) disclose such technical data for use in, or export or re-export directly or indirectly, any direct product of such technical data, including software, to any destination to which such export or re-export is restricted or prohibited by U.S. law, without obtaining prior authorization from the competent government authorities to the extent required by those laws.
SEVERABILITY: In the event that any provision of this Agreement is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and the remainder will continue in effect, to the extent consistent with the intent of the parties as of the Effective Date.
THIRD PARTY BENEFICIARIES: Nothing herein is intended to, or shall be construed to, confer upon any person or entity not a signatory party hereto any rights or benefits hereunder.
QUESTIONS: Should you have any questions, or if you desire to contact KMA for any reason, please contact Knowledge Management Associates, LLC -phone: 781-250-2001, address: 77 Rumford Avenue, Suite 2, Waltham, MA 02453, e-mail: firstname.lastname@example.org.