ICONICS LICENSE AGREEMENT

CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS!

Last updated October 5, 2021

THIS ICONICS LICENSE AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN THE INDIVIDUAL OR ENTITY ON BEHALF OF WHICH SUCH INDIVIDUAL ACCEPTS THIS AGREEMENT (“YOU” “YOUR” OR “LICENSEE”) AND ICONICS, INC. (“ICONICS”). BY INSTALLING, ACCESSING, OR USING ANY PRODUCTS, YOU HEREBY AGREE TO BE BOUND BY THIS AGREEMENT AND REPRESENT THAT YOU ARE AUTHORIZED TO DO SO. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT OR IF YOU DO NOT HAVE AUTHORITY TO BIND THE ENTITY ON BEHALF OF WHICH YOU ARE ACCEPTING THIS AGREEMENT, RETURN ALL PRODUCTS AND DOCUMENTATION PROVIDED WITH THIS AGREEMENT WITHIN SEVEN DAYS OF YOUR RECEIPT AND YOUR MONEY WILL BE REFUNDED. NOTE THAT FAILURE TO COMPLY WITH SUCH INSTRUCTIONS WITHIN THE TIME PERIOD SPECIFIED WILL VOID ANY RIGHT YOU WOULD OTHERWISE HAVE HAD FOR A REFUND OF ANY FEES PAID. USING THE PRODUCTS FOR ANY PURPOSE INDICATES YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.

ICONICS PROVIDES THE PRODUCTS AND LICENSES THEIR USE IN THE UNITED STATES AND INTERNATIONALLY.

1. DEFINITIONS

  1. “Consignment License” means a temporary license solely for the purpose of in-house development, Products demonstration or emergency temporary license replacement.
  2. “Documentation” means the description contained in the help files embedded within the configuration environments of the Products. Then current Documentation for Products is available online at https://docs.iconics.com.
  3. “ICONICS Channel Partner” means an official ICONICS reseller who covers Your geographic location.
  4. “License Term” means the period that the Products are licensed to You as specified in the Order. The License Term for Products provided on a subscription basis is as specified in the Order.
  5. “Order” means a written document that is provided to, and/or signed by Licensee, for the purpose of purchasing the applicable Products and/or Support Services. The order form will describe the Products, provide the License Term, include any additional terms, and set forth pricing. The term “Order” also includes any applicable Products and/or Support Services renewal. If the Products are licensed through an ICONICS Channel Partner, then the order form of such ICONICS Channel Partner will apply.
  6. “Products” means the ICONICS proprietary software products identified in Your applicable Order, including any and all (i) updates, enhancements, and modifications made thereto and (ii) versions and releases thereof.
  7. “Support Services” means the technical support and maintenance ICONICS provides for the Products per the ICONICS SupportWorX Plans as described in the ICONICS SupportWorX Guide. For Products licensed on a perpetual basis, Support Services are available for purchase on an annual subscription basis. To receive ICONICS technical support and maintenance, You must have an annual SupportWorX Plan in place. For Products licensed on a subscription basis, Support Services are included in Your annual license fees as described in the ICONICS SupportWorX Guide.
  8. “Warranty Period” means the period of thirty (30) days from the date of Your first acquisition of the Products. ICONICS issuance of a Products new release will not restart a Warranty Period that has expired.

2. GRANT OF LICENSE AND RESTRICTIONS

  1. Grant of License: ICONICS grants Licensee a non-sublicensable, nonexclusive right to install and use the Products during the License Term solely for Licensee’s internal business purposes and strictly in accordance with this Agreement.  You may 1) activate each Product license key on a single machine, usage limited to one unique instance of each Product feature authorized; and 2) make a reasonable number of copies solely for purpose of supporting Your usage of the Products in accordance with this Section 2.  Licensee will maintain the copyright notice, logo, trademark and any other notices that appear on the Products on any copies and any media.  Notwithstanding the above, if the Products are provided on Consignment License, then Licensee additionally agrees that Consignment License shall never be used for any actual production application, and shall never be copied, transferred, sub-licensed, sold or resold to any third party. This Agreement does not entitle You to any new versions or releases of the Products, or any upgrades, enhancements or modifications to the Products, except as ICONICS may make available to You under Support Services.
  2. Restrictions: You may not (and will not allow any third party to) (i) copy (except for the authorized copies as provided in the License above), translate, modify, enhance or adapt the Products, or any portion thereof; (ii) incorporate the Products, in whole or any part, in any other product; (iii) create derivative works based on the Products, or any portion thereof; (iv) distribute,  sell, license, assign or otherwise transfer the Products to any third party without ICONICS prior written consent; (v) license others to reproduce any copies of the Products, or any portion thereof; (vi) decompile, disassemble or reverse engineer the Products, or any component thereof except as permitted by law, and then only after having prior requested in writing from ICONICS any interoperability information you are attempting to obtain; (vi) circumvent, disable or otherwise interfere with security-related features of the Products; or (vii) provide, lease, lend, use the Products for timesharing or service bureau purposes or otherwise use or allow others to use the Products for the benefit of any third party. All the limitations and restrictions on Products in this Agreement also apply to Documentation.
  3. Third Party Components: Products may contain third party software components that require you to agree to certain additional notices and/or terms. ICONICS has identified such additional requirements in the Documentation of the Products and such additional requirements are incorporated by reference into this Agreement. To the extent required by the license covering any third party software component, the terms of such license will apply to such third party software component instead of the terms of this Agreement. To the extent the license applicable to any third party software component prohibits any of the restrictions herein with respect to such third party software component, such restrictions will not apply to such third party software component. To the extent the terms of the license applicable to any third party software component requires ICONICS to make an offer to provide source code or related information in connection with such third party software component, such offer is hereby made.

3. TERM AND TERMINATION

This Agreement is effective for the License Term unless terminated early in accordance with this paragraph. This Agreement will automatically terminate if You fail to comply with any term or condition of this Agreement. Any license or right granted hereunder will automatically terminate upon termination of this Agreement. You agree, upon termination, to immediately cease use of Products and return or destroy the Products and all copies that were made from it and to promptly return any copy protection key(s) to ICONICS. Sections 4, 5.5, 5.6, and 6-11 of the Agreement shall survive termination. Termination of this Agreement does not affect Your obligation of, or ICONICS rights to, any payments due.

4. INTELLECTUAL PROPERTY

ICONICS is the sole owner of the Products, Documentation, Support Services and of any copies of the Products and Documentation, and retains all title, interest, copyright, trade secret, patent, trademark and other intellectual or industrial property rights in and to the Products, Documentation and Support Services. Any rights and licenses granted herein automatically revert to ICONICS upon expiration or termination of this Agreement. Except as expressly set forth herein, this Agreement does not grant You any intellectual property rights in or to the Products, Documentation or Support Services. You shall have no rights to the source code of the Products.

5. WARRANTY; DISCLAIMER

  1. ICONICS Sole Product Warranty: ICONICS warrants to You that the Products will materially conform to the applicable Documentation during the Warranty Period (“Warranty”). To be covered, You must report a warranty issue to ICONICS during the Warranty Period.
  2. Warranty Exceptions: ICONICS shall have no warranty obligations if any failure of the Products to meet the Warranty is related to any modifications to or customizations of the Products and/ or any combination of the Products with another product not specifically authorized in writing by ICONICS.
  3. ICONICS entire liability and Your exclusive remedy for any breach by ICONICS of the Warranty shall be, at ICONICS sole option, either to replace or repair the Products not meeting the Warranty. If, in ICONICS sole opinion, replacement or repair is not practical, You may return the Products and any copies during the Warranty Period, and ICONICS or ICONICS Sales Channel Partner (as applicable) will issue You a refund for the license fees paid for the Products not meeting the Warranty.
  4. No Additional Warranties: Third parties, including but not limited to any employee, officer, consultant, contractor, distributor or agent of ICONICS or ICONICS Channel Partner, are prohibited from providing any additional warranties or representations that are different that the Warranty contained in this Agreement with respect to the Products, and any such additional warranties or representations are invalid and of no effect.
  5. Disclaimer of Warranties: EXCEPT FOR THE WARRANTY EXPLICITLY SET FORTH IN THIS WARRANTY SECTION, ICONICS SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, WRITTEN OR ORAL, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, PERFORMANCE, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR LOSS OR CORRUPTION OF DATA.  ICONICS DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE PROGRAM WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE PROGRAM WILL BE UNINTERRUPTED OR ERROR FREE.
  6. Customer Responsibility: You assume the responsibility for the selection of the PRODUCTS to achieve your intended results, and for the installation, use and results obtained from the PRODUCTS.

6. LIMITATION OF LIABILITY

  1. Entire Liability: The warranty provisions provided in Article 5 (Warranty; Disclaimer) hereof state the entire liability of ICONICS, its subsidiaries, affiliates, and each of their respective directors, officers, employees or agents, with respect to the Products.
  2. IN NO EVENT SHALL ICONICS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES WHATSOEVER IN CONNECTION WITH CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT WHETHER BASED UPON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY OR CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN JURISDICTIONS THAT DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, THE LIABILITY OF ICONICS SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

7. PERSONAL DATA

Any and all personal data You provide to ICONICS or ICONICS otherwise receives or collects in connection with the performance of its obligations under this Agreement will be processed in accordance with the ICONICS, Inc. Privacy Policy available here https://iconics.com/Privacy.

8. DATA

In its performance of this Agreement, ICONICS may receive, collect and/or process certain technical and related information about Your use of the Products, including without limitation, version of Products, country location, language, OS version, usage statistics and other similar data. You agree that ICONICS may use such data to support, troubleshoot, evaluate, identify trends, and enhance the Products.

9. ICONICS RETURN POLICY

All sales are final (NO RETURNS) unless Products are returned in original packaging material within seven (7) days after shipment wherein ICONICS will provide a full refund of license fees paid for the Products less all incurred shipping and handling costs. No returns are allowed on ToolWorX Products.

10. COMPLIANCE WITH LAWS

  1. Compliance: Licensee represents and warrants that it will use the Products, as well as related technology and services, in full compliance with all applicable laws and regulations.  
  2. US Export Control: The Products and technology that ICONICS provides hereunder are subject to United States export control laws and regulations, including, without limitation, the United States Export Control Reform Act of 2018, the Export Administration Regulations (collectively, as amended, “US Export Laws”).  You shall comply with all US Export Laws and shall obtain all necessary government authorization and maintain all required documentation in connection therewith.  You shall not transfer, export, re-export or release the Products and related technology in violation of US Export Laws.
  3. Indemnification: You shall indemnify and hold ICONICS harmless from all liabilities, damages, costs and expenses arising from or connected to any breach of Your obligations under this Article.

11. GENERAL

  1. Governing Law: This Agreement will be governed by the laws of the Commonwealth of Massachusetts without reference to conflict of laws principles. ICONICS and Licensee hereby expressly disclaim the application of the U.N. Convention for the International Sale of Goods. All disputes arising under, out of, or in any way connected with this Agreement shall be litigated exclusively in the state or federal courts situated in the Commonwealth of Massachusetts. Notwithstanding the foregoing, ICONICS shall have the right to bring a claim in any court of competent jurisdiction to enforce any intellectual property rights and/or protect any confidential information. 
  2. Marketing: ICONICS reserves the right to use Your name and/or logo as a reference for marketing or promotional purposes on ICONICS’s website.
  3. Entire Agreement: You agree that the terms of this Agreement are the complete and exclusive statement of contract between you and ICONICS relating to the subject matter of the Agreement, and supersedes any proposal or agreement, oral or written, and any other communications between you and ICONICS, including any of Your purchase order terms and conditions. Any modification or exception to this Agreement must be agreed to in writing by ICONICS.
  4. Assignment: Neither the Agreement nor the licenses granted hereunder are assignable or transferable by Licensee without the prior written consent of ICONICS; any attempt to do so shall be null and void.
  5. Severability: If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
  6. Amendment: Your use of the Products is subject to the then current version of this Agreement. ICONICS may amend this Agreement at any time. In such event, ICONICS will include the amended Agreement with the Products, and may post the updated Agreement to our website or otherwise notify you of such amendment(s). Your continued usage of the Products signifies You agree to the amended Agreement. Should You not agree to the amended Agreement, You shall cease using the Products immediately and contact ICONICS to terminate this Agreement.
  7. Questions: Should you have any questions concerning this Agreement, you may contact ICONICS in writing at: ICONICS, Inc., 100 Foxborough Boulevard, Foxborough, MA 02035 USA or via our website at www.iconics.com.