Condor License Agreement

galaxyadvisors, AG
Software License Agreement

IMPORTANT NOTICE
READ THE TERMS AND CONDITIONS OF YOUR LICENSE AGREEMENT CAREFULLY BEFORE COPYING, INSTALLING, OR USING THE PROGRAMS OR DOCUMENTATION.
THE LICENSE AGREEMENT TOGETHER WITH ANY APPLICABLE ADDENDUM REPRESENTS THE ENTIRE AGREEMENT BETWEEN YOU (THE “LICENSEE”) AND galaxyadvisors AG (“galaxyadvisors”) CONCERNING THE PROGRAM(S) AND DOCUMENTATION. BY COPYING, INSTALLING, OR USING THE PROGRAMS AND DOCUMENTATION, YOU ACCEPT THE TERMS OF THIS AGREEMENT. IF YOU ARE NOT WILLING TO DO SO, DO NOT COPY, INSTALL, OR USE THE PROGRAMS AND DOCUMENTATION.
galaxyadvisors, Aarau, 01.04.2009

1. DEFINITIONS.

1.1.
“Licensee” means you, whether an individual or an entity, to whom Galaxyadvisors grants the License, and who is responsible for complying with the contractual obligations of the License, and ensuring that anyone permitted access to the Programs also complies with such obligations.
1.2.
“Affiliate” means a legal entity which is controlled by, or controls, or is under common control with Licensee.
Control means (i) beneficial ownership of at least fifty percent (50%) of the voting securities of a corporation or other business organization with voting securities, or (ii) a fifty percent (50%) or greater interest in the profits and capital of a partnership or other business organization without voting securities.
1.3.
“Computer” means a single physical hardware system containing a maximum of four (4) Processors.
Each hardware partition, or blade in a blade server, is considered to be a separate Computer, and a hardware system with more than four (4) Processors is considered to be more than one Computer.
1.4.
“Documentation” means the user guides, if any, accompanying delivery of a Program, as may be updated from time to time.
Documentation may be delivered in any medium or language.
1.5.
“Internal Operations” means the use of a Program by employees, consultants, student interns, and software administration contractors of Licensee or an Affiliate on behalf of the Licensee or Affiliate.
1.6.
“Licensed User” means an individual authorized by the Licensee to use the Programs for Licensee’s Internal Operations, to the extent permitted by the License Option acquired.
1.7.
“License Option” means the specific rights, restrictions, and obligations under which Licensee may install and use a Program pursuant to this Agreement, including those related to the permitted Activation Type associated with the License Option acquired, as described in the applicable Installation and Use Addendum, and including restrictions associated with the License being an “Annual License,” “Term License,” “Perpetual License ,” or “Student License” as described under Article 9.
1.8.
“Licensor” means the person who, or entity which, grants a license to Galaxyadvisors to redistribute that person’s or entity’s intellectual property.
1.9.
“Processor” means a single integrated circuit on the motherboard of a Computer that contains one or more cores which are used for interpreting software instructions and processing data contained in software programs.
1.10.
“Program” means the software licensed hereunder, including Documentation, enhancements and error corrections.
Each product licensed hereunder is a separate Program.
1.11.
“Third Party” means any person or legal entity that is not Galaxyadvisors,the Licensee, or an Affiliate.

2. ACCEPTANCE AND REFUNDS.
If Licensee does not accept the terms and conditions of this License and any applicable Addendum, or if Licensee terminates this License, for any reason, within thirty (30) days of Program delivery (the “Acceptance Period”), then Licensee shall immediately return the Programs licensed hereunder to Galaxyadvisors or the authorized distributor from whom Licensee acquired the Programs and, if returned within the Acceptance Period, shall receive a full refund. By retaining a Program throughout the Acceptance Period, Licensee accepts the applicable rights, and agrees to be bound by the applicable obligations and restrictions, of this Agreement including the License Option acquired with respect to that Program.

3. LICENSE GRANT.
Galaxyadvisors hereby grants to Licensee, subject to the terms of this Agreement, a nonexclusive license (the “License”) to:
3.1.
install and use the Programs solely on Computers controlled by Licensee, in accordance with the License Option acquired and associated, and solely for Internal Operations;
3.2.
provide access to online Documentation on Licensee’s intranet, provided it is not accessible over the open Internet;
3.3.
print portions of the online Documentation for reasonable use by Licensed Users; and
3.4.
use the Programs as expressly set forth in the Deployment Addendum.

4. LICENSE RESTRICTIONS.
The License is subject to the express restrictions set forth below. Licensee shall not, and shall not permit any Third Party to:
4.1.
modify, or create any derivative work of, a Program or any part of the licensed Programs, except as expressly permitted in Article 7.
Notwithstanding anything to the contrary contained herein, any such permitted modifications must be consistent with all other terms of this Agreement;
4.2.
adapt, translate, copy, or convert all or any part of a Program in order to create software, a principal purpose of which is to perform the same or similar functions as Programs licensed by Galaxyadvisors or to replace any component of the Programs;
4.3.
rent, lease, or loan the Programs; use the Programs for supporting Third Parties’ use of the Programs, time share the Programs, or provide service bureau or similar service use;
4.4.
disassemble, decompile, reverse engineer the Programs or otherwise attempt to gain access to its method of operation or source code (other than files provided for convenience in source code form by Galaxyadvisors);
4.5.
sell, license, sublicense, publish, display, distribute, disseminate, assign, or otherwise transfer (whether by sale, exchange, lease, gift, or otherwise) to a Third Party the Programs, any copy or portion thereof, or any License or other rights thereto, in whole or in part, without Galaxyadvisors’ prior written consent.
4.6.
alter, remove, or obscure any copyright, trade secret, patent, trademark, logo, proprietary and/or other legal notices on or in copies of the Programs;
4.7.
use Galaxyadvisors’ name, trade names, logos, or other trademarks of Galaxyadvisors or any of its Affiliates or Licensors in any advertising, promotional literature or any other material, whether in written, electronic, or other form, distributed to any Third Party, except in the form provided by Galaxyadvisors, and then solely for purposes of identifying Galaxyadvisors’ Programs;
4.8.
provide access (directly or indirectly) to the Programs via a web or network Application, except as permitted in Article 8 of the Deployment Addendum;
4.9.
copy, make available for copy, or otherwise reproduce the Programs, in whole or in part, except either (a) as may be required for their installation into Computer memory for the purpose of executing the Program in accordance with the License Option and associated permitted Activation Type, (b) as expressly permitted in the Deployment Addendum, or (c) to make a reasonable number of copies solely for back-up purposes provided that any such permitted copies shall reproduce all copyright, trade secret, patent, logo, proprietary and/or other legal notices contained in the original copy obtained from Galaxyadvisors;
4.10.
access or use Programs that Licensee is not currently licensed to access or to use;
4.11.
disclose the personal license password and/or license file and/or authorization code to a Third Party or allow them to be used except for installation and use of the Programs as provided herein;
4.12.
republish the Documentation, except as expressly permitted in Article 3; and/or
4.13.
create a server, for code generation, compilation, or other Programs.

5. ADDITIONAL FEES.
The fees for the License granted herein are determined based upon Licensee’s installation and use of the Programs in the country in which the original delivery of the Programs occurs. Galaxyadvisors may charge Licensee an additional fee for any subsequent installation and use of the Programs licensed hereunder in any other country.

6. RETENTION OF RIGHT, TITLE AND INTEREST BY GALAXYADVISORS AND ITS LICENSORS.
The Programs shall at all times remain the property of Galaxyadvisors and/or Galaxyadvisors’ Licensors and Licensee shall have no right, title, or interest therein, except as expressly set forth in this Agreement. Licensee shall take appropriate action by instruction, agreement, or otherwise with any persons permitted access to the Programs, so as to enable Licensee to satisfy its obligations under the terms of this Agreement.

7. LICENSES FOR THIRD PARTY SOFTWARE AND PRODUCTS.
Galaxyadvisors has been granted licenses to distribute certain Third Party software either as part of a Program or as separate products licensed under a separate license agreement. These licenses require Galaxyadvisors to distribute the software to Licensee subject to specific terms and conditions, which may be different from or additional to those contained herein. Should such Third Party software be provided under the Lesser General Public License, Licensee may make modifications of the work identified in Section 6 of the Lesser General Public License for Licensee’s own use and reverse engineering for debugging such modifications. Licensee agrees that acceptance of this Agreement also confirms Licensee’s acceptance of any applicable Third Party software licenses. Licensee may contact Galaxyadvisors to obtain the current applicable provisions.

8. SOFTWARE MAINTENANCE SERVICE.
During any paid Software Maintenance Service term, if applicable, Galaxyadvisors shall provide Software Maintenance Service for the licensed Programs which consists of: delivering subsequent releases of the Programs, if any, that are not charged for separately; exerting reasonable efforts to both (a) provide, within a reasonable time, workarounds for any material programming errors in the current release of the Programs that are directly attributable to Galaxyadvisors, and (b) correct such errors in the next available release, provided Licensee provides Galaxyadvisors with sufficient information to identify the errors. During this same paid Software Maintenance Service term, Licensee shall also be entitled to receive technical support for the current release. Technical support means assistance by telephone and electronic mail with the installation and/or use of the then-current release of the licensed Programs, including all available bug fixes and patches, and their interaction with supported hardware and operating systems (“Platforms”). Galaxyadvisors reserves the option to discontinue, in whole or in part, and at any time, offering Software Maintenance Service and/or technical support for any Program or Platform.

9. LICENSE DURATION (“TERM”).
This Agreement shall continue until the earlier of (a) termination by Galaxyadvisors or Licensee as provided below, or (b) such time as there are no Programs being licensed to Licensee hereunder.
9.1.
For Annual Licenses: Licensee understands and agrees that each Annual License will expire automatically immediately after its corresponding one (1) year period, unless Licensee renews its License by remitting the then-current annual License fee. Licensee understands that the Programs will stop operating unless Licensee pays the License fee and is provided new monthly and/or annual authorization codes. Licensee understands and agrees that the Software Maintenance Service for each Annual License will terminate automatically upon expiration of the Annual License Term.
9.2.
Term Licenses: Licensee understands and agrees that each Term License will expire automatically immediately after the corresponding period of the term licensed, unless Licensee renews its License by remitting the then-current term License fee. Licensee understands that the Programs will stop operating unless Licensee pays the License fee and is provided new term passcodes. Licensee understands and agrees that the Software Maintenance Service for each Term License will terminate automatically upon expiration of the License Term.

10. TERMINATION.
Galaxyadvisors may terminate this Agreement and all Licenses granted hereunder by written notice to Licensee if Licensee breaches any material term of this License, including failure to pay any License fees due, and Licensee has not cured such breach within sixty (60) days of written notification. Galaxyadvisors may immediately terminate upon notice this Agreement and all Licenses granted hereunder should Licensee breach the terms and conditions of Articles 3, 4, and/or 11. Licensee may terminate this License at any time, for any reason. Licensee shall not be entitled to any refund if this License is terminated, except for License fees paid for any Programs for which the Acceptance Period has not expired at the time of termination. Upon termination, Licensee shall promptly return all but archival copies of the Programs in Licensee’s possession or control, or promptly provide written certification of their destruction.

11. EXPORT CONTROL.
The Programs may be subject to U.S. export control laws or other (U.S. and non-U.S.) governmental export and import laws and regulations. Notwithstanding any other term of this Agreement or Third Party agreement, Licensee’s rights under this Agreement may not be exercised by Licensee or any Third Party in violation of such laws and regulations, nor may this Agreement be transferred to any party where doing so would result in such a violation. The terms of any limitation on the use, transfer or re-export of the Programs imposed by Galaxyadvisors in any Destination Control Statement or other document for the purpose of export control shall prevail over any term in this Agreement. It shall be Licensee’s responsibility to comply with the latest United States or other governmental export and import regulations.

12. TAXES, DUTIES, CUSTOMS.
Absent appropriate exemption certificates or other conclusive proof of tax exempt status, Licensee shall pay all applicable sales, use, excise, value-added, and other taxes, duties, levies, assessments, and governmental charges payable in connection with this Agreement or the Licenses granted hereunder, excluding taxes based on or measured by Galaxyadvisors’ income, for which Galaxyadvisors shall be solely responsible.

13. ASSIGNMENT.
Licensee may not assign or otherwise transfer this Agreement and its rights and obligations hereunder, in whole or in part, by operation of law or otherwise, without the written consent of Galaxyadvisors. In the case of any permitted assignment or transfer of or under this Agreement, this Agreement or the relevant provisions shall be binding upon, and inure to the benefit of, the successors, executors, heirs, representatives, administrators and assigns of the parties hereto. Galaxyadvisors may charge Licensee an administrative fee for any permitted assignment.

14. LIMITATION OF LIABILITY.
The Programs should not be relied on as the sole basis to solve a problem or implement a design whose incorrect solution or implementation could result in injury to person or property. If a Program is employed in such a manner, it is at the Licensee’s own risk and Galaxyadvisors and its Licensors explicitly disclaim all liability for such misuse to the extent allowed by law. Galaxyadvisors’ and Galaxyadvisors’ Licensors’ liability for death or personal injury resulting from negligence or for any other matter in relation to which liability by law cannot be excluded or limited shall not be excluded or limited. Except as aforesaid, (a) any other liability of Galaxyadvisors and its Licensors (whether in relation to breach of contract, negligence or otherwise) shall not in total exceed the amount paid to Galaxyadvisors under this Agreement in the twelve month period preceding the claim in question, for the Program with respect to which the liability in question arises; and (b) Galaxyadvisors and its Licensors shall have no liability for any indirect or consequential loss (whether foreseeable or otherwise and including loss of profits, loss of business, loss of opportunity, and loss of use of any computer hardware or software). Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above exclusion or limitation may not apply to Licensee.

15. LIMITED WARRANTY/LIMITATION OF REMEDIES.
Galaxyadvisors warrants that Galaxyadvisors, on its own behalf or through its Licensors, has the right to grant the License rights hereunder. Galaxyadvisors warrants that the physical media provided shall be free from defects in material and workmanship for a period of ninety (90) days from delivery, or it will be replaced by Galaxyadvisors at no cost to Licensee. Galaxyadvisors further warrants, for a period of one (1) year from delivery or for the term of the License, whichever is less, that each copy of each Program will conform in all material respects to the description of such Program’s operation in the Documentation. In the event that a Program does not operate as warranted, Licensee’s exclusive remedy and Galaxyadvisors’ sole liability under this warranty shall be the correction or workaround by Galaxyadvisors of major defects within a reasonable time. Should such correction or workaround be impractical, Galaxyadvisors may, at its option, terminate the relevant License and refund the initial License fee paid to Galaxyadvisors for such Program. All requests for warranty assistance should be directed to Galaxyadvisors, AG, Laurenzenvorstadt 69, CH 5000 Aarau, Switzerland.

16. DISCLAIMER OF WARRANTIES.
Except for warranties expressly set forth in Article 15 of this Agreement (or as implied by law where the law provides that the particular terms implied cannot be excluded by contract), any and all Programs, Documentation, and Software Maintenance Services are delivered “as is” and Galaxyadvisors makes and the Licensee receives no additional express or implied warranties. Galaxyadvisors and its Licensors hereby expressly disclaim any and all other conditions, warranties, or other terms of any kind or nature concerning the Programs, Documentation, and Software Maintenance Services (including, without limitation, any with regard to infringement, merchantability, quality, accuracy, or fitness for a particular purpose or Licensee’s purpose). Galaxyadvisors also expressly disclaims any warranties that may be implied from usage of trade, course of dealing, or course of performance. Except for the express warranties stated in Article 15 of this Agreement, the Programs, Documentation, and Software Maintenance Services are provided with all faults, and the entire risk of satisfactory quality, performance, accuracy, and effort is with Licensee. Galaxyadvisors does not warrant that the Programs and Documentation will operate without interruption or be error free. Some states and countries do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to Licensee. The warranty in Article 15 gives Licensee specific legal rights and Licensee may also have other rights which vary from state to state and country to country. Licensee accepts responsibility for its use of the Programs and the results obtained therefrom.

17. GOVERNING LAW; JURISDICTION.
This Agreement shall be interpreted, enforced and construed and the rights of the parties hereunder governed in all respects by the laws of the Canton of Aargau, Switzerland without regard to its conflicts of law provisions, and both parties consent to the jurisdiction of the federal and state courts located in said Canton and consent to the service of process, pleadings and notices in connection with any and all actions initiated in such courts. The parties agree that a final judgment in any such action or proceeding shall be conclusive and binding and may be enforced in any other jurisdiction. To the extent any governing law, treaty, or regulation is in conflict with this Agreement, the conflicting terms of this Agreement shall be superseded only to the extent necessary by such law, treaty, or regulation. If any provision of this Agreement shall be otherwise unlawful, void, or otherwise unenforceable, that provision shall be enforced to the maximum extent permissible. In either case, the remainder of this Agreement shall not be affected.

18. COMPLIANCE AND AUDIT RIGHTS.
Licensee agrees to notify Galaxyadvisors promptly upon discovery of any failure to comply with one or more Licenses granted under this Agreement, or any failure to comply with any other material term of this Agreement. To confirm Licensee’s compliance with the terms and conditions of this Agreement, Licensee agrees to allow Galaxyadvisors to audit Licensee’s use of the Programs, and to provide Galaxyadvisors access to Licensee’s facilities and Computers, and cooperation from Licensee’s employees and consultants, as reasonably requested by Galaxyadvisors in order to perform such audit, all during normal business hours, and after reasonable prior notice from Galaxyadvisors. If an audit discloses that Licensee has failed to comply with one or more Licenses, and such failure to comply could have in part or in whole been avoided by Licensee having paid additional License fees to expand the scope of the License or Licenses, then Licensee shall promptly pay Galaxyadvisors such Licensing fees (at Galaxyadvisors’ then current rates) and, if such unpaid License fees exceed 5% of the License fees paid to Galaxyadvisors for the applicable Programs during the applicable period during which such underpayment occurred, then Licensee shall, in addition to paying the unpaid License fees, also reimburse Galaxyadvisors the full cost of such audit.

19. LICENSE MANAGEMENT.
The Programs contain technology for the prevention of unlicensed use. The Programs require activation to exercise your rights under this Agreement. You may also need to activate if you redesignate the Programs on your License or modify your computer hardware. Activation associates the use of the Programs with a specific Computer, and in some cases the Licensed User. During activation, data about the Programs and the Computer might be transmitted to Galaxyadvisors. This data includes the License information, Computer identification, and location. Some License Options may require the Galaxyadvisors Account information and the operating system user name for the Licensed User. A License file will be provided to complete activation.

20. HEADINGS.
The inclusion of headings is for convenience of reference only and shall not affect the construction or interpretation of this Agreement.

21. ENTIRE AGREEMENT.
This Agreement, and any applicable Addendum thereto including any documents referenced therein are incorporated herein by reference, and contain the entire understanding of the parties and may not be modified or amended except by written instrument, executed by authorized representatives of Galaxyadvisors and Licensee. In the event of any conflict between this Agreement and any purchase order executed by Licensee (whether executed before or after this Agreement), this Agreement shall prevail.

Installation and Use Addendum
This is an Addendum to galaxyadvisors, AG, Software License Agreement (the “Agreement”), and the terms and conditions of this Addendum are incorporated therein. Each capitalized term used herein and not defined herein shall have the meaning ascribed to it in the Agreement.

1. SCOPE.
The Installation and Use provisions of this Addendum apply to each Program licensed under the Agreement. The applicable provisions are determined by the particular License Option that Licensee acquired, including those related to the permitted Activation Type associated with the License Option acquired.

2. DEFINITIONS.
2.1.
Activation Type. One of the Standalone Named User, Designated Computer, Network Named User, or Network Concurrent User Activation Types available with respect to the License Option acquired.
2.2.
License Manager. A License Manager is integrated into the Program to administrate user authorization codes.
2.3.
Licensed User. An individual authorized by the Licensee to use the Programs for Licensee’s Internal Operations, to the extent permitted by the License Option acquired.
2.4.
License Option. The specific rights, restrictions, and obligations under which Licensee may install and use a Program pursuant to the Agreement, including those related to the permitted Activation Type associated with the License Option acquired.
2.5.
Named User. A Licensed User designated and identified by Licensee as the “Named User” for a License to a Program under either the “Standalone Named User” or “Network Named User” Activation Type.

3. INSTALLATION AND USE.
Specific rights, obligations, and restrictions apply to each License Option. Licensee’s right to install and use the Programs is determined by the License Option acquired, including the permitted Activation Type with respect to such License Option. By accepting the terms and conditions of the Agreement, Licensee also accepts the License Option acquired.
3.1.
License Options.
3.1.1.
Individual. The Individual License Option permits one Activation Type, either the Standalone Named User Activation Type or the Designated Computer Activation Type.
3.1.2.
Network Named User. The Network Named User License Option permits only the Network Named User Activation Type.
3.2.
Activation Types.
3.2.1.
Standalone Named User. Program use is restricted to the single, designated Named User. Programs may be installed and operated on one or more individual Computers, provided the Programs are only accessible to, and operated by, the Named User for that License. The physical locations of the Computers used by the Named User to run the Programs are not limited; the Computers may be located at work, home, in a laboratory, or on a laptop. Licensee may only designate one Licensed User access to or use of the Programs under each Named User License. Licensee may redesignate the Named User for a Program, whether temporarily or not, no more than four (4) times per year. A Named User may not use a Program on more than two (2) Computers simultaneously. In the case of Standalone Named User Licenses licensed as part of a group, Licensee shall be responsible for, and shall assign a central administrator the task of, administering the Licenses and installing the Programs, including new versions of the Programs delivered during any paid Software Maintenance Service term.
3.2.2.
Designated Computer. The Programs may only be installed and operated on a single, designated Computer, provided the Computer is not a network server and the Programs are only operated from that Computer’s console by only one Licensed User at any given time. Licensee may redesignate the Computer for a Program to a different Computer, whether temporarily or not, no more than four (4) times per year. In the case of Designated Computer Licenses licensed as part of a group, Licensee shall be responsible for, and shall assign a central administrator the task of, administering the Licenses and installing the Programs, including new versions of the Programs delivered during any paid Software Maintenance Service term.
3.2.3.
Network Named User. Programs may only be installed in a central location on a single designated network server. Licensee must run the License Manager in its User-Based mode, and edit the Local License Options file to maintain a list of Named Users authorized to access and operate each Program. Licensee may re-edit the list of Named Users in the Local License Options file and may redesignate Named Users for a Program, whether temporarily or not, no more than four (4) times per year, provided the number of Named Users in the file never exceeds the number licensed per Program. Portions of the Programs may be installed on individual Computers to accelerate startup times, as long as the installations on the individual Computers are controlled by the License Manager on the network server. A Named User may not use a Program on more than two (2) Computers simultaneously.
3.2.4.
Network Concurrent User. The Programs may only be installed in a central location on a single designated network server. Licensee must run the License Manager in its Concurrent mode, and may have only as many Licensed Users simultaneously operating a Program at any given time as the number of Concurrent keys acquired for that Program. Subject to the foregoing, a Licensed User of the Concurrent License Option may utilize any number of Computers served by a single License Manager provided that, before using a Program on any Computer, the Licensed User checks out a separate Concurrent key from the License Manager for that Computer. Portions of the Programs may be installed on individual Computers to accelerate startup times, as long as the installations on the individual Computers are controlled by the License Manager on the network server. Licensees of the Concurrent License Option are prohibited from providing Program access to users located outside the country in which the License Manager server is installed unless Licensee has contracted for global use.

4. REMOTE AND SHARED OPERATION.
Subject also to the foregoing:
4.1.
Remote Access to the Desktop: Using the Microsoft® Remote Desktop connection feature or similar technologies:
4.1.1.
Named Users and Network Named Users may remotely access Programs for which they are licensed.
4.1.2.
Network Concurrent Users may remotely access Programs served by the License Manager server for the License under which they are operating.
4.1.3.
The Licensee of a Designated Computer Activation Type may designate one Licensed User to remotely access the Programs licensed on the Designated Computer for operation on that Designated Computer. Licensee may redesignate such Licensed User, whether temporarily or not, no more than four (4) times per year.