INVARION, INC.

END USER LICENSE AGREEMENT

PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING ON THE "I ACCEPT" BUTTON BELOW AND/OR BY INSTALLING AND USING ALL OR ANY PORTION OF THE SOFTWARE YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE TERMS OF THIS AGREEMENT, CLICK ON THE "I DECLINE" BUTTON BELOW AND DO NOT INSTALL OR USE ANY PART OF THIS SOFTWARE. BY ACCEPTING THIS AGREEMENT, YOU UNDERSTAND THAT THIS AGREEMENT IS A BINDING AGREEMENT BETWEEN INVARION AND YOU.

If you purchased this Software from Invarion, and you do not agree with any or all of the terms and conditions of this Agreement, return the unused Software at your cost within 14 days of purchase to Invarion, for a full refund of the product price (the refunded amount will not include any shipping costs associated with distributing the Software).

  1. DEFINITIONS

    Unless otherwise stated:

    • "Agreement" means this End User License Agreement.
    • "Agreed Number" means the number of computers on which Invarion allows you to install the Software. This number is directly related to the License Fee you have paid to Invarion or its agent and will be disclosed in the invoice or receipt of sale which you receive upon license of the Software.
    • "Computer" means an electronic device, which accepts digital or other information and uses that information and a sequence of instructions to perform operations on that information.
    • "Documentation" means any material (be it in hard copy or electronic format) which is intended to be used as instructional or reference material for the Software, including, but not limited to, user manuals, quick start guides and online help files in relation to the Software.
    • "Installation Files" means the group of files (one of which is an executable used to launch the installation process), which is used to install a copy of the Software on the host computer for use by Licensee.
    • "Invarion" means Invarion, Inc. of PO Box 1345, Guilderland, NY 12084
    • "RapidPlan Support Service" means the maintenance agreement that is provided a Licensee of the Software which stipulates Invarion's obligations with regard to maintaining the Software.
    • "Licensee" means the Person which has paid for the Software license.
    • "License Fee" means the fee that is paid to Invarion or its agent for a license to use the Software.
    • "Person" includes a natural person, corporation, partnership, trust, estate, joint venture, sole proprietorship, government or governmental subdivision or agency, association, cooperative and any other legal or commercial entity or undertaking.
    • "Software" means the software program developed by Invarion and known as "RapidPlan", with specific functionality as described in the Documentation, including, without, limitation, the content in part or entirety of:
      (i) any floppy disk, compact disk or other form of electronic media supplied upon sale of a license for this software;
      (ii) any electronic media created by Invarion or its agent, which is downloaded from any Computer, Server or website which may or may not take the form of an upgrade, cross-grade, new release or add on; provided that, in no event shall any Licensee which has not paid all current fees due for RapidPlan Support Service be entitled to any upgrade, cross-grade, new release or add on, and
      (iii) any included digital images, clip art, sounds or other artistic works.
    • "Server" means a Computer that is networked to other Computers, which may be used to store files so as to transmit them to other Computers on the network of which it is a part.
    • "You" means the Licensee and "your" shall have a corresponding meaning.

  2. GRANT OF LICENSE AND LICENSE RESTRICTIONS

    1. License Grant. Subject to compliance with the terms of and conditions this Agreement, Invarion grants you a non-exclusive, non-transferable license, to use the Software on the Agreed Number of Computers, for the purposes described in the Documentation (hereinafter referred to as the "License"). This Agreement sets out the terms on which Invarion agrees to grant to the Licensee, and the Licensee agrees to take from Invarion, the License in respect of the Software.
    2. Number of installations. Invarion permits you to install the Software on the Agreed Number of Computers for the purpose of using the Software as described in this Section 2. In no event shall Licensee install the Software on any Computer for which a License Fee has not been paid in full.
    3. Server use. Invarion allows you to copy one set of Installation Files to a Server for the sole use of installing the Software on the Agreed Number of Computers which are connected to that Server. If the Software is installed on a Server, that Computer counts as one of the Agreed Number of Computers referred to in Section 2.2.
    4. Legitimate backup. Invarion permits you to create one copy of the Software (on removable media or otherwise) solely for the purpose of backing up your original copy of the Software in the event it is damaged/lost/destroyed. This backup must not be duplicated, loaned, hired or otherwise distributed to any other party or used by any other party.
    5. Clipart software. Any included clipart files (including but not limited to sign glyphs and road tile glyphs) are protected by copyright and may not be used in other applications without the prior written consent of Invarion.
    6. Third party add-ons. Any third party software, which you may choose to use in conjunction with the Software is not warranted in any way by Invarion. Use of such third party software in conjunction with the Software may void any warranties (express or implied) supplied by Invarion. If you choose to use any third party software, then such use of that third party software, shall be governed by the third party's license agreement.
    7. Copies; Derivative Works. The Licensee may not copy, alter, modify, reproduce, create derivative works of, sub-license or otherwise exploit the Software except to the extent expressly authorized by this Agreement.
    8. Ownership. No title to or ownership of the Software is transferred to Licensee hereunder and, subject to the terms of the license grant hereunder, the Software remains the sole and exclusive property of Invarion. The Software is owned exclusively by Invarion and is protected by copyright law and international copyright treaties. Nothing in this Agreement transfers any intellectual property rights in the Software to the Licensee.
    9. Employees. You hereby undertake to ensure that your employees, sub-contractors and other agents who have authorized access to the Software or the Documentation comply with the terms and conditions of this Agreement.
    10. Trademarks and Other Notices. You agree to not intentionally or otherwise change, remove, partially or completely obscure, delete or otherwise deface or cover any trademark or copyright notices, branding or other information placed automatically on created traffic control plans by the software. The foregoing applies, without limitation, to any notice posted on plans which explains that RapidPlan was the application used to create the plan.

  3. WARRANTIES

    Invarion warrants to Licensee that: (i) Invarion has the right to furnish the Software covered hereunder free of all liens, claims encumbrances and other restrictions; and (ii) the Software furnished by Invarion and Licensee's use of the same hereunder do not violate or infringe the copyright or trademark rights of any third party or the laws or regulations of any governmental or judicial authority. Invarion further warrants for a period of ninety (90) days after delivery that all tangible portions of the Software as delivered shall be free from any defects in materials and workmanship and that during such ninety (90) days period the Software as delivered shall substantially conform to, and operate in accordance with, the specifications for such Software in all material respects.

  4. WARRANTY DISCLAIMER; LIMITATIONS OF LIABILITY.

    EXCEPT AS EXPRESSLY SET FORTH IN SECTION 3. ABOVE, INVARION LICENSES THE LICENSED SOFTWARE TO LICENSEE ON AN "AS IS" BASIS AND DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, WITH RESPECT THERETO, INCLUDING BUT NOT LIMITED TO ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND COMPATIBILITY WITH ANY PLATFORMS, PARTICULAR COMPUTER SYSTEMS, COMPUTER PERIPHERALS, AND OTHER SOFTWARE PACKAGES, AND INVARION DISCLAIMS ALL OBLIGATIONS AND LIABILITY ON INVARION'S PART FOR DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST SAVINGS, OR SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH ANY USE OF THE LICENSED SOFTWARE, WHETHER OR NOT INVARION HAS BEEN ADVISED OF THE POSSIBILITIES THEREOF. INVARION DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE LICENSED SOFTWARE WILL MEET LICENSEE'S REQUIREMENTS OR THAT THE OPERATION OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. LICENSEE ASSUMES THE ENTIRE RESPONSIBILITY FOR THE SELECTION OF THE LICENSED SOFTWARE TO ACHIEVE ITS INTENDED RESULTS, AND FOR THE INSTALLATION, USE, AND RESULTS OBTAINED FROM THE LICENSED SOFTWARE. IN NO EVENT SHALL INVARION'S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL FEES AND PAYMENTS PAID BY LICENSEE UNDER THIS AGREEMENT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THEY HAVE BARGAINED FOR THE FOREGOING ALLOCATION OF RISK.

  5. NO ASSIGNMENTS OR TRANSFERS

    In no event may you assign, transfer, rent, lease, lend, copy, modify, translate, sublicense, time-share or electronically transmit or receive the Software or Documentation to any third party without the express written consent of Invarion which may be withheld in its sole and exclusive discretion.

  6. SUPPORT

    Unless it has been otherwise agreed to between the Licensee and Invarion, this Agreement does not create any obligations on the part of Invarion to provide any ongoing support for the Software or Documentation at any time. Invarion may, at its absolute discretion release upgrades, patches or the like but is in no way obligated to do so as part of the License or otherwise under this Agreement.

  7. HIGH RISK ACTIVITIES

    The Software is not fault tolerant, and is not recommended for use in high risk or mission critical activities requiring fail-safe operation such as in the operation of nuclear facilities, air traffic control, weapons systems, medical equipment or aircraft navigation systems, where the failure of the Software could lead to injury, death, or dire ecological consequences.

  8. RELEVANT STANDARDS

    Invarion hereby informs you and you acknowledge that the implementation of a traffic management scheme must be in accordance with Federal, State and other governing body standards, which particular attention to the applicable rules and regulations of the licensees region and Country, including laws and regulations relating to road works, and that neither the Software nor any traffic control plans included or packaged with the Software offers any suggestion, advice, example or other information concerning compliance with such laws, rules or regulations. Any traffic control plans included in the Software is included for Software capability illustrative purposes only and Invarion does not warrant that it is suitable for any application or use on roadways. You further acknowledge that you understand that applicable laws, rules and regulations may require people engaging in traffic management practices to hold certain accreditations relating to traffic management or traffic control.

  9. MAINTENANCE

    YOU UNDERSTAND THAT BY INSTALLING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE RapidPlan SUPPORT SERVICE TERMS AND CONDITIONS, INCLUDING THE REQUIREMENT THAT YOU PAY THE ANNUAL MAINTENANCE AND SUPPORT CHARGES SPECIFIED. YOU FURTHER ACKNOWLEDGE THAT INVARION RETAINS THE RIGHT TO EITHER AUTOMATICALLY OR OTHERWISE ALTER THE SOFTWARE'S FUNCTIONALITY IN ACCORDANCE WITH THE TERMS DESCRIBED IN THE RapidPlan SUPPORT SERVICE TERMS AND CONDITIONS.

  10. AMENDMENTS; WAIVER

    This Agreement may be amended only by a writing executed by Invarion and Licensee. No subsequent purchase order shall operate to amend this Agreement unless it expressly refers to this Agreement and is executed by both parties hereto. No waiver of any provision of this Agreement shall constitute a waiver of any other provision or of the same provision on another occasion.

  11. GOVERNING LAW; FORUM AND VENUE

    All questions concerning the validity, operation, interpretation, and construction of this Agreement shall be governed by and determined in accordance with the laws of The Commonwealth of Massachusetts, without giving effect to conflict of laws provisions thereof. Any action or proceeding brought by either party against the other arising out of or related to this Agreement shall be brought only in a State court of competent jurisdiction located in the County of Suffolk, Massachusetts, or the Federal District Court for the District of Massachusetts, and the parties hereby consent to the personal jurisdiction of said courts and waive any and all objections to such selection of venue or forum.

  12. SEVERABILITY

    In the event that any provision hereof is found invalid or unenforceable pursuant to judicial decree or decision, the remainder of this Agreement shall remain valid and enforceable according to its terms.

  13. ENTIRE AGREEMENT

    This Agreement and the RapidPlan Support Service terms and conditions constitute the entire understanding and agreement between Invarion and Licensee regarding the terms and conditions of the licensing of the Software by Licensee and supersede all previous oral and written communications between Invarion and Licensee with respect thereto, all such previous communications having been merged herein.

2024 © Invarion. ALL Rights Reserved.

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