End User License Agreement

PLEASE READ THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT ("EULA" OR "AGREEMENT") CAREFULLY BEFORE USING THE LOGIC MINER CE SOFTWARE ("SOFTWARE"). THE SOFTWARE IS LICENSED, NOT SOLD. YOU MAY NOT DOWNLOAD OR INSTALL THE SOFTWARE IN ANY MANNER WHATSOEVER. BY USING THE SOFTWARE, YOU ARE ACCEPTING AND AGREEING TO BE BOUND BY THE TERMS OF THIS EULA. THIS EULA REPRESENTS THE ENTIRE AGREEMENT CONCERNING THE SOFTWARE, BETWEEN YOU AND BLUEPHOENIX SOLUTIONS LTD. (BLUEPHOENIX, US OR WE) IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MAY NOT USE THE SOFTWARE IN ANY MANNER WHATSOEVER. 
1.	License Grant. Subject to the terms herein, and subject to payment of applicable fees, BluePhoenix hereby grants you a limited, personal, world-wide non-exclusive, non-transferable, non sub-licensable right to use the Software solely on the Amazon Machine Image ("AMI") made available through AWS Marketplace during the term of this Agreement.  You shall be solely responsible to ensure that the Software is securely used. 
2.	Prohibited Uses. THE SOFTWARE IS LICENSED NOT SOLD. Other than the rights explicitly granted in this Agreement, you shall have no other rights, express or implied, in the Software. Without limiting the generality of the foregoing, you agree and undertake not to: (i) sell, lease, sublicense or distribute the Software, or any part thereof, or otherwise transfer the Software; (ii) reverse engineer, decompile, disassemble, or otherwise reduce to human-perceivable form the Software's source code and or any third party software provided by BluePhoenix; (iii) modify, revise, enhance, or alter the Software; (iv) copy or allow copies of the Software; (v) download or install the Software locally or make your license and use on the AMI available for use by any third party; (vi) test the Software or use the Software in connection with any benchmark tests, evaluation, or any other tests of which the results are designated or likely to be published in any form or media, or otherwise made available to the public, without BluePhoenix's prior written approval; (vii) represent that you possess any proprietary interest in the Software; (vii) use the Software in any illegal manner or for unlawful purposes.  
3.	Your Content.  You may use the Software only if: (i) you own or otherwise possess all necessary rights and licenses with respect to the code, information, data and any other content used or processed by means of the Software ("Content") (ii) the Content does not infringe, misappropriate, use or disclose without authorization, or otherwise violate any intellectual property rights or proprietary right of any third party; and (iii) you comply with all laws and regulations applicable to your use of the Content. You further undertake to fully comply with any terms and conditions imposed by Amazon and any other cloud services providers, to the extent applicable.  You shall be solely responsible to back up any Content before using the Software. 
4.	Indemnity.  You shall be solely responsible for any use of Content by you. UNDER NO CIRCUMSTANCES WHATSOEVER WILL BluePhoenix BE LIABLE IN ANY WAY FOR ANY CONTENT, INCLUDING, WITHOUT LIMITATION, FOR ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR FOR ANY INFRINGEMENT OF THIRD PARTY'S RIGHT, LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF THE CONTENT AND/OR THE SOFTWARE.  You shall indemnify, defend, and hold harmless BluePhoenix and its directors, officers, and employees from and against all finally awarded costs, damages, losses and expenses, including reasonable attorneys' fees and other legal expenses, arising from a third-party claim that the Content infringes any intellectual property right.  BluePhoenix shall give you prompt notice of any such claim made against it and shall grant you sole control of the defense of any such claim, suit or proceeding.  
5.	Title & Ownership. The Software is a valuable trade secret of BluePhoenix and any disclosure or unauthorized downloading, installation, copying or use thereof will cause irreparable harm and loss to BluePhoenix. All right, title and interest in and to the Software, any derivatives thereof and modifications thereto, including associated intellectual property rights, evidenced by or embodied in and/or attached/connected/related to the Software, are and will remain with BluePhoenix. This Agreement does not convey to you an interest in or to the Software, but only a limited right of use in accordance with the terms herein. Nothing in this Agreement constitutes a waiver of BluePhoenix's intellectual property rights under any law.
6.	Maintenance and Support. During the term hereof, BluePhoenix shall provide you with maintenance and support in accordance with its standard support terms. Such maintenance and support shall include provision of updates, if and as shall be made generally available by BluePhoenix at its discretion and online  support during normal business hours, within 24 hours of request. 
7.	Limited Warranty. BluePhoenix warrants, for your benefit alone, that during the term of this Agreement, the Software shall substantially perform in accordance with the functional specifications in the documentation. BluePhoenix 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. BluePhoenix's sole liability for any breach of this warranty shall be, in BluePhoenix's sole discretion: (i) to replace or repair the defective Software; or (ii) to refund any pre paid license fees to the extent paid with respect to the remainder of the license term. The foregoing warranties are contingent upon your proper use of the Software, and shall not apply to damage caused by misuse, alteration or unauthorized use, repair, downloading or installation, other than as pre approved and supported by BluePhoenix. Notwithstanding the foregoing warranties, BluePhoenix shall not be held responsible for any errors or damages due to reasons related to cloud hosting services or any other services or products not provided by BluePhoenix (such as the AWS). Only if you inform BluePhoenix of the defect in writing within 30 days of discovery of the error will BluePhoenix be obligated to honor this warranty. BluePhoenix will use reasonable commercial efforts to repair, replace or refund pursuant to the foregoing warranty within 30 days of being so notified. The foregoing constitutes your sole and exclusive remedy for breach by BluePhoenix of any warranties made under this Agreement. 
8.	Warranty Disclaimer. THE WARRANTY SET FORTH ABOVE IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SOFTWARE, MAINTENANCE SERVICES OR ANY OTHER ITEMS PROVIDED HEREUNDER. BLUEPHOENIX DOES NOT WARRANT THAT THE SOFTWARE OR ANY MAINTENANCE SERVICES WILL BE DELIVERED OR PERFORMED ERROR-FREE OR WITHOUT INTERRUPTION. FOR PURPOSE OF CLARITY, BLUEPHOENIX DOES NOT INTEND AND WILL NOT BE REQUIRED TO EDIT OR REVIEW ANY CONTENT AND BLUEPHOENIX SHALL NOT BE LIABLE FOR ANY CONTENT USED BY MEANS OF THE SOFTWARE. 
9.	Limitation of Liability. IN NO EVENT SHALL BLUEPHOENIX'S LIABILITY UNDER, ARISING OUT OF OR RELATING TO THIS AGREEMENT, EXCEED THE AMOUNT PAID TO BLUEPHOENIX FOR THE  SOFTWARE UNDER THIS AGREEMENT. IN NO EVENT WILL BLUEPHOENIX BE LIABLE FOR LOST PROFITS, LOSS OF USE, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR ANY OTHER SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT BLUEPHOENIX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.	Third Party Software. The Software contains software provided by third parties, and such third parties' software is provided "As Is" without any warranty of any kind, and subject to the license terms attached to such third party software, the provisions of this Agreement shall apply to all such third party software providers and third party software as if they were BluePhoenix and the Software respectively. In addition, the Software contains open source components. Such open source components are protected under copyright law and are licensed to you under specific license terms. 
11.	Suggestions and Feedback. It is understood that you may, at its sole discretion, provide BluePhoenix with suggestions and/or comments with respect to the Software ("Feedback").  You represent that it is free to do so and that you shall not knowingly provide BluePhoenix with Feedback that infringes upon third parties' intellectual property rights.  You further acknowledge that notwithstanding anything herein to the contrary, any and all rights, including intellectual property rights in such Feedback shall belong exclusively to BluePhoenix and that such shall be considered BluePhoenix's confidential information. It is further understood that use of Feedback, if any, may be made by BluePhoenix at its sole discretion, and that BluePhoenix in no way shall be obliged to make use of any kind of the Feedback or part thereof. 
12.	Term and Termination. This Agreement is valid for such period for which you have paid the applicable license fees. Your failure to comply with the terms of this Agreement shall terminate your license and this Agreement. Upon termination of this Agreement: (i) the license granted to you in this Agreement shall expire and you, upon termination, shall discontinue all further use of the Software; and (ii) you shall promptly return to BluePhoenix all tangible property representing BluePhoenix's intellectual property rights and all copies thereof and/or shall erase/delete any such information held by you in electronic form. 
13.	General. This Agreement constitutes the entire agreement between you and BluePhoenix and may not be modified except by a written agreement signed by BluePhoenix. If a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of the Agreement shall continue in full force and effect.  You may not assign this Agreement without BluePhoenix's prior written approval. BluePhoenix shall be entitled to assign this Agreement at its discretion. No waiver of any breach shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provision, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. This Agreement shall be governed by and construed in accordance with the laws of the State of New York and only the competent courts of New York, New York shall have jurisdiction over any dispute arising from this Agreement. Sections 2, 4, 5, 8, 9, 11, 12, 13 and 14 shall survive the termination of this Agreement.