Chapter 14. Storyboard End-User License Agreement

The software and related documentation that you are about to access ("Software", as further defined below) is offered to You (either an individual or a legal entity) by Crank Software Inc. ("Crank") of 4017 Carling Ave, Suite 302, Kanata,Ontario,Canada K2K 2A3 (voice: +1.613.595.1999) for use only in accordance with the terms of the Storyboard End User License Agreement. Some Software components have supplementary or alternative end user license terms, as noted below.

BY ANSWERING "I ACCEPT" DURING THE DOWNLOAD AND/OR INSTALLATION OF THE SOFTWARE, OR OTHERWISE ATTEMPTING TO DOWNLOAD, COPY, INSTALL OR USE ANY PART OF THE SOFTWARE, YOU ARE REPRESENTING THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THESE TERMS AND AGREE TO PAY ALL ASSOCIATED FEES. NOTHING ELSE GRANTS YOU PERMISSION TO COPY, USE OR MODIFY THE SOFTWARE. THESE ACTIONS ARE PROHIBITED BY LAW IF YOU DO NOT ACCEPT THESE TERMS, UNLESS YOU HAVE AN ALTERNATIVE SIGNED AGREEMENT WITH CRANK. DO NOT PROCEED UNLESS YOU ARE ABLE AND WILLING TO ENTER INTO THESE AGREEMENTS AND COMPLY WITH THESE TERMS. IF YOU HAVE ANY QUESTIONS CONTACT CRANK BEFORE YOU ATTEMPT TO COPY, INSTALL OR USE ANY PART OF THE SOFTWARE.

THE SOFTWARE MAY INCLUDE PRODUCT ACTIVATION AND OTHER TECHNOLOGY DESIGNED TO PREVENT UNAUTHORIZED COPYING. THE ACTIVATION TECHNOLOGY MAY PREVENT YOUR USE OF THE SOFTWARE IF YOU DO NOT FOLLOW THE ACTIVATION PROCESS DESCRIBED IN THE SOFTWARE AND DOCUMENTATION.

If you do not agree to these terms and conditions, please click “I Decline” and promptly return or, if received electronically, certify destruction of the Software and all accompanying items within five (5) days after receipt of Software, and receive a full refund of any license fee paid.

Storyboard End User License Agreement

This Storyboard End User License Agreement (comprising Part A – Background , Part B - Standard Terms and Conditions, and any documents incorporated by reference, collectively "this Agreement") is a legal agreement between You and Crank, and is made effective as of the date of Your acceptance of this Agreement, as defined above. The parties agree as follows.

Part A- Background

A1. Crank has developed and licenses Storyboard™ Suite (“Storyboard Suite”), a software development toolset for designing and executing graphical user interfaces for embedded systems. Storyboard Suite consists of a number of individual software products and related collateral, including Storyboard Designer™ and Storyboard Engine™ and optional Storyboard software development kits (sometimes referred to as a"SDK"). Storyboard Suite includes a variety of software development tools, including compilers, debuggers, libraries, headers, utilities, sample source code, a simulation engine, etc.

Embedded system developers, including any of its graphical designers, systems engineers or other personnel will typically build the graphical user interface for Target System(s) using Storyboard Designer. Storyboard Designer aids in the design, development, simulation and testing phases of this development. Developers may add to their suite by selecting the desired "Software Development Kit" (sometimes referred to as "SDK"), which provide a greater range of technology options and customization capabilities.

A2. This Agreement is intended to detail Your license rights to the Storyboard Designer Suite and to any SDK products that You order, to support Your Target System development, testing, support, maintenance and enhancement efforts. Each individual from Your organization using the Software in any way must be licensed to have an individual copy of the Software, regardless of whether the Software is used on individual workstations or in a networked environment. The license fees for the Storyboard Designer Suite products are generally on a per developer basis. SDKs license fees are determined on a variety of bases, depending on a customer's requirements. The specific license rights will be detailed on the License Certificate provided to You for the Software. The Storyboard Engine is bundled with the Storyboard Suite for Target System design purposes; the Storyboard Engine must be separately licensed for redistribution within Target Systems.

A3. You may require one or more license keys or passwords from Crank to install and use the Software ("License Keys"). License Keys for evaluation or beta licenses may be time limited. All License Keys are to be treated as Confidential Information of Crank in accordance with the provisions of Section B5 [Confidentiality].

Part B – Standard Terms and Conditions

B1. Definitions. In this agreement,

(a) “Agreement” or “EULA” means this End User License Agreement.
(b) "Authorized Workstations" means in relation to the Software or a part of the Software, those Workstations that You have been authorized to install the Software or that part of the Software,
(c) “Crank”, “we”, or “us” means Crank Software Inc.,
(d) "Derivative Work" means any work made by You, or for You by a Contractor pursuant to this Agreement, that is a revision, modification, translation, expansion, extension, collection, condensation or abridgement of any Software provided by Crank in Source Code form;
(e) "Documentation" means any developer documentation, read-me files, release notes and License Guides that are provided by Crank in or for the Software;
(f) "License Certificate" means a Crank issued document which authenticates software licensed under this Agreement. It will: include a License Key; specify the nature of the license (i.e. individual developer, team of developers, etc.); and provide other details contemplated by this Agreement.
(g) "Software" means the object code and source code included in the Storyboard Suite for which You received a valid License Certificate and that You license pursuant to this Agreement. It includes associated Documentation and corresponding Software updates or supplemental releases that You are entitled to receive and use under one of Crank's support plans.
(h) "Target System" means any product into which any portion of the Storyboard Engine has been wholly or partially integrated, and which: (1) significantly enhances the function and value of the Storyboard Engine , and (2) has a substantially different principal purpose than that of the Storyboard Engine;
(i) "Workstation" means an individual developer's workstation, laptop and/or home computer used to perform Storyboard development, provided the Software is only used on one computer at a time;
(j) “You” or “Your” means to the entity for whose benefit You act, which may be yourself as an individual, a corporate entity or some other form of legal entity;
(k) Other capitalized terms defined in any part of this Agreement will have their indicated meaning throughout this Agreement.

B2. Software Development License, Restrictions and Requirements.

(a) License Rights. Subject to the terms of this Agreement (including without limitation those specific to third party software - see Section B2(g) [Third Party Software] below) - and payment of all applicable license fees, Crank hereby grants to You for each applicable license purchased from Crank (or from one of its authorized distributors) for Software to be used pursuant this Agreement, a non-exclusive, personal, non-sublicensable and non-transferable license to:

(1) copy the Software as required to install it on and to follow normal back-up and archiving practices for Authorized Workstations;
(2) use, execute, display and perform the Software on the Authorized Workstations in accordance with associated Documentation, for the purpose of developing, testing and maintaining Target Systems;
(3) create Derivative Works of Software source code and, subject to the provisions of Section B5 [Confidentiality], copy, compile, link, use, execute, display and perform such Derivative Works on Authorized Workstations in accordance with associated Documentation, for the purpose of developing, testing and maintaining Target Systems; and
(4) copy, link, use, execute, display and perform the Storyboard Engine, and the Object Code of any Derivative Works created pursuant to (3) above, as required to install and use them: (i) on a reasonable number of Target Systems solely for internal Target System development and testing purposes; and (ii) on one Target System for demonstration, promotion, evaluation or training purposes, provided that such copy is not left with third parties.

(b) Time and other Limited Licenses. If You received Software under an evaluation, beta or other time-limited license, Your rights in the Software may be further limited as contemplated in this EULA, on the License Certificate You receive or as otherwise specified at the time of download and Your right to use the Software will end when the term of Your license expires. Crank may, at its discretion, include with the Software capabilities to remind You of the time limitations and to prevent You from continuing to use the Software at the end of the term.

(c) Ownership and Use Restrictions. Crank and its suppliers retain all right, title and interest in and to the Software, including all intellectual property therein. All copies will be considered Software for the purpose of this Agreement and shall remain the property of Crank and its suppliers. Without restricting the generality of the foregoing, unless expressly permitted by this Agreement, by applicable law, or by Crank in writing, You agree not to:

(1) alter, remove, or cover any trademark, logo, proprietary or licensing notices, labels or marks in or on any part of the Software, including in any "about" box, "flash" / "splash" screen or Documentation. You agree to use reasonable efforts to ensure that all copies of the Software bear any notices, labels or marks contained in or on the original;
(2) copy, reproduce, publish, rent, lease, loan, or distribute the Software except as provided above;
3) use unauthorized License Keys;
(4) decompile, disassemble, decrypt, extract, unbundle, translate or otherwise attempt or assist others to reverse engineer any part of the Software, including circumventing any License Key activation or evaluation period expiry mechanisms, except as necessary, when permitted by an applicable law, to correct defects or achieve interoperability with complementary programs, for Your purposes only, but only if Crank has refused to provide the necessary information or assistance;
(5) directly or indirectly export, import or transmit the Software to any country in contravention of the laws of that country or the laws of Canada or the United States.
(6) use the Software in a High Risk Application (see also Section B9[No High Risk Applications]);

(d) Other Agreements Required. For certainty, this EULA does not provide You with any:

(1) rights to distribute the Software , or the files and data Storyboard generates, on any Target Systems;
(2) entitlement to support services or engineering services.

Any such right / entitlement would be the subject of a separate agreement with Crank.

B3. Limited Rights

(a) Evaluation Rights. Notwithstanding Section B2(a)[License Rights], Software provided under an Evaluation License may only be used for determining the suitability of the Software for your intended Target System application. An Evaluation license does not allow you to use the software for commercial development purposes.

(b) Beta Code. As specified to You by Crank, the Software (or parts of it) may be code intended for experimental testing and evaluation (“Beta Code”). For any code specified as Beta Code by Crank, Crank grants to You a temporary, nontransferable, nonexclusive license for experimental use to test and evaluate the Beta Code without charge for a limited period of time specified by Crank. This grant and Your use of the Beta Code shall not be construed as marketing or offering to sell a license to the Beta Code, which Crank may choose not to release commercially in any form. You agree to evaluate and test the Beta Code under normal conditions. You are encouraged to contact Crank periodically during Your use of the Beta Code to discuss any malfunctions or suggested improvements and upon completion of Your evaluation and testing, to send to Crank a written evaluation of the Beta Code, including its strengths, weaknesses and recommended improvements and this will be treated as Feedback pursuant to Section B2(f) [Feedback].

B4. Activation, Audit and Reporting.

(a) The Software require activation in order to order to install and certain machine-specific information is sent ("Activation Information") to Crank at the time of activation and/or periodically thereafter. This Activation Information may include but is not limited to software identification number, MAC address, UUID, IP address, identification numbers set by manufacturers of hardware and/or identification numbers related to the host operating system. During some instances of activation, you may be asked for certain information such as your name and email address. Other than the information which you enter, Crank does not collect any personally identifiable information during activation. Crank may collect Activation Information at any time and may use Activation Information for the purposes of verifying compliance with the terms of this Agreement.

(b) Crank may audit Your use and deployment of the Software for compliance with the terms of this Agreement and may reference Activation Information in the course of such audit. You will reimburse Crank for its reasonable out of pocket costs associated with this audit if it is determined Your use of the Software does not conform with the terms of this EULA. Crank shall treat as confidential information all of Your information gained as a result of any request or review and shall only use or disclose such information as required by law or to enforce its rights under this Agreement or addendum to this Agreement.

(c) Crank may require that You provide Crank with a written report to verify Your compliance with the terms of this license; the report will be signed by an individual authorized to bind You confirming the accuracy of the report. Such a report could include, but would not be limited to the serial number of each Software product You have licensed, the MAC address or other unique identifier of each computer on which each Software copy is installed and confirmation that each developer has the Software installed only on his/her Workstation.

B5. Confidentiality.

(a) What is Not Confidential. The Software user interface is not confidential information and Crank encourages You to tell others about / how others Crank products. We would rather You provide negative feedback to us first so that we might have a chance to respond or fix the issue; however, we support Your right to speak about our Software even if we don't agree with what You are saying. Most Documentation is freely available on our web site and that which is available is clearly snot confidential.

(b) What is Confidential. "Confidential Information" means any information provided by Crank in, with or associated with the Software (1) in Software Source Code, (2) which is a License Key , or (3) in a document clearly marked "Confidential" (or equivalent). Confidential Information does not include any information which is publicly available, previously known to You or independently developed by You without reference to the Confidential Information. You may use Confidential Information only to exercise Your rights under this Agreement and it may not be disclosed except to those developers who have Authorized Workstations. You will protect the Confidential Information of by using the same degree of care, but no less than reasonable care, to prevent the unauthorized dissemination or publication and unauthorized use of the Confidential Information as You use to protect Your own confidential information of like nature. Your duty to protect Confidential Information disclosed to it will survive termination of this Agreement indefinitely.

B6 Intellectual Property Indemnity.

(a) Indemnity. Crank will defend or settle, at its option and expense, any action brought against You alleging that Your reproduction or use of the Software in accordance with the terms of this Agreement infringes a patent or copyright or misappropriates a trade secret in the United States, Canada, Japan, or member state of the European Union ("Infringement"). Crank will pay any costs and damages finally awarded against You that are attributable to the Infringement action. You understand and agree that as conditions to Crank’s obligations under this Section B6 You must: (a) notify Crank promptly in writing of the action; (b) provide Crank all reasonable information and assistance to defend or settle the action; and (c) grant Crank sole authority and control of the defense or settlement of the action.

Crank has no liability to You if infringement is based upon: (a) the combination of Software with any product not furnished by Crank; (b) the modification of Software other than by Crank; (c) the use of other than a current unaltered release of Software; (d) the use of Software as part of an infringing process; (e) a product that You make, use or sell; (f) any Beta Code contained in Software; (g) any Software provided by Crank’s licensors or under an open source license who / which does not provide such indemnification to Crank’s customers; or (h) infringement by You that is deemed willful. In the case of (h) You shall reimburse Crank for its legal fees and other costs related to the action upon a final judgment.

(b) Remedy. With respect to any finding of Infringement, or any reasonable belief of Crank that Infringement may occur, Crank will, at its sole expense and option: (1) procure for You the right to continue using the infringing Software; (2) replace the infringing Software with non-infringing software of comparable function; (3) modify the infringing Software to be non-infringing; or (4) if none of the foregoing alternatives is reasonably available to Crank, terminate Your right to the Software, but only to the extent necessary to avoid the Infringement. You will have the right to terminate all of Your rights if You determine such partial termination renders Your remaining rights ineffective. Upon such full or partial termination, Crank will refund to You, pro-rata to the extent of such termination, the license fees paid by You that are associated with the terminated rights.

(c) Entire Liability. This Section B6 states the entire liability of Crank and its licensors and Your sole and exclusive remedy with respect to any alleged infringement of intellectual property rights by the software.

B7. Limited Warranty.

(a) Crank warrants that during the warranty period the Software, when properly installed, will substantially conform to the functional specifications set forth in the applicable Documentation. Crank does not warrant that Software will meet Your requirements or that operation of Software will be uninterrupted or error free. The warranty period is 60 days starting on the day Crank issues to you an invoice for the Software. You must notify Crank in writing of any nonconformity within the warranty period. This warranty shall not be valid if Software has been subject to misuse, unauthorized modification or improper installation.

(b) CRANK’S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY SHALL BE, AT CRANK’S OPTION, EITHER (A) REFUND OF THE PRICE PAID UPON RETURN OF SOFTWARE TO CRANK OR (B) MODIFICATION OR REPLACEMENT OF SOFTWARE THAT DOES NOT MEET THIS LIMITED WARRANTY, PROVIDED YOU HAVE OTHERWISE COMPLIED WITH THIS AGREEMENT. CRANK MAKES NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO: (A) SERVICES; (B) SOFTWARE WHICH IS LICENSED TO YOU FOR A LIMITED TERM, FOR EVALUATION PURPOSES OR LICENSED AT NO COST; OR (C) EXPERIMENTAL BETA CODE; ALL OF WHICH ARE PROVIDED “AS IS.”

(c) THE WARRANTIES AND REPRESENTATIONS SET FORTH IN THIS SECTION B7ARE EXCLUSIVE. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SOFTWARE PRODUCTS AND ANY SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED "AS IS" WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NOTHING STATED IN THIS AGREEMENT WILL IMPLY THAT THE OPERATION OF ANY SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ERRORS WILL BE CORRECTED. OTHER WRITTEN OR ORAL STATEMENTS BY CRANK, ITS REPRESENTATIVES OR OTHERS DO NOT CONSTITUTE WARRANTIES OF CRANK.

B8. LIMITATION OF LIABILITY.

(A) IN NO EVENT WILL CRANK OR ITS AFFILIATES, OR THEIR OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, DISTRIBUTORS, OR LICENSORS, (COLLECTIVELY, CRANK AND ITS REPRESENTATIVES) BE LIABLE TO YOU, YOUR CONSULTANTS, OR ANY OTHER THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOST REVENUE, LOST OR DAMAGED DATA, OR OTHER COMMERCIAL OR ECONOMIC LOSS, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, ANY USE OR INABILITY TO USE SOFTWARE PRODUCTS, OR ANY SERVICES PROVIDED OR INABILITY TO OBTAIN SERVICES, EVEN IF CRANK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR CLAIM.

(B) IN NO EVENT WILL THE AGGREGATE LIABILITY OF CRANK AND ITS REPRESENTATIVES FOR ANY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL FEES YOU HAVE PAID TO CRANK FOR USE OF THE SOFTWARE UNDER THIS AGREEMENT (WHICH TOTAL FEES MAY BE ZERO). THE PROVISIONS OF SECTIONS B7(b) and (c) AND THIS SECTION B8 SHALL SURVIVE AND APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

B9. No High Risk Applications. Unless Crank has provided You with express written consent, the Software may not be used in any application in which death, personal injury, or severe physical or property damage is a foreseeable consequence of a Software failure (collectively, "High-Risk Applications"), including but not limited to the operation of nuclear facilities, mass transit systems, aircraft navigation or aircraft communication systems, air traffic control, weapon systems, and direct life support machines. Crank expressly disclaims any express or implied warranty or condition of fitness for High-Risk Applications.

B10 Term and Termination

(a) Term of this Agreement. This term of this Agreement will commence on the date of Your acceptance of this Agreement, as indicated above, and will continue indefinitely thereafter until it expires or is terminated in whole or in part under Sections B10(b)[Time Limited Licenses] or B10(c)[Termination].

(b) Time Limited Licenses. The term of any Software evaluation, beta, trial or other time limited Software license will expire on the earlier of: (1) the end of the applicable time-limited trial period, or (2) thirty (30) days after notice from Crank.

(c) Termination. You may terminate this Agreement at any time. It will be deemed to terminate immediately if You fail to comply with any material term herein or if You fail to pay within thirty (30) days of receipt of invoice (or such longer period as may be expressly permitted by Crank in writing) any license fees invoiced by Crank for Software licensed pursuant to this Agreement.

(d) Implication of Termination. The provisions of this Agreement that are expressed or by their sense and context are intended to survive the termination of this Agreement will survive, including Sections B2(c) [Ownership], B4 [Activation, Audit and Reporting], , B5 [Confidentiality], B6 [IP Indemnity], B7 [Limited Warranty], B8 [Limitation of Liability], B9 [No High Risk Applications] this Section B10 and Section B11 [General]. When this Agreement terminates or expires for any Software product(s) Your associated license rights end and You agree to immediately destroy all whole or partial copies of that Software that are in Your possession or control. Termination is without prejudice to any right or remedy that may have accrued, or be accruing to either party prior to termination.

B11. General

(a) Entire Agreement. This Agreement, comprising Parts A and B, along with the License Guide and any other terms expressly referenced by this Agreement (including third party terms referenced in the License Guide), constitutes the entire agreement between the parties pertaining to its subject matter and supersedes any prior or contemporaneous agreement, representation, statement, negotiation or undertaking dealing with the same subject matter. No amendment, modification or waiver of any part of this Agreement will be binding unless in a written document that expressly refers to this Agreement and that is signed by both parties. Except as otherwise expressly contemplated in this Agreement, the terms and conditions of this Agreement will prevail over any inconsistent or additional terms or conditions of either party's purchase orders or invoices.

(b) Assignment. Except as specifically allowed in this Section B11(b) or with Crank's written consent, you may not assign this Agreement or your License rights to third parties. Upon written notice to Crank and subject to the export restrictions in Section B2(h)[Use Restrictions], you assign this Agreement in conjunction with a change of ownership, merger, acquisition, sale or transfer of all or substantially all of your business. Any such assignee must provide Crank with prior written acknowledgement of their acceptance of the terms of this Agreement and you must transfer Your License Keys to the assignee and destroy all whole or partial copies of the Software and License Keys that are in Your possession or control. Any other attempted assignment or delegation in violation of the foregoing will be void and of no effect. This License will inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.

(c) Payment Terms. You will pay amounts invoiced, in the currency specified on the applicable invoice, within 30 days from the date of such invoice, unless otherwise agreed upon in advance by Crank in writing. Any past due invoices will be subject to the imposition of interest charges in the amount of one and one-half percent per month or the applicable legal rate currently in effect, whichever is lower.

(d) Governing Law. This Agreement will be governed by and construed in accordance with the laws in force in the Province of Ontario, Canada without regard to the conflicts of laws provisions thereof. The parties hereby irrevocably waive: (1) the provisions of the United Nations Convention on Contracts for the International Sale of Goods, and (2) any right to a trial by jury regarding the resolution of any dispute between the parties hereto arising out of or in connection with this Agreement.

(e) Arbitration. The parties will attempt to settle any disputes in connection with this Agreement in good faith. If the parties are unable to settle a dispute, it will be resolved by arbitration and finally settled by a sole arbitrator under the provisions of the Arbitration Act (Ontario) and the National Arbitration Rules of the ADR Institute of Canada, Inc. The arbitration shall take place in Ottawa, Canada and arbitration proceedings shall be held in the English Language. The arbitrator shall have all powers conferred on him or her by the Arbitration Act (Ontario), including the power to set or dispense with any process, to award costs and to award injunctive relief. The decision of the arbitrator will be final and binding on the parties. The prevailing party will be entitled to recover its costs and expenses from the arbitration, including but not limited to reasonable attorney's fees. All information relating to any dispute in connection with this License will be considered Confidential Information for the purpose of Section B5 [Confidentiality].