End User License Agreement (EULA)
IMPORTANT - READ THIS END-USER LICENSE AGREEMENT ('EULA') CAREFULLY BEFORE OPENING THE DISK PACKAGE, DOWNLOADING THE SOFTWARE OR INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE.
THIS EULA IS A LEGAL AGREEMENT BETWEEN YOU AND EXACQ TECHNOLOGIES, INC. ('TYCO'), AND GOVERNS YOUR USE OF THE SOFTWARE ACCOMPANYING THIS EULA WHICH SOFTWARE INCLUDES COMPUTER SOFTWARE AND MAY INCLUDE MEDIA, PRINTED MATERIALS, AND 'ON-LINE' OR ELECTRONIC DOCUMENTATION (COLLECTIVELY, THE 'SOFTWARE'). BY BREAKING THE SEAL ON THIS PACKAGE, DOWNLOADING THE SOFTWARE OR INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS EULA, DO NOT OPEN, DOWNLOAD, INSTALL, COPY OR OTHERWISE USE THE SOFTWARE.
SCOPE OF LICENSE. The Software may include computer code, program files and any associated media, hardware or software keys, printed material and electronic documentation. The Software may be provided to you pre-installed on a storage device (the media), as part of a computer system, via online access (i.e., hosted software) or other hardware or device ('System'). The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. All title and intellectual property rights in and to the Software (including but not limited to any images, photographs, and text incorporated into the Software), the accompanying printed materials, and any copies of the Software, are owned by Tyco and/or its suppliers. The Software is licensed, not sold. All rights not expressly granted under this EULA are reserved by Tyco and its suppliers.
GRANT OF LICENSE. This EULA grants you the following rights on a non-exclusive basis:
General. This EULA permits you to use the Software for which you have purchased this EULA. Once you have purchased licenses for the number of copies of the Software that you require, you may use the Software and accompanying material provided that you install or access and use no more than the licensed number of copies at one time. The Software is only licensed for use with specified Licensor-supplied Systems. If the Software is protected by a software or hardware key or other device, the Software may be used on any computer on which the key is installed. If the key locks the Software to a particular System, the Software may only be used on that System.
Locally Stored Components. The Software may include a software code component that may be stored and operated locally on one or more devices. Once you have paid the required license fees for these devices (as determined by Tyco in its sole discretion), you may install and/or use one copy of such component of the Software on each of the devices as licensed by Tyco. You may then use, access, display, run or otherwise interact with ('use') such component of the Software in connection with operating the device on which it is installed solely in the manner set forth in any accompanying documentation or, in the absence of such, solely in the manner contemplated by the nature of the Software.
Remotely Stored Components. The Software may also include a software code component for operating one or more devices remotely. You may install and/or use one copy of such component of the Software on a remote storage device on an internal network with all of the devices and may operate such component with each device over the internal network solely in the manner set forth in any accompanying documentation or, in the absence of such, solely in the manner contemplated by the nature of the Software; provided however, you must still acquire the required number of licenses for each of the devices with which such component is to be operated.
Embedded Software/Firmware. The Software may also include a software code component that is resident in a device as provided by Tyco for operating that device. You may use such component of the Software solely in connection with the use of that device, but may not retrieve, copy or otherwise transfer that software component to any other media or device without Tyco's express prior written authorization.
Hosted Software. The Software may also include a software code component that is resident in a hosted environment with access provided by Tyco via the internet ('Hosted Software'). You may use and access such component of the Software solely via the URL provided by Tyco, but may not retrieve, copy or otherwise transfer that software component to any other media or device without Tyco's express prior written authorization.
Backup Copy. Except with respect to Hosted Software, You may make a back-up copy of the Software (other than embedded software) solely for archival purposes, which copy may only be used to replace a component of the Software for which you have current valid license. Except as expressly provided in this EULA, you may not otherwise make copies of the Software, including the printed materials.
OTHER RIGHTS AND LIMITATIONS. Your use of the Software is subject to the following additional limitations. Failure to comply with any of these restrictions will result in automatic termination of this EULA and will make available to Tyco other legal remedies.
Limitations on Reverse Engineering and Derivative Works. You may not reverse engineer, decompile, or disassemble the Software, and any attempt to do so shall immediately terminate this EULA - except and only to the extent that such activity may be expressly permitted by applicable law notwithstanding this limitation. You may not make any changes or modifications to any portion of the Software, or create any derivative works, without the written permission of an officer of Tyco (except as provided in Section 3(f) of this EULA with respect to 'open source' software). You may not remove any proprietary notices, marks or labels from the Software. You shall institute reasonable measures to ensure compliance with the terms and conditions of this EULA by your personnel and agents.
Copyright Notices. You must maintain all copyright notices on all copies of the Software.
Transfer. You may only transfer your rights under this EULA (i) as part of a permanent sale or transfer of all of the devices for which the Software is licensed as applicable; (ii) if you transfer all of the Software (including all component parts, the media and printed materials, any upgrades and this EULA); (iii) if you do not retain any copies of any portion of the Software; (iv) if the recipient agrees to the terms of this EULA; and (v) if the Software is an upgrade, such transfer must also include all prior versions of the Software. You agree that failure to meet all of these conditions renders such transfer null and void.
Termination. Without prejudice to any other rights, Tyco may terminate this EULA if you fail to comply with the terms and conditions herein. In such event, you must immediately destroy all copies of the Software and all of its component parts. To the extent the Software is embedded in hardware or firmware, you will provide prompt access to Tyco or its representative to remove or lock Software features or functionality as Tyco determines.
Subsequent EULA. Tyco may also supersede this EULA with a subsequent EULA pursuant to providing you with any future component, release, upgrade or other modification or addition to the Software. Similarly, to the extent that the terms of this EULA conflict with any prior EULA or other agreement between you and Tyco regarding the Software, the terms of this EULA shall prevail.
Incorporation of 'Open Source' and other Third Party Software. Portions of the Software may be subject to certain thirty party license agreements governing the use, copying, modification, redistribution and warranty of those portions of the Software, including what is commonly known as 'open source' software. No warranty is provided for open source software. By using the Software you are also agreeing to be bound to the terms of such third party licenses. If provided for in the applicable third party license, you may have a right to receive source code for such software for use and distribution in any program that you create, so long as you in turn agree to be bound to the terms of the applicable third party license, and your programs are distributed under the terms of that license. If applicable, a copy of such source code may be obtained free of charge by contacting your Tyco representative.
Trademarks. This EULA does not grant you any rights in connection with any trademarks or service marks of Tyco, its affiliates or its suppliers.
Rental. You may not sublicense, rent, lease or lend the Software. You may not make it available to others or post it on a server or web site or otherwise distribute it.
Software Keys. The hardware/software key, where applicable, is your proof of license to exercise the rights granted herein and must be retained by you. Lost or stolen keys will not be replaced.
Demonstration and Evaluation Copies. A demonstration or evaluation copy of the Software is covered by this EULA; provided that the licenses contained herein shall expire at the end of the demonstration or evaluation period.
Registration of Software. The Software may require registration with Tyco prior to use. If you do not register the Software, this EULA is automatically terminated and you may not use the Software.
Additional Restrictions. The Software may be subject to additional restrictions and conditions on use as specified in the documentation accompanying such Software, which additional restrictions and conditions are hereby incorporated into and made a part of this EULA.
Upgrades and Updates. To the extent Tyco makes them available, Software upgrades and updates may only be used to replace all or part of the original Software that you are licensed to use. Software upgrades and updates do not increase the number of copies licensed to you. If the Software is an upgrade of a component of a package of Software programs that you licensed as a single product, the Software may be used and transferred only as part of that single product package and may not be separated for use on more than one computer or System. Software upgrades and updates downloaded free of charge via a Tyco authorized World Wide Web or FTP site may be used to upgrade multiple Systems provided that you are licensed to use the original Software on those Systems.
Tools and Utilities. Software distributed via a Tyco-authorized World Wide Web or FTP site (or similar Tyco-authorized distribution means) as a tool or utility may be copied and installed without limitation provided that the Software is not distributed or sold and the Software is only used for the intended purpose of the tool or utility and in conjunction with Tyco products. All other terms and conditions of this EULA continue to apply.
License by You to Host Your Data. With respect to Hosted Software, You grants Tyco, its affiliates and its hosting providers a worldwide, limited-term license to host, copy, transmit and display Your Data (as defined below), as necessary for Tyco to provide the Software in accordance with this EULA. Subject to the limited licenses granted herein, Tyco acquires no right, title or interest from You or Your licensors under this EULA in or to any Your Data. You acknowledge and agree that Your Data may be hosted and stored by a third party hosting provider selected, or to be selected by Tyco. 'Your Data' means electronic data and information submitted by or for you to the Software.
Protection of Your Data. Tyco shall maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of your Data by Tyco personnel (including its employees and contractors) except (a) to provide the services provided by the Software and prevent or address service or technical problems, (b) as compelled by law, or (c) as expressly permitted in writing by you.
EXPORT RESTRICTIONS. You agree that you will not export, re-export or transfer any portion of the Software, or any direct product thereof (the foregoing collectively referred to as the 'Restricted Components'), to IRAN, NORTH KOREA, SYRIA, CUBA and SUDAN, including any entities or persons in those countries, either directly or indirectly ('Tyco's Position'). You also agree that you will not export, re-export or transfer the Restricted Components to any other countries except in full compliance with all applicable governmental requirements, including but not limited to applicable economic sanctions and constraints administered by the U.S. Treasury Department and applicable export control measures administered by the U.S. Department of Commerce and U.S. Department of State, any other U.S. government agencies, and measures administered by the European Union or the government agencies of any other countries. Any violation by you of the applicable laws or regulations of the U.S. or any other government, or where you breach Tyco's Position notwithstanding whether or not this is contrary to any aforementioned applicable laws or regulations, will result in automatic termination of this EULA.
U.S. GOVERNMENT RESTRICTED RIGHTS. The Software is Commercial Computer Software provided with 'restricted rights' under Federal Acquisition Regulations and agency supplements to them. Any use, duplication or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFAR 255.227-7013 et. seq. or 252.211-7015, or subparagraphs (a) through (d) of the Commercial Computer Software Restricted Rights at FAR 52.227-19, as applicable, or similar clauses in the NASA FAR Supplement. Contractor/manufacturer is Exacq Technologies, Inc., 11955 Exit 5 Parkway, Fishers, IN 46037.
LIMITED WARRANTY.
Warranty. Tyco warrants that the recording medium on which the Software is recorded, hardware key, and the documentation provided with it, will be free of defects in materials and workmanship under normal use for a period of ninety (90) days from the date of delivery of the original Software licensed hereunder to the first user. Tyco further warrants that for the same period, the Software provided on the recording medium under this license will substantially perform as described in the user documentation provided with the product when used with specified hardware. THE FOREGOING EXPRESS WARRANTY REPLACES AND IS IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED OR OTHER WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR NON-MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, CUSTOM, TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT, OR SYSTEM INTEGRATION. TYCO MAKES NO WARRANTY THAT ANY PORTION OF THE SOFTWARE WILL OPERATE ERROR-FREE, FREE OF ANY SECURITY DEFECTS OR IN AN UNINTERRUPTED MANNER. TYCO SHALL NOT BE RESPONSIBLE FOR PROBLEMS CAUSED BY CHANGES IN THE OPERATING CHARACTERISTICS OF THE DEVICE(S) UPON WHICH THE SOFTWARE IS OPERATING, OR FOR PROBLEMS IN THE INTERACTION OF THE SOFTWARE WITH NON-TYCO SOFTWARE OR HARDWARE PRODUCTS. TYCO NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON PURPORTING TO ACT ON ITS BEHALF TO MODIFY OR TO CHANGE THIS WARRANTY, NOR TO ASSUME FOR IT ANY OTHER WARRANTY OR LIABILITY CONCERNING THIS SOFTWARE. THE WARRANTY MADE BY TYCO MAY BE VOIDED BY ABUSE OR MISUSE. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS UNDER MANDATORY LAW THAT VARY FROM STATE TO STATE AND COUNTRY TO COUNTRY.
Exclusive Remedy. Tyco's entire liability and your exclusive remedy under the warranty set forth in this Section 6 will be, at Tyco's option, to (i) attempt to correct Software errors with efforts Tyco believes suitable to the problem, (ii) replace at no cost the recording medium, Software or documentation with functional equivalents as applicable, or (iii) refund a pro-rated portion of the license fee paid for such Software (less depreciation based on a five-year life expectancy) and terminate this EULA, provided, in each case, that Tyco is notified in writing of all warranty problems during the applicable warranty period. Any replacement item will be warranted for the remainder of the original warranty period. No remedy is provided for failure of the Software if such failure is the result of accident, abuse, alteration or misapplication with respect to the Software or any hardware on which it is loaded. Warranty service or assistance is provided at the original point of purchase.
LIMITATION OF LIABILITY & EXCLUSION OF DAMAGES.
LIMITATION OF LIABILITY. IN NO EVENT WILL TYCO'S AGGREGATE LIABILITY (INCLUDING, BUT NOT LIMITED TO, LIABILITY FOR NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, MISREPRESENTATION AND OTHER CONTRACT OR TORT CLAIMS) ARISING FROM OR RELATED TO THIS EULA, OR THE USE OF THE SOFTWARE, EXCEED THE GREATER OF USD$5.00 OR THE AMOUNT OF FEES YOU PAID TO TYCO OR ITS RESELLER FOR THE SOFTWARE THAT GIVES RISE TO SUCH LIABILITY. BECAUSE AND TO THE EXTENT THAT SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSIONS OR LIMITATIONS OF LIABILITY ABOVE, THESE MAY NOT APPLY TO YOU.
EXCLUSION OF OTHER DAMAGES. UNDER NO CIRCUMSTANCES SHALL TYCO OR ANY OF ITS RESELLERS OR LICENSORS BE LIABLE FOR ANY OF THE FOLLOWING: (I) THIRD PARTY CLAIMS; (II) LOSS OR DAMAGE TO ANY SYSTEMS, RECORDS OR DATA, OR LIABILITIES RELATED TO A VIOLATION OF AN INDIVIDUAL'S PRIVACY RIGHTS; OR (III) INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR COVER DAMAGES (INCLUDING LOST PROFITS AND LOST SAVINGS), IN EACH CASE EVEN IF TYCO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR VERIFYING THE SECURITY, ACCURACY AND ADEQUACY OF ANY OUTPUT FROM THE SOFTWARE, AND FOR ANY RELIANCE THEREON. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR THE LIMITATION ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY THOSE LAWS.
GENERAL. If any provision of this EULA is found to be unlawful, void, or for any reason unenforceable, then that provision shall be severed from this EULA and shall not affect the validity and enforceability of the remaining provisions. You should retain proof of the license fee paid, including model number, serial number and date of payment, and present such proof of payment when seeking service or assistance covered by the warranty set forth in this EULA. This EULA is governed by the laws of the State of New York, without regards to its conflicts of law principles. The parties hereby irrevocably agree that they submit themselves to the personal jurisdiction of the state and federal courts of New York for purposes of resolving any and all disputes arising under or related to these terms and conditions. The parties specifically exclude the application of the provisions of the United Nations Convention on Contracts for the International Sale of Goods.
