This Software License Agreement (Agreement) is a legal agreement between you (either as an individual or a single entity) and Eltima Software, for Developer’s software products, which include computer software, associated media, printed materials, online or electronic documentation (collectively “Software”). By installing, copying or using the Software you agree to be bound by the terms and conditions of this Agreement. If you do not agree to the terms and conditions of this Agreement and would like to obtain a refund of the amounts paid for the Software, you must immediately contact the company who sold you the Software license, and comply with its standard return policies and procedures for such Software. Please note that most companies require proof of purchase and the return of the Software within thirty (30) days from the date of purchase, however, return policies and procedures may vary between companies and Developer shall not, in any event, be responsible for any return policies and procedures, except for Developer’s own return policies and procedures for Software obtained directly from Developer.
For the purposes of this Agreement, the following capitalized words and phrases shall be ascribed the following meanings:
1.1 “AUTHORIZED SERVER” means a computer file server in your internal network designated to run the Software for use by Authorized Users or Authorized Concurrent Users.
1.2 “AUTHORIZED USERS” means you, or your employee or an individual independent contractor authorized by you to use the Software pursuant to the terms of this Agreement. An Authorized User means an individual person, and is not a corporation, company, partnership or association or other entity or organization.
1.3 “AUTHORIZED CONCURRENT USERS” means you and/or your employees or independent contractors that you authorize to have concurrent access to and use of the Software pursuant to the terms of this Agreement.
1.4 “DESKTOP CLIENT” means both that portion of the Software that is designated in its documentation for use on a workstation that may be connected to an Authorized Server when the Software is being used, or the standalone use of the Software on an individual computer.
1.5 “SERIAL NUMBER” means the character scheme provided by Developer and identified as the Serial Number for the Software. The Serial Number is either provided to you via email or contained in your Software package. Software licensed electronically by you will automatically have its Serial Number registered with Developer; otherwise, you will need to register your Serial Number for the Software with Developer.
2. Software License
2.1 Subject to the provisions of this Agreement, Developer grants to you a non-exclusive, non-transferable license to: (i) install the Software on the Authorized Server(s), (ii) reproduce, distribute and install that number of copies of the Desktop Client on the workstations or individual computers of the Authorized Users or Authorized Concurrent Users, as applicable; (iii) allow up to the permitted number of Authorized Users or Authorized Concurrent Users, as applicable, to use the Software (excluding the Desktop Client which shall be subject to 2.1(ii) above); (iv) allow up to the permitted number of Authorized Users or Authorized Concurrent Users, as applicable, to copy and use the Software’s accompanying documentation in conjunction with their use of the Software; and (v) reproduce and use Developer’s Trademarks in all copies of the Software and its documentation made in accordance with this Agreement.
2.2 All Software, which includes any subsequent updates, upgrades, bug fixes, patches and any part thereof, is provided to you under a nonexclusive and nontransferable license (except for Software transfers expressly authorized herein). All right, title to and ownership of all applicable intellectual property rights in the Software, including but not limited to patents, copyrights and trade secrets remain with Developer and its licensors. The above rights extend to any accompanying printed materials and online or electronic documentation and any authorized copies of the above materials. Software is unpublished software, trade secret and confidential or proprietary information of Developer or its licensors and is developed at private expense. The Software is provided with “Restricted Rights” and any use, duplication or disclosure by the US Government is subject to the restrictions and limitations set forth in FAR 52.227-19 and DFAR 252.227-7013 et seq. or its successor.
2.3 You cannot reverse engineer, decompile or disassemble the Software, in whole or in part, except and only to the extent that such activity is expressly permitted by applicable law.
2.4 You may transfer the Software and accompanying materials only on a permanent basis, provided you do not retain any copies of the Software, in whole or in part, and the transferee expressly agrees to comply with this Agreement. You may not otherwise use, copy, modify, lend, lease, rent or transfer the Software or any copies thereof, in whole or in part, except as expressly provided in this Agreement. All rights not expressly granted hereunder are reserved by Developer.
2.5 You shall ensure that your Authorized Users and Authorized Concurrent Users, if any, comply with the terms of this Agreement applicable to their use of the Software.
2.6 You cannot disclose to any third party nor allow any third party to have access to or use of your assigned Serial Number.
2.7 You may reproduce the Software only as reasonably necessary for your own bona fide non-production testing, backup or archival purposes.
2.8 You may not remove, obscure or alter any notice of copyright, patent, trade secret, trademark or other proprietary right or disclaimer appearing in or on any Software or accompanying materials.
3. Right to Restrict Use.
Developer reserves the right, with or without notice, to restrict your use or access to the Software, in whole or in part, if Developer reasonably determines that there is an unauthorized use of your assigned Serial Number, or use or access to the Software by persons or entities who are not Authorized Users or Authorized Concurrent Users. Such restriction by Developer shall not be a breach of this Agreement by Developer, and shall be in addition to any other rights and remedies Developer has under law and equity.
4. Patent and Copyright Indemnification.
Developer shall defend, at its expense, any claim, proceeding (or suit) brought against you alleging that the Software licensed to you hereunder infringes a United States patent or copyright. Developer shall pay all costs and damages finally awarded, provided Developer is given prompt written notice of such claim and is given information, reasonable assistance and sole authority to defend or settle the claim. You may, at your option, conduct your own defense at your sole expense. In the defense or settlement of the claim, Developer may, at its option and expense, obtain the right for you to continue using the Software, or replace or modify the Software so that it becomes non-infringing. In the event such remedies are not reasonably available, Developer will grant you a refund for the Software as depreciated and accept its return. Developer shall not have any liability if the alleged infringement is based upon use of other than the latest version of the Software; use of the Software in combination with other products or devices not provided by Developer; any modifications made by you; or use of, or access to the Software by any person or entity other than an Authorized User or Authorized Concurrent User. The above states your sole and exclusive remedy for any infringement of the Software.
5. WARRANTY AND DISCLAIMER OF WARRANTY.
Developer WARRANTS THE MEDIA ON WHICH THE SOFTWARE IS PROVIDED TO BE FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP UNDER NORMAL USE FOR A PERIOD OF NINETY (90) DAYS FROM THE DATE OF YOUR PURCHASE. DEVELOPER’S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR BREACH OF THIS WARRANTY SHALL BE REPAIR OR REPLACEMENT OF SUCH MEDIA. YOU ACKNOWLEDGE THAT THE SOFTWARE MAY NOT SATISFY ALL YOUR REQUIREMENTS OR BE FREE FROM DEFECTS, AND FURTHER ACKNOWLEDGE AND AGREE THAT THE SOFTWARE AND ACCOMPANYING WRITTEN MATERIALS ARE PROVIDED “AS IS”. EXCEPT AS EXPRESSLY SET FORTH ABOVE WITH RESPECT TO THE MEDIA WARRANTY, DEVELOPER DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR FOR ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, USAGE OR TRADE, OR NONINFRINGEMENT. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHERS, WHICH VARY FROM STATE TO STATE.
Developer shall have the right to inspect and audit your records pertaining to the Software to ensure ongoing compliance with this Agreement. Developer or Developer’s independent certified public accountant shall conduct such inspection and audit at Developer’s expense. Any inspection and audit will be conducted during regular business hours with reasonable notice and will not unreasonably interfere with your normal business activities. Inspections and audits will not occur more frequently than once a year, however, if past inspections and audits reveal major discrepancies, Developer shall have the right at any time to an inspection and audit upon written request. If any inspection and audit reveals any underreported, unpaid or unauthorized use of the Software, then you shall promptly pay to Developer the then current fee representing the underreported, unpaid or unauthorized use of the Software. In addition, you will be responsible for the costs and expenses of the inspection and audit if such inspection and audit reveals that the then current fee representing the underreported, unpaid or unauthorized use of the Software is equal to or greater than 5% of the amounts actually paid by you for such Software.
7. LIMITATION OF LIABILITY.
IN NO EVENT SHALL DEVELOPER BE LIABLE FOR ANY DAMAGES RESULTING FROM LOSS OF DATA, USE, PROFIT OR REVENUE, OR FOR ANY INDIRECT, SPECIAL,CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, EVEN IF DEVELOPER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.DEVELOPER’S LIABILITY FOR ANY OTHER DAMAGES SHALL IN NO EVENT EXCEED THE AMOUNT PAID FOR THE SOFTWARE THAT CAUSED SUCH DAMAGES. THIS LIMITATION OF DEVELOPER’S LIABILITY WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT INCLUDING NEGLIGENCE OR ANY OTHER BASIS.
Developer may immediately terminate this Agreement if you are in default of any provision of this Agreement. In the event of such termination, you must either return or destroy the Software and all copies thereof, in whole or in part, and provide Developer with written certification of such return or destruction.
You may not export or re-export the Software or any direct product thereof without the appropriate United States or foreign government export licenses and approvals.
10. Governing Law.
This Agreement shall be governed by the laws of the State of North Carolina, excluding that body of law known as conflicts of laws, and the United Nations Convention on Contracts for the International Sale of Goods.
11. Entire Agreement.
This Agreement constitutes the entire agreement between the parties and supersedes all prior or contemporaneous written, electronic or oral communications, representations, agreements or understandings between the parties with respect to the subject matter hereto.