End User License Agreement
IMPORTANT:
THE PURCHASER OF THE SOFTWARE (THE “CUSTOMER”) MUST CAREFULLY READ THIS AGREEMENT BEFORE INSTALLING OR USING THE SOFTWARE. INSTALLATION OR USE OF THE SOFTWARE WILL INDICATE THAT THE CUSTOMER HAS READ, UNDERSTANDS AND AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, WHICH SETS OUT THE TERMS AND CONDITIONS GOVERNING THE CUSTOMER’S USE OF THE SOFTWARE PURSUANT TO THE SOFTWARE LICENSE GRANTED TO THE CUSTOMER BY TECHNEOS SYSTEMS INC. ("TECHNEOS").
IF THE CUSTOMER CANNOT OR DOES NOT AGREE TO ABIDE BY ANY PART OF THIS AGREEMENT, THE CUSTOMER MUST NOT INSTALL THE SOFTWARE AND MUST DELETE ALL COPIES OF THE SOFTWARE FROM THE CUSTOMER’S PERSONAL COMPUTER AND MOBILE COMPUTING DEVICES AND RETURN ALL COPIES OF THE SOFTWARE TO THE VENDOR FROM WHICH THE CUSTOMER PURCHASED THE SOFTWARE WITHIN 10 DAYS AFTER THE DATE OF PURCHASE OF THE SOFTWARE FOR A REFUND OF THE LICENSE FEE, IF ANY.
If the Customer has received an evaluation copy of the Software, the rights granted herein will apply until the expiry date indicated at the time of installation, during which time the Customer may use the Software solely for evaluation, demonstration and testing purposes in accordance with the terms and conditions set out herein. After the expiry of the evaluation period, the Customer agrees to delete all copies of the Software from the Customer’s personal computer and mobile computing devices.
If the Customer has received a 36-month (3-year), 24-month (2-year), 12-month (Annual), 6-month (Semi-Annual), 3-month (Quarterly) or 1-month (Monthly) term license for the Software, the rights granted herein will apply until the expiry date indicated in the sales contract or invoice between the Customer and Techneos, or a reseller authorized by Techneos, for the Software. After the expiry of such period, the Customer agrees to delete all copies of the Software from the Customer’s personal computer and mobile computing devices.
To obtain a license to use the Software after the expiry of an evaluation period or to extend the term of a license period, the Customer must contact the reseller from which the Customer obtained the license, or Techneos at http://www.techneos.com/.
1. Definitions. In this Agreement:
(a) "Software" means the object-code form of the proprietary software programs of Techneos enclosed with or attached to this Agreement, or of which this Agreement forms a part, including, without limitation, Techneos™ Server, Techneos Server Web Console, Entryware™ Designer, Entryware Data Manager, Entryware Dataport™, Entryware Mobile Entryware Connector, and Entryware Conduit for Palm OS, and all updates and maintenance releases to any of the foregoing, and all files accompanying such programs that are designed to be used with them, including related Documentation; and
(b) "Documentation" means the documentation, help files, user manuals, handbooks and other written or electronic material provided by or made generally available by Techneos to its customers relating to software and/or support services, as amended or revised by Techneos from time to time.
2. License. Techneos hereby grants to the Customer a personal, restricted, non-transferable and non-exclusive license (without the right to sublicense) to install and use the Software (the "License") solely in object-code format for the Customer’s internal business purposes on the terms and conditions set out in this Agreement. The Customer may only use the Software on the number of personal computers and on the number of mobile computing devices for which the Customer has purchased the License, as indicated in the Software sales contract or invoice between the Customer and Techneos, or a reseller authorized by Techneos. The Software is licensed, not sold. The Software and any copies that this License authorizes the Customer to make are subject to the terms and conditions of this License. The Customer’s rights under this License will terminate automatically without notice from Techneos if the Customer fails to comply with any of the terms and conditions of this License. Upon termination, the Customer must destroy all copies of the Software in the Customer’s possession in any form and on any media.
3. Ownership of Software. Copyright laws and international copyright treaties and other intellectual property laws protect Techneos’ rights in and to the Software. No right, title or interest in or to the Software (including the Documentation therefor), media or other material provided to the Customer by Techneos is transferred to the Customer by this Agreement, except the limited right to use expressly granted by the License. All right, title and interest in and to the Software, including all intellectual property rights associated with the Software, are retained by Techneos or its licensors, as the case may be.
4. Restrictions on Use of Software.
(a) The Software may not be installed on more than one personal computer or more than one mobile computing device, except as permitted under section 2 hereof, unless a separate License is purchased for each additional personal computer or mobile computing device. Improper use of the same licensed copy of the Software on more than one personal computer or mobile computing device may result in ambiguous data or the loss of data. The Customer assumes all responsibility for the proper operation of the Software, strictly in accordance with the requirements set out in the Documentation, to avoid accidental loss of data or data integrity. If the Customer does not understand the requirements for the proper operation of the Software, the Customer must contact the Customer’s Software reseller or Techneos for additional information.
(b) The Customer may not copy or reproduce the Software, nor may the Customer cause or allow anyone else to do so, except that the Customer may make one copy of the Software in machine-readable form for back-up purposes only. The Customer may copy or print copies of the Documentation solely for use with the Software in accordance with this Agreement. Any copies of the Software and/or Documentation must include any title, trademark, copyright and/or restricted rights or proprietary notices or labels contained on the original.
(c) The Customer may not reverse engineer, decompile, disassemble, or otherwise reduce the Software to any human perceivable form, nor may the Customer cause or allow anyone else to do so.
(d) The Customer may not modify, adapt, translate or create derivative works based upon the Software, in whole or part, nor may the Customer cause or allow anyone else to do so.
(e) The Customer may not sell, rent, lease, loan, sublicense, distribute, export, permit concurrent use of or otherwise grant or transfer any rights, in whole or part, to the Software, nor may the Customer cause or allow anyone else to do so.
(f) The Customer may not provide use of the Software to any users who are not individually licensed by Techneos, whether through a time sharing, interactive cable television, multiple CPU service bureau, public computer-based information system, public electronic bulletin board, the Internet or the World Wide Web, or any other public or private computer network, nor may the Customer cause or allow anyone else to do so.
(g) The Customer may not remove any title, trademark, copyright and/or restricted rights or proprietary notices or labels from the Software or Documentation.
5. Software Support.
(a) If the Customer has purchased the License directly from Techneos, Techneos will provide to the Customer support services for the Software in accordance with Techneos’ Software Support Terms and Conditions provided to the Customer at the time the License is purchased from Techneos, which will form an integral part of this Agreement.
(b) If the Customer has purchased the License from a reseller authorized by Techneos, the reseller will provide to the Customer support services for the Software in accordance with the reseller’s Software support terms and conditions provided to the Customer at the time the License is purchased, which will form a separate contract between the Customer and the reseller and will not form a part of this Agreement.
6. Warranties and Limitations.
(a) EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE SOFTWARE AND ANY RELATED SERVICES, INCLUDING, BUT NOT LIMITED TO, SUPPORT SERVICES, ARE DELIVERED "AS IS" WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TECHNEOS MAKES NO WARRANTY OR REPRESENTATION IN RESPECT OF SUPPORT SERVICES PROVIDED BY TECHNEOS’ RESELLERS.
(b) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TECHNEOS AND ITS LICENSORS AND THEIR RESPECTIVE REPRESENTATIVES DISCLAIM ALL OTHER REPRESENTATIONS AND WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE SOFTWARE AND ANY RELATED SERVICES (WHETHER PROVIDED BY TECHNEOS OR ITS RESELLERS), INCLUDING, BUT NOT LIMITED TO, THEIR FITNESS FOR A PARTICULAR PURPOSE, TITLE, THEIR QUALITY, THEIR MERCHANTABILITY, NON-INFRINGEMENT, OR THE PROVISIONS OF, OR FAILURE TO PROVIDE, SUPPORT SERVICES.
(c) TECHNEOS DOES NOT WARRANT THAT THE SOFTWARE IS FREE FROM BUGS, VIRUSES, ERRORS, OR OTHER PROGRAM LIMITATIONS, NOR DOES TECHNEOS WARRANT THAT THE CUSTOMER’S USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR THAT IT WILL MEET THE CUSTOMER’S REQUIREMENTS.
(d) ALL RISK ASSOCIATED WITH USE OF THE SOFTWARE AND ANY RELATED SERVICES (WHETHER PROVIDED BY TECHNEOS OR ITS RESELLERS) IS ASSUMED BY THE CUSTOMER.
(e) NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TECHNEOS OR ITS LICENSORS OR THEIR RESPECTIVE REPRESENTATIVES SHALL MODIFY, EXTEND OR INCREASE THE SCOPE OF THE ABOVE REPRESENTATIONS, WARRANTIES OR CONDITIONS OR CREATE ANY NEW WARRANTY.
(f) NOTHING IN THIS AGREEMENT SHALL RESTRICT TECHNEOS' LIABILITY FOR DEATH OR PERSONAL INJURY FROM NEGLIGENCE BY TECHNEOS OR ITS EMPLOYEES AND AGENTS. THIS LIMITED WARRANTY GIVES THE CUSTOMER SPECIFIC LEGAL RIGHTS. THE CUSTOMER MAY HAVE OTHER RIGHTS, WHICH VARY FROM LOCATION TO LOCATION, DEPENDING UPON THE APPLICABLE LAW OF SUCH LOCATION.
7. Limitation of Liability and Damages.
(a) THE CUSTOMER AGREES THAT TECHNEOS AND ITS LICENSORS AND THEIR RESPECTIVE REPRESENTATIVES SHALL NOT BE LIABLE FOR ANY LOSS OF DATA UNDER ANY CIRCUMSTANCES.
(b) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TECHNEOS AND ITS LICENSORS AND THEIR RESPECTIVE REPRESENTATIVES ARE NOT LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM THE SUPPLY, USE, PERFORMANCE OR MISPERFORMANCE OF THE SOFTWARE (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFIT, LOSS OF GOODWILL, LOST OR DAMAGED DATA, WORK STOPPAGE, OR ANY AND ALL OTHER COMMERCIAL OR ECONOMIC DAMAGES OR LOSSES) AND ANY RELATED SERVICES (INCLUDING, BUT NOT LIMITED TO, SUPPORT SERVICES, WHETHER PROVIDED BY TECHNEOS OR ITS RESELLERS) WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF TECHNEOS OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY.
(c) IF, DESPITE THE FOREGOING LIMITATIONS, IF TECHNEOS OR ITS LICENSORS OR ANY OF THEIR RESPECTIVE REPRESENTATIVES IS HELD LIABLE TO THE CUSTOMER, THE ENTIRE AND SOLE LIABILITY OF TECHNEOS AND ITS LICENSORS AND THEIR RESPECTIVE REPRESENTATIVES FOR ANY REASON SHALL BE LIMITED TO THE AMOUNT PAID BY THE CUSTOMER FOR THE SOFTWARE AND ANY RELATED SERVICES, AND THE CUSTOMER AGREES THAT THE MAXIMUM AGGREGATE LIABILITY OF TECHNEOS AND ITS LICENSORS AND THEIR RESPECTIVE REPRESENTATIVES IN ANY CONNECTION WITH THIS AGREEMENT, THE SOFTWARE AND ANY RELATED SERVICES, SHALL NOT EXCEED SUCH AMOUNT.
(d) BECAUSE THE APPLICABLE LAWS OF SOME LOCATIONS DO NOT ALLOW THE LIMITATION AND/OR EXCLUSION OF LIABILITY, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO ALL CUSTOMERS.
(e) THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE AGREEMENT BETWEEN TECHNEOS AND THE CUSTOMER. THE CUSTOMER ACKNOWLEDGES THAT TECHNEOS WOULD NOT BE ABLE TO PROVIDE THE CUSTOMER WITH A LICENSE TO THE SOFTWARE OR ANY RELATED SERVICES WITHOUT SUCH LIMITATIONS.
8. Export Law Assurances. The Customer agrees that neither the Software nor any direct product thereof is being or will be shipped, transferred or re-exported, directly or indirectly, into any country or to any foreign entity or foreign person prohibited under any Act or Regulation of the Government of Canada or by the laws of the jurisdiction in which the Software was obtained. By using the Software, the Customer is agreeing to the foregoing and represents and warrants that the Customer will not download or otherwise export to (or to a national or resident of), and the Customer is not located in, any country in which it would not be permitted to export the Software from any jurisdiction in which the Software or related materials was situated prior to the Customer obtaining it.
9. United States Government Restricted Rights.
(a) If the Software is acquired by or on behalf of a unit or agency of the United States Government or any state or local government in the United States, this provision applies. The Software
(i) was developed at private expense, and no part of it was developed with United States Government funds;
(ii) is a trade secret of Techneos for all purposes of the Freedom of Information Act;
(iii) is "Commercial Computer Software" subject to limited utilization (Restricted Rights) as provided in the contract between Techneos and the government entity; and
(iv) in all respects is proprietary data belonging solely to Techneos.
(b) For units of the Department of Defense ("DOD"), the Software is licensed only with "Restricted Rights" as that term is defined in the DOD Supplement to the Federal Acquisition Regulations ("DFARS") 252.227-7013(c) or any other successor clause, and use, duplication or disclosure is subject to restriction as set forth in the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, 252.227-7014 or 252.227-7015 or any other successor clause. Manufacturer: Techneos Systems Inc.
(c) Except as specifically stated in the contract between Techneos and the government entity under which this copy was licensed, use of the Software shall be limited to use as Commercial Computer Software - Restricted Rights as set forth in Federal Acquisition Regulation 52.227-19 or any other successor clause. U.S. Government personnel using the Software, otherwise than under a DOD contract or GSA Schedule, are hereby on notice that use of the Software is subject to restrictions which are the same as, or similar to, those specified above.
10. General Provisions.
(a) TheCustomer acknowledges that this Agreement and, in the case of Licenses purchased directly from Techneos, the Software Support Terms and Conditions, comprise(s) the complete agreement between the Customer and Techneos regarding the Software and the provision of support services by Techneos and that there are no other prior or contemporaneous understandings, promises, representations, or descriptions regarding the Software or the provision of support services by Techneos.
(b) No resellers or other representatives of Techneos are authorized to make modifications to the terms and conditions of this Agreement, or to make any additional representations, commitments or warranties of any kind regarding the Software or the provision of support services by Techneos, except by written agreement signed by an officer of Techneos. Accordingly, no such additional representations, commitments or warranties will be binding on Techneos and the Customer shall not rely upon such statements.
(c) The acceptance by Techneos of any purchase order placed by the Customer will be subject to the prior acceptance by the Customer of the terms and conditions of this Agreement, and not any terms and conditions set out in the purchase order.
(d) The Customer may not assign or transfer the Software, this Agreement or any rights granted hereunder without the prior written consent of Techneos.
(e) No delay or failure to take any action or exercise any rights under this Agreement shall constitute a waiver or consent unless expressly waived or consented to in writing by a duly authorized representative of Techneos. A waiver of any event does not apply to any other event, even if in relation to the same subject-matter.
(f) This Agreement does not limit any rights that Techneos may have under trade secret, copyright, patent, trademark or other laws.
(g) If any provision of this Agreement is invalid or unenforceable under applicable law, then such provision will be, to that extent, deemed omitted and the remaining provisions of this Agreement will continue in full force and effect.
(h) The provisions of sections 3, 4, 6, 7 and this section 10 of this Agreement shall survive any termination or expiry of this Agreement.
(i) The validity and performance of this Agreement shall be governed by the laws of the Province of British Columbia and the Canadian federal laws and international treaties applicable therein, without reference to choice of law principles or the United Nations Convention on Contracts for the International Sale of Goods. Each of the parties to this Agreement irrevocably attorns to the jurisdiction of the courts of the Province of British Columbia and further agrees to commence any litigation which may arise hereunder in the courts located in the City of Vancouver, British Columbia.
(j) The parties hereto confirm that it is their wish that this Agreement as well as all other documents relating hereto have been and shall be drawn up in the English language only. Les parties aux présentes confirment leur volonté que cette convention de même que tous les documents s'y rattachant, soient rédigés en anglais seulement.
Copyright (c) 2007 Techneos
Systems Inc. All rights reserved.
http://www.techneos.com
