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» version 1.2.3 - posted on 2004-10-18
» version 1.3 - posted on 2005-02-23
EULA - End User License Agreement
END-USER LICENSE AGREEMENT
Read this Agreement carefully. It sets forth the terms and conditions on which Viapoint Corp. (Viapoint) is willing to license this software (the Software) and its associated documentation (the Documentation) to its customers. This is a legal agreement between you (either an individual acting on his or her own behalf or an entity acting through an individual) and Viapoint.
BY CLICKING ON THE ACCEPT BUTTON OR BY COPYING, INSTALLING, OR USING THE SOFTWARE, YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE, DO NOT DOWNLOAD OR USE THE SOFTWARE, AND UNINSTALL THE SOFTWARE IF IT HAS BEEN INSTALLED. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, VIAPOINT IS UNWILLING TO LICENSE THE SOFTWARE TO YOU, IN WHICH CASE YOU SHOULD CLICK THE DO NOT ACCEPT BUTTON AND THE INSTALLATION WILL NOT PROCEED.
1. GRANT OF LICENSE. Subject to the terms and conditions of this Agreement, Viapoint grants you a limited non-exclusive, non-transferable license to install and use a copy of the Software on a single (1) personal computer and to use the Documentation in connection with your use of the Software, for your internal purposes only.
2. CONDITIONS BASED ON LICENSE TYPE. Your license to install and use the Software is subject to the following conditions based on the version of the Software you license:
2.1 Standard Version: You only have the right to install and use the version of the Software for which you have paid. If you buy a license to the Standard Version, you do not acquire rights to features available in other Versions or in other Viapoint Products.
2.2 Trial Version: The Trial Version of the Software (meaning any version so marked or marked for evaluation) may only be used for a limited time period to review, demonstrate and evaluate whether you wish to purchase a license of the Software. The Trial Version will automatically cease operating after a predetermined period of time. You may not (a) in the aggregate, install or use more than one copy of the Trial Version on a single computer; (b) use the Trial Edition for more than the period permitted by Viapoint for one trial license; or (c) use the Trial Edition for any commercial training purposes.
3. ACTIVATION. Your ability to use the Software will be subject to remote activation of the Software by Viapoint after the installation process. To enable the Software for use, you must activate the Software through the Internet with a valid Activation Key, which is provided at the time of purchase. You may also need to reactivate the Software if you modify your computer hardware or transfer your license to a different computer. Viapoint reserves the right not to activate the Software where use of the Software does not comply with the terms of this Agreement.
4. RESTRICTIONS ON LICENSE. You may use the Software only on one computer, and you may not share it or run it concurrently on more than one computer, port it to other platforms or translate it into another computer language. You may NOT: (i) make any copies of all or any part of the Software or otherwise reproduce the Software except for archival copies as permitted by the United States Copyright Act; (ii) copy or modify all or any part of the Documentation or distribute it to third parties; (iii) rent, lease or sub-license the Software or use the Software in connection with a service-bureau, time sharing or fee-for-service arrangement with third parties; (iv) decompile, disassemble, reverse engineer or otherwise discover the source code for the Software, or attempt to disable or defeat any locking mechanism within the Software; (v) modify the Software, incorporate the Software in whole or in part in any other product or create derivative works based on all or any part of the Software; (vi) remove any copyright, trademark, proprietary rights, disclaimer or warning notice included on or embedded in any part of the Software; or (vii) export the Software or use the Software in any country other than that in which it was obtained. You acknowledge that the Software is subject to United States export laws and regulations and you shall comply with all such laws and regulations in your use of the Software.
5. OWNERSHIP. Viapoint and its licensors own and retain all right, title and interest, in and to the Software and the Documentation. This Agreement is NOT a sale of the Software or Documentation or any copy of them. You obtain only such rights as are provided in this Agreement.
6. TERM AND TERMINATION. This license is effective until terminated as provided herein. This Agreement will terminate automatically if you fail to comply with any term or condition of this Agreement. Upon the termination of this Agreement, you will promptly return to Viapoint or destroy all copies of the Proprietary Materials and certify such return or destruction in writing to Viapoint. You may also terminate this Agreement voluntarily by destroying the Proprietary Materials or returning them to Viapoint. Sections 2, 4, 5, 8-12 and 15-17 shall survive any termination of this Agreement.
7. YOUR RESPONSIBILITIES. You are responsible for the supervision, management and control of the use of the Software, including but not limited to: (i) complying with all laws in your use of the Software; (ii) selection of the Software to achieve your intended results; and (ii) establishing adequate test and backup procedures to verify accurate data and to prevent the loss of data in the event of a malfunction of the Software.
8. LIMITED WARRANTY. Viapoint warrants that, for a period of 90 days from installation of the Software, the Software will conform to the specifications applicable to your version of the Software as set forth in the Documentation. Viapoint does not warrant that your use of the Software or Documentation will be uninterrupted or error free. IF THE SOFTWARE FAILS TO CONFORM WITH THE FOREGOING WARRANTY DURING SUCH 90 DAY PERIOD, YOU SHALL PROMPTLY NOTIFY VIAPOINT AND PROVIDE VIAPOINT WITH ALL AVAILABLE INFORMATION IN WRITTEN OR ELECTRONIC FORM SO THAT VIAPOINT CAN VERIFY SUCH NON-CONFORMANCE, AND YOUR SOLE REMEDY AND VIAPOINTS SOLE OBLIGATION SHALL BE TO REPAIR OR REPLACE THE SOFTWARE IN ORDER TO CORRECT SUCH NON-CONFORMANCE, OR, IN VIAPOINTS DISCRETION, TO PROVIDE A REFUND AS SET FORTH BELOW. If, in Viapoints opinion, repair or replacement of the Software is not commercially reasonable, Viapoint will accept return of the Software and Documentation from you and refund any fees paid for the Software, at which time this EULA shall terminate. Viapoint shall have no obligation under the foregoing warranty for any fault that does not arise from normal operation, in accordance with the Documentation, of the Software delivered to you, or from any superseded version. The foregoing warranty does not apply to the Trial Version of the Software or to any copy of the software that has not been activated. VIAPOINT LICENSES SUCH VERSIONS AS IS, WITH ALL FAULTS.
THE EXPRESS WARRANTY SET FORTH IN THIS ARTICLE 8 IS THE ONLY WARRANTY GIVEN BY VIAPOINT OR ITS LICENSORS WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION; VIAPOINT AND ITS LICENSORS MAKE NO OTHER WARRANTIES, EXPRESS, IMPLIED OR ARISING BY CUSTOM OR TRADE USAGE, AND SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES OF NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE.
SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.
9. EXCLUSION OF CERTAIN DAMAGES. IN NO EVENT SHALL VIAPOINT AND ITS LICENSORS BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, CONSEQUENTIAL OR ANALOGOUS DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF DATA OR LOSS OF PROFITS) ARISING OUT OF OR IN CONNECTION WITH THE LICENSE, USE OR PERFORMANCE OF THE SOFTWARE, WHETHER SUCH LIABILITY ARISES UNDER CONTRACT, TORT (INCLUDING BY NEGLIGENCE) OR STRICT LIABILITY, AND WHETHER VIAPOINT OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. LIMITATION OF AGGREGATE DAMAGES. THE AGGREGATE LIABILITY OF VIAPOINT AND ITS LICENSORS IN CONNECTION WITH THIS AGREEMENT AND/OR THE USE OF THE SOFTWARE SHALL NOT EXCEED THE AMOUNTS THAT YOU HAVE PAID VIAPOINT OR ITS AUTHORIZED DISTRIBUTOR HEREUNDER, WHETHER SUCH LIABILITY ARISES BY CONTRACT, TORT (INCLUDING NEGLIGENCE) OR STRICT LIABILITY. An essential purpose of the limitation on damages provided in this paragraph is the allocation of risks between you and Viapoint, and you acknowledge that Viapoint and its licensors would not have been willing to license the Software to you in the absence of this limitation and the exclusion set forth in the paragraph above.
11. CONSUMER END USERS OUTSIDE THE UNITED STATES. The exclusions and limitations of liability set forth in this Agreement shall not apply to the extent that they limit or exclude the rights afforded to you by any consumer protection or similar law applicable in your jurisdiction.
12. U.S. GOVERNMENT RESTRICTED RIGHTS. The Proprietary Materials were developed solely at private expense and contain proprietary data belonging to Viapoint and its licensors. Any Proprietary Materials are provided to United States Government agencies with "Restricted Rights", and supporting documentation and data to such Proprietary Materials is provided with "Limited Rights", both as defined in FAR 52.227-14. Use, duplication or disclosure of the Proprietary Materials is subject to restrictions set forth in the Commercial Computer Software -- Restricted Rights clause of FAR 52.227-19. For U.S. Department of Defense agencies, the Proprietary Materials are subject to restrictions for commercial computer software, documentation and technical data pursuant to DFARS 22.227-7015 and DFARS 227.7202. All rights to the Software and Documentation are reserved under the United States Copyright laws.
13. FORCE MAJEURE. Viapoint shall not be liable for any failure to perform hereunder to the extent that such failure arises by factors outside Viapoints reasonable control, including but not limited to Acts of God, war, terrorism, natural disaster or third party communications failure.
14. TRANSFER AND ASSIGNMENT. You may transfer your copy of the Software to another computer you own provided that after the transfer you completely remove the Software from the former computer.
15. AMENDMENT; WAIVER; SEVERABILITY. No alteration, amendment, waiver, cancellation or other change to this Agreement shall be valid or binding unless agreed in writing by both parties. No waiver by any party of a breach of any covenant or condition of this Agreement by any other party shall be construed to be a waiver of any succeeding breach of the same or any other covenant or condition. If any provision of this Agreement, or the application thereof, shall for any reason and to any extent be determined by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions of this Agreement shall be interpreted so as best to reasonably effect the intent of the parties. The parties further agree to replace any such invalid or unenforceable provisions with valid and enforceable provisions designed to achieve, to the extent possible, the business purposes and intent of such invalid and unenforceable provisions.
16. GENERAL. The terms of this Agreement shall be construed in accordance with the substantive laws of the Commonwealth of Massachusetts, without regard to its principles of conflicts of laws. Without limiting the generality of the foregoing, this Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods even if such Convention would otherwise be applicable in some respect to this license of software.
17. ACKNOWLEDGEMENT; ENTIRE AGREEMENT. BY CLICKING I ACCEPT OR BY INSTALLING OR SUING THE SOFTWARE OR DOCUMENTATION, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ALL OF ITS TERMS AND CONDITIONS. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND VIAPOINT WHICH SUPERSEDES ANY PROPOSAL, OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN YOU AND VIAPOINT RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT (INCLUDING ANY PURCHASE ORDER OR OTHER ORDERING DOCUMENT YOU PROVIDE TO VIAPOINT).