END-USER LICENSE AGREEMENT FOR SMC(R) SOFTWARE
IMPORTANT-READ CAREFULLY: This End-User License Agreement
(„EULA“) is a legal contract between you (either (a) an individual user or (b)
a business organization and the user designated in accordance with Part D
below) and SMC Software Corporation, a Delaware corporation („SMC“) for the SMC
software that accompanies this EULA, including any associated media, printed
materials and electronic documentation (the „Software“). The Software also
includes any updates, add-on components, web services and supplements that SMC
may in the future provide to you or make available to you, to the extent such
items are not accompanied by a separate license agreement or terms of use. The Software is licensed, not sold. SMC is willing to license the Software to you
only if you accept the terms and conditions of this EULA. By clicking on the „I ACCEPT“ button, by
opening the package that contains the Software, or by copying, downloading, accessing
or otherwise using the Software, you agree to be bound by the terms of this
EULA. If you do not wish to be bound by
the terms of this EULA, click the „I DO NOT ACCEPT“ button, and do not install,
access or use the Software.
If you have questions concerning this EULA, or if you wish
to contact SMC for any reason, please contact the SMC distributor serving you
or write to SMC.
PART A-LICENSE OF EVALUATION SOFTWARE
Software provided to you on a complimentary basis for
evaluation purposes, regardless of how labeled, is „Evaluation Software.“ Your possession and use of Evaluation
Software will be governed by the terms set forth in this Part A and in Part D
below.
1. Grant of License.
SMC grants you a limited, personal, non-exclusive, non-transferable
license to use the Evaluation Software solely to evaluate its suitability for
your internal business requirements on the terms and conditions set forth in
this Part A and in Part D below. Without
limiting the foregoing, you may not use the Evaluation Software to create
publicly distributed computer software or for any other commercial
purpose. This license may be terminated
by SMC at any time upon notice to you and will automatically terminate, without
notice, upon the first to occur of the following: (a) the completion of your
evaluation of the Evaluation Software or (b) the expiration of the 15- or
30-day evaluation period shown in the Evaluation Software.
2. Use of Evaluation Software. Since this is Evaluation Software, portions
of the full-use version of the Software may be withheld or unusable and use of
the Software may require accessing portions of the Software remotely through
the Internet. Full use of the Software
may be restricted by technological protections.
3. Disclaimer of Warranty.
THE EVALUATION SOFTWARE IS PROVIDED ON AN „AS IS, WITH ALL DEFECTS“
BASIS AND WITHOUT WARRANTY OF ANY KIND.
ALL WARRANTIES, CONDITIONS, REPRESENTATIONS AND INDEMNITIES, WHETHER
EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS OR
OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE AND
NON-INFRINGEMENT AND THE IMPLIED WARRANTIES AND CONDITIONS AGAINST HIDDEN
DEFECTS („VICES CACHÉS“)), ARE HEREBY OVERRIDDEN, EXCLUDED AND DISCLAIMED.
PART B--LICENSE OF BETA SOFTWARE
Pre-Release Software provided to you for testing purposes,
regardless of how labeled, is „Beta Software.“
Your possession and use of Beta Software will be governed by the terms
set forth in this Part B and in Part D below.
1. Grant of License.
SMC grants you a limited, personal, non-exclusive, non-transferable
license to install and use copies of the Beta Software on a maximum of five (5)
computers residing on your premises, solely for your internal testing on the
terms and conditions set forth in this Part B and in Part D below. All other rights are reserved to SMC. You may not demonstrate or show the Beta
Software to third parties without SMC‘s written permission. You may not use the Beta Software in a live
operating environment where it may be relied upon to perform in the same manner
as a commercially released product or with data that has not been sufficiently
backed up. You may not use the Beta
Software for benchmark or performance testing.
This license may be terminated by SMC at any time upon notice to you
and, in any event, will automatically terminate, without notice, upon the
release of a commercial version of the Beta Software. Upon the termination of this EULA, You shall
cease use of the Beta Software and, upon request, shall promptly return to SMC,
or certify destruction of, all full or partial copies of the Beta Software and
related materials provided by SMC.
2. Feedback. You will provide SMC with reasonable feedback
on the Beta Software‘s performance, including but not limited to usability, bug
reports and test results. You will
review and comment on all documentation supplied. All bug reports, test results and other feedback
made by you will be the property of SMC and may be used by SMC for any purpose
it sees fit. Due to the nature of the
development work, SMC is not certain if errors or discrepancies in the Beta
Software may be corrected.
3. Support. SMC is
not obligated to provide technical or other support for the Beta Software. However, limited technical support („Support
Services“), if noted in the materials provided to you by SMC, may be available.
Use of any such Support Services is governed by the SMC policies and programs
described in „online“ documentation or in other SMC-provided materials. Any supplemental software code provided to
you as part of the Support Services shall be considered part of the Beta
Software and subject to the terms and conditions of this EULA. SMC may use technical information you provide
to SMC for SMC‘s product support, development, and other business purposes. SMC
will not utilize such technical information in a form that personally
identifies you. Support Services may not
be available in all countries outside the United States and will be
discontinued upon release of a commercial version of the Beta Software.
4. Maintenance. SMC
is not obligated to provide maintenance, technical support, or updates for the
Beta Software. SMC is not obligated to
release a commercial version of the Beta Software or to provide you with a copy
of any commercial version that may be released.
5. Confidential Information.
The Beta Software, including its features and the results of use or
testing („Confidential Information“), is confidential and proprietary to
SMC. Confidential Information does not
include information that you can prove (a) was already known to you prior to
the effective date of this EULA, (b) became publicly known through no wrongful
act by you, or (c) was received from a third party without similar restriction
and without breach of this EULA. You
will not disclose or provide Confidential Information to any third party except
with SMC‘s written permission or upon judicial or governmental order, and you
will give SMC reasonable notice prior to any such disclosure and will comply
with any protective or equivalent order.
This provision shall survive the termination or expiration of this EULA.
6. Disclaimer of Warranty.
THE BETA SOFTWARE IS PROVIDED ON AN „AS IS, WITH ALL DEFECTS“ BASIS AND
WITHOUT WARRANTY OF ANY KIND. ALL
WARRANTIES, CONDITIONS, REPRESENTATIONS AND INDEMNITIES, WHETHER EXPRESS OR
IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS OR OTHERWISE
(INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE AND NON-INFRINGEMENT AND THE
IMPLIED WARRANTIES AND CONDITIONS AGAINST HIDDEN DEFECTS („VICES CACHÉS“)), ARE
HEREBY OVERRIDDEN, EXCLUDED AND DISCLAIMED.
PART C--LICENSE OF SOFTWARE
Your possession and use of any Software other than
Evaluation Software and Beta Software will be governed by the terms set forth
in this Part C and in Part D below.
1. Grant of License.
Upon your payment of the full license price and acceptance of this EULA,
SMC grants you a limited, personal, non-exclusive license to install and use
the Software on the terms and conditions set forth in this Part C and in Part D
below.
2. Restrictions on Use of Software. You may install and use one copy of the
Software on a single computer for use by an individual user, and only for your
internal business purposes. You will
not rent, lease, lend, sublicense, redistribute or otherwise allow third
parties to use the Software directly or indirectly, whether on a time sharing,
remote job entry, or service bureau arrangement or to provide commercial
hosting services to third parties. You
will not copy, modify or prepare derivative works of the Software. You may use the Software only in the
language(s) which you select during installation or for which you acquire
rights pursuant to an SMC Language Pack.
You may not share the Software, except as set forth Section 3 below.
3. Shared Use on a
Single Computer. Subject to the
exceptions set forth at the end of this Section
4. Authority. With
respect to any licenses purchased to effectuate shared use on a single computer
pursuant to Section 3 above, you represent and warrant that you are authorized
to enter into this EULA on behalf of the business purchasing such licenses.
5. Redistributable Files. The Software‘s component parts may not be
separated for use on more than one computer, except as set forth in this
Section 6 or in clause (b) of Section 3 above.
You may copy the files specifically identified as „Redistributables“ in
the printed or electronic documentation that accompanies the Software and
redistribute them to the end users („End Users“) of the software code you
create by using the Software („Works“), subject to the following conditions:
(a) copies of the Redistributables must be exact and unmodified; (b) you may
distribute the Redistributables only with Works that add primary and
substantial functionality to the Redistributables; and (c) you shall grant your
End Users a limited, personal, non-exclusive and non-transferable license to use
the Redistributables only to the extent required for the permitted operation of
the Works and not to distribute them further.
You will reproduce with the Redistributables all applicable trademark
and copyright notices that accompany such Software, but you will not use SMC‘s
name, logos or trademarks to market the Works.
6. Enterprise License Agreement. If you acquired the
Software pursuant to an SMC Enterprise License Agreement, you may make the
number of additional copies of the object code of the computer software portion
of the Software permitted by the relevant Enterprise License Agreement, and you
may use each copy in the manner specified above. You may not copy the printed materials
accompanying the Software.
7. Support Services. SMC may provide you with support
services related to the Software („Support Services“). The provision and use of
Support Services is governed by the SMC policies and programs described in the
Software user manual and/or in „online“ documentation. Any supplemental software code provided to
you as part of the Support Services shall be considered part of the Software
and subject to the terms and conditions of this EULA. With respect to technical information you
provide to SMC as part of the Support Services, SMC may use such information
for its business purposes, including for product updates and development.
8. Limited
Warranty. SMC warrants (a) that the
Software will, for a period of ninety (90) days from the date of delivery,
perform substantially in accordance with SMC‘s written materials accompanying
it, and (b) that any Support Services provided by SMC shall be substantially as
described in applicable written materials provided to you by SMC. TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL
WARRANTIES, CONDITIONS, REPRESENTATIONS AND INDEMNITIES, WHETHER EXPRESS OR
IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS OR OTHERWISE
(INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE AND NON-INFRINGEMENT AND THE
IMPLIED WARRANTIES AND CONDITIONS AGAINST HIDDEN DEFECTS („VICES CACHÉS“)) ARE
HEREBY OVERRIDDEN, EXCLUDED AND DISCLAIMED, WITH REGARD TO THE SOFTWARE AND THE
PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES. THE LIMITED WARRANTY GIVES
YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHERS, WHICH VARY FROM
STATE/JURISDICTION TO STATE/JURISDICTION.
Some states and jurisdictions do not allow disclaimers of or limitations
on the duration of an implied warranty, so the above limitation may not apply
to you. To the extent implied warranties may not be entirely disclaimed but
implied warranty limitations are allowed by applicable law, implied warranties
on the Software, if any, are limited to ninety (90) days.
9. Customer
Remedies. In the event of any breach of
the foregoing warranty or any other duty owed by SMC, the entire liability of
SMC and its suppliers, and your exclusive remedy shall be, at SMC‘s option,
either (a) return of the price paid by you for the Software (not to exceed the
suggested U.S. retail price) if any, (b) repair or replacement of the defective
Software or (c) re-performance of the Support Services. This limited warranty is void if failure of
the Software has resulted from accident, abuse, or misapplication. Any replacement
Software will be warranted for the remainder of the original warranty period or
thirty (30) days, whichever is longer.
PART D---GENERAL TERMS AND CONDITIONS APPLICABLE TO ALL
SOFTWARE LICENSES
Your possession and use of the Software for any purpose will
be governed by the terms set forth in this Part D and in Part A, B or C above,
whichever is applicable.
1. Designation of Individual User. If you are a business organization, you must
designate one owner, officer or employee in your organization to exercise the
rights set forth in this EULA. The
provisions of this EULA shall bind you and that designated person, jointly and
severally.
2. Use of Software.
Except as permitted pursuant to this EULA, you will not otherwise use or
copy, translate, modify, adapt, decompile, disassemble or reverse-engineer the
Software. You agree not to use the Software in violation of any law, statute,
ordinance or other regulation (including export control and unfair competition
laws) or any obligation to which you are bound. You agree to comply with all
applicable laws and regulations regarding your use of the Software. You agree
to indemnify SMC from and against any liability that SMC may incur arising from
your breach of this EULA or your use of the Software.
3. Ownership. All
patents, copyrights, trade secrets, service marks, trademarks, and other
proprietary rights in or related to the Software are and will remain the
exclusive property of SMC or its licensors, whether or not specifically
recognized or perfected under the laws of the country where the Software is
located. You hereby assign and agree to assign any and all rights you may have
or acquire in or to the Software to SMC for no additional consideration. You
will not take any action that jeopardizes SMC‘s or its licensors‘ proprietary
rights or acquire any rights in the Software, except the limited rights set
forth in this EULA. SMC or its designee will own all rights in any copy,
translation, modification, adaptation or derivation of the Software, including
any improvement or development thereof.
At SMC‘s request, you will execute or obtain the execution of any
instrument that may be appropriate to assign these rights to SMC or its
designee or to perfect these rights in SMC‘s or its designee‘s name. You may
make one copy of the Software for back-up and archival purposes. You may not remove, modify or alter any SMC
copyright or trademark notice from any part of the Software, including but not
limited to any such notices contained in the physical and/or electronic media
or documentation, in the SMC Setup Wizard dialogue or ‚about‘ boxes, in any of
the runtime resources and/or in any web-presence or web-enabled notices, code
or other embodiments originally contained in or otherwise created by the Software.
4. Confidentiality. You acknowledge that the Software is and
incorporates confidential and proprietary information developed, acquired by or
licensed to SMC. You will take all
reasonable precautions necessary to safeguard the confidentiality of the Software,
and will not disclose any information about the Software or the Software
evaluations or reports to any other person without SMC‘s prior written
consent. You will not allow the removal
or defacement of any confidentiality or proprietary notice placed on the
Software. The placement of a copyright
notice on the Software will not constitute publication or otherwise impair its
confidential nature. You acknowledge
that any breach of this Section will cause irreparable harm to SMC and its
licensors.
5. Transfer of Software.
You may not, by operation of law or otherwise, transfer any license
rights or other interests in Evaluation Software, Beta Software, or Software
labeled „Not for Resale“ or „NFR.“ You
may not, by operation of law or otherwise, transfer any license rights or other
interests in any other Software, unless (a) you permanently and wholly transfer
all your rights under this EULA; (b) you retain no copies (whole or partial);
(c) you permanently and wholly transfer all of the Software (including
component parts, media, printed materials, upgrades, prior versions, and
authenticity certificates); and (d) the transferee agrees to abide by all the
terms of this EULA. Any purported
transfer not in accordance with this Section 8 will be void.
6. Limitation of Damages.
IN NO EVENT SHALL SMC, ITS LICENSORS OR SUPPLIERS OR ITS OR THEIR
RELATED COMPANIES BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE
OR INCIDENTAL DAMAGES OR LOST PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE,
BASED ON CLAIMS OF YOU OR ANY OTHER PARTY ARISING OUT OF BREACH OR FAILURE OF
EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE,
STRICT LIABILITY IN TORT, FAILURE OF ANY REMEDY TO ACHIEVE ITS ESSENTIAL
PURPOSE OR OTHERWISE. NOTWITHSTANDING
THE FORM (e.g., CONTRACT, TORT OR OTHERWISE) IN WHICH ANY LEGAL OR EQUITABLE
ACTION MAY BE BROUGHT, IN NO EVENT WILL SMC OR ITS SUPPLIERS BE LIABLE FOR
DAMAGES OR LOSSES THAT EXCEED, IN THE AGGREGATE, THE FOLLOWING FOR EACH
RESPECTIVE BREACH OR SERIES OF RELATED BREACHES: (i) WITH RESPECT TO SOFTWARE,
THE AMOUNT OF LICENSE FEES PAID BY CUSTOMER FOR THE SOFTWARE THAT GAVE RISE TO
SUCH DAMAGES OR LOSSES; AND (ii) WITH RESPECT TO ANY SUPPORT OR OTHER SERVICES
PROVIDED HEREUNDER, THE AMOUNT OF FEES PAID FOR THE SUPPORT OR SERVICES THAT
GAVE RISE TO SUCH DAMAGES OR LOSSES. EXCEPT WITH REGARD TO PAYMENTS DUE SMC,
NEITHER PARTY SHALL BE LIABLE FOR ANY DELAYS OR FAILURES IN PERFORMANCE DUE TO
CIRCUMSTANCES BEYOND ITS REASONABLE CONTROL THAT COULD NOT BE AVOIDED BY ITS
EXERCISE OF DUE CARE.
7. Upgrades and Subscription. If the Software is labeled or otherwise
identified by SMC as an „upgrade“ or „subscription,“ you must be properly
licensed to use a product identified by SMC as being eligible for the upgrade in
order to use the Software. Any Software labeled or otherwise identified by SMC
as an upgrade replaces and/or supplements the product that formed the basis for
your eligibility for such upgrade. You may use the resulting upgraded product
only in accordance with the terms of this EULA. 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.
8. Dual-Media Software. You may receive the Software in more
than one medium. Regardless of the type or size of the medium you receive, you
may use only that one medium that is appropriate for your single computer. You
may not use or install from the other medium on another computer, including but
not limited to portable computers under the exclusive control of the registered
developer. You may not loan, rent,
lease, or otherwise transfer the other medium to another user, except as part
of the permanent transfer (as provided above) of the Software.