END-USER LICENSE AGREEMENT V1
CAUTION: YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT BEFORE INSTALLING OR USING THE PRODUCT AND DOCUMENTATION TO WHICH THIS AGREEMENT RELATES. BY ACCEPTING THIS AGREEMENT YOU ARE CONSENTING TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN AND ACKNOWLEDGING YOUR AUTHORITY TO DO SO ON BEHALF OF YOUR COMPANY (IF APPLICABLE). IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, DO NOT PROCEED WITH THE INSTALLATION OF THE PRODUCT AND PROMPTLY RETURN THE PRODUCT, DOCUMENTATION, AND ALL COPIES THEREOF TO THE SUPPLIER FROM WHICH IT WAS ACQUIRED FOR A FULL REFUND OF THE LICENSE FEES, IF ANY, PAID FOR THE PRODUCT. THE TERM “PROMPTLY” AS USED HEREIN SHALL MEAN NO LATER THAN SIXTY (60) DAYS FOLLOWING THE DELIVERY OF THE PRODUCT TO YOU.
This End-User License Agreement (“License agreement” or “EULA”) is a legal agreement between either an individual or a single entity (“You” or “Licensee”) and Nextian (“Licensor”). The agreement covers software, associated media and on-line and hard-copy documentation (“Documentation”) collectively referred to as (“Software”).
1. LEGAL BASE The software is sole ownership of the Licensor and is protected by copyrights and international treaties.
2. GRANT OF LICENSE The Licensor grants the Licensee a worldwide, non-exclusive, non-transferable, non-sublicenseable right to use the Software, subject to the terms and conditions of this Agreement. Software licenses are term-based unless terminated as described in this Agreement.
2.1. Installation. The Licensor grants the Licensee the following rights provided that the Licensee complies with all terms and conditions of this agreement. Alternatively, the Licensee may install a copy of the Software on a network storage device, such as a server computer, and allow one access device, such as a personal computer, to access and use that licensed copy of the Software over a private network.
2.2. Backup copy. The Licensee may create any number of backup copies of the Software for own, internal use.
2.3. Software transfer. The Licensee may transfer the Software to another device owned by Licensee (e.g. computer) unlimited number of times, provided that a) the Licensee has paid up-to-date maintenance fees and b) the prior copy of the Software is deleted, once each transfer has been completed.
2.4. License grant for documentation. The documentation that accompanies the Software is licensed for internal, non-commercial purposes only.
3. OTHER RIGHTS AND LIMITATIONS
3.1. The Licensee may not rent, lease, lend or provide commercial hosting services with the Software.
3.2. The Software is licensed as a single product. Its component parts may not be separated.
3.3. The Software may not be used by third parties without Licensor’s prior consent.
3.4. The Licensor reserves all rights not expressly granted to you in this agreement. The Software is protected by copyright and other intellectual property laws and treaties. The Licensor or its suppliers own the title, copyright, and other intellectual property rights in the Software. The Software is licensed, not sold. This agreement does not grant you any rights to trademarks or service marks of the Licensor or its suppliers.
4. LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION, AND DISASSEMBLY You may not reverse engineer, decompile, or disassemble the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
5. LIMITATIONS ON FREE VERSION USAGE You may use a free version (“Free version”) of the Software (if available) only under additional terms, conditions and limitations stated in the Software’s download section on Licensor’s website.
6. CONSENT TO USE OF DATA You agree that the Licensor and its affiliates may collect and use technical information gathered as part of the product support services provided to you, if any, related to the Software. The Licensor may use this information solely to improve our products or to provide customized services or technologies to you and will not disclose this information in a form that would allow identification of information source.
7. UPGRADES This License agreement applies to any Software upgrades (including those downloaded from the Internet), that the Licensor may deliver or make available to Licensee, unless a separate license agreement is provided with the upgrade. To use Software identified as an upgrade, a) you must first be licensed for the software identified by Licensor as eligible for the upgrade and b) you have paid up-to-date maintenance fees. After installing the upgrade, you may no longer use the original software that formed the basis for your upgrade eligibility, except as part of the upgraded software. The Licensor reserves the right to terminate Internet services provided with the Software at any time.
8. TERMINATION Without prejudice to any other rights, the Licensor may terminate this agreement if you the Licensee fails to comply with the terms and conditions the agreement. In such event, the Licensee must destroy all copies of the Software and all of its component parts.
9. SEVERABILITY If any provision of this License agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect.
10. LIMITATION OF LIABILITY AND REMEDIES Notwithstanding any damages that the Licensee might incur for any reason whatsoever (including, without limitation, all damages referenced herein and all direct or general damages in contract or anything else), the entire liability of Licensor and any of its suppliers under any provision of this License agreement and your exclusive remedy hereunder (except for any remedy of repair or replacement elected by the Licensor with respect to any breach of the Limited Warranty) shall be limited to the to the amount actually paid by you for the Software. The foregoing limitations, exclusions and disclaimers shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
11. LIMITED WARRANTY The Software has been designed as a general-purpose package, not fit for a particular application or use.
The Licensor warrants that the Software will perform substantially in accordance with the accompanying documentation for a period of ninety (90) days from the date of receipt. If an implied warranty or condition is created by your state/jurisdiction and federal or state/provincial law prohibits disclaimer of it, you also have an implied warranty or condition, BUT ONLY AS TO DEFECTS DISCOVERED DURING THE PERIOD OF THIS LIMITED WARRANTY (NINETY DAYS). AS TO ANY DEFECTS DISCOVERED AFTER THE NINETY DAY PERIOD, THERE IS NO WARRANTY OR CONDITION OF ANY KIND. Some states/jurisdictions do not allow limitations on how long an implied warranty or condition lasts, so the above limitation may not apply to you. Any supplements or updates to the Software, including without limitation, any (if any) service packs or hot fixes provided to you after the expiration of the ninety day Limited Warranty period are not covered by any warranty or condition, express, implied or statutory. Licensor’s and its suppliers’ entire liability and your exclusive remedy for any breach of this Limited Warranty or for any other breach of this License agreement or for any other liability relating to the Software shall be, at Licensor’s option from time to time exercised subject to applicable law, (a) return of the amount paid (if any) for the Software, or (b) repair or replacement of the Software, that does not meet this Limited Warranty and that is returned to Licensor with a copy of your receipt. You will receive the remedy elected by Licensor without charge, except that you are responsible for any expenses you may incur (e.g. cost of shipping the Software to Licensor). This Limited Warranty is void if failure of the Software has resulted from accident, abuse, misapplication, abnormal use or a virus. Any replacement Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer, and Licensor will use commercially reasonable efforts to provide your remedy within a commercially reasonable time of your compliance with Licensor’s warranty remedy procedures.
12. USE OF THIRD-PARTY OFFLINE AND ONLINE MAPS SERVICES (IF APPLICABLE) The Software may be used with the offline and online maps services (“Map Services”) of Third-Party Map Providers (“Map Providers”). This does not imply an endorsement of usage the Map Services by Nextian. Map Services may be used only under license by the Map Providers. Please contact the Third-Party Map Provider for information on your rights and license terms and conditions to further use Map Services within Nextian products. Map Services may contain trade names, trademarks, service marks, logos, domain names, and other distinctive brand features to identify the source of the information. Nextian is not responsible for the contents nor accuracy of any Map Service used with Nextian products.
13. COMPLIANCE AUDIT RIGHTS
13.1. The Licensor may install, enable and utilize automated license tracking, management and/or enforcement solutions with the Software, which Licensee may not disrupt or alter.
13.2. The Licensor or a third party appointed by the Licensor may audit the books, records, and systems on which the Software is installed for the sole purpose of ensuring compliance with the terms of this Agreement.
13.3. If any audit reveals that Licensee has underpaid license or maintenance and support fees, Licensee shall be invoiced for all such underpaid fees based on Licensor’s list price in effect at the time the audit is completed.
14. MISCELLANEOUS
14.1. THIS AGREEMENT, INCLUDING ASSOCIATED PURCHASE ORDERS AND ANY EXHIBITS AND ADDENDUM(S), CONSTITUTES THE COMPLETE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE PRODUCT AND SUPERSEDES ANY OTHER AGREEMENT, PROPOSAL, COMMUNICATION OR ADVERTISING, ORAL OR WRITTEN, SIGNED OR UNSIGNED, WITH RESPECT TO THE PRODUCT. To the extent there are any terms and conditions contained in Licensee’s Software Purchase Order or other documentation supplied by Licensee such terms and conditions shall be deemed to be stricken and the terms and conditions of this Agreement shall govern. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
14.2. Except as otherwise expressly set forth herein, this Agreement is governed by the laws of the State of Texas, without regard to its choice of law principles, and without regard to the provisions of any state Uniform Computer Information Transactions Act or similar federal, state, local or foreign laws, regulations or conventions.
14.3. Failure or delay on the part of Nextian to exercise any right, power, privilege or remedy hereunder shall not constitute a waiver thereof. A waiver of default shall not operate as a waiver of any other default or of the same type of default on future occasions.
14.4. The parties expressly disclaim the application of the United Nations Convention on Contracts for the International Sale of Goods.
