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END USER LICENSE AGREEMENT
Updated June 8, 2016
As used in this End User License Agreement ("EULA"), references to "Essex" are to Essex Software, LLC., a North Carolina corporation at 9935D Rea Rd., Suite 131, Charlotte, NC 28277, USA, and references to "Licensee" or to "you" are references to the party that has accepted the License to use the Licensed Software in accordance with the Terms and Conditions.
YOUR USE OF THE LICENSED SOFTWARE IS CONDITIONED UPON YOUR ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS OF THIS EULA, INCLUDING WITHOUT LIMITATION THE LIMITED WARRANTIES, DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN. IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS EULA, DO NOT MAKE ANY USE OF THE LICENSED SOFTWARE. ANY USE BY YOU OF THE LICENSED SOFTWARE, OR ANY PORTION THEREOF, CONSTITUTES YOUR ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS OF THIS EULA.
This Software is licensed, not sold. Upon your payment of the license fee, Essex provides you with a permanent registration number ("License key") and grants you a limited, non-exclusive, non-transferable license to:
1.1 install and run the software on one computer or multiple computers if multiple licenses are purchased;
1.2 copy the Software in machine-readable form solely for archival and backup purposes.
Licensee may install one copy of the Licensed Software on a single computer. Separate license keys are required for each additional computer on which the Software is used. In cases where Licensee requires a transfer of license key to another computer, Essex allows up to two (2) free license key resets. Once the license key has been reset, computers that have been activated with the license key prior to reset will no longer be activated. Licensee shall be solely responsible for all expenses incurred in Licensee’s installation of the Licensed Software.
The Licensed Software contains technological measures that are designed to prevent its unlicensed or illegal use. The Licensed Software may contain enforcement technology that limits Licensee's ability to install the Licensed Software on multiple machines. The Licensed Software may require activation as explained during installation and in the Documentation. If any such applicable activation procedure(s) is not followed, then the Licensed Software may only operate in limited demo mode. If Licensee has any problem with the activation process, Licensee should contact Essex customer support.
4. LICENSE RESTRICTIONS
4.1 Licensee may not (and may not allow any third party to) modify, adapt, translate, sublicense, rent, lease all or any portion of the Licensed Software or Documentation.
4.2 Licensee may not (and may not allow any third party to) create any derivative works of all or any portion of the Licensed Software or Documentation (and any derivative works created in violation of this EULA shall be the sole and exclusive property of Essex without waiver or limitation of Essex's other rights and remedies with respect to such violation).
4.3 Licensee may not (and may not allow any third party to) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Licensed Software.
4.4 Licensee may not use a previous version of the Licensed Software after receiving a media replacement or Updated version as a replacement to a prior version (in such case Licensee must destroy the prior version).
4.5 Licensee may not use the Licensed Software in the operation of aircraft, ships, nuclear facilities, life support machines, communication systems, or any other equipment in which the failure of software could lead to personal iNCury, death, or environmental damage.
4.6 Licensee may not use the Licensed Software in any manner not authorized by this EULA.
5. SOFTWARE UPDATES
If the Licensed Software is an Update to a previous version, Licensee must possess a valid License to the previous version. Any Update provided to Licensee is made on a License exchange basis such that Licensee agrees, as a condition for receiving an Update, that Licensee will terminate all of Licensee's rights to use any previous version of the Licensed Software. However, Licensee may continue to use the previous version only to assist in transitioning to the Updated version. Once an Update has been released, Essex may cease support for prior versions, without any notice to Licensee.
6. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
The Licensed Software, including any and all Updates and any authorized copies thereof that Licensee makes are the intellectual property of, and are owned solely by, Essex and by third parties whose intellectual property has been licensed by Essex. The structure, organization and code of the Licensed Software are the valuable Confidential Information of Essex and such third parties. The Licensed Software is protected by law, including without limitation, the copyright laws of the United States and other countries, and by international treaty provisions. Except as expressly provided in this EULA, Licensee is not granted any rights under Essex's or its licensors' intellectual property rights in the Licensed Software, and Essex and such licensors reserve all rights not expressly granted to Licensee under this EULA.
7. US GOVERNMENT USERS
For U.S. Government users, Essex agrees to comply with all applicable equal opportunity laws including, if appropriate, the provisions of Executive Order 11246, as amended, Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974 (38 USC 4212), and Section 503 of the Rehabilitation Act of 1973, as amended, and the regulations at 41 C.F.R. Parts 60-1 through 60-60, 60-250, and 60-741. The affirmative action clause and regulations contained in the preceding sentence are incorporated by reference in this EULA. For U.S. Government users, the Licensed Software is a “Commercial Item(s),” as that term is defined at 48 C.F.R. Section 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. Section 12.212 or 48 C.F.R. Section 227.7202, as applicable. Consistent with 48 C.F.R. Section 12.212 or 48 C.F.R. Sections 227.7202 1 through 227.7202 4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions of this EULA.
8. WARRANTIES OF THE PARTIES
Each party warrants that it has the full power and authority to enter into this EULA.
9. NO WARRANTY ON LICENSED SOFTWARE
THE LICENSED SOFTWARE IS PROVIDED TO LICENSEE “AS IS.” ESSEX, AND ESSEX'S LICENSORS AND SUPPLIERS, MAKE NO WARRANTY AS TO ITS USE OR PERFORMANCE. ESSEX, AND ESSEX'S LICENSORS AND SUPPLIERS, MAKE NO REPRESENTATIONS, WARRANTIES, CONDITIONS, OR TERMS (EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE, COURSE OF DEALING, TRADE PRACTICE OR OTHERWISE) AS TO THE LICENSED SOFTWARE, INCLUDING WITHOUT LIMITATION TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE, EXCEPT FOR, AND ONLY TO THE EXTENT THAT, ANY SUCH REPRESENTATION, WARRANTY CONDITION OR TERM MAY NOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW IN LICENSEE'S JURISDICTION.
10. WARRANTY DISCLAIMER
THE WARRANTIES EXPRESSLY SET OUT IN THIS EULA ARE THE ONLY WARRANTIES THAT EACH PARTY GIVES TO THE OTHER IN RESPECT OF THE SUBJECT MATTER OF THIS EULA. ALL OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS, OR TERMS (EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE, COURSE OF DEALING, TRADE PRACTICE OR OTHERWISE) AS TO ANY MATTER ARE EXCLUDED OR LIMITED, EXCEPT FOR, AND ONLY TO THE EXTENT, THAT ANY SUCH REPRESENTATION, WARRANTY, CONDITION OR TERM MAY NOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW IN LICENSEE'S JURISDICTION. ESSEX EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY CONCERNING THE ABILITY OF THE LICENSED SOFTWARE TO COMPLETELY OR ACCURATELY REDACT CONTENT.
11.1 Licensee shall indemnify, defend and hold harmless Essex, Essex's suppliers, and their respective affiliates, officers, directors, employees, representatives, and agents from and against all losses, damages, claims, liabilities, costs or expenses of whatever form or nature, including attorney’s fees and other costs, arising out of or related to Licensee's use of the Licensed Software, except to the extent caused by the gross negligence or wilful misconduct of Essex or subject to Essex's indemnification obligation under Section 11.2 below. Essex shall promptly notify Licensee in writing of any such claim; and Licensee shall have the exclusive right to control the defense of such claim, provided that if Licensee does not undertake such defense, or fails to prosecute such defense with reasonable care and diligence, Essex at its option may undertake the defense of such claim and Licensee shall be liable for all costs incurred by Essex in connection therewith. In no event shall either party settle or compromise any such claim without the other party's prior written approval, provided that (a) no such approval shall be required from a party provided with a complete release of claims and subject to no liability under such settlement or compromise, and (b) Essex shall not be required to obtain the prior approval of Licensee if Licensee fails to undertake the defense of such claims hereunder, or fails to prosecute such defense with reasonable care and diligence. Essex may, at its own cost and expense, assist in the defense of any such claim and be represented by counsel of its choice, provided that if Essex undertakes the defense because Licensee fails to do so or fails to prosecute the defense with reasonable care and diligence, Licensee shall be liable for all costs incurred by Essex in connection therewith.
11.2 Essex shall indemnify, defend and hold harmless Licensee, its affiliates, and their respective officers, directors, employees, representatives, and agents from and against all losses, damages, or expenses of whatever form or nature, including reasonable attorneys fees and other costs, arising out of or related to any third party claim that the Licensed Software violates any patent, copyright or trade secret right of such third party, provided that: (i) Licensee's use of the Licensed Software is in accordance with the terms of this EULA; (ii) Essex is promptly notified in writing of any such claim; and (iii) Essex shall have the exclusive right to control the defense of such claim. In no event shall Licensee settle or compromise any such claim without Essex's prior written approval. Essex shall either: (i) obtain for Licensee the right to continue to use the Licensed Software; or (ii) modify the Licensed Software so that it becomes non-infringing; or (iii) only in the event that options (i) and (ii) above are not commercially reasonable, terminate the License with respect to the infringing components of the Licensed Software without any further obligation to Licensee. Licensee may, at its own cost and expense, assist in the defense of any such claim and be represented by counsel of its choice. This Clause 11.2 states the entire liability of Essex with respect to any of the foregoing.
12. LIMITATION OF LIABILITY
EXCEPT FOR LIABILITY OF LICENSEE ARISING UNDER CLAUSES 4 (LICENSE RESTRICTIONS), and 14.2 (GENERAL; RESTRICTIONS ON TRANSFER), IN NO EVENT SHALL EITHER PARTY (OR IN THE CASE OF ESSEX, ESSEX'S LICENSORS OR SUPPLIERS), BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, OR ANY LOST REVENUE, LOST PROFITS. LOST SAVINGS, LOST BUSINESS OR LOSS OF GOODWILL, EVEN IF ITS REPRESENTATIVE (OR IN THE CASE OF ESSEX, A REPRESENTATIVE OF ONE OR MORE OF ESSEX'S LICENSORS OR SUPPLIERS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. THESE LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN LICENSEE'S JURISDICTION.
Your license to use the Software continues until terminated. This license will terminate automatically if you fail to comply with any term hereof. No notice shall be required from Essex to effect such termination. You may also terminate this Agreement at any time by notifying Essex in writing of termination. On termination, you must destroy all copies of the Software. Your obligation to pay accrued charges and fees shall survive any termination of this Agreement.
14.1 Except for the service of process pursuant to court proceedings and except as otherwise expressly agreed by amendment of this EULA, any notices in connection with this EULA from Licensee to Essex shall be sent to Essex Software, LLC at 9935D Rea Rd., Suite 131, Charlotte, NC 28277, USA, and any notices in connection with this EULA from Essex to Licensee shall be sent to Licensee's email address as provided to Essex upon registration (including without limitation upon registration with Essex for technical support). Except as otherwise agreed, notice shall be deemed to have been given if sent for overnight delivery by an internationally recognized courier requiring a signature evidencing receipt, the next business day, and if sent by registered mail, return receipt requested, five (5) days after the mail is sent. Licensee warrants that any email address provided to Essex will be valid, and that Licensee shall notify Essex of a new email address if the previous email address becomes invalid.
14.2 Licensee may not, in whole or part, sublicense, assign, sell or otherwise dispose of the Licensed Software, or any of its any rights or obligations under this EULA, whether by merger, operation of law, assignment, sale or otherwise, without Essex’s express prior written consent. This EULA shall be binding upon and inure to the benefit of the permitted successors and assigns of Licensee hereto.
14.3 Essex shall be entitled to sub-contract any or all of its obligations under this EULA to a sub-contractor. Essex shall also be entitled to assign this EULA to any of its affiliates or to any successor in interest to all or substantially all of its business or assets related to this EULA, in each case whether by merger, operation of law, assignment, purchase or otherwise. This EULA shall be binding upon and inure to the benefit of the successors and assigns of Essex hereto.
14.4 If any provision or part of any provision of this EULA is found to be invalid or unenforceable by any court or other competent body, that provision or part shall be enforced to the maximum extent permissible and such invalidity or unenforceability shall not affect the other provisions (or parts thereof) of this EULA, and such other provisions (and parts thereof) shall remain in full force and effect.
14.5 Neither party shall be liable for any delay or failure in the performance of its obligations under this EULA if such delay or failure is due to an event of Force Majeure.
14.6 If either party fails to exercise a right or remedy that it has or which arises in relation to this EULA, such failure shall not prevent that party from exercising that right or remedy subsequently in respect of that or any other incident.
14.7 A waiver of any breach of provision of this EULA shall only be effective if it is made in writing and signed on behalf of the party who is waiving the breach of provision. Any waiver of a breach of any provision of this EULA shall not be deemed a waiver of any subsequent breach and shall not affect the enforceability of any other provision of this EULA.
14.8 This EULA and all matters arising out of it shall be governed by, and construed in accordance with, the laws of the State of North Carolina. The state and federal courts situated in the County of Mecklenburg, North Carolina, USA shall have exclusive jurisdiction over any claim or matter which may arise out of or in connection with this EULA, and each party hereby consents to such jurisdiction and waives any objection to venue in such courts. Notwithstanding the foregoing, each party shall have the right to institute judicial proceedings against the other party or anyone acting by, through or under such other party, in any court of competent jurisdiction in order to enforce the instituting party’s rights hereunder through specific performance, iNCunction or other equitable relief.
14.9 Modifications of or amendments to this EULA may be made by Essex at any time by posting a modified version of this EULA reflecting such amendments including without limitation where such amendment is: (i) required by law, regulation or court order (or is made in anticipation of an impending change in applicable law or regulation), or (ii) made in the ordinary course of Essex’s business, applicable to substantially all of Essex's licensees located in the Licensee's jurisdiction that have agreed to terms similar to those set out in this EULA. Licensee may terminate this EULA by ceasing all use of the Licensed Software and returning to Essex or destroying all copies of the Licensed Software if Licensee does not agree with the amendment. The amendment shall be deemed accepted by Licensee if Licensee does not terminate this EULA.
14.10 This EULA sets out all of the terms agreed between the parties relating to the subject matter of this EULA, and this EULA supersedes any and all prior and contemporaneous representations, discussions, undertakings, communications, arrangements advertisements and understandings relating to its subject matter. Neither of the parties shall be bound by, or liable to the other party for, any representation, undertaking or inducement (other than fraudulent misrepresentations) made by it or by any agent or person acting on its behalf which is not expressly contained in this EULA.
14.11 The parties hereby agree that nothing in this EULA shall be construed as creating a right which is enforceable by any person who is not a party to this EULA or a permitted assignee of such a party.
14.12 In this EULA:
14.12.1 any reference to a statutory provision includes a reference to any modification or re-enactment of it from time to time;
14.12.2 except for the reference contained in Clause 7 of this EULA, references to Clauses are to the clauses of this EULA;
14.12.3 the singular includes the plural and vice versa;
14.12.4 the headings are for ease of reference only and shall not affect the construction or interpretation of this EULA;
14.12.5 where any matter is to be agreed, such agreement shall be recorded in writing; and
14.12.6 wherever the words “including”, “include”, “includes” or “included” are used, they shall be deemed to be followed by the words “without limitation” unless the context otherwise requires.
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