PLEASE READ THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT CAREFULLY BEFORE CONTINUING
This End-User License Agreement (“EULA”) is a legal agreement between the person, company or organization (“You” or “Customer”) that has licensed this software and Wohler Technologies, Inc. (“Wohler”) for Wohler’s software product(s) which may include associated software components, media, printed materials, and “online” or electronic documentation (“Software Product”). By installing, copying, or otherwise using the Software Product, you agree to be bound by the terms of this EULA. If you do not agree to the terms of this EULA, do not install or use the Software Product.
The Software Product is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Software Product is licensed, not sold.
1. GRANT OF LICENSE TO USE.
a. Installation & Use. Wohler grants Customer, its affiliates, service providers and contractors a non-exclusive and non-transferable license for the internal use only of the accompanying Software Product for the number of separate instances for which the corresponding software product fee has been paid. Title to the Software Product and all associated intellectual property rights is retained by Wohler and/or its licensors.
b. Backup Copies. Customer may make copies of the Software Product as may be necessary for backup and archival purposes.
2. OTHER RIGHTS & LIMITATIONS.
a. Maintenance of Copyright Notices. The Product is confidential and copyrighted. You may not remove or alter any copyright notices on any copies of the Software Product.
b. Distribution & Rental. Save in respect of Customer’s affiliates, service providers and contractors, Customer may not distribute, lease or lend the Software Product to third parties. In no case may Customer rent the Software Product to third parties.
c. No Internet Use. No Cloud Use. Customer may not use or enable the Software Product for use over or via the Internet, sometimes referred to as the Cloud. The Software Product may only be accessed inside Customer’s own proprietary networks. These restrictions are in addition to the restrictions on Distribution & Rental outlined in Clause 2.c.
d. No Reverse Engineering, Decompilation, Disassembly. You may not reverse engineer, decompile, or disassemble the Software Product.
e. Support Services. Wohler may provide you with certain support services related to the Software Product (“Support Services”). Any supplemental software code provided to you as part of the Support Services shall be considered part of the Software Product and subject to the terms and conditions of this EULA.
f. Applicable Law. Both Parties must comply with all applicable laws regarding use of the Software Product.
3. TERMINATION. This EULA is effective until terminated. Customer may terminate this EULA at any time by destroying all copies of the Software Product. This EULA will terminate immediately without notice from Wohler if Customer fails to comply with the terms and conditions of this EULA. Upon Termination, Customer must destroy all copies of the Software Product.
4. COPYRIGHT. All title in and to the Software Product, including but not limited to copyrights, and any copies thereof are owned by Wohler or its suppliers. All title and intellectual property rights in and to the content which may be accessed through use of the Software Product is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This EULA grants you no rights to use such content. All rights not expressly granted are reserved by and for Wohler.
5. LIMITED WARRANTY:
a. The Company warrants to you that for a period of ninety (90) days from the date of purchase, as evidenced by a copy of the receipt, the Software Product will be free of defects in materials and workmanship under normal use as specified and described in then-current user manual(s). Your exclusive remedy and the Company’s entire liability under this limited warranty will be, at the Company’s option, to either replace the Software Product or refund any Software Product fees paid.
b. Wohler further warrants that the Customer’s use of the Software Products licensed under this EULA, in accordance with the EULA shall not infringe the intellectual property rights of any third party.
c. EXCEPT AS SET FORTH IN THIS CLAUSE 5, WOHLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.
6. LIMITATION OF LIABILITY.
a. No Liability for Special, Incidental, Indirect or Consequential Damages. In no event shall either Party be liable for special, incidental, indirect or consequential damages, including, but not limited to: (i) loss of, damage to, or corruption of data, (ii) loss of use, including, without limitation “downtime” or “business interruption” (iii) loss of profits, (iv) loss of direct or indirect anticipated savings. Such liability is excluded whether such damages were reasonably foreseeable or actually foreseen, even if Wohler was advised of the possibility of such damages.
b. Exclusive Remedy. Customer’s exclusive remedy for a breach of warranty under Clause 5.a is to return the Software Product to Wohler with a description of the problem. Provided that such return is no more than ninety (90) days following delivery to you, Wohler will use reasonable commercial efforts to supply Customer with a replacement copy of the Software that substantially conforms to the documentation or refund to Customer its purchase price for the Software, at Wohler’s option. Wohler shall have no responsibility if the Software Product has been altered in any way or if the failure arises out of use of the Software Product with other than a recommended hardware configuration. Any such misuse, accident, abuse, modification or misapplication of the Software will void the warranty above. SAVE IN RESPECT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT, THIS REMEDY IS THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO CUSTOMER FOR BREACH OF EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SOFTWARE AND RELATED DOCUMENTATION.
7. U.S. GOVERNMENT RESTRICTED RIGHTS. If the Software Product is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), then the Government’s rights in the Product and accompanying documentation will be only as set forth in this Agreement; this is in accordance with 48 CFR 227.7201 through 227.7202-4 (for Department of Defense (DOD) acquisitions) and with 48 CFR 2.101 and 12.212 (for non-DOD acquisitions).
8. THIRD PARTY SOFTWARE. The Software Product may contain Third Party Software which requires notices and/or additional terms and conditions. Such required third party software notices and/or additional terms and conditions are available upon request and are made a part of and incorporated by reference into this EULA. By accepting this EULA, you are also accepting the additional terms and conditions, if any, set forth therein
9. EXPORT REGULATIONS. All Software Products and any technical data delivered under this Agreement are subject to US export control laws and may be subject to export or import regulations in other countries. You agree to comply strictly with all such laws and regulations and acknowledge that you have the responsibility to obtain such licenses to export, re-export, or import as may be required after delivery to you.
10. GOVERNING LAW. This Agreement is governed by the laws of the State of California and any controlling or preemptive U.S. federal law. No choice of law rules of any jurisdiction will apply.
11. SEVERABILITY. If any provision of this Agreement is held to be unenforceable, this Agreement will remain in effect with the provision omitted, unless omission would frustrate the intent of the parties, in which case this Agreement will immediately terminate.
12. INTEGRATION. This Agreement is the entire agreement between you and the Company relating to its subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals, representations and warranties and prevails over any conflicting or additional terms of any quote, order, acknowledgment, or other communication between the parties relating to its subject matter during the term of this Agreement. No modification of this Agreement will be binding, unless in writing and signed by an authorized representative of each party.