PLEASE CAREFULLY READ THE FOLLOWING LEGAL AGREEMENT GOVERNING YOUR USE OF THE LICENSED PRODUCT. BY COMPLETING ITS INSTALLATION OR BY CLICKING A BUTTON ACCEPTING THIS AGREEMENT, YOU AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE, THEN STOP AND DO NOT INSTALL THE LICENSED PRODUCT BUT INSTEAD: (A) PROMPTLY AND PERMANENTLY REMOVE THE LICENSED PRODUCT FROM YOUR COMPUTER, AND (B) RETURN IT TO THE LICENSOR IN THE PACKAGING WITH YOUR ORIGINAL RECEIPT, OR (C) IF YOU PURCHASED THIS PRODUCT BY ELECTRONIC DOWNLOAD, RETURN THE PROOF OF PURCHASE WITHIN THIRTY (30) DAYS FROM DATE OF PURCHASE, AND YOU WILL BE GIVEN A FULL REFUND MINUS ANY SHIPPING AND HANDLING COSTS.
END-USER LICENSE AGREEMENT
THIS AGREEMENT (the “Agreement”) is hereby entered into between Virtual Systems Engineering, Inc., a corporation with offices at 136 S. Dubuque Street Iowa City, IA 52240 (the “Licensor”) and the party obtaining the right to use the Licensed Product (“you”) on the following terms and conditions:
- Licensed Product. This license allows you to use PREVIEW® (“PREVIEW”), the “Licensed Product”), the accompanying Documentation and any fixes, releases, upgrades, new versions or enhancements that may subsequently be issued to you according to the terms set forth in this Agreement.
- Delivery & Installation. The Licensed Product is distributed to you by electronic download from authorized web site(s) as described in the Documentation. You will need to install the Licensed Product on properly configured and compatible computer equipment according to the system requirements specified in the Documentation. If you are loading data into the Licensed Product, you will also need to ensure that your data is in proper format. If the Licensed Product is to interoperate and exchange data with other program(s), you will ensure the Licensed Product and other program(s) are properly configured and tested.
- Permitted Use of the Licensed Product. Operating License: Subject to payment of the License Fee, you may install the Licensed Product and use it only at the contracted number of locations stated within the license contract agreement. The Licensed Product may not be installed on or used by computers at geographic locations other than what is stated in the license contract agreement. (Certain “employee facing” features in the Licensed Product may be accessed by your employees via the web. This would only apply to the License Contract Agreement). You may print reasonable quantities of the Documentation for your own use. Please read the disclaimer for all Documentation contained within the Licensed Product.
- Reservation of Rights. The Licensed Product is licensed, not sold to you. The intellectual property rights in the Licensed Product shall at all times remain the exclusive property of Licensor or other owner identified in the Documentation. You agree to use the Licensed Product strictly in accordance with this Agreement. You will not loan, rent, sublicense or distribute any part of the Licensed Product to persons not licensed under this Agreement through public networks or otherwise. You agree not to disassemble, decompile or reverse engineer the Licensed Product. You will ensure that all marks, notices or legends pertaining to the origin, identity or ownership of the Licensed Product remain intact and clearly legible. These license rights are personal to you and are non-transferable in whole or in part to any other person. You may not publish the software or any component for others to copy; rent or lend the software; transfer the software of this agreement to any third party; or use the software for commercial software hosting services.
- Product Support. Registered users may obtain free Product Support during the Warranty Period specified in Section 7 (“Warranties”) according to instructions in the Documentation.
(a) Reproduction Warranty. If you obtained the Licensed Product by electronic download from authorized web site(s) or on self-installing physical media (e.g., CD-ROM/DVD) the Licensor warrants the delivered copy against defects in reproduction from the master original for a period of thirty (30) days after delivery to you (“Warranty Period”). Licensor will provide a free replacement of defectively reproduced copies upon proof of purchase.
(b) No Other Warranty. The Licensed Product itself and any Product Support are provided strictly on an “as is” and “as available” basis without any express or implied warranty, guarantee or other assurance of quality, conformity with specifications, reliability or functionality. You accept all risk for the suitability, performance or nonperformance of the Licensed Product. LICENSOR MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THIS LICENSED PRODUCT OR ANY SERVICES AND DISCLAIMS ALL IMPLIED WARRANTIES OF TITLE, INTEROPERABILITY, INTEGRATION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.
- Not Fault Tolerant. THE LICENSED PRODUCT MAY CONTAIN OR SUPPORT PROGRAMS WRITTEN IN JAVA. THE LICENSED PRODUCT, AND ESPECIALLY JAVA, IS NOT FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATIONS SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF LICENSED PRODUCT COULD LEAD TO DEATH, PERSONAL INJURY OR PHYSICAL OR ENVIRONMENTAL DAMAGE.
- Limitation of Remedies & Liabilities. The following provisions are a material condition of this Agreement and reflect a fair allocation of risk:
(a) Remedies. If Licensor breaches any provision of this Agreement, your sole and exclusive remedy will be to obtain a refund of unamortized License Fees paid by you (using 3 year straight-line amortization). You also agree that legal remedies alone provide inadequate protection of Licensor’s intellectual property rights in the Licensed Product and that, in addition to other relief, Licensor may without necessity of posting bond obtain temporary and permanent injunctions to enforce those rights.
(b) Liabilities. LICENSOR IS NOT LIABLE FOR ANY AMOUNT EXCEEDING THE LICENSE FEES ACTUALLY PAID BY YOU HEREUNDER. IN NO EVENT SHALL LICENSOR, ITS RESELLERS OR DISTRIBUTORS BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST SAVINGS OR PROFIT, LOST DATA OR BUSINESS INTERRUPTION EVEN IF LICENSOR IS NOTIFIED IN ADVANCE OF SUCH POSSIBILITY). THIS LIMITATION PROTECTS LICENSOR AND ANY DISTRIBUTOR OR RESELLER FROM WHOM YOU OBTAINED THE LICENSED PRODUCT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE FOREGOING LIMITATION MAY NOT APPLY TO YOU. THIS LIABILITY LIMIT IS INDEPENDENT OF THE EXCLUSIVE REMEDY.
- Term & Termination.
(a) Generally. Your license will continue only for the contracted period unless terminated earlier in accordance with this or another Section of this Agreement. Your license will terminate automatically if you breach any provision of this Agreement.
(b) Effect of Termination. Termination of this Agreement will terminate your right to possess or Use the Licensed Product. Upon termination for any reason, you agree to destroy the original and all copies of the Licensed Product (including Documentation) and cease all further Use of it. Termination will have no effect on Section 7 (“Warranties”), Section 8 (“Not Fault Tolerant”), Section 9 (“Limitation of Remedies & Liabilities”), Section 11 (“Disputes, Choice of Law”) or Section 12 (“Export Regulations”).
- Disputes, Choice of Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE UNITED STATES (“NATIONAL LAW”) AND IOWA (“LOCAL JURISDICTION”), WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES. THE PARTIES WILL INITIATE ANY DISPUTE RESOLUTION PROCEEDING ONLY IN JOHNSON COUNTY, IOWA AND IRREVOCABLY CONSENT TO EXCLUSIVE PERSONAL JURISDICTION AND VENUE THEREIN. YOU WILL BRING ANY ACTION AGAINST LICENSOR ARISING OUT OF THIS AGREEMENT WITHIN ONE (1) YEAR AFTER THE CLAIM ARISES, OR BE BARRED. You irrevocably agree that any claim will be brought and maintained by you on an individual basis (and not consolidated with similar cases). If Licensor is required to enforce this Agreement or its rights, you irrevocably agree to receive legal notices and papers by electronic mail at your last known email address (we would also attempt to send you a backup copy by regular mail or regular service).
- Export Regulations. The transfer of technology across national boundaries is regulated by the U.S. Government and other governments. You agree not to export or re-export the Licensed Product without first obtaining any required export/import license in writing from the Licensor and governmental approval. You will not directly or indirectly export or re-export (including by transmission) any regulated technology to any country to which such activity is restricted by regulation or statute, without the prior written consent, if required, of the Bureau of Export Administration of the U.S. Department of Commerce or other administrator of National Law. This provision and the assurances made herein shall survive termination of this Agreement.
- Miscellaneous. This document constitutes the entire and exclusive agreement between the parties with respect to the subject matter hereof and supersedes all other communications, whether written or oral. This document and evidence of its acceptance procedure shall be considered an original document with authenticated signature admissible into evidence unless the document’s authenticity is genuinely placed in question. You may issue a purchase order, but it will have no substantive effect on our Agreement. This Agreement may be modified or amended only in writing and signed by an authorized representative of Licensor. It is agreed that resellers and distributors of the Licensed Product have no authority to alter this Agreement. Any provision found by a tribunal of competent jurisdiction to be illegal or unenforceable shall be automatically conformed to the minimum requirements of law and all other provisions shall remain in full force and effect. Waiver of any provision hereof in one instance shall not preclude enforcement of it on future occasions. Headings are for reference purposes only and have no substantive effect.