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END USER LICENSE AGREEMENT
IMPORTANT! BE SURE TO CAREFULLY READ AND UNDERSTAND ALL OF THE RIGHTS AND RESTRICTIONS SET FORTH IN THIS END-USER LICENSE AGREEMENT ("EULA"). YOU WILL BE ASKED TO REVIEW AND EITHER ACCEPT OR NOT ACCEPT THE TERMS OF THE EULA. YOU ARE NOT AUTHORIZED TO USE THIS SOFTWARE UNLESS AND UNTIL YOU ACCEPT THE TERMS OF THIS EULA.
This EULA is a binding legal agreement between you and. Logiknet, Inc. d/b/a SCCM Expert (hereinafter "LICENSOR") for the materials accompanying this EULA, including the accompanying computer software, associated media, printed materials and any "online" or electronic documentation (hereinafter the "Software"). By installing the Software, 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 attempt to use the Software.
1. GRANT OF LICENSE
a. The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Software is licensed, not sold. This EULA grants you the following rights:
2. EVALUATION VERSION
a. You may use the Software 30 days for evaluation purposes without any charge. You must pay the license fee and register your copy to continue to use the Software after the evaluation time is over. Otherwise, you must delete (uninstall) the Software from your computer(s), server(s).
b. While in evaluation demo mode some features are disabled.
3. REGISTERED VERSION
a. Use the Software only on the number of computers and or in an environment that does not exceed the number of systems support that you have indicated in your license purchase agreement.
b. You may copy the Software for archival purposes, provided any copy contains all of the original Software's proprietary notices.
c. You may not use the Software in an environment with more than number of computer systems in your license purchase agreement
d. You may install on a primary site to serve child sites, but those child sites must be part of the connected infrastructure of the primary site server.
e. You may not sell, transfer or convey the Software to any third party without Licensor's prior express written consent.
f. You may not Use software “for profit” or “non profit” by providing Software abilities to any other third party or entity without prior written agreement.
g. You may not redistribute the Software as part of any “for profit” or “non profit” product or service provided to a customer without prior written agreement.
h. Your license rights under this EULA are non-exclusive. All rights not expressly granted herein are reserved by Licensor.
4. TERMS
a. This EULA license is subject to the terms in your Software purchase contract.
5. PRICE and PAYMENT
a. If you have not previously paid the license fee for the Software, then you must pay the license fee within the period indicated in the applicable invoice sent to you by Licensor.
6. SUPPORT SERVICES
a. Licensor may provide you with support services related to the Software ("Support Services"), at its discretion. Use of Support Services, if any, is governed by Licensor's policies and programs described in any user’s manual, in online documentation, and/or in other Licensor-provided materials. Any supplemental Software code provided to you as a part of Support Services will be considered part of the Software and subject to the terms of this EULA. With respect to technical information you provide to Licensor as part of the Support Services, Licensor may use such information for its business purposes, including for product support and development. Licensor will not utilize such technical information in a form that personally identifies you except to the extent necessary to provide you with support.
7. REPLACEMENT, MODIFICATION and/or UPGRADES
a. Licensor may, from time to time, and for a fee, replace, modify or upgrade the Software. When accepted by you, any such replacement or modified Software code or upgrade to the Software will be considered part of the Software and subject to the terms of this EULA (unless this EULA is superseded by a further EULA accompanying such replacement or modified version of or upgrade to the Software).
8. TERMINATION
a. You may terminate this EULA at any time by destroying all your copies of the Software. Your license to the Software automatically terminates if you fail to comply with the terms of this agreement. Upon termination, you are required to remove the Software from your computer and destroy any copies of the Software in your possession.
9. COPYRIGHT
a. All title and copyrights in and to the Software (including but not limited to any images, photographs, animations, video, audio, music and text incorporated into the Software), the accompanying printed materials, and any copies of the Software, are owned by Licensor or its suppliers. This EULA grants you no rights to use such content You may not reverse engineer, de-compile, disassemble, alter, duplicate, modify, rent, lease, loan, sublicense, make copies of, create derivative works from, distribute or provide others with the Software in whole or part, transmit or communicate the application over a network.
10. EXPORT RESTRICTIONS
a. You may not export, ship, transmit or re-export software in violation of any applicable law or regulation including but not limited to Export Administration Regulations issued by the U. S. Department of Commerce.
11. DISCLAIMER OF WARRANTIES
a. LICENSOR AND ITS SUPPLIERS PROVIDE THE SOFTWARE "AS IS" AND WITH ALL FAULTS, AND HEREBY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY (IF ANY) IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF LACK OF VIRUSES, AND OF LACK OF NEGLIGENCE OR LACK OF WORKMANLIKE EFFORT. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, OF QUIET ENJOYMENT, OR OF NONINFRINGEMENT. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE IS WITH YOU.
12. LIMITATION OF DAMAGES
a. EXCEPT FOR THE PROVISIONS OF SECTION 15 (HOLD HARMLESS), AND SECTION 16 (INFRINGEMENT INDEMNIFICATION),TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE OR OTHER DAMAGES WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE AND WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF LICENSOR OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS EXCLUSION OF DAMAGES WILL BE EFFECTIVE EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
13. LIMITATION OF LIABILITY.
a. EXCEPT FOR THE PROVISIONS OF SECTION 15 (HOLD HARMLESS), AND SECTION 16 (INFRINGEMENT INDEMNIFICATION), UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL LICENSOR OR ITS SUPPLIERS OR RESELLERS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES. IN NO EVENT WILL LICENSOR BE LIABLE FOR ANY DAMAGES, EVEN IF LICENSOR SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION.
14. HIGH RISK ACTIVITIES
a. The Software is not fault-tolerant and is not designed, manufactured or intended for use or resale as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Software could lead directly to death, personal injury, or severe physical or environmental damage ("High Risk Activities"). LICENSOR and its suppliers specifically disclaim any express or implied warranty of fitness for High Risk Activities
15. HOLD HARMLESS
a. Anything in the Agreement to the contrary notwithstanding, each party (the “Indemnifying Party”) shall indemnify and hold the other party (the “Indemnified Party”) fully harmless against any loss, damages, claims, or expenses of any kind whatsoever (including costs and reasonable attorneys' fees), sustained or incurred by a third party as a result of the negligent or intentional acts or omissions of the Indemnifying Party, and for which recovery is sought against the Indemnified Party by that third party. The Indemnifying Party also shall indemnify the Indemnified Party for any costs and reasonable attorneys’ fees sustained or incurred by the Indemnified Party in the defense of any such third party claim.
16. INFRINGEMENT INDEMNIFICATION.
a. LICENSOR at its own expense shall defend and hold COMPANY fully harmless against any action asserted against COMPANY (and specifically including costs and reasonable attorneys' fees associated with any such action) to the extent that it is based on a claim that use of the Software and any documentation or other materials (the " Products") being licensed by or provided to COMPANY under this Agreement infringes any patent, copyright, license or other proprietary right of any third party. COMPANY shall promptly notify LICENSOR in writing of any such claim. If as a result of any claim of infringement against any patent, copyright, License or other proprietary right of any third party, COMPANY is enjoined from using the Products, or if LICENSOR believes that the Products are likely to become the subject of a claim of infringement, LICENSOR at its option and expense will procure the right for COMPANY to continue to use the Products, or replace or modify the Products so as to make them non-infringing.
17. CONFIDENTIALITY.
a. The parties expressly acknowledge that in the course of their performance hereunder, they may learn or have access to certain confidential, patent, copyright, business, trade secret, proprietary or other like information or products of the other party or of third parties, including but not limited to the other party's vendors, consultants, suppliers or customers (the "Information"). Anything in this Agreement to the contrary notwithstanding, the parties expressly agree that they will keep strictly confidential any such Information that they learn.
18. ARBITRATION
a. Any controversy or claim arising out of or relating to this Agreement as amended shall be submitted to arbitration in accordance with the Center for Public Resources Rules for Non-Administered Administration of Business Disputes (but shall be non-binding), by three arbitrators, of whom each party shall appoint one and the third shall be chosen by the other two. The arbitration shall be governed by the United States Arbitration Act, 9 USC §§1-16, and judgment may be entered by any court having jurisdiction thereof. The place of arbitration shall be Chicago, Illinois. The arbitrators are empowered to award damages in accordance with Section 6 (Limitation of Liability), and may not award punitive damages.
19. SEVERABILITY
a. If any term of this EULA is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining portions of this Agreement will remain in full force and effect.
20. NO WAIVER
a. No waiver of any right under this EULA will be deemed effective unless contained in writing signed by a duly authorized representative of the party against whom the waiver is to be asserted, and no waiver of any past or present right arising from any breach or failure to perform will be deemed to be a waiver of any future rights arising out of this EULA.
21. ENTIRE AGREEMENT
a. This EULA constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter into this EULA by any representations or promises not specifically stated herein.
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