SmartDeploy Software End User License Agreement
EULA
THIS IS A LEGAL DOCUMENT -- RETAIN FOR YOUR RECORDS
SMARTDEPLOY END USER LICENSE
Licensor: Prowess
USA
Notice to User:
This is a legal document between you and Prowess. It is important that you read
this document before using the Prowess-provided software (“Software”) and any accompanying
documentation (“Documentation”). By using the Software, you agree to be bound by
the terms of this Agreement whether or not you decide to purchase the Software.
If you do not agree, you are not licensed to use the Software, and you must destroy
any downloaded copies of the Software in your possession or control. Please go to
our Web site to download and print a copy of this Agreement for your files.
1. SOFTWARE LICENSE
(a) License Grant. Prowess grants you a non-exclusive, non-transferable (except
as provided below), limited license to install and use a copy of the Software on
your compatible computer, up to the Permitted Number of computers. The Permitted
Number of computers shall be delineated at such time as you elect to purchase the
Software.
(b)
Server Use. You may install one copy of the Software on your computer
file server for the purpose of downloading and installing the Software onto other
computers within your internal network up to the Permitted Number. You may install
one copy of the Software on your computer file server for the purpose of executing
the Software on other computers within your internal network up to the Permitted
Number. No other network use is permitted, including without limitation using the
Software for Internet or Web hosting services or by any user not licensed to use
this copy of the Software through a valid license from Prowess.
(c) Concurrent Use. The Permitted Number of concurrent users shall be delineated
at such time as you elect to purchase the Software.
(d)
Backup and Archival Copies. You may make one backup and one archival
copy of the Software, provided your backup and archival copies are not installed
or used on any computer and further provided that all such copies shall bear the
original and unmodified copyright, patent and other intellectual property markings
that appear on or in the Software. You may not transfer the rights to a backup or
archival copy unless you transfer all rights in the Software as provided under Section
3.
(e) Home Use. You, as the primary user of the computer on which the Software
is installed, may also install the Software on one of your home computers. However,
the Software may not be used on your home computer at the same time as the Software
is being used on the primary computer.
(f)
Full Version. You will receive the Full version of SmartDeploy when you
elect to purchase the Software. You may not re-license, reproduce or distribute
a full version copy of SmartDeploy except with the express written permission of
Prowess.
(g) Title. Title to the Software is not transferred to you. Ownership of
all copies of the Software and of copies made by you is vested in Prowess, subject
to the rights of use granted to you in this Agreement.
(h)
Reverse Engineering. You may not reverse engineer, decompile, disassemble
or otherwise attempt to discover the source code, underlying ideas, underlying user
interface techniques or algorithms of the Software by any means whatsoever, directly
or indirectly, or disclose any of the foregoing, except to the extent you may be
expressly permitted to decompile under applicable law, it is essential to do so
in order to achieve operability of the Software with another software program, and
you have first requested Prowess to provide the information necessary to achieve
such operability and Prowess has not made such information available. Prowess has
the right to impose reasonable conditions and to request a reasonable fee before
providing such information. Any information supplied by Prowess or obtained by you,
as permitted hereunder, may only be used by you for the purpose described herein
and may not be disclosed to any third party or used to create any software which
is substantially similar to the expression of the Software. Requests for information
should be directed to the Prowess Customer Support Department.
(i) Other Restrictions. You may not loan, rent, lease, sublicense, distribute
or otherwise transfer all or any portion of the Software to third parties except
to the limited extent set forth in Section 3. You may not copy the Software except
as expressly set forth above, and any copies that you are permitted to make pursuant
to this Agreement must contain the same copyright, patent and other intellectual
property markings that appear on or in the Software. You may not modify, adapt or
translate the Software. You may not, directly or indirectly, encumber or suffer
to exist any lien or security interest on the Software; knowingly take any action
that would cause the Software to be placed in the public domain; or use the Software
in any computer environment not specified in this Agreement. You may not in any
way create, make available, or distribute, either directly or indirectly, any application
that would enable others to utilize the tools and features available only to registered
owners of the Software, that would otherwise circumvent the need for any third party
to purchase a valid license(s). You will comply with applicable law and Prowess’s
instructions regarding the use of the Software. You agree to notify your employees
and agents who may have access to the Software of the restrictions contained in
this Agreement and to ensure their compliance with these restrictions. THE SOFTWARE
IS NOT INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION,
COMMUNICATION SYSTEMS OR AIR TRAFFIC CONTROL EQUIPMENT, WHERE THE FAILURE OF THE
SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY OR SEVERE PHYSICAL OR ENVIRONMENTAL
DAMAGE.
2. INTELLECTUAL PROPERTY RIGHTS
Acknowledgement of Prowess's Rights. You acknowledge that the Software and any
copies that you are authorized by Prowess to make are the intellectual property
of and are owned by Prowess and its suppliers. The structure, organization and code
of the Software are the valuable trade secrets and confidential information of Prowess
and its suppliers. The Software is protected by copyright, including without limitation
by United States Copyright Law, international treaty provisions and applicable laws
in the country in which it is being used. You acknowledge that Prowess retains the
ownership of all patents, copyrights, trade secrets, trademarks and other intellectual
property rights pertaining to the Software, and that Prowess’s ownership rights
extend to any images, photographs, animations, videos, audio, music, text and “applets”
incorporated into the Software and all accompanying printed materials. You will
take no actions, which adversely affect Prowess’s intellectual property rights in
the Software. Trademarks shall be used in accordance with accepted trademark practice,
including identification of trademark owners’ names. Trademarks may only be used
to identify printed output produced by the Software, and such use of any trademark
does not give you any right of ownership in that trademark. SmartDeploy is a trademark
of Prowess. Unicode and the Unicode Logo are trademarks of Unicode, Inc. Windows,
Windows 95, Windows 98, Windows NT Windows 2000, and Windows XP are trademarks of
Microsoft. W3C, XML and XSL are trademarks (registered in numerous countries) of
the World Wide Web Consortium (W3C); marks of the W3C are registered and held by
its host institutions, MIT, INRIA and Keio. Except as expressly stated above, this
Agreement does not grant you any intellectual property rights in the Software.
3. LIMITED TRANSFER RIGHTS
Notwithstanding the foregoing, you may transfer all your rights to use the Software
to another person or legal entity provided that: (a) you also transfer each of this
Agreement, the Software and all other software or hardware bundled or pre-installed
with the Software, including all copies, updates and prior versions, and all copies
of font software converted into other formats, to such person or entity; (b) you
retain no copies, including backups and copies stored on a computer; (c) the receiving
party secures a personalized key code from Prowess; and (d) the receiving party
accepts the terms and conditions of this Agreement and any other terms and conditions
upon which you legally purchased a license to the Software. Notwithstanding the
foregoing, you may not transfer education, pre-release, or not-for-resale copies
of the Software.
4. PRE-RELEASE PRODUCT ADDITIONAL TERMS
If the product you have received with this license is pre-commercial release or
beta Software (“Pre-release Software”), then this Section applies. To the extent
that any provision in this Section is in conflict with any other term or condition
in this Agreement, this Section shall supersede such other term(s) and condition(s)
with respect to the Pre-release Software, but only to the extent necessary to resolve
the conflict. You acknowledge that the Software is a pre-release version, does not
represent final product from Prowess, and may contain bugs, errors and other problems
that could cause system or other failures and data loss. CONSEQUENTLY, THE PRE-RELEASE
SOFTWARE IS PROVIDED TO YOU “AS-IS”, AND Prowess DISCLAIMS ANY WARRANTY OR LIABILITY
OBLIGATIONS TO YOU OF ANY KIND EXPRESS OR IMPLIED. WHERE LEGALLY LIABILITY CANNOT
BE EXCLUDED FOR PRE-RELEASE SOFTWARE, BUT IT MAY BE LIMITED, Prowess’S LIABILITY
AND THAT OF ITS SUPPLIERS SHALL BE LIMITED TO THE SUM OF FIFTY DOLLARS (U.S.$50)
IN TOTAL. You acknowledge that Prowess has not promised or guaranteed to you that
Pre-release Software will be announced or made available to anyone in the future,
that Prowess has no express or implied obligation to you to announce or introduce
the Pre-release Software and that Prowess may not introduce a product similar to
or compatible with the Pre-release Software. Accordingly, you acknowledge that any
research or development that you perform regarding the Pre-release Software or any
product associated with the Pre-release Software is done entirely at your own risk.
During the term of this Agreement, if requested by Prowess, you will provide feedback
to Prowess regarding testing and use of the Pre-release Software, including error
or bug reports. If you have been provided the Pre-release Software pursuant to a
separate written agreement, your use of the Software is governed by such agreement.
You may not sublicense, lease, loan, rent, distribute or otherwise transfer the
Pre-release Software. Upon receipt of a later unreleased version of the Pre-release
Software or release by Prowess of a publicly released commercial version of the
Software, whether as a stand-alone product or as part of a larger product, you agree
to return or destroy all earlier Pre-release Software received from Prowess and
to abide by the terms of the license agreement for any such later versions of the
Pre-release Software.
5. WARRANTY AND LIMITATION OF LIABILITY
(a) Limited Warranty. Prowess warrants that (a) the Software will perform
substantially in accordance with the accompanying written materials for a period
of ninety (90) days from the date of receipt, and (b) any support services provided
by Prowess shall be substantially as described in applicable written materials provided
to you by Prowess, and Prowess support engineers will make commercially reasonable
efforts to solve any problem issues. Some states and jurisdictions do not allow
limitations on duration of an implied warranty, so the above limitation may not
apply to you. To the extent allowed by applicable law, implied warranties on the
Software, if any, are limited to ninety (90) days.
(b)
Customer Remedies. Prowess’s and its suppliers’ entire liability and
your exclusive remedy shall be, at Prowess’s option, either (a) return of the price
paid, if any, or (b) repair or replacement of the Software that does not meet Prowess’s
Limited Warranty and which is returned to Prowess with a copy of your receipt. This
Limited Warranty is void if failure of the Software has resulted from accident,
abuse or misapplication. Any replacement Software will be warranted for the remainder
of the original warranty period or thirty (30) days, whichever is longer.
(c) No Other Warranties. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
PROWESS AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS
OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, INFORMATIONAL CONTENT OR ACCURACY, QUIET ENJOYMENT,
TITLE AND NON-INFRINGEMENT, WITH REGARD TO THE SOFTWARE, AND THE PROVISION OF OR
FAILURE TO PROVIDE SUPPORT SERVICES. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL
RIGHTS. YOU MAY HAVE OTHERS, WHICH VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION.
(d)
Limitation Of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, IN NO EVENT SHALL PROWESS OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL,
DIRECT, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION,
DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION,
OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE
OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF PROWESS HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, PROWESS’S ENTIRE LIABILITY
UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO THE GREATER OF THE AMOUNT
ACTUALLY PAID BY YOU FOR THE SOFTWARE PRODUCT OR U.S.$50.00; PROVIDED, HOWEVER,
IF YOU HAVE ENTERED INTO AN PROWESS SUPPORT SERVICES AGREEMENT, PROWESS’S ENTIRE
LIABILITY REGARDING SUPPORT SERVICES SHALL BE GOVERNED BY THE TERMS OF THAT AGREEMENT.
Because some states and jurisdictions do not allow the exclusion or limitation of
liability, the above limitation may not apply to you. In such states and jurisdictions,
PROWESS’s liability shall be limited to the greatest extent permitted by law.
(e) Infringement Claims. PROWESS will indemnify and hold you harmless and
will defend or settle any claim, suit or proceeding brought against you that is
based upon a claim that the content contained in the Software infringes a copyright
or violates an intellectual or proprietary right protected by United States law
(“Claim”), but only to the extent the Claim arises directly out of the use of the
Software. You must notify PROWESS in writing of any Claim within ten (10) business
days after you first receive notice of the Claim, and you shall provide to PROWESS
at no cost with such assistance and cooperation as PROWESS may reasonably request
from time to time in connection with the defense of the Claim. PROWESS shall have
sole control over any Claim (including, without limitation, the selection of counsel
and the right to settle on your behalf on any terms PROWESS deems desirable in the
sole exercise of its discretion). You may, at your sole cost, retain separate counsel
and participate in the defense or settlement negotiations. PROWESS shall pay actual
damages and costs awarded against you (or payable by you pursuant to a settlement
agreement) in connection with a Claim to the extent such damages and costs are not
reimbursed to you by insurance or a third party, to an aggregate maximum of US$1,000.
If the Software or its use becomes the subject of a Claim or its use is enjoined,
or if in the opinion of PROWESS’s legal counsel the Software is likely to become
the subject of a Claim, PROWESS shall attempt to resolve the Claim by using commercially
reasonable efforts to modify the Software or obtain a license to continue using
the Software. If in the opinion of PROWESS’s legal counsel the Claim, the injunction
or potential Claim cannot be resolved through reasonable modification or licensing,
PROWESS, at its own election, may terminate this Agreement without penalty, and
will refund to you on a pro rata basis any fees paid in advance by you to PROWESS.
THE FOREGOING CONSTITUTES PROWESS’S SOLE AND EXCLUSIVE LIABILITY FOR INTELLECTUAL
PROPERTY INFRINGEMENT.
6. TERM AND TERMINATION
This Agreement may be terminated (a) by your giving Prowess written notice of termination;
or (b) by Prowess, at its option, giving you written notice of termination if you
commit a breach of this Agreement and fail to cure such breach within ten (10) days
after notice from Prowess. Upon any termination of this Agreement, you must cease
all use of the Software, destroy all copies then in your possession or control and
take such other actions as Prowess may reasonably request to ensure that no copies
of the Software remain in your possession or control.
7. GENERAL PROVISIONS
If there is a local subsidiary of Prowess in the country in which the Software was
obtained, then the local law of the jurisdiction in which the subsidiary is located
shall govern this Agreement. Otherwise, this Agreement shall be governed by the
laws of the United States of America. This Agreement contains the entire agreement
and understanding of the parties with respect to the subject matter hereof, and
supersedes all prior written and oral understandings of the parties with respect
to the subject matter hereof. Any notice or other communication given under this
Agreement shall be in writing and shall have been properly given by either of us
to the other if sent by certified or registered mail, return receipt requested,
or by overnight courier to the address shown on Prowess’s Web site for Prowess and
the address shown in Prowess’s records for you, or such other address as the parties
may designate by notice given in the manner set forth above. This Agreement will
bind and inure to the benefit of the parties and our respective heirs, personal
and legal representatives, affiliates, successors and permitted assigns. The failure
of either of us at any time to require performance of any provision hereof shall
in no manner affect such party’s right at a later time to enforce the same or any
other term of this Agreement. This Agreement may be amended only by a document in
writing signed by both of us. In the event of a breach or threatened breach of this
Agreement by either party, the other shall have all applicable equitable as well
as legal remedies. The Software and its related documentation may not be exported
or reexported in violation of the U.S. Export Administration Act and its implementing
regulations or the laws of the jurisdiction in which the Software was obtained.
Each party is duly authorized and empowered to enter into and perform this Agreement.
If, for any reason, any provision of this Agreement is held invalid or otherwise
unenforceable, such invalidity or unenforceability shall not affect the remainder
of this Agreement, and this Agreement shall continue in full force and effect to
the fullest extent allowed by law. The parties knowingly and expressly consent to
the foregoing terms and conditions.