|
DMCons, Inc.
End User License Agreement for the mvToolbox
-o0o-
IMPORTANT READ CAREFULLY: This End User License Agreement (“Agreement”) is a
legal and binding agreement between you (either an individual or a single
entity) (“You” or “Your”) and DMCons, Inc. (“DMCons”) for the software product
You are about to install and the associated proprietary media, printed
materials, any associated documentation (including any electronic
documentation), and also any updates or modifications of the foregoing provided
by DMCons or its licensees or agents to You (collectively “Software”). If you have requested an “Evaluation” copy,
you are receiving a Trial License (as defined below).
WHEN
YOU INSTALL OR USE ANY PART OF THE SOFTWARE, YOU ARE CONSENTING TO BE BOUND BY
AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO (OR CANNOT
COMPLY WITH) ALL OF THE TERMS OF THIS AGREEMENT, (1) RETURN THE UNUSED SOFTWARE
(INCLUDING ALL RELATED MANUALS AND DOCUMENTATION) AND THE PROOF OF PAYMENT TO
DMCONS FOR A FULL REFUND WITHIN 30 DAYS OF ACQUIRING THE SOFTWARE. WRITTEN
APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS
AGREEMENT AND NO SOLICITATION OF ANY SUCH WRITTEN APPROVAL BY OR ON BEHALF OF
DMCONS SHALL BE CONSTRUED AS AN INFERENCE TO THE CONTRARY. IF THESE TERMS ARE CONSIDERED AN OFFER BY
DMCONS, YOUR ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
-o0o-
Under
this Agreement, You are obtaining one of the following three types of
licenses: (1) a “Trial License” which
will allow you to use the Software free of charge, for a limited period of time
designated by DMCons for evaluation purposes only; (2) a “Single or Multiple
User License” which will allow you to use one copy of the Software for
Your use on one server only; or (3) a
“Traveling License” which is a license granted when You have purchased multiple
logons to the Software and additional multiple site licenses, and which will
allow you to use the Software on multiple computers at once.
1
License.
(a)
Trial License. If You are
obtaining a Trial License, subject to Your compliance with the terms and
conditions of this Agreement, DMCons hereby grants to You a limited, corporate,
non-sublicensable, non-transferable, non-exclusive license to:
i.
use one copy of the
Software to evaluate the Software and only for Your use on a single computer
system and only in accordance with the accompanying end user documentation; and
ii.
make one copy of the
Software in machine-readable form solely for archival back-up purposes,
provided you reproduce DMCons's copyright proprietary legends in any such
copy.
(b)
Single or Multiple
User License. If You are purchasing
a Single-User License, subject to Your compliance with the terms and conditions
of this Agreement, DMCons hereby grants to You a limited non-sublicensable,
non-transferable, non-exclusive license to:
i.
use one copy of the
Software only for Your use on a single computer system and only in accordance
with the accompanying end user documentation; and
ii.
make one copy of the Software in
machine-readable form solely for archival back-up purposes, provided you
reproduce DMCons's copyright proprietary legends in any such copy.
2.
License
Restrictions.
(a)
General Restrictions. You shall not (nor shall You permit anyone else to)
directly or indirectly:
i.
copy (except as expressly
set forth above), or distribute the Software or any portion thereof;
ii.
reverse engineer,
disassemble, decompile or otherwise attempt to discover the security and logon
restrictions or structure, sequence and organization of the Software or any
portion thereof (except where the foregoing is permitted by applicable local
law, and then only to the extent so permitted);
iii.
rent, lease, or use the
Software or any portion thereof for timesharing or service bureau purposes, or
otherwise use or allow the use of the Software or any portion thereof for any
commercial purpose or on behalf of any third party;
iv.
remove or obscure any
proprietary notices on the Software;
v.
post or otherwise make
available the Software, or any portion thereof, in any form, on the Internet or
the World Wide Web, except for the User Forums provided for this purpose by
DMCons;
vi.
distribute copies of the
Software to others (electronically or otherwise), in source form or object
form;
vii.
use, or allow to be used,
a previous version of the Software, by you, an employee, or any other third
party, after you receive a new version and are asked to discontinue using the
previous version;
viii.
export or re-export the
Software in violation of any laws or regulations. You are responsible for all fees and costs associated with the
copying and installation of the Software.
As a specific condition of this license, You agree to use the Software
in compliance with all applicable laws, including without limitation copyright
laws, and that You will not copy, transmit, perform or distribute any other
content using the Software without obtaining all necessary licenses or
permissions from the owner of the content.
ix.
Licensee
agrees to provide Licensor with copies of any software enhancement,
modification, and/or upgrade performed by or on behalf of Licensee to the
licensed software within a reasonable time after such enhancement,
modification, or upgrade is completed or made.
Further, it is expressly understood that any such enhancement, modification,
and/ or upgrade to the Software technology shall become the property of
Licensor and be deemed a part of the
Software technology and Development Tools licensed hereunder. This
restriction does not apply to modifications directed to be done or done by
DMCons. This restriction applies only
to changes made to existing DMCons code, and expressly does not apply to any
entirely new application commands developed solely by you for your use.
x.
The
parties hereby agree that Licensor shall have access to The Software program
being used by Licensee pursuant to this license upon reasonable notice from
Licensor.
3.
Proprietary Rights.
(a) DMCons and its licensors shall own and retain all
right, title, and (except as expressly licensed hereunder) interest in and to
the Software all copies or portions thereof, and any derivative works thereof
(by whomever created). Copyright laws
and international copyright treaties, as well as other intellectual property
laws and treaties protect the Software.
Notwithstanding anything else, the Software is licensed and not
sold. DMCons and its licensors reserve
all rights in the Software not specifically granted in this Agreement.
4.
Confidentiality.
(a) You
agree to maintain the Software and any data or databases contained therein in
confidence and that you will not disclose the Software to any third party
without the express written consent of DMCons
you may not use the Software except as set forth herein. You further agree to take all reasonable
precautions to preclude access of unauthorized persons to the Software.
5.
Term and
Termination.
(a) This license is effective until terminated hereunder; provided,
however, that if you are only permitted to use the Software on a trial basis,
this license is only effective for the trial period specified by DMCons. You may terminate the license at any time by
destroying the Software (including the related documentation) together with all
copies or modifications in any form.
DMCons will have the right to terminate the license granted herein
immediately if you fail to comply with any term or condition of this Agreement.
The license granted to you herein will terminate automatically upon any breach
of Section 2, 3, or 4. Upon termination of this Agreement for any reason, you
shall immediately stop using the Software and shall destroy and remove from all
computers, hard drives, networks, and other storage media all copies of the
Software. Sections 2 through 16 shall
survive any termination of this Agreement.
6.
Limited Warranty.
(a) Except
if You are obtaining a Trial License, for a period of one-hundred and eighty (180) days from the
date You purchase the Software (the “Warranty Period”), DMCons and its
Licensors warrant only that the Software will perform substantially in
accordance with the specifications stated for the Software in the accompanying
written end-user documentation. THIS WARRANTY SHALL NOT APPLY TO ANY SOFTWARE
WHICH HAS BEEN ABUSED, MISUSED, DAMAGED IN TRANSPORT, ALTERED, NEGLECTED, OR
SUBJECTED TO UNAUTHORIZED REPAIR OR INSTALLATION, AS REASONABLY DETERMINED BY
DMCONS THE FOREGOING LIMITED WARRANTY
SHALL NOT APPLY IF YOU ARE OBTAINING A TRIAL LICENSE.
(b) NOTWITHSTANDING ANYTHING ELSE
HEREIN, THE ENTIRE LIABILITY OF DMCONS AND ITS LICENSORS, AND YOUR EXCLUSIVE
REMEDY FOR A BREACH OF THE FORGOING WARRANTY, SHALL BE, AT DMCONS’S OPTION AND
EXPENSE: (A) REPAIR OR REPLACEMENT OF THE SOFTWARE FOR SOFTWARE THAT MEETS THE
WARRANTY OR (B) A REFUND OF THE PURCHASE PRICE PAID BY YOU FOR THE SOFTWARE
AMORTIZED OVER A FIVE (5) YEAR PERIOD, IN BOTH CASES WHERE THE SOFTWARE IS
RETURNED TO DMCONS ACCORDING TO THE CLAIM PROCEDURE BELOW, WITHIN THE WARRANTY
PERIOD.
7.
Warranty Disclaimer.
(a) THE LIMITED WARRANTY SET FORTH IN SECTION 6 IS THE
ONLY WARRANTY PROVIDED BY DMCONS AND DOES NOT APPLY IF YOU ARE OBTAINING A
TRIAL LICENSE. EXCEPT FOR THE
FOREGOING, THE SOFTWARE AND ANY SERVICES ARE PROVIDED “AS IS” AND DMCONS MAKES
NO WARRANTY OF ANY KIND WITH REGARD TO THE SOFTWARE OR ANY SERVICES PROVIDED BY
DMCONS HEREUNDER. DMCONS EXPRESSLY
DISCLAIMS ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OR NONINFRINGEMENT.
(b) FURTHER,
DMCONS DOES NOT WARRANT RESULTS OF USE OR THAT THE SOFTWARE IS BUG FREE OR THAT
ITS USE WILL BE UNINTERRUPTED. DMCONS AND ITS LICENSORS DO NOT AND CANNOT
WARRANT THE RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE. THIS DISCLAIMER OF
WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
(c) SOME
STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW
LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO
YOU. THIS WARRANTY GIVES YOU SPECIFIC
LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE.
8.
Warranty Claim
Procedure.
(a) If you have purchased
the Software bundled with a computer software product, you must return the
Software to the bundling agent within the Warranty Period. If you have purchased the Software on a
stand-alone basis, then any claim under the Limited Warranty set forth above
must be submitted before the end of the Warranty Period to DMCons, at the
address listed below. Any returned Software must be insured, shipped freight
prepaid, and securely packaged. You must call DMCons at the appropriate number
listed below for a Return Material Authorization Number (RMA) before shipping
any product, and include this number, a copy of Your sales slip and a
description of the problem You are experiencing with the product.
DMCons,
Inc.
3598 N Atherton St, Suite 1
Port Matilda, PA 16870
814-234-4543
9.
Limitation of Liability.
NOTWITHSTANDING ANYTHING ELSE HEREIN, UNDER
NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO,
TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, SHALL DMCONS OR ITS
LICENSORS BE LIABLE TO YOU OR ANY OTHER PERSON (I) FOR ANY PUNITIVE, INDIRECT,
SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING,
WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE,
ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, OR DAMAGES RESULTING FROM
YOUR USE OF THE SOFTWARE OR THE SERVICES PROVIDED BY DMCONS, OR (II) FOR ANY
MATTER BEYOND DMCONS OR ITS LICENSOR’S REASONABLE CONTROL. DMCONS’S AND ITS
LICENSOR’S MAXIMUM LIABILITY FOR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF
THIS AGREEMENT SHALL BE LIMITED TO (I) THE PURCHASE PRICE PAID BY YOU FOR THE
SOFTWARE OR (II) IF YOU RECEIVED THE SOFTWARE FREE OF CHARGE ON A TRIAL BASIS,
FIFTY DOLLARS ($50.00), EXCEPT WHERE NOT PERMITTED BY APPLICABLE LAW, IN WHICH
CASE DMCONS’S LIABILITY SHALL BE LIMITED TO THE MINIMUM AMOUNT PERMITTED BY
SUCH APPLICABLE LAW. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF DMCONS HAS
BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME STATES DO NOT ALLOW THE EXCLUSION OR
LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND
EXCLUSION MAY NOT APPLY TO YOU.
10. Indemnity.
(a) You agree that DMCons shall have no liability whatsoever for any use you make
of the Software. You shall indemnify and hold harmless DMCons from any third
party claims, damages, liabilities, costs and fees (including reasonable
attorney fees) arising from Your use of the Software as well as from Your
failure to comply with any term of this Agreement.
11. Government
Restricted Rights.
(a) If You are an
agency, department, or other entity of the United States Government
("Government"), the use, duplication, reproduction, release,
modification, disclosure or transfer of the Software, or any related
documentation of any kind, including technical data or related manuals, is
restricted in accordance with Federal Acquisition Regulation 12.212 for
civilian agencies and Defense Federal Acquisition Regulation Supplement
227.7202 for military agencies. This Software is commercial computer software
and the related documentation is commercial computer software documentation.
The use of the Software and related documentation is further restricted in
accordance with the terms of this Agreement, or any modification hereto. DMCons is located at 3598 N Atherton St,
Suite 1, Port Matilda, PA 16870.
12.
WARNING: IF YOU ARE OBTAINING A TRIAL LICENSE, THE
SOFTWARE CONTAINS A ROUTINE THAT WILL CAUSE THE SOFTWARE TO CEASE PROPER
FUNCTIONING AFTER A CERTAIN PERIOD OF TIME. THIS MAY OCCUR BEFORE OR AFTER
EXPIRATION OR TERMINATION OF THE LICENSE, SO YOU MUST BE PREPARED FOR SUCH
EVENT AT ALL TIMES AND MAY NOT RELY ON THE SOFTWARE.
13. General.
(a) This Agreement and
the terms of any Traveling License Agreement provided to you (if any) represent
the complete agreement concerning this license between the parties and
supersede all prior agreements and representations between them. Only a writing
executed by both parties may amend this Agreement. If any provision of this
Agreement is held to be illegal or unenforceable, that provision shall be
limited or eliminated to the minimum extent necessary to make it legal and
enforceable and this Agreement shall otherwise remain in full force and effect
and enforceable. The failure of DMCons to act with respect to a breach of this
Agreement by You or others does not constitute a waiver and shall not limit
DMCons’s rights with respect to such breach or any subsequent breaches. This
Agreement is personal to you and may not be assigned or transferred for any
reason whatsoever without DMCons’s prior written consent and any action or
conduct in violation of the foregoing shall be void and without effect. DMCons
expressly reserves the right to assign this Agreement and to delegate any of
its obligations hereunder. This Agreement shall be governed by and construed
under Pennsylvania law (without regard to its conflicts of laws provisions) as
such law applies to agreements between Pennsylvania residents entered into and
to be performed within Pennsylvania. The sole and exclusive jurisdiction and
venue for actions arising under this Agreement shall be the State and Federal
courts in Centre County, Pennsylvania; you hereby agree to service of process
in accordance with the rules of such courts. The party prevailing in any
dispute under this Agreement shall be entitled to its costs and legal fees.
-o0o-
Each party recognizes and agrees that the
warranty disclaimers and liability and remedy limitations in this Agreement are
material bargained for bases of this Agreement and that they have been taken
into account and reflected in determining the consideration to be given by each
party under this Agreement and in the decision by each party to enter into this
Agreement.
Questions concerning
this Agreement should be sent to the address set forth below. Any notices or correspondences will only be
effective if sent to such address.
DMCons,
Inc.
3598
N Atherton St, Suite 1
Port Matilda, PA 16870
-o0o-
14. Addendum
(a) Traveling License. If You are purchasing a Traveling License from DMCons
or one of its authorized distributors subject to Your compliance with the terms
and conditions of this Agreement, DMCons hereby grants to You a limited,
non-sublicensable, non-transferable, non-exclusive license to:
i.
install the Software on
computers owned, controlled, or serviced as a client by You only for Your
business purpose, provided that the number of computers that the Software may
be installed on shall never exceed the number of site licenses of the Software
you have purchased from DMCons or its distributors; and
ii.
after installation, the
source code and the Install Image shall be deleted, leaving only object code on
the additional machine(s)
iii.
if the Software must be
installed on another server, and the maximum number of purchased licenses has
been used, the Software must be removed from another server, or another site
license must be purchased.
iv.
use the Software in
accordance with the relevant DMCons end user documentation.
(b) Restrictions
limited to Traveling License. If you are purchasing a Traveling
License:
i.
if the Software is moved
from one single computer to another computer owned, controlled, or serviced as
a client by You, You must destroy the copy on the first computer, unless the
number of Sites purchased allows for the addition of another copy;
ii.
after installation, the
source code and the Install Image shall be deleted from all secondary
machine(s); and
iii.
the Software is intended
for your use only. If your client
wishes to use the Software, they must purchase the desired number of seats, and
may not use the Software that is under a Traveling License
iv.
you may not install the
Software on any computer not owned, controlled, or serviced as a client by you.
(c) Traveling License Installation Process and Support Terms. This Section only applies to you if you
are purchasing a Traveling License.
i. Irrespective of the number of sites you have
purchased, you must follow the standard installation procedure for each
site. This procedure includes in
particular contacting DMCons, for the activation code for each install. Copying or attempting to copy a previous
installation to a new machine constitutes a breach of the Traveling license.
ii. In connection with your purchase of a
Traveling License, upon your provision of the appropriate support code provided
to you by DMCons or its distributors (“Activation Code”), you will be entitled
to one-hundred and eighty (180) days of free support from DMCons or its contractors for the
number of sites of the Software You have purchased. Such support shall be provided in accordance with DMCons’s
then-standard support terms and conditions for Traveling license purchasers
effective in the territory which You use the Software). For each Activation Code You receive, you
may only have one employee that serves as Your “DMCons System Administrator.”
This person will serve as the main technical contact to DMCons and/or its
support contractors. The initial person who contacts DMCons, and is provided
the Activation Code will be recorded as the designated contact to receive
support for the Software.
|
Last Updated: 07/30/08
