END USER LICENSE AGREEMENT
IMPORTANT-READ CAREFULLY: This End-User License Agreement ("EULA") is a legal contract between you (either (a) an individual user or (b) a business organization) ("you" or "Licensee") and LICENSE TRACKER INC. ("Licensor") for the License Tracker™ and Web Tracker™ software, including any associated media, printed materials and electronic documentation (the "Software" or the "Licensed Software").
By clicking on the “I ACCEPT” button, by opening the package that contains the Software, or by copying, downloading, accessing or otherwise using the Software, you agree to be bound by the terms of this EULA and you represent that you are authorized to enter into this EULA on behalf of your corporate entity (if applicable). If you do not wish to be bound by the terms of this EULA, click the “I DO NOT ACCEPT” button, and do not install, access or use the Software. An original purchaser who has not accepted the terms of this EULA may return the Software to the Licensor within 30 days of the date of purchase for a full refund.
If you have received the Software for purposes of evaluation, regardless of how labeled, the use of the Software is limited to a specified period of time, as detailed in the email accompanying the download instructions or otherwise in communications received from the Licensor, which are hereby incorporated by reference, (the "Evaluation Period") and all use will be governed by the terms set forth below.
1. Grant of License. Licensor grants you a limited, personal, internal use, non-exclusive, non-transferable license to use the Software solely to evaluate its suitability for your internal business requirements during the Evaluation Period. This license may be terminated by Licensor at any time upon notice to you and will otherwise automatically terminate, without notice, upon the first to occur of the following: (a) the completion of your evaluation of the Software or (b) the expiration of the Evaluation Period.
2. Limited Use Software. Portions of the full-use version of the Software may be withheld or unusable and use of the Software may require accessing portions of the Software remotely through the Internet. Full use of the Software may be restricted by technological protections.
3. Disclaimer of Warranty. THE SOFTWARE IS PROVIDED ONLY FOR EVALUATION PURPOSES ON AN “AS IS” BASIS. LICENSOR EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE WILL (A) ACHIEVE SPECIFIC RESULTS; (B) OPERATE WITHOUT INTERRUPTION; OR (C) BE ERROR FREE.
4. Limitation of Liability. IN NO EVENT WILL LICENSOR, NOR ITS LICENSOR IF ANY, BE LIABLE FOR ANY DAMAGES, INCLUDING LOST PROFITS OR DATA, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF INCOME, PROFITS, USE OF INFORMATION OR ANY OTHER PECUNIARY LOSS), OR DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR ANY DATA SUPPLIED THEREWITH, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. HOWEVER, LICENSOR AGREES THAT SHOULD IT OBTAIN INFORMATION REGARDING THE POSSIBILITY OF SUCH DAMAGES, IT WILL IMMEDIATELY PROVIDE NOTICE OF SAME TO LICENSEE. IN NO CASE WILL LICENSOR'S LIABILITY FOR DAMAGES HEREUNDER EXCEED FIFTY DOLLARS ($50) IN CANADIAN CURRENCY.
5. Grant of License. Upon your payment of the fees shown on the invoice from Licensor and your acceptance of this EULA, Licensor grants you a limited, personal, non-exclusive, non-transferable license to install and use the Software on the terms and conditions set forth herein.
6. Enterprise License: You may install and use unlimited copies of the Software on any number of computers at any Licensee site. “Site” is defined as any location owned or controlled by the Licensee. For the avoidance of doubt, each product which is managed by a unique product version key is considered to be a separate Work hereunder. A product version key identifies a protected trial product and allows the end user to unprotect, unpack and use a protected product.
7. Restrictions on Use of Software. You may not (a) make the Software available for use by others in any service bureau or similar arrangement except as provided herein; (b) distribute, sublicense, transfer, or lend the Software to any third party; or (c) disassemble or reverse engineer (except in European Union countries, to the extent allowed by law) the Software. Licensor retains all right, title, and interest in the Software (and in all copies). Unauthorized copying and modification of the Software is strictly prohibited.
8. Restrictions on Distribution of Output from the Software. The product created by the Software, including but not limited to charts, reports, analyses and web pages, (the “Output”) are for internal use of the Licensee only and may not be distributed to any third parties, except as follows:
(a) Software vendors may distribute Output to their customers in support of invoices for rental of their products by the customer. The distributed Output must be restricted to those products for which rental occurred and to those users who used that rented software. No Output detailing usage of other products, or other users, may be distributed.
(b) Software vendors may make presentations to their customer using Output relating to any usage of the software vendors products by the customer in support of discussions to increase customer license counts or to enter into or increase software rental by the customer. Under no circumstance shall the Output used in the presentation be left in the possession or control of the customer.
9. Limited Warranty and Disclaimer of Warranty. Licensor warrants that it has the right and authority to grant the rights described in this Agreement.
THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. LICENSOR EXPRESSLY DISCLAIMS ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE WILL (A) ACHIEVE SPECIFIC RESULTS; (B) OPERATE WITHOUT INTERRUPTION; OR (C) BE ERROR FREE.
10. Indemnification. Notwithstanding any other provision of this Agreement, if a third party claims that the Software infringes any patent, copyright, or trade secret, Licensor will defend Licensee against such claim at Licensor's expense and pay all damages that a court finally awards, provided that Licensee cooperates with Licensor in the defense or settlement of such action. If such a claim is made or appears possible, Licensor may, at its option, secure for Licensee the right to continue to use the Software, modify or replace the Software so it is non-infringing. Licensor shall have no liability or obligation hereunder with respect to any infringement claim if such infringement is caused solely by, and the Software itself would not be infringing but for, (i) compliance with designs, guidelines, plans or specifications of Licensor; (ii) use of the Software by Licensee in an application or environment other than as specified in the applicable documentation; (iii) use of the Software by Licensee in breach of the Software Maintenance and Support Agreement or End User License Agreement; (iv) modification of the Software by any party other than Licensor; or (v) the combination, operation or use of the Software with other product(s) or services not supplied by Licensor.
11. Ownership. This Agreement does not convey to you any rights of ownership in the Software. All right, title, and interest in the Software and in any ideas, know-how, and programs which are developed by Licensor in the course of providing any technical services, including any enhancements or modifications made to the Software, shall at all times remain the property of Licensor. You acknowledge and agree that the Software is licensed, not sold. You shall not permit the Software to be accessed or used by anyone other than your employees whose duties require such access or use. You shall own the media in which the Software is delivered.
You may not remove, modify or alter any Licensor copyright or trademark notice from any part of the Software, including but not limited to any such notices contained in the physical and/or electronic media or documentation, in the Licensor Setup Wizard dialogue or 'about' boxes, in any of the runtime resources and/or in any web-presence or web-enabled notices, code or other embodiments originally contained in or otherwise created by the Software. You will not remove or modify Licensor's proprietary rights notices from any copies of the Software, including archival and back-up copies, if applicable.
12. Transfer of Software. You may not, by operation of law or otherwise, transfer any license rights or other interests in Evaluation Software, or Software labeled "Not for Resale" or "NFR." You may not, by operation of law or otherwise, transfer any license rights or other interests in any other Software, unless (a) you permanently and wholly transfer all your rights under this EULA; (b) you retain no copies (whole or partial); (c) you permanently and wholly transfer all of the Software (including component parts, media, printed materials, upgrades, prior versions, and authenticity certificates); and (d) the transferee agrees to abide by all the terms of this EULA. Notwithstanding the foregoing, Licensee shall have the right to assign this Agreement to a successor by merger or by purchase of all or substantially all of its assets relating to the business of which the use or sale of the Licensed Software are a part, if the successor agrees in writing to be bound by this EULA.
13. Limitation of Remedy and Liability. In the event of any breach of the warranty outlined herein, the entire liability of Licensor and its suppliers, and your exclusive remedy shall be, at Licensor's option, either, (a) repair or replacement of the defective Software or (b) re-performance of the Support Services.
NEITHER LICENSOR , ITS LICENSOR, IF ANY, NOR LICENSEE SHALL BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF INCOME, PROFITS, USE OF INFORMATION OR ANY OTHER PECUNIARY LOSS) OR FOR DAMAGE TO SYSTEMS OR DATA, ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR ANY DATA SUPPLIED THEREWITH, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. HOWEVER, LICENSOR AGREE THAT SHOULD IT OBTAIN INFORMATION REGARDING THE POSSIBILITY OF SUCH DAMAGES, IT WILL IMMEDIATELY PROVIDE NOTICE OF SAME TO LICENSEE. LICENSOR'S LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED THE AMOUNT OF LICENSE FEES THAT YOU HAVE PAID.
For Users Outside of the United States, Canada or Mexico: No person who is not a party to this Agreement shall be entitled to enforce any terms of the same under the Contracts (Rights of Third Parties) Act 1999.
14. Support Services. If ordered by you and upon payment of the support fee, you are entitled to receive telephone/web/email support services (the "support services") from Licensor. The support services will be provided to you during Licensor's standard business hours (8:00 a.m. to 5:30 p.m. Mountain Standard Time), Monday through Friday, except on those days designated as Licensor's holidays). If you have acquired "subscription," or "maintenance" services, upon payment of the fee therefor, Licensor will provide with you with all applicable bug fixes, updates and upgrades made generally available during the term of your subscription or upgrade contract. You will not be entitled to receive update or upgrades which Licensor reasonably determines to be a separate product or for which there is an additional fee.
15. Upgrades and Subscription. If the Software is labeled or otherwise identified by Licensor as an "upgrade" or "subscription," you must be properly licensed to use a product identified by Licensor as being eligible for the upgrade in order to use the Software. Any Software labeled or otherwise identified by Licensor as an upgrade replaces and/or supplements the product that formed the basis for your eligibility for such upgrade. You may use the resulting upgraded product only in accordance with the terms of this EULA. If the Software is an upgrade of a component of a package of software programs that you licensed as a single product, the Software may be used and transferred only as part of that single product package and in accordance with the terms and conditions of this Agreement.
16. U.S. Government Restricted Rights. The Software and Documentation are provided as "Commercial Computer Software" or "restricted computer software". Use, duplication, or disclosure by the U.S. Government or a U.S. Government subcontractor is subject to the restrictions set forth in 48.C.F.R. Section 12.212 or 48 C.F.R 227.2702, as applicable or successor provisions. The manufacturer is License Tracker Inc., 214-11 Avenue SE, Suite 210, Calgary, AB T2G 0X8, Canada.
17. U.S. Export Restrictions. You will fully comply with all relevant export laws and regulations, including but not limited to the U.S. Export Administration Regulations and Executive Orders ("Export Controls"). You warrant that you are not a person, company or destination restricted or prohibited by Export Controls ("Restricted Person"). You will not, directly or indirectly, export, re-export, divert, or transfer the Software, any portion thereof or any materials, items or technology relating to Licensor's business or related technical data or any direct product thereof to any Restricted Person.
18. Termination. Your license may be terminated forthwith by Licensor if you fail to make payment owing under this EULA. Your license may also be terminated if you fail to comply with the terms of this Agreement within ten (10) days after receipt of written notice of such failure. In the event of termination, you must cease using the Software, destroy all copies of the Software (including copies in storage media) and certify such destruction to Licensor. This requirement applies to all copies in any form, partial or complete. Upon the effective date of any termination, you relinquish all rights granted under this Agreement.
19. Relationship of Parties. Licensee and Licensor are independent parties. Nothing in this EULA shall be construed as making one party an employee, agent or legal representative of the other party.
20. No Third-Party Beneficiaries. There are no third-party beneficiaries of this EULA.
21. Controlling Law. This Agreement will be governed by the laws of Alberta, Canada, excluding conflicts of law, except that, for Users Outside of the United States, Canada or Mexico, this Agreement will be governed by the laws of England and Wales and you submit to the jurisdiction of the courts of England and Wales. This Agreement is not subject to the United Nations Convention on Contracts for the Sale of Goods, as amended.
22. Company Name. Licensor may request to include Licensee’s name in a list of Licensor customers and Licensee shall reasonably consider such request.
23. Payment Terms/Shipments. All fees are in US Dollars (except as otherwise stated on the Licensor’s invoice), are deemed to be earned upon payment and are non-refundable. Fees are due within 30 days of the date of the invoice failing which they accrue interest from the date of the invoice at the rates and in the manner specified in the invoice. All shipments of any media will be FOB Origin.
24. Taxes. All fees do not include applicable taxes. If Licensor is required to pay any sales, use, GST, VAT, or other taxes in connection with your order, other than taxes based on Licensor's income, such taxes will be billed to and paid by you.
25. Entire Agreement. This EULA constitutes the complete and entire understanding and agreement of all terms, conditions and representations between you and Licensor with respect to the Software and may be modified only in writing by both parties. No term or condition contained in your purchase order will apply unless expressly accepted by Licensor in writing. Failure to prosecute a party's rights will not constitute a waiver of any other breach.
26. Invalidity. If any provision of this Agreement is found to be invalid, it will be enforced to the extent permissible and the remainder of this Agreement will remain in full effect.
27. Language. The parties have expressly required that the present Agreement and the Schedules hereto be drawn up in the English language. Les parties aux presentes ont expressement exige que la presente convention et ses Annexes soient redigees en langue anglaise. You waive any rights you may have under the law of your country or province to have this Agreement written in any other language.