End-user License Agreement
IMPORTANT – READ CAREFULLY: BY DOWNLOADING, INSTALLING, AND/OR USING THE SOFTWARE (DEFINED BELOW), YOU (DEFINED BELOW) AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT (DEFINED BELOW). IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE, AND YOU MUST DELETE OR RETURN THE UNUSED SOFTWARE.
SMARGASY INC END USER LICENSE AGREEMENT
This End User License Agreement (the “Agreement”), as of the date that You place your order with Smargasy Inc (“Effective Date”), is hereby entered into and agreed upon by you, either an individual or an entity, and its Affiliates (“You” or “Company”) and Smargasy Inc (“Smargasy”) for the Software (as defined below).
1. DEFINITIONS
1.1 “Affiliates” means an entity controlled by, under common control with, or controlling such party, where control is denoted by having fifty percent (50%) or more of the voting power (or equivalent) of the applicable entity. Subject to the terms and conditions of this Agreement, Affiliates may use the license granted hereunder. All references to Smargasy shall be deemed to be references to Smargasy Inc and its Affiliates, and all references to Company, You, or Your shall be deemed to be references to Company and its Affiliate(s).
1.2 “Computer” means the hardware, if the hardware is a single computer system, whether physical or virtual, or means the computer system with which the hardware operates, if the hardware is a computer system component.
1.3 “Documentation” means the official user documentation provided by Smargasy Inc to on the use of the Software. For the avoidance of doubt, any installation guide or end user documentation not prepared or provided by Smargasy Inc; any online community site; unofficial documentation, videos, white papers, or related media; or feedback does not constitute Documentation.
1.4 “Software” means the object code versions of the product, together with the updates, new releases or versions, modifications or enhancements, owned and provided by Smargasy Inc to You pursuant to this Agreement.
2. GRANT OF LICENSE.
2.1 Subscription License. Upon payment of the fees and continuous compliance with the terms and conditions of this Agreement, Smargasy Inc hereby grants You a limited, nonexclusive, nontransferable license for the applicable term to use the Software and Documentation subject to the terms contained herein:
a) For each Software license that You obtain from Smargasy Inc, You may: (i) use the Software on any single Computer, unless the Documentation clearly indicates otherwise; and (ii) copy the Software for back-up and archival purposes, provided any copy must contain all of the original Software’s proprietary notices and a notice that it will not be used for transfer, distribution or sale.
b) The Software is in use on a Computer when it is loaded into temporary memory or installed in permanent memory (hard drive, CD-ROM or other storage device). You agree to use Your reasonable efforts to prevent and protect the contents of the Software and Documentation from unauthorized use or disclosure, with at least the same degree of care that You use to protect Your own confidential and proprietary information, but in no event less than a reasonable degree of care under the circumstances. You agree that You will register the Software only with Smargasy Inc and that You will only install a Software license key obtained directly from Smargasy Inc.
2.2 Perpetual License Legacies. Upon payment of the fees and continuous compliance with the terms and conditions of this Agreement, Smargasy Inc hereby grants You a limited, perpetual, nonexclusive, nontransferable license to use the Software and Documentation subject to the terms contained herein:
a) For each Software license that You obtain from Smargasy Inc, You may: (i) use the Software on any single Computer, unless the Documentation clearly indicates otherwise; and (ii) copy the Software for back-up and archival purposes, provided any copy must contain all of the original Software’s proprietary notices and a notice that it will not be used for transfer, distribution or sale.
b) The Software is in use on a Computer when it is loaded into temporary memory or installed in permanent memory (hard drive, CD-ROM or other storage device). You agree to use Your reasonable efforts to prevent and protect the contents of the Software and Documentation from unauthorized use or disclosure, with at least the same degree of care that You use to protect Your own confidential and proprietary information, but in no event less than a reasonable degree of care under the circumstances. You agree that You will register this Software only with Smargasy Inc and that You will only install a Software license key obtained directly from Smargasy Inc.
2.3 Evaluation or Beta License. If the Software is provided to You for evaluation or beta purposes, Smargasy Inc grants to You a nonexclusive, limited, royalty-free, nontransferable evaluation license to use the Software solely for evaluation purposes prior to purchase (an “Evaluation License”). The Evaluation License should not be for production use. The Evaluation License shall terminate on the end date of the pre-determined evaluation period or immediately upon notice from Smargasy at its sole discretion. Notwithstanding any other provision contained herein, Software provided pursuant to an Evaluation License is provided to You “AS IS” without indemnification, support, or warranty of any kind, express or implied. Except to the extent such terms conflict with the specific Evaluation License terms set forth in this Section, all other terms of this End User License shall apply to Software licensed under an Evaluation License.
3. LICENSE RESTRICTIONS.
3.1 Usage Restrictions. You may not: (i) provide, make available to, or permit other individuals to use the Software or Documentation, except under the terms listed above, either in whole or part; (ii) modify, translate, reverse engineer, decompile, disassemble, create derivative works, or otherwise attempt to derive the source code based upon the Software or Documentation; (iii) copy, reproduce, republish, upload, post, or transmit the Software or Documentation (except for back-up or archival purposes, which will not be used for transfer, distribution, or sale); (iv) license, sell, rent, lease, transfer, sublicense, distribute, or otherwise transfer rights to the Software or Documentation; (v) remove any proprietary notices or labels on the Software or Documentation; or (vi) license the Software if You are a direct competitor (or an agent of a direct competitor) of Smargasy for the purposes of monitoring the Software’s availability, performance, or functionality or for any other benchmarking or competitive purposes. Unless as provided herein, any such forbidden use shall immediately terminate Your license to the Software. The Software is intended only for use with public domain or properly licensed third party materials. You might need a third party license to create, copy, download, record or save third-party media or content files or to serve or distribute such files. All responsibility for obtaining such a license is Yours, and Smargasy shall not be responsible for Your failure to do so.
3.2 Your Responsibilities. The Software and Documentation are protected by the intellectual property laws and other laws of the United States and international laws and treaties. You agree that You shall use the Software and Documentation solely in a manner that complies with all applicable laws in the jurisdictions in which You access or use the Software and Documentation. You shall be responsible for Your compliance with this Agreement, Documentation, and Order Forms and the accuracy, quality, and legality of any data with which You utilize the Software and the means by which You acquired the data.
3.3 Smargasy Trademarks. You may not delete, remove, hide, move or alter any trademark, logo, icon, image or text that represents the company name of Smargasy, any derivation thereof, or any icon, image, or text that is likely to be confused with the same. All representations of the company name or mark of Smargasy or any of its Affiliates’ names or marks must remain as originally distributed regardless of the presence or absence of a trademark, copyright, or other intellectual property symbol or notice.
3.4 Export Restrictions. The Software and Documentation delivered to You under this Agreement are subject to U.S. and Canadian export control laws and regulations and may also be subject to import and export laws of the jurisdiction in which it was accessed, used, or obtained, if outside the United States and Canada. You shall abide by all applicable export control laws, rules and regulations applicable to the Software and Documentation. You agree that You will not export, re-export, or transfer the Software or Documentation, in whole or in part, to any country, person, or entity subject to export restrictions, including U.S. or Canadian export restrictions. You specifically agree not to export, re-export, or transfer the Software or Documentation (i) to any country to which the U.S. or Canada has embargoed or restricted the export of goods or services, or to any national of any such country, wherever located, who intends to transmit or transport the products back to such country; (ii) to any person or entity who You know or have reason to know will utilize the Software or portion thereof in the design, development, production or use of nuclear, chemical or biological materials, facilities, or weapons; or (iii) to any person or entity who has been prohibited from participating in U.S. or Canadian export transactions by any federal agency of the U.S. or Canadian government.
4. SUBSCRIPTION TERM, TERMINATION, AND ACCOUNT TYPE.
4.1 Term. Unless terminated earlier in accordance with this Agreement, the term of this subscription for the relevant Software and Documentation will begin on the first day of the full month after the Effective Date and will continue for a period of twelve months, unless otherwise agreed upon by Smargasy (“Initial Subscription Term”). Company authorizes Smargasy to automatically renew its subscription license for the Software and Documentation for an additional twelve month term upon the expiration of the Initial Subscription Term (each a “Renewal Term,” and collectively with the Initial Subscription Term, the “Term”).
4.2 Termination by Company. After the Initial Term, Company may terminate the Agreement by providing Smargasy with ninety (90) day prior written notice of its intention to terminate the Agreement. The ninety (90) day termination period will commence on the first day of the full month after receipt of the termination notice.
4.3 Termination by Smargasy. Unless as otherwise set forth herein, Smargasy may terminate the Agreement upon thirty (30) day prior written notice or immediately if Company becomes subject to bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assign for the benefit of creditors, infringes or misappropriates Smargasy’s intellectual property, or breaches the license restrictions, or fails to make any payment due hereunder.
4.4 Account Type. Company may, at any time, upgrade its Smargasy subscription license. The change will take effect immediately. After an upgrade, the Company will be billed immediately for the additional fees due under the upgraded subscription license. The amount due and owing for the upgraded subscription license will be reduced by the amount the Company has already paid for the applicable Term. After the Initial Term, Company may downgrade, within the parameters communicated to Company by Smargasy, its subscription license upon thirty (30) day prior written notice to Smargasy. Any modification in the amount due to Smargasy will take effect after the thirty (30) day notice period, unless otherwise agreed upon by Smargasy. Downgrading the subscription may cause loss of content, features, or capacity as available to Company under Subscriber’s previous license, and Smargasy does not accept any liability for such loss.
5. RIGHTS RESERVED.
THE SOFTWARE AND DOCUMENTATION ARE LICENSED, NOT SOLD. Use herein of the word “purchase” in conjunction with licenses, license keys, the Software, or Documentation shall not imply a transfer of ownership. Unless as conveyed herein, this Agreement does not grant You any rights, title, or interest in or to Software, Documentation, trademarks, service marks, or trade secrets, or corresponding intellectual property (including without limitation any images, photographs, video, audio, music, and text incorporated into the Software, the accompanying printed materials, and any copies of the Software) of Smargasy or its suppliers, and all rights, title, and interest in and to the Software, Documentation, and corresponding intellectual property shall remain the property of Smargasy, its suppliers, or are publicly available. All rights not expressly granted under this Agreement are reserved by Smargasy, its suppliers, or third parties. All title, rights, and interest in and to content, which may be accessed through the Software, is the property of the respective owner and may be protected by applicable intellectual property laws and treaties. This Agreement gives You no rights to such content, including use of the same. Smargasy agrees that the data and information generated by the Software from Your proprietary data and information shall be and remain Your sole property.
6. DATA RIGHTS.
You agree that Smargasy will collect and track technical and related information about You and Your use of the Software, which may include Your internet protocol address, hardware identifying information, operating system, application software, peripheral hardware, and Software usage statistics to assist with the necessary operation and function of the Software, the provision of updates, support, invoicing, marketing to You by Smargasy or its agents, and research and development. As a reminder, the Smargasy Privacy Statement can be found here (https://www.smargasy.com/customer-service/privacy-policy/), and Smargasy may update its Privacy Statement from time to time.
7. LIMITED WARRANTY.
Smargasy warrants to You that for a period of thirty (30) days following the initial purchase and delivery of the Software to You that the Software will perform substantially in conformance with the Documentation. Smargasy does not warrant that the Software will meet all of Your requirements or that the use of the Software will be uninterrupted or error-free. The foregoing warranty applies only to failures in operation of the Software that are reproducible in standalone form and does not apply to: (i) Software that is modified or altered by You or any third party that is not authorized by Smargasy; (ii) Software that is otherwise operated in violation of this Agreement or other than in accordance with the Documentation; or (iii) failures that are caused by other software or hardware products. To the maximum extent permitted under applicable law, as Smargasy’s and its suppliers’ entire liability, and as Your exclusive remedy for any breach of the foregoing warranty, Smargasy will, at its sole option and expense, promptly repair or replace any Software that fails to meet this limited warranty or, if Smargasy is unable to repair or replace the Software, refund to You the applicable license fees paid upon return, if applicable, of the nonconforming item to Smargasy. The warranty is void if failure of the Software has resulted from accident, abuse, or misapplication. Any replacement Software under this limited warranty will be warranted for thirty (30) days.
EXCEPT AS EXPRESSLY STATED IN THIS SECTION, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SMARGASY IS PROVIDING AND LICENSING THE SOFTWARE TO YOU “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
8. INTELLECTUAL PROPERTY INDEMNIFICATION.
Smargasy Inc will indemnify and hold You harmless from any third party claim brought against You that the Software, as provided by Smargasy Inc to You under this Agreement and used within the scope of this Agreement, infringes or misappropriates any U.S. patent, copyright, trademark, trade secret, or other intellectual property rights of a third party, provided (i) use of the Software by You is in conformity with the Agreement and Documentation; (ii) the infringement is not caused by modification or alteration of the Software or Documentation; and/or (iii) the infringement was not caused by a combination or use of the Software with products not supplied by Smargasy. Smargasy’s indemnification obligations are contingent upon You: (i) promptly notifying Smargasy in writing of the claim; (ii) granting Smargasy sole control of the selection of counsel, defense, and settlement of the claim; and (iii) providing Smargasy with reasonable assistance, information and authority required for the defense and settlement of the claim. This Section states Smargasy’s entire liability (and shall be Company’s sole and exclusive remedy) with respect to indemnification to Company.
9. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SMARGASY, ITS DIRECTORS, OFFICERS, AGENTS, SUPPLIERS AND LICENSORS, BE LIABLE TO YOU (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) (I) FOR MORE THAN THE AMOUNT OF LICENSE FEES THAT YOU HAVE PAID TO SMARGASY IN THE PRECEDING (12) TWELVE MONTHS FOR THE APPLICABLE SOFTWARE OR (II) FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE,OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST BUSINESS OPPORTUNITIES, LOSS OF USE OF THE SERVICE OFFERING, LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS, OR OTHER ECONOMIC DAMAGE, ARISING OUT OF THIS AGREEMENT OR THE USE OR INABILITY TO USE THE SOFTWARE OR DOCUMENTATION, EVEN IF SMARGASY OR A DEALER AUTHORIZED BY SMARGASY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. Third Party Programs.
To the extent the Software is bundled with third party software programs; these third party software programs are governed by their own license terms, which may include open source or free software licenses. Nothing in this Agreement limits an end user’s rights under, or grants the end user rights that supersede, the terms of any such third party software.
11 . CHOICE OF LAW AND VENUE.
This Agreement shall be governed by the laws of the State of Florida and of the United States, without regard to any conflict of laws provisions, except that the United Nations Convention on the International Sale of Goods shall not apply. The parties agree that the provisions of the Uniform Computer Information Transactions Act shall not apply to this Agreement. You hereby consent to jurisdiction of the courts of both the state or federal courts of Florida.
12. COUNTERPARTS AND FACSIMILE SIGNATURE.
If executed by the parties, the Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which shall constitute one and the same instrument. The Parties may exchange signature pages by email, and such signatures shall effectively bind the Parties.
13. COMPLETE AGREEMENT.
This Agreement, the Smargasy Support and Maintenance Agreement, and the Smargasy Software Services Agreement (if applicable) constitute the entire agreement between the Parties and supersedes all prior or contemporaneous communications, agreements and understandings, written or oral, with respect to the subject matter hereof including without limitation the terms of any party or any purchase order issued in connection with this Agreement. If any provision of this Agreement is held to be unenforceable, that shall not affect the enforceability of the remaining provisions. This Agreement shall not be amended or modified except in a writing signed by authorized representatives of each party.
