END USER LICENSE AGREEMENT
This AGREEMENT is between Ecografx, Inc. hereinafter referred to as ECOGRAFX, and the END USER. The AGREEMENT between the above noted parties consists of these terms and any exhibits or attachments noted in the AGREEMENT. Together these elements will constitute the entire AGREEMENT superseding any and all prior negotiations, correspondence, or agreement’s either written or oral. Any changes to this AGREEMENT must be mutually agreed to in writing.
THE END USER’S USE OF THE SOFTWARE ALSO INDICATES THE END USER’S ASSENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
COPYING OR USE OF THIS SOFTWARE OR ITS DOCUMENTATION EXCEPT AS PERMITTED BY THIS AGREEMENT IS UNAUTHORIZED AND IS COPYRIGHT INFRINGEMENT UNDER THE LAWS OF THE END USER’S COUNTRY. IF THE END USER COPIES OR USES THIS SOFTWARE OR ITS DOCUMENTATION WITHOUT PERMISSION OF ECOGRAFX, THE END USER WILL BE VIOLATING THE LAW. THE END USER MAY BE LIABLE TO ECOGRAFX FOR DAMAGES, AND THE END USER MAY BE SUBJECT TO CRIMINAL PENALTIES.
2. GRANT OF LICENSE
ECOGRAFX grants the END USER a nonexclusive, nontransferable license to use this program (the “Software”) and its manual and other accompanying material (“Documentation”) with equipment owned by the END USER or under the END USER’s control, according to the terms and conditions of this Agreement.
License Term: Subject to the terms and conditions of this Agreement, the license to use the Software is perpetual, except under the following conditions:
a. Trial users are granted a license term in calendar days from the date of installation;
b. Certain Internet-enabled technologies, including but not limited to the downloading of additional content and accessing photos and other content, will be limited to the period of valid registration of the license.
The END USER May Not:
1. copy or use the Software or Documentation except as permitted by this Agreement.
2. reverse engineer, decompile, or disassemble the Software except to the extent permitted by law where this is indispensable to obtain the information necessary to achieve interoperability of an independently created program with the Software or with another program and such information is not readily available from ECOGRAFX or elsewhere.
3. distribute, rent, loan, lease, sell, sublicense, or otherwise transfer all or part of the Software, Documentation or any rights granted hereunder to any other person without the prior written consent of ECOGRAFX.
4. alter in any fashion any portion of the licensing system for the purpose of granting additional users access to the Software, including but not limited to altering of memory variables, alteration of data, removal of key settings, hosting the software on services such as Citrix, etc.
5. remove, alter, or obscure any proprietary notices, labels, or marks from the Software or Documentation.
6. modify, translate, adapt, arrange, or create derivative works based on the Software or Documentation for any purpose.
7. export the Software or Documentation in violation of U.S. or other applicable export control laws.
8. alter the date setting on the computer for the purpose of continuing to operate the Software in a Trial fashion beyond the initial trial period.
Title and copyrights to the Software, Documentation and accompanying materials, if any, and any copies made by the END USER remain with ECOGRAFX and its licensors. The structure, organization, and code of the Software are valuable trade secrets of ECOGRAFX and its licensors. Unauthorized copying of the Software or Documentation, or failure to comply with the above restrictions, will result in automatic termination of this Agreement. This Agreement does not grant the END USER any intellectual property rights.
4. GENERAL LIMITED WARRANTY.
ECOGRAFX warrants that the Software will provide the facilities and functions generally described in the Documentation and that the media on which the Software is furnished, if any, the Documentation accompanying the Software will be free from defects in materials and workmanship under normal use. EXCEPT FOR THE ABOVE EXPRESS LIMITED WARRANTIES, ECOGRAFX MAKES AND THE END USER RECEIVE NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR IN ANY COMMUNICATION WITH THE END USER, AND ECOGRAFX SPECIFICALLY DISCLAIMS ANY OTHER WARRANTY INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ECOGRAFX DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. The above exclusions may not apply to the END USER as some jurisdictions do not allow the exclusion of implied warranties. In addition to the above warranty rights, the END USER may also have other rights, which vary from jurisdiction to jurisdiction.
COMPUTER-AIDED DESIGN SOFTWARE AND OTHER TECHNICAL SOFTWARE ARE TOOLS INTENDED TO BE USED BY TRAINED PROFESSIONALS ONLY. THEY ARE NOT SUBSTITUTES FOR THE END USER’S PROFESSIONAL JUDGMENT. COMPUTER-AIDED DESIGN SOFTWARE AND OTHER TECHNICAL SOFTWARE ARE INTENDED TO ASSIST WITH PRODUCT DESIGN AND ARE NOT SUBSTITUTES FOR INDEPENDENT TESTING OF PRODUCT STRESS, SAFETY AND UTILITY. DUE TO THE LARGE VARIETY OF POTENTIAL APPLICATIONS FOR THE SOFTWARE, THE SOFTWARE HAS NOT BEEN TESTED IN ALL SITUATIONS UNDER WHICH IT MAY BE USED. ECOGRAFX SHALL NOT BE LIABLE IN ANY MANNER WHATSOEVER FOR THE RESULTS OBTAINED THROUGH THE USE OF THE SOFTWARE. PERSONS USING THE SOFTWARE ARE RESPONSIBLE FOR THE SUPERVISION, MANAGEMENT AND CONTROL OF THE SOFTWARE. THIS RESPONSIBILITY INCLUDES, BUT IS NOT LIMITED TO, THE DETERMINATION OF APPROPRIATE USES FOR THE SOFTWARE AND THE SELECTION OF THE SOFTWARE AND OTHER PROGRAMS TO ACHIEVE INTENDED RESULTS. PERSONS USING THE SOFTWARE ARE ALSO RESPONSIBLE FOR ESTABLISHING THE ADEQUACY OF INDEPENDENT PROCEDURES FOR TESTING THE RELIABILITY AND ACCURACY OF ANY PROGRAM OUTPUT, INCLUDING ALL ITEMS DESIGNED BY USING THE SOFTWARE.
6. LIMITATION OF LIABILITY.
IN NO EVENT WILL ECOGRAFX BE LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, INCLUDING LOSS OF DATA, LOST PROFITS, COST OF COVER, OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR DOCUMENTATION, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY. THIS LIMITATION WILL APPLY EVEN IF ECOGRAFX OR ANY ECOGRAFX RESELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE END USER ACKNOWLEDGE THAT THE LICENSE FEE REFLECTS THIS ALLOCATION OF RISK.
THE ABOVE LIMITATIONS MAY NOT APPLY TO THE END USER BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.
B. This Agreement shall be governed by the laws of the State of California, U.S.A., including its Uniform Commercial Code without reference to conflict-of-laws principles. This Agreement is the entire AGREEMENT between ECOGRAFX and the END USER, and supersedes any other communications or advertising with respect to the Software and Documentation.
B. If any provision of this Agreement is found to be invalid or otherwise unenforceable, the further conditions of this Agreement will remain fully effective and the parties will be bound by obligations which approximate, as closely as possible, the effect of the provision found invalid or unenforceable, without being themselves invalid or unenforceable.