End User License Agreement (EULA)
By downloading or using the Software referenced in this Agreement, you have agreed to be bound by the terms and conditions of this End-User License Agreement. If you do not agree to the terms and conditions contained in this End-User License Agreement, terminate the use of this software and remove/delete any and all copies.
This End-User License Agreement (“Agreement”) governs the use of the TagsCollector software and any Updates (as defined below) to that software (collectively, the “Software”) by you as an end user (“Licensee”) of the Software and is a binding agreement between Licensee and TERONUS, INC., a North Carolina corporation with its principal office located at 2650 NC Hwy 66 S, Kernersville, NC 27284 as the licensor (“Licensor”). This Agreement shall be binding upon and inure to the benefit of Licensor and Licensee and their respective successors and permitted assigns. Licensee shall not assign or transfer this Agreement or the license rights granted hereunder without the prior written consent of Licensor. As used herein, the term “Updates” means any correction, modification, revision, addition, or supplement to the Software that modifies the manner in which the Software performs existing functions that is provided by the Licensor as part of an active Support Services contract and that the Licensor makes generally available to its Support Services customers.
- Ownership of Software. Licensee is being provided a limited license to use the Software in the manner described below. Licensor and its licensors are the sole owner of the Software and any and all related documentation and of all copyright, trade secret, patent, trademark and other intellectual or industrial property rights in and to the Software. Licensee acknowledges that the license granted hereunder does not provide Licensee with title to or ownership of the Software or any copies thereof, but only a right of limited use consistent with the express terms and conditions of this Agreement. Licensee shall have no rights to the source code for the Software. Nothing herein shall be deemed to constitute a sale of the original or any copies of the Software.
2. License Grant and Unauthorized Use.
- License Grant. Licensor hereby grants to Licensee a non-exclusive, fully paid, perpetual license for the Software and related documentation in accordance with terms and conditions hereof. A designated computer registration code or hardware key (dongle) will be authorized by an official of Licensor when a copy of the Software is purchased. Each copy of the Software will be authorized to run on a single server, with each copy of the application providing data to a single web-based user portal installed locally on the same server. There is no restriction on the number of client devices (user connections) allowed to simultaneously access a licensed server and no fixed limit on the number of device tags that can be monitored by the Software.
- License Terms. In consideration of full payment of the Software license fee and subject to Licensee’s compliance with its obligations under this Agreement, Licensor grants to Licensee and Licensee hereby accepts from Licensor a non-exclusive and non-transferable right and license to concurrently access the Software on that number of computers, processors, servers, terminals, and other computer equipment (“Physical Machines”) or software-based virtual servers, computers and processors (“Virtual Machines”) equal to the number of licenses purchased by Licensee.
- Trial Version of Software. The trial version of the Software made available by Licensor (the “Trial Software”) may be limited in regards to the number of data tags that the Software can monitor but has no inherent limitations placed on the installation time or runtime period. Such Trial Software may be installed on Licensee’s computer network, free of charge, provided however, Licensee shall use such Trial Software solely for non-production testing and evaluation purposes.
- Customizable user interface. The Software is provided with numerous ASP.NET webpage templates for assisting in the rapid development of a customized user interface/website for the Software. The source code provided within each templet is supplied on a non-exclusive basis and can be freely modified and customized by the Licensee provided that the resulting code is only used as an interface for the Software covered under this agreement.
- Unauthorized Use. Licensee may not: (i) attempt to circumvent any licensing restriction contained in the Software; (ii) sell, assign, loan, rent, lease, sublease, sublicense, transfer, translate, modify, alter, adapt, decompile, or disassemble the Software, modify or create derivative works based on the Software or otherwise reverse engineer the Software; (iii) remove, alter, cover or obfuscate any copyright, trade secret, patent, trademark, logo, proprietary and/or other legal notice placed on or displayed by the Software and its documentation, whether in machine language or human readable form; or (iv) copy or otherwise reproduce the Software in whole or in part.
Failure to comply with this Section 2 or using the Software in any way except as expressly authorized herein will result in an immediate and automatic termination of Licensee’s license and will make available to Licensor all other legal and equitable remedies.
3. Support Services. Licensor is not obligated to provide any support services for the Software under this EULA. Licensee has no rights to any updates, upgrades or enhancements to the Software unless purchased under a separate software support service agreement.
4. Third Party Software. The software licensed hereunder may include certain third-party software products (“Third Party Software”) which require additional notices, disclaimers, and/or terms and conditions. Such additional Third-Party Software notices, disclaimers and/or terms and conditions are included in the product installation folder and, to the extent applicable, are hereby made a part of and are incorporated by reference into this Agreement. By accepting this Agreement, Licensee is also accepting applicable notices, disclaimers, terms and conditions, if any, set forth therein.
5. Limited Warranty. Licensor warrants that during the “Warranty Period,” the Software shall substantially conform to the product documentation. The Warranty Period for perpetual licenses is a period 90 days from the date of initial shipment of the Software and for subscription license is the same as the term of the subscription.
Licensor’s entire liability and Licensee’s exclusive remedy for any breach by Licensor of the warranty above shall be, at Licensor’s sole discretion, either to (a) replace the applicable Software, or (b) use diligent efforts to repair the Software or (c) refund the applicable prepaid license fees. Notice of the error must be received by Licensor within the Warranty Period.
EXCEPT AS EXPRESSLY STATED IN THIS SECTION, LICENSOR DISCLAIMS (AND LICENSEE WAIVES) ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE AND FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, FOR THE SOFTWARE AND ALL CHANNEL SALES PROGRAM WRITTEN MATERIALS AND/OR ANY WARRANTY THAT LICENSEE WILL ACHIEVE ANY PARTICULAR RETURN ON INVESTMENT. LICENSEE IS SOLELY RESPONSIBLE FOR ANY RESULTS OBTAINED FROM USING THE SOFTWARE, INCLUDING THE ADEQUACY OF INDEPENDENT TESTING OF RELIABILIY, SECURITY AND ACCURACY OF ANY ITEM DESIGNED USING SOFTWARE. LICENSOR DOES NOT WARRANT THAT THE OPERATION OR OTHER USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE OR WILL NOT CAUSE DAMAGE OR DISRUPTION TO LICENSEE’S DATA, COMPUTERS, OR NETWORKS.
The warranty provisions above state the entire liability of Licensor, its subsidiaries and affiliates, and each of their respective directors, officers, employees or agents, with respect to the Software and Support Services, including (without limitation) any liability for breach of warranty.
The software may be used to access and transfer information over the internet or be used in connection with hardware and other products that are connected to the internet. Licensee acknowledges and agrees that Licensor and its licensors do not operate or control the internet and that: (i) viruses, worms, trojan horses, or other undesirable data or software; or (ii) unauthorized users (e.g., hackers) may attempt to obtain access to and damage your data, web-sites, computers, or networks. Licensor and its licensors will not be responsible for those activities.
6. High Risk Use. Licensee understands and agrees that the software licensed hereunder is not fault-tolerant and is not designed, manufactured or intended for use in hazardous environments or life safety systems requiring fail-safe performance in which the failure of the Software could lead to death, personal injury, or severe physical or environmental damage (“High Risk Activities”). Licensee shall indemnify Licensor and its licensors from all losses, claims, damages, costs, attorneys’ fees and other expenses relating to such High-Risk Activities.
7. Limitation of Liability. LICENSEE UNDERSTANDS AND AGREES THAT LICENSOR’S CUMULATIVE LIABILITY TO LICENSEE FOR ANY AND ALL LOSSES, CLAIMS, SUITS, CONTROVERSIES, BREACHES AND/OR DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT AND/OR THE SOFTWARE, REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY, SHALL BE LIMITED TO (I) FOR LICENSES PURCHASED ON A PERPETUAL BASIS, THE FEES PAID BY LICENSEE FOR THE SOFTWARE OR SUPPORT SERVICES THAT GAVE RISE TO THE CLAIM, AND (II) FOR LICENSES PURCHASED ON A TEAM OR IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO DAMAGES. IN NO EVENT SHALL LICENSOR AND ITS AFFILIATES, RESELLERS, DISTRIBUTORS AND LICENSORS OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, PUNITIVE, INCIDENTAL OR SIMILAR DAMAGES OF ANY KIND WHATSOEVER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTIONS, LOSS OF BUSINESS DATA, LOSS OF USE DAMAGES, LOSS OF GOODWILL, LOSS OF BUSINESS OPPORTUNITY, LOSS OF SALES, LOSS OF REPUTATION OR LOSS OF ANTICIPATED SAVINGS, ANY LOSS OR INACCURACY OF DATA OR BUSINESS INFORMATION OR FAILURE OR INADEQUACY OF ANY INABILITY TO USE THE SOFTWARE, EVEN IF LICENSOR HAS BEEN ADVISED OF, OR OTHERWISE SHOULD HAVE BEEN AWARE OF, THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE LEGAL THEORY OR BASIS FOR SUCH A CLAIM. SOME JURISDICTIONS DO NOT ALLOW DISCLAIMERS OF IMPLIED WARRANTIES OR LIMITATIONS ON LIABILITY, SO THESE LIMITATIONS MAY NOT APPLY TO LICENSEE.
8. Support and Maintenance. Licensor and/or its authorized subcontractors shall provide Support Services in accordance with these terms for a time period of one year or for such other period specified in Licensee’s order for Support Services.
9. Modifications to Application. Licensor reserves the right to modify, suspend or discontinue, temporarily or permanently, support for the Application or any service to which it connects, with or without notice and without liability to Licensee.
10. Product Suggestions. If Licensee, in its sole discretion, provides any product suggestion, feedback for additions, changes, or improvements to the software, then Licensor will exclusively own all right, title, and interest in and to such suggestions. Licensor will be entitled to use such suggestions in products, development tools, or services, without restriction or compensation to Licensee. Licensee hereby assigns all right, title and interest in and to the product suggestions to Licensor.
11. Term and Termination. Upon termination of this Agreement or the license granted hereunder, Licensee will cease using the Software, will delete the Software, including the License File(s), from its computer and will either return to Licensor or destroy the Software, including the License File(s), Documentation, packaging and all copies thereof. If Licensee elects to destroy the Software then Licensee will certify in writing to Licensor the destruction of the Software. Termination of this Agreement and return or destruction of the Software will not limit either party from pursuing other remedies available to it, including injunctive relief, nor will such termination relieve Licensee’s obligation to pay all fees and expenses that have accrued or are otherwise owed by Licensee under this Agreement, any Order Form, and/or any purchase order from Licensee which has been received and accepted by Licensor.
12. Severability. If a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be amended to achieve as nearly as possible the intent of the parties, and the remainder of this Agreement will remain in full force and effect. The waiver by either party of a breach of any provision of this Agreement in one instance shall not operate or be construed as a waiver of any subsequent breach of the same provision or any other provision of this Agreement.
13. Amendments to this Agreement. Licensor reserves the right, at its sole discretion, to modify or replace this Agreement at any time. If a revision is material, Licensor will provide at least 60 days' notice prior to any new terms taking effect. What constitutes a material change will be determined at Licensor’s sole discretion.
14. Multiple Originals/Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be enforceable, and all of which together shall constitute one agreement. Facsimile or electronic signatures on this Agreement by a Party shall be binding upon such Party as if it were an original.
(a) Orders and Taxes. Licensee shall be obligated to pay the applicable fees for the Software and/or Support Services ordered. All fees and other charges due hereunder are due and payable in full within 30 days of the date of the invoice to Licensee, or later if specified on the invoice. Licensee shall be responsible for all sales, use, VAT, transfer and other taxes and duties imposed by any federal, state, municipal or other governmental authority relating to the Software granted or the Support Services provided hereunder, exclusive, however, of taxes based on the net income of Licensor. CUSTOMER MAY NOT CANCEL AN ORDER ONCE LICENSOR HAS ACCEPTED IT. Other than the line items that serve to order Software and/or Support Services, in no event shall any other terms of any Licensee purchase order or vendor agreement modify or become part of this Agreement or become binding on Licensor.
(b) Governing Law. No provision of this Agreement shall be amended, supplemented or waived except by written agreement signed by the parties hereto. This Agreement shall be governed by and construed under the laws of North Carolina without regard for or resort to its conflict of laws principles.
(c) Compliance with Laws. Each party shall be responsible for its own compliance with applicable laws, regulations, and other legal requirements relating to the conduct of its business and this Agreement. Further, Licensee represents and warrants that it will use the Software, as well as related technology and services, in full compliance with applicable laws and regulations. Licensee hereby warrants and represents that neither Licensee nor any of Licensee’s directors, officers, or affiliates are listed on the U.S. Commerce Departments Denied Persons List, Entity List, or Unverified List, the U.S. State Department’s Nonproliferation Sanctions List, the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons or the Sectoral Sanctions Identifications (SSI) List.
(d) Marketing. Licensee agrees that while this Agreement is in effect, Licensor shall be authorized to identify Licensee as a customer/end-user of Licensor software and services (as applicable) in public relations and marketing materials.
(e) Government Licenses. If Licensee is a United States Governmental entity, Licensee agrees that the Software are “commercial computer software” under the applicable federal acquisition regulations and are provided with the commercial license rights and restrictions described elsewhere herein. If Licensee is acquiring the Software under a United States government contract, Licensee agrees that Licensee will include all necessary and applicable restricted rights legends on the Software to protect Licensor’s proprietary rights under the FAR or other similar regulations of other federal agencies. Licensee agrees to always include such legends whenever the Software are, or are deemed to be, a deliverable under a government contract.