NUMIFEX BETA END USER LICENSE AGREEMENT
THIS NUMIFEX BETA END USER LICENSE AGREEMENT (this “Agreement”) is a binding agreement between you and Pyrofex Corporation (“Company”). This Agreement governs your download, installation, access and use of Numifex Beta, including any and all Updates (defined below) and Documentation (defined below) relating thereto (collectively, the “Beta Software”). The Beta Software is licensed, not sold. Any rights not clearly and expressly granted to you under this Agreement are reserved to Company.
PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING THE “AGREE” OR “ACCEPT” BUTTON OR CHECKBOX AND/OR DOWNLOADING AND/OR INSTALLING AND/OR ACCESSING AND/OR OTHERWISE USING THE BETA SOFTWARE, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND FULLY UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) UNCONDITIONALLY ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS; PROVIDED, THAT IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU” OR “YOUR” HEREIN REFER TO SUCH ENTITY AND ALL PERSONS ACTING FOR OR ON BEHALF OF SUCH ENTITY.
IF YOU DO NOT HAVE THE AUTHORITY OR IF YOU DO NOT AGREE TO THIS AGREEMENT IN ITS ENTIRETY, COMPANY WILL NOT AND DOES NOT LICENSE THE BETA SOFTWARE TO YOU, AND YOU MUST NOT DOWNLOAD OR INSTALL OR ACCESS OR OTHERWISE USE THE BETA SOFTWARE.
1. License Grant and Scope. Subject to and conditioned upon your full payment of the Fees (defined below) in advance and your strict compliance with all terms and conditions set forth in this Agreement, Company hereby grants you a limited, non-exclusive, non-transferable, non-sublicensable license during the Term (defined below) to download, install, access and use the Beta Software for beta evaluation and/or commercial use on a computing device or platform owned or leased or otherwise controlled by you (“Device”).
2. License Fee and Payment. The license and all rights granted to you under this Agreement are subject to and conditioned upon your payment of a license fee to the Company in the amount of ONE HUNDRED FORTY-NINE DOLLARS AND NINETY-NINE CENTS ($149.99) (the “License Fee”) plus all sales, use, excise taxes, and any other similar taxes, duties, and charges of any kind imposed by and federal, state, or local governmental or regulatory authority on the License Fee (the “Taxes”). The License Fee and the Taxes are referred to collectively herein as the “Fees”. The Fees must be paid in full in advance, without offset or deduction, and are non-refundable.
3. Use Restrictions. You shall not under any circumstances, directly or indirectly: (a) copy the Beta Software in whole or in part; (b) modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Beta Software or any part thereof; (c) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Beta Software or any part thereof; (d) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Beta Software, including any copy thereof; (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, or transfer the Beta Software or any features or functionality of the Beta Software, to any third party for any reason; (f) use the Beta Software for purposes of competitive analysis of the Beta Software, the development of a competing software product or service, or any other purpose that is to Company’s commercial disadvantage; or (g) use the Beta Software in violation of any law, regulation, or rule. The Beta Software may contain and Company may activate and use, without any resulting obligation, liability or penalty to you or any third party, technological copy protection, encoded commands, automatic disabling mechanisms or other security features designed to prevent unauthorized use of the Beta Software, including features to protect against any use of the Beta Software that is prohibited under this Section 3. You shall not, and shall not attempt to, remove, disable, circumvent, or otherwise create or implement any workaround to, any such copy protection, encoded commands, automatic disabling mechanisms or security features.
4. Responsibility for Use of Beta Software. You are responsible and liable for all uses of the Beta Software through access thereto provided by you, directly or indirectly. Specifically, and without limiting the generality of the foregoing, you are responsible and liable for all actions and failures to take required actions with respect to the Beta Software by you or by any other person or entity to whom you may provide access to or use of the Beta Software, whether such access or use is permitted by or in violation of this Agreement.
5. Beta Version. THE BETA SOFTWARE IS A BETA VERSION THAT HAS NOT BEEN FULLY TESTED FOR COMMERCIAL USE AND MAY CONTAIN ERRORS AND OMISSIONS. DOWNLOADING, INSTALLING, ACCESSING, AND USING THE BETA SOFTWARE ARE EACH ENTIRELY AT YOUR OWN RISK. Company has no obligation under this Agreement to provide any maintenance, support or other services relating to the Beta Software. You are solely responsible for taking appropriate measures to back up your Device and data and all other necessary measures to prevent any file or data loss. Company may from time to time in its sole discretion provide end user documentation relating to the installation, operation, use or technical specifications of the Beta Software (“Documentation”), but has no obligation to do so. Company may from time to time in its sole discretion develop and provide Beta Software updates, which may include upgrades, modifications, revisions, bug fixes, patches and other error corrections as Company makes generally available free of charge to all licensees of the Beta Software (“Updates”), but has no obligation to do so. Updates may modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Documentation or Updates at all or for any particular issues or to continue to provide or enable any particular features or functionality. In the event Company provides any Updates, either the Beta Software will automatically download and install all available Updates, or you will receive notice of or be prompted to download and install all available Updates. You agree to promptly download and install all Updates and acknowledge and agree that the Beta Software or portions thereof may not properly operate should you fail to do so. You agree that all Updates will be deemed Beta Software, and related documentation will be deemed Documentation, all subject to all terms and conditions of this Agreement and applicable law. UPDATES DO NOT INCLUDE ANY NEW VERSION OR NEW RELEASE OF THE BETA SOFTWARE THAT COMPANY MAY ISSUE AS A SEPARATE OR NEW PRODUCT, AND COMPANY MAY IN ITS SOLE DISCRETION DETERMINE WHETHER ANY SUCH ISSUANCE QUALIFIES AS A NEW VERSION, NEW RELEASE, OR UPDATE.
6. New Version; New Release. YOU ACKNOWLEDGE AND AGREE THAT YOU MAY BE REQUIRED TO PAY ADDITIONAL FEES TO DOWNLOAD, ACCESS, INSTALL AND USE A NEW VERSION OR NEW RELEASE OF THE BETA SOFTWARE. FURTHERMORE, YOU ACKNOWLEDGE AND AGREE THAT THE BETA SOFTWARE MAY AUTOMATICALLY DISABLE UPON THE COMPANY MAKING AVAILABLE SUCH NEW VERSION OR NEW RELEASE, AND THE BETA SOFTWARE MAY REMAIN DISABLED UNLESS AND UNTIL YOU (A) PAY THE ADDITIONAL FEES REQUIRED TO DOWNLOAD, INSTALL, ACCESS, AND USE SUCH NEW VERSION OR NEW RELEASE, AND (B) AGREE TO THE END USER LICENSE AGREEMENT ASSOCIATED WITH SUCH NEW VERSION OR NEW RELEASE.
7. Term. The term of this Agreement (the “Term”) commences upon the earlier of when you (a) click the “agree” or “accept” button or checkbox or otherwise acknowledge your acceptance of this Agreement, or (b) download, install, access, or otherwise use the Software, and in any event will remain in full force until terminated as set forth in Section 8.
8. Termination. This Agreement will terminate immediately and automatically, without notice and without Company incurring any obligation, liability or penalty by reason of such termination, in the event that you violate any of the terms and conditions of this Agreement and/or applicable law. Otherwise, you may terminate this Agreement at any time by ceasing to use and deleting the Software from your Device. In the event this Agreement terminates due to your violation of any of the terms and conditions of this Agreement and/or applicable law, then upon such termination the license and all rights granted to you under this Agreement will also terminate, and you must cease all use of the Software and delete the Software from your Device. Termination shall not limit any of Company’s rights or remedies at law or in equity.
9. Collection and Use of Information. You acknowledge and agree that Company may, directly or indirectly through the services of third parties, collect and store information regarding use of the Beta Software and about equipment on which the Beta Software is installed or through which it otherwise is accessed and used, and that Company may use such information for any purpose related to any use of the Beta Software, including but not limited to improving the performance of the Beta Software or developing Updates, and verifying compliance with the terms of this Agreement and enforcing the Company’s rights, including all Intellectual Property Rights (defined below) in and to the Beta Software. You acknowledge that you may be required to provide certain information about yourself as a condition to downloading, installing, accessing or using the Beta Software or certain of its features or functionality.
10. Third-Party Products. The Software may include software, content, data, or other materials, including related documentation, that are owned by persons or entities other than Company (“Third Party Products”) and that are provided to you on licensee terms that are in addition to and/or different from those contained in this Agreement. If you do not agree to abide by the applicable terms for such Third-Party Products, then you should not download, install, access or use such Third-Party Products or the Beta Software. Any breach by you of any applicable terms of such Third-Party Products is also a breach of this Agreement.
11. Intellectual Property Rights. You acknowledge and agree that the Beta Software is provided under license, and not sold, to you. You do not acquire any ownership interest whatsoever in the Beta Software under this Agreement, or any other rights thereto other than to use the Beta Software in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement and applicable law. Except as expressly granted to you in this Agreement, Company and its licensors and service providers reserve and shall retain its/their entire right, title and interest in and to the Beta Software and any and all intellectual property rights arising out of or relating to the Beta Software, including any and all registered or unregistered intellectual property rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world (“Intellectual Property Rights”). You agree to safeguard all Beta Software from infringement, misappropriation, theft, misuse, or unauthorized access, and to promptly notify Company if you become aware of any infringement of the Company’s Intellectual Property Rights in the Beta Software and to fully cooperate with Company in any legal action taken by Company to enforce its Intellectual Property Rights.
12. Feedback. If you or your employees, contractors, agents or any other person acting for or on your behalf sends or transmits any communications or materials to Company by mail, email, web-based tools, telephone, or otherwise, suggesting or recommending changes to the Beta Software, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Company is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. You hereby irrevocably assign to Company on your behalf, and on behalf of your employees, contractors, agents and/or any other person acting for or on your behalf, all right, title, and interest in, and Company is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Company is not required to use any Feedback.
13. Disclaimer of Warranties. THE BETA SOFTWARE IS PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE BETA SOFTWARE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE BETA SOFTWARE WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, SOFTWARE SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
14. Limitations of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY FOR ANY OF THE FOLLOWING ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE BETA SOFTWARE:
(a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES;
(b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO THE COMPANY FOR THE BETA SOFTWARE.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. IN SUCH INSTANCES, COMPANY MAY BE LIABLE TO YOU (1) WITHOUT LIMITATION FOR DAMAGES YOU HAVE INCURRED UNDER OR IN CONNECTION WITH THIS AGREEMENT ONLY IF THE DAMAGE HAS BEEN CAUSED BY THE WILLFUL OR GROSSLY NEGLIGENT ACT OF COMPANY; AND (2) FOR THOSE TYPICAL DAMAGES THAT WERE REASONABLY FORESEEABLE AND WHICH HAVE BEEN CAUSED BY ANY OTHER NEGLIGENT BREACH OF AN ESSENTIAL CONTRACTUAL DUTY BY COMPANY. ANY FURTHER LIABILITY OF COMPANY IS EXCLUDED. THESE AFOREMENTIONED LIMITATIONS APPLY IRRESPECTIVE OF THEIR LEGAL BASIS, IN PARTICULAR WITH REGARD TO ANY PRE-CONTRACTUAL OR AUXILIARY CONTRACTUAL CLAIMS.
15. No Liability for Open Source Materials. THE BETA SOFTWARE MAY CONTAIN “OPEN SOURCE” MATERIALS (E.G., ANY SOFTWARE SUBJECT TO OPEN SOURCE, COPYLEFT, GNU GENERAL PUBLIC LICENSE, LIBRARY GENERAL PUBLIC LICENSE, LESSER GENERAL PUBLIC LICENSE, MOZILLA LICENSE, BERKELEY BETA SOFTWARE DISTRIBUTION LICENSE, OPEN SOURCE INITIATIVE LICENSE, MIT, APACHE OR PUBLIC DOMAIN LICENSES, OR SIMILAR LICENSE). COMPANY MAKES NO WARRANTIES, AND SHALL HAVE NO LIABILITY, DIRECT OR INDIRECT, WHATSOEVER WITH RESPECT TO OPEN SOURCE MATERIALS CONTAINED IN THE BETA SOFTWARE.
16. Indemnification. You agree to indemnify, defend and hold harmless Company and its affiliates and its/their directors, officers, employees, shareholders, agents, representatives, attorneys, affiliates, successors and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees and costs, arising from or relating to your use or misuse of the Beta Software or your breach of this Agreement or applicable law.
17. Export Regulation. The Beta Software may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export or release the Beta Software to, or make the Beta Software accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. You shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Beta Software available outside the US.
18. US Government Rights. The Beta Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Beta Software as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
19. Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Utah, USA, without giving effect to any choice or conflict of law provision or rule. Any legal suit, action or proceeding arising out of or related to this Agreement or the Beta Software shall be instituted exclusively in the federal courts of the United States located in Salt Lake City, Utah or the courts of the State of Utah located in Utah County or Salt Lake County; provided, however, that this provision shall not restrict Company’s right to bring any suit, action or proceeding against you in the jurisdiction where you are located or any other relevant jurisdiction. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts. This Agreement specifically excludes the United Nations Convention on Contracts for the International Sale of Goods and any legislation implementing such ‘Convention’, if otherwise applicable.
20. Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE BETA SOFTWARE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
21. Severability; Headings. If and to the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof shall be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable but only to the extent of its illegality, invalidity, or unenforceability and shall be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties, and all other provisions of this Agreement will continue in full force and effect. The headings in this Agreement are for convenience only and shall not limit or otherwise affect the meaning hereof.
22. Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder.
23. Survival. The rights and obligations of the parties set forth in this Section 23 (Survival), Section 11 (Intellectual Property Rights), Section 13 (Disclaimer of Warranties), Section 14 (Limitations of Liability), Section 15 (No Liability for Open Source Materials), Section 16 (Indemnification), Section 19 (Governing Law), Section 20 (Limitation of Time to File Claim), Section 21 (Severability), Section 22 (Waiver), and Section 24 (Entire Agreement), and any right, obligation or required performance of the parties in this Agreement which by its express terms or nature and context is intended to survive termination or expiration of this Agreement, will survive any such termination or expiration.
24. Entire Agreement. This Agreement constitutes the entire agreement between you and Company with respect to the Beta Software and supersedes all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Beta Software. No modifications or amendments to this Agreement will be binding upon Company unless made in writing and duly executed by you and an authorized representative of Company.