End User License Agreement
NOTICE TO USER: PLEASE READ THIS CONTRACT CAREFULLY. BY USING ALL OR ANY PORTION OF THE SOFTWARE YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING, IN PARTICULAR THE LIMITATIONS ON: USE CONTAINED IN GRANT OF LICENSE; DESCRIPTION OF REQUIREMENTS, RESTRICTIONS, AND LIMITATIONS; INTELLECTUAL PROPERTY; HIGH RISK ACTIVITIES; EXCLUSION OF WARRANTY ON RAPIDSKETCH™ SOFTWARE; LIMITATIONS OF LIABILITY; COPYRIGHT; and SEVERABILITY. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE, DO NOT USE THIS SOFTWARE. IF YOU ACQUIRED THE SOFTWARE ON TANGIBLE MEDIA (e.g. CD) WITHOUT AN OPPORTUNITY TO REVIEW THIS LICENSE AND YOU DO NOT ACCEPT THIS AGREEMENT, YOU MAY OBTAIN A REFUND OF ANY AMOUNT YOU ORIGINALLY PAID IF YOU: (A) DO NOT USE THE SOFTWARE AND (B) RETURN IT, WITH PROOF OF PAYMENT, TO THE LOCATION FROM WHICH IT WAS OBTAINED. YOU, THE PERSON AGREEING TO THIS EULA WILL HEREINAFTER BE REFERRED TO AS “LICENSEE”. This Agreement, made and entered into this day, by and between UTILANT LLC, a limited liability companyduly organized and existing under the laws of the State of New York and having its principal office at 69 West Chippewa St Suite 200, Buffalo, NY 14202 (hereinafter referred to as UTILANT) and the LICENSEE. IMPORTANT-READ CAREFULLY: This End-User License Agreement (“EULA”) is a legal agreement between LICENSEE and UTILANT, the owner and licensor of the RAPIDSKETCH™ SOFTWARE. This EULA covers the RAPIDSKETCH™ SOFTWARE. The RAPIDSKETCH™ SOFTWARE includes computer software, whether stored on any media or downloaded from the designated site of UTILANT for RAPIDSKETCH™ SOFTWARE users – www.utilant.com (“UTILANT Site”), the associated media, any printed materials, and any “on-line” or electronic documentation and all updates and upgrades thereto. By installing, copying or otherwise using the RAPIDSKETCH™ SOFTWARE, LICENSEE agrees to be bound by the terms of this EULA. If LICENSEE does not agree to the terms of this EULA, UTILANT is unwilling to license the RAPIDSKETCH™ SOFTWARE to LICENSEE. In such event, LICENSEE should not use or copy the RAPIDSKETCH™ SOFTWARE.
WHEREAS, UTILANT has the right to grant licenses to RAPIDSKECH™ SOFTWARE and is willing to grant a license hereunder to LICENSEE; and,
WHEREAS, LICENSEE is desirous of obtaining certain rights and licenses from UTILANT relating to the aforementioned technology;
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein, the parties hereto agree as follows:
UTILANT SOFTWARE LICENSE. The RAPIDSKETCH™ SOFTWARE is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The RAPIDSKETCH™ SOFTWARE is licensed, not sold.
GRANT OF LICENSE. This License grants LICENSEE the following right: Software – LICENSEE may install and use the RAPIDSKETCH™ SOFTWARE on one compatible computer in compliance with the terms and conditions of this EULA.
REPORTS AND RECORDS. LICENSEE shall keep full, true and accurate books of account containing all particulars which may be necessary for the purpose of showing the any additional amount payable to UTILANT by way of royalty as aforesaid. Said books of accounts shall be kept at LICENSEE’S principal place of business. . Said books and the supporting data shall be open at all reasonable times, for five (5) years following the end of the calendar year to which they pertain, to the inspection of UTILANT and/or of an independent certified public accountant retained by UTILANT and/or a certified public accountant employed by UTILANT, for the purpose of verifying LICENSEE’S royalty statement or compliance in other respects with this license. Utilant shall record the number of copies of the RAPIDSKETCH™ program licensed to LICENSEE.
DESCRIPTION OF REQUIREMENTS, RESTRICTIONS, AND LIMITATIONS.
Limitation on Reverse Engineering, Decompilation and Disassembly. LICENSEE may not modify, reverse engineer, decompile, disassemble or attempt to create the source code from the object code of the RAPIDSKETCH™ SOFTWARE in whole or in part. LICENSEE agrees not to export the RAPIDSKETCH™ SOFTWARE, either directly or indirectly to any country that is the subject of U.S. export restrictions.
Sublicense. LICENSEE may not sublicense, relicense, assign, grant, or in any other way transfer any of the rights granted in this EULA to any other party without written permission of UTILANT. LICENSEE may not rent or lease the RAPIDSKETCH™ SOFTWARE to any other party without written permission of UTILANT LICENSEE agrees to forward to UTILANT a copy of any proposed sublicense or other transfer agreement for review and approval by UTILANT.
Termination. Without prejudice to any other rights, UTILANT may terminate this EULA if LICENSEE fails to comply with the terms and conditions of this EULA. In such event, LICENSEE must destroy and/or uninstall all copies of the RAPIDSKETCH™ SOFTWARE and all of its component parts. If LICENSEE shall become bankrupt or insolvent and/or if the business of LICENSEE shall be placed in the hands of a received assignee or trustee for the benefit of creditor, whether by the voluntary act of LICENSEE or otherwise, LICENSEE shall immediately notify UTILANT and UTILANT shall thereupon have the right to terminate this Agreement by giving written notice to LICENSEE of such termination and specifying the effective date thereof, which shall be at least thirty (30) days after the date the notice is mailed by UTILANT. Such notice shall be sent to LICENSEE by certified mail at an address designated as provided in the PAYMENTS, NOTICE AND OTHER COMMUNICATIONS section below, or to such other address as LICENSEE may designate from time to time in writing by notice to UTILANT, and the rights, privileges, and license granted hereunder shall thereupon immediately terminate and neither party shall have any rights, duties or obligations hereunder except as may have then accrued under this Agreement. LICENSEE may terminate this EULA at any time by destroying the software and related documentation or by sending it to UTILANT LLC, 69 West Chippewa St Suite 200, Buffalo, NY 14202. UTILANT may terminate this EULA for convenience upon providing thirty (30) days notice before the termination. Upon such termination, UTILANT will refund the original license cost to the LICENSEE, LICENSEE shall certify that the RAPIDSKETCH™ SOFTWARE and related documentation and any and all copies thereof are destroyed or sent to UTILANT LLC, 69 West Chippewa St Suite 200, Buffalo, NY 14202.
Notice and Assistance. LICENSEE agrees to reasonably notify and assist UTILANT in case LICENSEE learns of illegitimate use or any violation of the title or copyright with respect to the RAPIDSKETCH™ SOFTWARE below. Such notice may be directed either to the UTILANT Help Desk (888-884-5268) or to the support link on the UTILANT Site.
INTELLECTUAL PROPERTY. All title and copyright in and to the RAPIDSKETCH™ SOFTWARE (including but not limited to any images, photographs, animation, video, audio, music, text and source code, incorporated into the RAPIDSKETCH™ SOFTWARE), and any copies of the RAPIDSKETCH™ SOFTWARE, and all derivative works thereof, are owned by UTILANT or its suppliers. All rights not specifically granted under this EULA are reserved by UTILANT.
HIGH RISK ACTIVITIES. The RAPIDSKETCH™ SOFTWARE is not fault-tolerant and is not designed, manufactured or intended for use or resale as on-line control equipment in hazardous environments requiring fail-safe performance, including, but not limited to, the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the RAPIDSKETCH™ SOFTWARE could lead to death, personal injury, or severe physical or environmental damage (“High Risk Activities”). UTILANT and its suppliers specifically disclaim any express or implied warranty of fitness for High Risk Activities.
PRODUCT MANUALS/INSTRUCTIONAL VIDEOS/DOCUMENTATION LICENSEE warrants that LICENSEE has read any manuals and/or other instructional or training documentation provided by UTILANT for LICENSEE’S RAPIDSKETCH™ SOFTWARE and is familiar with their warnings and instructions. Before any installation or setup, LICENSEE should carefully review all relevant product instructional material. For all other questions concerning product installation and network setup, please contact UTILANT by phone (888-884-5268) or by email (email@example.com).
EXCLUSION OF WARRANTY ON RAPIDSKETCH™ SOFTWARE. LICENSEE expressly acknowledges and agrees that use of the RAPIDSKETCH™ SOFTWARE is at its sole risk. The RAPIDSKETCH™ SOFTWARE is provided “AS IS” and without warranty of any kind and UTILANT, its vendors and UTILANT’S licensors (hereinafter, UTILANT, its vendors and UTILANT’S licensors shall be collectively referred to as “UTILANT”) EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. UTILANT DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE RAPIDSKETCH™ SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS, OR THAT THE OPERATION OF THE RAPIDSKETCH™ SOFTWARE WILL BE CORRECTED. FURTHERMORE, UTILANT DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE RAPIDSKETCH™ SOFTWARE IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY UTILANT OR A UTILANT AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.
LIMITATION OF LIABILITY. UTILANT’S (INCLUDING ITS AFFILIATES) TOTAL CUMULATIVE LIABILITY TO LICENSEE UNDER THIS AGREEMENT, INCLUDING ANY AWARD OF ATTORNEY’S FEES OR COSTS, FOR ANY AND ALL CLAIMS WHENEVER MADE, WHETHER IN CONTRACT, TORT OR OTHERWISE, OR RELATED TO ANY ONE EVENT OR CONNECTED SERIES OF EVENTS, SHALL BE LIMITED TO AND SHALL NOT EXCEED THE FEES ACTUALLY RECEIVED BY UTILANT FROM LICENSEE DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD TO WHICH SUCH LIABILITY RELATES, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS IMPOSED. UTILANT SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY RELATED TO THE RAPIDSKETCH™ SOFTWARE OR THIS AGREEMENT. SUCH DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA, LOSS OF USE OF THE PRODUCT OR ANY ASSOCIATED EQUIPMENT, DOWN TIME AND USER’S TIME, EVEN IF UTILANT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
COPYRIGHT. LICENSEE agrees to comply with all applicable copyright protection laws in connection with its use of the RAPIDSKETCH™ SOFTWARE. In addition to the terms provided in this EULA, UTILANT may take appropriate measures to protect the copyright of the contents produced by the use of the RAPIDSKETCH™ SOFTWARE. UTILANT reserves the right to amend this EULA at its sole discretion by indicating the amendment at the UTILANT site or taking other appropriate measures.
SEVERABILITY. If any part of this EULA is held invalid or unenforceable, the other parts will remain valid.
MISCELLANEOUS PROVISIONS. This Agreement shall be construed, governed, interpreted and applied in accordance with the laws of the State of New York, U.S.A. The parties hereto acknowledge that this instrument sets forth the entire Agreement and understanding of the parties hereto as to the subject matter hereof, and shall not be subject to any change or modification except by the execution of a written instrument signed to by the parties hereto. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS EULA, LICENSEE MUST UNINSTALL THE RAPIDSKETCH™ SOFTWARE, TOGETHER WITH ANY SOFTWARE LICENSEE OBTAINED FROM THE UTILANT WEBSITE. Should LICENSEE have any questions concerning this EULA or this limited warranty, LICENSEE may contact UTILANT by writing to them at UTILANT LLC, 69 West Chippewa St Suite 200, Buffalo, NY 14202.
PAYMENTS, NOTICE AND OTHER COMMUNICATIONS. Any payment, notice or other communication pursuant to this license shall be sufficiently made or given on the date of mailing if sent to such party by certified air mail, postage prepaid, addressed to it at its address below or as it shall designate by written notice given to the other party.