EvREsearch LTD END USER LICENSE AGREEMENT
These Terms apply to the entire contents of the CD-ROM.
BY CLICKING THE CONTINUE BUTTON OR INSTALLING OR COPYING
OR USING THE SOFTWARE AND OR PRODUCTS OR CONTENTS OF THE
CD-ROM (THE "PRODUCTS"), THE END USER OR ENTITY THAT
HAS LICENSED THE PRODUCT(S) ("LICENSEE") IS CONSENTING TO
BE BOUND BY AND IS BECOMING A PARTY TO THIS AGREEMENT. IF
THE END USER OR LICENSEE DOES NOT AGREE TO ALL OF THE TERMS
OF THIS AGREEMENT, THE BUTTON INDICATING NON-ACCEPTANCE
("EXIT") MUST BE SELECTED AND THE END USER OR LICENSEE MUST
NOT INSTALL, USE OR COPY THE SOFTWARE OR CD-ROM PRODUCTS.
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GENERAL LICENSE TERMS & CONDITIONS
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1. GENERAL AGREEMENT. The "Agreement" governing Licensee's
use of the Product(s) consists of these General
License Terms and Conditions ("General Terms"), each
set of product specific license terms and conditions
which follow ("Product Terms"), and, if provided, the
(i) Corporate End User Order Form and Product
Schedule or (ii) Quotation and Offer form, as
applicable. If more than one license agreement was
provided for this Product, and the terms vary, the
order of precedence of those license agreements is as
follows: a signed agreement, a license agreement
available for review on the EvREsearch LTD website, a
printed or electronic agreement that states clearly
that it supersedes other agreements, a printed
agreement provided with a Product, an electronic
agreement provided with a Product. The General Terms
apply to all Products on the Product Schedule, and
each set of Product Terms applies only to the
individual Products identified in the Product Terms
sheet. All Products are licensed independently of
one another. As used in this Agreement, for
residents of all countries, "EvREsearch" shall
mean EvREsearch LTD. In this Agreement "Licensor"
shall mean EvREsearch LTD except as otherwise set forth
herein. If Licensee acquired the Product(s) as a bundled
component of a third party product or service, then such
third party shall be Licensor. Any third party software
provided together with a Product with such third party's
electronic or printed license agreement is included for
use at Licensee's option, and any use of such software
shall be governed by the third party's license agreement
and not by this Agreement, except to the extent that
this Agreement indicates otherwise with respect to
specific PRODUCTS.
2. EDUCATIONAL USERS. If Licensee is a qualifying
educational or nonprofit institution, certain
EvREsearch client and server products are available
for free download from the EvREsearch download site,
and selected other client and server products are
available at an educational discount. Qualifying
educational institutions are grammar schools, junior
high schools and high schools; junior colleges,
colleges and universities that are accredited and
issue two-year, four-year or advanced degrees;
public libraries; and state departments of education.
Students, faculty and staff at qualifying educational
institutions are authorized to use the software
products obtained through an education program, for
educational purposes only. Only charitable nonprofit
organizations that have been preapproved by EvREsearch
qualify for free or discounted EvREsearch products.
Hospitals do not qualify for this program. For more
information on programs for educational and nonprofit
institutions, please visit the following website:
http://www.evresearch.com.
3. U.S. GOVERNMENT END USERS. The Product is a
"commercial item," as that term is defined in 48
C.F.R. 2.101 (Oct. 1995), consisting of "commercial
computer software" and "commercial computer software
documentation," as such terms are used in 48 C.F.R.
12.212 (Sept. 1995). Consistent with 48 C.F.R.
12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4
(June 1995), all U.S. Government End Users acquire
the Product with only those rights set forth herein.
4. TERM AND TERMINATION. This Agreement shall remain
in effect until terminated in accordance with this
Section or as otherwise provided in this Agreement.
Licensee may terminate this Agreement at any time by
written notice to Licensor. Licensor may terminate
this Agreement immediately in the event of (i) any
breach of Section 8 or 10 by Licensee or (ii) a
material breach by Licensee which is not cured within
30 days of written notice by Licensor. Upon
termination, Licensee shall discontinue use and
certify as destroyed, or return to Licensor, all
copies of the Product(s).
5. PROPRIETARY RIGHTS. Title, ownership rights, and
intellectual property rights in the Product(s) shall
remain in EvREsearch and/or its suppliers. Licensee
acknowledges such ownership and intellectual property
rights and will not take any action to jeopardize,
limit or interfere in any manner with EvREsearch's or
its suppliers' ownership of or rights with respect to
the Product(s). The Product(s) are protected by
copyright and other intellectual property laws and by
international treaties and by U.S. Patent(s) and pending
U.S. patent(s). and pending international patents, Title
and related rights in the content accessed through the
Product(s) are the property of the applicable content
owner and are protected by applicable law. The license
granted under this Agreement gives Licensee no rights to such
content except content that is in the public domain. Any
copy shall contain all notices regarding proprietary rights
as contained in the Product originally delivered by Licensor.
6. RESTRICTIONS. Except as otherwise expressly
permitted in this Agreement, Licensee may not: (i)
modify or create any derivative works of any Product
or documentation, including translation or
localization (Licensee's code written to published
APIs, application programming interfaces, for the
Product(s) shall not be deemed derivative works);
(ii) decompile, disassemble, reverse engineer, or
otherwise attempt to derive the source code for any
Product (except to the extent applicable laws
specifically prohibit such restriction); (iii)
redistribute, encumber, sell, rent, lease,
sublicense, use the Products in a timesharing or
service bureau arrangement, or otherwise transfer
rights to any Product; (iv) copy any Product (except
for an archival copy which must be stored on media
other than a computer hard drive) or documentation;
(v) remove or alter any trademark, logo, copyright or
other proprietary notices, legends, symbols or labels
in the Product(s); (vi) modify any header files or
class libraries in any Product; (vii) create or alter
tables or reports relating to the database portion of
the Product (except as necessary for operating the
Product); (viii) publish any results of benchmark
tests run on any Product to a third party without
EvREsearch's prior written consent; (ix) use the
database provided for use with any Product except in
conjunction with the relevant Product; or (x) use any
Product on a system with more CPUs than the number
licensed, by more Users than have been licensed, on
more computers than the number licensed, or by more
developers than the number licensed, as applicable.
7. WARRANTY. The express warranty set forth herein
constitutes the only warranty with respect to the
product(s). Licensor and its suppliers do not make,
and hereby exclude, all other representations or
warranties of any kind whether express or implied
(either in fact or by operation of law) with respect
to any product or test data included in any product.
Licensor and its suppliers expressly disclaim all
warranties of title, merchantability, fitness for a
particular purpose or noninfringement of third
parties' rights. Licensor and its suppliers do not
warrant that the product(s) will meet licensees
requirements or will operate in the combinations
which may be selected by licensee or that the
operation of the product(s) will be secure,
error-free or uninterrupted and licensor hereby
disclaims any and all liability on account thereof.
The security mechanisms implemented by the product(s)
have inherent limitations, and licensee must
determine that the product(s) sufficiently meet
licenseeís requirements. Licensor and its
suppliers shall have no obligations under the
warranty provisions set forth herein if licensee
subjects the media to accident or abuse; alters,
modifies or misuses the product(s); uses the
product(s) incorporated, attached or in combination
with non-netscape software or on any computer system
other than that for which the product is intended; or
licensee violates the terms of this agreement. The
extent of licensor's duty under this limited warranty
shall be the correction or replacement of any product
which fails to meet this warranty. In the event of a
breach of this warranty, and if licensee provides
licensor with a written report during the warranty
period, licensor will use reasonable efforts to
correct or replace promptly, at no charge to
licensee, the errors or failures. This is licensee's
sole and exclusive remedy for breach of any express
or implied warranties hereunder. Notwithstanding the
foregoing, some jurisdictions do not allow the
exclusion of certain implied warranties; however, the
exclusions of licensor's warranty in this limited
warranty section shall apply to the fullest extent
permitted by applicable law. This agreement does not
exclude any warranties that may not be excluded by
law and any liability arising hereunder shall be
limited to the correction or replacement of the
applicable product, at licensor's option.
8. LIMITATION ON LIABILITY. (a) In no event will
licensor or its suppliers or resellers be liable for
any indirect, special, incidental or consequential
damages, or any direct damages with respect solely to
any database product provided with the product,
including, without limitation, damages for loss of
goodwill, work stoppage, computer failure or
malfunction, or any and all other commercial damages
or losses, even if advised of the possibility
thereof, and regardless of whether any claim is based
upon any contract, tort or other legal or equitable
theory. (b) With the exception of death or personal
injury caused by the negligence of licensor to the
extent applicable law prohibits such limitation, in
no event will licensor or its suppliers or resellers
be liable for any amounts in the aggregate in excess
of the license fees received by licensor from
licensee hereunder for the product giving rise to
such damages, notwithstanding any failure of
essential purpose of any limited remedy or invalidity
of subsection (a) above. Some jurisdictions do not
allow the exclusion or limitation of incidental or
consequential damages, so this exclusion and
limitation may not be applicable. Licensee is solely
responsible for any liability arising out of any
content provided by licensee and/or any material to
which users can link through such content. Any data
included in a product upon shipment from licensor is
for testing use only and licensor hereby disclaims
any and all liability arising therefrom. The extent
of licensor's liability for the limited warranty
section shall be as set forth therein.
9. EXPORT CONTROL. Licensee agrees to comply with
all export laws and restrictions and regulations of
the U.S. Department of State, Department of Commerce
or other United States or foreign agency or
authority, and not to export or re-export any Product
or any direct product thereof in violation of any
such restrictions, laws or regulations, or without
all necessary approvals. Neither the Product(s) nor
the underlying information or technology may be
downloaded or otherwise exported or re-exported (i)
into (or to a national or resident of) Cuba, Iraq,
Libya, Sudan, North Korea, Iran, Syria or any other
country to which the U.S. has embargoed goods; or
(ii) to anyone on the U.S. Treasury Department's list
of Specially Designated Nationals or the U.S.
Commerce Department's Table of Denial Orders. By
downloading or using the Product(s), Licensee agrees
to the foregoing and represents and warrants that it
is not located in, under the control of, or a
national or resident of any such country or on any
such list. As applicable, each party shall obtain
and bear all expenses relating to any necessary
licenses and/or exemptions with respect to its own
export of the Product(s) from the U.S.
If the Product(s) are identified as being
not-for-export (for example, on the box, media or in
the installation process), then, unless Licensee has
an exemption from the United States Department of
State, the following applies: except for export to
Canada for use in Canada by Canadian citizens, the
product(s) and any underlying technology may not be
exported outside the United States or to any foreign
entity or "foreign person" as defined by United States
government regulations, including without limitation,
anyone who is not a citizen, national or lawful
permanent resident of the united states. By
downloading or using the software, licensee agrees to
the foregoing and warrants that it is not a "Foreign
Person" or under the control of a "Foreign Person."
10. HIGH RISK ACTIVITIES. The Product(s) are not
fault-tolerant and are not designed, manufactured or
intended for use or resale as on-line control
equipment in hazardous environments requiring
fail-safe performance in which the failure of any
Product could lead directly to death, personal
injury, or severe physical or environmental damage
("High Risk Activities"). Accordingly, Licensor
and its suppliers specifically disclaim any express
or implied warranty of fitness for High Risk Activities.
Licensee agrees that Licensor and its suppliers will
not be liable for any claims or damages arising from
the use of any Product in such applications.
11. MISCELLANEOUS. (a) This Agreement constitutes
the entire agreement between the parties concerning
the subject matter hereof and supersedes all prior
and contemporaneous agreements and communications,
whether oral or written, between the parties relating
to the subject matter hereof, and all past courses of
dealing or industry custom. The terms and conditions
hereof shall prevail over any conflicting purchase
order or other written instrument submitted by
Licensee. (b) This Agreement may be amended only by
a writing signed by both parties. (c) This Agreement
shall be governed by the laws of the State of
Ohio, U.S.A., without reference to its conflict
of law provisions. (d) Unless otherwise agreed in
writing, all disputes relating to this Agreement
(excepting any dispute relating to intellectual
property rights) shall be subject to final and
binding arbitration in Franklin County,
Ohio, with the losing party paying all costs of
arbitration. (e) This Agreement shall not be
governed by the United Nations Convention on
Contracts for the International Sale of Goods. (f)
If any provision in this Agreement should be held
illegal or unenforceable by a court having
jurisdiction, such provision shall be modified to the
extent necessary to render it enforceable without
losing its intent, or severed from this Agreement if
no such modification is possible, and other
provisions of this Agreement shall remain in full
force and effect. (g) The controlling language of
this Agreement is English. If Licensee has received
a translation into another language, it has been
provided for Licensee's convenience only. (h) A
waiver by either party of any term or condition of
this Agreement or any breach thereof, in any one
instance, shall not waive such term or condition or
any subsequent breach thereof. (i) The provisions of
this Agreement which require or contemplate
performance after the expiration or termination of
this Agreement shall be enforceable notwithstanding
said expiration or termination. (j) Licensee may not
assign or otherwise transfer by operation of law or
otherwise this Agreement or any rights or obligations
herein without the prior express written consent of
Licensor, which will not be unreasonably withheld.
(k) This Agreement shall be binding upon and shall
inure to the benefit of the parties, their successors
and permitted assigns. (l) Neither party shall be in
default or be liable for any delay, failure in
performance (excepting the obligation to pay) or
interruption of service resulting directly or
indirectly from any cause beyond its reasonable
control. (m) The relationship between Licensor and
Licensee is that of independent contractors and
neither Licensee nor its agents shall have any
authority to bind Licensor in any way. (n) If any
dispute arises under this Agreement, the prevailing
party shall be reimbursed by the other party for any
and all legal fees and costs associated therewith.
(o) The headings to the sections of this Agreement
are used for convenience only and shall have no
substantive meaning.
12. LICENSEE OUTSIDE THE U.S. If Licensee is located
outside the U.S., then the provisions of this Section
shall apply. (i) If Licensee is purchasing licenses
directly from EvREsearch and if EvREsearch and Licensee
are not located in the same country, then, if any
applicable law requires Licensee to withhold amounts
from any payments to EvREsearch hereunder Licensee
shall effect such withholding, remit such amounts to
the appropriate taxing authorities and promptly
furnish EvREsearch with tax receipts evidencing the
payments of such amounts, and the sum payable by
Licensee upon which the deduction or withholding is
based shall be increased to the extent necessary to
ensure that, after such deduction or withholding,
EvREsearch receives and retains, free from liability
for such deduction or withholding, a net amount equal
to the amount EvREsearch would have received and
retained absent such required deduction or
withholding. (ii) The parties confirm that this
Agreement and all related documentation is and will
be in the English language. (iii) Licensee is
responsible for complying with any local laws in
its jurisdiction which might impact its right to
import, export or use the Product(s), and Licensee
represents that it has complied with any regulations
or registration procedures required by applicable
law to make this license enforceable.
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EvREsearch PRODUCT TERMS & CONDITIONS
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1. PRODUCT AGREEMENT. The Agreement governing
Licensee's use of the Product(s) identified above
consists of these EvREsearch PRODUCT TERMS &
CONDITIONS, the GENERAL LICENSE TERMS & CONDITIONS
and, if provided, the (i) Corporate End User Order
Form and Product Schedule or (ii) Quotation and Offer
form, as applicable. Regarding the use of any third
party software included as part of the default
Product installation: if a license agreement is
presented for acceptance the first time that third
party software is invoked, then that license
agreement shall govern the use of that third
party software; if no license is presented for
acceptance, then the use of that third party software
shall be governed by this Agreement, but the term
"Licensor," with respect to such third party software,
shall mean the manufacturer of that software and
not EvREsearch LTD.
2. LICENSE GRANT. Subject to payment of applicable
license fees, if any, Licensor grants Licensee a
non-exclusive and non-transferable license to use the
executable code version of the Product(s) and
accompanying documentation according to the terms and
conditions of this Agreement. The implementation of
the webCDserver and U.S. patent Nos. 6,175,830 and
6,484,166, Australian Patent No. 770087, Mexican
Patent No. 233474, New Zealand Patent No. 515007 and
associated pending patents are referred to herein as
"Standard Software". Licensee may not customize the
Products unless Licensee has licensed the EvREsearch
Client Customization Kit and then only to the extent
permitted in the license agreement accompanying that
product. Licensee may:
A. For Standard Software:
Reproduce the Standard Software for personal or
internal business use, provided any copy must
contain all of the original Standard Software's
proprietary notices. Users of Standard Software are
not entitled to hard-copy documentation, support or
telephone assistance unless the entity from which
Licensee received Standard Software provides
support. Licensee may not redistribute the Standard
Software unless Licensee has separately entered into
a distribution agreement with EvREsearch such as the
Unlimited Distribution Program Agreement.
3. DISCLAIMER OF WARRANTY FOR SOFTWARE. Software is
provided on an "as is" basis, without warranty of any kind,
including without limitation the warranties that it is
free of defects, merchantable, fit for a particular purpose
or non-infringing. The entire risk as to the quality
and performance of the software is borne by licensee.
Should the software prove defective in any respect,
licensee and not licensor or its suppliers or resellers
assumes the entire cost of any service and repair. In
addition, the security mechanisms implemented by the
software have inherent limitations, and licensee must
determine that the software sufficiently meets its
requirements. This disclaimer of warranty
constitutes an essential part of this agreement. No
use of the software is authorized hereunder
except under this disclaimer.
EvREsearch(R)