|
BluestSoft
End User License Agreement
IMPORTANT
READ CAREFULLY: This End User License Agreement (“Agreement”) is a
legal and binding agreement between you (either an individual or a single
entity) (“You” or “Your”) and BluestSoft, Inc. (“BLUESTSOFT”)
for the software product You are about to download (or otherwise install)
and the associated proprietary media, printed materials, any associated
documentation (including any electronic documentation), and also any
updates or modifications of the foregoing provided by BLUESTSOFT or its
licensees or agents to You (collectively “Software”).
WHEN
YOU CLICK ON THE “I ACCEPT” BUTTON OR WHEN YOU OTHERWISE INSTALL OR
USE ANY PART OF THE SOFTWARE, YOU ARE CONSENTING TO BE BOUND BY AND ARE
BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO (OR CANNOT
COMPLY WITH) ALL OF THE TERMS OF THIS AGREEMENT, (1) CLICK THE “I DO NOT
ACCEPT” BUTTON, AND YOU WILL NOT BE AUTHORIZED TO USE OR HAVE ANY
LICENSE TO USE ANY PART OF THE SOFTWARE.
Under this Agreement, You are obtaining one of the following three types
of licenses: (1) a “Trial
License” which will allow you to use the Software free of charge with
limitation designated by BLUESTSOFT for evaluation purposes only; (2) a
“Single-User License” which will allow you to use one copy of the
Software for Your personal use; or (3) a “Volume License” which is a
license granted when You have purchased multiple seats to the Software and
which will allow you to use the Software on multiple computers at once.
1.
License.
(a)
Trial License. If You
are purchasing a Trial License, subject to Your compliance with the terms
and conditions of this Agreement, BLUESTSOFT hereby grants to You a
limited, personal, non-sublicensable, non-transferable, non-exclusive
license to:
(i)
use one copy of the Software to evaluate the Software and only for
Your personal, non-organizational, non-enterprise, and noncommercial use
on multiple computer systems owned or controlled by You personally and
only in accordance with the accompanying end user documentation; and
(ii)
make one copy of the Software in machine readable form solely for
archival back-up purposes, provided You reproduce BLUESTSOFT's copyright
proprietary legends in any such copy.
(b)
Single User License. If
You are purchasing a Single-User License, subject to Your compliance with
the terms and conditions of this Agreement, BLUESTSOFT hereby grants to
You a limited, personal, non-sublicensable, non-transferable,
non-exclusive license to:
(i) use one
copy of the Software only for Your personal, non-organizational,
non-enterprise, and noncommercial use on multiple computer systems owned
or controlled by You personally and only in accordance with the
accompanying end user documentation; and
(ii)
make one copy of the Software in machine readable form solely for
archival back-up purposes, provided You reproduce BLUESTSOFT's copyright
proprietary legends in any such copy.
(c)
Volume License. If You are purchasing a Volume License from
BLUESTSOFT or one of its authorized distributors, subject to Your
compliance with the terms and conditions of this Agreement, BLUESTSOFT
hereby grants to You a limited, personal, non-sublicensable,
non-transferable, non-exclusive license to:
(i)
install the object code of the Software on computers owned or
controlled by You only for Your business purposes, provided that the
number of computers that the Software may be installed on shall never
exceed the number of seats of the Software You have purchased from
BLUESTSOFT or its distributors; and
(ii)
use the Software in accordance with the relevant BLUESTSOFT end
user documentation.
2.
License Restrictions.
(a)
General Restrictions. You
shall not (nor shall You permit anyone else to) directly or indirectly: (i)
copy (except as expressly set forth above), modify, or distribute the
Software or any portion thereof; (ii) reverse engineer, disassemble,
decompile or otherwise attempt to discover the source code or structure,
sequence and organization of the Software or any portion thereof (except
where the foregoing is permitted by applicable local law, and then only to
the extent so permitted); (iii) rent, lease, or use the Software or any
portion thereof for timesharing or service bureau purposes, or otherwise
use or allow the use of the Software or any portion thereof for any
commercial purpose or on behalf of any third party; (iv) remove or obscure
any proprietary notices on the Software; (v) post or otherwise make
available the Software, or any portion thereof, in any form, on the
Internet or the World Wide Web; (vi) distribute copies of the Software to
others (electronically or otherwise); (vii) use a previous version of the
Software after you receive a new version and are asked to discontinue
using the previous version; (viii) export or reexport the Software in
violation of any laws or regulations; or (ix) make any single copy of the
Software available for use by multiple users over any network or from any
remote workstation or terminal. Each
single computer on which Software is installed and used shall be primarily
available to only a single user. You
are responsible for all fees and costs associated with the copying and
installation of the Software. As
a specific condition of this license, You agree to use the Software in
compliance with all applicable laws, including without limitation
copyright laws, and that You will not copy, transmit, perform or
distribute any audio, video or other content using the Software without
obtaining all necessary licenses or permissions from the owner of the
content.
(b)
Restrictions limited to Volume License.
If you are purchasing a Volume License:
(i) if the Software is moved from one single computer to another
computer owned or controlled by You, You must destroy the copy on the
first computer, unless the number of Seats purchased allows for the
addition of another copy; and (ii) You may not install the Software on any
computer not owned or controlled by You.
3.
Third
Party Software License Agreement.
You
acknowledge, confirm, and agree that: (i) BLUESTSOFT may provide you, in
connection with the Software, with a third party software licensed to you
pursuant to a third party software license agreement (the “Third Party
Software”); and (ii) your right to use such Third Party Software is
governed exclusively by the applicable Third Party Software license
agreements.
4.
Proprietary Rights.
BLUESTSOFT
and its licensors shall own and retain all right, title, and (except as
expressly licensed hereunder) interest in and to the Software, all copies
or portions thereof, and any derivative works thereof (by whomever
created). The Software is
protected by copyright laws and international copyright treaties, as well
as other intellectual property laws and treaties.
Notwithstanding anything else, the Software is licensed and not
sold. All rights in the
Software not specifically granted in this Agreement are reserved by
BLUESTSOFT and its licensors.
5.
Confidentiality.
You
agree to maintain the Software and any data or databases contained therein
in confidence and that You will not disclose the Software to any third
party without the express written consent of BLUESTSOFT.
You may not use the Software except as set forth herein.
You further agree to take all reasonable precautions to preclude
access of unauthorized persons to the Software.
6.
Term
and Termination.
This
license is effective until terminated hereunder; provided, however, that
if you are only permitted to use the Software on a trial basis with a
limited trial period, this license is only effective for the trial period
specified by BLUESTSOFT. You
may terminate the license at any time by destroying the Software
(including the related documentation) together with all copies or
modifications in any form. BLUESTSOFT
will have the right to terminate the license granted herein immediately if
You fail to comply with any term or condition of this Agreement. The
license granted to You herein will terminate automatically upon any breach
of Section 2 or 3. Upon termination of this Agreement for any reason, You
shall immediately stop using the Software and shall destroy and remove
from all computers, hard drives, networks, and other storage media all
copies of the Software. Sections
2, 3, and 4 through 16 shall survive any termination of this Agreement.
7.
Limited
Warranty.
Except
if You are purchasing a Trial License with a limited trial period, for a
period of sixty (60) days from the date You purchase the Software (the
“Warranty Period”), BLUESTSOFT and its licensors warrant only that the
Software will perform substantially in accordance with the specifications
stated for the Software in the accompanying written end-user
documentation. THIS WARRANTY SHALL NOT APPLY TO ANY SOFTWARE WHICH HAS
BEEN ABUSED, MISUSED, DAMAGED IN TRANSPORT, ALTERED, NEGLECTED, OR
SUBJECTED TO UNAUTHORIZED REPAIR OR INSTALLATION, AS REASONABLY DETERMINED
BY BLUESTSOFT. THE FOREGOING
LIMITED WARRANTY SHALL NOT APPLY IF YOU ARE PURCHASING A TRIAL LICENSE
WITH A LIMITED TRIAL PERIOD.
NOTWITHSTANDING
ANYTHING ELSE HEREIN, THE ENTIRE LIABILITY OF BLUESTSOFT AND ITS
LICENSORS, AND YOUR EXCLUSIVE REMEDY FOR A BREACH OF THE FORGOING
WARRANTY, SHALL BE, AT BLUESTSOFT’S OPTION AND EXPENSE: (A) REPAIR OR
REPLACEMENT OF THE SOFTWARE FOR SOFTWARE THAT MEETS THE WARRANTY OR (B) A
REFUND OF THE PURCHASE PRICE PAID BY YOU FOR THE SOFTWARE AMORTIZED OVER A
FIVE (5) YEAR PERIOD, IN BOTH CASES WHERE THE SOFTWARE IS RETURNED TO
BLUESTSOFT ACCORDING TO THE CLAIM PROCEDURE BELOW, WITHIN THE WARRANTY
PERIOD.
8.
Warranty
Disclaimer.
THE
LIMITED WARRANTY SET
FORTH
IN
SECTION 7 IS THE ONLY WARRANTY PROVIDED BY BLUESTSOFT AND DOES NOT APPLY
IF YOU ARE PURCHASING A TRIAL LICENSE.
EXCEPT FOR THE FOREGOING, THE SOFTWARE AND ANY SERVICES ARE
PROVIDED “AS IS” AND BLUESTSOFT MAKES NO WARRANTY OF ANY KIND WITH
REGARD TO THE SOFTWARE OR ANY SERVICES PROVIDED BY BLUESTSOFT HEREUNDER.
BLUESTSOFT EXPRESSLY DISCLAIMS ANY OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
BLUESTSOFT
does not warrant that: (i) the functions contained in the Software will
meet your requirements or operate in the combination that you may select
for use; (ii) the operation of the Software will be uninterrupted or error
free; or (iii) defects in the Software will be corrected.
No oral or written statement by BLUESTSOFT, or any of its
distributors, licensors, representative, or dealers, shall create a
warranty or increase the scope of this warranty.
BLUESTSOFT
DOES NOT WARRANT THE SOFTWARE AGAINST INFRINGEMENT OR THE LIKE WITH
RESPECT TO ANY UNITED STATES OR INTERNATIONAL COPYRIGHT, PATENT, TRADE
SECRET, TRADEMARK, OR OTHER PROPRIETARY RIGHT OF ANY THIRD PARTY AND DOES
NOT WARRANT THAT THE SOFTWARE DOES NOT INCLUDE ANY VIRUS, SOFTWARE
ROUTINE, OR OTHER SOFTWARE DESIGNED TO PERMIT UNAUTHORIZED ACCESS, TO
DISABLE, ERASE, OR OTHERWISE HARM SOFTWARE, HARDWARE, OR DATA, OR TO
PERFORM ANY OTHER SUCH ACTIONS.
9.
Limitation
of Liability.
NOTWITHSTANDING
ANYTHING ELSE HEREIN, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY,
INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT
LIABILITY, OR OTHERWISE, SHALL BLUESTSOFT OR ITS LICENSORS BE LIABLE TO
YOU OR ANY OTHER PERSON (I) FOR ANY PUNITIVE, INDIRECT, SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT
LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE,
ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, OR DAMAGES RESULTING
FROM YOUR USE OF THE SOFTWARE OR THE SERVICES PROVIDED BY BLUESTSOFT, OR
(II) FOR ANY MATTER BEYOND BLUESTSOFT OR ITS LICENSOR’S REASONABLE
CONTROL. BLUESTSOFT’S AND ITS LICENSOR’S MAXIMUM LIABILITY FOR DAMAGES
OF ANY KIND WHATSOEVER ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO
THE PURCHASE PRICE PAID BY YOU FOR THE SOFTWARE, EXCEPT WHERE NOT
PERMITTED BY APPLICABLE LAW, IN WHICH CASE BLUESTSOFT’S LIABILITY SHALL
BE LIMITED TO THE MINIMUM AMOUNT PERMITTED BY SUCH APPLICABLE LAW. THE
FOREGOING LIMITATIONS SHALL APPLY EVEN IF BLUESTSOFT HAS BEEN INFORMED OF
THE POSSIBILITY OF SUCH DAMAGES.
10.
Export.
You
agree to comply with all laws, rules, and regulations applicable to the
export of the Software or the Documentation.
Specifically, you shall not export, re-export, or transship the
Software or the Documentation, or the direct product thereof, in violation
of any
United States
or other laws and
regulations which may from time to time be applicable.
None of the Software or underlying information or technology may be
downloaded or otherwise exported or re-exported: (i) into (or to a
national or resident of) Cuba, Iran, Iraq, Libya, Serbia, Montenegro,
North Korea, 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 Order. By using the
Software, you are agreeing to the foregoing and you are representing and
warranting that you are not located in, under the control of, or a
national or resident of any such country or on any such list.
11.
High
Risk Activities.
The
Software is not fault-tolerant and is not designed, manufactured, or
intended for use or resale as online equipment control equipment in
hazardous environments requiring fail-safe performance, such as in 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 Software could lead directly to
death, personal injury, or severe physical or environmental damage.
BLUESTSOFT, and each of its distributors, licensors,
representative, or dealers, specifically disclaim any express or implied
warranty of fitness for any high risk uses listed above.
12.
Indemnity.
You
agree that BLUESTSOFT shall have no liability whatsoever for any use You
make of the Software. You shall indemnify and hold harmless BLUESTSOFT
from any third party claims, damages, liabilities, costs and fees
(including reasonable attorney fees) arising from Your use of the Software
as well as from Your failure to comply with any term of this Agreement.
13.
Volume
License Installation Process and Support Terms.
This
Section only applies to You if You are purchasing a Volume License.
a.
Irrespective of the number of seats You have purchased, You should
receive at least one object code copy of the Software in a box per site (a
“Boxed Copy”), a “multiple user installation license key” in order
to install the Software on the number of computers for which You have
purchased seats, and a printed guide to installing the Software on
multiple computers.
b.
Support in connection with Your purchase of a Volume License shall
be provided in accordance with BLUESTSOFT’s then-standard support terms
and conditions for volume license purchasers effective in the territory in
which You use the Software.
c.
If you receive any separate volume license agreements from
BLUESTSOFT, any additional terms in such agreements will apply to You and
any terms of this Agreement that conflict with such separate agreements
shall not apply to You.
14.
Government
Restricted Rights.
If
You are an agency, department, or other entity of the United States
Government ("Government"), the use, duplication, reproduction,
release, modification, disclosure or transfer of the Software, or any
related documentation of any kind, including technical data or related
manuals, is restricted in accordance with Federal Acquisition Regulation
12.212 for civilian agencies and Defense Federal Acquisition Regulation
Supplement 227.7202 for military agencies. This Software is commercial
computer software and the related documentation is commercial computer
software documentation. The use of the Software and related documentation
is further restricted in accordance with the terms of this Agreement, or
any modification hereto. BluestSoft,
Inc. is located at
2102
Business Center Dr., Suite 130
Irvine
,
California
92612
.
15.
General.
This
Agreement and the terms of any Volume License Agreement provided to You
(if any) represent the complete agreement concerning this license between
the parties and supersedes all prior agreements and representations
between them. This Agreement may be amended only by a writing executed by
both parties. If any provision of this Agreement is held to be illegal or
unenforceable, that provision shall be limited or eliminated to the
minimum extent necessary to make it legal and enforceable and this
Agreement shall otherwise remain in full force and effect and enforceable.
The failure of BLUESTSOFT to act with respect to a breach of this
Agreement by You or others does not constitute a waiver and shall not
limit BLUESTSOFT’s rights with respect to such breach or any subsequent
breaches. This Agreement is personal to You and may not be assigned or
transferred for any reason whatsoever without BLUESTSOFT’s prior written
consent and any action or conduct in violation of the foregoing shall be
void and without effect. BLUESTSOFT expressly reserves the right to assign
this Agreement and to delegate any of its obligations hereunder. This
Agreement shall be governed by and construed under
California
law
(without regard to its conflicts of laws provisions) as such law applies
to agreements between
California
residents
entered into and to be performed within
California
.
The sole and exclusive jurisdiction and venue for actions arising under
this Agreement shall be the State and Federal courts in
Orange
County
,
California
;
You hereby agree to service of process in accordance with the rules of
such courts. The party prevailing in any dispute under this Agreement
shall be entitled to its costs and legal fees.
Each
party recognizes and agrees that the warranty disclaimers and liability
and remedy limitations in this Agreement are material bargained for bases
of this Agreement and that they have been taken into account and reflected
in determining the consideration to be given by each party under this
Agreement and in the decision by each party to enter into this Agreement.
16.
ADVICE
OF COUNSEL.
YOU
ACKNOWLEDGE, CONFIRM, AND AGREE THAT YOU HAVE READ AND UNDERSTOOD THE
MEANING AND EFFECT OF EACH AND EVERY PROVISION OF THIS AGREEMENT, AND ANY
THIRD PARTY SOFTWARE LICENSE AGREEMENT, IF ANY, WAS AFFORDED THE
OPPORTUNITY TO CONSULT IN ITS NATIVE LANGUAGE WITH AN ADVISOR OF YOUR OWN
CHOOSING, AND WERE AFFORDED THE OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL
OF YOUR OWN CHOOSING PRIOR TO THE ACCEPTANCE HEREOF.
|
