EULA
END-USER LICENSE AGREEMENT
SERVER LICENSE FOR REPLIGO SERVER 3.4 PRODUCT
IMPORTANT-READ CAREFULLY: This End-User License Agreement (“EULA”) is a legal agreement between you (either an individual or a single entity) and Cerience Corporation for the Cerience software product identified above, which includes computer software and may include associated media, printed materials, and “online” or electronic documentation (“Product”). An amendment or addendum to this EULA may accompany the Product. BY CLICKING ON THE “I AGREE” BUTTON, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY INSTALLING, COPYING, OR OTHERWISE USING THE PRODUCT. IF YOU DO NOT AGREE, DO NOT INSTALL OR USE THE PRODUCT; YOU MAY RETURN IT TO YOUR PLACE OF PURCHASE FOR A FULL REFUND.
The Product may contain the following software:
* “Server Software” provides services or functionality on your computer capable of running the Server Software (“Server”);
* “Client Software” allows an electronic device (“Device”) to access or utilize the Server Software. Client Software may be included in the Product and may also accompany RepliGo Server Client Access Licenses you acquire for the Product.
1. GRANT OF LICENSE. Cerience grants you the following rights provided you comply with all terms and conditions of this EULA:
a. Installation–Server Software. You may install one copy of the Server Software on a single Server. You may not separate component parts of the Server Software for use on more than one Server. Client Software. You may install the Client Software on any Device for which you have acquired a RepliGo Server Client Access License. This EULA supersedes any end-user license agreement which may accompany the Client Software and sets forth your exclusive rights with respect to the Client Software.
b. RepliGo Server Client Access License (“CAL”) Requirements.
(i) General. You must acquire a separate CAL for each Device which accesses or otherwise utilizes the services or functionality of the Server Software, whether you use the Client Software or any other software to do so, unless otherwise noted below.
(ii) Version Matching. Any CAL must have the same version number as or later version number than the corresponding version number of the Server Software being used.
(iii) Administration. You do not need a CAL for administration of the Server Software (including remote administration), for up to two connections to the Server.
c. Other Licenses. Your use of software applications installed on the Server or accessed through the Server Software may require additional licenses — please consult the license agreement accompanying such software.
d. Reservation of Rights. Cerience reserves all rights not expressly granted to you in this EULA.
2. UPGRADES. To use a Product identified as an upgrade, you must first be licensed for the product identified by Cerience as eligible for the upgrade. After upgrading, you may no longer use the product that formed the basis for your upgrade eligibility.
3. ADDITIONAL SOFTWARE. This EULA applies to updates or supplements to the original Product provided by Cerience, unless we provide other terms along with the update or supplement.
4. “MULTIPLEXING.” Hardware or software that reduces the number of Devices directly accessing or using the Server Software does not reduce the number of CALs you need. The number you need is based on the number of distinct inputs to the hardware or software “front end.”
5. TRANSFER-Internal. You may move the Server Software to a different Server. Transfer to Third Party. The initial user of the Product may make a one-time transfer of the Product to another end user. The transfer has to include all component parts, media, printed materials, and this EULA. The transfer may not be an indirect transfer, such as a consignment. Prior to the transfer, the end user receiving the transferred Product must agree to all the EULA terms. No Rental. You may not rent, lease, or lend the Product.
6. NO COMMERCIAL HOSTING. You may not grant any third party a right to access and/or use the Server Software from a Server or other storage device owned or operated by you.
7. LIMITATION ON REVERSE ENGINEERING, DECOMPILATION, AND DISASSEMBLY. You may not reverse engineer, decompile, or disassemble the Product, except and only to the extent that it is expressly permitted by applicable law notwithstanding this limitation.
8. TERMINATION. Without prejudice to any other rights, Cerience may cancel this EULA if you do not abide by the terms and conditions of this EULA, in which case you must destroy all copies of the Product and all of its component parts.
9. CONSENT TO USE OF DATA. You agree that Cerience and its affiliates may collect and use technical information you provide as a part of support services related to the Product. Cerience agrees not to use this information in a form that personally identifies you.
10. NOT FOR RESALE SOFTWARE. Product identified as “Not for Resale” or “NFR,” may not be resold, transferred or used for any purpose other than demonstration, test or evaluation.
11. EXPORT RESTRICTIONS. You acknowledge that Product is of U.S. origin. You agree to comply with all applicable international and national laws that apply to the Product, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments.
12. LIMITED WARRANTY FOR SOFTWARE PRODUCTS ACQUIRED IN THE US.
Cerience warrants that the Product will perform substantially in accordance with the accompanying materials for a period of ninety days from the date of receipt.
If an implied warranty or condition is created by your state/jurisdiction and federal or state/provincial law prohibits disclaimer of it, you also have an implied warranty or condition, BUT ONLY AS TO DEFECTS DISCOVERED DURING THE PERIOD OF THIS LIMITED WARRANTY (NINETY DAYS). AS TO ANY DEFECTS DISCOVERED AFTER THE NINETY (90) DAY PERIOD, THERE IS NO WARRANTY OR CONDITION OF ANY KIND. Some states/jurisdictions do not allow limitations on how long an implied warranty or condition lasts, so the above limitation may not apply to you.
Any supplements or updates to the Product, including without limitation, any (if any) service packs or hot fixes provided to you after the expiration of the ninety day Limited Warranty period are not covered by any warranty or condition, express, implied or statutory.
LIMITATION ON REMEDIES; NO CONSEQUENTIAL OR OTHER DAMAGES. Your exclusive remedy for any breach of this Limited Warranty is as set forth below. Except for any refund elected by Cerience, YOU ARE NOT ENTITLED TO ANY DAMAGES, INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL DAMAGES, if the Product does not meet Cerience’s Limited Warranty, and, to the maximum extent allowed by applicable law, even if any remedy fails of its essential purpose. The terms of Section 14 below (“Exclusion of Incidental, Consequential and Certain Other Damages”) are also incorporated into this Limited Warranty. Some states/jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. This Limited Warranty gives you specific legal rights. You may have others which vary from state/jurisdiction to state/jurisdiction. YOUR EXCLUSIVE REMEDY. Cerience’s and its suppliers’ entire liability and your exclusive remedy shall be, at Cerience’s option from time to time exercised subject to applicable law, (a) return of the price paid (if any) for the Product, or (b) repair or replacement of the Product, that does not meet this Limited Warranty and that is returned to Cerience with a copy of your receipt. You will receive the remedy elected by Cerience without charge, except that you are responsible for any expenses you may incur (e.g. cost of shipping the Product to Cerience). This Limited Warranty is void if failure of the Product has resulted from accident, abuse, misapplication, abnormal use or a virus. Any replacement Product will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. Outside the United States, neither these remedies nor any product support services offered by Cerience are available without proof of purchase from an authorized international source. To exercise your remedy, contact: Cerience, Attn. Cerience Sales Information, 3307 South College Avenue, Suite 200, Fort Collins, CO 80525.
13. DISCLAIMER OF WARRANTIES. The Limited Warranty that appears above is the only express warranty made to you and is provided in lieu of any other express warranties (if any) created by any documentation or packaging. Except for the Limited Warranty and to the maximum extent permitted by applicable law, Cerience and its suppliers provide the Product and support services (if any) AS IS AND WITH ALL FAULTS, and hereby disclaim all other warranties and conditions, either express, implied or statutory, including, but not limited to, any (if any) implied warranties, duties or conditions of merchantability, of fitness for a particular purpose, of accuracy or completeness of responses, of results, of workmanlike effort, of lack of viruses, and of lack of negligence, all with regard to the Product, and the provision of or failure to provide support services. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE PRODUCT.
14. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CERIENCE OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE PRODUCT, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF CERIENCE OR ANY SUPPLIER, AND EVEN IF CERIENCE OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15. LIMITATION OF LIABILITY AND REMEDIES. Notwithstanding any damages that you might incur for any reason whatsoever (including, without limitation, all damages referenced above and all direct or general damages), the entire liability of Cerience and any of its suppliers under any provision of this EULA and your exclusive remedy for all of the foregoing (except for any remedy of repair or replacement elected by Cerience with respect to any breach of the Limited Warranty) shall be limited to the greater of the amount actually paid by you for the Product or U.S.$5.00. The foregoing limitations, exclusions and disclaimers (including Sections 13, 14 and 15 above) shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
16. NOTE ON JAVA SUPPORT. THE PRODUCT MAY CONTAIN SUPPORT FOR PROGRAMS WRITTEN IN JAVA. JAVA TECHNOLOGY IS NOT FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE OR RESALE AS ONLINE 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 JAVA TECHNOLOGY COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
17. U.S. GOVERNMENT LICENSE RIGHTS. All Product provided to the U.S. Government pursuant to solicitations issued on or after December 1, 1995 is provided with the commercial license rights and restrictions described elsewhere herein. All Product provided to the U.S. Government pursuant to solicitations issued prior to December 1, 1995 is provided with “Restricted Rights” as provided for in FAR, 48 CFR 52.227-14 (JUNE 1987) or DFAR, 48 CFR 252.227-7013 (OCT 1988), as applicable.
18. APPLICABLE LAW. This EULA is governed by the laws of the State of Colorado.
19. ENTIRE AGREEMENT. This EULA (including any addendum or amendment to this EULA which is included with the Product) and the CAL (if applicable) are the entire agreement between you and Cerience relating to the Product and the support services (if any) and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Product or any other subject matter covered by this EULA. To the extent the terms of any Cerience policies or programs for support services conflict with the terms of this EULA, the terms of this EULA shall control.
20. The Product is protected by copyright and other intellectual property laws and treaties. Cerience or its suppliers own the title, copyright, and other intellectual property rights in the Product. The Product is licensed, not sold.