PowerGadgets Mobile Creator Licensing
Read Carefully Before Installing the Software
By installing PowerGadgets Mobile Creator (hereinafter "the Software" or "Software"), you are accepting the following License Agreement.
LICENSE AGREEMENT.
This is a legal agreement between you (either an individual or an entity) and Software FX, Inc. ("the Licensor" or "Licensor"). By installing the software you are agreeing to be bound by the terms of this agreement.
1. GRANT OF LICENSE. Licensor grants you as an individual or entity a non-exclusive, non-transferable, worldwide license to make and use copies of the Software in the manner provided below. The software is licensed, not sold.
(a) Installation. The product is licensed on a per seat basis. Per-seat licenses are licenses that are counted by all the machines on which any of the Software portion will reside on. To use a per-seat license, every machine installing, running and/or using any portions of the software must have a licensed copy and its appropriate license.
2. RESTRICTIONS. You may not:
(a) copy the Software by any mechanism for any purpose other than to create an archival copy to the extent permitted by federal copyright law
(b) bundle or distribute the Software with any other software, plug-in or enhancement which uses or relies upon the Software without the express written consent of Licensor;
(c) embed or distribute the Software as an OLE, ActiveX or any other component of an application, server, web server, browser or container;
(d) sell or otherwise directly receive compensation for the Software unless you have express written permission from Licensor
(d) modify or permit anyone else to modify the Software in any manner;
(e) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software
(f) rent, lease, sublicense, assign or transfer your rights under this Agreement, or authorize all or any portion of the Software to be copied except as may be expressly permitted herein;
(g) use or sublicense the Software or Documentation in connection with a service bureau or like activity whereby you, without obtaining permission from Licensor, operate or use the Software or Documentation for the benefit of a third party who has not licensed a copy of the Software;
(h) release the results of any benchmark testing of the Software to any third party without the prior written consent of Licensor.
3. NO OPEN SOURCE. Your right to the Software does not include any license, right, power or authority to subject the Software in whole or in part to any of the terms of an Excluded License. An "Excluded License" means any "open source" or other license that require as a condition of use, modification and/or distribution of software subject to the Excluded License, that such software or other software combined and/or distributed with such software be
(a) disclosed or distributed in source code form;
(b) licensed for the purpose of making derivative works; or
(c) redistributable at no charge.
4. HIGH RISK ACTIVITIES. The Software is not fault tolerant and is not intended for use in high-risk activities. You may not use the Software in the design, construction, operation or maintenance of any nuclear facility or weapon of mass destruction, or for the purpose of aircraft navigation or control or any other activity in which the failure of the Software could result in loss of human life, personal injury or property damage.
5. SERVICES. There are no services provided under this agreement. You are responsible for installing the Software on your computers as permitted under this agreement.
6. FEES. Prices are available upon request and are subject to change. Please consult Licensor or its authorized resellers as to current fees before placing an order. All license fees are non-refundable and non-cancelable except as expressly provided in this agreement and do not include shipping, sales or use tax, withholding tax, excise tax, VAT or custom duties, all of which you are responsible for paying above and beyond the license fees due to Licensor or its authorized resellers.
7. ACTIVATION. During installation, an Internet connection is required on the machine where the product is being installed. Only the serial number and a unique product ID provided by the installation program is sent to our servers. Alternatively, if necessary, this information could be submitted from another computer that is connected to the Internet. The information is encrypted using the standard RSA Public/Private key methodology. For security reasons, we do not copy the private key onto the client machine; instead it resides on our servers and thus the need for an Internet connection to obtain a code to complete the install of the software. Our installation does not scan your hard drive or gather any personal information from your computer; therefore, no privacy issues should be of concern to you. Customers are still encouraged to register the product using the traditional and voluntary web site registration form. The installation process should be simple and unobtrusive for all customers. Our goal is to prevent installation of serial numbers that have been obtained from fraudulent purchases, returned products, expired programs and other suspicious means.
8. MAINTENANCE/SUPPORT. You may acquire maintenance/technical support services ("Maintenance/Support") for the Software provided that you subscribe to Licensor's Maintenance/Support programs or to an authorized Licensor partner support program. Maintenance/Support shall be based on the in-country list price and then applicable Maintenance/Support policy in effect at the time such Maintenance/Support is ordered. Maintenance/Support fees are due annually in advance and are nonrefundable and non-cancelable.
9. EVALUATION LICENSE. Notwithstanding any provision of this Agreement to the contrary, the following terms and conditions shall apply to any Software acquired by you for purposes of evaluation. Any evaluation license for the Software shall terminate sixty (60) days from the date of your initial installation of the Software. The Software may be used solely for internal noncommercial evaluation. You may not use an evaluation copy of the Software for any purpose, including production use, other than evaluation. The Software may not be transferred, is licensed to you without fee, and is provided "AS IS" without warranty of any kind. To the maximum extent permitted by applicable law, You agree to release, defend and indemnify and hold Licensor harmless from any claims and/or damages of any kind by any party or entity, arising out of Your use of the Software for evaluation. All other terms and conditions of this Agreement shall otherwise apply to the Software.
10.LIMITED WARRANTY AND LIMITATION OF LIABILITY.
(a) Limited Warranty and Customer Remedies. Software FX warrants that (i) the Software will perform substantially in accordance with any accompanying Documentation for a period of ninety (90) days from the date of receipt. Some states and jurisdictions do not allow limitations on duration of an implied warranty, so the above limitation may not apply to you. To the extent allowed by applicable law, implied warranties on the Software, if any, are limited to ninety (90) days. Software FX's and its suppliers' entire liability and your exclusive remedy shall be, at Software FX's option, either (i) return of the price paid, if any, or (ii) repair or replacement of the Software that does not meet Software FX's Limited Warranty and which is returned to Software FX with a copy of your receipt. This Limited Warranty is void if failure of the Software has resulted from accident, abuse, misapplication, abnormal use, Trojan horse, virus, or any other malicious external code. Any replacement Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. This limited warranty does not apply to Evaluation and/or Pre-release Software.
(b) No Other Warranties and Disclaimer. THE FOREGOING LIMITED WARRANTY AND REMEDIES STATE THE SOLE AND EXCLUSIVE REMEDIES FOR SOFTWARE FX OR ITS SUPPLIER'S BREACH OF WARRANTY. SOFTWARE FX AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, AND FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO YOU IN YOUR JURISDICTION, SOFTWARE FX AND ITS SUPPLIERS MAKE NO WARRANTIES, CONDITIONS, REPRESENTATIONS OR TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE AS TO ANY OTHER MATTERS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SOFTWARE FX AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, INFORMATIONAL CONTENT OR ACCURACY, QUIET ENJOYMENT, TITLE AND NON-INFRINGEMENT, WITH REGARD TO THE SOFTWARE, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHERS, WHICH VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION.
(c) Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW EVEN IF A REMEDY FAILS ITS ESSENTIAL PURPOSE, IN NO EVENT SHALL SOFTWARE FX OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, DIRECT, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF SOFTWARE FX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, SOFTWARE FX'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS SOFTWARE LICENSE AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE PRODUCT. Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply to you. In such states and jurisdictions, Software FX's liability shall be limited to the greatest extent permitted by law and the limitations or exclusions of warranties and liability contained herein do not prejudice applicable statutory consumer rights of person acquiring goods otherwise than in the course of business. The disclaimer and limited liability above are fundamental to this Software License Agreement between Software FX and you.
(d) Infringement Claims. Software FX will indemnify and hold you harmless and will defend or settle any claim, suit or proceeding brought against you by a third party that is based upon a claim that the content contained in the Software infringes a copyright or violates an intellectual or proprietary right protected by United States ("Claim"), but only to the extent the Claim arises directly out of the use of the Software and subject to the limitations set forth in Section 5 of this Agreement except as otherwise expressly provided. You must notify Software FX in writing of any Claim within ten (10) business days after you first receive notice of the Claim, and you shall provide to Software FX at no cost with such assistance and cooperation as Software FX may reasonably request from time to time in connection with the defense of the Claim. Software FX shall have sole control over any Claim (including, without limitation, the selection of counsel and the right to settle on your behalf on any terms Software FX deems desirable in the sole exercise of its discretion). You may, at your sole cost, retain separate counsel and participate in the defense or settlement negotiations. Software FX shall pay actual damages, costs, and attorney fees awarded against you (or payable by you pursuant to a settlement agreement) in connection with a Claim to the extent such direct damages and costs are not reimbursed to you by insurance or a third party, to an aggregate maximum equal to the purchase price of the Software. If the Software or its use becomes the subject of a Claim or its use is enjoined, or if in the opinion of Software FX's legal counsel the Software is likely to become the subject of a Claim, Software FX shall attempt to resolve the Claim by using commercially reasonable efforts to modify the Software or obtain a license to continue using the Software. If in the opinion of Software FX's legal counsel the Claim, the injunction or potential Claim cannot be resolved through reasonable modification or licensing, Software FX, at its own election, may terminate this Software License Agreement without penalty, and will refund to you on a pro rata basis any fees paid in advance by you to Software FX. THE FOREGOING CONSTITUTES SOFTWARE FX'S SOLE AND EXCLUSIVE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT. This indemnity does not apply to infringements that would not be such, except for customer-supplied elements.
11.JURISDICTION. This Agreement is governed by the laws of the State of Florida, the U.S. Copyright Act and other applicable U.S. federal laws. All disputes or legal proceedings relating to use of the SOFTWARE or this Agreement shall be brought and heard exclusively in the state or federal courts located in Palm Beach County, Florida, and by installing and/or using the SOFTWARE, you hereby irrevocably consent and submit to personal jurisdiction in such courts for all such disputes or legal proceedings. U.S. GOVERNMENT RESTRICTED RIGHTS
The SOFTWARE and written materials are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is Software FX, Inc.
This Agreement is governed by the laws of the State of Florida, the U.S. Copyright Act and other applicable U.S. federal laws. All disputes or legal proceedings relating to use of the SOFTWARE or this Agreement shall be brought and heard exclusively in the state or federal courts located in Palm Beach County, Florida, and by installing and/or using the SOFTWARE, you hereby irrevocably consent and submit to personal jurisdiction in such courts for all such disputes or legal proceedings.
If you have any questions regarding this Agreement or if you wish to request any information about PowerGadgets, please contact Software FX customer service at sales@softwarefx.com or visit our web site athttp://www.softwarefx.com for additional contact information.
PowerGadgets Mobile Server Licensing
READ CAREFULLY BEFORE INSTALLING THE SOFTWARE.
By installing the PowerGadgets Mobile software (hereinafter "the Software" or "Software"), you are accepting the following License Agreement.
LICENSE AGREEMENT. This is a legal agreement between you (either an individual or an entity) and Software FX, Inc. By installing the software you are agreeing to be bound by the terms of this agreement. If you do not agree to the terms of this agreement, promptly return the uninstalled software to the place you purchased it for a full refund.
1.GRANT OF LICENSE. Subject to the terms of this Agreement, Software FX grants you a non-exclusive, perpetual license to exercise the following rights to the Software up to the licensed Capacity:
(a) install on your owned or leased hardware at a facility owned or controlled by you;
(b) operate solely for processing your own data in your business operations, and
(c) make one copy of the Product for archival purposes only (collectively a "License"). The rights granted under this Agreement are only effective upon payment of license fees and possession of the appropriate License Agreement (if applicable). The software is licensed, not sold.
2. RESTRICTIONS. You agree to not:
(a) disassemble, reverse engineer, decompile or otherwise attempt to derive any Software source code from object code, except to the extent expressly permitted by applicable law despite this limitation;
(b) distribute or provide the Software to any third party or use it in a service bureau, outsourcing environment, or for the processing of third party data, or for rental, lease, or sublicense;
(c) provide a third party with the results of any functional evaluation, or performance tests, without Software FX’s prior written approval;
(d) attempt to disable or circumvent any of the licensing mechanisms within the Software; or
(e) violate any other usage restrictions contained in the Software Documentation.
3. INSTALLATION. The software contains portions known as "Production Server Components" and "Test/Development Server Components" are provided to enable services on a computer called a server. Server shall mean a Computer System, a Virtual System or another System that provides a service for other Systems connected to it via the Internet, an extranet, an intranet, another network, or otherwise and is a single logical operating system image. Examples of servers which are distinguished by the nature of the service they provide include (but are not limited to) file servers, database servers, transaction servers, application servers, object servers, middleware servers, and web servers. This license agreement grants you one (1) license of the software portions known as "Production Server" and one (1) License of "Test/Development Server Components".
(a) Use of Test Server Components. These components are licensed on a per server basis. You may use the "Test/Development Server" software for the sole purpose of designing, developing and testing. "Test/Development Server Components" must not be used as separate components or be used for building ASP.NET applications or standalone applications in any platform or environment besides a Citrix XenApp Server. Test/Development Server Components" may not be used on a production server. You may not redistribute the Test Server Components without the express written consent of Licensor which will be granted through an OEM Agreement. An additional Test server license is required for each Test Server upon which the Software or any of its components is installed.
(b) Use of Production Server Components. These components are licensed on a per server/per named user model. The "Production Server Components" may only be used on one and the same server. A Production Server license is required for each additional server on which you will be installing and running any of the "Production Server Components". "Production Server Components" must not be used as separate components or be used for building ASP.NET applications or standalone applications in any platform or environment besides a Citrix XenApp Server. "Production Server Components" cost is determined based the maximum number of individual employees or contractors to whom access has been granted to the Product on a server. You agree to purchase, install and upgrade (when necessary) a version of the Software that complies with the amount of named users in your Citrix XenApp server implementation. You may not redistribute the Production Server Components without the express written consent of Licensor which will be granted through an OEM Agreement.
4.COPYRIGHT. The SOFTWARE is owned by Software FX, Inc. and is protected by United States copyright laws and international treaty provisions. Therefore, you must treat the SOFTWARE like any other copyrighted material (e.g. a book or a musical recording) except that you may either
(a) make one copy of the SOFTWARE solely for backup or archival purposes;
(b) transfer the SOFTWARE to a single hard disk provided you keep the original solely for backup or archival purposes or
(c) you may store or install a copy of the Software on a storage device, such as a network server, used only to install or run the Software on other computers over an internal network; however, you must acquire and dedicate a License for each separate computer on which the Software is installed or run from the storage device. A License for the Software may not be shared or used concurrently on different computers. You may not make multiples copies of SOFTWARE or the written materials accompanying the SOFTWARE.
5.REDISTRIBUTABLE CODE. No Portions of the software are designated as "Redistributable Code".
6.INTELLECTUAL PROPERTY RIGHTS. You acknowledge that the Software and any copies that you are authorized by Software FX to make are the intellectual property of and are owned by Software FX and its suppliers. The structure, organization and code of the Software are the valuable trade secrets and confidential information of Software FX and its suppliers. The Software is protected by copyright, including without limitation by United States Copyright Law, international treaty provisions and applicable laws in the country in which it is being used. You acknowledge that Software FX retains the ownership of all patents, copyrights, trade secrets, trademarks and other intellectual property rights pertaining to the Software, and that Software FX's ownership rights extend to any images, photographs, animations, videos, audio, music, text and "applets" incorporated into the Software and all accompanying printed materials. You will take no actions which adversely affect Software FX's intellectual property rights in the Software. Trademarks shall be used in accordance with accepted trademark practice, including identification of trademark owners' names. Trademarks may only be used to identify printed output produced by the Software, and such use of any trademark does not give you any right of ownership in that trademark. Chart FX, Grid FX, PowerGadgets, and Software FX are trademarks of Software FX Inc.. Except as expressly stated above, this Software License Agreement does not grant you any intellectual property rights in the Software. Notifications of claimed copyright infringement should be sent to Software FX's copyright agent as further provided on the Software FX Web Site.
7.LIMITED TRANSFER RIGHTS Notwithstanding the foregoing, you may transfer all your rights to use the Software to another person or legal entity provided that:
(a) you also transfer each of this Software License Agreement, the Software and all other software or hardware bundled or pre-installed with the Software, including all copies, updates and prior versions, and all copies of font software converted into other formats, to such person or entity;
(b) you retain no copies, including backups and copies stored on a computer;
(c) the receiving party secures a personalized serial number from Software FX; and
(d) the receiving party accepts the terms and conditions of this Software License Agreement and any other terms and conditions upon which you legally purchased a license to the Software. Notwithstanding the foregoing, you may not transfer education, pre-release, or not-for-resale (NFR) copies of the Software.
8.PRE-RELEASE AND EVALUATION SOFTWARE. If the product you have received with this license is pre-commercial release or beta Software ("Pre-release Software"), then this Section applies. In addition, this section applies to all evaluation and/or demonstration copies of Software FX software ("Evaluation Software") and continues in effect until you purchase a license. To the extent that any provision in this section is in conflict with any other term or condition in this Software License Agreement, this section shall supersede such other term(s) and condition(s) with respect to the Pre-release and/or Evaluation Software, but only to the extent necessary to resolve the conflict. You acknowledge that the Pre-release Software is a pre-release version, does not represent final product from Software FX, and may contain bugs, errors and other problems that could cause system or other failures and data loss. CONSEQUENTLY, THE PRE-RELEASE AND/OR EVALUATION SOFTWARE IS PROVIDED TO YOU "AS-IS" WITH NO WARRANTIES FOR USE OR PERFORMANCE, AND SOFTWARE FX DISCLAIMS ANY WARRANTY OR LIABILITY OBLIGATIONS TO YOU OF ANY KIND, WHETHER EXPRESS OR IMPLIED. WHERE LEGALLY LIABILITY CANNOT BE EXCLUDED FOR PRE-RELEASE AND/OR EVALUATION SOFTWARE, BUT IT MAY BE LIMITED, SOFTWARE FX'S LIABILITY AND THAT OF ITS SUPPLIERS SHALL BE LIMITED TO THE SUM OF FIFTY DOLLARS (USD $50) IN TOTAL. If the Evaluation Software has a time-out feature, then the software will cease operation after the conclusion of the designated evaluation period. Upon such expiration date, your license will expire unless otherwise extended. Access to any files created with the Evaluation Software is entirely at your risk. You acknowledge that Software FX has not promised or guaranteed to you that Pre-release Software will be announced or made available to anyone in the future, that Software FX has no express or implied obligation to you to announce or introduce the Pre-release Software, and that Software FX may not introduce a product similar to or compatible with the Pre-release Software. Accordingly, you acknowledge that any research or development that you perform regarding the Pre-release Software or any product associated with the Pre-release Software is done entirely at your own risk. During the term of this Software License Agreement, if requested by Software FX, you will provide feedback to Software FX regarding testing and use of the Pre-release Software, including error or bug reports. If you have been provided the Pre-release Software pursuant to a separate written agreement, your use of the Software is governed by such agreement. You may not sublicense, lease, loan, rent, distribute or otherwise transfer the Pre-release Software. Upon receipt of a later unreleased version of the Pre-release Software or release by Software FX of a publicly released commercial version of the Software, whether as a stand-alone product or as part of a larger product, you agree to return or destroy all earlier Pre-release Software received from Software FX and to abide by the terms of the license agreement for any such later versions of the Pre-release Software.
9.UPGRADES. If the Software is labeled as an upgrade, you must be properly licensed to use a product identified by Software FX as being eligible for the upgrade in order to use the Software. A Software labeled as an upgrade replaces and/or supplements the product that formed the basis for your eligibility for the upgrade. You may use the resulting upgrading product only in accordance with the terms of this License Agreement. If the Software is an upgrade of a component of a package of software programs that you licensed as a single product, the Software may be used and transferred only as part of that single package and may not be separated for use in more than one computer.
10.NO OPEN SOURCE. Your right to the Software does not include any license, right, power or authority to subject the Software in whole or in part to any of the terms of an Excluded License. An "Excluded License" means any "open source" or other license that require as a condition of use, modification and/or distribution of software subject to the Excluded License, that such software or other software combined and/or distributed with such software be
(a) disclosed or distributed in source code form;
(b) licensed for the purpose of making derivative works; or
(c) redistributable at no charge.
11.HIGH RISK ACTIVITIES. The Software is not fault tolerant and is not intended for use in high-risk activities. You may not use the Software in the design, construction, operation or maintenance of any nuclear facility or weapon of mass destruction, or for the purpose of aircraft navigation or control or any other activity in which the failure of the Software could result in loss of human life, personal injury or property damage.
12.SERVICES. There are no services provided under this agreement. You are responsible for installing the Software on your computers as permitted under this agreement.
13.FEES. Prices are available upon request and are subject to change. Please consult Licensor or its authorized resellers as to current fees before placing an order. All license fees are non-refundable and non-cancelable except as expressly provided in this agreement and do not include shipping, sales or use tax, withholding tax, excise tax, VAT or custom duties, all of which you are responsible for paying above and beyond the license fees due to Licensor or its authorized resellers.
14.ACTIVATION. During installation, an Internet connection is required on the machine where the product is being installed. Only the serial number and a unique product ID provided by the installation program is sent to our servers. Alternatively, if necessary, this information could be submitted from another computer that is connected to the Internet. The information is encrypted using the standard RSA Public/Private key methodology. For security reasons, we do not copy the private key onto the client machine; instead it resides on our servers and thus the need for an Internet connection to obtain a code to complete the install of the software. Our installation does not scan your hard drive or gather any personal information from your computer; therefore, no privacy issues should be of concern to you. Customers are still encouraged to register the product using the traditional and voluntary web site registration form. The installation process should be simple and unobtrusive for all customers. Our goal is to prevent installation of serial numbers that have been obtained from fraudulent purchases, returned products, expired programs and other suspicious means.
15.MAINTENANCE/SUPPORT. You may acquire maintenance/technical support services ("Maintenance/Support") for the Software provided that you subscribe to Licensor's Maintenance/Support programs or to an authorized Licensor partner support program. Maintenance/Support shall be based on the in-country list price and then applicable Maintenance/Support policy in effect at the time such Maintenance/Support is ordered. Maintenance/Support fees are due annually in advance and are nonrefundable and non-cancelable.
16.LIMITED WARRANTY AND LIMITATION OF LIABILITY.
(a) Limited Warranty and Customer Remedies. Software FX warrants to the person or entity that first purchases a license for use of the Software pursuant to the terms of this Software License Agreement that (i) the Software will perform substantially in accordance with any accompanying Documentation for a period of ninety (90) days from the date of receipt. Some states and jurisdictions do not allow limitations on duration of an implied warranty, so the above limitation may not apply to you. To the extent allowed by applicable law, implied warranties on the Software, if any, are limited to ninety (90) days. Software FX's and its suppliers' entire liability and your exclusive remedy shall be, at Software FX's option, either (i) return of the price paid, if any, or (ii) repair or replacement of the Software that does not meet Software FX's Limited Warranty and which is returned to Software FX with a copy of your receipt. This Limited Warranty is void if failure of the Software has resulted from accident, abuse, misapplication, abnormal use, Trojan horse, virus, or any other malicious external code. Any replacement Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. This limited warranty does not apply to Evaluation and/or Pre-release Software.
(b) No Other Warranties and Disclaimer. THE FOREGOING LIMITED WARRANTY AND REMEDIES STATE THE SOLE AND EXCLUSIVE REMEDIES FOR SOFTWARE FX OR ITS SUPPLIER'S BREACH OF WARRANTY. SOFTWARE FX AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, AND FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO YOU IN YOUR JURISDICTION, SOFTWARE FX AND ITS SUPPLIERS MAKE NO WARRANTIES, CONDITIONS, REPRESENTATIONS OR TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE AS TO ANY OTHER MATTERS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SOFTWARE FX AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, INFORMATIONAL CONTENT OR ACCURACY, QUIET ENJOYMENT, TITLE AND NON-INFRINGEMENT, WITH REGARD TO THE SOFTWARE, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHERS, WHICH VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION.
(c) Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW EVEN IF A REMEDY FAILS ITS ESSENTIAL PURPOSE, IN NO EVENT SHALL SOFTWARE FX OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, DIRECT, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF SOFTWARE FX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, SOFTWARE FX'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS SOFTWARE LICENSE AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE PRODUCT. Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply to you. In such states and jurisdictions, Software FX's liability shall be limited to the greatest extent permitted by law and the limitations or exclusions of warranties and liability contained herein do not prejudice applicable statutory consumer rights of person acquiring goods otherwise than in the course of business. The disclaimer and limited liability above are fundamental to this Software License Agreement between Software FX and you.
(d) Infringement Claims. Software FX will indemnify and hold you harmless and will defend or settle any claim, suit or proceeding brought against you by a third party that is based upon a claim that the content contained in the Software infringes a copyright or violates an intellectual or proprietary right protected by United States ("Claim"), but only to the extent the Claim arises directly out of the use of the Software and subject to the limitations set forth in Section 5 of this Agreement except as otherwise expressly provided. You must notify Software FX in writing of any Claim within ten (10) business days after you first receive notice of the Claim, and you shall provide to Software FX at no cost with such assistance and cooperation as Software FX may reasonably request from time to time in connection with the defense of the Claim. Software FX shall have sole control over any Claim (including, without limitation, the selection of counsel and the right to settle on your behalf on any terms Software FX deems desirable in the sole exercise of its discretion). You may, at your sole cost, retain separate counsel and participate in the defense or settlement negotiations. Software FX shall pay actual damages, costs, and attorney fees awarded against you (or payable by you pursuant to a settlement agreement) in connection with a Claim to the extent such direct damages and costs are not reimbursed to you by insurance or a third party, to an aggregate maximum equal to the purchase price of the Software. If the Software or its use becomes the subject of a Claim or its use is enjoined, or if in the opinion of Software FX's legal counsel the Software is likely to become the subject of a Claim, Software FX shall attempt to resolve the Claim by using commercially reasonable efforts to modify the Software or obtain a license to continue using the Software. If in the opinion of Software FX's legal counsel the Claim, the injunction or potential Claim cannot be resolved through reasonable modification or licensing, Software FX, at its own election, may terminate this Software License Agreement without penalty, and will refund to you on a pro rata basis any fees paid in advance by you to Software FX. THE FOREGOING CONSTITUTES SOFTWARE FX'S SOLE AND EXCLUSIVE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT. This indemnity does not apply to infringements that would not be such, except for customer-supplied elements.
17.JURISDICTION. This Agreement is governed by the laws of the State of Florida, the U.S. Copyright Act and other applicable U.S. federal laws. All disputes or legal proceedings relating to use of the SOFTWARE or this Agreement shall be brought and heard exclusively in the state or federal courts located in Palm Beach County, Florida, and by installing and/or using the SOFTWARE, you hereby irrevocably consent and submit to personal jurisdiction in such courts for all such disputes or legal proceedings.
U.S. GOVERNMENT RESTRICTED RIGHTS
The SOFTWARE and written materials are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is Software FX, Inc.
This Agreement is governed by the laws of the State of Florida, the U.S. Copyright Act and other applicable U.S. federal laws. All disputes or legal proceedings relating to use of the SOFTWARE or this Agreement shall be brought and heard exclusively in the state or federal courts located in Palm Beach County, Florida, and by installing and/or using the SOFTWARE, you hereby irrevocably consent and submit to personal jurisdiction in such courts for all such disputes or legal proceedings.