FusionCode
3.5 Standard Edition: End-User License Agreement
These terms apply to FusionCode 3.5 Standard Edition.
Capitalized
terms used in this License Agreement and not otherwise defined
herein shall have the meanings assigned to them.
By
checking the "Accept" button or installing or using
the FusionCode 3.5 software (the "Product"), you are
consenting to be bound by, and become a party to this agreement
as the "Licensee".
IF
YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT,
YOU MUST NOT CHECK THE "ACCEPT" BUTTON, YOU MUST NOT
INSTALL OR USE THE PRODUCT, AND YOU DO NOT BECOME A LICENSEE
UNDER THIS AGREEMENT.
1.
LICENSE AGREEMENT. In this Agreement "Licensor" shall
mean Aspeda Systems. Licensee shall have the right to use the
Product solely for its own internal data processing operations.
Licensee shall not: (a) remove any product identification, copyright
notices, or other notices or proprietary restrictions; (b) use
Product for commercial timesharing, rental, or service bureau
use; (c) transfer, sell assign or otherwise convey the Product
to another party without Licensor’s written consent; (d)
cause or permit reverse engineering, disassembly, or de-compilation
of Product; or (e) disclose results of any benchmark test of
the Product to any third party without Licensor’s prior
written approval. If more than one license agreement was provided
for the 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 Aspeda Systems
website, a printed or electronic agreement that states clearly
that it supersedes other agreements, a printed agreement provided
with the Product, an electronic agreement provided with the
Product.
2.
LICENSE GRANT. Licensor grants Licensee a non-exclusive and
non-transferable license to reproduce and use for personal or
internal business purposes the executable code version of the
Product, provided any copy must contain all of the original
proprietary notices. This license does not entitle Licensee
to receive from Aspeda Systems or its suppliers hard-copy documentation,
technical support, telephone assistance, or enhancements or
updates to the Product.
3.
RESTRICTIONS. Except as otherwise expressly permitted in this
Agreement, or a distribution agreement, such as the Aspeda Systems
FusionCode Distribution Program License Agreement, Licensee
may not: (i) Modify or create any derivative works of the Product
or documentation, including customization, translation or localization;
(ii) De-compile, disassemble, reverse engineer, or otherwise
attempt to derive the source code for the Product (except to
the extent applicable laws specifically prohibit such restriction);
(iii) Redistribute, encumber, sell, rent, lease, sublicense,
or otherwise transfer rights to the Product; (iv) Remove or
alter any trademark, logo, copyright or other proprietary notices,
legends, symbols or labels in the Product; or (v) Publish any
results of benchmark tests run on the Product to a third party
without Aspeda Systems prior written consent.
4.
FEES. There is no license fee for the Product. If Licensee wishes
to receive the Product on media, there may be a small charge
for the media and for shipping and handling. Licensee is responsible
for any and all taxes.
5.
TERMINATION. Without prejudice to any other rights, Licensor
may terminate this Agreement if Licensee breaches any of its
terms and conditions. Upon termination, Licensee shall destroy
all copies of the Product.
6.
PROPRIETARY RIGHTS. Title, ownership rights, and intellectual
property rights in the Product shall remain in Aspeda Systems
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 Aspeda Systems
or its suppliers' ownership of or rights with respect to the
Product. The Product is protected by copyright and other intellectual
property laws and by international treaties. Title and related
rights in the content accessed through the Product are the property
of the applicable content owner and are protected by applicable
law. The license granted under this Agreement gives Licensee
no rights in or to such content.
7.
DISCLAIMER OF WARRANTY. THE PRODUCT IS PROVIDED FREE OF CHARGE
AND ON AN "AS IS" BASIS, WITHOUT WARRANTIES OF ANY
KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES
THAT THE PRODUCT IS FREE OF DEFECTS, VIRUS FREE, ABLE TO OPERATE
ON AN UNINTERRUPTED BASIS, MERCHANTABLE, FIT FOR A PARTICULAR
PURPOSE OR NON-INFRINGING, UNLESS SUCH WARRANTIES ARE LEGALLY
INCAPABLE OF EXCLUSION. LICENSOR AND ITS SUPPLIERS HAVE NO LIABILITY
WITH RESPECT TO USE OF THE PRODUCT. THE ENTIRE RISK AS TO THE
QUALITY AND PERFORMANCE OF THE PRODUCT IS BORNE BY LICENSEE,
WHO ASSUMES THE ENTIRE COST OF ANY SERVICE AND REPAIR. IN ADDITION,
THE SECURITY MECHANISMS IMPLEMENTED BY THE PRODUCT HAVE INHERENT
LIMITATIONS, AND LICENSEE MUST DETERMINE THAT THE PRODUCT SUFFICIENTLY
MEETS ITS REQUIREMENTS. THIS DISCLAIMER OF WARRANTY CONSTITUTES
AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE PRODUCT IS
AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
8.
LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, IN NO EVENT WILL LICENSOR OR ITS AFFILIATES
OR THEIR RESPECTIVE SUPPLIERS OR RESELLERS BE LIABLE FOR ANY
INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES
ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT, INCLUDING,
BUT NOT LIMITED TO LOST PROFITS, LOST OF CONFIDENTIAL OR OTHER
DATA, LOSS OF GOODWILL, WORK INTERRUPTION OR STOPPAGE, COMPUTER
FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES
OR LOSSES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY
THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT,
TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN ANY CASE,
LICENSOR'S AND ITS AFFILIATES' ENTIRE COLLECTIVE LIABILITY UNDER
ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE
THE SUM OF THE FEES LICENSEE PAID FOR THIS LICENSE AND FEES
FOR SUPPORT OF THE PRODUCT RECEIVED BY LICENSOR UNDER A SEPARATE
SUPPLEMENTAL AGREEMENT (IF ANY) WITHIN THE PREVIOUS CALENDAR
YEAR, AND REPLACEMENT OF DEFECTIVE MEDIA OR PROVISION OF A REASONABLY
SIMILAR PRODUCT, AS DETERMINED AT LICENSOR'S SOLE DISCRETION,
WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED BY THE
NEGLIGENCE OF LICENSOR TO THE EXTENT APPLICABLE LAW PROHIBITS
THE LIMITATION OF DAMAGES IN SUCH CASES. SOME JURISDICTIONS
DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL
OR SPECIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT
APPLY TO YOU. LICENSOR IS NOT RESPONSIBLE FOR ANY LIABILITY
ARISING OUT OF CONTENT PROVIDED BY LICENSEE OR A THIRD PARTY
THAT IS ACCESSED THROUGH THE PRODUCT AND/OR ANY MATERIAL LINKED
THROUGH SUCH CONTENT. LICENSOR IS NOT RESPONSIBLE FOR ANY LIABILITY,
WHETHER FOR INFRINGEMENT OR OTHERWISE, ARISING OUT OF THE USE
OF THOSE PORTIONS OF THE PRODUCT NOT PROVIDED DIRECTLY BY ASPEDA
SYSTEMS.
9. EXPORT/IMPORT. Licensee agrees to comply with all export
and import laws and restrictions and regulations of the United
States and foreign countries, and not to export, re-export or
import the Product or any direct product thereof in violation
of any such restrictions, laws or regulations, or without all
necessary authorizations. Neither the Product nor the underlying
information or technology may be downloaded or otherwise exported
or re-exported (i) to Cuba, Iran, Iraq, Libya, North Korea,
Sudan, Syria, or any other country subject to U.S. trade sanctions
applicable to the Product, to individuals or entities controlled
by such countries, or to nationals or residents of such countries
other than nationals who are lawfully admitted permanent residents
of countries not subject to such sanctions; or (ii) to any named
party or individual on the U.S. Department of Treasury, Office
of Foreign Assets Control list of Specially Designated Nationals
and Blocked Persons, and/or the U.S. Department of Commerce,
Bureau of Export Administration Denied Persons List or Entity
List. By downloading or using the Product, Licensee agrees to
the foregoing, and represents and warrants that it complies
with these conditions.
10.
HIGH RISK ACTIVITIES. The Product 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, such as, 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 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 the
Product in such applications.
11.
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.
12.
MISCELLANEOUS. (a) This Agreement shall not be governed by the
United Nations Convention on Contracts for the International
Sale of Goods. (b) If any part of this Agreement is held invalid
or unenforceable, that part shall be construed to reflect the
parties' original intent, and the remaining portions remain
in full force and effect. (c) 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. (d) 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. (e) Licensee may not assign or otherwise transfer by
operation of law or otherwise this Agreement or any rights or
obligations herein except in the case of a merger or the sale
of all or substantially all of Licensee's assets to another
entity. (f) This Agreement shall be binding upon and shall inure
to the benefit of the parties, their successors and permitted
assigns. (g) 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. (h) If any dispute
arises under this Agreement, the other party, for any and all
legal fees and costs associated therewith shall reimburse the
prevailing party. (i) Licensor may use Licensee's name in any
Licensee reference list or in any press release issued by Licensor
regarding the licensing of the Product and/or provide Licensee's
name and the names of the Product licensed by Licensee to third
parties.
Program
Warning
Warning: Copyright law and international treaties protect this
computer program. Unauthorized reproduction or distribution
of this program, or any portion of it, may result in severe
civil and criminal penalties, and will be prosecuted to the
maximum extent possible under the law.
