Freedom Scientific End User License Agreement (EULA) – Fusion
Last updated: February 18, 2019
IMPORTANT! BE SURE TO CAREFULLY READ AND UNDERSTAND ALL OF THE RIGHTS, OBLIGATIONS AND RESTRICTIONS SET FORTH IN THIS END USER LICENSE AGREEMENT ("EULA"). LICENSEE IS NOT AUTHORIZED TO USE THE FUSION™ PROGRAM, UNLESS AND UNTIL LICENSEE ACCEPTS THE TERMS OF THIS EULA.
BY AGREEING TO THE TERMS OF THIS EULA, USING, INSTALLING OR DOWNLOADING THE PROGRAM, LICENSEE SIGNIFIES ITS ACCEPTANCE OF AND INTENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA. BY USING THE PROGRAM, LICENSEE ACKNOWLEDGES THAT LICENSEE HAS READ AND UNDERSTANDS THIS EULA, AND AGREES TO BE BOUND BY ALL OF ITS TERMS AND CONDITIONS. IF LICENSEE DOES NOT ACCEPT THE TERMS AND CONDITIONS OF THIS EULA, THEN DO NOT USE, INSTALL OR DOWNLOAD THE PROGRAM.
This EULA is entered into between Freedom Scientific, Inc. a Delaware corporation, with an address at 17757 US Highway 19 N, Suite 560, Clearwater, Florida 33764, U.S.A. (referred to as "Licensor") and you (referred to as "Licensee") and shall be effective as of the date Licensee accepts the terms of this EULA by any of the means noted above ("Effective Date").
- 1.1 "Activated"
- means that an appropriate License key has been entered allowing the Program to fully operate.
- 1.2 "Computer"
- means a computer, workstation, terminal or device.
- 1.3 "Documentation"
- means the user guide, help information, content and/or other documentation and materials accompanying and associated with the Software, including associated media, printed materials and any online or electronic documentation provided by Licensor for use with the Software.
- 1.4 "Edition"
- means the specific edition or mode of the Program licensed to or used by Licensee and covered by this EULA. There are five (5) distinct editions or modes of the Program: Home, Professional, Student Edition, Limited Timed and 40-Minute Mode. Information identifying the applicable edition or mode is provided in the "About Box" under the Help section of the Software or otherwise in the documentation accompanying Licensee's purchase of the License, or if applicable, in the Organizational License.
- 1.5 "End User"
- means Licensee, as either an individual Licensee if licensing the Program directly, or as an employee or contractor who is authorized by an Organizational Licensee to use the Program.
- 1.6 "License"
- means the license to use the Program as set forth in this EULA, in any applicable Organizational License, and in any document or confirmation issued, agreed or otherwise confirmed by Licensor that contains the specifics of the type of license to use the Program granted to Licensee.
- 1.7 "Organizational License"
- means the separate software license agreement or other written understanding as may be entered into between Licensor and an Organizational Licensee, which provides for the licensing and use of the Program by the Organizational Licensee and its End Users.
- 1.8 "Organizational Licensee"
- means any business entity, enterprise, organization or governmental institution that receives an Organizational License to the Program from Licensor, subject to each individual End User agreeing to a EULA governing their use of the Program. An Organizational Licensee shall be responsible and liable for any and all use of the Program by individual End Users receiving and using the Program under an Organizational License.
- 1.9 "Program"
- means, collectively, the Software, Updates, all related Documentation, and any Upgrades provided under this EULA.
- 1.10 "Software"
- means any computer program (in object code) of Licensor provided to and downloaded, installed or accessed by an End User pursuant to this EULA.
- 1.11 "Term"
- means the term of the applicable License and as more particularly set forth for the applicable Edition in Section 2.2 below.
- 1.12 "Upgrade"
- means any new version of the Software delivered to Licensee pursuant to this EULA or an Organizational License.
- 1.13 "Update"
- means any patch, bug fix or any other update of the Software delivered to Licensee pursuant to this EULA or an Organizational License.
2. LICENSE TO THE PROGRAM
2.1 General Licensing Provisions and Grant of License.
Licensor provides Licensee with the Program Licensee has downloaded, received in a package with this EULA, or received by other authorized means, for Licensee's use in accordance with the terms and conditions this EULA. If Licensee is an End User who is an employee or contractor of an Organizational Licensee, Licensee's use of the Program will also be subject to the terms and conditions of the applicable Organizational License between Licensor and such Organizational Licensee. The terms and conditions applicable to End Users in the applicable Organizational License are incorporated by reference into this EULA. Subject to the terms and conditions in this EULA, and the provisions of Section 2.2 that apply to Licensee's Edition, Licensor grants to Licensee a limited, nonexclusive, nontransferable, non-sublicensable license to use the Program as an End User for the applicable Term. All of the provisions of this EULA, except for Section 2.2, apply to all Licenses. Since Licensor makes the Program available in different Editions which are more fully described below in Section 2.2, only those provisions of Section 2.2 applicable to Licensee's specific Edition will apply.
2.2 Licenses for Specific Editions.
Licensor further defines and limits the License granted in Section 2.1 for Licensee's specific Edition as follows:
2.2.1 Home License.
The "Home License"" is limited to use by a single End User only and is limited to Licensee's personal and non-commercial use. While, under the Home License, the Program may be installed on more than one Computer and the License Activated on up to three Computers, use of the Program is limited to only one Computer at a time and not concurrently on more than one Computer or by more than one End User at a time. The Term of the Home License is perpetual unless otherwise stated in the License. Licensee will receive all Updates that Licensor makes generally commercially available during the Term of Licensee's Home License. However, unless Licensee purchases a separate software maintenance agreement for the Program from Licensor as provided in Section 2.3, Licensee will not receive any Upgrades.
2.2.2 Professional License.
A. The "Professional License" is for use by a single End User, or by multiple End Users pursuant to the applicable Organizational License.
B. If Licensee is an individual, while the Program may be installed on more than one Computer and the License Activated on up to three Computers, use of the Program is limited to only one Computer at a time and not concurrently on more than one Computer or by more than one End User at a time. Licensee is permitted to use the Program on Licensee's own Computer or a Computer of Licensee's employer, but only for Licensee’s own personal use or for the internal business use of Licensee's employer. Unless otherwise stated in the License, the Term of a Professional License owned by an individual Licensee is perpetual.
C. If Licensee is using the Program as an employee or consultant of an Organizational Licensee, then Licensee may only use the Program for the commercial purposes of the business of the Organizational Licensee that licensed the Program, and only on a Computer owned or provided by the Organizational Licensee. No Professional License of an Organizational Licensee may be transferred to an individual. Unless otherwise stated in the Organizational License, the Term of a Professional License owned by an Organizational Licensee is perpetual.
D. Access to the Program for a Professional License purchased for multiple End Users is subject to the following additional limitations unless provided otherwise in the Organizational License:
(i) access may be provided for individual End Users through individual, stand-alone keys to be input into an individual Computer, and an End User's use of the Program is limited to one Computer at a time; or alternatively
(ii) access to the Program may be provided via an internal network or storage device (such as a network server) and the Program can be used and deployed only on the identified server of the Organizational Licensee, so long as the number of End Users of the Program does not exceed the number of users for which license rights to use the Program have been acquired and dedicated by the Organizational Licensee.
Licensee's rights as an individual End User under (i) or (ii) above immediately terminate when End User's employment or contract with the Organizational Licensee ends, or the License is otherwise terminated by the Organizational Licensee or as provided in this EULA.
E. Unless otherwise agreed in an Organizational License, during the Term of the Professional License: (i) Licensee (and Licensee's permitted End Users) will receive all Updates that Licensor makes generally commercially available, but (ii) Licensee will not receive any Upgrades unless Licensee purchases a separate software maintenance agreement for the Program from Licensor as provided in Section 2.3.
2.2.3 Student Edition License.
Unless otherwise stated in the applicable Organizational License, the Student Edition License is effective for a term of three hundred sixty-five (365) days from the Effective Date, and use of the Program under a Student Edition License is restricted to use by a registered student, or a member of the faculty or staff on a Computer at a school, educational institution, or their home. While, under the Student Edition License, the Program may be installed on more than one Computer and the License Activated on up to three Computers, use of the Program is limited to only one Computer at a time and not concurrently on more than one Computer or by more than one End User at a time. Licensee will receive all Updates and Upgrades that Licensor makes generally commercially available during the Term of Licensee’s Student Edition License.
2.2.4 Limited Timed License.
Unless otherwise specified in an Organizational License, the Limited Timed License is effective for a Term of ninety (90) days from the Effective Date. Licensee may use the Limited Timed License for testing or for limited duration use, or as otherwise agreed with Licensor. While, under the Limited Time License, the Program may be installed on more than one Computer and the License Activated on up to three Computers, use of the Program is limited to only one Computer at a time and not concurrently on more than one Computer or by more than one End User at a time. Licensee will receive all Updates and Upgrades that Licensor makes generally commercially available during the Term of Licensee’s Limited Timed License.
2.2.5 40-Minute Mode.
The 40 Minute Mode is provided as a limited time duration license mode of the Program, which can be used to get started during the installation process of the Program or for a limited demonstration of how the Program works. The Program in 40 Minute Mode has a Term limited to forty (40) minutes in duration. Every Program that does not have an active license to use the Program (including, for example, after expiration of the Term of the License) or an associated key will operate in this 40 Minute Mode. The 40 Minute Mode is not intended for commercial use other than use while waiting for an active license to use the Program or an associated key to arrive or be installed. The 40 Minute Mode also provides emergency access to a Computer for an End User when an active license to use the Program or a key is not present or associated with a Computer. If the Program reverts to the 40 Minute Mode, an active license (or key) is required to return the Program to full capability.
For Home and Professional Licenses, Licensor may from time to time and for a fee offer Licensee the option to receive an Upgrade. Depending on which option Licensee elects to purchase, Licensee will be entitled to receive an Upgrade consisting of either a single new version (i.e. the next version of the Software after the version of the Software originally licensed to Licensee under this EULA), or the next two new versions (i.e. the next two sequential versions of the Software after the version of the Software originally licensed to Licensee under this EULA). The Upgrade options may be varied by Licensor from-time-to-time. If and when Licensee accepts any Upgrade, the Upgrade will be considered part of the Software and Licensee's use of the Upgrade will be subject to the terms and conditions of this EULA or any agreement that supersedes this EULA and which governs the use of such Upgrade. If Licensee does not agree to be bound by such superseding agreement, Licensee may not use the Upgrade, and in the event that Licensee is then currently using or has used any Upgrade without agreeing to any superseding agreement, Licensee must cease such use and remove the Upgrade from Licensee's Computer and all Licenses to the Upgrade will be considered terminated. Licensor reserves the right to discontinue support for all versions of the Software other than the then-current released version or updated Software. To be eligible to use any Software identified as an Upgrade, Licensee must be first licensed and current in Licensee's License for the Software eligible for the Upgrade.
2.4 Rights Reserved.
All rights to the Program not expressly granted to Licensee in this EULA are reserved by Licensor. All trademarks included in the Program or used with the Program, including without limitation Fusion™, are the property of Licensor. Any use of such marks shall inure to the benefit of Licensor.
2.5 License and Not Sale.
The Program is being provided by a non-exclusive license and not as a sale of the Program. Licensee should understand that it does not own the Program. Licensee is only licensed to use the Program for the Term of the applicable License. By virtue of the License, Licensee does not obtain or possess any ownership in the Program or any related copyright or other intellectual property rights in the Program.
2.6 Payment of License Fees.
Licensee's use of the Program is subject to payment of any License fee or renewal fee (if applicable) for any subsequent Term, or Organizational License's payment of a License fee or renewal fee for an Organizational License under which Licensee is an End User. Except as otherwise set forth in any applicable Organizational License, Licensor may change any fee for a renewal Term in its sole discretion. To maintain the License under this EULA, Licensee (or the Organizational Licensee responsible for payment of the applicable License fee) must timely pay any applicable License fee or renewal fee. Except as otherwise set forth in any applicable Organizational License, failure to pay any such applicable fee shall be grounds for termination of the License by Licensor without any notice required, and Licensee agrees that failure to timely pay the applicable License fee or renewal fee will result in termination of the License.
3. CHOOSING NOT TO ACCEPT THE LICENSE AGREEMENT
If Licensee chooses to not accept the terms of this EULA, then (i) if Licensee received a packaged copy of the Program, Licensee must promptly return the Program, or (ii) if Licensee received a copy of the Program as an electronic download, Licensee must promptly remove the Program (including the Software, and all related Documentation) from Licensee's Computer, network or other device on which the Program is saved, stored or copied. For copies of the Program obtained in a physical package, if Licensee does not accept the Program, the following items must be returned to Licensor: the Software, all Documentation that may have been included with the Software, and the receipt Licensee received when Licensee purchased the Program. Licensor will refund to Licensee the amount of money Licensee actually paid for the Program, minus shipping/handling fees if Licensee meets the above conditions.
4. THE PROGRAM
4.1 Use of the Program.
Licensee assumes sole responsibility for determining the appropriateness of the Program for achieving Licensee's intended results. Licensee further assumes sole responsibility and all risk for the installation and use of the Program, and all data and results obtained from such installation and use of the Program. Licensee assumes complete responsibility for the selection, installation, use, and placement of hardware with which Licensee uses the Program. Licensor does not warrant that the Program is suitable for Licensee's particular purpose or use. Nothing in this EULA shall prevent Licensee from using the Program in any disaster recovery and/or preproduction environment or process. Licensee may, from time to time, copy and use the Program for purposes of archival or emergency backup, including, but not limited to the testing and operation of disaster recovery plans or other similar contingencies. These copies and the original Program may be stored in the possession of another person, so long as the storage does not result in the Program being used in violation of these terms. Licensee's use of the Program as an End User must be consistent with these installation and use requirements.
4.2 Restrictions on Use of the Program.
Licensee may not use the Program for any purpose other than those expressly set forth in this EULA. Licensee may not, in whole or part: alter, modify, decompile, disassemble, reverse engineer, rent, lease, loan or sublicense the Program; create derivative works from the Program; or, except as expressly permitted in this EULA or any applicable Organizational License, copy, reproduce, duplicate, transfer, distribute or provide others with the Program. Licensee also may not allow the Program to be transmitted or communicated over a network except as specifically permitted in this EULA or in an Organizational License. Licensee may not operate or provide the Program as a service bureau. In the event Licensee copies, transfers, decompiles, disassembles, or reverse engineers the Program or creates a derivative work for another person in any form, except as is specifically authorized, then Licensee's License to use the Program shall be automatically terminated.
4.3 Ownership of Intellectual Property.
Licensor represents and warrants that (i) it owns all right, title, and ownership of the copyrights, and other intellectual property rights in and to the Program, and (ii) it has all of the rights and licenses in any third party intellectual property embodied in the Program necessary to grant the rights to Licensee under this EULA. Licensor further represents and warrants that the Program does not and will not infringe the intellectual property rights of any third party and Licensor will indemnify, defend and hold Licensee harmless, notwithstanding any limit of liability, based on or arising out of any claim or threatened claim that the Program or any part or use thereof infringes or violates any patent, copyright, trademark, trade secret, license or other property or proprietary right of any third party; provided that Licensee notifies Licensor in writing within thirty (30) days of the claim, Licensor has sole control over the defense and all negotiations for a settlement or compromise, and Licensor receives reasonable assistance from Licensee necessary to perform Licensor's obligations hereunder. The foregoing indemnity shall not apply with respect to the Program, or portions or components thereof: (i) not provided by Licensor; (ii) used in a manner not expressly authorized by this EULA or any Organizational License; (iii) if the alleged infringement or misappropriation results from any customizations, modifications, alterations or changes to the Program not developed or provided by Licensor; or (iv) combined with other products or services not provided by Licensor where the alleged infringement would not exist but for such combination. In the event that the Program is held by a court of competent jurisdiction to constitute an infringement or the use of the Program is enjoined (or Licensor reasonably believes that any of the foregoing are reasonably likely to occur), Licensor may, at its option: (i) procure for Licensee the right to continue to use the Program; (ii) provide an Upgrade so that use of the Program becomes non-infringing; or (iii) replace the Program with software that is substantially similar in functionality and performance. The Program is protected by U.S. and international copyright laws and treaties. Except as may be expressly stated herein, this EULA does not grant to Licensee any rights to the Program (or accompanying Documentation) or any rights to use the Documentation apart from the Software. Whenever the Program (including Documentation) is reproduced, then the copyright notice must also be reproduced and displayed in its original or substantially original form.
Licensor shall ensure that the Program does not contain any "back door," "time bomb," "Trojan horse," "worm," "drop dead device," "virus", "preventative routines," "disabling code," "cookie" or other computer software routines or programming devices designed to (i) permit unauthorized persons to access the Program, (ii) intentionally disable, modify, destroy or damage the Program, and/or (iii) make the Program inaccessible or delayed.
5. TERM AND TERMINATION
This EULA shall be effective from the Effective Date and shall extend for the Term of the applicable License for the Home License, Professional License, Student Edition License, Limited Timed License or 40-Minute Mode, or until otherwise terminated, and this EULA shall immediately terminate concurrently with the termination of any Organizational License in connection with which the License in this EULA is granted to Licensee.
Limited duration Licenses provided for in Section 2.2 will automatically terminate at the end of the initial Term (and any subsequent term), unless renewed pursuant to Licensor's then-current renewal requirements or as may be provided for in an Organizational License, including payment of all fees applicable to any renewal period. For limited duration Licenses, to keep Licensee's License in force, Licensee must timely pay the renewal fee, and failure to pay any required renewal fee, or any other required fee, shall be grounds for termination of the License by Licensor without notice.
5.3 Termination by End User.
Licensee may terminate the License at any time by removing or destroying all copies of the Program (including all copies of the Documentation), regardless of the form from Licensee's Computer or device, or otherwise in Licensee's possession or control.
5.4 Termination for Cause.
Except as otherwise provided in an Organizational License, Licensee's License to the Program and this EULA will automatically terminate under any of the following: (i) if Licensee breaches or fails to comply with any of the terms of this EULA; (ii) if Licensee removes from Licensee's Computer(s) and destroy all copies of the Program in Licensee's possession or under its control; or (iii) if Licensee's License Term ends, terminates or lapses including for failure to pay any renewal fee or pay any other applicable fee to extend or otherwise continue the Term of the License. For clarification under (i) above, this License is immediately terminated in the event the Licensee fails to comply with any term or condition of this EULA, whether or not Licensor has knowledge of the failure to comply.
5.5 Requirements upon Termination.
Upon termination of this EULA, Licensee is required to immediately cease use of the Program and destroy, delete or remove all copies of the Program from Licensee's Computer(s). Licensee agrees to destroy, delete and remove all copies of the Program (including all Documentation) regardless of form, at such time this EULA is terminated.
6. LIMITED WARRANTY
6.1 LIMITED WARRANTY.
LICENSOR WARRANTS THAT WHEN DELIVERED TO LICENSEE AND FOR NINETY (90) DAYS THEREAFTER, THAT THE SOFTWARE (EXCLUDING UPDATES FOR PURPOSES OF THIS SECTION 6.1) WILL CONFORM IN ALL MATERIAL RESPECTS TO LICENSOR'S THEN-CURRENT DOCUMENTATION FOR THE SOFTWARE. IN THE EVENT OF ANY CLAIM BY LICENSEE UNDER THIS LIMITED WARRANTY, LICENSEE MUST NOTIFY LICENSOR IN WRITING DESCRIBING IN REASONABLE DETAIL THE NATURE OF THE NONCONFORMITY, AND PROVIDE TO LICENSOR SUFFICIENT DETAIL TO ALLOW LICENSOR TO REPRODUCE THE PROBLEM. THE LIMITED WARRANTY CONTAINED IN THIS SECTION 6.1 WILL NOT APPLY IF, AND TO THE EXTENT THAT: (I) THE SOFTWARE IS NOT USED IN ACCORDANCE WITH THIS EULA OR THE DOCUMENTATION; (II) THE SOFTWARE OR ANY PART THEREOF HAS BEEN CUSTOMIZED, MODIFIED, ALTERED OR CHANGED BY ANYONE OTHER THAN LICENSOR; OR (III) A MALFUNCTION IN THE SOFTWARE HAS BEEN CAUSED BY ANY OF LICENSEE'S EQUIPMENT OR ANY THIRD-PARTY SOFTWARE.
6.2 AS-IS AND DISCLAIMER OF WARRANTIES.
EXCEPT FOR THE EXPRESS LIMITED WARRANTY IN SECTION 6.1 AND TO THE MAXIMUM EXTENT ALLOWABLE BY LAW, LICENSOR PROVIDES THE PROGRAM TO LICENSEE "AS IS" AND WITH ALL FAULTS, MAKES NO OTHER WARRANTIES RELATED TO THE PROGRAM OR THE RESULTS TO BE OBTAINED FROM USE OF THE PROGRAM, AND PROVIDES THE PROGRAM WITHOUT ANY OTHER WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LICENSOR DOES NOT WARRANT, AND LICENSEE HEREBY WAIVES ANY WARRANTY, THAT USE OF OR ACCESS TO THE PROGRAM BY LICENSEE AS AN END USER WILL BE ERROR FREE. LICENSOR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE PROGRAM WILL MEET LICENSEE'S REQUIREMENTS.
6.3 OTHER LIMITATIONS.
LICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES (AND EXPRESSLY DISCLAIMS ALL WARRANTIES) WITH RESPECT TO ANY HARDWARE, SOFTWARE, DATA OR INFORMATION NOT SUPPLIED BY LICENSOR, ANY INFORMATION, DATA, FORMULAS OR ALGORITHMS USED, ACCESSED BY OR INCORPORATED INTO THE PROGRAM, OR ABOUT ANY DEFECTS RELATED TO DOWNLOAD OR INTERNET CONNECTIVITY PROBLEMS DURING DOWNLOAD OF THE PROGRAM.
6.4 Use at Licensee's Sole Risk.
Licensee as an End User hereby acknowledges and agrees that use of the Program shall be at Licensee's sole and exclusive risk and subject to all applicable rules, regulations and applicable laws. Licensee hereby acknowledges that the Program may contain errors, inaccuracies and omissions. Licensee assumes any and all risks as to the results and performance of the Program, including any risk, damage, loss or harm from Licensee's use or downloading the Program.
6.5 Inapplicability of Exclusions.
As the exclusion of implied warranties is not permitted by some states or jurisdictions, the above exclusions may not apply to Licensee. In that case, any implied warranties are limited in duration to ninety (90) days from the earlier date of download or activation of the License.
7. LIMITATION OF REMEDIES
7.1 EXCLUSIVE REMEDY.
EXCEPT FOR ITS INDEMNIFICATION OBLIGATIONS UNDER THIS EULA, LICENSOR'S ENTIRE LIABILITY AND THE LICENSEE'S EXCLUSIVE REMEDY UNDER THE LIMITED WARRANTY DURING THE WARRANTY PERIOD SHALL BE THAT LICENSOR, AT ITS SOLE OPTION, WILL EITHER REPAIR OR REPLACE THE PROGRAM NOT MEETING LICENSOR'S LIMITED WARRANTY, OR ALLOW FOR FURTHER DOWNLOAD OR UPGRADE OF THE PROGRAM.
7.2 LIMITATION OF DAMAGES.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS IN ITS ESSENTIAL PURPOSE, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS OR INFORMATION, BUSINESS INTERRUPTION, OR ANY OTHER PECUNIARY LOSS), ARISING OUT OF OR IN ANY WAY RELATED TO THEIR RESPECTIVE OBLIGATIONS UNDER THIS EULA AND WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR ITS INDEMNIFICATION OBLIGATIONS UNDER THIS EULA, THE ENTIRE LIABILITY OF LICENSOR FOR ANY DAMAGES UNDER ANY PROVISION OF THIS EULA SHALL BE LIMITED TO THE ACTUAL FEES PAID TO LICENSOR BY OR ON BEHALF OF LICENSEE FOR THE SINGLE LICENSE EXPRESSLY COVERED BY THIS EULA.
As the exclusive remedy and limitation of damages may not be permitted by some states or jurisdictions, the provisions of Sections 7.1 and 7.2 may not apply to Licensee.
To the maximum extent permitted under applicable law, Licensee agrees to indemnify and hold Licensor and its affiliates and subsidiaries, and their respective officers, directors, employees, agents, representatives, successors, assigns, service providers and suppliers harmless from any and all claims, losses, demands, fines, penalties, costs, and expenses, including reasonable attorney fees and court costs, made by any third party in connection with or arising out of: (i) any bodily injury (including death) or damage to real property or tangible personal property caused by Licensee; (ii) Licensee's breach or violation of any provision of this EULA or any applicable Organizational License; and (iii) Licensee's violation of applicable laws or any rights of another person or entity. Licensee shall be responsible for any acts and omissions of its End Users in connection with its obligation under this EULA.
9. OTHER PROVISIONS
9.1 Restrictions on Assignment and Transfer.
Except as permitted herein, Licensee may not sublicense, assign, or transfer this License or EULA to another party, and any attempt to sublicense, assign or transfer any of the rights, duties or obligations under this EULA shall be null and void and without any legal effect. Nothing in this Section shall prevent an Organizational Licensee from transferring or assigning this EULA in connection with any merger or consolidation of the Organizational Licensee, or a sale of all or substantially all of the assets of the Organizational Licensee.
9.2 Consent to Use of Information.
9.3 Governing Law, Jurisdiction and Venue.
This EULA shall be governed, interpreted, construed and enforced in accordance with the laws of the State of Florida, U.S.A. The parties agree that the sole and exclusive venue and jurisdiction for filing and maintaining any lawsuit or other action or proceeding related to this EULA shall be in the state or federal courts sitting in Pinellas County, Florida, U.S.A. Each party, by entering into this EULA, consents and submits itself to the personal jurisdiction of such court. The parties agree that no Uniform Computer Information Transactions Act or similar provision from any state or other jurisdiction shall apply to this EULA.
9.4 Export Restrictions.
Licensee may not export, ship, transmit or re-export the Program in violation of any applicable law or regulation, including but not limited to, Export Administration Regulations issued by the U.S. Department of Commerce. Unless in compliance with applicable law and specifically authorized in writing by Licensor, Licensee shall not export the Program under any circumstances whatsoever. In any case, Licensee will indemnify and hold Licensor harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including reasonable attorney's fees) arising from, or relating to, any breach by Licensee of Licensee's obligations under this section.
No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
In the event that any one or more of the provisions of this EULA are held to be invalid or otherwise unenforceable, the enforceability of the remaining provisions shall be unimpaired and enforced to the full extent permitted by law.
9.7 Injunctive Relief.
To the extent permitted under applicable law, the parties agree that in the event of a breach by either party of any provision of this EULA, the non-breaching party shall be entitled to seek and obtain injunctive or other equitable relief, or both, in each case without the requirement to post any bond or other form of security, and without such act constituting an election of remedies or disentitling the non-breaching party to each and every remedy available at law or in equity for a breach of this EULA by the other party.
9.8 Entire Agreement.
Except to the extent governed by an Organizational License, this EULA constitutes the entire agreement between Licensee and Licensor related to the Program and supersedes all prior or contemporaneous agreements, proposals, negotiations, representations and communications between Licensee and Licensor related to the Program. Licensee acknowledges that Licensee has not been induced to enter into this EULA by any representations or promises not specifically stated herein.
9.9 Statutory Exceptions for Public Institutions.
If Licensee is government or public agency, instrumentality or institution, including without limitation a public educational, research or medical institution or body, and any terms in this EULA (including by way of example, all or part of the termination, limitation of liability, exclusive remedies, limited warranty, indemnification and injunctive relief sections) are invalid or unenforceable against Licensee because of applicable law, then those terms will be deemed excluded and unenforceable (as the case may be), and instead construed in a manner most consistent with applicable governing law. In addition, if the applicable governing law for this EULA set forth in Section 9.3 is precluded for Licensee under applicable law, then this EULA will be governed and construed under the laws of the country, state, province or other jurisdiction in which Licensee's primary office is located.
If Licensee has questions concerning this EULA, please contact Licensor for clarification at 17757 US Hwy 19 North – Suite 560, Clearwater, Florida 33764, or phone (727) 803-8000.