Last updated: May 13, 2020
This end user license agreement (“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 “Freedom”) and you (referred to as “You”) and shall be effective as of the date You accept the terms of this EULA by any of the means noted above (“Effective Date”). Capitalized terms in this document are defined within and in Section 8 below.
Be sure to carefully read and understand all of the rights, obligations and restrictions set forth in this EULA. BY AGREEING TO THE TERMS OF THIS EULA, USING, INSTALLING OR DOWNLOADING THE PROGRAM, YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS EULA, THEN DO NOT USE, INSTALL OR DOWNLOAD THE PROGRAM.
Freedom provides You with the Program that You have downloaded, received in a package with this EULA, or received by other authorized means, for your use in accordance with the terms and conditions this EULA.
Subject to the terms and conditions in this EULA, Freedom grants to You a limited, nonexclusive, nontransferable, non-sublicensable license to use the Program for the applicable Term. All of the provisions of this EULA, except for Section 1.2, apply to all Licenses. Since Freedom makes the Program available in different Editions which are more fully described below in Section 1.2, only those provisions of Section 1.2 applicable to your specific Edition will apply.
1.2.1 Home License. The “Home License” is limited to use by a single End User only and is limited to your personal and non-commercial use. While, under the Home License, the Program may be installed on more than one workstation, terminal or device (“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. You will receive all Updates that Freedom makes generally commercially available during the Term of your Home License, however, unless You purchase a separate software maintenance agreement for the Program from Freedom as provided in Section 1.3, You will not receive any Upgrades.
1.2.2 Home Annual License.
The “Home Annual License” is limited to use by a single End User only and is limited to your personal and non-commercial use. While, under the Home Annual 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 Annual License is the limited duration Term specified in an Ordering Document. Licensee will receive all Updates and Upgrades that Licensor makes generally commercially available during the Term of Licensee’s Home Annual License.
1.2.3 Student Annual Edition License. Unless otherwise stated in an applicable License, the Student Annual 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 Annual Edition License is restricted to use by a registered student, or a member of the faculty or staff at an educational school or institution. While, under the Student Annual License, the Program may be installed on more than one Computer, the License may be Activated and used on only one Computer at a time and not concurrently on more than one Computer or by more than one End User at a time. You will receive all Updates and Upgrades that Freedom makes generally commercially available during the Term of your Student Edition License.
1.2.3 Limited Timed License. Unless otherwise specified in a License, the Limited Timed License is effective for a Term of ninety (90) days from the Effective Date. You may use the Limited Timed License for testing or for limited duration use, or as otherwise agreed with Freedom. 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. You will receive all Updates and Upgrades that Freedom makes generally commercially available during the Term of your Limited Timed License.
1.2.4 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 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.
1.2.5 Professional License
The “Professional License” is for use by a single End User. 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. You are permitted to use the Program on Your own Computer or a Computer of Your employer (if your employer purchased the Program for You), but only for Your own personal use or for the internal business use of Your employer. Unless otherwise stated in the License, the Term of a Professional License is perpetual. Your rights as an individual End User immediately terminate when Your employment or contract with the ends (if the program was purchased
by your employer on your behalf), or the License is otherwise terminated as provided in this EULA. During the Term of the Professional License: (i) you will receive all Updates that Freedom makes generally commercially available, but (ii) you will not receive any Upgrades unless you purchase a separate software maintenance agreement for the Program from Licensor as provided in Section 1.3.
Freedom may from time to time and for a fee offer You the option to receive an Upgrade. The Upgrade options may be varied by Freedom from-time-to-time. If and when You accept any Upgrade, the Upgrade will be considered part of the Software and your use of the Upgrade will be subject to this EULA and any other agreement governing use of such Upgrade. If You do not agree to be bound by such superseding agreement, You may not use the Upgrade, and in the event that You are then currently using or have used any Upgrade without agreeing to any superseding agreement, You must cease such use and remove the Upgrade from your Computer and all Licenses to the Upgrade will be considered terminated. Freedom 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, You must be first licensed and current in your License for the Software eligible for the Upgrade.
Your use of the Program is subject to payment of any License fee or renewal fee (if applicable) for any subsequent Term. Except as otherwise set forth in any applicable License, Freedom may change any fee for a renewal Term in its sole discretion. To maintain the License under this EULA, You must timely pay any applicable License fee or renewal fee. Except as otherwise set forth in any applicable License, failure to pay any such applicable fee shall be grounds for termination of the License by Freedom without any notice required, and You agree that failure to timely pay the applicable License fee or renewal fee will result in termination of the License.
If You choose to not accept the terms of this EULA, then (i) if You received a packaged copy of the Program, You must promptly return the Program, or (ii) if You received a copy of the Program as an electronic download, You must promptly remove the Program from your 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 You do not accept the Program, the following items must be returned to Freedom: the Software, all Documentation that may have been included with the Software, and the receipt You received when You purchased the Program. We will refund to You the amount of money You actually paid for the Program, minus shipping/handling fees if You meet the above conditions.
You assume sole responsibility for determining the appropriateness of the Program for achieving your intended results. You further assume 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. You assume complete responsibility for the selection, installation, use, and placement of hardware with which You use the Program. We do not warrant that the Program is suitable for your particular purpose or use. Nothing in this EULA shall prevent You from using the Program in any disaster recovery and/or preproduction environment or process. You 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. Your use of the Program as an End User must be consistent with these installation and use requirements. You shall be responsible for any acts and omissions of your End Users in connection with your obligations under this EULA.
You may not use the Program for any purpose other than those expressly set forth in this EULA. You 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, copy, reproduce, duplicate, transfer, distribute or provide others with the Program. You also may not allow the Program to be transmitted or communicated over a network except as specifically permitted in this EULA or in an applicable License. You may not operate or provide the Program as a service bureau. In the event You copy, transfer, decompile, disassemble, or reverse engineer the Program or create a derivative work for another person in any form, except as is specifically authorized, then your License to use the Program shall be automatically terminated. You may not circumvent any security measures in the Program.
You acknowledge that as between You and Freedom, Freedom owns all right, title, and ownership of the copyrights, and other intellectual property rights in and to the Program. 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 You any rights to the Program or any rights to use the Documentation apart from the Software. Whenever the Program is reproduced, then the copyright notice must also be reproduced and displayed in its original or substantially original form. The Program is being provided by a non-exclusive license and not as a sale of the Program. You are only licensed to use the Program for the Term of the applicable License. By virtue of the License, You do not obtain or possess any ownership in the Program or any related copyright or other intellectual property rights in the Program. All trademarks included in the Program or used with the Program are the property of Freedom. Any use of such marks shall inure to the benefit of Freedom.
We work hard to 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.
This EULA shall be effective from the Effective Date and shall extend for the Term of the applicable License for the Home License, Home Annual, Professional License, Student Annual 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 License in connection with which the License in this EULA is granted to You. Limited duration Licenses provided for in Section 1.2 will automatically terminate at the end of the initial Term (and any subsequent term), unless renewed pursuant to Freedom’s then-current renewal requirements or as may be provided for in an applicable License, including payment of all fees applicable to any renewal period. For limited duration Licenses, to keep your License in force, You 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 Freedom without notice.
You may terminate the License at any time by removing or destroying all copies of the Program, regardless of the form from your Computer, or otherwise in your possession or control.
Except as otherwise provided in an applicable License, your License to the Program and this EULA will automatically terminate under any of the following: (i) if You breach or fail to comply with any of the terms of this EULA; (ii) if You remove from your Computer(s) and destroy all copies of the Program in your possession or under its control; or (iii) if your 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 that You fail to comply with any term or condition of this EULA, whether or not we have knowledge of the failure to comply. We may also terminate this EULA upon reasonable notice to You and refund of any prepaid fees.
Upon termination or expiration of this EULA, You are required to immediately cease use of the Program and destroy, delete or remove all copies of the Program from your Computer(s). Notwithstanding any termination or expiration, the following sections shall survive 2.2, 4.2, 4.3, 5, 6, 7 and 8.
FREEDOM WARRANTS THAT WHEN DELIVERED TO YOU AND FOR NINETY (90) DAYS THEREAFTER, THE SOFTWARE (EXCLUDING UPDATES FOR PURPOSES OF THIS SECTION 4.1) WILL CONFORM IN ALL MATERIAL RESPECTS TO FREEDOM’S THEN-CURRENT DOCUMENTATION FOR THE SOFTWARE. IN THE EVENT OF ANY CLAIM BY YOU UNDER THIS LIMITED WARRANTY, YOU MUST NOTIFY FREEDOM IN WRITING DESCRIBING IN REASONABLE DETAIL THE NATURE OF THE NONCONFORMITY, AND PROVIDE TO FREEDOM SUFFICIENT DETAIL TO ALLOW FREEDOM TO REPRODUCE THE PROBLEM. THE LIMITED WARRANTY CONTAINED IN THIS SECTION 4.1 WILL NOT APPLY IF, AND TO THE EXTENT THAT: (A) THE SOFTWARE IS NOT USED IN ACCORDANCE WITH THIS EULA OR THE DOCUMENTATION; (B) THE SOFTWARE OR ANY PART THEREOF HAS BEEN CUSTOMIZED, MODIFIED, ALTERED OR CHANGED BY ANYONE OTHER THAN FREEDOM; OR (C) A MALFUNCTION IN THE SOFTWARE HAS BEEN CAUSED BY ANY OF YOUR EQUIPMENT OR ANY THIRD-PARTY SOFTWARE.
EXCEPT FOR THE EXPRESS LIMITED WARRANTY IN SECTION 4.1 AND TO THE MAXIMUM EXTENT ALLOWABLE BY LAW, FREEDOM PROVIDES THE PROGRAM TO YOU “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, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. FREEDOM DOES NOT WARRANT, AND YOU HEREBY WAIVE ANY WARRANTY, THAT USE OF OR ACCESS TO THE PROGRAM BY YOU WILL BE ERROR FREE. FREEDOM DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE PROGRAM WILL MEET YOUR REQUIREMENTS.
FREEDOM MAKES NO REPRESENTATIONS OR WARRANTIES (AND EXPRESSLY DISCLAIMS ALL WARRANTIES) WITH RESPECT TO ANY HARDWARE, SOFTWARE, DATA OR INFORMATION NOT SUPPLIED BY FREEDOM, 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.
You hereby acknowledge and agree that use of the Program shall be at your sole and exclusive risk and subject to all applicable rules, regulations and applicable laws. You hereby acknowledge that the Program may contain errors, inaccuracies and omissions. You assume any and all risks as to the results and performance of the Program, including any risk, damage, loss or harm from your use or downloading the Program.
As the exclusion of implied warranties is not permitted by some states or jurisdictions, the above exclusions may not apply to You. In that case, any implied warranties are limited in duration to ninety (90) days from the earlier date of download or installation of the Program or activation of the License.
EXCEPT FOR ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 6.2 OF THIS EULA, FREEDOM’S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY UNDER THE LIMITED WARRANTY DURING THE WARRANTY PERIOD SHALL BE THAT FREEDOM, AT ITS SOLE OPTION, WILL EITHER REPAIR OR REPLACE THE PROGRAM NOT MEETING FREEDOM’S LIMITED WARRANTY, OR ALLOW FOR FURTHER DOWNLOAD OR UPGRADE OF THE PROGRAM.
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. THE ENTIRE LIABILITY OF FREEDOM FOR ANY DAMAGES UNDER ANY PROVISION OF THIS EULA SHALL BE LIMITED TO THE ACTUAL FEES PAID TO FREEDOM BY OR ON BEHALF OF YOU FOR THE SINGLE LICENSE EXPRESSLY COVERED BY THIS EULA PROVIDED THAT, FREEDOM’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 6.2 OF THIS EULA SHALL BE CAPPED AT $10,000.
As the exclusive remedy and limitation of damages may not be permitted by some states or jurisdictions, the provisions of Sections 5.1 and 5.2 may not apply to You.
To the maximum extent permitted under applicable law, You agree to indemnify and hold Freedom 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: (a) any bodily injury (including death) or damage to real property or tangible personal property caused by You; (b) your breach or violation of any provision of this EULA or any applicable License; and (c) your violation of applicable laws or any rights of another person or entity.
Freedom will indemnify, defend and hold You 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 U.S. patent, copyright, trademark, or trade secret of any third party; provided that (a) You notify Freedom in writing within thirty (30) days of the claim, (b) Freedom has sole control over the defense and all negotiations for a settlement or compromise, and (c) Freedom receives reasonable assistance from You necessary to perform Freedom’s obligations hereunder. The foregoing indemnity shall not apply with respect to the Program, or portions or components thereof: (i) not provided by Freedom; (ii) used in a manner not expressly authorized
by this EULA or any applicable License; (iii) if the alleged infringement or misappropriation results from any customizations, modifications, alterations or changes to the Program not developed or provided by Freedom; or (iv) combined with other products or services not provided by Freedom 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 Freedom reasonably believes that any of the foregoing are reasonably likely to occur), Freedom may, at its option: (x) procure for You the right to continue to use the Program; (y) provide an Upgrade so that use of the Program becomes non-infringing; or (z) replace the Program with software that is substantially similar in functionality and performance. The remedies set forth in this Section 6.2 are your and any End User’s sole remedies, and Freedom’s sole liability and obligation with respect to any actual, threatened, or alleged claims that the Program or any portion thereof infringes, misappropriates, or otherwise violates any intellectual property rights of any third party.
Except as permitted herein, You 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.
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.
You 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 Freedom, You shall not export the Program under any circumstances whatsoever. In
any case, You will indemnify and hold Freedom 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 You of your obligations under this section.
Freedom may amend or modify this EULA at any time by posting a revised version on https://www.freedomscientific.com/eula/ or by otherwise notifying You through your account or other contact information that You provided; provided, however, that Freedom will provide at least 30 days’ advance notice for any adverse changes. The most recent update to this EULA is set forth at the bottom of this EULA. Subject to the 30 day advance notice requirement with respect to adverse changes, the modified terms will become effective upon posting or, if Freedom notifies You by email, message, or other written notice, as stated in the written notice. By continuing to use the Program after the effective date of any modifications to this EULA, You agree to be bound by the modified terms. It is your responsibility to check https://www.freedomscientific.com/eula/ regularly for modifications to this EULA. Notwithstanding anything to the contrary herein, if You and Freedom signed an offline amendment or supplement to this EULA (e.g., purchase order, invoice, or web-based document) in connection with use of the Program, the terms in this EULA are amended or supplemented by such offline amendment or supplement, as applicable, with any clear conflict between the terms in this EULA and the offline amendment or supplement being resolved in favor of the terms of the offline amendment or supplement.
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.
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.
Except to the extent governed by an applicable License and amended in writing by the parties, this EULA constitutes the entire agreement between You and Freedom related to the Program and supersedes all prior or contemporaneous agreements, proposals, negotiations, representations and communications between You and Freedom related to the Program. You acknowledge that You have not been induced to enter into this EULA by any representations or promises not specifically stated herein.
If You are a 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 are invalid or unenforceable against You 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 7.3 is precluded for You under applicable law, then this EULA will be governed and construed under the laws of the country, state, province or other jurisdiction in which your primary office is located. If You have questions concerning this EULA, please contact Freedom for clarification at 17757 US Hwy 19 North – Suite 560, Clearwater, Florida 33764, or phone (727) 803-8000.
8.1 “Activated” means that an appropriate License key has been entered allowing the Program to fully operate.
8.2 “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 Freedom for use with the Software.
8.3 “Edition” means the specific edition or mode of the Program licensed to or used by You and covered by this EULA. There are six (6) distinct editions or modes of the Program: Home, Home Annual, Professional, Student Annual 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 your purchase of the License.
8.4 “End User” means You or any person You permit to access the Program in accordance with this EULA.
8.5 “License” means the license to use the Program as set forth in this EULA, as may be supplemented by any applicable License, and in any document or confirmation issued, agreed or otherwise confirmed by Freedom that contains the specifics of the type of license to use the Program.
8.6 “Program” means, collectively, the Software, Updates, all related Documentation, and any Upgrades provided under this EULA.
8.7 “Software” means any computer program (in object code) of Freedom provided to and downloaded, installed or accessed by an End User pursuant to this EULA.
8.8 “Upgrade” means any new version of the Software delivered to You pursuant to this EULA or an applicable License.
8.9 “Update” means any patch, bug fix or any other update of the Software delivered to You pursuant to this EULA or an applicable License.