END-USER LICENSE AGREEMENT (EULA) FOR MICRO COMPUTER SYSTEM SOLUTIONS, LLC SOFTWARE. |
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT CAREFULLY:
BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE YOU INDICATE
ACCEPTANCE OF AND AGREE TO THE TERMS AND CONDITIONS OF THIS
AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS,
DO NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE. THIS AGREEMENT
DOES NOT SUPERCEDE ANY OTHER WRITTEN AGREEMENT BETWEEN YOU AND
MCSS SOFTWARE.
This agreement (the “Agreement”) is made between MC
System Solutions, LLC., (“MCSS”) and you, the
customer (“Licensee”). The terms and conditions of
this Agreement are intended by the parties as a final
expression of their agreement with respect to the subject
matter hereof and may not be contradicted by evidence of any
prior or contemporaneous agreement unless such agreement is
signed by both parties. In the absence of such an agreement,
this Agreement shall constitute the complete and exclusive
statement of the terms and conditions and no extrinsic evidence
whatsoever may be introduced in any judicial proceeding which
may involve the Agreement. This Agreement may not be modified
except by a writing executed by both parties
hereto.
SOFTWARE PRODUCT LICENSE
The Software Product is protected by intellectual property laws and treaties. The Software Product is licensed, not sold.
This section of the EULA describes your general rights to install and use the Software Product. The license rights described in this section are subject to all other terms and condition of this EULA.
The provisions of this Section 1 shall apply to any and all
Software, as defined below.
1.1 Software. For the purpose of this Agreement, the licensed
computer software program(s) downloaded and/or installed and
the supporting documentation for such will be referred to as
the “Software.”
1.2 Restrictions. MCSS reserves any rights not expressly
granted to Licensee and retains title and full ownership rights
under the copyright laws of the United States or any other
jurisdiction or under any federal, state, or foreign laws. MCSS
is not obligated to provide and Licensee acquires no right of
any kind with respect to any source code for the Software.
Licensee agrees that it has no right whatsoever to modify the
Software or any portion thereof in any manner. Licensee shall
not, nor permit any third party to reverse engineer, decompile,
disassemble or otherwise reduce the Software to any other
humanly perceivable form, and may not modify, adapt, rent,
lease, loan or create derivative works based upon the Software
or any part thereof.
1.3 Export Law Assurances. Licensee shall not export or
re-export, or allow the export or re-export of the Software or
any copy, portion or direct product of the foregoing, in
violation of any export laws, restrictions, national security
controls or regulations of the United States or other
applicable foreign agency or authority.
1.4 Limitation of Remedies and Damages. IN NO EVENT WILL MCSS,
ITS SUBSIDIARIES OR ANY OF THE LICENSORS, DIRECTORS, OFFICERS,
EMPLOYEES OR AFFILIATES OF ANY OF THE FOREGOING BE LIABLE TO
LICENSEE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR
OTHER LEGAL OR EQUITABLE THEORY FOR ANY CONSEQUENTIAL,
INCIDENTAL, INDIRECT OR SPECIAL DAMAGES WHATSOEVER (INCLUDING,
BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS,
BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE
LIKE), WHETHER FORESEEABLE OR UNFORESEEABLE, OR FOR COST OF
PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES,
REGARDLESS OF THE BASIS OF THE CLAIM AND EVEN IF MCSS OR A MCSS
REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGE. MCSS’ CUMULATIVE LIABILITY FOR DAMAGES FOR ANY
CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION,
WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO
MCSS FOR THE SOFTWARE THAT CAUSED THE DAMAGES. NO ACTION MAY BE
BROUGHT AGAINST MCSS LATER THAN ONE YEAR FROM THE TERMINATION
OF THIS AGREEMENT.
1.5 Nondisclosure. “Confidential Information” shall
be defined to include Software, source code, object code,
documentation and any proprietary tools, proprietary knowledge
or proprietary methodologies disclosed by MCSS to Licensee
under or relating to this Agreement. Licensee shall observe
complete confidentiality with respect to the Confidential
Information, and shall use its best efforts and take all
reasonable steps to protect the Confidential Information from
any use, reproduction, publication, disclosure, or distribution
except as specifically authorized by this Agreement. Licensee
shall promptly notify MCSS of any known unauthorized use or
disclosure of the Confidential Information and will cooperate
with MCSS in any litigation brought by MCSS against third
parties to protect its proprietary rights.
1.6 Assignment. Licensee may not assign or transfer its rights
and obligations under this Agreement without prior written
approval by MCSS and any purported assignment or transfer
without MCSS’ consent shall be null and void.
1.7 Injunctive Relief. Licensee hereby expressly agrees that
MCSS, in addition to any other rights or remedies which MCSS
may possess, shall be entitled to injunctive and other
equitable relief without having to post bond or other security
to prevent a material breach or continuing material breach of
this Agreement.
1.8 Software Supplied to the Government. The Software is a
“commercial item,” “commercial computer
software” and/or “commercial computer software
documentation.” Consistent with DFAR section 227.7202 and
FAR section 12.212, any use, modification, reproduction,
release, performance, display, disclosure or distribution of
the Software by the U.S. government shall be governed solely by
the terms of this Agreement and shall be prohibited except to
the extent expressly permitted herein.
1.9 Survival. Sections 1.2, 1.3, 1.4, 1.5, 1.7, 1.9, 1.10,
1.11 and 1.12 shall survive termination of this Agreement for
any reason whatsoever.
1.10 Warranties. THE LIMITED WARRANTIES AS DESCRIBED IN
SECTION 2.2 AND SECTION 3.3 OF THIS AGREEMENT ARE THE ONLY
WARRANTIES PROVIDED BY MCSS AND ITS LICENSORS, WHO EXPRESSLY
DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO THE SOFTWARE
AND ACCOMPANYING WRITTEN MATERIALS.
1.11 Term and Termination. This Agreement is effective for the
term of the license grant unless sooner terminated, either
through mutual agreement by the parties or by Licensee’s
material breach of the Agreement; provided, however, Licensee
shall have ten (10) days from written notice to cure any such
breach if curable. Upon any termination Licensee must
immediately destroy the Software and all accompanying written
materials and all copies thereof (including copies stored in
computer memory) and shall so certify to MCSS in
writing.
1.12 General. This Agreement will be construed under the laws
of the State of California, except for that body of law dealing
with conflicts of law and the U.N. Convention of Contracts for
the Sale of International Goods, which shall not apply. In the
event there is a dispute concerning the subject matter of this
Agreement, the proper venue shall be the County of Orange,
State of California, United States of America. Each party
hereby waives opposition to jurisdiction in such court. Service
of process can be done in accordance with the governing law of
the Agreement. Performance of any obligation required by a
party hereunder may be waived only by a written waiver signed
by the other party, which waiver shall be effective only with
respect to the specific obligation described therein. If any
provision of this Agreement shall be held by a court of
competent jurisdiction to be contrary to law, that provision
will be enforced to the maximum extent permissible, and the
remaining provisions of this Agreement will remain in full
force and effect.
SECTION 2. TRIAL EVALUATION TERMS AND CONDITIONS.
The provisions of this Section 2 shall apply to Software
downloaded for temporary and/or trial use.
2.1 License. Subject to the terms and conditions of this
Agreement, the Software is licensed, not sold to Licensee by
MCSS for an evaluation period of seven (7) days from the
download date ("Evaluation Period").
(a) Licensee may use the Software for its own internal
evaluation and for no other purpose.
(b) Licensee’s opportunity for a free evaluation of the
Software is limited to one Evaluation Period per release of the
Software.
(c) There is no fee for Licensee’s use of the Software in
accordance with this Agreement during the Evaluation Period,
however, Licensee is responsible for any applicable shipping
charges or taxes which may be incurred under this Agreement,
and any fees which may be associated with usage beyond the
scope permitted herein.
(d) Licensee acknowledges that it is downloading the Software
with the intent to purchase a perpetual license to use the
Software upon completion of a successful evaluation of such. A
MCSS sales representative may contact Licensee after the
download to discuss Licensee’s purchase of a perpetual
license.
2.2 “AS-IS” Warranty. MCSS warrants that it or its
licensors retain(s) all intellectual property rights in the
Software and any accompanying written materials provided by
MCSS, including but not limited to copyright, and that it has
the legal right to grant Licensee the License granted under
this Agreement. LICENSEE AND MCSS AGREE THAT THE SOFTWARE IS
PROVIDED “AS IS” AND UNSUPPORTED, AND THAT MCSS MAKES
NO WARRANTY AS TO THE SOFTWARE, EXPRESS OR IMPLIED, INCLUDING
BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE.
SECTION 3. “FULL” LICENSE TERMS AND
CONDITIONS.
The provisions of this Section 3 shall apply to Software
licensed with no time limits.
3.1 LICENSE. Subject to the terms and conditions of this
Agreement and upon Licensee’s full payment of the
applicable fees, the Software shall be licensed, not sold, to
Licensee by MCSS. The “License” granted hereunder
shall be perpetual, non-exclusive, and non-sublicensable, and
is defined as Licensee’s right to:
(a) For the number of copies licensed, Licensee may Use one
(1) copy of the Software. “Use” shall mean Licensee
may install, use, access, run, or otherwise interact with the
Software in accordance with the applicable documentation and
the license grant specified by MCSS. The Software may not be
installed, accessed, displayed, run, shared, or used
concurrently on or from different computers, including a
workstation, terminal, or other digital electronic
devise.
(b) For the number of copies licensed, Licensee may make one
copy (in machine-readable form only) of each copy of the
Software licensed hereunder solely for backup or disaster
recovery purposes. However, Licensee must reproduce each such
copy without modification, including all copyright and other
proprietary notices that are on the original copy.
3.2 Maintenance. During any Maintenance Period and for the
applicable fees, MCSS shall provide the maintenance services as
listed in this Paragraph 3.2. However, for some Software
dial-in access to Licensee’s system may be necessary in
order for MCSS to perform some maintenance services.
“Maintenance Period” shall be defined as the one (1)
year period beginning on the date of the first invoice for the
Software or from the conclusion of any previous Maintenance
Period, provided Licensee is current on all fees due.
Maintenance fees shall be subject to an annual billing cycle.
Either party may elect not to renew maintenance services by
terminating maintenance in writing, in which case MCSS will no
longer be responsible for providing maintenance. Payment of any
and all past maintenance fees, plus a re-instatement fee of 25%
of the annual maintenance fee, shall be required before
maintenance will be reinstated after it has lapsed. Maintenance
services shall consist of the following:
MCSS shall make Software corrections, enhancements and
upgrades available to Licensee if and when it makes them
generally available under a maintenance subscription.
MCSS shall respond to unlimited communications from Licensee
that report software failures not previously reported to
MCSS.
MCSS shall respond to a reasonable number communications from
Licensee’s Technical Coordinators that request
consultation on the operational/technical aspects of the
Software.
For all Software, MCSS’ support service shall be
available via telephone or email on business days between the
hours of 5:00 a.m. and 5:00 p.m. EST/EDT. During those hours,
MCSS shall respond to inquiries within four (4) hours of
receipt of such inquiry.
3.3 Limited Warranty. MCSS warrants that it or its licensors
retain(s) all intellectual property rights in the Software and
any accompanying written materials provided by MCSS, including
but not limited to copyright, and that it has the legal right
to grant Licensee the License granted under this Agreement.
MCSS also warrants for a period of thirty (30) days from the
delivery date of the Software that (i) the media provided by
MCSS, if any, on which the Software is recorded will be free
from material defects in materials and workmanship under normal
use, and (ii) the operation of the Software, as provided by
MCSS, will substantially conform to MCSS’ published
documentation for the Software. In the event Licensee notifies
MCSS during the warranty period that the Software does not meet
these standards, MCSS shall, at its sole option and expense,
either replace the media, refund the purchase price, or repair
or replace the Software as Licensee’s sole and exclusive
remedy.
THIS LIMITED WARRANTY IS THE ONLY WARRANTY PROVIDED BY MCSS
WITH RESPECT TO THE SOFTWARE LICENSED UNDER THIS SECTION 3, AND
MCSS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.