End user agreement for iGadget
End User License Agreement (EULA) (International/Canada/Europe)
IMPORTANT: CAREFULLY READ ALL THE TERMS AND CONDITIONS OF THIS EULA. THIS EULA IS A LEGALLY BINDING CONTRACT BETWEEN YOU AND PURPLE GHOST SOFTWARE, INC. (“PURPLE GHOST”) PERTAINING TO THE SOFTWARE PRODUCT LISTED ABOVE AND ANY UPDATES, UPGRADES, NEW VERSIONS, ADD-ON MODULES, ENHANCEMENTS, FEATURES, EDITIONS OR COMPONENTS FOR SUCH SOFTWARE PROVIDED BY PURPLE GHOST (COLLECTIVELY, THE “SOFTWARE’) AND ANY ASSOCIATED MEDIA, MANUALS, PRINTED MATERIALS AND “ONLINE” OR OTHER ELECTRONIC OR WRITTEN DOCUMENTATION (“DOCUMENTATION”).
FOR ELECTRONIC MEDIA: BY OPENING THIS SEALED PACKAGE OR CD-ROM AND INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE AND ANY ASSOCIATED DOCUMENTATION, YOU INDICATE YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS EULA. IN THE EVENT THAT YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU ARE NOT AUTHORIZED TO USE THE SOFTWARE AND DOCUMENTATION, AND YOU MUST PROMPTLY RETURN THE SOFTWARE AND DOCUMENTATION TO PURPLE GHOST OR THE AUTHORIZED REPRESENTATIVE FROM WHOM YOU OBTAINED THEM, ALONG WITH YOUR RECEIPT, FOR A FULL REFUND OF FEES ACTUALLY PAID FOR THE SOFTWARE.
FOR ONLINE DOWNLOAD: YOU WILL NOT BE PERMITTED TO ACCESS AND DOWNLOAD THE SOFTWARE AND ANY DOCUMENTATION, OR OTHERWISE INSTALL AND USE THE SOFTWARE AND ITS ASSOCIATED DOCUMENTATION, WITHOUT FIRST READING AND ACCEPTING THE TERMS AND CONDITIONS OF THIS EULA.
1. TERM: This EULA is effective beginning as of either the date that you download the Software and/or Documentation or the date of delivery of the media for the Software and/or Documentation, as applicable, and continues in effect unless earlier terminated in accordance with Section 9 of this EULA.
2. NON-EXCLUSIVE LICENSE:
A. Use. Subject to all terms and conditions of this EULA, Purple Ghost grants to you a personal, non-transferable, non-exclusive license to load and use the object code version of the Software in a manner not inconsistent with the Documentation for your own personal use only for a maximum of one (1) copy for which you have paid the applicable license fees. A copy of the Software is “in use” in a computer or iPod when it is loaded into the temporary memory or is installed into the permanent memory.
C. Evaluation Use. If you have been provided the Software for evaluation purposes only, Purple Ghost grants to you the right to use the Software and Documentation on the same terms and conditions as stated under subsection (A) above but only for the length of time so authorized by Purple Ghost for your evaluation. This license and your right to use the Software and Documentation thereafter is terminated, unless you obtain a separate license from Purple Ghost and you pay to Purple Ghost the applicable license fee.
D. Additional Rights. Purple Ghost further grants to you the right to: (a) make one copy of the Software and one copy of the Documentation in an electronic media solely for backup or archival purposes, or (b) transfer the Software and the Documentation in an electronic media to a single hard disk; provided that you keep the originals solely for backup or archival purposes. Copyright laws prohibit the making of additional copies of the Software and Documentation for any other reason.
E. Reserved Rights. No additional or different rights are granted to you, either expressly or by implication. Purple Ghost retains all rights not expressly granted to you, and nothing in this EULA constitutes a waiver of Purple Ghost’s rights under copyright laws or any other federal or state law or treaty.
3. COPYRIGHT/TRADEMARKS: The Software and Documentation are copyrighted. All right, title and interest in and to the Software, the Documentation and all copyrights in both of them are and remain owned solely and exclusively by Purple Ghost and are protected by United States copyright laws and international treaty provisions. You agree to use best efforts and take all reasonable steps to protect Software and Documentation from unauthorized use, illegal reproduction or illicit distribution. This EULA and any license granted hereunder shall not constitute a sale of the Software and Documentation and you shall not receive title to the Software and Documentation, or the media and any copies of the Software and Documentation delivered to or made by you, or any intellectual property rights therein.
4. OTHER RESTRICTIONS: You may not alter, modify, translate, port or create derivative works of the Software and/or Documentation. You are expressly prohibited from selling, renting, leasing, outsourcing, using in a shared licensing environment or a service bureau environment or otherwise commercially exploiting the Software and/or Documentation in any way. You will not remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software and/or Documentation. You are not authorized to use the Software for comparison with, or benchmarking against, similar software. You will not disclose or publish any results of benchmark tests run on the Software to a third party without Purple Ghost’s prior written consent. Notwithstanding anything to the contrary in this Agreement, there will be no escrow of any source code of the Software and you shall not be entitled to receive the source code for any reason. Any modifications, improvements, enhancements, alterations, customizations or derivative works of the Software, whether authorized or not, made by you or a third party shall be the sole and exclusive property of Purple Ghost and you hereby assign all of your right, title and interest therein to Purple Ghost. You hereby grant Purple Ghost or its agent the right to audit your use of the Software and Documentation pursuant to this EULA and all books and financial records related to such use. If so requested by Purple Ghost, you will conduct a self-audit of your use of the Software and Documentation, provide such audit results to Purple Ghost, and certify in writing to Purple Ghost your compliance with this EULA. You may not combine or distribute the Software or any derivative work thereof with Open Source Software (as defined below) or with software developed using Open Source Software (e.g., tools) in a manner that subjects Purple Ghost or its licensors or any portion of the Software provided by Purple Ghost or its licensors hereunder or any derivative work thereof to any license obligations of such Open Source Software. “Open Source Software” means any software licensed under terms requiring that other software combined or distributed with such software: (i) be disclosed or distributed in source code form; (ii) be licensed on terms inconsistent with the terms of this EULA.
5. TRADE SECRETS/LIMITED ACCESS: The Software and Documentation embody proprietary technology and valuable trade secrets of Purple Ghost, which are vital to the business of Purple Ghost and whose value depends upon them not being generally known. You agree to hold the Software and Documentation in confidence and take all necessary steps to ensure that access to any portion of the Software or Documentation is not provided to any person or entity other than your bona fide employees who reasonably require such access to enable you to use the Software subject to this EULA.
6. NO REVERSE ENGINEERING: You may not disassemble, decompile, reverse engineer or otherwise attempt to derive source code for the Software or any portion of the Software, or request or authorize any other person or entity to do so for any reasons whatsoever. In countries where a right to reverse engineer is provided by law unless information is available about the Software in order to achieve interoperability, functional compatibility or other objectives, you agree to submit a detailed written proposal to Purple Ghost concerning your need for such information before engaging in reverse engineering (or requesting or purporting to authorize any other person or entity to do so) and Purple Ghost may, in its sole discretion, propose to you terms and conditions under which it is willing to make such information available.
7. NO TRANSMISSION: You agree not to electronically, optically or otherwise transmit, broadcast, transfer, or disseminate any portion of the Software and/or the Documentation over any public or private computer network (either local, wide area or otherwise), telephone network or other mode or channel of communication except (a) where intrinsic to the normal operation of the Software, such as online Help information, or (b) where provided in the Documentation, or (c) as otherwise expressly authorized by Purple Ghost in writing.
8. THIRD PARTY ELEMENTS. You acknowledge that (i) the Software may contain other software or components that are either owned by a third party or in the public domain, and (ii) Purple Ghost has no proprietary interest in such software or components, and as such, cannot grant you a license to use such software and/or component. Purple Ghost will provide, or otherwise make available, to you with any necessary sublicenses from such third party and you shall have the rights licensed to them by the owners of the third party software and/or components. A listing of such Third Party Software is made available to you in the Documentation, the “Read Me” files for each software or components or otherwise upon written request from Purple Ghost. By installing or using such Third Party Software, you acknowledge and agree to fully comply with the terms and conditions set forth in the applicable licenses for such Third Party Software. PURPLE GHOST AND ITS LICENSORS MAKE NO WARRANTIES OR REPRESENTATION AS TO SUCH THIRD PARTY SOFTWARE (INCLUDING QUIET ENJOYMENT AND INFRINGEMENT) AND FURTHER DISCLAIM ANY AND ALL LIABILITY FOR ANY LOSSES OR DAMAGES THAT MAY RESULT FROM YOUR USE OR DISTRIBUTION THEREOF (INCLUDING INFRINGEMENT INDEMNIFICATION). PURPLE GHOST IS NOT OBLIGATED TO PROVIDE SUPPORT SERVICES FOR ANY SUCH THIRD PARTY SOFTWARE UNLESS EXPRESSLY AGREED TO IN WRITING BY PURPLE GHOST UNDER A SEPARATE AGREEMENT. YOU FURTHER AGREE TO INDEMNIFY, HOLD HARMLESS AND DEFEND PURPLE GHOST AND ITS LICENSORS FROM AND AGAINST ANY CLAIMS, DEMANDS OR LAWSUITS, INCLUDING ATTORNEYS’ FEES, THAT ARISE OR RESULT FROM THE USE OR DISTRIBUTION OF SUCH THIRD PARTY SOFTWARE.
9. TERMINATION: You may terminate this EULA, by giving Purple Ghost thirty (30) days prior written notice. This EULA also will terminate automatically if you fail to comply with any term or condition of this EULA or if the length of time permitted for your evaluation of the Software expires for each evaluation use. Purple Ghost reserves the right to terminate this EULA if any separate agreement between you and Purple Ghost is terminated for any reason. Immediately upon any termination of this EULA for any reason, the license granted under paragraph 2 above terminates, and all rights thereunder revert in their entirety to Purple Ghost, its successors and assigns. You agree upon termination to immediately return or destroy all copies of the Software and the Documentation and upon request to certify your return or destruction of the Software and the Documentation to Purple Ghost.
1 0. LIMITED WARRANTY; DISCLAIMER OF WARRANTY:
A. For a period of thirty (30) days after delivery of the Software (the “Software Warranty Period”), Purple Ghost warrants that the Software, when used as permitted under this EULA and in accordance with its intended purpose as set forth in the Documentation, will operate substantially as described in the Documentation. Purple Ghost does not warrant that your use of the Software will be error-free or uninterrupted. Purple Ghost will, at its own expense and as its sole obligation and your exclusive remedy for any breach of this warranty, use commercially reasonable efforts to correct any reproducible error in the Software reported to Purple Ghost by you in writing during the Software Warranty Period or, if Purple Ghost determines that it is unable to correct the error, Purple Ghost will refund to you all license fees actually paid for the non-conforming Software, in which case this EULA and your right to use such Software will be terminated. Any such error correction provided by Purple Ghost to you will not extend the original Software Warranty Period.
B. EXCEPT AS EXPRESSLY PROVIDED IN SUBSECTION (A) ABOVE, THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” WITHOUT WARRANTY OF ANY KIND AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU, THE END USER. THERE IS NO WARRANTY AGAINST INTERFERENCE WITH YOUR ENJOYMENT OR AGAINST INFRINGEMENT WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION. THERE IS NO WARRANTY THAT THE SOFTWARE OR THE DOCUMENTATION WILL FULFILL ANY OF YOUR PARTICULAR PURPOSES OR NEEDS. THERE IS NO IMPLIED WARRANTY OF BENEFIT FOR THE ORDINARY PURPOSES TO WHICH SUCH SOFTWARE OR DOCUMENTATION ARE USED. THERE IS NO WARRANTY, REPRESENTATION OR GUARANTEE THAT THE SOFTWARE WILL CONTINUOUSLY OPERATE OR BE ERROR FREE OR THAT ANY PROBLEMS WILL BE CORRECTED. SHOULD THE SOFTWARE OR ANY OF ITS COMPONENTS PROVE DEFECTIVE OR INADEQUATE IN ANY RESPECT, YOU (AND NOT PURPLE GHOST OR ITS AFFILIATES OR REPRESENTATIVES) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. FURTHER, PURPLE GHOST DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF, OR THE RESULTS OF THE USE OF THE SOFTWARE IN TERMS OF ITS ABILITY TO DETER UNAUTHORIZED ACCESS, ITS COMPATIBILITY WITH HARDWARE OR OTHER SOFTWARE, ITS RELIABILITY, CURRENTNESS OR OTHERWISE; AND YOU RELY ON THE SOFTWARE AND ITS PERFORMANCE SOLELY AT YOUR OWN RISK. ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS OF THE PRODUCT FOR A PARTICULAR USE OR PURPOSE, QUALITY, COURSE OF DEALINGS, USAGE OF TRADE, INACCURACY IN CONTENT CAUSED BY PURPLE GHOST’S FAILURE TO PERFORM WITH REASONABLE CARE, QUIET ENJOYMENT OR NON-INFRINGEMENT ARE HEREBY EXPRESSLY DISCLAIMED. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF.
11. LIMITATION OF LIABILITY: NEITHER PURPLE GHOST NOR ANY OTHER PERSON OR ENTITY WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, OR DELIVERY OF THE SOFTWARE, THE DOCUMENTATION, OR ANY OF ITS COMPONENTS SHALL BE LIABLE FOR ANY DIRECT OR INDIRECT DAMAGES, INCLUDING ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOST SAVINGS, LOSS OF DATA, COMMERCIAL LOSS, OR OTHER SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE, THE RESULTS OF USE, OR INABILITY TO USE THE SOFTWARE, THE DOCUMENTATION OR ANY OF ITS COMPONENTS EVEN IF PURPLE GHOST OR OTHERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM AND EVEN IF THE REMEDIES PROVIDED IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. IN NO EVENT WILL PURPLE GHOST’S LIABILITY EXCEED THE AMOUNT OF THE LICENSE FEE ACTUALLY PAID TO PURPLE GHOST BY YOU. SOME COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
12. INDEMNIFICATION. You will indemnify and hold harmless, and upon request defend, Purple Ghost, its, officers, directors, agents, affiliates, distributors, franchisees and employees from any and all losses, damages, costs, or other expenses incurred by such indemnified parties (including court costs and attorneys’ fees) to the extent arising out of your use or misuse of the Software and the Documentation and your breach of this EULA.
13. COMPLIANCE: You will be responsible for compliance with all applicable laws, rules regulations, order and ordinances of the United States of America and in any other nation, province, or city with jurisdiction over you or your activities under this EULA. Without limitation to the foregoing, you agree to comply with all applicable export/import control laws and with any regulations issued from time to time by the United States Department of Commerce, or such other United States or international governmental entity that may have jurisdiction over the exporting, importing, and re-exporting of the Software and Documentation. You further agree that the Software and Documentation will not be acquired, shipped, transferred or exported, directly or indirectly, into any country or person prohibited by the United States Export Administration Act and the regulations thereunder, or will be used for any purpose prohibited thereby.
14. INTERNATIONAL USERS: This EULA has been written in the English language. You waive any rights that you may have under the laws of your country for this EULA to be written in the language of that country.
15. EQUITABLE REMEDIES: You hereby agree that, if the terms of this EULA are not specifically enforced, Purple Ghost will be irreparably damaged, and therefore You agree that Purple Ghost shall be entitled, without bond, other security, proof of damages, to appropriate equitable remedies with respect any breach(es) of this EULA, in addition to any other remedies available at law or in equity.
16. NO SUPPORT SERVICES: Purple Ghost is under no obligation under this EULA to provide any support services or any updates, patches, upgrades or new or revised versions of the Software or Documentation. Purple Ghost, in its sole discretion, may provide these updates or support services subject to Purple Ghost’s then current standard terms and conditions for maintenance and support services and by purchasing or using any such Software versions or support services, you acknowledge and agree to abide by those standard terms and conditions.
17. GOVERNING LAW: This EULA shall be governed by the laws of the State of Illinois, without regard to choice of law principles, and the applicable federal laws and international treaties of the United States of America. This EULA shall inure to the benefit of Purple Ghost, its successors and assigns. This EULA will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. This EULA, which is in English, shall be interpreted in accordance with the commonly understood meaning of the words and phrases in the United States of America.
18. ARBITRATION: Any dispute, controversy or claim arising out of or relating to this EULA or to a breach hereof, including its interpretation, performance or termination, shall be finally resolved by arbitration. The arbitration shall be conducted by three (3) arbitrators, one to be appointed by Purple Ghost, one to be appointed by you and a third being nominated by the two arbitrators so selected; provided, however, in the event any such dispute, controversy or claim involves a claim of damages for US $50 or less, the arbitration shall be conducted by one (1) arbitrator appointed by Purple Ghost. The arbitration shall be conducted in English and in accordance with the Commercial Rules of Arbitration and Conciliation under the International Chamber of Commerce, which shall administer the arbitration and act as appointing authority. The arbitration, including the rendering of the award, shall take place in Chicago, Illinois, U.S.A., and shall be the exclusive forum for resolving such dispute, controversy or claim. For the purposes of this arbitration, the provisions of this Agreement and all rights and obligations thereunder shall be governed and construed in accordance with the governing law set forth above. The decision of the arbitrators shall be in writing, state the reasons for the award, and be final and binding upon the parties hereto. The expense of the arbitration (including without limitation the award of attorneys’ fees to the prevailing party) shall be paid as the arbitrators determine. The decision of the arbitrators shall be executory, and judgement thereon may be entered by any court of competent jurisdiction or having jurisdiction over the relevant party of its assets.
19. ASSIGNMENT. You may not assign this EULA in whole or in part without the prior written consent of Purple Ghost and any attempted assignment in violation thereof (whether voluntary or involuntary, by operation of law, merger, reorganization, change of control or otherwise) is void. Purple Ghost may assign its rights under this EULA in whole or in part without your prior written consent.
20. MISCELLANEOUS: This EULA may not be modified except pursuant a writing signed by an authorized representative of Purple Ghost. The parties agree that the terms and conditions of this EULA shall prevail notwithstanding contrary or additional terms in any purchase order, sales acknowledgment, confirmation or any other document issued by either party; provided however that this EULA may be superseded by a separate written agreement executed by both you and Purple Ghost with respect to the Software. If any provision of this EULA is held to be illegal, invalid, or unenforceable then that provision shall be fully severable from this EULA and shall not affect the legality, validity or enforceability of the remaining provisions of this EULA. Purple Ghost reserves the right, in its sole discretion and at any time: (i) to modify or discontinue the Software; (ii) to limit, terminate or suspend your use of the Software; (iii) assess charges for the use of the Software in the future; or (iv) to make changes to this EULA by providing you with the terms to be added or modified and you shall have the right to terminate this EULA if you choose not to accept those terms, as modified, pursuant to Section 9 hereof. Failure of Purple Ghost to enforce any of the terms or conditions of this EULA, unless waived in writing, shall not constitute a waiver of Purple Ghost’s right to enforce each and every term and condition of this Agreement.
21. ACKNOWLEDGMENT: BY YOUR OPENING OF THE SOFTWARE PACKAGE OR DOWNLOADING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS EULA, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER REPRESENT AND ACKNOWLEDGE THAT THERE ARE NO BENEFICIARIES OTHER THAN YOURSELF UNDER THIS EULA. YOU ACKNOWLEDGE THAT THE PROVISIONS OF THIS EULA REFLECT AN INFORMED, VOLUNTARY ALLOCATION BETWEEN YOU AND PURPLE GHOST OF THE RISKS (BOTH KNOWN AND UNKNOWN) ASSOCIATED WITH THE TRANSACTION CONTEMPLATED BY THIS EULA AND THAT THE LIMITATIONS AND DISCLAIMERS RELATED TO WARRANTIES AND LIABILITY CONTAINED IN THIS EULA ARE INTENDED TO LIMIT THE CIRCUMSTANCES AND EXTENT OF LIABILITY. YOU FURTHER AGREE THAT THIS EULA IS THE COMPLETE AND EXCLUSIVE STATEMENT OF EULA BETWEEN THE PARTIES AND SUPERSEDES ALL PROPOSALS OR PRIOR AGREEMENTS, VERBAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS EULA.
Purple Ghost Software, Inc.
1355 Rolling Oaks Drive
Carol Stream, IL 60188