End user agreement for Total PC Care
TOTAL PC CARE END USER LICENCE AGREEMENT ("EULA")
NOTIFICATION: PERMISSION TO USE THIS SOFTWARE ("SOFTWARE") IS CONDITIONAL UPON YOU AS THE CUSTOMER AND LICENSEE ("YOU"), AGREEING TO THE TERMS SET OUT BELOW ("THIS AGREEMENT").
YOU WILL NOT BE ABLE TO INSTALL THE SOFTWARE UNTIL YOU HAVE READ AND ACCEPTED ALL THE TERMS OF THIS AGREEMENT AND WISH TO BECOME THE LICENSEE OF THE SOFTWARE. ACCEPTANCE SHALL BIND YOU AND ALL OF YOUR EMPLOYEES TO THE TERMS OF THIS AGREEMENT. BY CLICKING THE "I ACCEPT THE AGREEMENT" BUTTON YOU WARRANT AND CONFIRM THAT YOU ARE ELIGIBLE AND HAVE THE AUTHORITY TO AGREE TO THE TERMS OF THIS AGREEMENT. SELECTING THE "I ACCEPT THE AGREEMENT" BUTTON BEFORE THE "NEXT" BUTTON AT THE BOTTOM OF THIS SCREEN WILL BE DEEMED TO BE YOUR ACCEPTANCE OF THE FOLLOWING TERMS AND YOU WILL BECOME THE LICENSEE OF THE SOFTWARE. PLEASE PRINT A COPY FOR YOUR RECORDS. IF YOU DO NOT WISH TO ACCEPT THE FOLLOWING TERMS, DO NOT CLICK ON THE "I ACCEPT THE AGREEMENT" BUTTON AND THE SOFTWARE WILL NOT INSTALL ON TO YOUR COMPUTER. IN CIRCUMSTANCES WHERE YOU PURCHASE THE SOFTWARE WITHOUT ACCEPTING THE TERMS OF THIS AGREEMENT AND WISH TO RETURN THE SOFTWARE, PLEASE CONTACT PCOPTIMAX TO DETERMINE WHETHER YOU ARE ELIGIBLE FOR A REFUND.
1.1 The licensor of the Software is a Canadian Company, PCOptimax.
1.2 PCOptimax has agreed to license use of the Software to you pursuant to this Agreement and the terms and conditions set out below.
1.3 PCOptimax grants to you a non-exclusive, non-transferable, revocable license to:
(a) install and execute the Software;
(b) make one additional copy of the Software for backup purposes only; and
(c) use the Software strictly in accordance with the provisions of this Agreement.
1.4 Unless otherwise specified at the time you purchased the Software, and except where clause 2.2 applies, if you wish to install and execute the Software on more than one computer at the same time, you may do so upon receipt of written consent from PCOptimax and upon payment of an additional license fee as stipulated by PCOptimax.
1.5 Your license to use the Software as granted herein only permits you to use the version of the Software which you have installed or purchased from PCOptimax. It does not permit you to use any other version of the Software. The use of any other version of the Software will be governed by a separate agreement between you and PCOptimax. However, if you enter into a separate agreement with PCOptimax for PCOptimax to supply any updates of the Software to you, then, unless specified by PCOptimax to the contrary at the time you receive, install or execute those updates (which may, without limitation, include PCOptimax requiring you to agree to a new end user license agreement before making use of those updates), then this Agreement will also govern the use of those updates.
1.6 You acknowledge that PCOptimax may offer to maintain and update the Software but it is not obliged to do so unless you have purchased a subscription that entitles you to updates for a specified period, or you purchase a separate maintenance contract. If no subscription period is specified at the time you purchase a subscription, the subscription period will be one (1) year from the date you either first purchased or first installed the Software (whichever occurred first). Should you wish to receive information about updates please view PCOptimax website on a regular basis at www.pc-optimax.com.
1.7 If you have purchased a subscription that entitles you to updates, or you purchase a separate maintenance contract, you acknowledge that after the specified subscription period or maintenance period has expired, you have no further right to receive any updates without the purchase of a new subscription or maintenance contract. You also acknowledge that PCOptimax may limit the functionality of the Software upon the expiry of any subscription period or maintenance period unless you purchase a new subscription or maintenance contract.
2. License Fee
2.1 Where a license fee is payable by you in respect of the Software, you are not entitled to use the Software until the license fee has been paid. In the case of payment by credit card, payment will not be deemed paid until the credit card payment has been authorized by the billing provider. A separate license fee is payable in the circumstances described in clause 1.4.
2.2 If you are downloading a free trial version of the Software, you may use it on one or more computers for an unlimited period of time (subject to any time and/or functionality restrictions that may be incorporated into the trial version). However, you are not entitled to receive technical support nor the full functionality that comes with the Software until a license fee has been paid.
3. Licensee's Obligations
3.1 As the Licensee you hereby undertake the following obligations:
(a) to not print, copy, reproduce, translate, adapt, vary, alter, change, reverse engineer, decompile or modify the Software by any means or in any other form, other than to make one temporary copy of the Software for back-up and security purposes, without the express consent of PCOptimax, except as expressly authorized by this Agreement and subject to your rights under applicable law;
(b) to supervise and control the use of the Software in accordance with the terms of this Agreement;
(c) to ensure your employees, sub-contractors and other agents who have authorized access to the Software are made aware of the terms of this Agreement;
(d) to not provide or otherwise make available the Software in any form to any person other than those referred to in paragraph (c) without the written consent of PCOptimax;
(e) to not give, lease, assign, license, sub-license, transfer, distribute, disclose, disseminate or publish the software in any form to any other person or attempt to do any of these acts;
(f) to not alter, change, remove or obscure any notices or other indications (including copyright notices) as to ownership of the Software;
(g) not to access or use the Software on more than one personal stand-alone computer, or otherwise allow the Software to be accessed or used by more than one user at any one time except as expressly authorized by this Agreement; and
(h) to not engage in any acts which infringe PCOptimax' intellectual property rights in the Software.
3.2 You acknowledge that the License granted by Clause 1 does not make you the owner of the Software nor does it cause any transfer or assignment of any copyright or any other intellectual or industrial property rights subsisting in the Software to you.
4.1 You hereby acknowledge that the Software may not be uninterrupted and cannot be guaranteed error free and further acknowledge that the existence of any such errors shall not constitute a breach of this Agreement by PCOptimax. In particular, PCOptimax does not guarantee that the Software will detect, remove or rectify any errors on your computer, including, without limitation any errors in your Window's registry file or other operating system errors. If the Software is a beta version, you acknowledge and agree that (i) the Software may contain errors and defects and may not function as intended or in accordance with its specifications; and (ii) you assume all risk in using the Software and agree to take due care in the installation, execution and testing of the Software on your computer system.
4.2 The particular operating systems upon which the Software has been designed to execute will be published by PCOptimax from time to time ("Compatible OS"). You agree that you will not execute or install the Software on any operating system other than a Compatible OS. You acknowledge and agree that the Software may not execute correctly and may interfere with other software if executed on an operating system which is not a Compatible OS.
4.3 In the event that any terms, conditions, representations or warranties are implied by statute, common law or equity ("Prescribed Terms") into this Agreement which cannot be lawfully excluded, the Prescribed Terms will apply to this Agreement, save that the liability of PCOptimax for breach of any Prescribed Terms will be limited, to the extent permitted by law, at the option of PCOptimax, to any one or more of the following:
(a) the replacement of the Software to which the breach relates or the supply of equivalent Software;
(b) the repair of the Software;
(c) the payment of the cost of replacing the Software or of acquiring equivalent Software; or
(d) the payment of the cost of having the Software repaired.
4.4 If the liability of PCOptimax for breach of any Prescribed Terms is capable of exclusion, they are hereby excluded to the fullest extent permitted by law.
4.5 Except as provided by the Prescribed Terms (if any), which are not capable of exclusion or limitation, or as expressly set out in these terms:
(a) PCOptimax makes no warranties in relation to the Software, including warranties as to the performance or fitness for purpose of the Software (other than that PCOptimax is entitled to grant to you the rights set out in this EULA);
(b) you will not under any circumstances have any cause of action against, or right to claim or recover from, PCOptimax for or in respect of any loss, damage or injury (including without limitation any loss of profit, indirect or consequential loss, damage or injury) arising from the supply or use of the Software or any breach of these terms; and
(c) subject to paragraph (b) above, the maximum liability of PCOptimax to you in respect of any breach of this Agreement or otherwise in respect of your use of the Software will be the amount you have paid PCOptimax for the Software and if you have not paid PCOptimax any amount for the Software, will be the amount of USD $1 (one dollar).
4.6 You acknowledge that you have exercised your independent judgment in acquiring the Software and have not relied upon any representations made by PCOptimax which have not been stated expressly in this Agreement or upon any descriptions or illustrations or specifications contained in any document including catalogues or publicity material produced by PCOptimax.
5. Copyright and Trade Marks
5.1 You acknowledge that the Software and all related products (including but not limited to computer manuals and computer literature) ("Products") are the subject of copyright. You therefore shall not, during or any time after the expiry or termination of this Agreement, permit any act which infringes that copyright and, without limiting the generality of the foregoing, you specifically acknowledge that you may not copy the Software or Products except as otherwise expressly authorised by this Agreement.
5.2 You shall not during or at any time after the expiry or termination of this Agreement permit any act which infringes the trade marks used in connection with the Software.
5.3 You shall indemnify PCOptimax fully against all liabilities, costs and expenses which PCOptimax may incur to a third party as a result of your breach of this Clause 5.
6. Term of License
6.1 This Agreement commences upon payment of the license fee or upon your first installation and use of the Software (whichever is sooner) and may be terminated in the following circumstances:
(a) if you are in breach of any term of this Agreement;
(b) if you, being a corporation, become the subject of insolvency proceedings or have a liquidator, receiver or examiner appointed to you or become unable to pay your debts;
(c) if you, being a person rather than a company, become bankrupt;
(d) if you, being a firm or partnership, are dissolved; or
(e) if you destroy the Software and/or the Products for any reason.
6.2 Upon termination, you or a representative nominated by you shall destroy any remaining copies of the Software and Products or otherwise return or dispose of such material in the manner directed by PCOptimax.
6.3 Termination pursuant to this clause shall not affect any rights or remedies which PCOptimax may otherwise have under this Agreement or at law.
7. Export Restrictions
7.1 PCOptimax, its employees and its agents are subject to U.S. export control laws that prohibit or restrict (i) transactions with certain parties, and (ii) the type and level of technologies and services that may be exported. You agree to comply fully with all laws and regulations of the United States and other countries ("Export Laws") to assure that neither the Software, nor any direct products thereof are (1) exported, directly or indirectly, in violation of Export Laws, or (2) are used for any purpose prohibited by Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation.
7.2 None of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, North Korea, Iran, Sudan, Syria or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's List of Specially Designated Nationals or the U.S. Commerce Department's Denied Persons List, Unverified List, Entity List, Nonproliferation Sanctions or General Orders. By downloading or using the Software, you are agreeing to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country or on any such list, and that you acknowledge you are responsible to obtain any necessary U.S. government authorization to ensure compliance with U.S. law.
The benefit of this Agreement shall not be dealt with in any way by you (whether by assignment, sub-licensing or otherwise) without PCOptimax' written consent and this Agreement shall be binding on your successors and assigns.
Failure or neglect by either party to enforce at any time any of the provisions of this Agreement shall not be construed or deemed to be a waiver of that party's rights under this Agreement.
10. Amending these terms
PCOptimax may amend any of the terms of this Agreement by (a) providing written notice to you of such amendments; and/or (b) displaying such amendments or an amended copy of this Agreement to you during your installation and/or execution of the Software. Without limiting the methods by which you may accept such amended terms, you acknowledge and agree that your ongoing use of the Software after you are made aware of any amended terms to this Agreement will constitute your acceptance of such amended terms.
If you do not agree to any amendments made by PCOptimax to the terms of this Agreement, then you must uninstall the Software from your computer and cease any further use of the Software. In such circumstances, you may also contact PCOptimax to determine if you are eligible for a refund or partial refund of any purchase price paid to PCOptimax in respect of the Software (subject to any conditions which PCOptimax may place in respect of paying such a refund).
11. Governing Law and Jurisdiction
If the parties to this Agreement (as determined by Clause 1.1 above) are you and PCOptimax, then this Agreement shall be governed by and construed according to the laws in force in Quebec, Canada and you irrevocably submit to the exclusive jurisdiction of the Courts of the Province of Quebec and Canada.
If you have any questions or require clarification relating to the terms and conditions of this Agreement, please contact PCOptimax online at www.pc-optimax.com or firstname.lastname@example.org