End user agreement for ThoughtScape Designer
END USER LICENCE AGREEMENT
IMPORTANT: Please read the following agreement carefully before continuing. This agreement covers your single user, full use of THOUGHTSCAPE DESIGNER PROFESSIONAL EDITION software and services. If you download or use THOUGHTSCAPE DESIGNER PROFESSIONAL EDITION (or authorise any person to do so) or otherwise indicate your concurrence with this agreement, you accept the terms and conditions of this agreement.
If you do not agree with the terms and conditions of this agreement, then do not accept this agreement and do not download or use THOUGHTSCAPE DESIGNER PROFESSIONAL EDITION.
This ThoughtScape Designer Professional Edition Agreement ("Agreement") is entered into by and between Teleios Software Development (as defined in the next sentence) and Customer (as defined on the Customer Registration).
The Teleios Software Development Entity is (a) Teleios Software Development CC if customer's address on the Customer Registration is in the South Africa; or (b) Teleios Software Development if Customer's address on the Customer Registration is in any other country.
The maximum number of users per copy of the Professional Edition version of ThoughtScape Designer is one (1) user.
"Effective Date": The date that Customer accepts or indicates agreement with this Agreement.
"Commercial Software" means any software made available to Customer as part of Product during the use period, including all Upgrades of Commercial Software made generally available.
"Customer Registration" means the information provided by Customer to Teleios Software Development indicating Customer's entity name, address, and other contact information. Such information may be entered into Teleios Software Development processing system by a Teleios Software Development representative.
"Database Design Software" means the ThoughtScape Designer Professional Edition database software product made available for Customer's download at Teleios Software Development Professional Edition password-protected web pages, including all Upgrades of Database Software made generally available at such web pages.
"Use Period": The period quoted to Customer by Teleios Software Development, is limited within the licence agreement from the Effective Date, subject to Section 5.
"Teleios Software Development Website" means the website located at www.TeleiosSoftware.com.
"Product" means ThoughtScape Designer Professional Edition and its components Commercial Software, Database Design Software, Services, and Upgrades, collectively.
"The maximum number of servers": One (1)
"Server" means a single machine which processes data using one or more CPUs, and which is owned, leased or otherwise controlled by Customer. In the event such a machine contains Server Blades and/or Server Virtual Operating Environments, each such Server Blade or Server Virtual Operating Environment is a separate Server.
"Server Blade" means a complete computing system on a single circuit board. A Server Blade will include one or more CPUs, memory, disk storage, operating system and network connections. A Server Blade is designed to be hot-pluggable into a space-saving rack; each rack may contain many Server Blades.
"Server Virtual Operating Environment" or "SVOE" means an operating system that has been emulated or does not run directly on physical hardware. A single physical hardware Server or Server Blade can host multiple operating systems and thereby provide multiple SVOEs.
"Services" means the Product services described in this Agreement including, without limitation, technical support, access to ThoughtScape Designer Professional Edition's knowledge base, and database management services.
"Software" means the Commercial Software and Database Software, collectively.
"Upgrades" means bug fixes, updates and/or enhancements for Commercial Software and/or Database Software or other software or software tools that may be provided to Customer as part of Services.
Version: ThoughtScape Designer Professional Edition Version 2.1.
Other capitalized terms may be defined herein in the context in which they appear, and will have the indicated meaning throughout this Agreement (including any attachments, exhibits, addenda and the like, unless otherwise set forth therein).
2. Licenses and Services.
2.1 ThoughtScape Designer Professional Edition grants to Customer a license to use Database Software in accordance with the License.
2.2 Teleios Software Development grants to Customer a license to use Commercial Software on no more than one PC.
2.3 ThoughtScape Designer Professional Edition is hardware dependant and will only run on the installed hardware for which the activation code was generated during registration. The purchase code can only generate one registration code as well as codes for subsequent upgrades to the product. It is the responsibility of the customer to protect his purchase code. Teleios Software Development does not take responsibility for the lost or misuse of a customer's purchase code.
Customer shall obtain Software by download from the TeleiosSoftware.com Website, using a ThoughtScape Designer Professional Edition-provided password.
ThoughtScape Designer Professional Edition 2.1 $649 US or as listed on the web page.
5. Terms and Termination.
5.1 This Agreement shall commence on the Effective purchase date.
5.2 Teleios Software Development cc may terminate this Agreement upon written notice to Customer in the event of Customer's unauthorized use of Product. Otherwise, either party may terminate this Agreement immediately in the event the other party commits a material breach of this Agreement and fails to remedy that breach within seven (7) days of receipt of notice of material breach.
5.3 Upon termination of this Agreement, Customer shall have no further rights to (a) receive or use Services, (b) receive further Upgrades under this Agreement, and (c) copy or use Commercial Software. Sections 1, 5, 6, 7, 8, 10, 11, and 12 of this Agreement shall survive the termination of this Agreement for any reason.
6. Proprietary Rights.
The intellectual property and proprietary rights of whatever nature in Product and related documentation, including derivative works, are and shall remain the exclusive property of Teleios Software Development and, nothing in this Agreement should be construed as transferring any aspects of such rights to a Customer or any third party. Teleios Software Development and its suppliers reserve any and all rights not expressly granted in this Agreement and the License. ThoughtScape Designer Professional Edition, ThoughtScape Designer Professional Edition, ThoughtScape Designer Professional Enterprise Edition, and are trademarks of Teleios Software Development, and shall not be used by Customer without ThoughtScape Designer Professional Edition's express authorization.
7. Warranty and Disclaimer.
PRODUCT IS PROVIDED TO CUSTOMER "AS IS," WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES CONCERNING THE INSTALLATION, USE OR PERFORMANCE OF PRODUCT. Teleios Software Development AND ITS SUPPLIERS DISCLAIM ANY AND ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. Teleios Software Development AND ITS SUPPLIERS DO NOT WARRANT THAT PRODUCT WILL MEET CUSTOMER'S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS WILL BE CORRECTED. Without limiting the generality of the foregoing disclaimer, Product is not specifically designed, manufactured or intended for use in the planning, construction, maintenance, control, or direct operation of nuclear facilities; aircraft navigation, control or communication systems; weapons systems; or direct life support systems.
8.1 For a period of three years after termination of this Agreement, Teleios Software Development and Customer will retain in confidence all information and know-how transmitted by the other party that is clearly designated as being proprietary and/or confidential or that, by the nature of the circumstances surrounding the disclosure, ought reasonably to be treated as proprietary and/or confidential, and will make no use of such information and know-how except to further the purposes set forth in this Agreement. Services (including without limitation Teleios Software Development's knowledge base), Commercial Software, and Upgrades thereof are the confidential information of Teleios Software Development.
8.2 Notwithstanding Section 8.1, Teleios Software Development and Customer shall not have an obligation to maintain the confidentiality of information that (a) is now or subsequently becomes generally known or available by publication, commercial use or otherwise through no fault of the recipient; (b) is known by the recipient at the time of disclosure and is not subject to restriction; (c) is independently developed by the recipient without use of the discloser's confidential information; (d) is not designated as proprietary and/or confidential or would not reasonably be considered as such; or (e) is lawfully obtained from a third-party who has the right to make such disclosure. Further, the recipient may disclose confidential information as required by government or judicial order, provided the recipient gives the disclosing party written notice prior to such disclosure and complies with any protective order (or equivalent) imposed on such disclosure. The terms of confidentiality under this Agreement shall not be construed to limit either party's right to independently develop or acquire products without use of the other party's confidential information.
10. Limitation of Liability.
10.1 IN NO EVENT SHALL Teleios Software Development OR ITS SUPPLIERS HAVE ANY LIABILITY FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING (WITHOUT LIMITATION) ANY LOST PROFIT, LOST DATA, OR BUSINESS INTERRUPTION, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2 IN ANY EVENT, AND NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, THE AGGREGATE LIABILITY OF Teleios Software Development FOR ANY REASON AND UPON ANY CAUSE OF ACTION UNDER THIS AGREEMENT SHALL BE LIMITED TO FIFTY U.S. DOLLARS ($50.00).
11. Audit Rights.
During the use Period and for a one (1) year period following termination, Teleios Software Development shall have the right (at Teleios Software Development's own expense) to conduct periodic reviews of Customer's records relating to its reproduction and use of the Product for the purpose of verifying Customer's compliance with the terms of this Agreement. Teleios Software Development shall exercise this right upon no fewer than thirty (30) days' prior notice. Customer will provide Teleios Software Development with reasonable accommodation for the review, including reasonable use of available office equipment and access to all relevant Customer personnel and records during normal business hours. Teleios Software Development shall deliver to Customer a copy of the results of any such review. If an underpayment is identified, Customer shall immediately pay the full amount of any underpayment. Customer shall also pay Teleios Software Development the cost of any review, including (without limitation) travel expenses and the costs of any attorneys and consultants, if the review determines that Customer has underpaid fees for the period audited in excess of five percent (5%) of the proper amount owed to Teleios Software Development.
12.1 Severability. If any part of this Agreement is held by a court of competent jurisdiction to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement shall not be affected and such provision shall be deemed modified to the minimum extent necessary to make such provision consistent with applicable law and, in its modified form, such provision shall then be enforceable and enforced.
12.2 Assignment. Customer may not assign this Agreement or its rights or obligations under this Agreement to any person or party, whether by operation of law or otherwise, without Teleios Software Development's prior consent (at Teleios Software Development's sole discretion). Any attempt by Customer to assign this Agreement without Teleios Software Development's prior consent, where such consent is required, shall be null and void. Subject to the foregoing conditions, this Agreement shall be binding upon and inure to the benefit of each party and its respective successors and assigns. There are no intended third party beneficiaries of this Agreement.
12.3 No Waiver; Limitations. Failure by either party to exercise any right or remedy under this Agreement does not signify acceptance of the event giving rise to such right or remedy. To the extent permitted by applicable law, no action, regardless of form, arising out of this Agreement may be brought by Customer more than one (1) year after the cause of action has accrued.
12.4 Governing Law.
12.4.1 If this Agreement is by Teleios Software Development cc., this Agreement shall be governed by the laws of the Republic South Africa, without regard to the conflict of law's provisions thereof. In no event shall either the United Nations Convention on Contracts for the International Sale of Goods or any adopted version of the Uniform Computer Information Transactions Act apply to, or govern, this Agreement. In the event either party initiates an action in connection with this Agreement or any other dispute between the parties, the exclusive venue and jurisdiction of such action shall be in the state and federal courts in South Africa.
12.4.3 Notwithstanding Sections 12.4.1 either party may enforce any judgment rendered by such court in any court of competent jurisdiction, and Teleios Software Development cc may seek injunctive or other equitable relief in any jurisdiction in order to protect its intellectual property rights.
12.4.4 Any action brought under this Agreement shall be conducted in the English language. If the Customer is located in France or Quebec, Canada, the following clause applies: The parties hereby confirm that they have requested that this Agreement be drafted in English. Les parties contractantes confirment qu'elles ont exigé quele présent contrat et tous les documents associés soient redigés en anglais.
12.4.5 Customer shall comply at its own expense with all relevant and applicable laws related to the use of Product as permitted in this Agreement.
12.5 Notices. Unless otherwise agreed to by the parties, any notice, authorization, or consent required or permitted to be given or delivered under this Agreement shall be in writing and addressed and delivered to Teleios Software Development at PO Box 9081, Sonpark, 1206, South Africa. Notice shall be deemed to have been received by a party, and shall be effective: (a) on the day given, if sent by confirmed facsimile transmission; (b) on the fifth business day after which such notice is deposited prepaid in the local postal system; or (c) on the day received, if sent with a reputable, expedited overnight or international courier or hand delivered. Either party may change its address for notice purposes upon issuance of notice thereof in accordance with this Section.
12.6 Attorneys Fees. Subject to Section 10, for the purposes of any action between the parties relating to this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs.
12.7 Export Law Assurances. Customer acknowledges that Teleios Software Development cc may be subject to export and import control laws, and agrees to comply fully with those laws in connection with Teleios Software Development cc. Customer agrees that Teleios Software Development cc is not being and will not be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals, nor will it be used for: nuclear activities, chemical or biological weapons, or missile projects unless authorized by the U.S. government. Customer hereby certifies that it is not prohibited by the U.S. government from participating in export or re-export transactions.
12.8 U.S. Government Restricted Rights. If Software is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense ("DOD") acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the government's rights in such Software and any documentation, including its rights to use, modify, reproduce, release, perform, display or disclose Software or any documentation, will be subject in all respects to the license rights and restrictions provided in this Agreement.
12.9 Force Majeure. Except for performance of a payment obligation, neither party will be liable to the other by reason of any failure in performance of this Agreement if the failure arises out of the unavailability of communications facilities or energy sources, acts of God, acts of the other party, acts of governmental authority, fires, strikes, delays in transportation, riots, terrorism, war, or any causes beyond the reasonable control of that party.
12.10 Entire Agreement. This Agreement comprises the entire agreement between the parties regarding the subject matter hereof and supersedes and merges all prior proposals, understandings and all other agreements, oral and written, between the parties relating to the subject matter of this Agreement. Teleios software Development reserves the right to amend or modify this Agreement at any time and in any manner by providing reasonable notice to the Customer. Customer agrees that such reasonable notice may be provided by posting on Teleios software Development's web site; the Customer's start, registration, or download pages; email; or other written notice. Except as otherwise set forth herein, this Agreement may be amended or modified only in a writing executed by both parties. Teleios software Development's acceptance of any document submitted by Customer to Teleios software Development shall not be construed as an acceptance of provisions which are in any way in conflict or inconsistent with, or in addition to, this Agreement, unless such terms are separately and specifically accepted in writing by an authorized representative of Teleios software Development. This Agreement may be incorporated in other documents or executed via facsimile or via emailed PDF-format document (or other mutually agreeable document format), and a facsimile or emailed copy of either party's signature shall be deemed and be enforceable as an original thereof. This Agreement may be executed in counterparts, both of which taken together shall constitute one single Agreement between the parties.