End user agreement for WinCron
WinCron® Version 4.3 LICENSE.RTF
This software is copyright (C) 1996-2007, Tomasello Software LLC.
All Rights Reserved.
WinCron is a Registered Trademark of Luke S. Tomasello and Tomasello Software LLC.
For ordering information, see the file ORDER.TXT.
*** LICENSE AGREEMENT ***
Tomasello Software LLC
WinCron / WinCron Professional Software License Agreement
YOU SHOULD READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE YOU DOWNLOAD, INSTALL OR USE TOMASELLO SOFTWARE'S PROPRIETARY WINCRON SOFTWARE. BY INSTALLING OR USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE FOLLOWING TERMS AND CONDITIONS, DO NOT INSTALL OR USE THE SOFTWARE.
1. DEFINITIONS. "Application" means a software application that you develop to interface with WinCron. "License Key" means a unique code provided by Tomasello Software which identifies you and which unlocks or enables certain features of the Software. "WinCron" means the WinCron and/or WinCron Professional computer programs. "Software" means WinCron, the License Key and any and all updates thereto, together with all associated documentation. When used in this Agreement, "Tomasello Software" means Tomasello Software LLC, and the words "you" and "your" mean the party purchasing a license to use the Software.
2. LICENSE GRANT. The Software is licensed, not sold, to you, in machine-readable (object code) form only for use only under the terms of this Agreement, and Tomasello Software reserves all rights not expressly granted to you in this Agreement. For each License Key provided to you by Tomasello Software, you are granted a nonexclusive license to install and run the Software on the number of computers specified by the License Key. If the License Key does not specify the number of computers, 1 (One) computer shall be licensed. Any License Key which specifies an "Enterprise License" may be run on an unlimited number of computers within one organization located at a single street address. If a License Key contains an expiration date it is considered temporary, and the Software may be installed and run on an unlimited number of computers for the sole purpose of evaluating the Software.
In addition, if your License Key specifies that your license is a "Distribution License", you are granted a nonexclusive, royalty-free license to interface the Software with Applications and to distribute such Software in connection with such Applications, provided that (a) such Applications do not in any way compete with the Software or expose the functionality of the Software through a programmable interface, and (b) each such Application must be marked with a prominent copyright notice bearing your name as it appears in the License Key.
If you upgrade the Software to a higher-numbered version thereof or to a comparable Tomasello Software software product, this license is terminated and your rights shall be limited to the license associated with that product or version.
3. RESTRICTIONS ON USE AND TRANSFER. You may not sublicense, rent, lease, assign or otherwise transfer the Software or any rights thereto, either in whole or in part, to anyone else, except that you may, after written notification to Tomasello Software, permanently transfer the Software in its entirety, provided you retain no copies of the Software and the transferee agrees to the terms and conditions of this Agreement. Use of the Software with a License Key obtained from a source other than Tomasello Software or its authorized resellers is expressly and strictly forbidden. Tomasello Software reserves the right to take any and all actions that Tomasello Software, in its sole discretion, deems necessary to protect against, monitor and control the use of the Software with illegal License Keys. You agree to ensure that anyone who uses any portion of the Software provided to you complies with the terms and conditions of this Agreement.
4. INTELLECTUAL PROPERTY RIGHTS. You acknowledge that the Software contains copyrighted material, trade secrets, trademarks and other proprietary material of Tomasello Software ("Confidential Information"), and is protected under United States and international copyright law and other applicable laws. You may not engage in any unauthorized use or disclosure of any Confidential Information. You agree that the source code of the Software is confidential and proprietary to Tomasello Software. Accordingly, you may not copy the Software, or decompile, disassemble, reverse engineer or create a derivative work based upon the Software, or authorize anyone else to do so. You must reproduce and maintain all copyright notices that are contained in the Software on any copy thereof that you make or use.
5. TERM AND TERMINATION. Except as otherwise provided in this Agreement, the term of the license granted herein is perpetual and becomes effective when you install or use the software. You may terminate this license at any time by destroying any and all copies of the Software or by returning all such copies to Tomasello Software. This Agreement and the associated license for the Software will terminate automatically and without provision of notice by Tomasello Software if you fail to comply with any of the terms or conditions of this Agreement or if you cease permanent use of the Software, for whatever reason. Upon termination of this Agreement for any reason, you agree that you will destroy all copies of the Software or return all such copies to Tomasello Software. In addition to this sentence and the previous sentence, Sections 3, 4 and 6-12 shall any termination of this Agreement.
6. LIMITED WARRANTY. Tomasello Software warrants that the Software will perform substantially in accordance with its accompanying documentation, when operated in the execution environment specified in such documentation, for the warranty period ending thirty (30) days following the date on which you first install or first use the Software. This limited warranty is void if failure of the Software to conform to such warranty is caused in whole or in part by (a) any defect in any hardware or other equipment used with the Software; (b) any failure of any hardware or any other equipment used with the Software to function in accordance with applicable manufacturer's specifications for such items; (c) any alteration, modification or enhancement of the Software by you or anyone other than Tomasello Software; (d) any failure by you or anyone else to follow Tomasello Software's instructions with respect to proper use of the Software; or (e) improper use, abuse, accident, neglect or negligence on the part of you or anyone other than Tomasello Software. Tomasello Software will not be obligated to honor the limited warranty or provide any remedy thereunder unless the Software is returned to Tomasello Software along with the original dated receipt. Any replacement Software will be warranted for thirty (30) days following the date on which Tomasello Software provides it to you. You understand that no Software updates or upgrades are included with this limited warranty and that Tomasello Software may update or revise the Software at any time and, in so doing, incurs no obligation to furnish such updates or revisions to you.
EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, THE SOFTWARE IS PROVIDED TO YOU "AS IS", AND TOMASELLO SOFTWARE MAKES NO EXPRESS OR IMPLIED WARRANTIES WHATSOEVER WITH RESPECT TO ITS FUNCTIONALITY, CONDITION, PERFORMANCE, OPERABILITY OR USE. WITHOUT LIMITING THE FOREGOING, TOMASELLO SOFTWARE DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR FREEDOM FROM INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM ONE JURISDICTION TO ANOTHER.
7. LIMITATIONS OF LIABILITY. YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE FOREGOING LIMITED WARRANTY SHALL BE, AT TOMASELLO SOFTWARE'S OPTION, EITHER (A) REPAIR OR REPLACEMENT OF THE SOFTWARE SO THAT IT CONFORMS TO THE FOREGOING LIMITED WARRANTY, OR (B) REFUND OF THE FEE THAT YOU PAID TO LICENSE THE SOFTWARE. IN NO EVENT SHALL TOMASELLO SOFTWARE BE LIABLE FOR ANY DAMAGES OF ANY TYPE, WHETHER DIRECT OR INDIRECT, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST REVENUES, LOST PROFITS, LOSSES RESULTING FROM BUSINESS INTERRUPTION OR LOSS OF DATA, REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY UNDER WHICH SUCH LIABILITY MAY BE ASSERTED, EVEN IF TOMASELLO SOFTWARE HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. TOMASELLO SOFTWARE SHALL HAVE NO LIABILITY WITH RESPECT TO ANY DATA THAT IS READ, ACCESSED, STORED OR PROCESSED WITH THE SOFTWARE, OR FOR THE COSTS OF RECOVERING ANY SUCH DATA. IN NO EVENT SHALL TOMASELLO SOFTWARE'S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL FEES PAID OR PAYABLE BY YOU TO LICENSE THE SOFTWARE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
8. INDEMNIFICATION. You agree to defend, indemnify, and hold Tomasello Software and all of its employees, agents, representatives, directors, officers, partners, shareholders, attorneys, predecessors, successors, and assigns harmless from and against any and all claims, proceedings, damages, injuries, liabilities, losses, costs, and expenses (including reasonable attorneys' fees and litigation expenses), relating to or arising from your use of the Software, or any breach of this Agreement, except to the extent such claim relates to or arises from a violation by Tomasello Software of any third party copyright, trademark, trade secret or other intellectual property right.
9. EXPORT. You agree that you will not export or transmit the Software or any Applications, directly or indirectly, to any restricted countries or in any manner that would violate United States laws and regulations as shall from time to time govern the license and delivery of technology abroad by persons subject to the jurisdiction of the United States government, including the Export Administration Act of 1979, as amended, and any applicable laws or regulations issued thereafter.
10. U.S. GOVERNMENT RESTRICTED RIGHTS. If you are licensing the Software on behalf of the U.S. Government or any of its agencies ("Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of the Software by the Government is subject to restricted rights in accordance with Federal Acquisition Regulation ("FAR") 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement ("DFARS") 227.7202 for military agencies. The Software is commercial. Use of the Software by the Government is further restricted in accordance with the terms and conditions of this Agreement.
11. MISCELLANEOUS. If any provision of this Agreement is held to be invalid or unenforceable under any circumstances, its application in any other circumstances and the remaining provisions of this Agreement shall not be affected. No waiver of any right under this Agreement shall be effective unless given in writing by an authorized representative of Tomasello Software. No waiver by Tomasello Software of any right shall be deemed to be a waiver of any other right of Tomasello Software arising under this Agreement. This Agreement is solely between you and Tomasello Software and shall not be construed to create any third party beneficiary rights in any other individual, partnership, corporation or other entity. This Agreement shall be governed by and interpreted in accordance with the laws of the state of California, without regard to its provisions governing conflicts of law. Any and all disputes between you and Tomasello Software pertaining to this Agreement shall be submitted to one arbitrator in binding arbitration within ten miles of San Francisco, California in accordance with the Commercial Rules of the American Arbitration Association ("AAA"). The arbitrator shall be experienced in computer consulting, the development of custom software, the sale of packaged software, or related services. If you and Tomasello Software do not agree on an arbitrator within sixty (60) days of the institution of the arbitration, the arbitrator shall be chose by AAA. Evidence and argument may be presented in person or by telephone, fax, postal mail, electronic mail, and other methods of communication approved by the arbitrator. The prevailing party in such proceeding shall be entitled to recover its actually incurred costs, including reasonable attorney's fees, arbitration and court costs. All hearings shall be held and a written arbitration award issued within one-hundred eighty (180) days of the date on which the arbitrator is appointed. Judgment on the award shall be final and binding and may be entered in any court of competent jurisdiction.
12. ENTIRE AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND TOMASELLO SOFTWARE, AND THAT IT SUPERSEDES ANY PROPOSALS OR PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS RELATING TO THE SOFTWARE AND THE SUBJECT MATTER HEREOF. TOMASELLO SOFTWARE SHALL NOT BE BOUND BY ANY PROVISION OF ANY PURCHASE ORDER, RECEIPT, ACCEPTANCE, CONFIRMATION, CORRESPONDENCE OR OTHERWISE, OR BY ANY AGREEMENT BETWEEN YOU AND ANY OTHER PARTY, UNLESS TOMASELLO SOFTWARE SPECIFICALLY AGREES TO SUCH PROVISION IN WRITING. NO VENDOR, DISTRIBUTOR, PROVIDER, RESELLER, OEM, SALES REPRESENTATIVE, OR OTHER PERSON IS AUTHORIZED TO MODIFY THIS AGREEMENT OR TO MAKE ANY WARRANTY, REPRESENTATION OR PROMISE REGARDING THE SOFTWARE WHICH IS DIFFERENT FROM THOSE SET FORTH IN THIS AGREEMENT.