End user agreement for File Access Manager - For Vision Backup
SOFTWARE LICENCE AGREEMENT
PLEASE READ THIS DOCUMENT CAREFULLY BEFORE AGREEING TO IT.
This Licence Agreement is a legal agreement between you and VisionWorks Solutions Inc. (VisionWorks). This Licence Agreement governs your use of the software downloaded from this disk/website (the Software). By clicking I AGREE, copying, installing or using the Software, you are agreeing to be bound by all the terms of this Licence Agreement and are (1) representing that you are over the age of eighteen (18) and have the capacity and authority to bind yourself and your employer, as applicable, to the terms of this Licence Agreement; and (2) consenting on behalf of yourself and/or as an authorized representative of your employer, as applicable, to be bound by this Licence Agreement. If you do not agree with any of the terms of this Licence Agreement, click CANCEL, do not use, copy or install the Software and immediately destroy any copies of the Software you have made.
You agree that your use of the Software acknowledges that you have read this Licence Agreement, that you understand it, and that you agree to be bound by its terms and conditions. This Licence Agreement gives you certain rights as a user of the Software only. You may not distribute, sell, transfer, or commercially exploit this Software or any products developed using this Software.
Should you have any questions regarding this Agreement, or wish to contact VisionWorks, you may write to: VisionWorks Solutions Inc., 3850 Dougall Ave P.O. Box 31004
Windsor, ON N9G 2Y2. Canada.
1. GRANT OF LICENCE
1.1 Licence Grant. VisionWorks hereby grants you a non-exclusive licence with respect to the Software and the accompanying documentation (the Documentation). You may use the Software on as many computer terminals as are permitted under the licences you have purchased from VisionWorks. Use of the Software on computers for which licences have not been purchased will result in automatic termination as set out in Section 3 of this Agreement. This Software will not function until you activate it with a Licence Code. To use the Software, you agree to provide VisionWorks, via Internet or by telephone, the Serial Number to activate the Software. You also agree to provide VisionWorks your name, the company name, full mailing address and individual email address for Serial Number activation and protection. All information provided to VisionWorks will be kept CONFIDENTIAL and will only be used to re-install the Software, to alert you of modifications and fixes (patches) to the Software or to alert you of new products from VisionWorks.
1.2 Property Rights in the Software and Documentation. The Software and the Documentation is the sole and exclusive property of VisionWorks and VisionWorks's licensors. VisionWorks and its licensors retain all rights with respect to the Software and the Documentation, including any copyright, patent, and other proprietary rights, except the right to use the Software as specifically granted herein. Any copy of the Software or the Documentation, or any portion thereof, is specifically subject to the terms and conditions of this Licence Agreement. The Software is licenced, not sold. Title, ownership rights, and all intellectual property rights in the Software (including without limitation the related source code, object code and Documentation) shall remain exclusively in VisionWorks and its licensors. You acknowledge such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with VisionWorks's or its suppliers' ownership of, or rights with respect to, the Software. The Software and Documentation is protected by copyright and other intellectual property laws and by international treaties.
1.3 Licence Restrictions. The licence granted herein does not permit you to, and you agree that you will not: (a) distribute, sell, transfer, market or otherwise commercially exploit the Software or Licence Code(s); (b) assign, sublicence, lease, distribute or transfer in any way the rights granted to you herein, without the prior written consent of VisionWorks (which may be arbitrarily withheld); (c) use the Software or Licence Code(s) for any use or in any manner other than as set out in the Documentation or herein; (d) copy the Software, Licence Code(s) or the Documentation (except for back-up purposes); (e) remove any proprietary notices or labels on the Software, Licence Code(s) or the Documentation; (f) provide, lease, lend, use for timesharing, application service provider or service bureau purposes, or otherwise use or allow others to use the Software, Licence Code(s) for their own benefit or for the benefit of third parties; (g) modify, alter, decompile, disassemble or reverse engineer the Software or Licence Code(s) or attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques or algorithms of the Software by any means whatever. This licence does not grant you any rights to any improvement, enhancement or update.
1.4 Beta Versions. In the event that the Software is a beta release or pre-release version, the terms of this section shall apply. Your licence to use the Software expires thirty (30) days after installation (or such other period as indicated by the Software) and the Software may thereafter cease to function. The Software you are receiving may contain more or less features than the commercial release of the Software that VisionWorks intends to distribute. VisionWorks reserves the right at any time not to release a commercial release of the Software or, if released, to alter features, specification, capabilities, functions, licensing terms, release dates, general availability or other characteristics. You acknowledge that the beta release or pre-release versions have not been fully tested and may contain errors affecting their proper operation. You agree that you will not do anything to circumvent or defeat the features designed to stop the Software from operating after the licence expires.
1.5 Use of Software. You agree: (i) to use the Software only for your company's private commercial use only; and (ii) to use the Software only in a manner that complies with all applicable laws, including without limitation applicable restrictions concerning copyright and other intellectual property rights, laws or regulations relating to privacy and privacy rights and laws or regulations relating to unsolicited electronic commercial messages. Any use of the Software in violation of any of the restrictions contained in this Licence Agreement will immediately terminate this Licence Agreement and any right you have to use the Software.
1.6 Indemnification. You agree to defend, indemnify and hold VisionWorks harmless from and against any and all costs, liability and expenses arising out of any claim that is related to: (a) your use of the Software in any manner not contemplated by the Documentation or this Licence Agreement; (b) your use of the Software in connection with any activity that is illegal, offensive or immoral or that infringes on rights of privacy or publicity, or any intellectual or proprietary rights of any third party; or (c) any breach by you of your obligations under this Licence Agreement.
2. NO WARRANTY
2.1 Disclaimer. The Software and Documentation is provided as is without any warranty of any kind. To the maximum extent permitted by law, VisionWorks disclaims any representations, warranties or conditions, express, statutory or implied, with respect to the Software or the Documentation. VisionWorks expressly disclaims all other representations, warranties or conditions, including without limitation any implied or statutory warranties or conditions of merchantability, title, non-infringement or fitness for a particular purpose. VisionWorks does not warrant that the Software will meet your requirements or that it will function uninterrupted, error free or that defects will be corrected. You assume the entire risk as to the operation, results and performance of the Software. VisionWorks shall have no obligation to remedy any non-conformance or defect in the Software.
2.2 Limitation of Liability. In no event whatsoever will VisionWorks or its officers, employees or affiliates be liable for any special, punitive, indirect, incidental or consequential damages, arising out of this Licence Agreement or in connection with the use or inability to use the Software, whether based on breach of contract, tort, negligence, product liability or otherwise, and whether or not VisionWorks has been advised of the possibility of such damages. You assume the entire risk as to the quality and performance of the software. In any event, the total liability of VisionWorks for all damages whatsoever shall not exceed the sum of CDN$500.00. You agree that these limitations are reasonable in scope and reasonably necessary in order for VisionWorks to protect its considerable investment in the Software. In no event whatsoever shall VisionWorks be liable, under any circumstances, regardless of the type or cause of action, for (a) any lost profits, lost revenue or lost business, (b) any loss or damage to software or data, (c) any incidental, indirect, consequential or special damages; arising out of the use of or inability to use, the Software or accompanying written materials, even if VisionWorks has been advised of the possibility of such liability or damages.
3. TERM and TERMINATION
3.1 Term and Termination. This Licence Agreement is effective until terminated. This Licence Agreement will automatically terminate if you fail to comply with any term hereof. No notice from VisionWorks shall be required to effect such termination. You may terminate this Licence Agreement at any time by destroying the Software and all copies in your possession and by providing notice in writing to VisionWorks.
3.2 Effect of Termination. Upon any termination of this Licence Agreement for any reason whatsoever, your licence and any rights under this Licence Agreement shall terminate and you agree to: (i) immediately discontinue using the Software; and (ii) destroy all Software including all copies and portions thereof. In no event may any of the Software be used by you for any purpose, including development, following termination of this Licence Agreement. In the event of the termination of this Licence Agreement for any reason, the provisions of those sections hereof which are reasonably intended to survive termination of this Licence Agreement shall survive such termination and continue to be valid and binding.
4. GENERAL PROVISIONS
4.1 Integration and Severability. This Licence Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior and contemporaneous agreements and communications whether oral or written, between the parties relating to the subject matter hereof, and all past courses of dealing or industry custom. The terms and conditions hereof shall prevail exclusively over any written instrument submitted by you, and you hereby disclaim any terms therein. If any provision in this Licence Agreement should be held illegal or unenforceable by a court having jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this Licence Agreement if no such modification is possible, and other provisions of this Licence Agreement shall remain in full force and effect.
4.2 Modification and Waiver. The Licence Agreement may be amended only by a written instrument signed by a duly authorized representative of VisionWorks. A waiver or grant of extension by either party with respect to any term or condition of this Licence Agreement, or any breach thereof, shall not constitute a waiver or operate as a grant of extension with respect to any subsequent event or breach nor constitute a waiver or operate as a grant of extension with respect to any other term, condition or breach.
4.3 Governing Law. This Licence Agreement shall be governed by the laws of the Province of Ontario and the laws of Canada applicable therein.
4.4 Dispute Resolution. Any dispute hereunder will be finally resolved by one arbitrator pursuant to the Arbitration Act (Ontario) S.O. 1991, c. 17. If the parties cannot agree on the appointment of an arbitrator within sixty (60) days of notice of the dispute first being provided by one party to the other , the arbitrator shall be appointed by a Judge of a court of competent jurisdiction. All hearings shall take place in Ontario. Any judgment or award rendered by such arbitrator shall be final and binding and no appeal shall lie therefrom. This section does not affect the rights of the parties to seek injunctive relief when appropriate to enforce rights hereunder.
4.5 Non-Assignment. You may not transfer assign or transfer this Licence Agreement or any rights or obligations herein without the prior written consent of VisionWorks, which may be arbitrarily withheld. Notwithstanding the foregoing, this Licence Agreement shall be binding upon and shall inure to the benefit of the parties, their successors, heirs, executors, personal representatives and permitted assigns.
4.6 Independent Contractor. The relationship between VisionWorks and you is that of independent contractors and neither you nor your agents shall have any authority to bind VisionWorks in any way nor shall you attempt or purport to do so.
4.7 Agreement to be Bound. By clicking I AGREE or by using the Software, you acknowledge that you have read this Licence Agreement, understand it, and agree to be bound by its terms and conditions. You agree that this Licence Agreement constitutes the complete and exclusive agreement between you and VisionWorks with respect to the subject matter hereof and that this Licence Agreement supercedes any proposal or prior agreement, oral or written, and any other communications between you and VisionWorks.
VisionWorks Solutions Inc.
Windsor, Ontario, Canada