End user agreement for Scratchboard
END-USER LICENSE AGREEMENT
IMPORTANT - PLEASE READ CAREFULLY: This End-User License Agreement ("EULA") for the software you are installing ("Software") is a legal agreement between you ("Licensee") (either an individual or a single entity) and Gammadyne Corporation ("Licensor"). By installing, copying, activating, or otherwise using the Software you agree to be bound by the terms of this EULA. If you do not agree to all of the terms of this EULA, you are not permitted to use or copy the Software.
The Software, its documentation, and other related files ("Licensed Materials") are protected by copyright laws and international copyright treaties as well as other intellectual property laws and treaties. The Licensed Materials are licensed, not sold. Your license confers no title or ownership in the Licensed Materials. The Licensor owns the Licensed Materials and has complete authority for licensing it to the Licensee.
1. PERMITTED USE. This is not free software. Subject to the terms of this EULA, Licensee is hereby permitted to use the Software for evaluation purposes without charge for a period of 30 days. If Licensee uses the Software after the 30 day evaluation period, a software usage license ("License") must be purchased. The License can be paid for electronically at http://www.Gammadyne.com . Unlicensed use of the Software or its Created Files after the 30-day evaluation period is in violation of U.S. and international copyright laws. During the evaluation period, Licensee is not licensed to distribute Created Files to third parties.
Each License purchased entitles the Licensee to 5 activations. Upon receipt of payment of the licensing fee, Licensee will be emailed a License ID that can be entered into the Software's Product Activation window. The License ID is then transmitted to the Licensor's web server. If the License ID is valid, the Software will unlock all limitations, and one activation is deducted from the License. The Software will remain unlocked until it is moved to another hard drive, or until a major upgrade (such as 1.0 to 2.0) is installed, at which point reactivation will be necessary. Minor upgrades (such as 1.0 to 1.1) are free. Activations are not limited to a single computer. Licensor is not responsible if the activation status is lost for any reason. When all activations have been consumed from the License, the License will thereby be revoked. Activations are non-refundable.
Licensee may not interfere or otherwise intercept the transmission of the License ID, nor the response from the web server.
2. CREATED FILES. Any files created by the Software ("Created Files") are freely distributable and royalty-free. It is prohibited to modify, disassemble, decompile, or otherwise reverse engineer Created Files outside of the Software, or give another permission to do so. Licensee must maintain all copyright notices on all Created Files.
3. NOT MALWARE. The Software is not itself, nor does it contain, malware. The term "malware" includes viruses, trojans, worms, adware, spyware, or any other type of malicious software. If the Software is found to contain malware, the Licensee is entitled to a full refund. However, the Licensor is not liable for any special, incidental, indirect, or consequential damages whatsoever.
4. OWNERSHIP. The Software, together with all intellectual property rights embodied therein, is owned by Licensor and/or its third party suppliers and the Software is protected by United States copyright laws and international treaties. A License confers no title or ownership in the Software. Licensor’s third party suppliers may protect their rights in the event of any violation of this License.
5. TRANSFER. Licensee may permanently transfer all of the rights under this EULA, provided the recipient agrees to the terms of this EULA and Licensee agrees to uninstall and destroy all Licensed Materials and Created Files.
6. RESTRICTIONS. Licensee may not remove, obscure or modify any copyright or other notices included in the Licensed Materials. Licensee may not disassemble, decompile, or otherwise reverse engineer the Software. Licensee may not rent, lease, or lend the Software, in whole or in part. The Licensed Materials are licensed to Licensee as a single product. Its component parts may not be separated for use on more than one computer. Licensee may not create a derivative work of any part of the Software.
7. COPYRIGHT. All title and copyrights in and to the Licensed Materials and any copies thereof are owned by Licensor.
8. TERMINATION. Licensee's rights under this EULA terminate if Licensee fails to comply with the terms and conditions of this EULA. In such event, Licensee must destroy all copies of the Licensed Materials and Created Files.
Licensor reserves the right to terminate this EULA five (5) years after the Software is installed. Licensee may terminate this EULA at any time by ceasing use of the Software and destroying the Licensed Materials and Created Files, together with all copies and merged portions in any form. Either Party may terminate this EULA at any time upon written notice if the other Party: (i) is in material breach of its obligations hereunder and fails to cure such breach within thirty (30) days following written notice of such breach, (ii) becomes insolvent or ceases doing business; or (iii) files or has filed against it a petition under bankruptcy or insolvency law which remains undismissed after ninety (90) days, makes an assignment for the benefit of its creditors or takes any similar action under applicable bankruptcy or insolvency law.
Licensor reserves the right to terminate this EULA if the Licensee uninstalls the Software.
9. NEFARIOUS ACTIVITIES. The Licensor may revoke the Licensee's License to use the Licensed Materials if it is discovered that the Licensee is involved, directly or indirectly, in any illegal or nefarious activities. Deciding what constitutes nefarious activities is solely at the discretion of the Licensor. This includes, but is not limited to:
- Racial prejudice
- Religious prejudice
- Hatred in any form
- Sending Unsolicited Commercial Email (spam)
In such event, Licensee must destroy all copies of the Licensed Materials and Created Files. The Licensor is under no obligation to issue a refund on revoked licenses. To the maximum extent permitted by applicable law, in no event shall Licensor or its suppliers be liable for any special, incidental, indirect, or consequential damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss) arising out of the inability to use the Licensed Materials once a License has been revoked.
10. NO LIABILITY FOR CONSEQUENTIAL DAMAGES. To the maximum extent permitted by applicable law, in no event shall Licensor or its suppliers be liable for any special, incidental, indirect, or consequential damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss) arising out of the use of or inability to use the Software, even if Licensor has been advised of the possibility of such damages.
Licensor is not responsible for lost or damaged files, data, or email - even when resulting from a defect in the Software. Intelligent caution dictates that any program be thoroughly tested with noncritical data before relying on it. The user assumes the entire risk of using the program. Any liability of the Licensor will be limited exclusively to product replacement or refund of purchase price.
The Software is not fault tolerant and is not designed, manufactured, or intended for use in environments or applications in which failure of the Software could lead directly to death, personal injury, environmental damage, or financial loss.
11. EQUITABLE REMEDIES. Licensee hereby agrees that Licensor would be irreparably damaged if the terms of this EULA were not specifically enforced, and therefore Licensee agrees that Licensor shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this EULA, in addition to such other remedies as Licensor may otherwise have available to it under applicable laws.
12. TRADE SECRETS; TITLE. Licensee acknowledges and agrees that the structure, design, and organization of the Software are the valuable trade secrets of Licensor. Licensee agrees to hold such trade secrets in confidence. Licensee further acknowledges and agrees that ownership of, and title to, the Licensed Materials and all subsequent copies thereof regardless of the form or media are held by Licensor.
13. DISTRIBUTION. Licensee may not distribute the Licensed Materials to third parties without prior written permission from Licensor. Licensee is permitted to make personal backup copies of the Licensed Materials as desired.
14. EXPORT RESTRICTIONS. Licensee agrees not to export or re-export the Licensed Materials to any country, person, entity or end user subject to U.S.A. export restrictions. Licensee warrants and represents that neither the U.S.A. Bureau of Export Administration nor any other federal agency has suspended, revoked or denied Licensee's export privileges. By installing the Software, Licensee agrees to the foregoing and Licensee is representing and warranting that they are not located in, under the control of, or a national or resident of any such country.
15. INDEMNIFICATION BY LICENSEE. If Licensee distributes the Licensed Materials in violation of this Agreement, Licensee agrees to indemnify, hold harmless and defend Licensor from and against any claims or lawsuits, including attorney's fees that arise or result from the use or distribution of the Licensed Materials in violation of this EULA.
16. NO WARRANTY. The Software is licensed "as is" and without any warranty of any kind. Any use of the Software is at your own risk. To the maximum extent permitted by applicable law, Licensor and its suppliers, sponsors, and advertisers disclaim all warranties and conditions, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and noninfringement. Licensee accepts all risks, which may arise from the downloading, installing, and use of the Software, including, without limitation, errors in transmission or corruption of existing data or software.
17. NO SUPPORT OBLIGATION. Licensor is not obligated to provide technical support or furnish any additional information for the Licensed Materials.
18. NO UPGRADE OBLIGATION. Licensor is not obligated to improve, upgrade, update, or fix problems in the Licensed Materials.
19. PUBLIC REFERENCE. Licensee consents to the public use of its name as a customer of Licensor.
20. NO WAIVER. The failure by any party to exercise any right or remedy provided for herein will not be deemed a waiver of any right or remedy hereunder.
21. GOVERNING LAW AND CHOICE OF FORUM. This EULA shall be governed by and interpreted in accordance with the laws of the State of Kansas, U.S.A., without regard to the conflicts of law rules thereof. Any claim or dispute arising in connection with this EULA shall be resolved exclusively in the federal or state courts situated within the 10th Judicial District of Kansas. To the maximum extent permitted by law, Licensee hereby consents to the jurisdiction and venue of such courts and waives any objections to the jurisdiction or venue of such courts.
22. DISPUTE RESOLUTION. In the event of any dispute or controversy arising out of or relating to this Agreement, the parties agree to exercise their best efforts to resolve the dispute as soon as possible. The parties shall, without delay, continue to perform their respective obligations under this Agreement which are not affected by the dispute.
22a. Mediation. In the event that the parties can not by exercise of their best efforts resolve the dispute, they shall submit the dispute to Mediation. The parties shall, without delay, continue to perform their respective obligations under this Agreement which are not affected by the dispute. The invoking party shall give to the other party written notice of its decision to do so, including a description of the issues subject to the dispute and a proposed resolution thereof. Designated representatives of both parties shall attempt to resolve the dispute within 60 days after such notice. If those designated representatives cannot resolve the dispute, the parties shall meet in Overland Park, Kansas and describe the dispute and their respective proposals for resolution to responsible executives of the disputing parties, who shall act in good faith to resolve the dispute. If the dispute is not resolved within 60 days after such meeting, the dispute shall be submitted to binding arbitration in accordance with the Arbitration provision of this Agreement.
22b. Arbitration. Any controversies or disputes arising out of or relating to this Agreement shall be resolved by binding arbitration in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association. The parties shall endeavor to select a mutually acceptable arbitrator knowledgeable about issues relating to the subject matter of this Agreement. In the event the parties are unable to agree to such a selection, each party will select an arbitrator and the arbitrators in turn shall select a third arbitrator. The arbitration shall take place in Overland Park, Kansas.
All documents, materials, and information in the possession of each party that are in any way relevant to the claim(s) or dispute(s) shall be made available to the other party for review and copying no later than 60 days after the notice of arbitration is served.
The arbitrator(s) shall not have the authority, power, or right to alter, change, amend, modify, add, or subtract from any provision of this Agreement or to award punitive damages. The arbitrator shall have the power to issue mandatory orders and restraining orders in connection with the arbitration. The award rendered by the arbitrator shall be final and binding on the parties, and judgment may be entered thereon in any court having jurisdiction. The agreement to arbitration shall be specifically enforceable under prevailing arbitration law. During the continuance of any arbitration proceeding, the parties shall continue to perform their respective obligations under this Agreement.
23. LIMITATION OF LIABILITY. Except to the extent prohibited by local law or for bodily injury, in no event shall Licensor or its subsidiaries, affiliates or suppliers, be liable for any direct, consequential, special, incidental, or indirect damages of any kind (including, without limitation, any loss of data, loss of profits or downtime costs) arising out of the use of, inability to use, or the results of use of, the Software, whether based in warranty, contract, tort or other legal theory, and whether or not advised of the possibility of such damages. In no event shall the total liability of Licensor or its suppliers for all damages, losses, and causes of action exceed the amount paid by the Licensee for the specific Software to which the liability is related.
24. SEVERABILITY. In the event that any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this agreement, but this agreement shall be construed as if such invalid, illegal or unenforceable provisions had never been contained herein, unless the deletion of such provision or provisions would result in such a material change so as to cause completion of the transactions contemplated herein to be unreasonable.
25. HEADINGS. The titles and headings of the sections of this EULA are provided as a convenience of reference. They do not modify or place any construction upon or on any of the provisions of this Agreement.
Licensee hereby acknowledges that they have read and understand the foregoing End-User License Agreement and agree that the action of installing the Software is an acknowledgment of Licensee's agreement to be bound by the terms and conditions of the Agreement contained herein. Licensee also acknowledges and agrees that this EULA is the complete and exclusive statement of the agreement between the Licensor and Licensee, and that the EULA supersedes any prior or contemporaneous agreement, either oral or written, and any other communications between the Licensor and Licensee.