End user agreement for CyberSpire WebDialogs
END-USER LICENSE AGREEMENT FOR CYBERSPIRE SOFTWARE IMPORTANT-READ CAREFULLY: This End User License Agreement (this "EULA") contains the terms and conditions regarding your use of the SOFTWARE (as defined below). This EULA contains material limitations to your rights in that regard. I. THIS EULA 1. Software Covered by this EULA. This EULA governs your use of the CyberSpire, LLC software product(s) enclosed or otherwise accompanied herewith (individually and collectively, the "SOFTWARE"). The term "SOFTWARE" includes, to the extent provided by CyberSpire: 1) any revisions, updates and/or upgrades thereto; 2) any data, image or executable files, databases, data engines, computer software, or similar items customarily used or distributed with computer software products; 3) anything in any form whatsoever intended to be used with or in conjunction with the SOFTWARE; and 4) any associated media, documentation (including physical, electronic and on-line) and printed materials (the "Documentation"). 2. This EULA is a Legally Binding Agreement Between You and CyberSpire. If you are acting as an agent of a company or another legal person, such as an officer or other employee acting for your employer, then "you" and "your" mean your principal, the entity or other legal person for whom you are acting. However, importantly, even if you are acting as an agent for another, you may still be personally liable for violation of federal and State laws, such as copyright infringement. This EULA is a legally binding agreement between you and CyberSpire. You intend to be legally bound to this EULA to the same extent as if CyberSpire and you physically signed this EULA. By installing, copying, or otherwise using the SOFTWARE, you agree to be bound by the terms and conditions contained in this EULA. If you do not agree to all of the terms and conditions contained in this EULA, you may not install or use the SOFTWARE. If, for whatever reason, installation has begun or has been completed, you should cancel installation or uninstall the SOFTWARE, as the case may be. (You may immediately abort installation.) If you do not agree to all of these terms and conditions, then you must promptly return the SOFTWARE to the place of business from which you obtained it in accordance with any return policies of such place of business. Return policies may vary between or among resellers, and you must comply with your particular reseller's return policies as agreed at the point of purchase. If the place of business from which you purchased the SOFTWARE does not honor a complete refund for a period of thirty (30) days from the date of proof of purchase, then you may return the SOFTWARE directly to CyberSpire for a period of thirty (30) days from the date of your purchase. To return the product directly to CyberSpire, you must obtain a CyberSpire Return Authorization Number by contacting CyberSpire, and you must forward all items purchased, including the proof of purchase, directly to CyberSpire. The return must be postage-prepaid, and post-marked within thirty (30) days from the proof of purchase, time being of the essence. The return option to CyberSpire is only available to the original purchaser. II. YOUR LICENSE TO DEVELOP AND TO DISTRIBUTE As provided in more detail below, this EULA grants you two licenses: 1) a license to use the SOFTWARE to develop other software products (the "Development License"); and 2) a license to use and/or distribute the Developed Software (the "Distribution License"). Both of these licenses (individually and collectively, the "Licenses") are explained and defined in more detail below. 1. Definitions. The following terms have the respective meanings as used in this EULA: "Network Server" means a computer with one or more computer central processing units (CPU's) that operates for the purpose of serving other computers logically or physically connected to it, including, but not limited to, other computers connected to it on an internal network, intranet or the Internet. "Web Server" means a type of Network Server that serves other computers more particularly connected to it over an intranet or the Internet. "Developed Software" means those computer software products that are developed by or through the use of the SOFTWARE. "Developed Web Server Software" means those Developed Software products that reside logically or physically on at least one Web Server and are operated (meaning the computer software instruction set is carried out) by the Web Server's central processing unit(s) (CPU). "Developed Legacy Software" means those Developed Software products that are not Developed Web Server Software, including, for example, stand-alone applications and applications accessed by a file server only. "Redistributable Files" means the SOFTWARE files or other portions of the SOFTWARE that are provided by CyberSpire and are identified as such in the Documentation for distribution by you with the Developed Software. "Developer" means a human being or any other automated device using the SOFTWARE in accordance with the terms and conditions of this EULA. "Developer Seat License" means that each Developer using or otherwise accessing the programmatic interface or the SOFTWARE must obtain the right to do so by purchasing a separate End User License. "Source Code" shall mean computer software code or programs in human readable format, such as a printed listing of such a program written in a high-level computer language. The term "Source Code" includes, but is not limited to, documents and materials in support of the development effort of the SOFTWARE, such as flow charts, pseudo code and program notes. 2. Your Development License. You are hereby granted a limited, royalty-free, non-exclusive right to use the SOFTWARE to design, develop, and test Developed Software, on the express condition that, and only for so long as, you fully comply with all terms and conditions of this EULA. The SOFTWARE is licensed to you on a Developer Seat License basis. The Developer Seat License means that you may perform an installation of the SOFTWARE for use in designing, testing and creating Developed Software by a single Developer on one or more computers, each with a single set of input devices, so long as such computer/computers is/are used only by one single Developer at any given time and not concurrently. Conversely, you may not install or use the SOFTWARE on a computer that is a network server or a computer at which the SOFTWARE is used by more than one Developer. You may not network the SOFTWARE or any component part of it, where it is or may be used by more than one Developer unless you purchase an additional Development License for each Developer. You must purchase another separate license to the SOFTWARE in order to add additional developer seats, whether the additional developers are accessing the SOFTWARE in a stand-alone environment or on a computer network. In all cases, you may not use CyberSpire's name, logo, or trademarks to market your Developed Software without the express written consent of CyberSpire. You agree to indemnify, hold harmless, and defend CyberSpire, its suppliers and resellers, from and against any claims or lawsuits, including attorney's fees that may arise from the use or distribution of your Developed Software. You may use the SOFTWARE only to create Developed Software that is significantly different than the SOFTWARE. 3. Your Distribution License. License to Distribute Developed Software. Subject to the terms and conditions in this EULA, you are granted the license to use and to distribute Developed Software on a royalty-free basis, provided that the Developed Software incorporates the SOFTWARE as an integral part of the Developed Software in machine-language compiled format (customarily an ".exe", or ".dll", etc.). You may not distribute, bundle, wrap or subclass the SOFTWARE as Developed Software which, when used in a "designtime" development environment, exposes the programmatic interface of the SOFTWARE. You may distribute, on a royalty-free basis, Redistributable Files with Developed Software only. 4. Specific Product Limitations. Notwithstanding anything in this EULA to the contrary, if the license you have purchased is for any of the following products, then the following additional limitations will apply: a. CyberSpire WebDialogs. CyberSpire WebDialogs includes at least: 1) one dynamic link library (Cyberspire.Webdialogs.dll) file known as CyberSpire.WebDialogs Component, 2) one dynamic link library (Xheo.Licensing.dll) file known as Xheo.Licensing Component. The CyberSpire WebDialogs Component is subject to the general terms and restrictions set forth in this EULA and may be distributed, royalty-free for use at runtime, with any ASP.NET application. The Xheo Licensing Component is necessary to distribute, royalty-free, with any ASP.NET application you've developed that uses the CyberSpire WebDialogs Component; this is so the royalty-free runtime license works correctly as designed. 5. Updates/Upgrades. Subject to the terms and conditions of this EULA, the Licenses are perpetual. Updates and upgrades to the SOFTWARE may be provided by CyberSpire from time-to-time, and, if so provided by CyberSpire, are provided upon the terms and conditions offered at that time by CyberSpire in its sole discretion. CyberSpire may provide updates and upgrades to the SOFTWARE for free or for any charge, at any time or never, and through its chosen manner of access and distribution, all in CyberSpire's sole and complete discretion. 6. Serial Number. Within the packaging of the SOFTWARE, a unique serial number (the "Serial Number") is included, which allows for the registration of the SOFTWARE. The Serial Number is subject to the restrictions set forth in this EULA and may not be disclosed or distributed either with your Developed Software or in any other way. The disclosure or distribution of the Serial Number shall constitute a breach of this EULA, the effect of which shall be the automatic termination and revocation of all the rights granted herein. 7. Trial Version. If you are using an "trial version copy" or similar version, specifically designated as such by CyberSpire on its website or otherwise, then the Licenses are limited as follows: a) you are granted a license to use the SOFTWARE for a period of thirty (30) days counted from the day of installation (the "Evaluation Period"); b) upon completion of the Trial License Period, you shall either i) delete the SOFTWARE from the computer containing the installation, or you may ii) contact a CyberSpire's authorized dealer to purchase a license of the SOFTWARE, which is subject to the terms and limitations contained herein; and c) any Developed Software may not be distributed or used for any commercial purpose. III. INTELLECTUAL PROPERTY 1. Copyright. You agree that all right, title, and interest in and to the SOFTWARE (including, but not limited to, any images, photographs, animations, video, audio, music, text, and "applets" incorporated into the SOFTWARE), and any copies of the SOFTWARE, and any copyrights and other intellectual properties therein or related thereto are owned exclusively by CyberSpire, except to the limited extent that CyberSpire may be the rightful license holder of certain third-party technologies incorporated into the SOFTWARE. The SOFTWARE is protected by copyright laws and international treaty provisions. The SOFTWARE is licensed to you, not sold to you. CyberSpire reserves all rights not otherwise expressly and specifically granted to you in this EULA. 2. Backups. You may either: (a) copy the SOFTWARE solely for backup or archival purposes; or (b) install the SOFTWARE on a single computer, provided you keep the original solely for backup or archival purposes. Notwithstanding the foregoing, you may not copy the Documentation. 3. General Limitations. You may not reverse engineer, decompile, or disassemble the SOFTWARE, except and only to the extent that applicable law expressly permits such activity notwithstanding this limitation. 4. Software Transfers. You may not rent or lease the SOFTWARE. You may transfer the SOFTWARE to another computer, provided that it is completely removed from the computer from which it was transferred. You may permanently trans-fer all of your rights under the EULA, provided that you retain no copies, that you transfer all the SOFTWARE (including all component parts, the media and printed materials, any dates, upgrades, this EULA and, if applicable, the Certificate of Authenticity), and that the recipient agrees to the terms and conditions of this EULA as provided herein. If the SOFTWARE is an update or upgrade, any transfer must include all prior versions of the SOFTWARE. 5. Termination. Without prejudice to any other rights it may have, CyberSpire may terminate this EULA and the Licenses if you fail to comply with the terms and conditions contained herein. In such an event, you must destroy all copies of the SOFT-WARE and all of its component parts. 6. Export Restrictions. You acknowledge that the SOFTWARE is of U.S. origin. You acknowledge that the license and distribution of the SOFTWARE is subject to the export control laws and regulations of the United States of America, and any amendments thereof, which restrict exports and re-exports of software, technical data, and direct products of technical data, including services and Developed Software. You agree that you will not export or re-export the SOFTWARE or any Developed Software, or any information, documentation and/or printed materials related thereto, directly or indirectly, without first obtaining permission to do so as required from the United States of America Department of Commerce's Bureau of Export Administration ("BXA"), or other appropriate governmental agencies, to any countries, end-users, or for any end-uses that are restricted by U.S. export laws and regulations, and any amendments thereof, which include, but are not limited to, the following: Restricted Countries: Restricted Countries currently include, but are not necessarily limited to Cuba, Iran, Iraq, Libya, Montenegro, North Korea, Serbia, Sudan, and Syria. Restricted End-Users: Any End-User whom you know or have reason to know will use SOFTWARE or Developed Software in the design, development, or production of missiles and missile technology, nuclear weapons and weapons technology, or chemical and biological weapons. Any national of any of the Restricted Countries, wherever located, who intends to transmit or transport the SOFTWARE or Developed Software to one of the Restricted Countries. Restricted End-Uses: Any use of SOFTWARE and Developed Software related to the design, development, or production of missiles and missile technology, nuclear weapons and weapons technology, or chemical and biological weapons. These restrictions change from time to time. You represent and warrant that neither the BXA nor any other United States federal agency has suspended, revoked or denied your export privileges. CyberSpire acknowledges that it shall use reasonable efforts to supply you with all reasonably necessary information regarding the SOFTWARE and its business to enable you to fully comply with the provisions of this Section. If you have any questions regarding your obligations under United States of America export regulations, you should contact the Bureau of Export Administration, United States Department of Commerce, Exporter Counseling Division, Washington DC. U.S.A. (202) 482-4811, http://www.bxa.doc.gov. 7. U.S. Government Restricted Rights. The SOFTWARE and documentation are provided with RESTRICTED RIGHTS. For solicitations issued before December 1, 1995, by the United States of America, its agencies and/or instrumentalities (the "Government"), other than the Department of Defense, the use, duplication or disclosure of the software and documentation provided to the Government under this EULA shall be subject to the RESTRICTED RIGHTS as set forth in subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights clause at 48 CFR ch.1 52.227-19. For solicitations is-sued before September 29, 1995, by the Department of Defense, the use, duplication or disclosure of the software and documentation provided under this EULA shall be subject to the RESTRICTED RIGHTS as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at 48 CFR ch.2 252.227-7013. You will comply with any requirements of the Government to obtain such RESTRICTED RIGHTS protection, including without limitation, the placement of any restrictive legends on the SOFTWARE, and any license agreement used in connection with the distribution of the SOFTWARE. Manufacturer is CyberSpire, LLC, 4516 Henry Street, Suite 501, Pittsburgh, Pennsylvania 15213 USA. For solicitations issued by the Government on or after December 1, 1995 and the Department of Defense on or after September 29, 1995, the only rights provided in the software and documentation provided herein shall be those contained in this EULA. Under no circumstances shall CyberSpire be obligated to comply with any Governmental requirements regarding the submission of or the request for exemption from submission of cost or pricing data or cost accounting requirements. For any distribution of the SOFTWARE that would require compliance by CyberSpire with the Government's requirements relating to cost or pricing data or cost accounting requirements, you must obtain an appropriate waiver or exemption from such requirements for the benefit of CyberSpire from the appropriate Government authority before the distribution and/or license of the SOFTWARE to the Government. IV. WARRANTIES AND REMEDIES 1. Limited Warranty. CyberSpire warrants that the original media, if any, are free from defects for ninety (90) days from the date of delivery of the SOFTWARE. EXCEPT AS OTHERWISE PROVIDED IN THE PRECEDING SENTENCE, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CYBERSPIRE EXPRESSLY DISCLAIMS ANY WARRANTY FOR THE SOFTWARE, DOCUMENTATION AND ANYTHING ELSE PROVIDED BY CYBERSPIRE HEREBY AND CYBERSPIRE PROVIDES THE SAME IN "AS IS" CONDITION WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SOFTWARE AND DOCUMENTATION REMAINS WITH YOU. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHERS WHICH VARY FROM STATE TO STATE. 2. Limited Remedy. CyberSpire's entire liability and your exclusive remedy under this EULA shall be, at CyberSpire's sole option, either (a) return of the price paid for the SOFTWARE; (b) repair the SOFTWARE through updates distributed online or otherwise in CyberSpire's discretion; or (c) replace the SOFTWARE with SOFTWARE that substantially performs as described in the SOFTWARE documentation, provided that you return the SOFTWARE in the same manner as provided in Section I.2 for return of the SOFTWARE for non-acceptance of this EULA. Any media for any repaired or replacement SOFTWARE will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. THESE REMEDIES ARE NOT AVAILABLE OUTSIDE OF THE UNITED STATES OF AMERICA. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CYBERSPIRE BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFIT, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF CYBERSPIRE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IN CERTAIN CASES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. V. MISCELLANEOUS 1. This is the Entire Agreement. This EULA (including any addendum or amendment to this EULA included with the SOFTWARE) is the final, complete and exclusive statement of the entire agreement between you and CyberSpire relating to the SOFTWARE. This EULA supersedes any prior and contemporaneous proposals, purchase orders, advertisements, and all other communications in relation to the subject matter of this EULA, whether oral or written. No terms or conditions, other than those contained in this EULA, and no other understanding or agreement which in any way modifies these terms and conditions, shall be binding upon the parties unless entered into in writing executed between the parties, or by other non-oral manner of agreement whereby the parties objectively and definitively act in a manner to be bound (such as by continuing with an installation of the SOFTWARE, "clicking-through" a questionnaire, etc.) Employees, agents and other representatives of CyberSpire are not permitted to orally modify this EULA. 2. You Indemnify CyberSpire LLC. You agree to indemnify, hold harmless, and defend CyberSpire LLC and its suppliers and resellers from and against any and all claims or lawsuits, including attorney's fees, which arise out of or result from your breach of any of the terms and conditions of this EULA. 3. Interpretation of this EULA. If for any reason a court of competent jurisdiction finds any provision of this EULA, or any portion thereof, to be unenforceable, that provision of this EULA will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this EULA will continue in full force and effect. Formatives of defined terms shall have the same meaning of the defined term. Failure by either party to enforce any provision of this EULA will not be deemed a waiver of future enforcement of that or any other provision.