End user agreement for WinFormWizard for .NET 1.1
PLEASE READ THIS AGREEMENT BEFORE OPENING THIS SOFTWARE PACKAGE. IF YOU OPEN THIS PACKAGE OR KEEP IT FOR MORE THAN FORTY FIVE (45) DAYS, YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT OPEN THIS SOFTWARE PACKAGE. YOU MAY ONLY UNLOCK AND/OR USE THE SOFTWARE FOR WHICH YOU HAVE A PAID-UP LICENSE.
(1) DEFINITION OF TERMS
"Documentation": any explanatory written or on-line material including, but not limited to, user guides, reference manuals and HTML files.
"Licensee": shall refer to the individual licensee, whether as an individual programmer, company, or other organisation.
"Software": All material in this distribution including, but not limited to, one or more of the following: source code, object code, byte code, dynamic-link libraries, assemblies, executables, scripts, sample programs, utility programs, makefiles and Documentation.
"Licensed Software": the Software for which Licensee has paid the applicable license fee.
"Software Application Programming Interface ("API")": the set of access methods, whether provided by Fengari Software, third parties, or developed by Licensee, through which the programmatic services provided by the Licensed Software are made available.
"End-User Software Product": an application developed by Licensee intended for execution on a computer, that makes use of the Licensed Software in its implementation.
The Licensed Software contains certain runtime libraries and files intended for duplication and distribution by Licensee within End User Software Products to the user(s) of the End User Software Product(s) (the "Redistributable Components"). The Redistributable Components are those files specifically designated as being distributable as part of the Licensed Software.
SPECIAL LIMITED TERM EVALUATION LICENSE
If Licensee has been provided with a copy of the Software for evaluation purposes, Fengari Software grants to Licensee, subject to the terms of this Single User License Agreement (excluding Section 3, under which Licensee has no rights) a non-exclusive, non-transferable, non-concurrent limited internal use license for evaluation purposes only. This license is for a period of forty five (45) days, commencing upon receipt of the Software, or, if received electronically, from Licensee's initial downloading date, to evaluate the Software. If the Software is acceptable, Licensee agrees to promptly notify Fengari Software. Otherwise, Licensee shall immediately cease any further use of the Software and destroy all copies of the Software (including the original) and related Documentation provided to Licensee by Fengari Software.
The Software is owned by Fengari Software and is protected by Australian copyright laws and other laws and by international treaties. It is intended for use by a software programmer who has experience using development tools and class libraries.
(3) LICENSE GRANTS
(a) Subject to the terms and conditions of this Agreement, Fengari Software grants to Licensee the perpetual, non-exclusive, non-transferable, non-concurrent, world-wide license for one (1) programmer to (i) install the Licensed Software on a single personal computer and (ii) use the Licensed Software and one copy of the associated user documentation and online help.
Licensee may also:
(i) Make one backup copy of the Licensed Software solely for archival and disaster-recovery purposes, or
(ii) Transfer the Licensed Software to a hard disk and keep the original copy solely for archival and disaster-recovery purposes.
(iii) Reproduce and distribute the Redistributable Components directly or indirectly to end users and Licensee's Authorised OEMs, VARs and Distributors, through customary distribution channels, world wide, on a royalty free basis provided that such distribution is (i) in conjunction with an End User Software Product developed by Licensee using the Licensed Software and (ii) the Licensed Software is not the sole or primary component of such End User Software Product.
(iv) The license rights granted under this Agreement do not apply to development and distribution of software development products or toolkits of any kind that are destined to be used by software developers other than Licensee(s) that are Authorised.
Licensee has no rights to use the Licensed Software beyond those specifically granted in this section.
(4) LICENSE RESTRICTIONS
Notwithstanding any provisions in this Agreement to the contrary, Licensee may not distribute any portion of the Software other than the Redistributable Components.
In addition, Licensee may not decompile, disassemble, or reverse engineer any object code form of any portion of the Software.
Licensee acknowledges and agrees that all right, title and interest in and to the Software, including all intellectual property rights therein, are the property of Fengari Software, subject only to the licenses granted to Licensee under this Agreement. This Agreement is not a sale and does not transfer to the Licensee any title or ownership in or to the Software or any patent, copyright, trade secret, trade name, trademark or other proprietary or intellectual property rights related thereto.
Except for Licensee's rights to distribute the Redistributable Components, Licensee may not rent, transfer, assign, sublicense or grant any rights in the Software, in full or in part, to any other person or entity without Fengari Software's written consent, except that this agreement may be assigned to a successor of Licensee in the case that all or substantially all of the assets or equity of Licensee are acquired by the successor.
(7) LIMITED WARRANTIES
Fengari Software warrants to Licensee that the Licensed Software will substantially perform the functions described in the Documentation for a period of forty five (45) days after the date of delivery of the Licensed Software to Licensee. Fengari Software's sole and exclusive obligation, and Licensee's sole and exclusive remedy, under this warranty is limited to Fengari Software's using reasonable efforts to correct material, documented, reproducible defects in the Licensed Software that Licensee describes and documents to Fengari Software during the forty five (45) day warranty period. In the event that Fengari Software fails to correct a material, documented, reproducible defect during this period, Fengari Software may, at Fengari Software's discretion, replace the defective Licensed Software or refund to Licensee the amount that Licensee paid Fengari Software for the defective Licensed Software and cancel this Agreement and the licenses granted herein. In such event, Licensee agrees to return to Fengari Software all copies of the Licensed Software (including the original).
Fengari Software warrants that it owns the intellectual property contained in the Licensed Software and that the Licensed Software does not infringe any intellectual property or proprietary rights of any third party.
Fengari Software agrees to indemnify, defend and hold Licensee harmless from and against any claims or lawsuits, including reasonable attorney's fees, which arise or result from the Licensed Software's infringing the intellectual property or proprietary rights of a third party. The indemnity explicitly excludes infringements caused by the combination of the Licensed Software and any End User Software Products created, sold, or marketed by Licensee.
EXCEPT AS EXPRESSLY SET FORTH ABOVE, FENGARI SOFTWARE EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
(8) LIMITATION OF LIABILITY
IN NO EVENT SHALL FENGARI SOFTWARE BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS, REVENUES, DATA OR OTHER ECONOMIC ADVANTAGE) WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EVEN IF FENGARI SOFTWARE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Fengari Software reserves the right, at its sole discretion, to terminate this Agreement upon written notice if Licensee has breached the terms and conditions hereof. Licensee to be provided written notification of breach and reasonable time to cure breach. Licensee may terminate this Agreement at any time by ceasing to use the Licensed Software and by destroying all copies of the Licensed Software (including the original). Sections 4, 5, 6, 7, 8, 9 and 10 survive any termination of this Agreement and apply fully to any termination. Unless terminated as provided herein by either party, this Agreement shall remain in effect. Termination will not affect end user licenses of the End User Software Product which contain the Redistributable Components which were distributed by Licensee prior to termination.
Applicable Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of New South Wales without regard to conflict of laws principles and without regard to the 1980 U.N. Convention on Contracts for the International Sale of Goods. The federal and state courts of New South Wales shall have exclusive jurisdiction and venue to adjudicate any dispute arising out of this Agreement, and Licensee expressly consents to (i) the personal jurisdiction of the state and federal courts of New South Wales, and (ii) service of process being effected upon Licensee by registered mail.
Limitation of Actions. No action, regardless of form, may be brought by either party more than twelve (12) months after the cause of action has arisen, except that either party may bring an action relating to its intellectual property rights at any time. No such claim may be brought unless Fengari Software has first been given commercially reasonable notice, a full written explanation of all pertinent details (including copies of all materials), and a good faith opportunity to resolve the matter.
Invalidity and Waiver. Should any provision of this Agreement be held by a court of law to be illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining provisions of this Agreement will not be affected or impaired thereby. The failure of any party to enforce any of the terms or conditions of this Agreement, unless waived in writing, will not constitute a waiver of that party's right to enforce each and every term and condition of this Agreement.
LICENSEE ACKNOWLEDGES THAT HE OR SHE HAS READ THIS AGREEMENT, UNDERSTANDS IT AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. LICENSEE FURTHER AGREES THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN LICENSEE AND FENGARI SOFTWARE WHICH SUPERSEDES ANY PROPOSAL OR PRIOR OR CONTEMPORANEOUS AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT