End user agreement for CopyWipe (WinConsole)
Freeware License Agreement
PLEASE READ THIS AGREEMENT (THE "AGREEMENT") CAREFULLY BEFORE UPGRADING,
COPYING, INSTALLING, OR USING SOFTWARE FROM TERABYTE INC. ("TERABYTE").
WHEREAS, TeraByte is a vendor of software products, and
WHEREAS, the individual or entity using this product ("User") desires to
obtain the rights to use this product,
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, and for good and valuable consideration, TeraByte and
User agree that the foregoing recitals are true and correct, and agree as
A. The Software
Computer software products owned by TeraByte, and computer
software products owned by suppliers of TeraByte, distributed
by TeraByte under agreement with the owners of such software,
which software products have been offered by TeraByte as
Freeware, i.e. available for use without payment of licensing
B. Media Fees
Such fees as may be charged by TeraByte to User, or by User
to third parties, to compensate for the cost of the media
used to transfer the Software.
The right for User to use the Software pursuant to the terms
and conditions defined herein. The absence of a license fee
shall in no way be an indication of a willingness or desire
on the part of TeraByte to place the Software in the public
domain. TeraByte intends to retain, and does retain, all
intellectual property and ownership rights in the Software.
D. Shrinkwrap Agreement
The unsigned agreement distributed with the Software defining
the standard terms and conditions under which the Software is
distributed and license granted.
II. Acceptance Of Terms
A. This agreement shall be accepted by User upon User's
performance of any of the following acts:
a. Installation, copying, or use of the Software on one or
more of User's computers;
b. Distribution of the Software to any party other than
c. Retention of installable version of the Software for
more than fifteen (15) days; or
d. Any other act not consistent with non-acceptance of the
terms and conditions recited herein.
B. If User does not accept the terms and conditions recited
herein, User shall delete, return, and/or discard any files,
data, or materials associated with the Software.
C. If User has a License Agreement executed by an authorized
representative of TeraByte (and "Executed Agreement")
containing one or more terms and conditions which are
inconsistent with the terms and conditions contained in the
shrinkwrap license, then to the extent necessary, the terms
and conditions of the Executed Agreement shall supersede
those of the shrinkwrap license.
III. Scope of Use
A. User may use the Software on an unlimited number of
B. User may distribute the Software to third-parties only where
such third-parties are aware of, and agree to be bound by,
the terms and conditions contained in this Agreement. Such
distribution shall include all files associated with the
C. User may only use the Software in accordance with its
intended use as documented by TeraByte and distributed along
with the Software.
D. The Software may not be used to support any third party
product without the express written consent of an authorized
representative of TeraByte.
E. User may not modify the Software, any accompanying
documentation, or any file utilized in the delivery or
distribution of the Software or any accompanying
documentation, without the express written consent of an
authorized representative of TeraByte.
F. User may not reverse engineer, decompile, nor take any other
steps consistent with an attempt to reveal any confidential,
trade secret, or other non-public information associated with
the Software. Further, User may not assist any other party
attempting to reverse engineer, decompile, nor take any other
steps consistent with an attempt to reveal any confidential,
trade secret, or other non-public information associated with
the Software. Should User become aware of any activity in
violation of this term, whether or not under User's control
or authorization, User will inform TeraByte of such activity
and assist TeraByte in terminating such activity and
protecting its threatened rights.
G. User may not sell, rent, lease, or otherwise charge for the
distribution, installation, copying, or storage of the
Software, other than a media fee as defined herein.
H. User may not sell, rent, lease, distribute, or use the
Software, nor cause the Software to be sold, rented, leased,
distributed, or used, where such sale, rental, lease,
distribution, or use is prohibited by any statute or
governmental agency of the United States or other
international, national, or local entity having jurisdiction
at the point of sale, rental, lease, distribution, or use,
nor may User sell, rent, lease, distribute, or use the
Software where User is aware that such sale, rental, lease,
distribution, or use is likely to result directly or
indirectly in a sale, rental, lease, distribution, or use
prohibited by any statute or governmental agency of the
United States or other international, national, or local
entity having jurisdiction at the point of initial or
subsequent sale, rental, lease, distribution, or use.
IV. TERM AND TERMINATION
The terms and conditions of this Agreement shall remain effective
until this Agreement is terminated. Termination may be affected as
A. Termination by User. User may terminate this Agreement
at any time by destroying all copies of the Software,
as indicated below.
B. Termination by TeraByte.
a. TeraByte may terminate this Agreement at any point
upon notice to User if user, in TeraByte's sole
discretion, is in breach of any of the terms and
conditions contained herein, and fails to remedy
such breach within a reasonable period, but in no
event more than ten (10) days, following receipt of
b. TeraByte may terminate this Agreement at any point
upon notice to User if TeraByte ceases to offer
Freeware licenses, or changes the terms and
conditions under which such licenses are offered,
and User is unwilling to accept the revised terms
c. TeraByte may terminate this Agreement at any point
should User's normal business operations be
disrupted or discontinued for mor than thirty (30)
days due to User's insolvency, bankruptcy,
receivership, or business termination.
Upon termination of this Agreement, User shall return, delete, or
destroy all copies of the Software, or any portion of the Software,
remaining in User's possession or under User's control, including all
distribution media containing distributable copies of all or any portion
of the software.
V. OWNERSHIP AND CONFIDENTIAL INFORMATION
TeraByte or its licensors own the Software under copyright, trade
secret and all other laws that may apply. All product names, designs,
and logos associated with the Software are trademarks of TeraByte. The
source code of the Software and all information regarding the design,
structure or internal operation of the Software are valuable trade
secrets of TeraByte or third parties with which TeraByte has licensing
arrangements ("Confidential Information"), provided however, that
"Confidential Information" shall not include information which otherwise
would be Confidential Information to the extent that such information was
publicly known or otherwise known to User previously to the time of
disclosure, which subsequently became known through no act or omission by
User, or which otherwise became known to User other than through
disclosure by TeraByte without violation of any party's obligations to
TeraByte. User shall not sell, transfer, publish, disclose, display or
otherwise permit access to any Confidential Information by any third
party, nor use any of the Confidential Information, except strictly as
part of the Software in the form originally distributed by TeraByte.
VI. Disclaimer of Warranty
The software and related documentation are provided "as is",
without warranty of any kind. TeraByte, Inc. disclaims all warranties,
express or implied, including, but not limited to, the implied warranties
of design, merchantability, fitness for a particular purpose. TeraByte,
Inc. does not warrant that the functions contained in the software or
documentation will meet User's requirements, or that the operation of the
software will be error-free, complete, or that defects in the software or
documentation will be corrected.
VII. Limitation of Liability
Under no circumstances shall TeraByte, Inc., nor any other person
or entity involved in the creation, production, or delivery of the
Software be liable for any lost revenue or profits or any incidental,
indirect, special, punitive, or consequential damages that result from
the use or inability to use the Software or related products or
documentation, even if TeraByte, Inc. has been advised of the possibility
of such damages.
Some states do not allow the limitation or exclusion of liability
for incidental or consequential damages so the above limitation or
exclusion may not apply. In no event shall TeraByte, Inc.'s total
liability to User for all damages, losses, and causes of action, whether
in contract, tort or otherwise, exceed the amount paid for the software,
including media fees.
VIII. HIGH RISK ACTIVITIES
The Software is not fault-tolerant and is not designed,
manufactured or intended for use on equipment or software running in
hazardous environments requiring fail-safe performance, including but not
limited to the operation of nuclear facilities, aircraft navigation or
communication systems, air traffic control, direct life support machines,
or weapons systems, in which the failure of the Software could contribute
to death, personal injury, or severe physical or environmental damage
("High Risk Activities"). TERABYTE AND ITS SUPPLIERS SPECIFICALLY
DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS OF THE SOFTWARE FOR
HIGH RISK ACTIVITIES. TERABYTE DOES NOT AUTHORIZE USE OF THE SOFTWARE
FOR ANY HIGH RISK ACTIVITY. USER AGREES TO DEFEND AND INDEMNIFY
TERABYTE, AND HOLD TERABYTE HARMLESS, FROM AND AGAINST ANY AND ALL
CLAIMS, ACTIONS, LOSSES, COSTS JUDGMENTS AND DAMAGES OF ANY KIND IN
CONNECTION WITH USE IN RELATION TO ANY HIGH RISK ACTIVITY OF ANY COPY OF
THE SOFTWARE RELATING TO THIS LICENSE.
IX. GENERAL TERMS
A. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between User and TeraByte in regard to the subject
matter herein, and supersedes all previous and
contemporaneous agreements, proposals and communications,
written or oral between the parties. No amendment of this
Agreement shall be effective unless in writing and signed by
duly authorized representatives of both parties.
B. NON-WAIVER. Waiver by TeraByte of any violation of any
provision of this License shall not be deemed to waive any
further or future violation of the same or any other
C. LAW AND JURISDICTION. This License and any dispute relating
to the Software or to this License shall be governed by the
laws of the United States and the laws of the State of
Nevada, without regard to U.S. or Nevada choice of law rules.
User agrees and consents that jurisdiction and proper venue
for all claims, actions and proceedings of any kind relating
to TeraByte or the matters in this License shall be
exclusively in courts located in Las Vegas, Nevada. If a
court with the necessary subject matter jurisdiction over a
given matter cannot be found in Las Vegas, then jurisdiction
for that matter shall be exclusively in a court with the
proper jurisdiction as close to Las Vegas as possible, and
within Nevada if possible.
D. SEVERABILITY. If any part or provision of this License is
held to be unenforceable for any purpose, including but not
limited to public policy grounds, then both parties agree
that the remainder of the License shall be fully enforceable
as if the unenforceable part or provision never existed.
E. NON-ASSIGNMENT. User may not assign this License without the
prior written consent of TeraByte, except, where User is a
commercial entity, as part of a sale of all or substantially
all of the assets of User's business.
F. NO THIRD PARTY BENEFICIARIES. There are no third party
beneficiaries of any promises, obligations or representations
made by TeraByte herein.
G. HEIRS AND ASSIGNS. This Agreement shall be binding on and
shall inure to the benefit of the heirs, executors,
administrators, successors and assigns of the parties hereto,
but nothing in this paragraph shall be construed as a consent
by TeraByte to any assignment of this agreement except as
H. SURVIVAL. The provisions of paragraphs II.C, III.B, III.C-H,
V, VI, VII, VIII, and IX.A-C of this Agreement shall survive
any termination or expiration of this Agreement.