End user agreement for Powware InstantOn for Firefox
Powware End-User License Agreement
IMPORTANT-READ CAREFULLY: THE FOLLOWING TERMS IN THIS POWWARE END-USER LICENSE AGREEMENT (“EULA”) GOVERN YOUR USE OF ALL SOFTWARE AND RELATED SERVICES PROVIDED BY OR FOR POWWARE CORPORATION (“Powware”) UNLESS SUPERSEDED BY A SEPARATE, SIGNED WRITTEN AGREEMENT WITH POWWARE. BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE YOU CONSENT TO BE BOUND BY THE TERMS IN THIS EULA. IF YOU DISAGREE WITH THESE TERMS, YOU MUST PROMPTLY DESTROY ALL COPIES PRIOR TO USE. ALL SOFTWARE IS LICENSED NOT SOLD. YOU ARE CALLED “CUSTOMER” BELOW.
Subject to these terms and conditions and payment of the applicable fees, Powware grants to Customer a nonexclusive and nontransferable license to use the Software referred to in Powware’s approved order documentation, (either printed or electronic, the “Registration Form”), including related end-user documentation, in object code form only. Title to the Software shall remain solely with Powware. The license is subject to the following limitations:
(i) Customer shall allow its users to use the Software in accordance with Powware’s end-user documentation and the terms of this license solely with the number and kind of devices approved by Powware;
(ii) Customer shall not transfer, assign, sublicense or distribute the Software or these license rights to any other person and any attempts to do so are void unless explicitly authorized in writing from Powware;
(iii) Customer shall not modify the Software or create derivative works based upon the Software, nor permit or encourage others to do so; and
(iv) Customer shall not benchmark, decompile, decrypt, reverse engineer, disassemble or otherwise reduce the Software to human-readable form, except as mandated by applicable law after notice to Powware.
To be clear, a copy of the client or applications software for the device may be used on only one device at a time, unless specifically agreed to by Powware, but may be transferred from one device to another or from one user to another user along with the device (or to another device if the use on the first device ends) with notice to Powware. A device is limited to one physical piece of hardware, such as a single operating system computer, or an instance of a virtual machine running an operating system within a device, or a single instance of a terminal services login on a server.
The term of the license will be indefinite or any other time period specified on the Registration Form, such as for an evaluation period. Licenses issued in connection with an authorized carrier reseller or from the Powware website and are fully paid up have an indefinite term. Licenses issued for a specific time period for support and maintenance services will be renewed or replaced on these same conditions upon invoicing by Powware or its authorized resellers and Customer’s timely payment.
THE SOFTWARE AND SERVICES MUST NOT BE RELIED UPON FOR THE TRANSMISSION OF DATA RELATING TO EMERGENCY, MISSION CRITICAL OR LIFE THREATENING SITUATIONS OR FOR USE REQUIRING FAILSAFE PERFORMANCE AND OR WHERE FAILURE COULD LEAD TO DEATH, PERSONAL INJURY, OR ENVIRONMENTAL DAMAGE. Customer can elect to terminate this license by destroying all copies of the Software and related documentation. Powware can elect to terminate this license early only if Customer materially breaches the terms of this license (including related payment and non transfer obligations) and fails to correct the breach after reasonable notice not exceeding ninety days. Customer will ensure that each of its users complies with Powware’s Acceptable Use Policy described below.
Supplements and Copies.
Software includes any upgrades, updates, bug fixes or modified versions (collectively, “Supplement(s)”), related documentation and backup copies of the Software licensed or provided to Customer by Powware directly or indirectly pursuant to the Support and Maintenance Terms and for which Customer has paid applicable fees. Upgrades are major and minor releases using an MM.mm.bb.rr numbering scheme, where MM is major, mm is minor, bb is maintenance build, and rr is maintenance revision. Updates are a maintenance build and maintenance revision using the aforementioned numbering scheme. Customer may make a reasonable number of archival or backup copies of the Software. Upon termination Customer shall return or destroy all copies of the Software and certify same to Powware upon request.
Powware warrants that during the Warranty Period the Software will substantially conform to the specifications set forth in Powware’s relevant end-user documentation. The “Warranty Period” begins on the date Customer receives the Software and ends thirty days later. This limited warranty extends only to Customer as the original licensee. Customer's sole and exclusive remedy and the entire liability of Powware and its suppliers under this limited warranty will be, at Powware's option, repair or replacement of the Software or refund of the applicable fees paid, if the problem is reported to Powware or its designee during the Warranty Period. This warranty does not apply if the Software: (a) is licensed for beta, evaluation, testing or demonstration purposes; (b) has been altered, except by Powware; (c) has not been installed, operated, repaired, or maintained in accordance with the relevant documentation; or (d) has been used in conjunction with Customer or third party software, accessories, products, services or ancillary or peripheral equipment and the problem is the result of such use and not of the Software itself. Except as expressly granted in this Agreement, the Software and all related services are provided AS IS without any implied warranty. THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NONINFRINGEMENT ARE EXPRESSLY DISCLAIMED. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED OR DISCLAIMED, SUCH WARRANTY IS LIMITED IN DURATION TO THE WARRANTY PERIOD. Powware does not warrant that the Software is error free or that Customer will be able to operate the Software without interruption.
LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND ALWAYS SUBJECT TO (C) BELOW: (A) POWWARE AND ITS SUPPLIERS EXCLUDE AND DISCLAIM ANY LIABILITY TO CUSTOMER AND ANY USER FOR (i) ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, AND (ii) ECONOMIC LOSS, WHICH SHALL INCLUDE LOSS OF PROFIT (WHETHER DIRECT OR INDIRECT), LOSS OF INCOME, DATA, REVENUE, BUSINESS INTERRUPTION OR COST OF SUBSTITUTE SOFTWARE OR SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE; (B) POWWARE’S AND ITS SUPPLIERS’ AGGREGATE LIABILITY TO CUSTOMER AND ANY USER IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’S ACCESS TO AND USE OF THE SOFTWARE WILL NOT EXCEED THE TOTAL FEES PAID BY CUSTOMER TO POWWARE IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM OR ACTION AROSE; (C) NEITHER POWWARE NOR ITS SUPPLIERS EXCLUDE OR LIMIT THEIR LIABILITY IN RESPECT OF BODILY INJURY OR WRONGFUL DEATH ARISING FROM THEIR NEGLIGENCE, FRAUDULENT MISREPRESENTATION OR SUCH OTHER MISCONDUCT THAT CANNOT BE EXCLUDED BY APPLICABLE LAW. DESPITE ANY OTHER PROVISION OF THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW POWWARE AND ITS SUPPLIERS SHALL HAVE NO LIABILITY DURING ANY EVALUATION, DEMONSTRATION, BETA OR TESTING PERIOD, OR THIRD PARTY HARDWARE, SOFTWARE AND SERVICES NOT PROVIDED BY POWWARE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, POWWARE, ON BEHALF OF ITSELF AND ITS SUPPLIERS, DISCLAIMS ANY AND ALL LIABILITY FOR EVENTS OR DAMAGES OF ANY NATURE OR KIND RESULTING FROM MISUSE OF THE SOFTWARE. NO RESELLER OR CARRIER CAN ENLARGE POWWARE’S OBLIGATIONS UNDER THIS AGREEMENT NOR RESTRICT THESE LIMITATIONS OF LIABILITY. THE FOREGOING LIMITATIONS ARE REASONABLE IN LIGHT OF THE COST OF ALTERNATIVES.
Export, Restricted Rights.
The Software, including technical data, may be subject to U.S. export control laws, including the U.S. Export Administration Act and related regulations, and may be subject to export or import regulations in other countries. Customer agrees to comply with all such regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export, or import Software outside the USA. The Software is provided with “Restricted Rights”. Use, duplication, or disclosure by the U.S. Government or any agency or instrumentality thereof is subject to restrictions as set forth in this Agreement and as provided in DFARs 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable. Powware Corporation, 1200 Washington Road, Washington Pennsylvania, USA 15301.
Protection of Information and Notices.
Customer agrees to maintain and reproduce all copyright and other proprietary notices on all copies of the Software. Customer agrees that aspects of the Software, including the specific design and structure of individual programs and issues arising in connection with the Support and Maintenance Terms, constitute trade secrets and/or copyrighted material of Powware. Customer shall not disclose, provide, or otherwise make available such trade secrets or copyrighted material in any form to any third party without the prior written consent of Powware and shall implement reasonable security measures to protect such trade secrets and material. The Software may be covered by one or more patents.
Support and Maintenance.
Powware (directly or though authorized providers) will provide Customer with the same level of basic support and maintenance service that Powware then provides to its other direct basic support and maintenance customers for six months from the date that the Software is made available to Customer or any other time period specified on the Registration Form, subject to payment of applicable fees. The Registration Form may also specify optional or extended levels of support.
Unless otherwise agreed in writing by Powware, PENNSYLVANIA USA LAW (EXCLUDING ITS CHOICE OF LAW PROVISIONS, THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS AND THE UNIFORM COMPUTER INFORMATION TRANSACTION ACT AND ANY ADAPTATION OF THIS ACT) GOVERN THIS AGREEMENT AND ANY DISPUTE RELATED TO IT WILL BE RESOLVED IN ANY COURT WITH JURISDICTION LOCATED IN THE GREATER PITTSBURGH AREA OF PENNYSLVANIA USA. Powware can elect equitable relief to specifically enforce provisions of this license or to enjoin specific violations given the likely inadequacy of damages. The prevailing party in any legal action related to this Agreement is entitled to recover its reasonable attorneys’ and experts’ charges. Late payments bear interest at the rate of one percent per month or any lower legal maximum. All invoices are due net thirty days from the date of invoice and are payable in US dollars unless otherwise specified in the Registration Form. Powware can elect to invoice electronically and may specify the form or manner of payment. In connection with renewals, Powware and Customer may agree to make outstanding licenses co terminate for billing convenience. At Powware’s request from time to time not exceeding once per month, Customer will provide Powware with a report detailing its use and circulation of the Software, and Powware may audit such report and related records not more frequently than quarterly to confirm that Customer is complying with this Agreement and to ensure payment of all applicable fees. The audit will be conducted during regular business hours at Customer's offices and will not interfere with Customer's business. When Customer utilizes an authorized reseller, (i) Customer will separately document its financial terms with the authorized reseller, e.g., price and payment terms; (ii) the authorized reseller will contract with Powware through use of the Registration Form for resale and Powware will look to the reseller for payment, but can elect to terminate applicable licenses/services in the event of nonpayment by reseller; and (iii) all other terms (e.g., usage, support, etc.) will be governed by this agreement, if Powware accepts the order. This is the complete agreement of Powware and Customer with respect to the Software and related services and its provisions may only be waived or modified in writing. This license is written and will be construed in standard American English, even if translated into other languages or used in places relying on other languages. C'est la volonté expresse des parties que la présente convention ainsi que les documents qui s'y rattachent soient rédigés en anglais American. The parties recognize that this license is intended for use in multiple jurisdictions. Any ambiguities will be clarified in an equitable manner without regard to authorship and minor errors and misspelling will be corrected to give maximal effect to obvious intent. There are no intended third party beneficiaries of this Agreement.
SUPPORT AND MAINTENANCE TERMS
1. GENERAL. For the time periods specified below, Powware (or the applicable authorized resellers and participating carriers– collectively referred to as “Provider” below) will provide support and maintenance for the Software as set forth below, provided that Customer adheres to the Provider’s reasonable service policies and procedures as fairly adjusted from time to time. Powware’s services are provided in standard American English.
3. MAINTENANCE. During any time period for which Powware has been paid the applicable fees, Powware will make all Updates available to Customer for no additional fee when they are generally made available to Powware’s other direct Customers receiving basic support and maintenance services. Powware is not required to provide new functionality or new software products, however.
4. CUSTOMER'S OBLIGATIONS. Customer is obligated to install an Update within sixty days after it is made available to Customer. Powware will have no liability for any changes in Customer’s hardware, software, or other systems which may be necessary to use Software due to the installation of a Update. Customer will cooperate with Powware from time to time as reasonably requested by Powware in connection with the provision of support services, including promptly providing Powware with reasonable remote access to Customer's copies of the Software to the extent necessary to provide the services and always subject to Customer’s reasonable security policies.
Acceptable Use Policy
To facilitate use of the Software and services, each User (i.e., any person utilizing the Software) will comply with this Acceptable Use Policy (“AUP”). Powware may modify this AUP in its reasonable discretion on a nondiscriminatory basis at any time effective within sixty days after those modifications are posted at the Powware website (or earlier in the case of emergency). If Powware becomes aware that any User has violated this AUP, Powware may suspend the User’s right to use the services after notice to Customer. Powware may cooperate with Customer, government authorities and third parties in the investigation of alleged wrongdoing. In general, User will only use the Software and services for lawful purposes, consistent with all applicable laws and regulations and the rights of others, including applicable network usage policies of Customer and others.
User is responsible for content. Powware does not monitor or control content and is not responsible for such content. User will not knowingly use the Software or services to (i) transmit content that is obscene, pornographic, defamatory, libelous, harassing, threatening, abusive, hateful or violent; (ii) transmit any virus, worm, Trojan horse, or other content harmful to the services, any other network or equipment, or other Users; or (iii) transmit content containing fraudulent, false, deceptive, or misleading offers, statements, claims, or representations. Content accessible through the Software and services may be subject to protection under privacy, publicity, or other personal rights and intellectual property rights, including but not limited to, copyrights, patent rights, trademark rights, trade secret rights or other proprietary information rights. User will not knowingly infringe, dilute, misappropriate, or otherwise violate any such rights.