End user agreement for YawnBuster
Software License Agreement (“License Agreement”)
CAREFULLY READ ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT PRIOR TO OPENING OR INSTALLING THE ENCLOSED SOFTWARE PACKAGE (“Software”). REMOVING THIS SOFTWARE FROM ITS PACKAGE AND INSTALLING IT INDICATES ACCEPTANCE OF THESE TERMS AND CONDITIONS.
This License Agreement is between you (“You” or “you”) and Harbinger Knowledge Products Private Limited, including its affiliates ("Harbinger"), and you, the person or entity downloading and/or using the Software. This License Agreement sets forth terms and conditions applicable to your use of the Software.
1. Machines Allowed: You may install the training Software on a computer (i.e. with a single CPU).
2. Users Allowed and License: This is a single seat workstation license, limited to a one user at a time on a single computer. The Software is licensed, not sold, to you. Subject to the terms of this License Agreement, you have a non-exclusive, non-transferable (except as expressly provided below), personal and limited right to use the Software solely for internal purposes. If you are an entity, Harbinger grants to you the right to designate one individual within your organization to have the right to use the Software as set forth herein. This license does not entitle you to any support or services unless such support or services are purchased separately.
3. Restrictions: Except as expressly permitted by this License Agreement, you hereby acknowledge and agree that: (1) you will not modify or translate the Software, except that you may configure the Software using the menus, options and tools provided for such purposes and contained in the Software; (2) you will not copy the Software except as permitted in paragraph 4 below; (3) you will not in any way reverse engineer, disassemble or decompile the software or any portion thereof except to the extent and for the express purposes authorized by applicable law notwithstanding this limitation; (4) you will not transmit, or provide access to, the Software over a network except as required by the software's primary functions; (5) you will not sublicense, assign, rent, sell, lease, distribute or otherwise transfer the Software or any of the rights granted by this License Agreement. You may, however, physically transfer the Software from one computer to another provided that you do not retain any copies of the Software on the prior computer except as authorized in the permitted use table; (6) you will not avoid, or attempt to avoid, any applicable time limitation; (7) you will not release the results of any performance or functional evaluation of the Software to any third party without prior written approval of Harbinger for each such release; and (8) You will not export the Software in violation of applicable U.S. or other laws, regulations or government orders.
3. Copyright: This Software may not be duplicated or copied except for archival purposes, program error verification, or to replace defective media, and all copies made must bear the copyright notices, trademarks or other proprietary legends contained in the original. All other copies of this program and its documentation are in violation of this License Agreement.
4. Ownership: You agree that this Software and/or its suppliers retain all right, title and interest in and to the Software and all copies at all times, regardless of the form or media in or on which the original or other copies may subsequently exist. You agree that you neither own nor hereby acquire any claim or right of ownership to the Software or to any related patents, copyrights, trademarks or other intellectual property. You agree to use your best efforts to prevent and protect the contents of the Software from unauthorized disclosure or use. Harbinger and/or its suppliers reserve all rights not expressly granted to you. Any content or information accessed through the Software is the property of the applicable content/information owner and may be protected by applicable copyright law. This License Agreement gives you no rights to such content or information. The product name for the Software is a trademark or registered trademark of Harbinger. All other trademarks displayed by the Software are the property of their respective owners.
5. Term: The Software may be used without time limit on one single computer and this License Agreement is effective until terminated.
6. Termination: In the event that the customer modifies the software product or includes it in any other software program, the license is terminated and the customer agrees to remove the software product, or any portion thereof from the modified program and return it to Harbinger Knowledge Products Private Limited with a certificate of destruction of all copies.
7. Limited Warranty and Disclaimer: Harbinger currently offers a seven (7) day trial period for use of its Software (“Trial Period”). Harbinger warrants on a limited basis for thirty (30) days (which includes the Trial Period) from the earlier of delivery or access by You of the Software, that the media on which the Software is furnished to be free of defects in material and workmanship under normal use. As the sole and exclusive remedy, and Harbinger's entire liability for any breach of the foregoing warranty, Harbinger will, at its sole option, replace the media which fails to meet this limited warranty, provided You have paid for the Software and the defects are reported to Harbinger during the warranty period. Harbinger is not obligated to replace media for errors caused by modifications to the Software by non-Harbinger software, or by combining the Software with any hardware or software configuration not authorized by Harbinger in writing. This warranty covers only those nonconformities reported to Harbinger during the warranty period.
THE LIMITED WARRANTY SET FORTH ABOVE IS IN LIEU OF, AND HARBINGER EXPRESSLY DISCLAIMS, ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE AND TO THE MAXIMUM EXTENT PERMITED BY APPLICABLE LAW, HARBINGER AND ITS SUPPLIERS PROVIDE THE SOFTWARE “AS IS”. HARBINGER DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE SOFTWARE WILL OPERATE IN THE COMBINATIONS THAT YOU MAY SELECT FOR USE, OR THAT THE OPERATION OF THE SOFTWARE WILL BE ERROR-FREE OR UNINTERRUPTED, AND NOTHING IN THIS LICENSE AGREEMENT SHALL BE CONSTRUED OTHERWISE.
8. Return Policy: Other than as expressly set forth in Section 6 above, Harbinger does not accept return of this Software under any circumstances. Notwithstanding anything to the contrary in this Agreement or otherwise, payment made by you for this Software is non-refundable.
9. Acknowledgement: By opening this package and using the Software, you acknowledge that you have read this License Agreement, understand it, and agree to be bound by its terms and conditions. You also agree that this License Agreement is the complete and exclusive statement of agreement between the parties and supersedes all proposals or prior agreements, oral or written, and any other communications between the parties relating to the subject matter of this License Agreement. If any provision of this License Agreement is ruled invalid, such invalidity shall not affect the validity of the remaining portions of this License Agreement. All terms of any purchase order or other ordering document submitted by you shall be superseded by this License Agreement.
10. Governing Law and Jurisdiction: This License Agreement is governed by the laws of the State of Washington, United States, without reference to conflict of laws provisions or the United Nations Convention on Contracts for the International Sale of Goods and any amendments thereto. Any legal action or proceeding arising under this Agreement will be brought exclusively in Redmond, Washington, and the parties hereby consent to personal jurisdiction and venue therein.
11. Indemnification and Limitation of Liability:
11.1 Indemnification: Harbinger agrees to indemnify, hold harmless, and at customer’s request, defend its officers, directors, employees, and agents from and against any third party claim, demand, cause of action, debt, loss or liability, including reasonable attorneys’ fees, arising from or related to a claim brought by a third party that the Software infringes upon that third party’s U.S. copyrights or patents; however, this indemnification is exclusive of any claims arising from or related to the misuse or abuse of the Software, any unauthorized modification of the Software, or the combination of the Software with any third party software or hardware not provided by Harbinger or for which the Software was not designed. Upon notice of a claim that the Software is infringing a third party’s intellectual property rights, Harbinger may, but is not obligated to: (i) modify or replace the Software to make it non-infringing, (ii) procure any rights from the third party necessary to offer the Software, or (iii) terminate the use or license of the Software or discontinue the availability thereof and refund the unamortized portion of the license fees paid for such Software, based on a straight-line three (3) year depreciation commencing as of the initial date of receipt by Customer of such Software.
The customer agrees to indemnify, hold harmless, and at Harbinger’s request, defend Harbinger, its officers, directors, employees, and agents from and against any third party claim, demand, cause of action, debt, loss or liability, including reasonable attorneys’ fees, arising from or related to customer’s breach of its obligations or responsibilities or gross negligence or willful misconduct in relation to use of the Software.
Each Party’s indemnification obligations are contingent on the indemnified party’s: (i) giving the indemnifying party prompt written notice of any claim, action, suit or proceeding for which the indemnified party is seeking indemnity; (ii) granting control of the defense and settlement of the action to the indemnifying party; and (iii) reasonably cooperating with the indemnifying party, at the indemnifying party’s expense, with respect to the defense of the action. The indemnified party may participate, at its own cost, in the defense and settlement of such action through counsel of its choice. In no event may an indemnifying party settle any such action in a manner which adversely affects the indemnified party or its rights, without the indemnified party’s express prior written consent; however, such consent shall not be required where the settlement results in the full and unconditional release of all claims against and obligations of the indemnified party.
11.2 LIMITATION OF LIABILITY: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT AND UNDER NO LEGAL THEORY SHALL HARBINGER, ITS DISTRIBUTORS AND SUPPLIERS, OR ANY OTHER PERSON WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, OR DELIVERY OF THE SOFTWARE BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY GENERAL, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR OTHER DAMAGES OF ANY CHARACTER ARISING OUT OF THIS LICENSE AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, LOSS OF DATA, LOSS OF PROFITS, DATA OR OUTPUT FROM THE SOFTWARE BEING RENDERED INACCURATE, FAILURE OF THE SOFTWARE TO OPERATE WITH ANY OTHER PROGRAMS, DAMAGES FOR LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER DAMAGES OR LOSSES OF WHATEVER NATURE, EVEN IF HARBINGER HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT THIS LIMITATION OF LIABILITY IS REASONABLE GIVEN THAT THE SOFTWARE IS PROVIDED ON AN EVALUATION BASIS FOR FOURTEEN (14) DAYS PRIOR TO PURCHASE. SOME STATES/JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
YOU AGREE THAT THIS LIMITATION OF LIABILITY IS REASONABLE GIVEN THAT SOME STATES/JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
12. U.S. Government Rights: If the software is downloaded or installed for or on behalf of the United States of America, its agencies and/or instrumentalities ("U.S. Government"), the software is provided to the U.S. Government as commercial computer software under applicable FARs and DFARS, and the restrictions set forth in this License Agreement. Licensor is Harbinger, and/or its affiliates at the address set forth below.
13. Feedback: Any comments or materials sent to Harbinger including feedback data, such as questions, comments, suggestions, or the like regarding the software (collectively "Feedback"), shall be deemed to be non-confidential. Harbinger shall have no obligation of any kind with respect to such Feedback and shall be free to reproduce, use, disclose, exhibit, display, transform, create derivative works and distribute the Feedback to others without limitation. Further, Harbinger Software shall be free to use any ideas, concepts, know-how or techniques contained in such Feedback for any purpose whatsoever, including but not limited to developing, manufacturing and marketing products incorporating such Feedback.
Should you have any questions concerning this agreement, please contact:
Harbinger Knowledge Products
139, 'Siddhant', Survey No. 97/6,
Off Paud Road, Kothrud,
Pune 411038, India.