EULA - End User License Agreement
The accompanying computer software and other proprietary materials and the use thereof is subject to this End User License Agreement. BY DOWNLOADING, INSTALLING, OR USING THE SOFTWARE HEREIN, YOU (INCLUDING YOUR EMPLOYER AND ANY AFFILIATES AND ITS OR THEIR EMPLOYEES, CONTRACTORS AND AGENTS, "LICENSEE") ARE AGREEING TO BE BOUND BY AND ARE BECOMING A PARTY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A BUSINESS, PARTNERSHIP OR OTHER ENTITY BE ADVISED THAT ONLY PERSONNEL AUTHORIZED TO SIGN FOR AND BIND SUCH ENTITY MAY ACCEPT THIS AGREEMENT. THE PROVISION OF THIS SOFTWARE IS EXPRESSLY CONDITIONED ON ACCEPTANCE OF THIS END USER LICENSE AGREEMENT. IF YOU DO NOT AGREE TO SUCH END USER LICENSE AGREEMENT, DO NOT DOWNLOAD THE SOFTWARE. This End User License Agreement (this "Agreement") is a legal agreement between MediaDex FZ-LLC ("MediaDex"), P.O. Box 500160, Dubai Internet City, Dubai, U.A.E., and Licensee. By downloading, installing, or using the software, Licensee hereby agrees to this Agreement with regard to the accompanying software product, together with any documentation provided therewith and any updates (if any) that may be provided by MediaDex to Licensee from time to time, at its sole discretion (collectively, the "Software"). 1. License. Subject to the terms and conditions of this Agreement, MediaDex hereby grants Licensee a non-exclusive, personal, non-sublicenseable, nontransferable, right (the "License") to install and execute the Software, in object code form only, solely in the manner described below in Sections 1.1 to 1.2 as applicable, and in accordance with the Software documentation provided by MediaDex. 1.1. Demo Version. Licensee may install and execute the demo version of the Software on one (1) computer owned and controlled by Licensee for a single evaluation period, not to exceed [thirty (30)] days, solely for Licensees own internal evaluation of the Software (the "Trial Period"). Licensee acknowledges and agrees that the functionality of demo versions may be limited by MediaDex. 1.2. Commercial Version. Licensee may install and execute the commercial version of the Software on one (1) computer owned and controlled by Licensee for the term of this Agreement. 1.3. For all products or components, installation shall be limited to one (1) computer owned or controlled by Licensee solely for Licensees internal use, and shall not otherwise exceed the scope of the license granted herein. 2. License Restrictions. The Software may not be installed on or used across a computer network. Licensee may not copy the Software in whole or in part except as essential for the authorized use thereof as expressly set forth in the documentation included with the Software and except for one (1) copy solely for back-up purposes. Licensee must reproduce and include on any such copies and on any media therefor the copyright notice and any other notices that appear on or in the copy of the Software originally provided to Licensee hereunder. Licensee shall not (and shall not allow any third party to) (i) decompile, disassemble, or otherwise reverse engineer the Software, or otherwise attempt to reconstruct or discover any underlying source code, ideas, algorithms, file formats, programming, or interoperability interfaces of the Software by any means whatsoever (except to the extent expressly permitted by applicable law notwithstanding a contractual obligation to the contrary); (ii) remove any product identification, copyright or other proprietary notices from the Software; (iii) re-sell, rent, lease, lend, or otherwise provide the Software to third parties or use the Software for timesharing or service bureau purposes; (iv) modify, create any derivative work based upon, or incorporate into or with any other software the Software or any part thereof. Licensee agrees to comply with any court judgment or other conditions imposed on Licensee or MediaDex as a result of an allegation of patent or copyright infringement (whether by court order, agreement or otherwise), whether or not such judgment or conditions contradict the conditions of this Agreement, including without limitation, ceasing the use or copying of the Software. Licensee may not use the Software for ASP (Application Service Providing) purposes without the prior consent of MediaDex. 3. Third-Party Rights. Licensee acknowledges that use of the Software requires use of the Java(tm)2 Runtime Environment ("J2RE") provided by Sun Microsystems, Inc., and that Licensees use of the J2RE is subject to the terms and conditions of the Binary Code License Agreement from Sun Microsystems, Inc., which is provided together with the Software. Please contact Sun Microsystems Inc., 4150 Network Circle, Santa Clara, California, 95054, with any questions. Licensee further acknowledges that certain components of the Software include software developed by the Apache Software Foundation, and that Licensees use of such components is subject to the terms and conditions of Apaches license. Please see www.apache.org for details. 4. Intellectual Property Rights. Except as expressly licensed herein, MediaDex and its licensors retain all right, title, and interest in and to the Software, all copies thereof, and all related documentation and materials. The Software is protected under national and international copyright, trademark, trade secret, and/or patent laws. The License granted herein does not constitute a sale of the Software or any portion or copy thereof. 5. Limited Warranty; Warranty Disclaimers; Limitation of Liability. 5.1. Demo Version. The demo version of the Software is provided "AS IS" without warranty of any kind. 5.2. Commercial Version. If, during the period of ninety (90) days following Licensees acquisition of the commercial version of the Software, the Software, in the form provided by MediaDex, does not operate in substantial conformance with the documentation included with the Software, or if the media embodying the Software is physically defective, MediaDex will, at its discretion, provided that Licensee has provided written notice to MediaDex of the defect and returned the Software and all copies thereof to MediaDex within such ninety-day period, replace the Software, repair the Software, or refund to Licensee the purchase price for the Software. MediaDex may, at its discretion, require proof of purchase. EXCEPT FOR THE LIMITED WARRANTY ABOVE (IF ANY), ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, ARE EXPRESSLY DISCLAIMED. FURTHER, MEDIADEX DOES NOT WARRANTY, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE SOFTWARE IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, PERFORMANCE OR OTHERWISE. Licensee understands that MediaDex is not responsible for and will have no liability for any hardware, software, modifications to Software, solutions based on Software or other items or any services provided by any persons other than MediaDex. IN NO EVENT WILL MEDIADEX BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR FOR ANY LOST PROFITS, INTERRUPTION OF BUSINESS, LOSS OR CORRUPTION OF DATA, OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR TECHNOLOGY IN CONNECTION WITH OR RELATING TO THE SOFTWARE OR THIS AGREEMENT, REGARDLESS OF THE LEGAL THEORY OF LIABILITY (WHETHER CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), AND IRRESPECTIVE OF WHETHER MEDIADEX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, IN NO EVENT SHALL MEDIADEXS MAXIMUM LIABILITY FOR DAMAGES HEREUNDER EXCEED THE AMOUNT OF [500.00.] Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation may not apply to Licensee in its entirety to the extent the laws of such jurisdictions so require. 6. Indemnity. MediaDex shall have the right, but not the obligation, to defend or settle, at its option, any action or proceeding arising from a claim that Licensees permitted use of the Software infringes or misappropriates any patent, copyright, or other ownership rights of a third party. Licensee agrees to provide MediaDex with written notice of any such claim within ten (10) days of Licensees first knowledge thereof and to provide reasonable assistance in the defense of such claim. MediaDex shall have sole discretion and control over such defense or settlement, unless it declines to defend or settle such claim, in which case Licensee is free to pursue such course of action as Licensee reasonably determines. MediaDex is under no obligation hereunder to indemnify or hold harmless Licensee with respect to any actions, proceedings or claims. 7. License Term. 7.1. Demo Version. The Agreement shall commence as of the date Licensee first installs this Software (and, in any event, no later than the date the Software is first used by Licensee), and shall remain in effect for the duration of the Trial Period until terminated. 7.2. Commercial Version. The Agreement shall commence as of the date Licensee first installs this Software (and, in any event, no later than the date the Software is first used by Licensee), and shall remain in effect thereafter until terminated. 8. Termination. MediaDex may terminate this Agreement without notice upon any material breach of this Agreement by Licensee. Licensee may terminate this Agreement for convenience at any time, upon written notice to MediaDex. Licensee acknowledges and agrees that MediaDex may (or may not), at its sole discretion, release new versions of or updates to the Software and such updates and/or versions, if any, may contain functionally and/or compatibility elements different from the Software. If a new version of the Software is released by MediaDex and licensed by the Licensee, this Agreement shall be terminated if such new version is made available pursuant to, or MediaDex and Licensee enter into, a new end user license agreement. Upon expiration or termination for any reason, Licensee shall immediately cease all use of the Software, return or destroy all copies of the Software and all portions thereof, and so certify to MediaDex in writing if requested. Except for the License, and except as otherwise expressly provided herein, the terms and conditions of this Agreement shall survive expiration or termination. 9. Confidentiality. Except as expressly permitted in this Agreement, Licensee shall keep confidential and shall not use or disclose the Software, technology, ideas, algorithms or information derived from the Software, the use thereof, or otherwise disclosed by MediaDex to Licensee, except to the extent that Licensee can document that: (i) such information is generally available for use and disclosure by the public without any charge or license and without a breach of an obligation of confidentiality to MediaDex; (ii) such information was in the possession of Licensee without an obligation of confidentiality prior to disclosure by MediaDex; (iii) Licensee rightfully obtained such information from a third party without restriction as to use or disclosure or the breach of an obligation of confidentiality to MediaDex; or (iv) Licensee develops such information without use of or access to the Software, technology, ideas, algorithms or information derived from the Software, the use thereof, or otherwise disclosed by MediaDex to Licensee. 10. Export Control. The Software may be subject to export control laws of the United States, as well as to export control laws of other jurisdictions applicable to Licensee. Licensee shall comply with all such applicable laws and shall not ship, transfer, or export the Software into any country, or make available or use the Software, in any manner prohibited by law.11. General Provisions. Neither this Agreement nor any right hereunder is assignable or transferable in whole or in part without the prior written consent of MediaDex; and any attempt to do so shall be void. Any notice, report, approval or consent required or permitted hereunder shall be in writing (including by way of e-mail) and will be deemed to have been duly given if mailed by international overnight express mail service; or, in the case of notices from MediaDex to Licensee, provided by e-mail. Such notices, reports, approvals or consents shall be sent to MediaDex FZ-LLC, P.O. Box 500160, Dubai Internet City, Dubai, U.A.E., in the case of MediaDex (or to such other address as MediaDex may designate by notice hereunder) and to the address (including e-mail address) provided to MediaDex by Licensee upon registration of the Software (or to such other address as Licensee may designate by notice hereunder) in case of Licensee. All notices, reports, approvals or consents sent to MediaDex must be marked: "Attention: Licensing Department." No failure to exercise, and no delay in exercising, on the part of either party, any privilege, any power or any rights hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right or power hereunder preclude further exercise of any other right hereunder. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be governed by and construed in accordance with the laws of California, without regard to conflicts of laws provisions thereof. The provisions of the United Nations Convention on the International Sales of Goods are hereby disclaimed and excluded. All disputes arising under or relating to this Agreement shall be resolved exclusively in the state and federal courts sitting in San Francisco, California, and Licensee hereby irrevocable waives any objection to the exercise of such courts jurisdiction in such proceedings, provided however, that MediaDex reserves the right to bring suit against Licensee in any court with competent jurisdiction over Licensee. Licensee recognizes and agrees that there is no adequate remedy at law for a breach of this Agreement, that such a breach would irreparably harm MediaDex, and that MediaDex is entitled to seek equitable relief (including, without limitation, injunctions) with respect to any breach or potential breach in addition to any other remedies. The prevailing party in any action to enforce this Agreement shall be entitled to recover costs and expenses including, without limitation, reasonable attorneys fees. Any amendments of or waivers with respect to this Agreement shall be effective only if made in writing and signed by a representative of the respective parties authorized to bind the parties. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes all previous written, oral, and other agreements and communications relating to the subject of this Agreement. MediaDex and Licensee are acting hereunder as independent contractors. Nothing contained herein shall be deemed or construed by the parties, nor by any third party, as creating a relationship of employer and employee, principal and agent, partnership, or joint venture. Each party recognizes that the warranty disclaimers and the liability and remedy limitations in this Agreement are material elements of this Agreement and they should be effective even when such warranty disclaimers and liability and remedy limitations would cause this Agreement to fail of its essential purpose.