END USER LICENSE AGREEMENT#
IMPORTANT– READ CAREFULLY: This End-User License Agreement (“EULA”) is between You (either an individual, a legal entity or any affiliated companies or other entities) and Gravwell Inc, (“Gravwell”). The EULA authorizes You to use the Licensed Software, specified in Clause 1 below, under the terms and conditions set forth below. Read this EULA carefully before installing or using the Licensed Software. By installing, copying, and/or using the Licensed Software, You acknowledge that You: (1) have read and understood the EULA as well as each of the third party licenses, Open Source Software licenses and additional terms set forth in the Additional Terms Addendum below (“Additional Terms”). (2) agree to be bound by all of the terms and conditions for this EULA and such Additional Terms. You further agree that if Gravwell or any licensor of Gravwell is required to engage in any proceeding, legal or otherwise, to enforce their rights under this EULA, Gravwell and/or its licensor shall be entitled to recover from You, in addition to any other sums due, reasonable attorney’s fees, costs and disbursements if ordered to do so by the Court. If You do not agree to all of the terms and conditions of this EULA, Gravwell is unwilling to license the Licensed Software to you. In such an event, you should not install the Licensed Software and promptly contact Gravwell for instructions on return or destruction of the Licensed Software.
This EULA governs any Updates, releases, revisions, or enhancements to the Licensed Software.
LICENSED SOFTWARE. As used in this EULA, the term “Licensed Software” means (i) the software offered by Gravwell under the brand “GravWell” in any release and (ii) any related electronic or written documentation for the Licensed Software.
INTELLECTUAL PROPERTY RIGHTS NOTICE. The Licensed Software and all rights, without limitation including proprietary rights therein, are owned by Gravwell, their licensors or affiliates and are protected by international treaty provisions and all applicable national laws. The structure, organization, and code of the Licensed Software are the valuable trade secrets and confidential information of Gravwell, their licensors or affiliates. Except as expressly and unambiguously provided herein, You do not possess, and Gravwell does not grant to You, any express or implied rights (whether by implication, estoppels or other legal theory) in or to any such intellectual property rights and all such rights are retained by Gravwell, its licensors or affiliates. You must reproduce and include the copyright notices with any permitted copies You make of the Licensed Software.
LICENSE GRANT AND USE RESTRICTIONS. The Licensed Software is not sold to You. Gravwell only grants to You a non-exclusive, non-transferable license to use the Licensed Software solely for your own use. The configuration and execution of the Licensed Software is supervised by a cryptographic license key or a machine-bound copy protection, supplied separately for the Licensed Software. The EULA permits use of the Licensed Software, only within the boundaries established by the license key.
LIMITATIONS ON LICENSE. You may not copy, distribute, or make derivative works of the Licensed Software except as follows: (a) You may make one copy of the Licensed Software, excluding the documentation, as an archival backup copy of the original. Any other copies You make of the Licensed Software are in violation of this EULA. (b) You may not use, modify, or transfer the right to use the Licensed Software or copy the Licensed Software except as expressly provided in this EULA. (c) You may not sublicense, rent or lease the Licensed Software. (d) You may not or direct any third party to reverse engineer, de-compile, or disassemble those Licensed Software programs except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. (e) This EULA does not grant You any rights whatsoever in relation to the trademarks or service marks of Gravwell or Gravwell affiliates. (f) Parts of the Licensed Software may be supplied by third parties and may be subject to separate license terms such as those set forth within the Additional Terms below. In the event that you receive the terms and conditions stipulated by the relevant third party licensor together with the Licensed Software, such terms and conditions shall apply with respect to the third party licensor’s liability towards you. Gravwell’s own liability to you is governed by this EULA.
(g) The Licensed Software may contain Open Source Software (hereinafter referred to as “OSS”) that is listed within the Additional Terms below. As set forth in these Additional Terms, You are entitled to use the OSS in accordance with the respective license conditions of the OSS. The license conditions of the respective OSS shall prevail over this EULA with respect to the OSS. If the license conditions of the OSS require the distribution of the source code of such OSS, Gravwell shall provide such source code upon request against payment of the shipping and handling charges.
MISUSE OF THE LICENSED SOFTWARE OR DATA GENERATED BY THE LICENSED SOFTWARE IS STRICTLY PROHIBITED BY LICENSOR, MAY VIOLATE U.S. AND OTHER LAWS AND MAY SUBJECT YOU TO SUBSTANTIAL LIABILITY. You are solely responsible for any misuse of the Licensed Software under this EULA and for any liability or damage related in any way to your use of the Licensed Software in violation of this EULA. You are also responsible for using the Licensed Software in accordance with the limitations of this EULA.
TERMINATION. This EULA is effective from the first date You install, copy or otherwise use the Licensed Software. You may terminate this license at any time by deleting or destroying the Licensed Software, all back up copies and all related materials provided to You by Gravwell. Your license rights terminate automatically and immediately without notice if You fail to comply with any provision of this EULA.
WARRANTY DISCLAIMER. YOU ACKNOWLEDGE THE LICENSED SOFTWARE IS PROVIDED “AS IS” AND NEITHER Gravwell NOR ANY OF THEIR LICENSORS MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR THAT THE LICENSED SOFTWARE WILL NOT INFRINGE ANY THIRD PARTY PATENTS, COPYRIGHTS, TRADEMARKS OR OTHER RIGHTS. THERE IS NO WARRANTY BY Gravwell OR THEIR LICENSORS OR BY ANY OTHER PARTY THAT THE FUNCTIONS CONTAINED IN THE LICENSED SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY A Gravwell REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY AFFECT THIS DISCLAIMER. YOU ASSUME ALL RESPONSIBILITY TO ACHIEVE YOUR INTENDED RESULTS AND FOR THE INSTALLATION, USE, AND RESULTS OBTAINED FROM IT.
NO OTHER OBLIGATIONS; RESERVATION OF RIGHTS. This EULA creates no obligations on the part of Gravwell other than as specifically set forth herein. Gravwell reserves all rights not expressly granted to You in this EULA.
LIMITATION OF LIABILITY. IN NO EVENT SHALL Gravwell, ITS EMPLOYEES, LICENSORS, AFFILIATES OR AGENTS BE LIABLE FOR ANY LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, PROPERTY DAMAGE, LOSS OF PROFITS, INTERRUPTION OF BUSINESS OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, ECONOMIC, PUNITIVE OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, AND WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, OR OTHER THEORY OF LIABILITY, OR ARISING OUT OF THE USE OF OR INABILITY TO USE THE LICENSED SOFTWARE, EVEN IF Gravwell IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATION OF LIABILITY SHALL NOT APPLY IF AND TO THE EXTENT Gravwell’s LIABILITY IS MANDATORY UNDER THE APPLICABLE LAW E.G. PRODUCT LIABILITY LAW OR INTENTIONAL MISCONDUCT.
TECHNICAL SUPPORT AND AUDIT Gravwell and its affiliates have no obligation to furnish You with technical support unless separately agreed in writing between You and Gravwell. Gravwell and where applicable their licensors in the Licensed Software shall be free to use any feedback and/or technical data including audit data received from You resulting from your access to and use of the Licensed Software for any purpose including (without limitation) the manufacture, marketing and maintenance or support of products and services. Insofar as permissible under the relevant laws You permit Gravwell and its affiliates to audit the use of the Licensed Software and will give assistance and access to the necessary information.
EXPORT CONTROL. The Software, including technical data / cryptographic software, may be subject to U.S. export controls and may be subject to import or export controls in other countries. You agree to strictly comply with all applicable import and export regulations. Specifically, You agree, to the extent required by U.S. Export Administration Regulations, that You shall not disclose or otherwise export or re-export the Licensed Software or any part thereof delivered under this EULA to any country (including a national or resident of such country) to which the U.S. has restricted or prohibited the export of goods or services. You represent and warrant that You are not (i) located in any country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist sponsoring” country, or (ii) listed on any U.S. Government list of prohibited or restricted parties including the Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List.
DATA PROTECTION: You acknowledge that Gravwell uses a software based solution for administration of data and license information. You agree that Gravwell stores and uses all data and information required for the business relationship between You and Gravwell or resulting from said relationships, especially but not limited to contractual documents and papers as well as data and information of and about You and Your auxiliary persons necessary for the performance of the contract. Such information may be stored and used in and outside The United States. Furthermore, all this data and information may be disclosed to Gravwell as well as to their associated companies for corresponding processing, especially for providing services, fulfillment of legal requirements or for Gravwell internal audit and/or supervisory requirements; this always in compliance with respectively applicable data protection laws.
FOR U.S. GOVERNMENT END USERS: The Licensed Software was developed at private expense and each component thereof is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and FAR 52.227-19 Commercial Computer Software License. The Uniform Computer Information Transactions Act is excluded. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Licensed Software with only those limited rights set forth therein. Publisher is Gravwell Inc, A Delaware Corporation.
APPLICABLE LAW AND FORUM. These Terms and Conditions and your relationship with GravWell under this EULA will be governed by the laws of the State of California without regard to its conflict of laws provisions. You, GravWell agree to submit to the exclusive jurisdiction of the courts located within California to resolve any legal matter arising from this EULA or these Terms and Conditions, and you hereby submit to the personal jurisdiction of such courts and waive any objection based upon improper venue or inconvenient forum. You hereby waive any right to a jury trial in any proceeding arising out of or related to this EULA. Notwithstanding this, you agree that GravWell will still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
MISCELLANEOUS. Unless Gravwell has given separate individual contract conditions in writing this EULA represents the entire agreement between You and Gravwell relating to the Licensed Software and (i) supersedes all prior or contemporaneous oral or written communications, proposals, and representations with respect to its subject matter; and (ii) prevails over any conflicting or additional terms of any acknowledgement or similar communication between the parties during the term of this License. Notwithstanding the foregoing, some products of Gravwell may require You to agree to additional terms through an on-line license, and such terms shall supplement this EULA. If any provision of this EULA is held invalid, all other provisions shall remain valid unless such validity would frustrate the purpose of this EULA, and this EULA shall be enforced to the full extent allowable under applicable law. No modification to this EULA is binding, unless in writing and signed by a duly authorized representative of each party. This EULA shall be binding on and shall inure to the benefit of the heirs, successors, and assigns of the parties hereto. The failure of either party to enforce any right resulting from the breach of any provision of this EULA by the other party will not be deemed a waiver of any right related to a subsequent breach of such provision or any other right hereunder.
© Gravwell Inc 2017. All rights reserved.
ADDITIONAL TERMS ADDENDUM Embedded in, or bundled with, this product are open source software (OSS) components and other third party components. You may receive a copy of,distribute and/or modify any open source code for the OSS component under the terms of their respective licenses, which may be Apache License Version 2.0, the modified BSD license and the MIT license. In the event of conflicts between Gravwell license conditions and the Open Source Software license conditions, the Open Source Software conditions shall prevail with respect to the Open Source Software portions of the software. On written request within three years from the date of product purchase and against payment of our expenses, Gravwell will supply source code for any OSS component identified below inline with the terms of the applicable license. For this, please contact us at:
Gravwell Inc OSS Component Division P.O. box 2819 Coeur d’Alene, ID 83814-2819
Generally, the identified OSS components are distributed in the hope that they will be useful, but WITHOUT ANY WARRANTY, without even implied warranty such as for MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE,and without liability for any Gravwell entity other than as explicitely documented in your purchase contract.