End User License Agreement
This End User License Agreement (“EULA“) is a legal agreement between Cadgraphics Incorporated (“Cadgraphics”) and the legal entity or individual that Cadgraphics has registered as the end user for the Software (“End User”) and contains the terms and conditions that govern the license from Cadgraphics to End User for the RescueLogic software and associated end user documentation (the “Software”).
This EULA takes effect the earlier of (each, to “Accept,” and the date upon which this EULA is Accepted is the “Effective Date”): (a) when End User or its authorized third party clicks “I Accept,” “Agree,” or similar check box or button presented with this EULA; (b) End User or its authorized third party completes the activation for the Software; or (c) when End User or its authorized third party installs, accesses, or uses the Software.
If the individual activating the Software is entering into this EULA on behalf of a company or other legal entity, such individual represents that he/she has the authority to bind such company or entity to this EULA. If such individual does not have such authority, he/she may not accept this EULA and may not activate or use the Software.
BY ACCEPTING THIS EULA, END USER ACKNOWLEDGES THAT END USER HAS READ AND UNDERSTANDS THE TERMS AND CONDITIONS OF THIS EULA, AND AGREES TO BE LEGALLY BOUND BY THEM. IF END USER DOES NOT AGREE TO BE LEGALLY BOUND BY THIS EULA, THEN END USER IS NOT AUTHORIZED TO USE THE SOFTWARE.
1. Grant of License. Subject to payment of applicable license fees and to the terms and conditions of this EULA, Cadgraphics grants End User a limited, non-exclusive, non-transferable (except as set forth in this EULA), non-sublicensable license to install and use the object code version of the Software during the term of this EULA for the number and types of licenses (e.g., devices, users, and panels) purchased by End User and solely for End User’s internal use.
2. License Restrictions.
a. End User shall not, shall not attempt, and shall not permit or assist any third party to: (1) use the Software in excess of the limitations set forth in this EULA or the number of licenses End User has purchased; (2) copy, modify, translate, tamper with, or otherwise prepare derivative works of the Software or any component thereof; (3) distribute, display, lease, sublicense, rent, lend, give, transfer, assign or otherwise make all or any portion of the Software available to any third party, except as expressly authorized in this EULA; (4) reverse engineer, decompile or disassemble the Software or any component thereof or apply any other process or procedure to derive the source code of any portion of the Software or any underlying ideas or algorithms in the Software; (5) remove, obscure or modify any copyright, trademark or other proprietary or intellectual property rights notices contained in the Software or on any media embodying the Software; (6) use the Software to develop any software or other technology having the same primary function as the Software; or (7) use the Software in any manner that violates any applicable laws, rules or regulations.
b. End User may not transfer the Software except, with Cadgraphics’ prior written consent which will not be unreasonably withheld, to a purchaser of End User’s entire business or substantially all of the assets of End User’s business, provided that the purchasing party accepts in writing to Cadgraphics the terms and conditions of this EULA, the purchasing party agrees to other reasonable transfer requirements, and End User does not retain a copy of the Software after such transfer.
c. The license granted to End User in this EULA is conditioned on End User’s continued compliance with this EULA, and will immediately and automatically terminate if End User does not comply with any term or condition of this EULA. In such an event, End User must uninstall and destroy all copies of the Software and all of its component parts.
3. Ownership. The Software is licensed to End User, not sold and is protected by copyright laws and international copyright treaties. End User acknowledges that all right, title and interest in and to the Software (including but not limited to all images, photographs, animations, videos, audio elements, and text incorporated into the Software), including all copyrights, trade secrets, trademark, patent and other forms of proprietary and intellectual property rights, belong to Cadgraphics or its suppliers. This EULA does not convey to End User any interest in or to the Software, but only a limited right of use that is revocable in accordance with the terms of this EULA. All rights not expressly granted in this EULA are reserved by Cadgraphics and its suppliers.
4. License Fees. End User shall pay Cadgraphics all license fees for the Software by the invoice due date. If any amount payable under this EULA is not paid when due, such amount shall bear interest until paid at a rate equal to the lesser of (a) 1.5% per month, or (b) the maximum rate permitted by law.
5. No Maintenance. Except as may be part of a purchase for maintenance or support, Cadgraphics has no obligation to provide support for or updates, fixes or upgrades to the Software under this EULA. If End User is provided any updates, fixes or upgrades to the Software, each such update, fix or upgrade shall be deemed Software that is subject to the terms and conditions of this EULA or a new license agreement delivered with such update, fix, or upgrade. Cadgraphics may, in its sole discretion, discontinue development, distribution, support or maintenance of the Software at any time. Cadgraphics reserves the right to add or remove features or functions of the Software at any time. If Cadgraphics provides to End User any support services, End User agrees that its receipt of such services will be governed by the applicable support contract.
6. Limited Warranty and Disclaimers.
a. Limited Warranty. Cadgraphics warrants to End User that, when properly used, the Software will perform substantially in accordance with the accompanying documentation for a period of ninety (90) days from the date of End User’s receipt of the Software (the “Warranty Period”). If End User reports to Cadgraphics in writing within the Warranty Period any nonconformity between the documentation and the Software, and if Cadgraphics is able to replicate and verify that such nonconformity exists, as End User’s sole and exclusive remedy, Cadgraphics shall make commercially reasonable efforts to correct such nonconformity and, if successful, shall supply End User with such correction at no additional cost to End User. If such efforts are unsuccessful and the nonconformity is material, End User’s sole and exclusive remedy for a breach of the warranty described in this Section, shall be to terminate this EULA, discontinue use of the defective Software, and return all copies End User has of the defective Software. Upon End User’s completion of the foregoing, Cadgraphics will refund End User the price paid for the defective Software. The foregoing limited warranty is void if failure of the Software has resulted from accident, abuse, or misuse by anyone other than Cadgraphics, or from use of the Software with any hardware or software not provided by Cadgraphics.
b. Disclaimers. EXCEPT AS EXPRESSLY STATED IN THIS SECTION 6, THE SOFTWARE IS PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CADGRAPHICS AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, TITLE, OR ANY WARRANTY ARISE FROM COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, CADGRAPHICS DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE IN TERMS OF ITS CORRECTNESS, EFFECTIVENESS, ACCURACY, RELIABILITY, SECURITY, AVAILABILITY, FREEDOM FROM ERRORS, SATISFACTION OF END USER’S REQUIREMENTS, OR OTHERWISE. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE IS ASSUMED BY END USER. CERTAIN JURISDICTIONS DO NOT ALLOW DISCLAIMERS OF OR LIMITATIONS ON CERTAIN WARRANTIES, SO ONE OR ALL OF THE FOREGOING LIMITATIONS MAY NOT APPLY TO END USER. TO THE EXTENT ALLOWED BY APPLICABLE LAW, IMPLIED WARRANTIES ON THE SOFTWARE, IF ANY, ARE LIMITED TO THE WARRANTY PERIOD SPECIFIED ABOVE.
c. Other Limitations. NO EMPLOYEE OR AGENT OF CADGRAPHICS, NOR ANY RESELLER OR ANY THIRD PARTY IS AUTHORIZED BY CADGRAPHICS TO MAKE ANY WARRANTY, REPRESENTATION OR EULA ON BEHALF OF CADGRAPHICS OR TO MODIFY THIS EULA.
7. Limitations on Liability.
a. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CADGRAPHICS OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR ANY LOST PROFITS, BUSINESS INTERRUPTION, COSTS OF DELAY, FAILURE OF DELIVERY, LOSS OF DATA, REVENUE, PROFITS OR GOODWILL, COSTS OF LOST OR DAMAGED DATA, SOFTWARE, PROPERTY, OR EQUIPMENT, DAMAGES OR COSTS INCURRED IN CONNECTION WITH OBTAINING SUBSTITUTE PRODUCTS, OR LIABILITIES TO THIRD PARTIES) ARISING OUT OF OR RELATING TO THE SOFTWARE OR THIS EULA.
b. THE LIMITATIONS SET FORTH IN THIS SECTION 7 SHALL APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE, DUTY TO WARN AND STRICT LIABILITY), WARRANTY OR ANY OTHER BASIS, EVEN IF CADGRAPHICS OR ITS SUPPLIERS HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND WITHOUT REGARD TO THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES (INCLUDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY).
c. IN NO EVENT SHALL CADGRAPHICS’ LIABILITY TO END USER ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THIS EULA EXCEED THE GREATER OF: (I) FIFTY U.S. DOLLARS (USD $50); OR (II) THE LICENSE FEES ACTUALLY PAID BY END USER TO CADGRAPHICS IN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE EVENT GIVING RISE TO SUCH CLAIM.
d. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS, AS SET FORTH ABOVE, SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
8. Term and Termination. The term of this EULA shall commence on the Effective Date and shall continue until terminated in accordance with this Section or as elsewhere set forth in this EULA. End User may terminate this EULA at any time, at which point the licenses granted to End User in this EULA will terminate. This EULA (including any licenses granted herein) shall immediately and automatically terminate upon End User’s breach of this EULA. Upon the termination of this EULA, End User must immediately cease all use of the Software. Within seven (7) days after the termination of this EULA, End User shall uninstall the Software and destroy or delete all copies of the Software in End User’s possession or control and certify to Cadgraphics such uninstallation and destruction. The parties expressly acknowledge and agree that the terms and provisions of this EULA which by their express or implied terms extend beyond the termination of this EULA shall continue in full force and effect notwithstanding the termination of this EULA.
9. Export Compliance. The Software may be subject to export laws and regulations of the United States and other jurisdictions. End User represents and warrants that End User is not named on any U.S. government denied-party list. End User will not permit any user to access or use any Software: (i) that is a U.S.-embargoed country or region; (ii) by persons or entities prohibited from receiving U.S. exports; or (iii) in violation of any U.S. export law or regulation.
10. U.S. Government Restricted Rights. Any Software and documentation provided to the United States of America, including its agencies or instrumentalities (collectively, the “U.S. Government”) is subject to RESTRICTED RIGHTS. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software–Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is Cadgraphics Incorporated, 320 Edgewood Boulevard, DeLand, Florida 32720.
11. Injunctive Relief. Cadgraphics shall have the right to seek and obtain a temporary restraining order, injunction or other equitable relief in any court of competent jurisdiction for any alleged or threatened violation or breach of this EULA by End User. Such relief shall be in addition to and not in lieu of any other rights or remedies available to Cadgraphics at law or in equity.
12. Governing Law, Forum and Consent to Jurisdiction. This EULA shall be governed by the laws of the State of Florida (without regard to its conflict of laws rules) and the applicable laws of the United States. For the purpose of resolving conflicts related to or arising out of this EULA, the parties expressly agree that venue shall be in the federal or state courts of the State of Florida, USA, and, in addition, the parties hereby expressly consent to the exclusive personal jurisdiction of the federal and state courts in the State of Florida, USA, regardless of the citizenship or residency of either party at the time of the commencement of any legal proceeding. If Cadgraphics institutes any legal action or proceeding to enforce the terms of this EULA and Cadgraphics prevails, it shall be entitled to recover its costs, expenses and attorneys’ fees related to the filing and prosecution of such action, in addition to any other relief to which it may be entitled.
13. Records; Audit Rights. End User shall keep accurate and current records with respect to its installation and use of the Software (“Records”). During the term of this EULA and for three (3) years thereafter, Cadgraphics or its representatives may, upon not less than ten (10) days’ prior notice, inspect and make copies of any Records. Any such inspection shall take place during End User’s normal business hours. If an inspection reveals that End User has underpaid fees or owes fees to Cadgraphics, Cadgraphics will invoice End User for the underpayment or amount due based on the Cadgraphics’ price list in effect at the time the inspection is completed.
Except as expressly permitted in this EULA, End User shall not transfer or assign the Software and/or this EULA without the prior written consent of Cadgraphics, which may be withheld in Cadgraphics’ sole discretion. Cadgraphics may, in its sole discretion, transfer or assign, in whole or in part, this EULA to any third party. This EULA shall be binding upon and inure to the benefit of the parties hereto and their permitted respective successors and assigns. This EULA has been prepared in English, and English is the controlling language with respect to all matters concerning this EULA. In the event any portion of this EULA shall be held to be invalid, the same shall not affect in any respect whatsoever the validity of the remainder of this EULA. A waiver by Cadgraphics of any provision or the breach of any provision of this EULA shall not be effective unless made in writing and shall not operate as or be construed to be a continuing waiver of the provision or the breach of the provision. This Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement.
This EULA constitutes the entire agreement between Cadgraphics and End User pertaining to the subject matter hereof, and cancels and supersedes all prior oral and written negotiations, agreements or understandings between the parties with respect to the subject matter hereof. Cadgraphics will not be bound by, and specifically objects to, any term, condition or other provision which is different from or in addition to the provisions of this Agreement and which is submitted by Customer in any purchase order, receipt, acceptance, confirmation, correspondence or other document. Except as permitted herein, this EULA may not be modified except by a written agreement signed by End User and an officer of Cadgraphics.
NO OTHER EMPLOYEE OR AGENT OF CADGRAPHICS, NOR ANY RESELLER OR ANY THIRD PARTY IS AUTHORIZED BY CADGRAPHICS TO MODIFY THIS EULA OR TO MAKE ANY WARRANTY, REPRESENTATION OR EULA ON BEHALF OF CADGRAPHICS. RESELLERS AND OTHER THIRD PARTIES DO NOT HAVE AUTHORITY TO BIND OR IMPOSE ANY OBLIGATION OR LIABILITY UPON CADGRAPHICS.
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