BY INSTALLING THIS PRODUCT YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, IMMEDIATELY RETURN THIS PRODUCT FOR A FULL REFUND OF THE LICENSE FEE PAID, IF ANY, TO THE PLACE OF PURCHASE. ANY QUESTIONS SHOULD BE REFERRED TO INNOVATIVE SOFTWARE, LTD., 7040 NORTH PORT WASHINGTON ROAD, MILWAUKEE, WISCONSIN, 53217,
This legal agreement between you, (hereinafter "Licensee"), and Innovative Software, Ltd. and StorageSoft, Inc. (hereinafter "Licensors") specifies the Terms and Conditions which Licensors grant you, the Licensee, a license to use the ImageCast(TM)/IC3(TM) product (hereinafter "Software"). THIS AGREEMENT CONSTITUTES THE COMPLETE AGREEMENT BETWEEN YOU, THE LICENSEE AND LICENSORS.
License Grant.
Licensors grants Licensee, (either as an individual or entity) a non-exclusive, perpetual, non transferable License to use the Software and its documentation as follows:
* Licensors retains all rights, title and interests to the Software and related documentation.
* This License allows LIMITED and RESTRICTED use of the Software which is licensed to Licensee in a "per-seat Client License Pack" hereinafter ("License Pack") A License Pack consists of one (1) Controller that allows for concurrent client usage at a specified level, and a maximum specified number of Clients. Consult the License Certificate or the Specific Innovative Software Invoice for the total number of Clients Licensee is licensed to use.
Licensee May:
* move the Controller from computer to computer but only run the Controller to image no more than the maximum number of individual computers that the Licensee License Pack allows.
* use the Software to "push" and/or "pull" images to and/or from the same computer(s) only for the exact number of Clients licensed to Licensee in the License Pack Licensee purchased.
* use the Software only on those computers where the computer image was created or where the Software is used and/ or resides. Examples: (1) If Licensee use the Software to transfer an image of a hard disk to a maximum of 25 workstations, Licensee will need a 25 License Pack. (2) If Licensee use the Software to create a single image from a Client and/or the Controller and push it or pull it (download) to 100 workstations, Licensee will need a 100 License Pack. A 100 License pack will allow Licensee to transfer an image to any of the 100 licensed workstations as many times as Licensee wish, but does not allow Licensee to transfer an image to any additional workstations beyond the 100 unique workstations that have been imaged at any time.. (3) If Licensee purchased a 10 License Pack, then Licensee are authorized for 10 unique end destination workstation hard drives; a 25 License Pack authorizes Licensee for 25 unique end destination workstation hard drives, etc. Should Licensee wish to use the Software on a larger number of controllers and/or clients than what the Licensee current License Pack allows, please contact the place of purchase for additional License Packs.
* make one backup copy of the Software and the licensed number of client diskettes. The Software contains copyrighted material, trade secrets and other proprietary material and Licensee must reproduce on all copies of the Software the copyright notice and any other proprietary legends that were on the original copy of the Software.
Licensee May Not:
* rent, lease or otherwise transfer the Software or its documentation.
* use the Software on more computers than the License Pack Licensee have purchased authorizes Licensee to use.
* transfer the Software from drive to drive or computer to computer beyond the total number of seats that the License Pack allows. Once the Software is properly installed and licensed on the computer workstation, the Software can be executed on the same workstation repetitively which does not constitute another license.
* or permit anyone else to copy, reproduce, change, modify, translate, adulterate, disassemble, reverse engineer or create any derivative works of the Software or any associated copyrighted works, in whole or in part.
EEC Restrictions. If the Software is lawfully acquired outside of the United States within a jurisdiction which is a member of European Economic Community (EEC) subject to the EEC Council Directive of May 14, 1991, Licensee agree that within that jurisdiction it shall not, and Licensee shall not allow any party on Licenseer behalf, to attempt to reverse engineer or decompile the Software into another computer language, except as expressly and specifically provided in the EEC Council Directive of May 14, 1991. Any and all information obtained during such lawful reverse engineering and/or decompiling activities, including, but not limited to, the organization, logic, algorithms and processes of the Software, shall be deemed to be the confidential and proprietary information of Licensors. Licensee shall not reproduce, transmit, transcribe, store in any retrieval system, translate or make copies of the copyrighted Software documentation without the prior written permission of Licensors.
Government End Users. If Licensee is acquiring the Software on behalf of any unit or agency of the United States Government, the following provisions apply. The Government agrees: (i) if the Software is supplied to the Department of Defense (DOD), the Software is classified as "Commercial Computer Software" and the Government is acquiring only "restricted rights" in the Software and its documentation as that term is defined in Clause 252.227-7013{c}(1) of the DFARS; and (ii) if the Software is supplied to any unit or agency of the United States Government other than DOD, the Government's rights in the Software and its documentation will be as defined in Clause 52.227-19{c}(2) of the FAR or, in the case of NASA, in Clause 18-52.227-86(d) of the NASA
Supplement to the FAR.
Export Law Assurances. Licensee agrees and certifies that neither the Software or other technical data received from Licensors nor the direct product thereof, will be exported outside of the United States except as authorized and permitted by the laws and regulations of the United States. If the Software has been rightfully obtained by Licensee outside of the United States, Licensee agrees that Licensee will not re-
export the Software nor any other technical data received from Licensors, nor the direct product thereof, except as permitted by the laws and regulations of the United States and the laws and regulations of the jurisdiction in which Licensee obtained the Software. The Software may not be exported to any of the following countries: Cuba,
Iran, Iraq, Libya, North Korea or Syria.
Termination. This License is effective until terminated. Licensee may terminate this License at any time by destroying all copies of the Software and its documentation. This License will terminate immediately without notice from Licensors, if Licensee fail to comply with any provision of this License. Upon termination, Licensee must destroy all copies of the Software and it documentation.
Entire Agreement. This License combined with the Innovative Software Purchase Terms and Conditions, constitutes the entire agreement between the parties with respect to the use of the Software and its documentation, and supersedes all prior or contemporaneous understandings or agreements, written or oral, regarding such subject
matter. There shall not be contract for purchase or sale of the Software and/or license thereof except upon the terms and conditions herein proposed by Licensors and any terms and conditions to the contrary as expressed by Licensee or contained in any purchase order of Licensee's form are hereby rejected and shall be of no force and effect
unless expressly agreed to in writing by Licensors. No amendment to or modification of this License will be binding unless in writing and signed by a duly authorized representative of Licensors.
Technical Support. Licensee must register in order to be eligible for technical support via telephone or electronic mail. For a period of ninety (90) days, commencing with the date of Licensee's first telephone call requesting support, Licensee will have access to technical support for the Software for the technical contact designated on the product registration card included with this package or specified via electronic mail registration, subject to Licensee's compliance with Licensor, Ltd.'s instructions for accessing such support and standard verification procedures. Upon the expiration of the above described ninety (90) day period, Licensee may extend technical support on a per-incident or annual fee basis in accordance with Licensor, Ltd.'s then pricing and terms. Upgrades to the Software and its documentation, if any, are not included and may be sold separately.
Maintenance. Licensor grants the following and only the following standard maintenance to all IMAGECAST/IC3 products sold: twelve months free upgrades of the software. After the twelve months, the annual maintenance fee will be determined by the policy then in effect with licensors. Upgrades beyond the twelve month free period, that are not covered under the maintenance fee, are illegal and are in direct violation of this license agreement.
Export Law Assurances. Licensee agrees and certifies that neither the Software or other technical data received from Licensor, Ltd., nor the direct product thereof, will be exported outside of the United States except as authorized and permitted by the laws and regulations of the United States. If the Software has been rightfully obtained by Licensee outside of the United States, Licensee agrees that Licensee will not re-export the Software nor any other technical data received from Licensor, Ltd., nor the direct product thereof, except as permitted by the laws and regulations of the United States and the laws and regulations of the jurisdiction in which Licensee obtained the Software. The Software may not be exported to any of the following countries: Cuba, Iran, Iraq, Libya, North Korea or Syria.
Limited Warranty on CD/Diskettes. Licensor warrants the CDs/diskettes on which the Software is recorded to be free from defects in materials and workmanship under normal use for a period of ninety days from the date of purchase. Licensor's entire liability and Licensee's exclusive remedy is replacement of the CDs/diskettes not meeting Licensor's limited warranty and which are returned within such warranty period.
Disclaimer of Warranty. LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE USE OF THE SOFTWARE AND ITS DOCUMENTATION IS AT LICENSEE'S SOLE RISK. THE SOFTWARE, DOCUMENTATION, AND TECHNICAL SUPPORT ARE PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY KIND. Information regarding any third party services included in this package is provided as a convenience only, without warranty by Licensor, and will be governed solely by the terms agreed upon between Licensee and the third party providing such services. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS, LICENSOR EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. Licensor does not warrant that the functions contained in the Software will meet the Licensee's requirements, or that the operation of the software will be uninterrupted or error-free, or that defects in the Software will be corrected. Furthermore, Licensor does not warrant or make any representations regarding the use or the results of the use of the Software or its documentation in terms of their correctness, accuracy, reliability, or otherwise. No oral or written information or advice given by Licensor or its authorized representative shall create a warranty or in any way increase the scope of this warranty. Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply.
Limitation of Liability. To the maximum extent permitted under applicable laws, under no circumstances, including negligence, shall Licensor and any of their affiliates or their directors, officers, employees or agents be liable for any incidental, special or consequential damages (including damages for loss of business profits, business interruption, loss of business information and the like) arising out of the use of the Software or its documentation, even if Licensor, or its authorized representative has been advised of the possibility of such damages. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages so the above limitation or exclusion may not apply. In no event shall Licensor total liability to Licensee for all damages, losses, and causes of action (whether in contract, tort, including negligence, or otherwise) exceed the amount paid by Licensee for the Software and its documentation.
Copyright Notices. The Software, the User's Guide (Documentation) and any other accompanying written or electronic material, and/or documentation is owned and copyrighted by ImageCast Corporation, Boulder CO and is protected by United States copyright and trademark laws and international treaty provisions. All rights reserved. ImageCast(TM) and IC3(TM) are trademarks of ImageCast Corporation, Inc. ImageCast Corporation retains all rights, title, and interest in and to the programs recorded on the enclosed electronic media and all copies of the Software regardless of the form or media in or on which the original and other copies may exist. ImageCast Corporation retains all rights, title, and interest in and to the accompanying written or electronic materials and documentation regardless of the form or media in or on which the original and other copies may exist. The License is not a sale of the original Software or any copy. As the Licensee, you own only the magnetic or other tangible physical media on which the Software is originally or subsequently recorded or fixed and do not have any ownership interest in the Software, improvements or modifications to the Software or any accompanying written or electronic materials and documentation.
Controlling Law and Severability. This License shall be governed by and construed in accordance with the laws of the United States and the State of Wisconsin, as applied to agreements entered into and to be performed entirely within Wisconsin and Wisconsin residents. If for any reason, a court of competent jurisdiction finds any provision of the License, or portion thereof, to be unenforceable, that provision of the License shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this License shall continue in full force and effect.
Representation. In purchasing the specific IMAGECAST/IC3 license(s), purchasers has represented the total computers utilized by purchaser. In this context, "computer" is defined to be each and every system (PC, workstation, or portable) which has a CPU with a hard drive attached upon which the IMAGECAST/IC3 program is loaded or utilized. This is to be interpreted to be inclusive of all hard drive replicating systems (so that each said hard drive being replicated would be considered as an additional computer. However in the event that a system, on a permanent basis, contains one CPU and more than one hard drive, then said system would count as only one computer. In the event that purchaser has misrepresented the number of computers and if the IMAGECAST/IC3 program is used or utilized on more that the number of computers, then purchaser will pay an additional $50.00 USD for each and every said computer in excess of that number of computers as represented in this agreement, upon which the IMAGECAST/IC3 program is utilized and/or used.
Entire Agreement. This Purchase agreement, along with the IMAGECAST/IC3 License, constitutes the entire agreement between the parties with respect to the use of the Software and its documentation, and supersedes all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. There shall not be contract for purchase or sale of the Software except upon the terms and conditions proposed by Licensee or contained in any purchase order are hereby rejected and shall be of no force and effect unless expressly agreed to in writing by Licensor. No amendment to or modification of this License will be binding unless in writing and signed by a duly authorized representative of Licensor.
