Attention: The software programs and other materials in this package are provided to you under the terms of the license agreement below and are not sold to you.
End User License Agreement
(Electronic, Retail and OEM, Single users and Multi-users: standalone and networked; non-concurrent)
Important: Carefully read this agreement before pressing the "Yes" button to proceed. Pressing the "Yes" button is your confirmation that you have read, and accept, the terms of this agreement.
If you do not agree to these terms, return this package, complete, to the address below, with evidence of purchase, and we will refund your license fee. No refunds will be given if the product or packaging is damaged or components are missing, or without appropriate evidence of purchase. If you purchased this bundled with other hardware, software, or services, we will refund an equitable portion of the purchase price.
Use of this package is governed by the following terms:
A. License
SoftQuad Software Inc., ("we", "us" or "our"), provides the Licensee ("you" or "your") with a computer program ("the Program"), and (in electronic or other format) user manual, a license and registration form (or the registration material contained in the Program that can be mailed, e-mailed or faxed in, if no registration form is enclosed) and accompanying documents (together called "the Package") and grants to you a license to use the Package in accordance with the terms of this Agreement.
You will note that included in the Package are software products or modules provided by third party licensors (collectively, the "Third Party Software"). [You agree to use the Third Party Software solely in connection with the Program.] We make no representations or warranties of any kind, express or implied, in connection with the Third Party Software and such Third Party Software is provided to you on an "as is" basis. When referred to in section I of this Agreement, the term "Package" specifically excludes all Third Party Software. Your use of the Third Party Software shall be governed by the terms of this agreement and, in addition, may be governed by the terms of a separate license agreement provided by such third party licensors.
You are either a Single-User or a Multi-User of the Program. Your Package may contain a label on the exterior of its box stating the maximum number of computers upon which the Program may be installed (the "Exterior Label"). "Computer" is defined as a personal computer central processing unit that is not used as a server for any Computers linked together on any type of network. Use on a computer occurs when the Program is loaded on the cd rom, hard disk or RAM of the Computer. A Multi-User may install the Program on one computer used as a server and on the number of Computers stated on the Exterior Label.
Since the External Label evidences the permitted number of users, you agree to attach it to this Agreement. Absent the External Label means you are deemed a Single-User licensee of the Program, unless you can prove otherwise. Multi-Users of the Program may:
(a) use the Program without being part of a network;
(b) use the Program as part of a network; or
(c) use the Program through a combination of (a) and (b).
B. Intellectual Property
(a) Ownership of the copyright, trademark and all other rights, title and interest in the Package, as well as any copies, derivative works (if any are permitted) or merged portions made of the Program shall at all times remain with us or licensors to us. You must fully reproduce any copyright or other notices marked on any part of the Program on all copies of same.. This Package is protected by local and international intellectual property laws, which apply but are not limited to our copyright, trademark and patent rights, and by international treaty provisions.
(b) You acknowledge that the Package is confidential and proprietary to, and contains our trade secrets. Except as expressly authorized herein, you agree to hold the Package within your organization and shall not, without our specific written consent, or as authorized herein, utilize in any manner or publish, communicate or disclose to third parties any part of the Package.
C. Single-User License
You may use the Program on a maximum of one computer. You may not use or transmit the Program for use on more than one computer, subject to paragraph E(I)2.
D. Multi-User Licenses
You may:
1. permit the maximum number of users stated on the Exterior Label to use the Program but may not transfer the Program between computers except where one Computer is permanently replaced by another. Furthermore, subject to paragraph E(I)2, the Program is not to be installed on more than one network server, nor in the RAM or on the hard disk of more than the number of Computers stated on the Exterior Label;
2. copy or electronically distribute the Program in machine-readable form in support of your use to the limit of the number stated on the Exterior Label.
E. Rules Governing All Licenses
(I) You may:
1. make one additional copy of the Program for archive and backup purposes;
2. Install, or permit your employees to install, the Program on your or their home or out of office computers while such individuals are employed by you, provided that the Program is used on such home or out of office computer for use by you, or in your business and not for their personal usage. If that individual is no longer employed by you, you must ensure s/he removes the Program from his/her home or out of office computer and destroys or returns such Program to you. The right to install the Program on both an office and home or other out of office computer is permitted only if both computers are not used at the same time;
3. transfer the Program to another party, provided that you assign all your rights hereunder and cease all use of the Program, notify us of the name and address of the other party; and the other party agrees to be bound by the terms of this Agreement; and
4. merge all or any part of the Program into another program, provided that any part of the Program so merged will continue to be subject to this Agreement and provided that you include our trademark and copyright notices on the merged copy of any part of the Program.
(II) You may not:
1. make copies of documentation or manuals provided in the Package;
2. use or transmit the Program for use on more than the number of users stated on the Exterior Label;
3. translate, reverse engineer, decompile or disassemble the Program;
4. rent, lease, assign or transfer the Program except as in paragraphs E(I)(3); or
5. modify the Program (including disabling of any timebased expiry system).
F. Dual Media Software
If the Package contains both 3-1/2" and CD-ROM disks, you may use only one set (either the 3-1/2" or CD-ROM) of the disks provided. If you are a Multi-User, use of the other disks is governed by paragraphs D and E.
G. Term
(a) This License will continue for as long as you use the Program, unless it is terminated as set out in this Agreement. The License will terminate if you fail to comply with any term or condition herein. You agree, upon termination, to destroy the Package, together with all copies, modifications and merged Program portions of the Package in any form.
(b) You shall instruct your employees and agents that the making of unauthorized copies of any component of the Package and the permitting of a greater number of Multi-Users than the number stated on the External Label are violations of intellectual property law and this Agreement. If you have a Multi-User License, you agree to prepare and maintain a current list of the computers, including their serial numbers, upon which the Programs are installed. If, after you have so instructed an employee or agent, that employee or agent makes an unauthorized copy of any part of the Package, or permits more than the permitted number of Multi-Users to use the Program, you shall not be considered in breach of this Agreement if you, at your option either, promptly destroy the unauthorized copy or pay us the full retail price for each unauthorized copy discovered by us or you, and act reasonably and in good faith to pay us the full price for each additional user revealed thereby, based on our then current posted rates for a similar number of Multi-Users.
H. Reports and Inspection Right
You shall institute reasonable measures to ensure compliance with this Agreement. Upon our request, you shall provide reports as to usage as may be necessary to verify compliance with this Agreement. We shall have the right, upon reasonable notice, to inspect your facilities to verify compliance with this Agreement.
I. Warranty
We warrant that the diskettes in this Package (excluding diskettes containing Third Party Software) will be free from defects in materials and workmanship for sixty (60) days from the date of delivery to you. If a defect occurs within that time, return it to us at the address below and we will replace it at no charge. During the warranty period we may refuse to honor any claim if the defect has resulted from accident, abuse or misuse. This remedy is your exclusive remedy for breach of this warranty.
J. Limitation of Warranties and Liability
EXCEPT FOR THE EXPRESS WARRANTY ABOVE, WE MAKE NO OTHER WARRANTIES WITH RESPECT TO THE PACKAGE, AND IT IS PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED. AMONG THE WARRANTIES NOT INCLUDED IN THE EXPRESS WARRANTY ARE THE FOLLOWING: WARRANTIES OF MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THOSE ARISING OUT OF USAGE OF TRADE OR COURSE OF DEALING. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE PACKAGE IS ASSUMED BY YOU. WE SHALL NOT HAVE ANY LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR PROFIT, LOST DATA, OR OTHER COMMERCIAL OR ECONOMIC LOSS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR FOR CLAIMS BY A THIRD PARTY, NOR SHALL OUR DIRECTORS, AGENTS, LICENSORS TO US, EMPLOYEES OR REPRESENTATIVES HAVE SUCH LIABILITY. OUR MAXIMUM AGGREGATE LIABILITY TO YOU SHALL NOT EXCEED THE AMOUNT PAID BY YOU FOR THE PACKAGE. THIS WARRANTY GIVES YOU SPECIFIC RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES AND DO NOT PERMIT THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES. THEREFORE, THE FOREGOING EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.
K. Indemnity
You expressly save and hold us, our subsidiaries, agents, affiliates and licensors to SoftQuad harmless from any and all liability of any kind or nature whatsoever to your customers, distributors and third parties which may arise from your acts under this Agreement.
L. General
(a) Please fill in, sign and return the enclosed registration form to us at the address on it. If the Package does not contain a registration form, follow the registration instructions contained in the Program. Mailing the form or complying with the registration instructions in the Program is proof of your licensing of the Program. If you do not wish us to provide registration particulars to third parties, we will restrict such distribution upon receipt of written notice from you.
(b) THIS AGREEMENT IS THE ENTIRE AGREEMENT WITH RESPECT TO THE PACKAGE AND SUPERSEDES ANY OTHER AGREEMENT OR DISCUSSIONS, ORAL OR WRITTEN. THIS AGREEMENT MAY NOT BE CHANGED OR WAIVED EXCEPT BY A WRITTEN AMENDMENT SIGNED BY YOU AND ONE OF OUR SIGNING OFFICERS. NO ONE ELSE HAS THE AUTHORITY ON OUR BEHALF TO CHANGE OR WAIVE THIS AGREEMENT. IF THE USER MANUAL HAS AN AGREEMENT, IT IS VOID, AS THIS AGREEMENT GOVERNS YOUR USE OF THE PACKAGE.
(c) A waiver by either party of any term or condition of this Agreement will not be deemed a waiver of the term for the future, or of any subsequent breach of it.
(d) The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision and the parties shall substitute for it a valid provision which most closely approximates the intent and economic efect of the invalid provision, or to have the authority which struck down the original clause do so.
(e) This Agreement shall be governed and construed in accordance with the laws of the Province of Ontario, Canada, excluding its conflict of laws provisions, and the parties hereby agree to irrevocably submit to the jurisdiction of the Courts of the Province of Ontario. The Ontario Sales of Goods Act, the Uniform Commercial Code, and the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
(f) No action, regardless of form, arising out of this Agreement, may be brought by you more than two years after the facts giving rise to the cause of action have occurred, whether those facts by that time are known to or reasonably ought to have been discovered by you.
(g) If you are part of, or an agency of, the U.S. Government, the following applies:
The Package: (a) was developed at private expense; (b) is our trade secret, for all purposes of the U.S. Freedom of Information Act and any successor or like statutes; (c) is "commercial computer software" subject to limited use as provided in the contract with the government entity; and (d) is proprietary data belonging solely to us. For units of the U.S. Department of Defense ("DoD"), the Package is provided only with "restricted rights" as defined in DoD Supplement to the Federal Acquisition Regulations 252.227-7301(c)(1)(i) and you are specifically authorized and obligated to include, in any copy or banner display, the following Restricted Rights Legend:
"Restricted Rights Legend
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 SoftQuad Software Inc., c/o 161 Eglinton Avenue East, Suite 400, Toronto, Ontario, Canada M4P1J5. Government personnel using the Licensed Materials other than under a DoD contract or GSA Schedule are hereby notified that use of Licensed Materials is subject to the same or similar restricted rights set out above."
(h) The division of this Agreement into sections and the insertion of headings is for convenience of reference only and shall not affect the construction or interpretation of this Agreement or any part of it.
(i) This Agreement applies to non-English language versions of the Program and is deemed to be in the particular foreign language of the Program.
M. Export Law Assurances
You acknowledge that the Program is subject to restrictions and controls imposed under the export control laws and regulations of Canada and the U.S.A., and any amendments thereof. You certify that neither the Package, the Program nor any direct product thereof is being or will be exported, acquired, shipped, transferred or re-exported, directly or indirectly, to: (i) any country or region prohibited under such laws and regulations. (Currently such regions may include, but are not necessarily limited to: Cuba, the Federal Republic of Yugoslavia (Serbia and Montenegro), Haiti, Iran, Iraq, Libya, North Korea, South Africa (military and police entities), and Syria; (ii) any end user who you know or have reason to believe will utilize them in the design, development or production of nuclear, chemical or biological weapons; or (iii) any end user who has been prohibited from participating in the U.S.A. or Canada export transactions by any federal agency of the U.S.A. or Canadian government. You also acknowledge that the Program may include technical data subject to export and re-export restrictions imposed by U.S.A. of Canadian law.
Should you have any questions about this Agreement, or if you wish to contact us for any reason, please contact us in writing at: 161 Eglinton Avenue East, Suite 400, Toronto, Ontario, Canada M4P1J5.
