END-USER SOFTWARE LICENSE AGREEMENT
IMPORTANT -- READ CAREFULLY: This is a legal agreement between you, the end
user, (either an individual or an entity), and Servertec ("Servertec") for
the software product identified below. This license ("License") contains
rights and restrictions associated with use of the accompanying software
("Software") including, but not limited to, one or more of the following:
source code, object code, dynamic link libraries, static libraries, classes,
byte code, header files, utility programs, makefiles, images and scripts
together with the accompanying documentation and examples. Read the License
carefully before opening the sealed Software package, downloading, installing
or using the Software. By opening the sealed Software package, downloading,
installing or using the Software you agree to be bound by the terms and
conditions of this License. If you do not agree to the terms of this
Agreement, do not open the sealed Software package, do not download, install,
copy or use the Software, return the unopened Software package(s) and all
other materials with proof of payment to your place of purchase within thirty
(30) days for a full refund.
iServer 1.9.0 08/13/2000 Release
The Software is protected by copyright laws and international copyright
treaties, as well as other intellectual property laws and treaties. The
Software is licensed, not sold.
1. Limited License Grant. Subject to payment of applicable license fees,
Servertec grants to you ("Licensee") a non-exclusive, non-transferable
limited license to use the Software. Except for the foregoing, Licensee may
not re-distribute the Software in whole or in part, either separately or
included with a product. You may: use the Software on any single computer;
use the Software on a network, provided that each person accessing the
Software through the network must have a copy licensed to that person; or
copy the Software for archival purposes, provided any copy must contain all
of the original Software's proprietary notices. Additional copies of Software
must be purchased directly from Servertec.
2. Use Definition. The Software is "in use" on a computer when it is loaded
into temporary memory (i.e. RAM) or installed into permanent memory (e.g.
hard disk, CD-ROM, or other storage device) of that computer, except that a
copy installed on a network server for the sole purpose of distribution to
other computers is not "in use".
3. Restrictions. The Software is confidential copyrighted information of
Servertec and title, ownership rights, and intellectual property rights in
the Software and to all copies is retained by Servertec. The Software is
protected by the copyright laws and treaties. Title and related rights in the
content accessed through the Software is the property of the applicable
content owner and may be protected by applicable law. This License gives you
no rights to such content. You may not: permit other individuals to use the
Software except under the terms listed above; permit concurrent use of the
Software; modify, translate, reverse engineer, decompile, decrypt, extract,
disassemble, or create derivative works based on the Software; copy the
Software other than as specified in Section 1 of this License; sell, rent,
lease, grant a security interest in, or otherwise transfer rights to the
Software; or alter or remove any proprietary notices or labels on the
Software. Software may not be leased, assigned, or sublicensed, in whole or
in part, except as specifically authorized in Section 1. Licensee warrants
that it will not use or redistribute the Software for such purposes.
Therefore you must treat the Software like any other copyrighted material and
not reproduce it except that you may either: (a) make one copy of the
Software solely for backup or archival purposes, or (b) transfer the Software
to a single hard disk provided you keep the original solely for backup or
archival purposes. You may not copy any printed materials accompanying the
Software.
4. High Risk Activities. The Software is not fault-tolerant and is not
designed, manufactured or intended for use in on-line control equipment in
hazardous environments requiring fail-safe performance, such as in the
design, construction, operation or maintenance of any aircraft, air traffic,
aircraft navigation, aircraft communications, nuclear facilities, direct or
indirect life support machines, or weapons systems. Servertec and its
suppliers specifically disclaim any express or implied warranty of fitness
for High Risk Activities. Licensee warrants that it will not use or
redistribute the Software for such purposes.
5. Trademarks and Logos. This License does not authorize Licensee to use any
Servertec name, trademark, or logo. Licensee acknowledges that Servertec owns
the iServer trademark and all iServer-related trademarks,
logos and icons and agrees to: (i) to comply with the attached
iServer Trademark Guidelines at
Trademarks;
(ii) not do anything harmful to or inconsistent with Servertec's rights in
the iServer Marks; and (iii) assist Servertec in protecting those
rights, including assigning to Servertec any rights acquired by Licensee in
any iServer Mark.
6. Taxes. All charges and fees paid are exclusive of and do not include any
taxes, duties, or similar charges imposed by any government. Licensee agrees
to pay or reimburse Servertec for all federal, state, dominion, provincial,
or local sales, use, personal property, excise, VAT or other taxes, fees, or
duties arising out of this Agreement or the transactions contemplated by the
Agreement (other than taxes on the net income of Servertec).
Licensee agrees that the amounts to be remitted to Servertec are to be the
actual amounts due without withholding taxes or other assessments by
authorities anywhere in the foreign location. If any withholding tax is
imposed under the laws of a country or other taxing jurisdiction outside of
the United States on any amounts paid to Servertec, such amounts will be
increased by the amount of the withholding tax. Licensee shall be solely
responsible for and shall pay any and all amounts required in the foreign
location to be withheld, charged, deducted, or assessed against such payment
amounts, and will promptly furnish Servertec with certificates evidencing
payment of such amounts.
7. Cooperation and Operation. Licensee shall cooperate to the fullest extent
necessary to enable Servertec or authorized Service Provider to replicate any
problems, determine that the problem resides with the Software, and certify
that the problem has been corrected. Licensee is responsible for selecting an
operator who is qualified to operate the Software on Licensee's own equipment
and is familiar with the information, calculations, and reports that serve as
input and output of the Software. Servertec or authorized Service Provider
reserves the right to refuse assistance or to charge additional fees if an
operator seeks assistance with respect to such background information or any
other matters not directly relating to the operation of the Software.
Licensee is also responsible for ensuring a proper environment and proper
utilities for the computer system on which the Software will operate.
8. Disclaimer of Warranty. Servertec warrants that (a) the Software will
perform substantially in accordance with the accompanying written materials
for a period of ninety (90) days from the date of receipt, and (b) any
Support Services provided by Servertec shall be substantially as described in
applicable written materials provided to you by Servertec, and Servertec
support engineers will make commercially reasonable efforts to solve any
problem issues. Some states and jurisdictions do not allow limitations on
duration of an implied warranty, so the above limitation may not apply to
you. To the extent allowed by applicable law, implied warranties on the
Software, if any, are limited to ninety (90) days.
EXCEPT AS PROVIDED ABOVE, THIS SOFTWARE AND ANY RELATED SERVICES OR
DOCUMENTATION IS PROVIDED ON AN "AS IS" BASIS, WITHOUT A WARRANTY OF ANY
KIND. ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING
WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR NON-INFRINGEMENT, ARE HEREBY EXCLUDED. THE ENTIRE RISK
AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS BORNE BY YOU. SHOULD THE
SOFTWARE PROVE DEFECTIVE, YOU AND NOT SERVERTEC ASSUME THE ENTIRE COST OF ANY
SERVICE AND REPAIR. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART
OF THE AGREEMENT. IN SOME JURISDICTIONS THIS MAY NOT APPLY TO YOU AND YOU MAY
HAVE OTHER LEGAL RIGHTS THAT ARE BY JURISDICTION.
9. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, IN NO EVENT SHALL SERVERTEC OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES
SUFFERED BY LICENSEE OR ANY THIRD PARTY AS A RESULT OF USING OR DISTRIBUTING
SOFTWARE. IN NO EVENT AND UNDER NO CIRCUMSTANCES WILL SERVERTEC OR ITS
SUPPLIERS BE LIABLE FOR ANY LOST REVENUE, PROFIT OR DATA, OR FOR DIRECT,
INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES OR LOSS OF
GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER
COMMERCIAL DAMAGES OR LOSSES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF
LIABILITY, TORT, CONTRACT, OR OTHERWISE, ARISING OUT OF THE USE OF, MISUSE OF
OR INABILITY TO USE SOFTWARE, EVEN IF SERVERTEC HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. IN SOME JURISDICTIONS THIS MAY NOT APPLY TO YOU
AND YOU MAY HAVE OTHER LEGAL RIGHTS THAT ARE BY JURISDICTION.
In no event will Servertec's liability to Licensee, whether in contract, tort
(including negligence), or otherwise exceed the total price paid for the
software or the annual Service Fee paid to Servertec by Licensee for the
twelve (12) months preceding the event giving rise to the claim. No action,
whether in contract or tort including but not limited to negligence, arising
out of or in connection with this Agreement may be brought by either party
more than eighteen (18) months after the cause of action has accrued.
10. Customer Remedies. Servertec's and its suppliers' entire liability and
your exclusive remedy shall be, at Servertec's option, either (a) return of
the price paid, if any, or (b) repair or replacement of the Software that
does not meet Servertec's Limited Warranty. All Software returns and
replacements must include a copy of the original receipt. This Limited
Warranty is void if failure of the Software has resulted from accident,
abuse, or misapplication. Any replacement Software will be warranted for the
remainder of the original warranty period or thirty (30) days, whichever is
longer.
11. Termination. Licensee may terminate this License at any time by
destroying all copies of Software. This License will terminate immediately
without notice from Servertec if Licensee fails to comply with any provision
of this License. Upon such termination, Licensee must destroy all copies of
Software.
12. Export Regulations. Software, including technical data, is subject to
U.S. export control laws, including the U.S. Export Administration Act and
its associated regulations, and may be subject to export or import
regulations in other countries. Licensee agrees to comply strictly with all
such regulations and acknowledges that it has the responsibility to obtain
licenses to export, re-export, or import Software. Software may not be
downloaded, or otherwise exported or re-exported (i) into, or to a national
or resident of, Cuba, Iraq, Iran, North Korea, Libya, Sudan, Syria or any
country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S.
Treasury Department's list of Specially Designated Nations or the U.S.
Commerce Department's Table of Denial Orders.
13. Restricted Rights. Use, duplication or disclosure by the United States
government is subject to the restrictions as set forth in the Rights in
Technical Data and Computer Software Clauses in DFARS 252.227-7013(c) (1)
(ii) and FAR 52.227-19(c) (2) as applicable.
14. Governing Law. Any action related to this License will be governed by
New Jersey law and controlling U.S. federal law. No choice of law rules of
any jurisdiction will apply.
15. Severability. IF ANY OF THE ABOVE PROVISIONS ARE HELD TO BE IN VIOLATION
OF APPLICABLE LAW, VOID, OR UNENFORCEABLE IN ANY JURISDICTION, THEN SUCH
PROVISIONS ARE HEREWITH WAIVED OR AMENDED TO THE EXTENT NECESSARY FOR THE
LICENSE TO BE OTHERWISE ENFORCEABLE IN SUCH JURISDICTION. HOWEVER, IF IN
SERVERTEC'S OPINION DELETION OR AMENDMENT OF ANY PROVISIONS OF THE LICENSE BY
OPERATION OF THIS PARAGRAPH UNREASONABLY COMPROMISES THE RIGHTS OR INCREASE
THE LIABILITIES OF SERVERTEC, SERVERTEC AUTOMATICALLY TERMINATES THE LICENSE
WITHOUT ANY REMEDY TO THE LICENSEE. UPON SUCH TERMINATION, LICENSEE MUST
DESTROY ALL COPIES OF THE SOFTWARE.
16. Breach of Agreement. It is understood and agreed that, notwithstanding
any other provision of this Agreement, Licensee's breach of any of the
provisions of this Agreement will cause Servertec irreparable damage for
which recovery of money damages would be inadequate, and that Servertec will
therefore be entitled to seek timely injunctive relief to protect Servertec's
rights under this Agreement in addition to any and all remedies available at
law.
17. Miscellaneous. This Agreement is the parties' entire agreement relating
to its subject matter. It supersedes all prior or contemporaneous oral or
written communications, proposals, conditions, representations and warranties
and prevails over any conflicting or additional terms of any quote, order,
acknowledgment, or other communication between the parties relating to its
subject matter during the term of this Agreement. No modification to this
Agreement will be binding, unless in writing and signed by an authorized
representative of each party.
18. Should you have any questions concerning this Agreement, or if you desire
to contact Servertec for any reason, please write: Servertec, 18 Oakwood
Avenue, Kearny, NJ, 07032 or e-mail:
info@servertec.com.
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