THE FOLLOWING LICENSE AGREEMENT APPLIES TO YOU. BY OPENING THE SEALED PACKET(S) CONTAINING THE SOFTWARE, YOU INDICATE YOUR ACCEPTANCE OF THE FOLLOWING SOFTWARE LICENSE AGREEMENT.
This is a legal agreement between you (either an individual or an entity) and Executive Software International, Inc., a California corporation ("ESI"). By opening the sealed software packages and/or by using ESI's DISKEEPER Server for Windows NT software, you agree to be bound by the terms of this Agreement. If you do not agree to the terms of this Agreement, promptly return the disk package and accompanying items (including printed materials and binders or other containers) to the place you obtained them for a full refund.
1. GRANT OF LICENSE.
This Software License Agreement ("License") permits you to use one copy of ESI's DISKEEPER Server for Windows NT software and ESI's associated user documentation ("Software") on one computer running Microsoft Windows NT. With respect to a network, Licenses must be obtained for each computer. If you have multiple Licenses for the Software, then at any time you may have as many copies of the Software in use as you have Licenses. The Software is "in use" on a computer when it is loaded into the temporary memory (i.e., RAM) or installed into the 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".
2. COPYRIGHT.
The Software is owned by ESI or its suppliers and is protected by United States copyright laws and international treaty provisions. Therefore, you must treat the Software like any other copyrighted material (e.g. a book or musical recording) 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 the user documentation provided with the Software, except for your own authorized use.
3. OTHER RESTRICTIONS.
This License is your proof of license to exercise the rights granted herein and must be retained by you. You may not rent or lease the Software, but you may transfer the Software and user documentation on a permanent basis provided you retain no copies and the recipient agrees to the terms of this Agreement. You may not reverse engineer, decompile, or disassemble the Software, except to the extent that the foregoing restriction is expressly prohibited by applicable law. If the Software is an update or has been updated, any transfer must include the most recent update and all prior versions.
4. LIMITED WARRANTY.
ESI warrants that (a) the Software will perform substantially in accordance with the user documentation for a period of ninety (90) days from the date of receipt. Any implied warranties on the Software are limited to ninety (90) days. Some states/jurisdictions do not allow limitations on duration on an implied warranty, so the above limitation may not apply to you. This limited warranty is void if failure of the Software has resulted from accident, abuse or misapplication.
5. CUSTOMER REMEDIES.
ESI's and its suppliers' entire liability and your exclusive remedy shall be, at ESI's option, either (a) return of the price paid, or (b) replacement of the Software that does not meet ESI's limited warranty and which is returned to ESI with a copy of your 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. Outside the United States, neither these remedies nor any product support services offered by ESI are available without proof of purchase from an authorized non-U.S. source.
6. NO OTHER WARRANTIES.
ESI DOES NOT WARRANT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ESI AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO THE SOFTWARE AND THE ACCOMPANYING WRITTEN MATERIALS. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHERS WHICH VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION.
7. NO LIABILITY FOR CONSEQUENTIAL DAMAGES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ESI OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE ESI PRODUCT, EVEN IF ESI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
8. U.S. GOVERNMENT RESTRICTED RIGHTS.
The Software and documentation are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the 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 Executive Software International, Inc., 701 North. Brand Boulevard, 6th Floor, Glendale, California 91203-1242
9. CALIFORNIA LAW.
This Agreement is governed by the laws of the State of California. Should any of the provisions of this License be declared invalid by any court of competent jurisdiction, the balance of the License will remain in full force and effect.
Should you have any questions concerning this Agreement, or if you desire to contact ESI for any reason, please contact your supplier or:
Executive Software International, Inc.
701 North Brand Boulevard, 6th Floor
Glendale, California 91203-1242
(818) 547-2050
DISKEEPER is a registered trademark owned by Executive Software International, Inc.
WINDOWS NT is a trademark of Microsoft Corporation
SOFTWARE LICENSE AGREEMENT DISKEEPER(r) SERVER for WINDOWS NT(tm)
Executive Software is an Affirmative Action Employer
