DO NOT DOWNLOAD, INSTALL OR USE THE CODE PRESENT HOSS (TRIAL) SOFTWARE UNTIL YOU HAVE READ AND ACCEPTED THIS LICENSE AGREEMENT. BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE YOU ACCEPT THIS LICENSE AGREEMENT. IF YOU DO NOT AGREE TO THIS LICENSE AGREEMENT YOU MUST NOT INSTALL OR USE THE SOFTWARE.
BECAUSE THIS IS A DEMONSTRATION LICENSE, ALL OF YOUR LICENSES AND RIGHTS UNDER THIS AGREEMENT WILL EXPIRE 90 DAYS AFTER THE DATE YOU FIRST INSTALL OR USE THE SOFTWARE.
1. Developer. "Developer" is the person, company or entity who uses this Software under the License of this Agreement. The Developer must accept and agree to this Agreement before using the Software.
2. Software. "Software" shall mean the Code Present Hoss (Trial) computer programs provided with this Agreement other than the Microsoft Redistributable Code and other third party redistributable code which accompanies the Software. Developer acknowledges that Hossware, Inc. ("Hossware") (and its licensor(s), if applicable) own the copyrights and other intellectual property in and to the Software.
3. Documentation. "Documentation" means the online documentation and printed documentation, if any, provided to Developer in connection with this Agreement or the Software. Whenever the context reasonably permits, any reference in this Agreement to Software shall also apply to Documentation.
4. License. Subject to the other provisions of this Agreement, Hossware grants to Developer a nonexclusive, nontransferable license (the "License") to use the Software on a single computer. Rights not expressly granted to Developer in this Agreement are reserved by Hossware. The License and all rights of Developer under this Agreement shall terminate 90 days after the date that Developer first installs or uses the Software.
5. Copies. Developer may make copies of the Software provided that any such copy: (a) is created as an essential step in the utilization of the Software on a computer in accordance with the License and this Agreement, or (b) is only for archival purposes to back-up the licensed use of the Software. Developer may also make copies of the Software to the extent reasonably needed to exercise rights under the License or this Agreement. All Hossware trademark and copyright notices must be faithfully reproduced and included on copies made by Developer. Developer may not make any other copies of the Software. The Documentation may be used by Developer, but only in connection with the licensed use of the Software.
6. Protection Of The Software. Except as expressly authorized in this Agreement, Developer may not: (i) disassemble, decompile or otherwise reverse engineer the Software, or (ii) create derivative works based upon the Software, or (iii) rent, lease, sublicense, distribute, transfer, copy, reproduce, modify or timeshare the Software, or (iv) allow any third party to access or use the Software, or (v) modify the Software (including any deletion of code from or addition of code to the Software).
7. Source Code. Software source code is not included in the License or this Agreement. Developer is not entitled to any Software source code.
8. No Warranty. Because Developer is not obligated to pay a license fee for this demonstration License, the Software is provided strictly on an "as is" basis without warranty or guarantee of any kind. All use of, and reliance on, the Software is at the risk of Developer.
9. Disclaimers And Limitations.
(a) Disclaimer Of Warranties. HOSSWARE MAKES NO WARRANTY, PROMISE OR REPRESENTATION NOT EXPRESSLY SET FORTH IN THIS AGREEMENT. HOSSWARE DISCLAIMS AND EXCLUDES ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. HOSSWARE DOES NOT WARRANT THAT THE SOFTWARE WILL SATISFY DEVELOPER'S REQUIREMENTS OR THAT IT IS WITHOUT DEFECT OR ERROR OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED. THIS AGREEMENT GIVES DEVELOPER SPECIFIC LEGAL RIGHTS. DEVELOPER MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION.
(b) Limitation On Liability. THE AGGREGATE LIABILITY OF HOSSWARE ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SOFTWARE (REGARDLESS OF THE FORM OF ACTION OR CLAIM - E.G., CONTRACT, WARRANTY, TORT, STRICT LIABILITY, MALPRACTICE, FRAUD AND/OR OTHERWISE) SHALL NOT EXCEED $100. HOSSWARE SHALL NOT IN ANY CASE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES, OR FOR LOSS OF PROFIT, REVENUE, DATA, OR PROGRAMS, EVEN IF HOSSWARE HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY.
(c) Responsibility For Decisions. Developer is responsible for decisions made and actions taken based on the Software. The Software is designed and intended for use by computer professionals experienced in the uses and limitations of computer software and it is Developer's responsibility to ascertain the suitability of the Software.
(d) Non-Parties. The officers, directors, employees, shareholders and representatives of Hossware are not parties to this Agreement and shall have no obligation or liability to Developer relating to this Agreement or the Software.
10. Sole Remedy And Allocation Of Risk. DEVELOPER'S SOLE AND EXCLUSIVE REMEDY IS SET FORTH IN THIS AGREEMENT. This Agreement defines a mutually agreed-upon allocation of risk and the License fees reflect such allocation of risk.
11. Support. Nothing in this Agreement entitles Developer to any support, maintenance or new versions of the Software. Developer may contact Hossware to determine the availability of support, maintenance and new versions of the Software, and the fees, terms and conditions applicable thereto.
12. Governing Law. This Agreement shall be governed by the laws of the state of Utah and the United States of America without giving effect to conflict or choice of law principles. The parties agree to exclude application of the "United Nations Convention on Contracts for the International Sale of Goods" to this Agreement. Any litigation between the parties shall be conducted exclusively in Utah state courts or the federal district courts within Utah. The parties agree and submit to such exclusive jurisdiction and venue.
13. Entire Agreement. This Agreement sets forth the entire understanding and agreement between the parties relating to the subject matter of this Agreement and may be amended only in a writing signed by both parties. No vendor, distributor, dealer, retailer, sales person or other person is authorized by Hossware to modify this Agreement or to make any warranty, representation or promise which is different than, or in addition to, the warranties, representations or promises of this Agreement.
14. Termination. The License shall automatically terminate if Developer materially breaches this Agreement. Upon termination of the License, Developer shall cease all use of the Software and shall destroy all copies of the Software within the possession or control of Developer and shall return the original Software media and Documentation, if any, to Hossware.
15. Government End Users. A "U.S. Government End User" shall mean any agency or entity of the government of the United States. If Developer is a U.S. Government End User, then the following shall apply. The Software is a "commercial item," as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the Software with only those rights set forth herein. The Software (including related documentation) is provided to U.S. Government End Users: (a) only as a commercial end item; and (b) only pursuant to this License Agreement.
16. Export Laws. Developer shall not export, disclose or distribute any Software in violation of any applicable laws or regulations, including the export laws and regulations of the United States, and shall comply with all such laws and regulations.
17. Construction. In the construction and interpretation of this Agreement, no rule of strict construction shall apply against either party.
18. Severability. If any provision in this Agreement is invalid or unenforceable or contrary to applicable law, such provision shall be construed, limited, or altered, as necessary, to eliminate the invalidity or unenforceability or the conflict with applicable law, and all other provisions of this Agreement shall remain in effect.
