THIS STANDARD END USER LICENSE AGREEMENT (EULA) DESCRIBES YOUR RIGHTS WITH RESPECT TO THE SOFTWARE AND ITS COMPONENTS.
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OWNERSHIP, LICENSE GRANT
This is a license agreement and not an agreement for sale. We, Smart Innovations Inc., reserve ownership of all intellectual property rights inherent in or relating to the Software, which include, but are not limited to, all copyright, patent rights, all rights in relation to registered and unregistered trademarks (including service marks), confidential information (including trade secrets and know-how) and all rights other than those expressly granted by this EULA.
Subject to the payment of the fee required and subject to the terms and conditions of this EULA, We grant to You a revocable, non-transferable, and non-exclusive license (i) for Designated User(s) (as defined below) within Your organization to install and use the Software on any workstations used exclusively by such Designated User and (ii) for You to install and use the Software in connection on a pre-defined set of domains and/or sub-domains on a limited number of servers, solely in connection with utiliation of the Software in accordance with Sections 3 and 4 below. This license is not sub-licensable except as explicitly set forth herein. “Designated User(s)” shall mean Your employee(s) acting within the scope of their employment.
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PERMITTED USES, SOURCE CODE, MODIFICATIONS
When We provide You with source code, You may create Modifications of the original Software, where Modification means: a) any addition to or deletion from the contents of a file included in the original Software or previous Modifications created by You, or b) any new file that contains any part of the original Software or previous Modifications. While You retain all rights to any original work authored by You as part of the Modifications, We continue to own all copyright and other intellectual property rights in the Software. You and Your Designated Users are the only parties allowed to perform tasks enumerated under Section 2 of this License Agreement. Should You decide to outsource some or all of the tasks enumerated under Section 2 of this License Agreement, You may only do so after obtaining Our written approval prior to engaging with anyone outside Your Designated Users.
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DISTRIBUTION
You may not distribute the Software in any applications, frameworks, or elements (collectively referred to as an “Application” or “Applications”) that You develop using the Software in accordance with this License Agreement, because such distribution violates the restrictions set forth in Section 4 of this . You must not remove, obscure or interfere with any copyright, acknowledgment, attribution, trademark, warning or disclaimer statement affixed to, incorporated in or otherwise applied in connection with the Software.
You are required to ensure that the Software is not re-used by or with any applications other than those with which You distribute it as permitted herein. For example, You may not install and You are not permitted to use the Software on servers and/or virtual machines and/or domains and/or sub-domains that are not defined subsequent to this License Agreement. In such cases, You will owe Us royalties for illegal distribution of the Software in accordance with this License Agreement.
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PROHIBITED USES
You may not, without Our prior written consent, re-distribute the Software or Modifications other than by including the Software or a portion thereof within Your own product, which must have substantially different functionality than the Software or Modifications and must not allow any third party to use the Software or Modifications, or any portions thereof, for software development or application development purposes. You are explicitly not allowed to re-distribute the Software or Modifications as part of any product that can be described as a development toolkit or library, an application builder, a website builder or any product that is intended for use by software, application, or website developers or designers. You may not change or remove the copyright notice from any of the files included in the Software or Modifications.
You may not re-distribute the Software as part of a product, "appliance" or "virtual server". You may not redistribute the Software on any server which is not directly under Your control.
UNDER NO CIRCUMSTANCES MAY YOU USE THE SOFTWARE FOR A PRODUCT THAT IS INTENDED FOR SOFTWARE OR APPLICATION DEVELOPMENT PURPOSES.
YOU MAY NOT CHARGE ANY USERS OF OUR SOFTWARE ANY FEES OR SUBSCRIPTIONS IN ANY FORM OF CURRENCY TO USE OUR SOFTWARE OR ITS MODIFICATIONS WITHOUT ENTERING INTO A ROYALTY AGREEMENT WITH US.
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TERMINATION
This EULA and Your right to use the Software and Modifications will terminate immediately without notice if You fail to comply with the terms and conditions of this EULA. Upon termination, You agree to immediately cease using and destroy the Software or Modifications, including all accompanying documents. The provisions of Sections 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 will survive any termination of this EULA.
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DISCLAIMER OF WARRANTIES
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE AND OUR SUPPLIERS DISCLAIM ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, WITH REGARD TO THE SOFTWARE. WE DO NOT GUARANTEE THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, AND YOU ACKNOWLEDGE THAT IT IS NOT TECHNICALLY PRACTICABLE FOR US TO DO SO.
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LIMITATION OF LIABILITIES
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE OR OUR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR ANY OTHER PECUNIARY LAW) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, OUR ENTIRE LIABILITY UNDER ANY PROVISION OF THIS LICENSE AGREEMENT SHALL BE ZERO U.S. DOLLARS,
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VERIFICATION
We or a certified auditor acting on Our behalf, may, upon its reasonable request and at its expense, audit You with respect to the use of the Software. Such audit may be conducted by mail, electronic means, or through an in-person visit to Your place of business. Any such in-person audit shall be conducted during regular business hours at Your facilities and shall not unreasonably interfere with Your business activities. We shall not remove, copy, or redistribute any electronic material during the course of an audit. If an audit reveals that You are using the Software in a way that is in material violation of the terms of the EULA, then You shall pay Our reasonable costs of conducting the audit. In the case of a material violation, You agree to pay Us any amounts owing that are attributable to the unauthorized use. In the alternative, We reserve the right, at Our sole option, to terminate the licenses for the Software.
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THIRD PARTY SOFTWARE
The Software may contain third party software which requires notices and/or additional terms and conditions. Such required third party software notices and/or additional terms and conditions are located in the NOTICES file accompanying the Software distribution (also available at https://www.epicemis.com/licensing/third-party.aspx), and are made a part of and incorporated by reference into this Agreement. By accepting this EULA, you are also accepting the additional terms and conditions, if any, set forth therein.
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PAYMENT AND TAXES
Each party shall pay all taxes (including, but not limited to, sales taxes, Value-Added Taxes (VAT), and/or taxes based upon its income) or levies imposed on it under applicable laws, regulations, and tax treaties as a result of this EULA and any payments made hereunder (including those required to be withheld or deducted from payments).
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MISCELLANEOUS
The license granted herein applies only to the version of the Software available when purchased in connection with the terms of this EULA. Any previous or subsequent license granted to You for use of the Software shall be governed by the terms and conditions of the agreement entered in connection with purchase of that version of the Software. You agree that you will comply with all applicable laws and regulations with respect to the Software, including without limitation all export and re-export control laws and regulations.
While redistributing the Software or Modifications thereof, You may choose to offer acceptance of support, warranty, indemnity, or other liability obligations and/or rights consistent with this EULA. However, in accepting such obligations, You may act only on Your own behalf and on Your sole responsibility, not on Our behalf. You agree to indemnify, defend, and hold Us harmless from and against any liability incurred by, or claims asserted against, Us (i) by reason of Your accepting any such support, warranty, indemnity or additional liability; or (ii) arising out of the use, reproduction or distribution of Your Application, except to the extent such claim is solely based on the inclusion of the Software therein.
You agree to be identified as a customer of ours and You agree that We may refer to You by name, trade name and trademark, if applicable, and may briefly describe Your business in our marketing materials and Website.
You may not assign this EULA without Our prior written consent, which will not be unreasonably withheld. This EULA will inure to the benefit of Our successors and assigns.
You acknowledge that this EULA is complete and is the exclusive representation of our agreement. No oral or written information given by Us or on our behalf shall create a warranty or collateral contract, or in any way increase the scope of this EULA in any way, and You may not rely on any such oral or written information. No term or condition contained in any purchase order shall apply unless expressly accepted by Us in writing.
There are no implied licenses or other implied rights granted under this EULA, and all rights, save for those expressly granted hereunder, shall remain with Us and our licensors. In addition, no licenses or immunities are granted to the combination of the Software and/or Modifications, as applicable, with any other software or hardware not delivered by Us to You under this EULA.
By accepting this EULA, You hereby accept to adhere to Our COPPA Compliance Policy and GDPR Compliance Policy, unless these policies contradict local laws and regulations. If any provision in this EULA shall be determined to be invalid, such provision shall be deemed omitted; the remainder of this EULA shall continue in full force and effect. If any remedy provided is determined to have failed for its essential purpose, all limitations of liability and exclusions of damages set forth in this EULA shall remain in effect.
We may modify this EULA at Our own discretion.
This EULA is governed by the law of the State of Delaware, United States (notwithstanding conflicts of laws provisions), and all parties irrevocably submit to the jurisdiction of the Court of Chancery in the State of Delaware of the United States of America and further agree to commence any litigation which may arise hereunder in the Delaware Court of Chancery.
If the Software or any related documentation is licensed to the U.S. Government or any agency thereof, it will be deemed to be “Commercial Computer Software” or “Commercial Computer Software Documentation”, pursuant to DFAR Section 227.7202 and FAR Section 12.212. Any use of the Software or related documentation by the U.S. Government will be governed solely by the terms of this EULA.
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CONTACT INFORMATION
In certain cases, You may want to Contact Us through our Website or contact us at:
Smart Innovations Inc.
Legal Department
1032 E Brandon Boulevard #1550
Brandon, Florida 33511-5509
United States
Tel: +1 (813) 322-2780
legal@EpicEMIS.org