APPSANYWHERE – END USER LICENCE AGREEMENT
PLEASE READ THESE LICENCE TERMS CAREFULLY
BY INPUTTING YOUR USER NAME AND PASSWORD AND SIGNING INTO APPSANYWHERE YOU AGREE TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS DO NOT SIGN INTO APPSANYWHERE. ALTERNATIVELY, IF ACCESSING THE SOFTWARE BY ALTERNATE MEANS, THEN BY ACCEPTING THIS AGREEMENT YOU ARE AGREEING TO THE TERMS OF THIS AGREEMENT
Who we are and what this agreement does
We, AppsAnywhere Limited, registered in England & Wales at The Foresters Arms, 35 Kirkgate, Sherburn in Elmet, North Yorkshire, LS25 6BH, hereby license you to use AppsAnywhere and related products including AppsAnywhere Client, AppsAnywhere Server and any updates or supplements to it (hereon called “AppsAnywhere”), as permitted in these terms. If you have not accepted each additional EULA separately, and if you are using any of the following associated delivery mechanisms contained within AppsAnywhere, then you will also be required to adhere to the Cloudpaging EULA from Numecent and/or the Parallels EULA from Parallels GmbH as well as any other EULA’s of software delivered by AppsAnywhere or any other delivery mechanisms available from AppsAnywhere.
Different privacy policies and/or EULA’s may apply to each app that you launch using AppsAnywhere Please check the privacy policies applicable to each app that you download.
Please be aware that internet transmissions are never completely private or secure and that any message or information you send using AppsAnywhere may be read or intercepted by others, even if there is a special notice that a particular transmission is encrypted.
Other terms may apply
Other rules, terms and policies may apply to AppsAnywhere.
Operating system requirements
The minimum system requirements, and the operating systems that will support AppsAnywhere, are set out in the Schedule to this agreement.
Please note that any other apps that you may access through AppsAnywhere may have their own separate minimum system requirements (which may be more restrictive than those set out in the Schedule to this agreement).
Support for AppsAnywhere
Support. You should contact your local systems administrator support. If you want to learn more about AppsAnywhere please take a look at our resources online. Please note, we do not provide support directly to end users.
How you may use AppsAnywhere
In return for your agreeing to comply with these terms you may:
- Download and install AppsAnywhere client onto any number of type of devices (subject to the operating system requirements in the Schedule) and view, use and display AppsAnywhere on such devices for your personal purposes only.
- Use AppsAnywhere within any supported browser.
- Launch software applications from within AppsAnywhere subject to any associated EULA’s or license terms.
- Receive and use any free supplementary software code or update of AppsAnywhere incorporating “patches” and corrections of errors as we may in our discretion provide to you.
You may not transfer AppsAnywhere to someone else
We are giving you personally the right to use AppsAnywhere. You may not otherwise transfer or permit third party access to AppsAnywhere whether for money, for anything else or for free. If you sell any device on which AppsAnywhere is installed, you must remove AppsAnywhere from it.
Changes to these terms
We may need to change these terms to reflect changes in law or best practice or to deal with additional features which we introduce.
We endeavour to give you at least 30 days’ notice of any change by notifying you of the change when you next start AppsAnywhere. If you do not accept the notified changes you may not be permitted to continue to use AppsAnywhere.
Update to AppsAnywhere
From time to time we may automatically update AppsAnywhere to improve performance, enhance functionality, reflect changes to the operating system or address security issues. Alternatively, we may ask you to update AppsAnywhere for these reasons.
If you choose not to install such updates or if you opt out of automatic updates you may not be able to continue using AppsAnywhere or you may experience reduced functionality, or level of support.
If someone else owns the device you are using
If you download, stream or install AppsAnywhere onto any device not owned by you, you must have the owner’s permission to do so. You will be responsible for complying with these terms, whether or not you own the device.
We may collect technical data about your device that enables us to deliver a service. We do not use any device information for any other purpose than providing you with support.
By using AppsAnywhere, you agree to us collecting and using limited technical information about the devices you use AppsAnywhere and related software, hardware and peripherals to improve our products and to provide any services to you.
We are not responsible for other websites you link to
AppsAnywhere will contain or enable links to other independent websites which are not provided by us. Such independent sites are not under our control, and we are not responsible for and have not checked and approved their content or their privacy policies (if any).
You will need to make your own independent judgement about whether to use any such independent sites, including whether to buy any products or services offered by them.
You agree that you will:
- not rent, lease, sub-license, loan, provide, or otherwise make available AppsAnywhere in any form, in whole or in part to any person without prior written consent from us. For the avoidance of doubt this includes sharing credentials with anyone or letting them use it under your login;
- not copy AppsAnywhere, except as part of the normal use of AppsAnywhere or where it is necessary for the purpose of back-up or operational security;
- not translate, merge, adapt, vary, alter or modify, the whole or any part of AppsAnywhere, nor permit AppsAnywhere or any part of it to be combined with, or become incorporated in, any other programs, except as necessary to use AppsAnywhere on devices as permitted in these terms;
- not disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of AppsAnywhere nor attempt to do any such things, except to the extent that (by virtue of sections 50B and 296A of the Copyright, Designs and Patents Act 1988) to obtain the information necessary to create an independent program that can be operated with AppsAnywhere or with another program (Permitted Objective), and provided that the information obtained by you during such activities:
- is not disclosed or communicated without our prior written consent to any third party to whom it is not necessary to disclose or communicate it in order to achieve the Permitted Objective; and
- is not used to create any software that is substantially similar in its expression to AppsAnywhere;
- is kept secure; and
- is used only for the Permitted Objective;
- comply with all applicable technology control or export laws and regulations that apply to the technology used or supported by AppsAnywhere.
Acceptable use restrictions
- not use AppsAnywhere in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with these terms, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, such as viruses, or harmful data, into AppsAnywhere or any operating system;
- not infringe our intellectual property rights or those of any third party in relation to your use of AppsAnywhere (to the extent that such use is not licensed by these terms);
- not transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of AppsAnywhere;
- not use AppsAnywhere in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users; and
- not collect or harvest any information or data from our systems or attempt to decipher any transmissions to or from our servers.
Intellectual property rights
All intellectual property rights in AppsAnywhere throughout the world belong to us (or our licensors) and the rights in AppsAnywhere are licensed (not sold) to you. You have no intellectual property rights in, or to, AppsAnywhere other than the right to use it in accordance with these terms.
Our responsibility for loss or damage suffered by you
If we fail to comply with these terms, we are responsible for loss or damage you suffer that is a foreseeable result of our breaking these terms or our failing to use reasonable care and skill. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time you accepted these terms, both we and you knew it might happen.
We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors or for fraud or fraudulent misrepresentation.
If defective digital content that we have supplied damages a device or digital content belonging to you, we will either repair the damage or pay you compensation. However, we will not be liable for damage that you could have avoided by following our advice to apply an update offered to you free of charge or for damage that was caused by you failing to correctly follow installation instructions or to have in place the minimum system requirements advised by us.
We are not liable for business losses. If you use AppsAnywhere for any commercial, business or resale purpose other than its intended use then we will have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
Limitations to AppsAnywhere. What information there is available to you on AppsAnywhere, is provided for general information purposes only. It does not constitute advice on which you should rely. Although we make reasonable efforts to update the information provided by AppsAnywhere, we make no representations, warranties or guarantees, whether express or implied, that such information is accurate, complete or up to date.
Please back-up content and data used with AppsAnywhere. We recommend that you back up any content and data used in connection with AppsAnywhere, to protect yourself in case of problems with AppsAnywhere.
Check that AppsAnywhere is suitable for you. AppsAnywhere has not been developed to meet your individual requirements. Please check that the facilities and functions of AppsAnywhere meet your requirements.
We do not guarantee that AppsAnywhere will be permanently available and we do not guarantee that AppsAnywhere is error free. As such you acknowledge that there may be times when you cannot access AppsAnywhere (or any other apps made available through it) and we will not be liable in respect of any such unavailability.
We may end your rights to use AppsAnywhere if you break these terms
We may end your rights to use AppsAnywhere at any time by contacting you if you have broken these terms in a serious way.
If we end your rights to use AppsAnywhere:
- You must stop all activities authorised by these terms, including your use of AppsAnywhere.
- You must delete or remove AppsAnywhere from all devices in your possession and immediately destroy all copies of AppsAnywhere which you have and confirm to us that you have done this.
We may remotely access your devices and remove AppsAnywhere from them.
We may transfer this agreement to someone else
We may transfer our rights and obligations under these terms to another organisation.
You need our consent to transfer your rights to someone else
You may only transfer your rights or your obligations under these terms to another person if we agree in writing.
No rights for third parties
This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
If a court finds part of this contract illegal, the rest will continue in force
Each of the paragraphs of these terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.
Even if we delay in enforcing this contract, we can still enforce it later
Even if we delay in enforcing this contract, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under these terms, or if we delay in taking steps against you in respect of your breaking this contract, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date.
Which laws apply to this contract and where you may bring legal proceedings
These terms are governed by English law. Legal proceedings in respect of AppsAnywhere may only be commenced in the English courts.
AppsAnywhere (General) Supported Operating Systems:
- Windows 7 +
- Windows Server 2008 +
- Chrome OS
- Mac OS 10.7 +
- iOS 7 +
- Android Jellybean +
AppsAnywhere Client Supported Operating Systems:
- Windows 7 +
- Windows Server 2008 +
- Mac OS 10.7 +
Minimum System Requirements (End-user devices):
- Microsoft .NET Framework 3.5 (will be installed if not already present)
- Window Installer Version 3.1 (required for .NET 3.5)
- Processor 2Ghz
- RAM 2Gb
- Free Hard Disk Space:
- AppsAnywhere – 50Mb
- .Net Framework 3.5 – 610Mb
- Internet connection > 2mbps
- IE 10+
- Safari (Mac)
END USER LICENSE AGREEMENT FOR NUMECENT INC SOFTWARE NUMECENT INC.
("LICENSOR") IS WILLING TO LICENSE THIS SOFTWARE TO YOU, THE “LICENSEE”, ONLY UPON THE CONDITION THAT YOU ACCEPT THE TERMS CONTAINED IN THIS LICENSE. BY ACCEPTING THESE TERMS, YOU ARE INDICATING THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ANY ADDITIONAL TERMS AND CONDITIONS CONTAINED HEREIN, UNDERSTAND THEM, AND AGREE TO BE BOUND BY THEM. IF YOU DO NOT AGREE TO OR UNDERSTAND ALL THESE TERMS, THEN LICENSOR IS UNWILLING TO LICENSE THE SOFTWARE TO YOU.
1. Definitions (as used in this Agreement): (a) "Software" means all software, in object code only, provided by Licensor to you, together with the authorization key contained in the Security device, and all Licensor-authorized updates, replacements or modifications provided to you. (b) "Documentation" means the user guides, reference manuals, installation materials and other written materials (in whatever format, including electronic or hardcopy) relating to the System which Licensor provides to you. (c) "Security device" means the Software "authorization key" packaged by Licensor with the Software (or any Licensor-authorized replacement provided to you) and which contains a unique series of data elements which enables the use of the Software. (d) "System" means a system furnished by Licensor and comprised of Software, Security device, and related Documentation.
2. Limited Use License (a) Subject to the terms and conditions contained in this Agreement, Licensor grants, and you accept, a non-exclusive, non-transferable (except as provided below) license, without the right to sublicense, and right (i) to use the Software only on a single computer, and (ii) to use the Documentation, in each case for your internal purposes only. The Software may only be used by a single user at any time, and may not be used as a networked application. Additional concurrent users will require additional licenses for the Software. You may physically transfer the Software from one computer to another provided that the Software is used on only one computer at a time. Additionally, you may not distribute copies of the Software or the accompanying Documentation to others nor may you modify or translate the Software or Documentation. You may not transfer the Software or this license, except in compliance with Licensor's license transfer procedures, which among other things require the transferee prior to such transfer to agree in writing to be bound by your obligations hereunder, and may in some jurisdictions require the payment of a transfer fee. (b) Notwithstanding the foregoing, you may license the System to a third party for a temporary, defined period provided: (i) you may not license the Software separate from the Security device; (ii) you remain responsible for all of your obligations hereunder; (iii) you ensure that each such third party complies with all obligations hereunder; (iv) you notify Licensor on request of the location of the System; and (v) you indemnify, defend and hold Licensor harmless from and against any claims or liabilities that may arise from your rental of the System. (c) You will take all reasonable steps to safeguard the Software, and the Documentation and to ensure that no unauthorized persons have access to the Software or the Documentation, and that no persons authorized to have such access shall take any action which would be prohibited by this Agreement if taken by you. You will not, directly or indirectly, reverse engineer, disassemble, decompile or otherwise alter the Software (including but not limited to the Security device); provided, however, that (i) if you are located in the European Union or Norway, if reproduction of the code and translation of its form are necessary to obtain the information required to achieve the interoperability of the Software with other programs, you shall inform Licensor in writing accordingly and Licensor shall notify you within twenty (20) business days from receipt of your request that: (A) Licensor will perform the work in order to achieve such interoperability and charge you a reasonable expense allowance for such work, or (B) you yourself are entitled to undertake those actions, but only to the extent required to achieve the interoperability of the Software with other programs; and (ii) if you are not located in the European Union or Norway, this Section 2(c) gives you specific legal rights, and you may also have other rights which vary from jurisdiction to jurisdiction. You will include and will not alter or remove any copyright, patent, trade secret, proprietary and/or other legal notices contained on or in the System, including the Software, Security device, or the Documentation. The existence of any such notices on or in the System shall not be construed as an admission that publication has occurred. (d) You acknowledge that the Software may include features that ensure that your use of the Software complies with the terms of this Agreement. (e) The Software may be accompanied by a Security device, which contains an "authorization key." An authorization key is a unique series of data elements which enables you to access and use the version of the Software licensed to you. Such keys are confidential and non-transferable and must be returned or destroyed by you upon termination of this Agreement, as provided in Section 11. (f) This license is limited to the version of the Software (including features) originally approved by Licensor to be licensed to you, as accessed through the applicable Licensor-configured Security device (or any Licensor-authorized replacement). This license does not extend to any other version, even if such version may be part of the Software, and access to such versions may only be accomplished through a separate Licensor-authorized license accompanied by a separate Licensor-authorized Security device or other authorization key. You acknowledge that it is a breach of this license for you, or anyone acting on your behalf, to modify or alter the Security device configuration to access any version of the Software not originally licensed to you, or to use with the Software any other Security device or authorization key not originally supplied with the Software (or any Licensor-authorized replacement). (g) If you are licensing the System from the licensee who obtained the System from Licensor, you shall be bound by all the terms and conditions of this Agreement to the same extent as such licensee; provided, however, that (i) Licensor makes no warranties to you under Section 7 below; (ii) you shall not be entitled to any Software maintenance and support, if any, provided by Licensor under Section 8 below; and (iii) you shall have no right to relicense the System to any other parties. (h) In addition to the Software, Licensor may provide with the System certain third party software (such as plug-ins) to be used at your own option (the "Third Party Software"). If you decide to use such Third Party Software, your use shall be governed by any applicable third party's license agreement provided to you, an electronic copy of which will be installed in the appropriate product folder on your computer upon installation of the Third Party Software. LICENSOR AND ITS RESELLERS, DISTRIBUTORS AND LICENSORS ARE NOT RESPONSIBLE FOR SUCH THIRD PARTY SOFTWARE AND SHALL HAVE NO LIABILITY FOR YOUR USE OF IT. Where no such agreement is provided to you separately, your use shall be governed by this Agreement.
3. Title. This Agreement is not a sale of the Software, the Documentation or any copy thereof. Licensor and its licensors retain all rights, title, interest, and ownership of the Software and the Documentation, including patents, copyrights, trademarks, trade secrets and other proprietary rights applicable thereto, and all copies, regardless of the form or media on or in which the original or any copy may exist. The Software and the Documentation are protected by United States, Canadian and other applicable laws and by international treaty provisions. Except as stated herein, this Agreement does not grant you any rights to patents, copyrights, trade secrets, trademarks or any other rights in respect of Software, Hardware, and Documentation.
4. Restrictions on Copying. You are hereby licensed to make one copy of the Software in machine-readable form solely for backup purposes, provided that you include and not alter or remove any copyright, patent, trade secret, proprietary and/or other legal notices contained on or in the Software or Documentation. All copies or partial copies of the Software or Documentation, whether in printed, machine-readable or other form, shall be considered part of the Software or Documentation and shall be subject to this Agreement. Except as expressly provided herein, you may not copy, nor encourage or allow copying of, the Software or Documentation. You may not cause or permit the disclosure, copying, licensing, sublicensing, leasing, dissemination or other distribution of the Software or the Documentation by any means or in any form, without the prior written consent of Licensor. You may not use the Software to conduct a service bureau, ASP business or similar business for the benefit of third parties.
5. Confidentiality. You acknowledge that the System contains proprietary and confidential property of Licensor and/or Licensor's licensors embodying trade secrets (collectively, "Confidential Information"). You will not disclose, provide or otherwise make available any such Confidential Information to any person other than your employees and/or consultants who need to have access thereto to carry out their duties and who are bound by appropriate confidentiality or nondisclosure agreements.
6. Government End Users. U.S. GOVERNMENT RESTRICTED RIGHTS. The System was developed at private expense and with no government funds. If any Software or Documentation is acquired by or on behalf of a unit or agency of the U.S. Government, the Government agrees that such Software or Documentation is "commercial computer software" or "commercial computer software documentation" and that, absent a written agreement to the contrary, the Government's rights with respect to such Software or Documentation are limited by the terms of the this License Agreement, pursuant to U.S. Federal Acquisition Regulations Section 12.212(a) and/or Defense Federal Acquisition Regulations Supplement Section 227.7202-1(a), as applicable. The Software is proprietary data, all rights of which are reserved under the copyright laws of the United States, Canada and other countries.
7. Limited Warranty. (a) Licensor warrants solely to you that the System, unmodified by you, will function substantially in accordance with Licensor's published specifications for the period(s) set forth in the applicable warranty policy in effect at the time of licensing when given normal, proper, and intended usage, provided that you implement all releases, enhancements and corrections previously offered to you by Licensor. This warranty does not apply to expendable components, such as, but not limited to, computer diskettes and tapes. Your sole remedy and Licensor's exclusive liability for a breach of this limited warranty shall be, at Licensor's option, the repair or replacement of the non-conforming System. LICENSOR AND ITS RESELLERS, DISTRIBUTORS AND LICENSORS DO NOT WARRANT THAT YOUR USE OF THE SYSTEM WILL BE UNINTERRUPTED OR ERROR-FREE. (b) If Licensor determines that the System, or the component parts thereof, for which you have requested warranty service are not eligible for warranty service, You will pay or reimburse Licensor for all reasonable costs of investigating and responding to such request at Licensor's then prevailing time and materials rates. If Licensor provides repair service or replacement parts that are not covered by the warranty provided in this Section, you will pay Licensor at Licensor's then prevailing time and materials rates. (c) Licensor shall have no obligation to provide warranty or maintenance service in respect of claims resulting, in whole or in part, from (i) catastrophe, fault or negligence, (ii) improper or unauthorized use or repair of the System, (iii) use of any System in a manner for which it was not designed, (iv) causes external to the System such as, but not limited to, power failure or electric power surges, or (v) use of the System in combination with equipment or software not supplied or approved by Licensor. (d) Notwithstanding the above, no warranty shall apply to Hardware, Software or Documentation which is designated as "beta," "limited release," "pre-release," or otherwise as not being subject to warranty. All such Hardware, Software and Documentation is provided "AS IS" AND WITH ALL FAULTS. IN ADDITION, NO WARRANTY APPLIES TO LOST OR STOLEN SECURITY DEVICES. YOU ARE ADVISED TO INSURE YOUR SECURITY DEVICES AGAINST LOSS OR THEFT. (e) EXCEPT AS STATED ABOVE, LICENSOR AND ITS RESELLERS, DISTRIBUTORS AND LICENSORS EACH DISCLAIM, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL WARRANTIES OR CONDITIONS, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SYSTEM (OR ANY COMPONENT PARTS THEREOF), ANY THIRD PARTY SOFTWARE, INCLUDING ANY AND ALL WARRANTIES OF TITLE, NON-INFRINGEMENT OF THIRD PARTY'S RIGHTS, QUALITY, PERFORMANCE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. Some jurisdictions do not allow limitations on disclaiming implied warranties or conditions, so the above limitation may not apply to you. (f) If you have questions about performance of this product, or this limited warranty, you can contact Licensor at Numecent Inc., 15635 Alton Parkway, Suite 100, Irvine, CA 92618, USA (or such other address as Licensor may make available from time to time), or visit www.numecent.com to obtain information on limited warranty performance. (g) This limited warranty gives you specific legal rights, and you may also have other rights which vary from jurisdiction to jurisdiction. Some jurisdictions do not allow the exclusion or limitation of relief, incidental or consequential damages, so the above limitation or exclusion may not apply to you.
8. Software Maintenance (This Section 8 is applicable only if Licensor provides maintenance). Software maintenance charges and options are specified by Licensor from time to time. In the event you purchase Software maintenance, such maintenance shall be subject to the terms and conditions effective on the date of such purchase, and Licensor shall provide the following, plus options, if any, which you purchase, effective immediately upon expiry of the applicable warranty period: (a) You will receive one copy of maintenance releases to the Software and Documentation if and as they are generally made available at no additional charge to Licensor customers which have purchased Licensor software maintenance. Maintenance releases may contain minor functional enhancements and corrections. Maintenance releases do not include upgrades or major product releases. (b) Licensor will use reasonable efforts, including by means of a workaround or telephone hot-line support, to cause Software not covered by Licensor's warranty to perform substantially in accordance with specifications after having been notified by you of non-performance. If Licensor is unable to cause such Software to perform substantially in accordance with such specifications, then your sole remedy and Licensor's exclusive liability is a pro rata refund of the fees you paid for such maintenance for the remainder of the then-current maintenance period. (c) Subject to your having entered into a maintenance and support agreement with Licensor, Licensor will provide maintenance only on the then most current and one immediately prior version of the Software. Licensor's obligation to provide maintenance shall be conditioned on your: using only Licensor-approved products and maintaining the correct operating environment in accordance with requirements stipulated in the applicable System specifications; designating one of your employees at each site to be Licensor's single service contact and allowing Licensor reasonable access to the System and necessary data; promptly installing all changes and/or updates furnished by or on behalf of Licensor; notifying Licensor in writing prior to relocating the System to a permitted location other than the site at which the System is then-currently installed; and being current in all payments to Licensor. (d) In the event you request a field visit to perform maintenance or warranty services, you agree to pay Licensor its then-current charges associated with field visits. (e) EXCEPT AS STATED ABOVE, LICENSOR AND ITS RESELLERS, DISTRIBUTORS AND LICENSORS EACH DISCLAIM, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL WARRANTIES OR CONDITIONS, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, STATUTORY OR OTHERWISE, WITH RESPECT TO SUCH MAINTENANCE, INCLUDING ANY AND ALL WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY'S RIGHTS, QUALITY, PERFORMANCE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
9. Limitation of Liability. THE MAXIMUM LIABILITY OF LICENSOR AND ITS RESELLERS, DISTRIBUTORS AND LICENSORS ARISING OUT OF THE SALE/LICENSE OF THE SYSTEM OR THE USE THEREOF OR THE PROVISION OF MAINTENANCE, WHETHER BASED UPON WARRANTY, CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED (A) WHERE THE CLAIM RELATES SOLELY TO THE SYSTEM, THE ACTUAL PAYMENT MADE BY YOU FOR THE SYSTEM; (B) WHERE THE CLAIM RELATES SOLELY TO MAINTENANCE, THE AMOUNTS PAID BY YOU FOR MAINTENANCE IN THE TWELVE MONTH PERIOD PRIOR TO THE DATE OF THE CLAIM; OR (C) WHERE A CLAIM RELATES BOTH TO THE SYSTEM AND MAINTENANCE, THE AMOUNTS PAID BY YOU DURING THE LAST TWELVE MONTH PERIOD PRIOR TO THE DATE OF THE CLAIM WITH REGARD TO THE SYSTEM AND MAINTENANCE. Some jurisdictions do not allow the limitation of liability to specified amounts, so the above limitations may not apply to you.
10. Exclusion of Damages. IN NO EVENT SHALL LICENSOR AND ITS RESELLERS, DISTRIBUTORS AND LICENSORS BE LIABLE FOR SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, OR FOR LOSS OF DATA OR LOSS OF USE DAMAGES (INCLUDING WITHOUT LIMITATION "DOWNTIME") AND LOST PROFITS, ARISING HEREUNDER OR FROM THE SALE OF THE SYSTEM OR THE LICENSE OF THE SOFTWARE AND DOCUMENTATION OR THE USE OF ANY OF THEM OR THE PROVISION OF MAINTENANCE OR ANY DELAY OR FAILURE TO DELIVER THE SYSTEM OR MAINTENANCE, EVEN IF LICENSOR OR LICENSOR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. Some jurisdictions do not allow the exclusion or limitation of incidental, consequential, special, punitive or indirect damages, so the above limitation or exclusion may not apply to you.
11. Term. This Agreement is effective until terminated. You may terminate the license at any time by returning the Software and all Documentation to Licensor and by removing the Software and all copies thereof from the memory of any computer into which the Software has been transferred. This Agreement shall terminate automatically if you fail to comply with any term or condition contained herein. Within seven days of Licensor's termination of this Agreement, you will return to Licensor the original and all copies of the Software and the Documentation. Any Software you are required to return hereunder includes circuit boards containing Licensor proprietary software, firmware, or other technology. The Security device (which contains proprietary authorization keys) shall also be returned to Licensor, or, at Licensor's option, you may destroy it and certify to Licensor that it has been destroyed.
12. Export. (a) You acknowledge that the Software, Hardware, Documentation and/or technical data associated therewith ("Technical Data") are subject to the export control laws of the United States. You agree that you shall comply with all applicable U.S. export control laws and regulations, and shall not export or re-export the Software, Hardware, Documentation and/or Technical Data, or direct products thereof, except as authorized by U.S. law. (b) Without limiting the foregoing, you acknowledge that you are not a person or entity prohibited from receiving U.S. exports or a person or entity which engages in the development, production, or stockpiling of missiles or nuclear, chemical, or biological weapons. You further acknowledge that (i) you are not located in, and (ii) you are not a national of any country that is restricted or embargoed by the United States government or for which an export license is required under regulations promulgated by the U.S. Department of Commerce. (c) You agree not to export, re-export, or otherwise disclose the Software, Hardware Documentation and/or Technical Data to any national of the above-listed countries, or to any other person or entity prohibited from receiving U.S. exports or to any entity which engages in the development, production, or stockpiling of missiles or nuclear, chemical, or biological weapons. (d) Without limiting any of the foregoing, in the event you export the Software, Hardware, Documentation or Technical Data from the country in which you first received it, you assume the responsibility for compliance with all applicable export and re-export regulations, as the case may be.
13. Respect for Rights and Indemnification. You agree that you shall only use the Software and Documentation in a manner that complies with all applicable laws in the jurisdiction in which you use the Software and Documentation, including but not limited to, applicable restrictions concerning copyright and other intellectual property rights. This Software is intended for use only with properly licensed media, content, and content creation tools. It is your responsibility to ascertain whether any copyright, patent, or licenses are necessary and to obtain any such licenses to duplicate, modify, transmit, distribute, and/or create or compress such media, content or tools. You agree to indemnify, defend, and hold harmless Licensor and each of its officers, directors, employees, subsidiaries and divisions, from and against losses, damages, expenses (including reasonable attorneys' fees), fines, or claims arising from or relating to any claim that the Software and Documentation was used by you in connection with the duplication, modification, transmission or distribution of or any other action relating to any content or materials in violation of another party's rights or in violation of any law. You may not use the Software in conjunction with any device or service designed to circumvent technological measures employed to control access to, or the rights in, a content file or other work protected by the copyright laws of any jurisdiction.
14. Choice of Law; Jurisdiction; Language. (a) This Agreement will be governed by the laws of the State of California, excluding: (i) the application of its conflicts of law rules; (ii) the United Nations Convention on Contracts for the International Sale of Goods; (iii) the 1974 Convention on the Limitation Period in the International Sale of Goods (the "1974 Convention"); and (iv) the Protocol amending the 1974 Convention, done at Vienna April 11, 1980. (b) You and Licensor agree that the exclusive venue shall be the federal and state courts in Orange County, California, United States of America, and each of us submits to the exclusive jurisdiction of such courts. Nothing contained in this paragraph shall prevent either you or Licensor from seeking equitable relief such as an injunction in whatever jurisdiction as may be appropriate.
15. General (a) This Agreement supersedes all prior agreements and understandings between the parties related to the subject matter herein and is intended by the parties to be the complete and exclusive statement of the terms of their Agreement. This Agreement shall not be amended, altered or changed by any purchase order or other instrument submitted by you. If Licensor provides any modification, enhancement, replacement or update for the Software to you, such modification, enhancement, replacement, or update shall be governed by the terms of this Agreement, or any additional or different terms and conditions that may be required by Licensor as a condition to your using such modification, enhancement, replacement or update. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable, and shall not affect the enforceability of any other provision of this Agreement. The waiver of any party of a breach or default under any provision under this Agreement or the failure of such party to exercise its rights under this Agreement in any instance shall not operate or be construed as a continuing waiver or a waiver of any subsequent breach or default. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof (whether or not similar). (b) You shall be responsible for and shall pay, and shall reimburse Licensor on request if Licensor is required to pay, any sales, use, value added (VAT), consumption or other tax (excluding any tax that is based on Licensor's net income), assessment, duty, tariff, or other fee or charge of any kind or nature that is levied or imposed by any governmental authority on the System. (c) Except as expressly provided otherwise herein, the remedies contained herein are cumulative and in addition to any other remedies at law or equity. Licensor's failure to enforce, or waiver of a breach of, any provision hereof shall not constitute a waiver of any other breach of such provision. You acknowledge that a breach by you of Sections 2, 4, or 5 of this Agreement would constitute irreparable harm to Licensor for which a remedy at law would be inadequate and therefore consent to being enjoined from any such breach without requiring Licensor to post a bond. (d) Licensor shall not be considered in default in performance of its obligations hereunder if performance of such obligations is prevented or delayed by acts of God or government, war, riots, acts of civil disorder, labor disputes, failure or delay of transportation or telecommunications, or by vendors or subcontractors, or any other similar cause or causes beyond its reasonable control. (e) The terms and conditions of this Agreement will be held as confidential by both parties hereto, provided, however, that Licensor may cite that you are a user of the System. (f) The System is not fault-tolerant and is not designed, certified, tested, manufactured or intended for use in hazardous environments requiring fail-safe or uninterrupted performance, including without limitation, in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, weapons systems, or disposal of hazardous waste, in which the failure of the System could lead directly or indirectly to death, personal injury, or severe physical or environmental damage ("High Risk Activities"). LICENSOR AND ITS RESELLERS, DISTRIBUTORS AND LICENSORS HAVE NOT MADE ANY EXPRESS WARRANTIES AND SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR HIGH RISK ACTIVITIES. You agree to indemnify and hereby hold Licensor, its licensors and resellers harmless from any claims for losses, costs, damages, expenses, or liability which may arise out of or in connection with the use of the System for High Risk Activities.