Important Notice: This License Agreement Supersedes Any Other Printed or Electronic License Agreement Accompanying the Mactell Software Product You Have Acquired.
BY INSTALLING THE SOFTWARE, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT INSTALL THE SOFTWARE. (IF APPLICABLE, YOU MAY RETURN THE PRODUCT TO THE PLACE OF PURCHASE FOR A FULL REFUND.)
MACTELL CORPORATION SOFTWARE END USER LICENSE AGREEMENT
REDISTRIBUTION OR RENTAL NOT PERMITTED
This Agreement sets forth the terms and conditions of your use of the accompanying Mactell software product(s) (the "Software"). As used in this Agreement, "Mactell" shall mean Mactell Corporation. For purposes of this Agreement, "Licensor" shall be defined as Mactell Corporation.
LICENSE GRANT. Licensor grants you a non-exclusive and non-transferable license to use the Software and any accompanying documentation ("Documentation"), subject to the limitations below. If the Software is Mactell PowerJolt Control Utility Software, Vision3D Software, PowerDRIVE, etc.. there is no fee for this license. The license granted under this Agreement does not grant you any right to any enhancement or update to the Software. You are not entitled to hard-copy documentation, technical support, or telephone assistance with any Mactell Software. In addition, if the Software was included with a third party product or service, you may use the Software only with such product or service.
LIMITATIONS ON USE.
With respect to all Software, you may not:
* modify, translate, reverse engineer, decompile, disassemble (except and
solely to the extent an applicable statute expressly and specifically
prohibits such restrictions), or create derivative works based on the
Software;
* rent, lease, grant a security interest in, or otherwise transfer rights
to the Software; or
* remove or alter any trademark, logo, copyright or other proprietary
notices, legends, symbols or labels in the Software, or in copies you
have made of the Software.
The following additional restrictions apply. You may only:
* make a single copy of the Software for archival purposes,
and the copy must contain all of the original Software's
proprietary notices.
DISCLAIMER OF WARRANTY FOR SOFTWARE. Software are provided on an "AS IS" basis, without warranty of any kind, including without limitation the warranties that the Software are free of defects, merchantable, fit for a particular purpose or non-infringing. The entire risk as to the quality and performance of the Software is borne by you. Should the Software prove defective in any respect, you and not Licensor or its suppliers assume the entire cost of any service and repair. In addition, the security mechanisms implemented by the Software have inherent limitations, and you must determine that the Software sufficiently meet your requirements. This disclaimer of warranty constitutes an essential part of this Agreement. No use of the Software is authorized hereunder except under this Disclaimer.
LIMITED WARRANTY FOR Software. If license fees have been paid, Licensor warrants that for a period of thirty (30) days from the date of acquisition, the Software, if operated as directed, will substantially achieve the functionality described in the Documentation. Licensor does not warrant, however, that your use of the Software will be uninterrupted or that the operation of the Software will be error-free or secure. In addition, the security mechanisms implemented by the Software have inherent limitations, and you must determine that the Software sufficiently meets your requirements. Licensor also warrants that the media containing the Software, if provided by Licensor, is free from defects in material and workmanship and will so remain for thirty (30) days from the date you acquired the Software. Licensor's sole liability for any breach of this warranty shall be, in Licensor's sole discretion: (i) to replace your defective media or Software; or (ii) to advise you how to achieve substantially the same functionality with the Software as described in the Documentation through a procedure different from that set forth in the Documentation; or (iii) for individual consumers, if the above remedies are impracticable, to refund the license fee you paid for the Software (which would also include returning associated hardware.) Repaired, corrected, or replaced Software and Documentation shall be covered by this limited warranty for the period remaining under the warranty that covered the original Software, or if longer, for thirty (30) days after the date (a) of delivery to you of the repaired or replaced Software, or (b) Licensor advised you how to operate the Software so as to achieve substantially the same functionality described in the Documentation.
Only if you inform Licensor of your problem with the Software during the applicable warranty period and provide evidence of the date you purchased a license to the Software will Licensor be obligated to honor this warranty. Licensor will use reasonable commercial efforts to repair, replace, advise or, for individual consumers, refund pursuant to the foregoing warranty within thirty (30) days of being so notified.
If any modifications are made to the Software by you during the warranty period; if the media is subjected to accident, abuse, or improper use; or if you violate the terms of this Agreement, then this warranty shall immediately terminate. This warranty shall not apply if the Software is used on or in conjunction with hardware or software other than the unmodified version of hardware and software with which the Software was intended to be used as described in the Documentation.
THIS IS A LIMITED WARRANTY, AND IT IS THE ONLY WARRANTY MADE BY LICENSOR OR ITS SUPPLIERS. LICENSOR MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF THIRD PARTIES' RIGHTS. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE ABOVE LIMITED WARRANTY PERIOD. MOREOVER, IN NO EVENT WILL WARRANTIES PROVIDED BY LAW, IF ANY, APPLY UNLESS THEY ARE REQUIRED TO APPLY BY STATUTE NOTWITHSTANDING THEIR EXCLUSION BY CONTRACT. NO DEALER, AGENT, OR EMPLOYEE OF LICENSOR IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS LIMITED WARRANTY.
TITLE. Title, ownership rights, and intellectual property rights in the Software and Documentation shall remain in Mactell Corporation. You acknowledge such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with Mactell's or its suppliers' ownership of or rights with respect to the Software and Documentation. The Software and Documentation are protected by copyright and other intellectual property laws and by international treaties. Title and related rights in the content accessed through the Software is the property of the applicable content owner and is protected by applicable law. The license granted under this Agreement gives you no rights to such content.
TERMINATION. This Agreement and the license granted hereunder will terminate automatically if you fail to comply with the limitations described herein. Upon termination, you must destroy all copies of the Software and Documentation. Your obligations to pay accrued charges and fees shall survive any termination of this Agreement.
EXPORT CONTROLS. None of the Software or underlying information or technology may be downloaded or otherwise exported or reexported (i) into (or to a national or resident of) Cuba, Iraq, Libya, Sudan, North Korea, Iran, Syria or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders. By downloading or using the Software, you are agreeing to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country or on any such list. In addition, you are responsible for complying with any local laws in your jurisdiction which may impact your right to import, export or use the Software, and you represent that you have complied with any regulations or registration procedures required by applicable law to make this license enforceable.
LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER TORT, CONTRACT, OR OTHERWISE, SHALL LICENSOR OR ITS SUPPLIERS OR RESELLERS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES. IN NO EVENT WILL LICENSOR BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE AMOUNT LICENSOR RECEIVED FROM YOU FOR A LICENSE TO THE SOFTWARE, EVEN IF LICENSOR SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM LICENSOR'S NEGLIGENCE TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT APPLY TO YOU.
HIGH RISK ACTIVITIES. The Software is not fault-tolerant and is not designed, manufactured or intended for use or resale as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Software could lead directly to death, personal injury, or severe physical or environmental damage ("High Risk Activities"). Accordingly, Licensor and its suppliers specifically disclaim any express or implied warranty of fitness for High Risk Activities.
MISCELLANEOUS. This Agreement represents the complete agreement concerning the license granted hereunder and may be amended only by a writing executed by both parties. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable.
U.S. GOVERNMENT END USERS. 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.
