This End-User License Agreement ("EULA") is a legal agreement between you (either an individual or a single entity) ("Licensee") and Brave New Software, LLC ("Licensor") for the Brave New Software product accompanying this EULA, which includes computer software and may also include associated media, printed materials, and online or electronic documentation (the "Product"). By installing, copying, or otherwise using the Product, Licensee agrees to be bound by the terms of this EULA. If Licensee does not agree to the terms of this EULA, Licensee may not install, copy or use the Product.
1. Copyright and Trademarks
The Product is copyrighted by Licensor and is protected by United States copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Making unauthorized copies of the Product, in whole or in part, is prohibited by law. No part of the Product may be disassembled, reverse engineered or translated into any human or computer language without prior written permission of Licensor.
The Product may contain or use one or more trademarks and/or service marks of Licensor and third parties (the "Marks"). Licensor does not grant, and use of the Product does not convey, any rights to these Marks to Licensee. Licensee shall not use any of the Marks without the express written permission of its owner.
2. Grant of License
The Product is licensed, not sold, and Licensor retains all rights to, title of and interest in the Product not expressly granted to Licensee under this EULA.
Provided Licensee has paid all applicable fees (license fees and otherwise) for the Product, registered the Product with Licensor and otherwise complied with this EULA, Licensor grants Licensee the following personal, non-exclusive, non-transferable, limited rights (the "License to Use"):
Individual Use: Licensee may install and use the registered Product on any single computer.
If the Product is designated by Licensor as an "Upgrade" product, license, version or copy ("Upgrade Version"), then Licensee may only use the Product if Licensee is also currently a licensed user of the base product to which the Upgrade Version applies. Unless Licensor's documentation for such Upgrade Version specifically provides, Licensee shall not separate the Upgrade Version from the base product, nor transfer them separately. Licensor reserves the sole and exclusive right to set its policies and prices regarding Upgrade Versions, updates and enhancements. All other terms of this EULA apply with equal force to any such Upgrade Versions.
4. Evaluation Versions
If Licensor designates the Product as an "Evaluation" or "Demo" product, license, copy or version ("Evaluation Copy"), then Licensee's rights under this EULA shall extend solely for an evaluation period whose term is set by Licensor and which shall not exceed 30 days, during which Licensee's use is restricted solely to allow Licensee to determine whether to purchase an ongoing license to the Product. Licensee may make a reasonable number of copies of the Evaluation Copy of this Product, including documentation, for internal distribution, provided that any such copies are unmodified and exact. Licensee shall not charge or request donations for any such copies and distribute Evaluation Copies of the Software to third parties without prior written permission of Licensor. Unregistered use of the Product, including documentation, beyond the evaluation period violates Licensor's rights, including but not limited to Licensor's rights under the United States Copyright Act. Licensee acknowledges that any Evaluation Copy is merely a technology demonstration which may not be at the level of performance or compatibility of generally available products from Licensor. Evaluation Copies are provided strictly on an "as is" basis.
5. Reservation of Rights
a. No Reverse Engineering. Licensee may only use software components of the Product in object code form, except for those components provided in source code form with the Product. Licensee shall not disassemble, decompile or reverse engineer the Product or data storage format. Any information obtained in violation of this restriction will be confidential information automatically and irrevocably deemed assigned to and owned exclusively by Licensor.
b. Protection of Licensor's Proprietary Rights. Licensee shall at all times use due diligence to safeguard and protect all of Licensor's confidential and proprietary information pertaining to the Product. Licensee shall ensure that all marks, notices or legends pertaining to the origin, identity or ownership of the Product remain intact, clearly legible and in their original form.
c. No Sublicense Rights. Licensor reserves to itself and prohibits Licensee (directly or indirectly, in whole or in part) from loaning, renting, leasing, sublicensing or otherwise distributing or operating the Product to or for the benefit of any third party, and from altering, adapting, translating or preparing any derivative work of the Licensed Program. The foregoing limitation does not prohibit Licensee from making a Backup Copy per Section 2b above, nor does it prohibit the distribution and use of Evaluation Versions per Section 4 above.
6. Transfer of License
Licensee may not assign all or any part of its rights or obligations under this EULA without Licensor's prior written consent and any attempt to the contrary will be void and a material breach of this EULA. Licensor may withhold such consent in its sole discretion. Licensor may not impose transfer fees as a condition of any permitted transfer. A transfer of this EULA will terminate any right to Licensee's continued possession or use of the Product and Licensee must promptly destroy all remaining copies of the Product in its possession or under its control.
a. Licensor grants Licensee a limited warranty that the Product will perform in substantial accordance with the accompanying documentation for thirty (30) days following Licensee's purchase and receipt of the Product. This is Licensee's only warranty.
b. Unless otherwise stated in this EULA, the Product is provided "as is" without warranty of any kind either express or implied, including but not limited to the implied warranties of merchantability and fitness for a particular purpose.
8. Limitation of Liabilities and Remedies
a. The entire risk arising out of the use or performance of this software remains with Licensee. In no event shall Licensor or any of its suppliers be liable for any lost profits, lost savings, direct, incidental or indirect damages, or other economic or consequential damages, even if they have been advised of the possibility of such damages. This includes damages incurred by Licensee, Licensee's customers and any third party.
b. In no event shall Licensor's or its suppliers' liability under this agreement exceed the sum of any amounts paid hereunder by Licensee to Licensor or its supplier for the License to Use the Product.
c. Licensor's entire liability and Licensee's exclusive remedy for any claim Licensee may have against Licensor shall be, at Licensor's sole option, (i) return of amounts paid for the Product licenses against which a claim of warranty breach is being made; or (ii) repair or replacement of Product which does not conform to the limited warranty in Section 7; provided Licensee returns the nonconforming Product to Licensor.
9. Term and Termination
a. This EULA shall continue in full force and effect in perpetuity, unless terminated earlier in accordance with this or another Section of this EULA. This EULA will terminate automatically if Licensee breaches any provision of it. Licensee may terminate this EULA at any time at Licensee's election, without cost or obligation to Licensor, including any obligation to refund license fees under Section 8.
b. Termination of this EULA will terminate Licensee's right to possess or use the Product. Upon termination for any reason, Licensee shall destroy the original copy and all subsequent copies of the Product and cease all further use of it.
c. Termination shall have no effect on Licensee's obligation to safeguard and protect the proprietary rights of Licensor under Section 5b, disclaimers under Section 7, limitations under Section 8 or continuing assurances made under Section 11.
d. Licensee agrees that legal remedies alone provide inadequate protection of Licensor's intellectual property rights in the Product and that, in addition to other relief, Licensor may obtain temporary and permanent injunctions to enforce those rights.
10. Disputes; Choice of Law
a. Except for certain injunctive relief authorized under Section 9 above, which may be brought at any time, the Licensee and Licensor (the "Parties") agree that all disputes shall be submitted to a single arbitrator under proceedings conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The award of the arbitrator shall include a written explanation of the decision and shall be binding upon the Parties and enforceable in any court of competent jurisdiction. Disputes involving amounts exceeding $100,000 are not subject to arbitration and may be taken directly to court by either party.
b. This EULA shall be governed by and construed in accordance with the substantive laws of the State of California, notwithstanding the conflicts of law provisions of that state or any other jurisdiction. All disputes arising out of this EULA shall be subject to the exclusive jurisdiction of federal and state courts located in Sacramento County, California.
11. Export Regulations
The transfer of technology across national boundaries is regulated by the U.S. Government. Licensee shall not export or re-export the Product without first obtaining any required export license or governmental approval. Licensee not directly or indirectly export or re-export the Licensed Program to any Group Q, S, W, Y or Z country specified in Supplement 1 to Part 770 of the U.S. Export Administration Regulations. This provision and the assurances made herein shall survive termination of this EULA.
12. U.S. Government Restricted Rights
The Product is provided with restricted rights. Use, duplication or disclosure by the United States 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 clause at 48 CFR 52.227-19, as applicable. The Contractor is Brave New Software, LLC; 1947 E. Mary Ave., Visalia, CA 93292.
This EULA constitutes the entire agreement between Licensee and Licensor with respect to the use of the Product and supersedes all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. This EULA may be modified or amended only by a writing signed by an authorized representative of Licensor. Sales representatives and distributors of the Product have no authority to alter this EULA. Any provision of this EULA found by a tribunal of competent jurisdiction to be illegal or unenforceable shall be automatically conformed to the minimum requirements of law and all other provisions shall remain in full force and effect. Waiver of any provision hereof in one instance shall not preclude enforcement of it on future occasions. Headings are for reference purposes only and have no substantive effect.