NITRIQ SOFTWARE END-USER LICENSE AGREEMENT
IMPORTANT: THIS AGREEMENT (or "EULA") IS A LEGAL
AGREEMENT BETWEEN THE PERSON, COMPANY, OR ORGANIZATION THAT HAS
LICENSED THIS SOFTWARE ("YOU" OR "CUSTOMER") AND
NITRIQ. BY INSTALLING AND USING THE SOFTWARE, CUSTOMER
ACCEPTS THE SOFTWARE AND AGREES TO THE TERMS OF THIS
AGREEMENT. READ IT CAREFULLY BEFORE COMPLETING THE
INSTALLATION PROCESS AND USING THE SOFTWARE. BY
INSTALLING AND/OR USING THE SOFTWARE, YOU ARE CONFIRMING YOUR
ACCEPTANCE OF THE SOFTWARE AND AGREEING TO BECOME BOUND BY THE
TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE
BOUND BY THESE TERMS, OR DO NOT HAVE AUTHORITY TO BIND CUSTOMER TO
THESE TERMS, THEN DO NOT INSTALL AND/OR USE THE SOFTWARE AND RETURN
THE SOFTWARE TO YOUR PLACE OF PURCHASE FOR A FULL REFUND IN
ACCORDANCE WITH ITS REFUND POLICIES.
THIS EULA SHALL APPLY ONLY TO THE SOFTWARE SUPPLIED BY NITRIQ
HEREWITH REGARDLESS OF WHETHER OTHER SOFTWARE IS REFERRED TO OR
DESCRIBED HEREIN.
The SOFTWARE is protected by copyright laws and international
copyright treaties, as well as other intellectual property laws and
treaties. The SOFTWARE is licensed, not sold.
1. Definitions
(a) "Free Edition"
means a version of the SOFTWARE, so identified, to be used only to
review, demonstrate and evaluate the SOFTWARE. The Free
Edition may have limited features, and may lack the ability
for the end-user to save the end product.
(b) "NITRIQ" means
Nitriq, LLC, and its licensors, if any.
(c) "Person" means natural
person and not a fictitious entity.
(d) "SOFTWARE"
means only the NITRIQ software program(s) and third party software
programs, in each case, supplied by NITRIQ herewith, and
corresponding documentation, associated media, printed materials,
and online or electronic documentation. Any updates to
such SOFTWARE which you are entitled to receive and that has been
provided to you by NITRIQ shall also mean SOFTWARE for purposes of
this Agreement.
2. GRANT OF LICENSE
The SOFTWARE is licensed as follows:
(a) A license for the Software may
not be shared, installed or used concurrently on different
computers. Except solely for the purpose of installing
the Software on a computer as described in subsections (i) - (iii),
a license for the Software may not be accessed and used via a
server or network storage device. The Software is designed for any
version of Microsoft Windows that has the .Net Framework 3.5 SP1
installed. NITRIQ grants you the right to install the Software only
on computers running the operating system for which the Software is
designed.
(i) If and only if
the SOFTWARE is Free Edition: NITRIQ grants you the right to
install and use the SOFTWARE on as many computers as you wish
provided that the use is in compliance with this Agreement.
(ii) If and only if the
SOFTWARE is Pro Edition: NITRIQ grants a person named on the
license the right to install and use the SOFTWARE on as many
computers as the named person uses and the SOFTWARE can only be
used by the named person.
(iii)
If and only if the SOFTWARE is Console Edition: NITRIQ
grants you the right to install and use the Software on a single
computer; OR install and store the Software on a storage device,
such as a network server, used only to install the Software on your
other computers over an internal network, provided you have a
license for each separate computer on which the Software is
installed and run.
(b) You may make one copy of the
Software in machine-readable form solely for backup purposes. You
must reproduce on any such copy all copyright notices and any other
proprietary legends on the original copy of the Software. You
may not sell or transfer any copy of the Software made for backup
purposes.
(c) You agree that NITRIQ may audit
your use of the Software for compliance with the terms of this
agreement at any time, upon reasonable notice. In the event that
such audit reveals any use of the Software by you other than in
full compliance with the terms of this EULA, you shall reimburse
NITRIQ for all reasonable expenses related to such audit in
addition to any other liabilities you may incur as a result of such
non-compliance.
(d) Your license rights under this
EULA are non-exclusive.
3. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS
(a) Other than as set forth in
Section 1, you may not make or distribute copies of the SOFTWARE,
or electronically transfer the SOFTWARE from one computer to
another over a network.
(b) You may not alter, merge,
modify, adapt or translate the SOFTWARE, or decompile, reverse
engineer, disassemble, or otherwise reduce the SOFTWARE to a
human-perceivable form.
(c) Unless otherwise provided
herein, you may not rent, lease, or sublicense the SOFTWARE.
(d) Unless otherwise provided
herein, you may not modify the SOFTWARE or create derivative works
based upon the SOFTWARE.
(e) You may not export the SOFTWARE
in any country prohibited by the United States Export
Administration Act and the regulations thereunder.
(f) You may receive the SOFTWARE in
more than one medium but you shall only install or use one
medium. Regardless of the number of media you receive,
you may use only the medium that is appropriate for the server or
computer on which the SOFTWARE is to be installed.
(g) You shall not use the SOFTWARE
to develop any product having the same primary function as the
SOFTWARE.
(h) In the event that you fail to
comply with this EULA, NITRIQ may terminate the license and you
must destroy all copies of the SOFTWARE (with all other rights of
both parties and all other provisions of this EULA surviving any
such termination).
(i) You must not remove or alter any
copyright notices on any and all copies of the SOFTWARE.
(j) NITRIQ may provide you with
support services related to the SOFTWARE ("Support Services"). Any
supplemental software code provided to you as part of the Support
Services shall be considered part of the SOFTWARE and subject to
the terms and conditions of this EULA.
4. OWNERSHIP
The foregoing license gives you limited license to use the
SOFTWARE. NITRIQ and its suppliers retain all right, title and
interest, including all copyright and intellectual property rights,
in and to, the Software (as an independent work and as an
underlying work serving as a basis for any application you may
develop), and all copies thereof. All rights not specifically
granted in this EULA, including Federal and International
Copyrights, are reserved by NITRIQ and its suppliers.
5. LIMITED WARRANTY AND DISCLAIMER
(a) NITRIQ PROVIDES NO
REMEDIES OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, FOR THE
SOFTWARE. THE SOFTWARE IS PROVIDED "AS IS".
(b) NITRIQ AND ITS SUPPLIERS
DISCLAIM ALL OTHER WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS,
IMPLIED, OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE. ALSO, THERE IS NO WARRANTY OF
NON-INFRINGEMENT AND TITLE OR QUIET ENJOYMENT. NITRIQ DOES NOT
WARRANT THAT THE SOFTWARE IS ERROR-FREE OR WILL OPERATE WITHOUT
INTERRUPTION. NO RIGHTS OR REMEDIES REFERRED TO IN ARTICLE 2A OF
THE UCC WILL BE CONFERRED ON YOU UNLESS EXPRESSLY GRANTED HEREIN.
THE SOFTWARE IS NOT DESIGNED, INTENDED OR LICENSED FOR USE IN
HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING
WITHOUT LIMITATION, THE DESIGN, CONSTRUCTION, MAINTENANCE OR
OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR
COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR
WEAPONS SYSTEMS. NITRIQ SPECIFICALLY DISCLAIMS ANY EXPRESS OR
IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES. NITRIQ does not
warrant or assume responsibility for the accuracy or completeness
of any information, text, graphics, links or other items contained
within the SOFTWARE. NITRIQ makes no warranties respecting any harm
that may be caused by the transmission of a computer virus, worm,
time bomb, logic bomb, or other such computer program. NITRIQ
further expressly disclaims any warranty or representation to
Authorized Users or to any third party.
(c) IF APPLICABLE LAW
REQUIRES ANY WARRANTIES WITH RESPECT TO THE SOFTWARE, ALL SUCH
WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE
DATE OF DELIVERY.
(d) NO ORAL OR WRITTEN
INFORMATION OR ADVICE GIVEN BY NITRIQ, ITS DEALERS, DISTRIBUTORS,
AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE
THE SCOPE OF ANY WARRANTY PROVIDED HEREIN.
(e) (USA only) SOME
STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE
ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU
SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT
VARY FROM STATE TO STATE.
6. Exclusive Remedy
Your exclusive remedy under the preceding is to return the
SOFTWARE to the place you acquired it, with a copy of your receipt
and a description of the problem. Provided that any
non-compliance with the above warranty is reported in writing to
NITRIQ no more than ninety (90) days following delivery to you,
NITRIQ will use reasonable commercial efforts to supply you with a
replacement copy of the SOFTWARE that substantially conforms to the
documentation, provide a replacement for defective media, or refund
to you your purchase price for the SOFTWARE, at its option. NITRIQ
shall have no responsibility if the SOFTWARE has been altered in
any way, if the media has been damaged by misuse, accident, abuse,
modification or misapplication, or if the failure arises out of use
of the SOFTWARE with other than a recommended hardware
configuration. Any such misuse, accident, abuse,
modification or misapplication of the SOFTWARE will void the
warranty above. THIS REMEDY IS THE SOLE AND
EXCLUSIVE REMEDY AVAILABLE TO YOU FOR BREACH OF EXPRESS OR IMPLIED
WARRANTIES WITH RESPECT TO THE SOFTWARE AND RELATED
DOCUMENTATION.
7. LIMITATION OF LIABILITY
(a) NEITHER NITRIQ NOR
ITS SUPPLIERS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY
INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL
DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY
TO USE EQUIPMENT OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS,
BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR
INABILITY TO USE, THE SOFTWARE AND BASED ON ANY THEORY OF LIABILITY
INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING
NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF NITRIQ OR ITS
REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE
FAILED OF ITS ESSENTIAL PURPOSE.
(b) NITRIQ TOTAL LIABILITY
TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED
TO THE GREATER OF $100 OR THE AMOUNT PAID BY YOU FOR THE SOFTWARE
THAT CAUSED SUCH DAMAGE.
(c) (USA only) SOME
STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR
INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR
EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL
RIGHTS THAT VARY FROM STATE TO STATE.
(d) THE FOREGOING
LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO THE WARRANTIES
AND DISCLAIMERS ABOVE AND ALL OTHER ASPECTS OF THIS
EULA.
8. LIMITATION OF USE
Under no circumstances may the CUSTOMER use the SOFTWARE to
analyze any other assembly or executable where the malfunction of
such assembly or executable could result in the loss of life or
limb.
9. Basis of Bargain
The Limited Warranty and Disclaimer, Exclusive Remedies and
Limited Liability set forth above are fundamental elements of the
basis of the agreement between NITRIQ and you. NITRIQ would not be
able to provide the SOFTWARE on an economic basis without such
limitations. Such Limited Warranty and Disclaimer,
Exclusive Remedies and Limited Liability inure to the benefit of
NITRIQ licensors.
10. GENERAL
This EULA shall be governed by the internal laws of the State of
Iowa, without giving effect to principles of conflict of
laws. You hereby consent to the exclusive jurisdiction
and venue of the state courts sitting in Polk County, Iowa or the
federal courts in the Southern District of Iowa to resolve any
disputes arising under this EULA. In each case this
EULA shall be construed and enforced without regard to the United
Nations Convention on the International Sale of Goods.
This EULA contains the complete agreement between the parties
with respect to the subject matter hereof, and supersedes all prior
or contemporaneous agreements or understandings, whether oral or
written. You agree that any varying or additional terms contained
in any purchase order or other written notification or document
issued by you in relation to the SOFTWARE licensed hereunder shall
be of no effect. The failure or delay of NITRIQ to exercise any of
its rights under this EULA or upon any breach of this EULA shall
not be deemed a waiver of those rights or of the breach.
No NITRIQ dealer, agent or employee is authorized to make any
amendment to this EULA unless such amendment is in writing and
signed by a duly authorized representative of NITRIQ.
If any provision of this EULA shall be held by a court of
competent jurisdiction to be contrary to law, that provision will
be enforced to the maximum extent permissible, and the remaining
provisions of this EULA will remain in full force and effect.