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1 $Id: LICENSE,v 1.9 2002/04/08 21:46:05 crowland Exp crowland $
3 END USER SERVICE AGREEMENT FOR PSIONIC TECHNOLOGIES
5 NOTICE TO END USER:
7 THIS IS A BINDING CONTRACT. BY DOWNLOADING OR USING THIS SOFTWARE YOU ACCEPT
8 ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH THE
9 TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT USE THE SOFTWARE AND REMOVE
10 AND DESTROY ANY FILES YOU HAVE DOWNLOADED.
12 This Psionic Technologies, Inc. ("Psionic Technologies") End User Service
13 Agreement ("Agreement") is a legal agreement between you (either an
14 individual or an entity) ("You" or "Your") and Psionic Technologies
15 (formerly "Psionic Software") and sets forth the terms and conditions
16 governing Your use of Psionic Technologies' proprietary services and
17 products, in object code, including updates and upgrades, if any, provided
18 by Psionic Technologies, and related explanatory materials and documentation
19 (collectively, the "Software").
21 The Software is being provided to you free of charge. Therefore, You agree
22 to assume all risks associated with the use or inability to use the
25 The Software is protected by copyright laws and international treaties, as
26 well as other intellectual property laws and treaties.
28 1. GRANT OF LICENSE. Subject to the terms and conditions of this Agreement,
29 Psionic Technologies hereby grants to You, and You accept, a nonexclusive,
30 royalty-free, perpetual and nontransferable license to use only for Your
31 internal use. You agree that You will not assign, sublicense, transfer,
32 pledge, lease, rent, or share Your rights under this Agreement. You may make
33 unlimited archival copies of the Software, provided that You affix to such copy
34 all copyright, confidentiality, and proprietary notices that appear on the
35 original. Except as authorized under this paragraph, no copies of the
36 Software or any portions thereof may be made by You or any person under Your
37 authority or control. Psionic Technologies reserves all rights not expressly
38 granted to You under this Agreement.
40 2. LICENSE RESTRICTIONS. Notwithstanding any provisions in this Agreement to
41 the contrary, You may not (a) modify or make derivative works of
42 the Software for non-internal use, except to the extent inherent in the
43 use of the Software, (b) reproduce or use the Software except as expressly
44 permitted herein. You may redistribute the Software in its entirety as long as
45 you include a copy of this Agreement with the redistributed Software. Since
46 some of the Software is distributed in source code form, no part of the Software,
47 including the source code and object code, may be copied or used in any other
48 software or service where a fee is charged without commercial licensing.
49 Notwithstanding the above, this software may be distributed in any freely available
50 operating system package provided that a fee is not charged for the software's
51 functionality or feature directly.
53 3. PROPRIETARY RIGHTS. The Software is licensed, not sold. All rights, title
54 and interests in the Software (including but not limited to any images,
55 photographs, animations, video, audio, music, text and "applets"
56 incorporated into the Software), and any copies of the Software are owned by
57 Psionic Technologies. You may not remove the copyright or other proprietary
58 notices from the Software.
60 4. CONFIDENTIALITY. The Software contains trade secrets and other
61 confidential and proprietary information of Psionic Technologies and its
62 licensors. You agree to hold in confidence, not disclose (except with
63 Psionic Technologies' express written consent) and not use (except as
64 expressly provided herein) the Software, and ensure that there is no breach,
65 compromise or violation by Your employees, consultants, or independent
66 contractors of such confidentiality obligations and Psionic Technologies'
67 trade secrets. You recognize and agree that there is no adequate remedy at
68 law for a breach of this Section 4, that such breach would irreparably harm
69 Psionic Technologies for which monetary damages would not be an adequate
70 remedy and that Psionic Technologies is entitled to equitable relief
71 (including, without limitation, injunctions) with respect to any such breach
72 or potential breach in addition to any other remedies.
74 5. NO WARRANTY. ANY USE BY YOU OF THE SOFTWARE IS AT YOUR OWN RISK. THE
75 SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. PSIONIC
76 TECHNOLOGIES IS NOT OBLIGATED TO PROVIDE ANY SUPPORT FOR THE SOFTWARE OR
77 PATCHES, UPDATES OR UPGRADES TO THE SOFTWARE. PSIONIC TECHNOLOGIES AND ITS
78 LICENSORS DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESS, STATUTORY OR
79 IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE,
80 MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SOME
81 JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO THE ABOVE
82 EXCLUSION MAY NOT APPLY TO YOU. TO THE EXTENT THAT SUCH EXCLUSIONS DO NOT
83 APPLY TO YOU, ALL WARRANTIES REQUIRED BY LAW SHALL EXTEND FOR ONLY SUCH
84 PERIOD AS REQUIRED BY LAW OR THIRTY (30) DAYS FROM YOUR INITIAL ACCEPTANCE
85 OF THESE TERMS, WHICHEVER PERIOD IS SHORTER. THE SOFTWARE IS NOT DESIGNED OR
86 LICENSED FOR USE IN ANY NUCLEAR, AVIATION, MASS TRANSIT, MEDICAL APPLICATION
87 OR IN ANY OTHER INHERENTLY DANGEROUS APPLICATIONS. YOU WARRANT THAT YOU WILL
88 NOT USE THE SOFTWARE FOR THESE PURPOSES.
91 6. NO LIABILITY FOR DAMAGES. In no event shall Psionic Technologies or its
92 licensors be liable for any damages whatsoever (including, without
93 limitation, incidental, direct, indirect, special and consequential damages,
94 damages for loss of business profits, business interruption, loss of
95 business information, loss or corruption of data, or other pecuniary loss),
96 whether based on contract, tort (including negligence), strict liability or
97 other legal or equitable theory, arising out of the use or inability to use
98 the Software or arising out of or related to this Agreement, even if advised
99 of the possibility of such damages. BECAUSE SOME JURISDICTIONS DO NOT ALLOW
100 THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL
101 DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY. TO THE EXTENT THAT SUCH
102 LIMITATION DOES NOT APPLY TO YOU, IN NO EVENT SHALL PSIONIC TECHNOLOGIES'
103 AND ITS LICENSOR'S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS
104 AGREEMENT, INCLUDING, BUT NOT LIMITED TO THE USE OF OR INABILITY TO USE THE
105 SOFTWARE, EXCEED $100.00.
107 7. YOUR INDEMNITIES. You will indemnify and hold Psionic Technologies
108 harmless from all actual liabilities, damages, losses, costs and expenses
109 (including, but not limited to, attorneys' fees) incurred by Psionic
110 Technologies to the extent arising out of any legal action based on (a) any
111 breach of this Agreement by You; (b) any claim by a third party that Psionic
112 Technologies, due to Your use of the Software, is liable for contributory
113 infringement of a copyright, patent, trade secret, or other proprietary
114 right of a third party, provided that this indemnity will not apply to any
115 claim to the extent the Software as delivered by Psionic Technologies
116 infringes on a proprietary right of a third party; or (c) any claim by a
117 third party that Psionic Technologies, due to Your use of or inability to
118 use the Software, is liable to a third party in tort or under statutory
119 liability, including, without limitation, defamation, invasion of privacy,
120 or similar theories of law.
122 8. TERMINATION. This Agreement shall remain effective until terminated by
123 either party. Psionic Technologies reserves the right, at its sole
124 discretion, to terminate this Agreement immediately if You have breached the
125 terms and conditions hereof or of Your Psionic Technologies and Service
126 License Agreement or Web Site User Agreement. You may terminate this
127 Agreement at any time by ceasing to use the Software. Upon termination of
128 this Agreement for any reason, You shall cease using the Software and remove
129 and destroy all copies of the Software in Your possession. The provisions of
130 Sections 3, 4, 5, 6, 7, 8, 9, 11 and 14 shall survive termination.
132 9. GOVERNING LAW. The parties expressly agree that the rights and
133 obligations of each will be governed by the laws of the State of Texas
134 excluding its choice of law rules. You hereby irrevocably consent to the
135 nonexclusive jurisdiction and venue of the federal and state courts located
136 in Travis County, Texas, with respect to any dispute arising out or related
137 to this Agreement and agree not to commence or prosecute any claim or
138 proceeding relating to any such dispute other than in the aforementioned
139 courts. The parties expressly agree that the rights and obligations of each
140 will not be governed by the U.N. Convention on Contracts for the
141 International Sale of Goods.
143 10. THIRD PARTY BENEFICIARIES. You are hereby notified that persons and
144 entities which have licensed software to Psionic Technologies for inclusion
145 in the Software are third party beneficiaries to this Agreement as it
146 applies to their respective software included in the Software.
148 11. EXPORT. You represent and warrant that you are entitled under United
149 States export laws and regulations to obtain a copy of and use the Software
150 pursuant to the terms of this Agreement. You agree to comply with all export
151 laws and restrictions and regulations of the United States Department of
152 Commerce or other United States agency or authority, and not to directly or
153 indirectly export, or allow the export or re-export of the Software or
154 derivatives of the Software or any copy or any direct product thereof in
155 violation of any such restrictions, laws or regulations, or without all
156 required licenses and authorizations.
158 12. US GOVERNMENT RESTRICTED RIGHTS. If You are an agency, department, or
159 other entity of the United States Government, the use, duplication,
160 reproduction, release, modification, disclosure or transfer of the Software,
161 manuals, or any technical specifications, or any related documentation of
162 any kind, including technical data ("Software and documentation"), is
163 restricted in accordance with Federal Acquisition Regulation ("FAR") 12.212
164 for civilian agencies and Defense Federal Acquisition Regulation Supplement
165 ("DFARS") 227.7202 for military agencies. The Software and documentation is
166 commercial computer software and commercial computer software documentation.
167 The use of the Software and documentation is further restricted in
168 accordance with the terms of this Agreement, or any modification thereto.
170 13. NO ASSIGNMENT. You may not assign or otherwise transfer in whole or in
171 part or in any manner any rights, obligations, or any interest in or under
172 this Agreement without Psionic Technologies' prior written consent and any
173 attempted assignment will be void. A merger or other acquisition by a third
174 party will be treated as an assignment.
176 14. MISCELLANEOUS. If any provision of this Agreement shall be held illegal
177 or unenforceable, that provision shall be limited or eliminated to the
178 minimum extent necessary so that this Agreement shall otherwise remain in
179 full force and effect, and enforceable. Any waivers or amendments shall be
180 effective only if made in writing. This Agreement is the complete and
181 exclusive understanding between You and Psionic Technologies and supersedes
182 and cancels all prior and contemporaneous written and oral agreements and
183 communications relating to the subject matter of this Agreement. Psionic
184 Technologies' failure to enforce any provision of this Agreement shall not
185 be deemed a waiver of such provision.
187 15. NOTICE. Should You have any questions concerning this Agreement, or if
188 You desire to contact Psionic Technologies for any reason, please write to
189 Psionic Technologies at Psionic Technologies, Inc., 7501B North Capital of
190 Texas Hwy, Austin, Texas 78731 U.S.A or send e-mail to: email@example.com.
192 Psionic Technologies is a trademark of Psionic Technologies, Inc.
194 © 2002, Psionic Technologies, Inc. All rights reserved.