Radmin 3.5 Server End User License Agreement
NOTICE TO USER:
THIS IS A CONTRACT. AT THE END, YOU WILL BE ASKED TO ACCEPT THIS AGREEMENT AND CONTINUE TO INSTALL OR, IF YOU DO NOT WISH TO ACCEPT THIS AGREEMENT, TO DECLINE THIS AGREEMENT, IN WHICH CASE YOU WILL NOT BE ABLE TO USE, INSTALL OR OPERATE THE PRODUCT, AS DEFINED BELOW. BY INSTALLING THIS SOFTWARE YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT.
This Electronic End User License Agreement (the "Agreement") is a legal agreement between you (either an individual or an entity), the licensee, and Famatech Corp. (collectively, the "Company"), regarding the software and service titled Radmin 3.5 Server that you about to download, downloaded, or otherwise obtained through other resources or media such as CD-ROMs, floppy disks, or though a network in object code form or other related services, including without limitation a) all of the contents of the files, disk(s), CD-ROM(s) or other media with which this Agreement is provided (the "Software"), and b) all successor upgrades, revisions, patches, enhancements, fixes modifications, copies, additions or maintenance releases of the Software, if any, licensed to you by the Company (collectively, the "Updates") provided that the Updates shall not include a new subsequent releases of the Radmin bearing a new first numeral such as 4.0 or 5.0 ("New Releases") but include any minor revisions of the Radmin 3.5 Server version indicated by a change in the decimal numeral, such as 3.3 or 3.4, and c) related user documentation and explanatory materials or files provided in written, "online" or electronic form (the "Documentation" and together with the Software and Updates, the "Product"). You are subject to the terms and conditions of this End User License Agreement whether you access or obtain the Product directly from the Company, or through any other source. For purposes hereof, "you" means the individual person installing or using the Product on his or her own behalf; or, if the Product is being downloaded or installed on behalf of an organization, such as an employer, "you" means the organization for which the Product is downloaded or installed and it is represented hereby that such organization has authorized the person accepting this agreement to do so on its behalf. For purposes hereof the term "organization", without limitation, includes any partnership, limited liability company, corporation, association, joint stock company, trust, joint venture, labor organization, unincorporated organization, or governmental authority.
By accessing, downloading, storing, installing, loading, copying the Product into the memory of a computer ("Installing"), and connecting to the Product, including transmitting and receiving text, images, voice chat or other electronic communications (each a "Connection" or "Connecting") or otherwise benefiting from using the functionality of the Product in accordance with the Documentation (together with Installing, "Operating" or "Operate"), you agree to be bound by the terms of this Agreement.
If you do not agree to the terms and conditions of this Agreement, the Company is unwilling to license the Product to you. In such event, you may not Operate or use the Product in any way.
BEFORE YOU PUT A CHECKMARK by the statement "I agree with the above terms and conditions" and CLICK ON THE "NEXT" BUTTON, CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOUR CLICK OF THE "I AGREE" CHECKBOX IS A SYMBOL OF YOUR SIGNATURE AND BY CLICKING ON THE "I AGREE" BUTTON, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT AND AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE "EXIT" BUTTON AND THE SOFTWARE WILL NOT BE INSTALLED ON YOUR COMPUTER. This Product will not install on your computer unless or until you accept the terms of this Agreement. You may also receive a copy of this Agreement by contacting the Company at: www.radmin.com/support/feedback.php
| 1. | Proprietary Rights and Non-Disclosure. | ||
| 1.1. | Ownership Rights. You agree that the Product and the authorship, systems, ideas, methods of operation, documentation and other information contained in the Product, are proprietary intellectual properties and/or the valuable trade secrets of the Company or its suppliers and/or licensors and are protected by civil and criminal law, and by the law of copyright, trade secret, trademark and patent of the United States, other countries and international treaties. You may use trademarks only insofar as to identify printed output produced by the Product in accordance with accepted trademark practice, including identification of trademark owner’s name. Such use of any trademark does not give you any rights of ownership in that trademark. The Company and/or its suppliers own and retain all right, title, and interest in and to the Product, including without limitations any error corrections, enhancements, Updates or other modifications to the Software, whether made by the Company or any third party, and all copyrights, patents, trade secret rights, trademarks, and other intellectual property rights therein. Your possession, installation or use of the Product does not transfer to you any title to the intellectual property in the Product, and you will not acquire any rights to the Product except as expressly set forth in this Agreement. All copies of the Product made hereunder must contain the same proprietary notices that appear on and in the Product. Except as stated herein, this Agreement does not grant you any intellectual property rights in the Product and you acknowledge that the License, as further defined herein, granted under this Agreement only provides you with a right of limited use under the terms and conditions of this Agreement. | ||
| 1.2. | Source Code. You acknowledge that the source code for the Product is proprietary to the Company or its suppliers and/or licensors and constitutes trade secrets of the Company or its suppliers and/or licensors. You agree not to modify, adapt, translate, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Product in any way. | ||
| 1.3. | Confidential Information. You agree that, unless otherwise specifically provided herein the Product, including the specific design and structure of individual programs and the Product, constitute confidential proprietary information of the Company or its suppliers and/or licensors. You agree not to transfer, copy, disclose, provide or otherwise make available such confidential information in any form to any third party. For purposes hereof, "License Key" shall mean a file or a unique sequence of digit and/or symbols provided to you by the Licensor confirming the purchase of the license from the Licensor, which may carry the information about the License, i.e. its type, the user name and the number of licenses purchased, and enabling the full functionality of the Product in accordance with the License granted under this Agreement. You agree to implement reasonable security measures to protect such confidential information provided however, that you may make and distribute unlimited copies of the Software in object code only, including copies for commercial distribution, as long as each copy that you make and distribute contains this Agreement subject to end user’s acceptance before the first use, the Software installer, and the same copyright and other proprietary notices pertaining to this Software that appear in the Software. If you download the Software from the Internet or similar on-line source, you must include the copyright notices resident on the Software with any on-line distribution and on any media you distribute that includes the Software. | ||
| 1.4. | No Modification. You agree not to modify or alter the Product in any way. You may not remove or alter any copyright notices or other proprietary notices on any copies of the Product. | ||
| 2. | Grant of License. | ||
| 2.1. | License. The Company grants you the non-exclusive and non-transferable license to store, load, install, execute, and display ("to Use") the specified version of the Software on a specified number of computers, workstations, personal digital assistants, ‘smart phones’, mobile phones, hand-held devices, or other electronic devices for which the software was designed and on which it was originally installed by you (each a "Client Device"), pursuant to the terms and conditions of this Agreement ("License")and you hereby agree and accept such License as follows: | ||
| a). | Trial Version. If you have received, downloaded and/or installed a trial version of the Product and are hereby granted an evaluation license for the Software and you may Use the Product only for evaluation purposes and only during the single applicable evaluation period of thirty (30) days, unless otherwise indicated, from the date of the initial installation. Any use of the Product for other purposes or beyond the applicable evaluation period is strictly prohibited, provided however that, subject to the restrictions contained herein, you may copy and distribute a trial version of the Software without any modifications whatsoever to any third party subject to this Agreement. | ||
| b). | Single License. Upon payment for the License and registration of the Product, you are granted a non-exclusive and non-transferable License to install and Use one (1) copy of the Product and during the Term of this Agreement, subject to the payment of the applicable fees and your compliance with the terms hereof, permits you to Use one (1) copy of the specified version of the Product, on one Client Device provided that you and any of your employees, if any, may simultaneously create up to a maximum of five (5) Connections to the Product without regard to as to how many your organization’s employeesare actually so Connected, and further provided that for purposes of Operating the Product the additional software called Radmin Viewer may be needed. Notwithstanding anything to the contrary herein, Radmin Viewer is subject to a separate End User License Agreement. Additionally, the individual licensing terms may specify other terms, conditions and restrictions of Using of the Product. | ||
| c). | Help Desk License. If the Product is licensed with "Help Desk" license terms specified in the applicable product invoicing or packaging for the Product, you may install and Operate as many copies of the Product on the number of Client Devices owned and/or operated by your client as such "Help Desk" license terms specify provided that for purposes of Operating the Products installed on the Client Devices of your clients, the additional Components, as defined herein, shall only be installed on the computers of your organization ("Connection Terminals") and used solely for providing remote technical support and "help desk" services to your clients, provided that you may simultaneously create up to a maximum of five (5) Connections to the Product from any of your Connection Terminals. If the Product is licensed with "Help Desk" license terms to a third party licensee specified in the applicable product invoicing or packaging for the Product, you hereby represent that you are an authorized client or an authorized service provider of such licensee and that you are authorized to install and Operate this Product on behalf of such licensee as provided herein. You must have a reasonable mechanism in place to ensure that (i) the number of Client Devices on which the Product has been installed does not exceed the number of licenses you have obtained, (ii) your client does not independently Operate the Product for any other purposes except for your performance of "Help Desk" services to such client, and (iii) any such copy installed on your client’s Client Device is uninstalled and deleted upon the termination of this Agreement. You shall include this End User License Agreement with the Product and shall require each of your clients to enter into the End User License Agreement, electronically or otherwise, as a condition precedent to the first useof the Product. | ||
| d). | Grant of Multiple Licenses. If you have purchased multiple licenses for the Product, as reflected the License Key File granted to you by the Company, then the number of multiple licenses and the licensing terms reflected in the License Key shall determine the number of copies of the Product you may have, the permitted uses, and the number of Client Devices on which you may Use the Product provided that unless the type of the License and explicit licensing terms and the License Key provides otherwise, each purchased license entitles you to install and Use the Product on one (1) original Client Devices and you may simultaneously create up to a maximum of five (5) Connections to the Product from any of your Connection Terminals. The Company reserves all rights not expressly granted herein. | ||
| e). | Additional Client Access Licenses (CALs). If you have purchased an additional CAL for the Product, you may simultaneously create one (1) additional Connection to the Product from any of your Connection Terminals for each CAL so acquired. | ||
| f). | For the avoidance of doubt the term "original" or "originally installed" used in this Section 2.1 or elsewhere in this Agreement, means that the License is valid only for the Client Device on which the Product was installed and in case you desire to Operate the Product on a different Client Device, regardless of the reason, a separate License must be purchased from the Company for Operating the Product on such other Client Device, i.e. the License is not transferable to a new Client Device. If you have replaced some hardware parts or components of your Client Device and have any questions as to whether your Client Device is still considered to be "original" within the meaning of this Agreement, you may refer to the criteria published on support.radmin.com. | ||
| 2.2. | Remote Access. The Product contains various technologies that enable other applications of third parties installed on a Client Device (the "Host Client Device") to be Used or Used remotely from one or more other Client Devices. You may need to review your license agreements relating to other applicable third parties’ applications or products to which you may be able to obtain remote access using the Product in order to ascertain your compliance with the restrictions and limitations of the use of such third parties’ applications or products, including the use through remote access. You are solely responsible for compliance with such third parties’ rights and obtaining all necessary third parties’ licenses or consents. | ||
2.3. | Components. Depending on a license you have chosen, in order to Operate the Product you may need additional components, including without limitation Radmin 3.5 Viewer (the "Component").Notwithstanding anything to the contrary herein, components that you receive as part of the Software may have its own license agreements relating to the Component or the Product as a whole (each, a "Component Agreement"). In the event of inconsistencies between this Agreement and any Component Agreement, the terms of the Component Agreement shall control except for Confidential Information and Intellectual Property provisions. | ||
| 2.4. | Multiple Environment Product; Multiple Language Product; Dual Media Product; Multiple Copies; Bundles. If you use different versions of the Product or different language editions of the Product, if you receive the Product on multiple media, if you otherwise receive multiple copies of the Product, or if you received the Product bundled with other software, the total permitted number of your Client Devices on which all versions of the Product are installed shall correspond to the number of licenses you have obtained from the Company provided that unless the licensing terms and the License Key provides otherwise, each purchased license entitles you to install and Use the Product on one (1) original Client Device. You may not rent, lease, sublicense, lend or transfer any versions or copies of the Product regardless of whether you use the Product or not. You also may not, subsequent to the original installation of the Product on the original Client Device, install the Product on any other Client Device for any reason. | ||
| 2.5. | Updates. During the Term of this Agreement, you may download Updates to the Product when and as the Company publishes them in its website or through other online services. Notwithstanding any provision to the contrary herein, nothing is this Agreement shall be construed as to grant you any rights or licenses with regard to the New Releases of the Product or to entitle you to any New Release. This Agreement does not obligate the Company to provide any Updates. Notwithstanding the foregoing, any Updates that you may receive become part of the Product and the terms of this Agreement apply to them (unless this Agreement is superceded by a further Agreement accompanying such Update or modified version of to the Product). | ||
| 2.6. | Term and Termination.The term of this Agreement ("Term") shall begin when you download or install the Product (whichever is earlier) and shall continue, unless otherwise terminated pursuant hereto, in perpetuity or for the term specified in the License granted hereunder. The Company may terminate this Agreement by offering you a superseding Agreement for the Product or any replacement or modified version of or upgrade or New Release of the Product and conditioning your continued use of the Product or such replacement, modified or upgraded version or New Release on your acceptance of such superseding Agreement. This Agreement may be also terminated by the Company immediately and without notice if you fail to comply with any of your obligation or conditions of this Agreement. Without prejudice to any other rights, this Agreement will terminate automatically if you fail to comply with any of the limitations or other requirements described herein. Upon any termination or expiration of this Agreement, you must immediately cease use of the Product and destroy all copies of the Product. | ||
| 2.7. | No Rights Upon Termination. Upon termination of this Agreement you will no longer be authorized to Operate or use the Product in any way | ||
| 2.8. | Material Terms and Conditions. You specifically agree that each of the terms and conditions of this Section 2 are material and that failure of you to comply with these terms and conditions shall constitute sufficient cause for Company to immediately terminate this Agreement and the License granted under this Agreement. The presence of this Section 2.8 shall not be relevant in determining the materiality of any other provision or breach of this Agreement by either party hereto. | ||
| 2.9. | Upgrade. If this copy of the Product is a New Release as defined herein and provided to you, along with the new License Key File, as an upgrade from any prior versions of the Company’s Remote Administrator software (the "Original Product") to this Product, you must possess a valid full license to the Original Product and accept the relevant License Upgrade Agreement relating to an upgrade from the Original Product to the Product in order to Operate the upgrade copy of the Product. | ||
| 2.10. | No Obligation to Upgrade. You are not obligated to upgrade for any reason, and should carefully consider the advantages of upgrading before doing so. If you choose not to upgrade, you may still use your current version of the software and you will still be entitled to any Updates that may be released for your current version according to your original end user license agreement. | ||
| 3. | Restrictions. | ||
| 3.1. | No Transfers. Under no circumstances you shallsell, loan, rent, lease, loan, license, sublicense, publish, display, distribute, or otherwise transfer to a third party the Product, any copy or use thereof, in whole or in part, without Company's prior written consent, provided that if such non-waivable right is specifically granted to you under applicable law in your jurisdiction you may transfer your rights under this Agreement permanently to another person or entity, provided that a) you also transfer this Agreement, the Product, all accompanying printed materials, and all other software or hardware bundled or pre-installed with the Product, including all copies, Updates and prior versions, to such person or entity; b) retain no copies, including backups and copies stored on a Client Device; and c) the receiving party accepts the terms and conditions of this Agreement and any other terms and conditions upon which you legally purchased a license to the Product. Notwithstanding the foregoing, you may not transfer education, pre-release, or "not for resale" copies of the Product. In no case you may permit third parties to benefit from the use or functionality of the Product via a timesharing, service bureau or other arrangement, except to the extent such use is specified in the application price list, purchase order or product packaging for the Product. | ||
| 3.2. | Prohibitions. Except as otherwise specifically provided for in this Agreement, you may not use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, otherwise reverse engineer, or otherwise reduce any party of the Product to human readable form or transfer the licensed Product, or any subset of the licensed Product, nor permit any third party to do so, except to the extent the foregoing restriction is expressly prohibited by applicable law. Notwithstanding the foregoing sentence, decompiling the Software is permitted to the extent the laws of your jurisdiction give you the non-waivable right to do so to obtain information necessary to render the Software interoperable with other software; provided, however, that you must first request such information from the Company and the Company may, in its discretion, either provide such information to you (subject to confidentiality terms) or impose reasonable conditions, including a reasonable fee, on such use of the Software to ensure that the Company's and its suppliers and/or licensors proprietary rights in the Software are protected. You may not modify, or create derivative works based upon the Product in whole or in part. Any such unauthorized use shall result in immediate and automatic termination of this Agreement and the License granted hereunder and may result in criminal and/or civil prosecution. Neither Product’s binary code nor source may be used or reverse engineered to re-create the program algorithm, which is proprietary, without written permission of the Company. All rights not expressly granted here are reserved by Company and/or its suppliers and licensors, as applicable. | ||
| 3.3. | License Key File. You may not give away, sell or otherwise transfer your registration License Key File or any copy thereof to a third party. Product’s Key Files may not be distributed, except as provided herein, outside of the area of legal control of the person or persons who purchased the original License, without written permission of the Licensor. Doing so will result in an infringement of copyright. The Company retains the right of claims for compensation in respect of damage which occurred by your giving away the License Key File or registration code contained therein. This claim shall also extend to all costs which the Company of its licensors incur in defending themselves. | ||
| 3.4. | Proprietary Notices and Copies. You may not remove any proprietary notices or labels on the Product. You may not copy the Product except as expressly permitted in Section 2 above. | ||
| 3.5. | No Transfer of Rights. Except as otherwise specifically provided herein, you may not transfer or assign any of the rights granted to you under this Agreement or any of your obligations pursuant hereto. | ||
| 3.6. | Additional Protection Measures. Solely for the purpose of preventing unlicensed use of the Product, the Software may collect certain non-personal information relating to the hardware of your Client Device and/or install on your Client Device certain technological measures that are designed to prevent unlicensed use, and the Company may use this technology to confirm that you have a licensed copy of the Product. Such installation or collection of information or updates of these technological measures may occur through and/or during the installation or activation of the Product or Updates. The Product and/or Updates will not install or may fail to Operate if installed contrary to the rights granted under the License or if attempted to be installed or Operated on unlicensed copies of the Product. If you are not using a licensed copy of the Product, you are not allowed to install the Updates. The Company will not collect any personally identifiable information from your computer during this process. | ||
| 4. | NO WARRANTY AND DISCLAIMER. | ||
| 4.1. | Limited Warranty. The Company warrants that for sixty (60)days from the earlier of i) original purchase of the media (e.g. diskettes) on which the Product is contained, or ii) the date the License Key File is provided to you by Company, the Product will be free from defects in materials and workmanship and that the Software will perform substantially in accordance with the Documentation or generally conform to the Product’s specifications published by the Company. Non-substantial variations of performance from the Documentation do not establish a warranty right. THIS LIMITED WARRANTY DOES NOT APPLY TO TRIAL AND EVALUATION VERSIONS, UPDATES, PRE-RELEASE, TRYOUT, PRODUCT SAMPLER, OR NOT FOR RESALE (NFR) COPIES OF PRODUCT. To make a warranty claim, you must return the Product to the location where you obtained it along with proof of purchase within such sixty (60) day period of the license fee you paid for the Product. THE LIMITED WARRANTY SET FORTH IN THIS SECTION GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE ADDITIONAL RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. | ||
| 4.2. | Customer Remedies. The Company and its suppliers’ entire liability and your exclusive remedy for any breach of the foregoing warranty shall be at the Company’s option: (i) return of the purchase price paid for the license, if any, (ii) replacement of the defective media in which the Product is contained, or (iii) correction of the defects, "bugs" or errors within reasonable period of time. You must return the defective media to the Company at your expense with a copy of your receipt. This limited warranty is void if the defect has resulted from accident, abuse, or misapplication. Any replacement media will be warranted for the remainder of the original warranty period. Outside the United States, this remedy may not be available to the extent the Company is subject to restrictions under United States export control laws and regulations. | ||
| 4.3. | NO IMPLIED OR OTHER WARRANTIES. EXCEPT FOR THE FOREGOING LIMITED WARRANTY AND FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT TO WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO YOU IN YOUR JURISDICTION, THE PRODUCT IS PROVIDED "AS-IS" WITHOUT ANY WARRANTY WHATSOEVER AND THE COMPANY MAKES NO PROMISES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE, REGARDING OR RELATING TO THE PRODUCT OR CONTENT THEREIN OR TO ANY OTHER MATERIAL FURNISHED OR PROVIDED TO YOU PURSUANT TO THIS AGREEMENT OR OTHERWISE. YOU ASSUME ALL RISKS AND RESPONSIBILITIES FOR SELECTION OF THE PRODUCT TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE PRODUCT. THE COMPANY MAKES NO WARRANTY THAT THE PRODUCT WILL BE ERROR FREE OR FREE FROM INTERRUPTION OR FAILURE, OR THAT IT IS COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, SATISFACTORY QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCT AND THE ACCOMPANYING WRITTEN MATERIALS OR THE USE THEREOF. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. YOU HEREBY ACKNOWLEDGE THAT THE PRODUCT MAY NOT BE OR BECOME AVAILABLE DUE TO ANY NUMBER OF FACTORS INCLUDING WITHOUT LIMITATION PERIODIC SYSTEM MAINTENANCE, SCHEDULED OR UNSCHEDULED, ACTS OF GOD, TECHNICAL FAILURE OF THE SOFTWARE, TELECOMMUNICATIONS INFRASTRUCTURE, OR DELAY OR DISRUPTION ATTRIBUTABLE TO VIRUSES, DENIAL OF SERVICE ATTACKS, INCREASED OR FLUCTUATING DEMAND, AND ACTIONS AND OMISSIONS OF THIRD PARTIES. THEREFORE, THE COMPANY EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY REGARDING SYSTEM AND/OR SOFTWARE AVAILABILITY, ACCESSIBILITY, OR PERFORMANCE. THE COMPANY DISCLAIMS ANY AND ALL LIABILITY FOR THE LOSS OF DATA DURING ANY COMMUNICATIONS AND ANY LIABILITY ARISING FROM OR RELATED TO ANY FAILURE BY THE COMPANY TO TRANSMIT ACCURATE OR COMPLETE INFORMATION TO YOU. | ||
| 4.4. | LIMITED LIABILITY; NO LIABILITY FOR CONSEQUENTIAL DAMAGES. YOU ASSUME THE ENTIRE COST OF ANY DAMAGE RESULTING FROM YOUR USE OF THE PRODUCT AND THE INFORMATION CONTAINED IN OR COMPILED BY THE PRODUCT, AND THE INTERACTION (OR FAILURE TO INTERACT PROPERLY) WITH ANY OTHER HARDWARE OR SOFTWARE WHETHER PROVIDED BY THE COMPANY OR A THIRD PARTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE COMPANY OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF GOODWILL, WORK STOPPAGE, HARDWARE OR SOFTWARE DISRUPTION IMPAIRMENT OR FAILURE, REPAIR COSTS, TIME VALUE OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCT, OR THE INCOMPATIBILITY OF THE PRODUCT WITH ANY HARDWARE SOFTWARE OR USAGE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL COMPANY’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES IN ANY ONE OR MORE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE EXCEED THE AMOUNT PAID BY YOU FOR THE PRODUCT. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT THAT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. | ||
| 5. | Notice to U.S. Users. | ||
| 5.1. | Notice to U.S. Government End Users. The Product and accompanying Documentation are deemed to be "Commercial Items," as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," respectively, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights, including any use, modification, reproduction, release, performance, display or disclosure of the Product and accompanying Documentation, as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States. | ||
| 5.2. | U.S. Export Restrictions for U.S. Users. If you are a U.S. person or entity or if you are otherwise subject to U.S. laws and regulations, you acknowledge and agree that the Product may be subject to restrictions and controls imposed by the Export Administration Act and the Export Administration Regulations of the United States (the "Acts"). You agree and certify that neither the Product nor any direct product thereof is being or will be used for any purpose prohibited by the Acts. You may not Operate, download, export, or re-export the Product (a) into, or to a national or resident of, any country to which the United States has embargoed goods, or (b) to anyone on the United States Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By Operating the Product, 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. You acknowledge that it is your sole responsibility to comply with any and all government export and other applicable laws and that the Company has no further responsibility for such after the initial license to you. You warrant and represent that neither the U.S. Commerce Department, Bureau of Export Administration nor any other U.S. federal agency has suspended, revoked or denied your export privileges. | ||
| 6. | Your Information and the Company’s Privacy Policy. | ||
| 6.1. | Privacy Policy. You hereby expressly consent to the Company's processing of your personal data (which may be collected by the Company or its distributors) according to the Company's current privacy policy as of the date of the effectiveness hereof which is incorporated into this Agreement by reference (see www.radmin.com/privacy). By entering into this Agreement, you agree that the Company may collect and retain information about you, including your name, email address and credit card information. The Company employs other companies and individuals to perform functions its behalf. Examples include fulfilling orders, delivering packages, sending postal mail and e-mail, removing repetitive information from customer lists, analyzing data, providing marketing assistance, processing credit card payments, and providing customer service. They have access to personal information needed to perform their functions, but may not use it for other purposes. The Company publishes a privacy policy on its web site and may amend such policy from time to time in its sole discretion. You should refer to the Company's privacy policy prior to agreeing to this Agreement for a more detailed explanation of how your information will be stored and used by the Company. If "you" are an organization, you will ensure that each member of your organization (including employees and contractors) about whom personal data may be provided to the Company has given his or her express consent to the Company's processing of such personal data. Personal data will be processed by the Company or its distributors in the country where it was collected, and possibly in the United States and Germany. United States laws regarding processing of personal data may be less or more stringent than the laws in your jurisdiction. | ||
| 7. | Miscellaneous. | ||
| 7.1. | Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed and enforced in accordance with the laws of the British Virgin Islands without reference to conflicts of law rules and principles. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly disclaimed and excluded. You agree that this Agreement is to be performed in the British Virgin Islands and that any action, dispute, controversy, or claim that may be instituted based on this Agreement, or arising out of or related to this Agreement or any alleged breach thereof, shall be prosecuted exclusively in the courts in the British Virgin Islands, and you, to the extent permitted by applicable law, hereby waive the right to change venue to any other state, county, district or jurisdiction; provided, however, that the Company as claimant shall be entitled to initiate proceedings in any court of competent jurisdiction. | ||
| 7.2. | Period for Bringing Actions. No action, regardless of form, arising out of the transactions under this Agreement, may be brought by either party hereto more than one (1) year after the cause of action has occurred, or was discovered to have occurred, except that an action for infringement of intellectual property rights may be brought within the maximum applicable statutory period. | ||
| 7.3. | Entire Agreement; Severability; No Waiver. This Agreement is the entire agreement between you and Company and supersedes any other prior agreements, proposals, communications or advertising, oral or written, with respect to the Product or to subject matter of this Agreement provided that the Company and you may limit, modify or changes the applicability of the terms of this Agreement by a prior, contemporaneous or subsequent written agreement by referencing this Section 7.3 of the Agreement and expressly providing for such limitation, modification or changes. You acknowledge that you have read this Agreement, understand it and agree to be bound by its terms. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, void, or unenforceable for any reason, in whole or in part, such provision will be more narrowly construed so that it becomes legal and enforceable, and the entire Agreement will not fail on account thereof and the balance of the Agreement will continue in full force and effect to the fullest extent permitted by law. No waiver of any breach of any provisions of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach and no waiver will be effective unless made in writing. | ||
| 7.4. | Contact Information. Should you have any questions concerning this Agreement, or if you desire to contact the Company for any reason, please contact our Customer Department at www.radmin.com/support/feedback.php. | ||
Copyright © 1999-2022 Famatech Corp. and its licensors; All rights reserved. The Product, including the Software and any accompanying Documentation, are copyrighted and protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties