End-User License Agreement
IMPORTANT: THIS AGREEMENT (or "LICENSE AGREEMENT") IS A LEGAL AGREEMENT BETWEEN THE PERSON, COMPANY, OR ORGANIZATION THAT HAS LICENSED THIS SOFTWARE ("YOU" OR "CUSTOMER") AND ECI SOFTWARE, INC. (“ECI” or “COMPANY”) 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 LICENSE AGREEMENT SHALL APPLY ONLY TO THE SOFTWARE SUPPLIED BY ECI SOFTWARE HEREWITH REGARDLESS OF WHETHER OTHER SOFTWARE IS REFERRED TO OR DESCRIBED HEREIN.
1. License Grants
(a) ECI grants a limited nonexclusive license to Customer to use the Software. Customer acknowledges that this is only a limited nonexclusive license and that ECI is and remains the owner of all titles, rights, and interests in the Software. This includes all copyrights 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 Customer may develop), and all copies thereof. All rights not specifically granted in this License Agreement including Federal and International Copyrights, are reserved by ECI.
(b) This License permits Customer to install 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. Except as otherwise stated the Software may not be shared, installed or used concurrently on different computers. Except solely for purposes of installing the Software on a computer as described above, a license for the Software may not be accessed and used via a server or network storage device, including without limitation through Citrix and Citrix-type environments. Subject to the terms and conditions set forth in this License Agreement, Customer shall not be permitted to have more than one installation of the Software on any single computer. Customer will not make copies of the Software or allow copies of the Software to be made by others, unless authorized by this License Agreement.
(c) Customer may make copies of the Software for backup purposes only so long as all copyright notices and any other proprietary legends on the original copy of the Software are reproduced with the backup copy of the Software. Customer may not sell or transfer any copy of the Software made for backup purposes.
2. License Restrictions
(a) Other than as set forth in Section 1, Customer may not make or distribute copies of the Software, or electronically transfer the Software from one computer to another or over a network.
(b) Customer 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, Customer may not modify the Software or create derivative works based upon the Software.
(d) Unless otherwise provided herein, Customer may not rent, lease, or sublicense the Software.
(e) Other than with respect to a Trial Version of the Software, Customer may permanently transfer all rights under this License Agreement only as part of a sale or transfer, provided no copies are retained by Customer, Customer transfers all of the Software (including all component parts, the media and printed materials, any upgrades, this License Agreement, the serial numbers, and, if applicable, all other software products provided together with the Software), and the recipient agrees to the terms of this Software. If the Software is an upgrade, any transfer must include all prior versions of the Software from which you are upgrading. In the event of such a transfer Customer may retain no copies of the Software. Customer may not sell or transfer any Software purchased under a volume discount or Trial Version of the Software.
(f) Customer may not export the Software into any country prohibited by the United States Export Administration Act and the regulations thereunder.
(g) Customer shall not use the Software to develop any application having the same primary function as the Software.
(h) Customer may not remove or modify any proprietary rights legends on the Software or printed documentation distributed with the Software.
(i) In the event that Customer fails to comply with this License Agreement, ECI may terminate the license and Customer must destroy all copies of the Software (with all other rights of both parties and all other provisions of this License Agreement surviving any such termination).
(j) Mandatory Product Activation. The license rights granted under this License Agreement may be limited to the first thirty (30) days after Customer you first install the Software unless you supply information required to activate your licensed copy in the manner described during the setup sequence of the Software. You may need to activate the Software via the Internet or telephone; toll charges may apply. There are technological measures in this Software that are designed to prevent unlicensed or illegal use of the Software. You agree that ECI may use those measures and you agree to follow any requirements regarding such technological measures. You may also need to reactivate the Software if you modify your computer hardware or alter the Software. Product activation is based on the exchange of information between your computer and ECI. None of this information contains personally identifiable information nor can they be used to identify any personal information about you or any characteristics of your computer configuration.
3. Limited Warranty and Disclaimer
(a) ECI warrants to Customer that the physical medium on which this Software is distributed is free from defects in materials and workmanship under normal use, the Software will perform according to its printed documentation, and to the best of ECI’s knowledge Customer’s use of this Software according to the printed documentation is not an infringement of any third party's intellectual property rights. This limited warranty lasts for a period of 90 days after delivery. To the extent permitted by law, THE ABOVE-STATED LIMITED WARRANTY REPLACES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND ECI DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, NONINFRINGEMENT, OR OF FITNESS FOR A PARTICULAR PURPOSE. No agent of ECI is authorized to make any other warranties or to modify this limited warranty. Any action for breach of this limited warranty must be commenced within one year of the expiration of the warranty. Because some jurisdictions do not allow any limit on the length of an implied warranty, the above limitation may not apply to this Customer. If the law does not allow disclaimer of implied warranties, then any implied warranty is limited to 90 days after delivery of the Software to Customer. Customer has specific legal rights pursuant to this warranty and, depending on Customer's jurisdiction, may have additional rights.
(b) In case of a breach of the Limited Warranty, Customer's exclusive remedy is as follows: Customer will return all copies of the Software to ECI, at Customer's cost, along with proof of purchase. (Customer can obtain a step-by-step explanation of this procedure, including a return authorization code, by contacting ECI at SeaGreen Returns . At ECI's sole discretion, ECI will either send Customer a replacement copy of the Software, at ECI's expense, or issue a full refund.
(c) Notwithstanding the foregoing, ECI IS NOT LIABLE TO CUSTOMER FOR ANY DAMAGES, INCLUDING COMPENSATORY, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, CONNECTED WITH OR RESULTING FROM THIS LICENSE AGREEMENT OR CUSTOMER'S USE OF THIS SOFTWARE. Customer's jurisdiction may not allow such a limitation of damages, so this limitation may not apply.
(d) Customer agrees to defend and indemnify ECI and hold ECI harmless from all claims, losses, damages, complaints, or expenses connected with or resulting from use of the Software in connection with Customer's business operations or services provided by Customer to others.
(e) ECI has the right to terminate this License Agreement and Customer's right to use this Software upon any material breach by Customer. Upon termination of the License Customer agrees to return to ECI or to destroy all copies of the Software.
(f) Customer agrees that ECI, Inc. may audit use of the Software for compliance with these terms at any time, upon reasonable notice. In the event that such audit reveals any use of the Software that is not in full compliance with the terms of this License Agreement, Customer shall reimburse ECI for all reasonable expenses related to such audit in addition to any other liabilities you may incur as a result of such non-compliance.
4. Exclusive Remedy
(a) Your exclusive remedy under the preceding limited warranty 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 ECI no more than ninety (90) days following delivery to you, ECI 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. ECI 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.
5. Sample or Generated Application Code
(a) Sample application code provided with the Software or code generated by the Software as part of its out of the box functionality may be modified and distributed by Customer provided that Customer agrees to indemnify, hold harmless and defend ECI from and against any loss, damage, claims or lawsuits, including attorney's fees, that arise or result from the use or distribution of the sample or generated application code.
6. Additional Terms
(a) This License Agreement is the entire and exclusive agreement between ECI and Customer regarding this Software. This License Agreement replaces and supersedes all prior negotiations, dealings, and agreements between ECI and Customer regarding this Software. Customer agrees that any varying or additional terms contained in any purchase order or other written notification or document issued by Customer in relation to the Software licensed hereunder shall be of no effect. The failure or delay of ECI to exercise any of its rights under this Agreement or upon any breach of this Agreement shall not be deemed a waiver of those rights or of the breach.
(b) This License Agreement is governed by the laws of the State of California, without giving effect to principles of conflict of laws. You hereby consent to the exclusive jurisdiction and venue of the state courts sitting in San Francisco County, California or the federal courts in the Central District of California to resolve any disputes arising under this License Agreement. In each case this Agreement shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods.
(c) No ECI dealer, agent or employee is authorized to make any amendment to this License Agreement.
(d) If any provision of this License Agreement 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 License Agreement will remain in full force and effect.
(e) All questions concerning this License Agreement shall be directed to: ECI Software, Inc. SeaGreen Customer Support .
(f) Sea Green and other trademarks contained in the Software are trademarks or registered trademarks of ECI in the United States and/or other countries. Third party trademarks, trade names, product names and logos may be the trademarks or registered trademarks of their respective owners. You may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Software. This License Agreement does not authorize you to use ECI’s or its licensors’ names or any of their respective trademarks.
(g) This License Agreement is valid without ECI's signature. It becomes effective upon the earlier of Customer's signature or Customer's use of the Software.