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EXPERIENCE IN SOFTWARE, INC. END USER LICENSE AGREEMENT AND WARRANTY DISCLAIMER
PROJECT KICKSTART™ STANDARD 5 AND PRO 5 EDITIONS
NOTICE: This is a legally binding contract between you, the end user, and EXPERIENCE IN SOFTWARE, INC.
EXPERIENCE IN SOFTWARE, INC. ("EIS" or "LICENSOR") LICENSES THE ENCLOSED SOFTWARE TO YOU ("USER" or "LICENSEE") ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS LICENSE AGREEMENT. PLEASE READ THE TERMS CAREFULLY. BY OPENING THIS PACKAGE, BREAKING THE SEAL, CLICKING ON THE “AGREE” OR “YES” BUTTON OR OTHERWISE INDICATING ASSENT ELECTRONICALLY, OR LOADING THE SOFTWARE, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, CLICK ON THE “I DO NOT AGREE”, “NO” BUTTON, OR MAKE NO FURTHER USE OF THE SOFTWARE. IF YOU DO NOT AGREE TO THESE TERMS, THEN EIS IS UN-WILLING TO LICENSE THE SOFTWARE TO YOU, IN WHICH EVENT YOU SHOULD RETURN THE FULL PURCHASED PRODUCT WITH PROOF OF PURCHASE TO LICENSOR OR THE DEALER FROM WHOM IT WAS ACQUIRED WITHIN 15 DAYS OF PURCHASE, AND YOUR MONEY WILL BE REFUNDED.
LICENSE AND WARRANTY:
The software that accompanies this license ("Software") is the property of EIS, and is protected by copyright and other intellectual property law. Although EIS at all times owns the Software, you will have certain rights to use the Software after your acceptance of this license. Except as may be modified by an addendum, which may accompany or be added to this license, your rights and obligations with respect to the use of this Software are as follows:
You may:
(i) install and use one copy of the specified edition of Software and documentation on a single computer, and only by one user (“Primary User”). If you have purchased multiple licenses for the Software, as indicated as "Quantity" or "Number of Licenses" on the Invoice or electronic confirmation issued by EIS or its Resellers, then at any time you may have as many copies of the Software in use as you have licenses. The Software is “in use” on a computer when it is loaded into the temporary memory (i.e. RAM) or installed into the permanent memory (e.g. hard disk, CD-ROM, or other storage device) of that computer;
(ii) install and use a second copy of the Software on a second computer for the limited and exclusive use of the Primary User;
(iii) use the Software on a network, provided that Licensee has a licensed copy of the Software for each named user that can access the Software over that network;
(iv) make one copy of the Software for archival purposes, or copy the Software onto the hard disk of your computer and retain the original for archival purposes;
(v) after written notice to EIS, transfer the Software on a permanent basis to another person or entity, provided that you retain no copies of the Software and the transferee agrees to the terms of this agreement.
You may not:
(i) rent, lease, copy, distribute, license, or otherwise transfer the Software or its documentation to any other party. Licensee may make a reasonable number of back-up copies for archival purposes only. The Software contains copyrighted material, trade secrets and other proprietary material. If Licensee has the right to duplicate the Software for multiple Users, then Licensee must reproduce on all such copies of the Software the copyright notices and any other proprietary legends that were on the original copy of the Software; or
(ii) decompile, reverse engineer, disassemble, translate, make any attempt to discover the source code of the Software or otherwise reduce the Software to a human perceivable form, or modify, network, or create derivative works based upon the Software or the documentation in whole or in part, nor permit any other party to do so.
Notwithstanding anything herein, if the Software is lawfully acquired outside of the United States within a jurisdiction which is a member of the European Union subject to the EEC Council Directive 91/250/EEC of May 14, 1991, Licensee agrees that within that jurisdiction it shall not, and shall not allow any party on Licensee's behalf to, attempt to reverse engineer or decompile the Software into another computer language, except as expressly and specifically provided in the EEC Council Directive 91/250/EEC of May 14, 1991. Any and all information obtained during such lawful reverse engineering and/or decompiling activities, including but not limited to, the organization, logic, algorithms and processes of the Software, shall be deemed to be the confidential and proprietary information of EIS.
Licensee shall not make copies of the copyrighted Software documentation without the prior written permission of EIS, provided that for electronic transactions, Licensee may make one (1) hard copy of such documentation for each User.
Intellectual Property and Duplication of Software:
The Software contains copyrighted material, trade secrets and other proprietary material. If Licensee has the right to duplicate the Software for multiple Users, then Licensee must reproduce on all such copies of the Software the copyright notices and any other proprietary legends that were on the original copy of the Software.
Upgrades:
To use a Product identified as an upgrade, you must first be licensed for the product identified by EIS as eligible for the upgrade. After upgrading, you may no longer transfer the product that formed the basis for your upgrade eligibility to another person or entity.
Technical Support:
Licensee must register the Software in order to be eligible for free technical support (including installation and registration of the product) during the first 90 days after purchase.
Thirty Day Money Back Guarantee:
If you are the original Licensee of this copy of the Software and are dissatisfied with it for any reason, you may return the complete product, together with your receipt, to EIS or an authorized dealer, postage prepaid, for a full refund at any time during the thirty-day period following the delivery to you of the Purchased Software.
Export Law Assurances:
You are responsible for complying with all trade regulations and laws both foreign and domestic. You acknowledge that none of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported (i) into Afghanistan (Taliban-controlled areas), Cuba, Iran, Iraq, Libya, North Korea, Serbia (except Kosovo), Sudan and Syria or any other country subject to a U.S. embargo; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Denied Parties List or Entity List. By using the Software you are agreeing to the foregoing and are representing and warranting that (i) no U.S. federal agency has suspended, revoked, or denied you export privileges, (ii) you are not located in or under the control of a national or resident of any such country or on any such list, and (iii) you will not export or re-export the Software to any prohibited county, or to any prohibited person, entity, or end-user as specified by U.S. export controls as defined by EAR, 15 C.F.R. Parts 730-774, and BXA (http://www.bxa.doc.gov).
Data Collection and Privacy Policy:
You acknowledge and agree that EIS may collect and retain information about you, such as your name, address, and e-mail address. You also understand that EIS may employ other companies to perform functions on our behalf, such as fulfilling orders, delivering packages, sending postal mail and e-mail, providing marketing assistance, and processing credit card payments. These companies may have access to personal information needed to perform their functions, and may not use such information for other purposes. By assenting to this agreement, you agree that you have read and understand our Privacy Policy. For more detailed information,
Termination:
This License is effective until terminated. Licensee may terminate this License at any time by destroying all copies of the Software and its documentation. This License will terminate immediately without notice from EIS if Licensee fails to comply with any provision of this License. Upon termination, Licensee must destroy all copies of the Software and its documentation and cease and desist from any further use of the Software.
Limited Warranty:
EIS warrants that the media on which the Software is distributed will be free from defects, and that the Software shall perform substantially as described in its documentation for a period of sixty (60) days from purchase. Your sole remedy in the event of a breach of this warranty will be that EIS will replace any defective media returned to EIS within the warranty period. EIS does not warrant that the Software will meet your requirements or that operation of the Software will be uninterrupted or that the Software will be error-free.
THE ABOVE WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE AND COUNTRY TO COUNTRY.
Disclaimer of Damages:
REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL EIS, OR ITS RESELLERS BE LIABLE TO YOU FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT OR SIMILAR DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS OR LOST DATA ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE EVEN IF EIS HAS BEEN ADVISED OF THE POSSIBILTIY OF SUCH DAMAGES. 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. IN NO CASE SHALL EIS'S, IT’S RESELLER’S LIABILITY EXCEED THE PURCHASE PRICE FOR THE SOFTWARE.
SOME STATES AND COUNTRIES, INCLUDING MEMBER COUNTRIES OF THE EUROPEAN ECONOMIC AREA, 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.
The disclaimers and limitations set forth above will apply regardless of whether you accept the Software.
U.S. Government Restricted Rights:
DISTRIBUTION TO THE U.S. GOVERNMENT. This Software is commercial software developed exclusively at private expense. This Software and the documentation are provided with "RESTRICTED RIGHTS" applicable to private and public licenses alike. Use, duplication, or disclosure by civilian agencies of the U.S. Government shall be in accordance with the Commercial Computer Software-Restricted Rights clause at FAR 52.227-19. Use, duplication, or disclosure by Department of Defense agencies is subject solely to the terms of this software licensing agreement pursuant to DFARS 227.7202. Contractor/manufacturer of the Software is EXPERIENCE IN SOFTWARE, INC., 2029 Durant Ave., Berkeley CA 94704, USA.
General:
This Agreement shall be 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 Northern District of California to resolve any disputes arising under this Agreement. This Agreement contains the complete understanding 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. No provision hereof shall be deemed waived or modified except in writing. No EIS dealer, agent or employee is authorized to make any amendment to this Agreement.
The intellectual property protections, the disclaimers of warranties, and the limitation of damages shall survive termination. The failure or delay of EIS 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. If any provision of this Agreement is held invalid, the remainder of this Agreement will remain in full force and effect.
Should you have any questions concerning this Agreement, or if you desire to contact EIS for any reason, please write to: EXPERIENCE IN SOFTWARE, INC., 2029 Durant Ave., Berkeley CA 94704, USA.
