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End User License Agreement (EULA)
Penvision Formidable
1. Definitions:
Capitalized terms not otherwise defined herein shall have the following meanings:
1.1 “Documentation” shall mean all user manuals, technical reference manuals and other written materials relating to the development, use, operation, support or maintenance the corresponding software.
1.2 “Suppliers” shall mean but may not be limited to XMS Penvision, its Licensors, Partners, Distributors, or the Authorized Resellers of its Partners and Distributors.
1.3 “End User or You” shall mean the company or individual authorized by a Partner, Distributor or Authorized Resellers of the Partner and Distributor who have purchased valid licenses to be use on Formidable.
1.4 “Formidable” shall mean the software product(s) provided by XMS Penvision and incorporated herein by this reference, for all existing platforms, and all Upgrades and Documentation thereto, in accordance with the specifications provided, as such specification may be revised by Suppliers from time to time upon written notice and acceptance by End User.
1.5 “Upgrades” shall mean, with respect to the Formidable, all releases , versions, enhancements, upgrades, updates, corrections, modification and bug fixes thereto and all Documentation related thereto.
1.6 “User License Key (ULK)” shall mean a valid license purchased by the End User for a Digital Pen or Tablet PC which, after association with a specific device in an instance of Formidable server, enables a time limited use of this device with Formidable software products
1.7 “Encrypted License Key (ELK)” shall mean a license key which, after association with a specific Formidable server, enables the perpetual use of an encryption license key pair for encrypted data transfer from Digital Pens (with valid ULKs) to said server.
1.8 “Pattern License Key (PLK)” shall mean a license key which, after upload/entering into a Formidable server, enable an associated printing function. Two types of PKLs are available: “PLK-S” to print one “Shelf” corresponding to 6,144 pages of “standard dot pattern” and “PKL-L” to print on “page” of “limited dot pattern”.
2. Granting of License
2.1 The End User acquires a non-exclusive license from Suppliers to use Formidable and all related software and components that make up Formidable application on the terms set out herein. XMS and its licensors retains all title to its intellectual property incorporated in Formidable and all copies thereof, and no title or ownership right is granted or conveyed by the EULA.
2.2 By using Formidable you agree to be bound by the terms of this Agreement. If you do not agree to the terms of this Agreement, do not install or use the Formidable.
2.3 Formidable is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Formidable is licensed, not sold.
2.4 All rights not expressly granted to you by this Agreement are reserved by Suppliers. This license is effective on an annual basis from the date of purchase and is renewable annually on the anniversary of the original purchase.
3. Scope of License
3.1 The End User may only use Formidable for processing data.
3.2 The End User may not (nor allow anyone else to do so) use, copy or otherwise transfer or use the Formidable, wholly or partly, otherwise than as specified in this Agreement. With regard to decompilation or disassembly of the Formidable, the provisions laid down by law are applicable. (Upphovsrättlagen 1960:729).
3.3 For United States End Users Formidable and associated documentation are deemed to be “commercial computer software” and “commercial computer documentation”, respectively, pursuant to DFAR § 227.7202 and FAR § 12.212(b), as applicable. Use, duplication or disclosure of Formidable and Zny derivative works, as defined by the Copyright Act of 1976 as amended, and any associated documentation or derivative works thereof, are subject to the restricted rights set forth in the DFAR and FAR above.
3.4 The End User may not assign, sell, sub-license, rent, lease, lend, or distribute Formidable or otherwise permit anyone else either directly or indirectly, for payment or otherwise, to make use of or otherwise copy or dispose of the Formidable, except as prescribed in the following clause 3.4.
3.5 Neither party may sell, assign, transfer, or otherwise convey any of its rights or delegate any of its duties under this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed.
3.6 The End User agrees to be bound to all copyright notices and additional legal terms and conditions found in any “ReadMe” file, release note, leaflet or other correspondence provided by Supplier that accompanies Formidable; and agrees that Supplier is an intended third party beneficiary of the EULA and is entitled to enforce the above provisions directly against the End User in its own name.
3.7 End User agrees that the use of Formidable is subject to the End User obtaining and maintaining valid ULKs and PLKs. It is an intended feature of Formidable that parts or all of it will stop working if Device Licenses, ULKs and PLKs are not obtained and maintained.
3.8 The End User is prohibited to (a) remove, deface, alter, or otherwise tamper with any proprietary, copyright, trade secret, warning or similar legend accompanying Formidable and related documentation, (b) to the maximum extent enforceable by law, End User is prohibited to alter, modify, merge, adapt, reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of Formidable. (c) directly or indirectly export or re-export the Formidable.
4. Manuals and Other Documentation
4.1 Product related documentation is to be found on the Suppliers web site: https://fjdassociatesinc.com.
4.2 Formidable and all related documentation may not be copied in excess of what is reasonably allowed under its intended use or by law.
5. The Suppliers right to Formidable
The license does not entail the transfer to the End User of the Suppliers right in the form of, among other things, copyright or, where appropriate, patent rights or any other rights to the Formidable. Nor does it entail the transfer to the End User of the Suppliers right to Formidable or the medium on which Formidable is made available to the End User.
5.1 Thus the Suppliers retains all title, interest and proprietary rights in and to the Formidable.
5.2 End User shall not remove any copyright or other proprietary notice from the Formidable.
6. Confidentiality
6.1 Formidable contains business and professional secrets belonging to the Supplier and has been made available to third parties only by virtue of the Agreement. It is the duty of the End User not to make Formidable available to third parties without the written permission of the Supplier and to take all reasonable steps to prevent third parties from gaining access to the business and professional secrets contained in the Formidable. The End User is responsible for instructing relevant personnel of this and has an obligation to observe the rules governing the use of the Formidable, as set out in this Agreement.
6.2 The obligation of the End User to observe confidentiality shall survive the right of use under this agreement, irrespective of the form of termination or notice thereof, or as a result of transfer. The duty of confidentiality applies in such cases for a period of five years. In the case of statuary copies which the End User is obliged by law to file, the duty of confidentiality applies for as long as the End User retains possession of the statuary copy.
7. Indemnification
END USER AGREE TO HOLD HARMLESS AND INDEMNIFY SUPPLIERS, AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, EMPLOYEES, ADVERTISERS, LICENSORS, SUPPLIERS OR PARTNERS, (COLLECTIVELY "SUPPLIERS PARTNERS") FROM AND AGAINST ANY CLAIM, LOSSES, DAMAGES (ACTUAL AND CONSEQUENTIAL), SUITS, JUDGMENTS, AWARDS, FINES, ACTION OR ACTIONS, ASSESSMENTS, LITIGATION COSTS AND ATTORNEYS' FEES, EXPENSES OF EVERY KIND AND NATURE OR THIRD PARTY CLAIMS INCLUDING ANY LIABILITY FROM ALL CLAIMS ARISING FROM OR IN ANY WAY RELATED TO (I) THE USE OF FORMIDABLE, (II) VIOLATION OF THE TERMS OF THIS AGREEMENT OR ANY OTHER ACTIONS CONNECTED WITH THE USE OF FORMIDABLE, (III) THE UNLAWFUL, IMPROPER OR UNAUTHORIZED USE OF THE FORMIDABLE, (IV) ERRORS OR OMISSIONS IN ANY INFORMATION CONTENT MADE AVAILABLE IN CONNECTION WITH FORMIDABLE, (V) ALLEGED COPYRIGHT OR OTHER INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT, DEFAMATION OR OTHER TORT ON ACCOUNT OF INFORMATION CONTENT, (VI) CLAIMS OR ACTIONS BY ANY PARTY FOR INJURIES OR DAMAGE TO PERSONS OR PROPERTY CAUSED OR CLAIMED TO HAVE BEEN CAUSED BY THE GROSSLY NEGLIGENT ACTS OR OMISSIONS. IN SUCH A CASE, SUPPLIERS WILL PROVIDE YOU WITH WRITTEN NOTICE OF SUCH CLAIM, SUIT OR ACTION. SUPPLIERS PARTNERS SHALL NOT BE LIABLE TO THE END USER FOR ANY GENERAL, SPECIAL, DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE OF FORMIDABLE HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF SUPPLIERS PARTNERS AND LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
8. Disclaimer of Warranty
END USER EXPRESSLY UNDERSTAND AND AGREES THAT: THE USE OF FORMIDABLE IS AT END USERS SOLE RISK. FORMIDABLE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. THE SUPPLIER MAKES NO WARRANTIES TO THE END USER, EXPRESSED, IMPLIED OR STATUTORY, REGARDING FORMIDABLE, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND/OR FITNESS FOR A PARTICULAR PURPOSE, THAT THE OPERATION OF FORMIDABLE WILL BE (I) MEET YOUR REQUIREMENTS OR EXPECTATIONS (II) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF FORMIDABLE WILL BE ACCURATE OR RELIABLE, OR THEIR EQUIVALENT UNDER THE LAWS OF ANY JURISDICTION. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE FORMIDABLE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SUPPLIERS OR THROUGH OR FROM FORMIDABLE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
9. Limitation of Liability
END USER EXPRESSLY UNDERSTAND AND AGREE THAT SUPPLIERS SHALL NOT BE LIABLE TO END USER FOR ANY GENERAL DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES OR OTHER DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES RESULTING FROM; (I) THE USE OR THE INABILITY TO USE FORMIDABLE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM FORMIDABLE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF END USERS TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY OR; (V) ANY OTHER MATTER RELATING TO FORMIDABLE. SUPPLIERS MAKES NO WARRANTIES TO THE END USER, EXPRESSED, IMPLIED OR STATUTORY REGARDING FORMIDABLE, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND/OR FITNESS FOR A PARTICULAR PURPOSE, OR THE EQUIVALENT UNDER THE LAW OF ANY JURISDICTION.
10. Termination
The EULA will be terminated automatically and immediately in the event of termination of this agreement or a breach of any provision of this agreement, regardless of what form termination takes, the End User hereby agrees to immediately stop using the Formidable, return all copies of Formidable and related documentation or certify the destruction of Formidable and related documentation.
11. Clauses in the Contract
Besides what is stated in this EULA the clauses in the Terms of Use, Subscription Agreement and License Agreement applies whereas a material breach of any provision in this EULA always is a fundamental breach of the Terms of Use, Subscription Agreement and License Agreement.
Last Updates: 2014-2-12
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