eMastered ATOM End User License Agreement
eMastered, LLC ("EMASTERED") offers you ("Licensee") a license to use the Product (as defined in Section 1) only upon the condition that you accept all of the terms contained in this End User License Agreement (the "Agreement") by downloading, installing or using this Product. If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms "you" or "your" shall refer to such entity. Your use of the Product, even if obtained in contravention of this Agreement, indicates your agreement to these terms. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN DO NOT CLICK THE ACCEPT BUTTON, OR DO NOT INSTALL, DOWNLOAD, OR USE THE SOFTWARE.
TERMS AND CONDITIONS
1. Definitions
a. "Evaluation" means testing the Product for a reasonable period (in any event, no more than 14 days from the time you receive the Product)
b. "Host Device" means a computer, such as a workstation, terminal or other device ("Host Device"). The Product may not be used by more than one processor at any one time on any single Host Device.
c. "Personal Use" means your use of the Product on the Host Device where you have installed the Product or where your IT-Department was asked to install the Product.
d. "Product" means the binary and web based software packages that you are downloading, installing or using. The Product includes all documentation and updates provided to you by EMASTERED under this Agreement and the terms of this Agreement will apply to all such documentation and updates unless a different license is provided with an update or documentation.
2. License
a. Evaluation License. If you have obtained the Product for evaluation purposes and/or have not paid EMASTERED the applicable license fees for the Product, EMASTERED grants you a non-exclusive, non-transferable, personal, 14-day term license to install, execute, reproduce, and use internally the Product on up to two Host Devices solely for the purpose of Evaluation. After the expiry of that 14-day term, you are no longer permitted to further use the Product without written authorization from EMASTERED.
b. Internal Use License. Subject to your payment of the applicable license fees, EMASTERED grants you a non-exclusive, non-transferable, specific duration (limited by the applicable purchase agreement) license to install, execute, reproduce, and use internally the Product on up to two Host Devices solely for your Personal Use. Additionally, you must register the Product in order to receive an activation key that enables you to use the Product for non-evaluation purposes. [For the registration, you need to enter your name, email address and postal address.]
c. In the event of a claim of rights to the Product by a third party, EMASTERED shall be allowed to provide updates to the Product. You are then obliged to install such updates.
d. All applicable intellectual property rights, including copyrights, trade secrets, patents, and trademarks in the Product and user manual, or any modifications or enhancements thereto, shall remain with EMASTERED.
e. This Agreement applies to updates, supplements, add-on components, support or Internet-based services components, of the Product that EMASTERED may provide to you or make available to you after the date you obtain your initial copy of the Product, unless EMASTERED provides other terms along with the update, supplement, add-on component, support or Internet-based services component.
3. Restrictions and Reservation of Rights
a. Any use beyond the provisions of Section 2 is prohibited. The Product and copies thereof provided to you under this Agreement are copyrighted and licensed by EMASTERED. EMASTERED reserves all copyrights and other intellectual property rights. This includes, but is not limited to, the right to modify, make available or public, rent out, lease, lend or otherwise distribute the Product. This does not apply as far as applicable law may require otherwise or if EMASTERED grants you additional rights of use in a separate agreement in writing.
b. You may not do any of the following:
i. modify the Product;
ii. rent, lease, lend or encumber the Product;
iii. remove or alter any proprietary legends or notices contained in the Product; or
iv. decompile, or reverse engineer the Product (unless enforcement of this restriction is prohibited by applicable law).
c. No right, title or interest in or to any trademark, service mark, logo or trade name of EMASTERED or its EMASTEREDs is granted under this Agreement.
d. EMASTERED reserves all rights not granted to you in this Agreement.
4. Term and Termination.
a. The Agreement is effective on the date you receive the Product, an order for the Product is accepted by you or on the date a signed copy of this Agreement in written form is received by EMastered and remains effective until terminated.
b. You may terminate this license immediately by uninstalling and destroying all copies of the Software in your possession.
c. This license will terminate automatically, without notice from EMASTERED, immediately (i) upon the breach of any terms of this license, or (ii) in the event you file for bankruptcy protection, are declared bankrupt in any jurisdiction, or have a receiver appointed, and such filing, declaration, or appointment is not rescinded within ninety (90) days.
d. EMASTERED may terminate this Agreement should any Product become, or in EMASTERED's opinion is likely to become the subject of a claim of intellectual property infringement or trade secret misappropriation. Upon termination, you will cease use of and destroy the Product and confirm compliance in writing to EMASTERED.
e. Sections 3-11, inclusive, will survive termination or expiration of the Agreement.
5. Limitation of Liability.
In no event shall EMASTERED or its suppliers have any liability for consequential, exemplary, special, indirect, incidental or punitive damages, including, but not limited to, any lost profit or lost savings (whether resulting from impaired or lost data, software or computer failure, support failure, or any other cause), even if it has been advised of the possibilities of such damages. In no event will EMASTERED's liability to you, whether in contract, tort (including negligence), or otherwise, exceed the amount paid by you for Product under this Agreement.
6. Representations and Disclaimer of Warranty
a. EMASTERED represents that it will provide the software and software maintenance in a manner consistent with industry standards reasonably applicable to the provision thereof and that the software will perform substantially in accordance with the online documentation under normal use and circumstances. Except as set forth in this Agreement, the Product is provided to you without any warranties, including, but not limited to, warranties concerning the installation, use or performance of the Product.
b. EMASTERED does not warrant that the Product will meet your requirements or that the operation thereof will be interrupted or error-free, or that all errors will be corrected.
c. EMASTERED DISCLAIMS ANY AND ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY AND/OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
7. Third Party Code.
Portions of Product may be provided with notices and open source licenses from communities and third parties that govern the use of those portions, and any licenses granted hereunder do not alter any rights and obligations you may have under such open source licenses, however, the disclaimer of warranty and limitation of liability provisions in this Agreement will apply to all the Products. For the avoidance of doubt, by accepting the terms of this Agreement, you are accepting the terms of the open source license agreements, if any, for the Product.
8. Charges, Payment and Renewal.
a. Payment plans and terms of any type and amount owed by you to EMASTERED, if applicable, shall be paid within 7 days of transaction invoiced by EMASTERED.
b. Refunds of the non-evaluation version of the Product are only available within 3 days of activation.
c. In the event any overdue amount owed by you is not paid following 7 days written notice from EMASTERED, then in addition to any other amount due, EMASTERED may impose and you shall pay a late payment charge at the rate of half of one percent (0.5%) per month on any overdue amount plus all expenses of collection. All payment obligations are non-cancellable and all amounts paid are nonrefundable. Fees for other services will be charged on an as-quoted basis.
d. EMASTERED reserves the right to suspend or terminate this Agreement and your access to the Product if your account becomes delinquent (falls into arrears). All terms and pricing are confidential, and you agree not to disclose them to any third party. All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties unless specifically included in quotation.
e. EMASTERED reserves the right to modify its product offerings, fees and charges and to introduce new charges.
9. Miscellaneous.
a. This Agreement is the entire agreement between you and EMASTERED relating to its subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals, representations and warranties and prevails over any conflicting or additional terms of any quote, order, acknowledgment, or other communication between the parties relating to its subject matter during the term of this Agreement.
b. No modification by you of this Agreement will be binding, unless in writing and signed by an authorized representative of each party.
c. This Agreement may not be assigned (including performance by subcontract) by any party hereto. Any purported assignment in violation of this clause is void.
d. If any provision of this Agreement is held to be unenforceable, this Agreement will remain in effect with the provision omitted, unless omission would frustrate the intent of the parties, in which case this Agreement will immediately terminate.
e. Course of dealing and other standard business conditions of the parties or the industry shall not apply.
f. This is not a third party beneficiary contract. No person or entity other than a party to this Agreement shall have any rights under this Agreement.
10. Dispute Resolution.
a. Governing Law. This Agreement shall be subject to, and interpreted by and in accordance with, the laws (excluding conflict of law provisions) of the State of Delaware.
b. Venue. Any cause of action for a breach or enforcement of, or a declaratory judgment respecting, this Agreement shall be commenced and maintained only in the US District Court for the District of Delaware or the applicable state trial court sitting in Wilmington, Delaware and having subject matter jurisdiction.
c. Injunction. You agree that your breach of any provision of this license will cause EMASTERED irreparable injury that is inadequately compensable in monetary damages and, accordingly, that EMASTERED shall be entitled to injunctive relief in any court of competent jurisdiction against the breach or threatened breach of this license, in addition to any other remedies in law or equity.
d. Attorney Fees. In any action brought by a party hereto to enforce the obligations of any other party hereto, the prevailing party shall be entitled to collect from the opposing party to such action such party's reasonable litigation costs and attorneys fees and expenses (including court costs, reasonable fees of accountants and experts, and other expenses incidental to the litigation).
e. Waiver. The waiver or failure of EMASTERED to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right hereunder and no waiver shall be effective unless in writing.
11. Severability.
In the event any provision of this Agreement, or the application of such provision to any person or set of circumstances, shall be determined to be invalid, unlawful, or unenforceable to any extent for any reason, the remainder of this Agreement, and the application of such provision to persons or circumstances other than those as to which it is determined to be invalid, unlawful, or unenforceable, shall not be affected and shall continue to be enforceable to the fullest extent permitted by law.