NOTICE TO USER: PLEASE READ THIS CONTRACT CAREFULLY. BY USING ALL OR ANY PORTION OF THE SOFTWARE YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING, IN PARTICULAR THE LIMITATIONS ON: USE CONTAINED IN SECTION 2; TRANSFERABILITY IN SECTION 4; WARRANTY IN SECTION 6 AND 7; AND LIABILITY IN SECTION 8. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE, DO NOT USE THIS SOFTWARE. IF YOU ACQUIRED THE SOFTWARE ON TANGIBLE MEDIA (e.g. CD) WITHOUT AN OPPORTUNITY TO REVIEW THIS LICENSE AND YOU DO NOT ACCEPT THIS AGREEMENT, YOU MAY OBTAIN A REFUND OF THE AMOUNT YOU ORIGINALLY PAID IF YOU: (A) DO NOT USE THE SOFTWARE AND (B) RETURN IT, WITH PROOF OF PAYMENT, TO THE LOCATION FROM WHICH IT WAS OBTAINED WITHIN THIRTY (30) DAYS OF THE PURCHASE DATE.
When used in this Agreement, the following terms shall have the respective meanings indicated, such meanings to be applicable to both the singular and plural forms of the terms defined:
“Licensor” means Power Metrics International, with its main address located at 1961 Richmond Terrace, Staten Island, NY 10302.
“Software” means (a) all of the contents of the files, disk(s), CD-ROM(s) or other media with which this Agreement is provided, including but not limited to (i) Power Metrics International or third party computer information or software; (ii) digital images, stock photographs, clip art, sounds or other artistic works (“Stock Files”); (iii) related explanatory written materials or files (“Documentation”); and (iv) fonts; and (b) upgrades, modified versions, updates, additions, and copies of the Software, if any, licensed to you by Power Metrics International (collectively, “Updates”).
“Use” or “Using” means to access, install, download, copy or otherwise benefit from using the functionality of the Software in accordance with the Documentation.
“Licensee” means You or Your Company, unless otherwise indicated.
“Permitted Number” means one (1) unless otherwise indicated under a valid license (e.g. volume license) granted by Power Metrics International.
“Computer” means an electronic device that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions.
2. SOFTWARE LICENSE
As long as you comply with the terms of this End User License Agreement (the “Agreement”), Power Metrics International grants to you a non-exclusive license to Use the Software for the purposes described in the Documentation. Some third party materials included in the Software may be subject to other terms and conditions, which are typically found in a “Read Me” file located near such materials.
1General Use You may install and Use a copy of the Software on your compatible computer, up to the Permitted Number of computers.
2ServerUse You may install one copy of the Software on your computer file server for the purpose of downloading and installing the Software onto other computers within your internal network up to the Permitted Number or you may install one copy of the Software on a computer file server within your internal network for the sole and exclusive purpose of using the Software through commands, data or instructions (e.g. scripts) from an unlimited number of computers on your internal network. No other network use is permitted, including but not limited to, using the Software either directly or through commands, data or instructions from or to a computer not part of your internal network, for internet or web hosting services or by any user not licensed to use this copy of the Software through a valid license from Power Metrics International.
3 Backup Copy You may make one backup copy of the Software, provided your backup copy is not installed or used on any computer. You may not transfer the rights to a backup copy unless you transfer all rights in the Software as provided under Section 6.
4 Home Use You, as the primary user of the computer on which the Software is installed, may also install the Software on one of your home computers. However, the Software may not be used on your home computer at the same time the Software on the primary computer is being used.
5 Stock Files Unless stated otherwise in the “Read-Me” files associated with the Stock Files, which may include specific rights and restrictions with respect to such materials, you may display, modify, reproduce and distribute any of the Stock Files included with the Software. However, you may not distribute the Stock Files on a stand-alone basis, i.e., in circumstances in which the Stock Files constitute the primary value of the product being distributed. Stock Files may not be used in the production of libelous, defamatory, fraudulent, lewd, obscene or pornographic material or any material that infringes upon any third party intellectual property rights or in any otherwise illegal manner. You may not claim any trademark rights in the Stock Files or derivative works thereof.
6 Limitations To the extent that the Software includes Power Metrics International SPIDER software, (i) you may customize the installer for such software in accordance with the restrictions found at Power Metrics International, Inc; however, you may not otherwise alter or modify the installer program or create a new installer for any of such software, (ii) such software is licensed and distributed by Power Metrics International, and (iii) you are not authorized to use any plug-in or enhancement that permits you to save modifications to a exe. file with such software; however, such use is authorized with Power Metrics International, Power Metrics International SPIDER, and other current and future Power Metrics International products. For information on how to distribute SPIDER please refer to the sections entitled “How to Distribute SPIDER” by contacting Power Metrics International.
1. INTELLECTUAL PROPERTY RIGHTS
The Software and any copies that you are authorized by Power Metrics International to make are the intellectual property of and are owned by Power Metrics International and its suppliers. The structure, organization and code of the Software are the valuable trade secrets and confidential information of Power Metrics International and its suppliers. The Software is protected by copyright, including without limitation by USA Copyright Law, international treaty provisions and applicable laws in the country in which it is being used. You may not copy the Software, except as set forth in Section 2 (“Software License”). Any copies that you are permitted to make pursuant to this Agreement must
contain the same copyright and other proprietary notices that appear on or in the Software. You also agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software except to the extent you may be expressly permitted to decompile under applicable law, it is essential to do so in order to achieve operability of the Software with another software program, and
you have first requested Power Metrics International to provide the information necessary to achieve such operability and Power Metrics International has not made such information available. Power Metrics International has the right to impose reasonable conditions and
to request a reasonable fee before providing such information. Any information supplied by Power Metrics International or obtained by you, as permitted hereunder, may only be used by you for the purpose described herein and may not be disclosed to any third party or used to create any software which is substantially similar to the expression of the Software. Requests for information should be directed to the Power Metrics International Customer Support Department. Trademarks shall be used in accordance with accepted trademark practice, including identification of trademarks owners’ names. Trademarks can only be used to identify printed output produced by the Software and such use of any trademark does not give you any rights of ownership in that trademark. This Agreement does not grant you any intellectual property rights in the Software.
You may not, rent, lease, sublicense or authorize all or any portion of the Software to be copied onto another users computer except as may be expressly permitted herein. You may, however, transfer all your rights to Use the Software to another person or legal entity provided that: (a) you also transfer each of this Agreement, the Software and all other software or hardware bundled or pre-installed with the Software, including all copies, Updates and prior versions, and all copies of font software converted into other formats, to such person or entity; (b) you retain no copies, including backups and copies stored on a computer; 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 Software. Notwithstanding the foregoing, you may not transfer education, pre-release, or not for resale copies of the Software.
3. NO WARRANTY
The Software is being delivered to you “AS IS” and Power Metrics International makes no warranty as to its use or performance. POWER METRICS INTERNATIONAL INC. AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE. EXCEPT 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, POWER METRICS INTERNATIONAL INC. AND ITS SUPPLIERS MAKE NO WARRANTIES CONDITIONS, REPRESENTATIONS, OR TERMS (EXPRESS OR IMPLIED WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE) AS TO ANY MATTER INCLUDING WITHOUT LIMITATION NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, INTEGRATION, SATISFACTORY QUALITY, OR FITNESS FOR ANY PARTICULAR PURPOSE.
4. LIMITATION OF LIABILITY
IN NO EVENT WILL POWER METRICS INTERNATIONAL INC. OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY DAMAGES, CLAIMS OR COSTS WHATSOEVER OR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL DAMAGES, OR ANY LOST PROFITS OR LOST SAVINGS, (WHETHER OR NOT A POWER METRICS INTERNATIONAL INC. REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS). THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. Power Metrics Internationals AGGREGATE LIABILITY AND THAT OF ITS SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THE SOFTWARE, IF ANY. Power Metrics International is acting on behalf of its suppliers for the purpose of disclaiming, excluding and/or limiting obligations, warranties and liability as provided in this Agreement, but in no other respects and for no other purpose. For further information, please see the jurisdiction specific information at the end of this Agreement, if any, or contact Power Metrics International’s Customer Support Department.
5. GOVERNING LAW
This Agreement shall be governed by and interpreted and enforced in accordance with the laws of the State of New York. You hereby submit to the exclusive jurisdiction of the courts of the State of New York.
6. GENERAL PROVISIONS
If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. This Agreement shall not prejudice the statutory rights of any party dealing as a consumer. This Agreement may only be modified by a writing signed by an authorized officer of Power Metrics International. Updates may be licensed to you by Power Metrics International with additional or different terms. This is the entire agreement between Power Metrics International and you relating to the Software and it supersedes any prior representations, discussions, undertakings, communications or advertising relating to the Software.
7. NOTICE TO U.S. GOVERNMENT END USERS
The Software and Documentation are “Commercial Items,” as that term is defined at 48 C.F.R. Â§2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. Â§12.212 or 48 C.F.R. Â§227.7202, as applicable. Consistent with 48 C.F.R. Â§12.212 or 48 C.F.R. Â§Â§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 as are granted to all other end users pursuant to the terms and conditions herein. For U.S. Government End Users, Power Metrics International agrees to comply with all applicable equal opportunity laws including, if appropriate, the provisions of Executive Order 11246, as amended, Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974 (38 USC 4212), and Section 503 of the Rehabilitation Act of 1973, as amended, and the regulations at 41 CFR Parts 60-1 through 60-60, 60-250, and 60-741. The affirmative action clause and regulations contained in the preceding sentence shall be incorporated by reference in this Agreement.
8. COMPLIANCE WITH LICENSES
If you are a business or organization, you agree that upon request from Power Metrics International or Power Metrics International’s authorized representative, you will within thirty (30) days fully document and certify that use of any and all Power Metrics International Software at the time of the request is in conformity with your valid licenses from Power Metrics International.
If you have any questions regarding this Agreement or if you wish to request any information from Power Metrics International please use the address and contact information included with this product to contact the Power Metrics International office serving your jurisdiction. Power Metrics International, SP1000 /SP2000 and SPIDER are either registered trademarks or trademarks of Power Metrics International in the United States and/or other countries.