This End-User License Agreement (this “Agreement”) is between you, as either an individual or as an Entity (defined below), and Inprowiser, LLC. (“Inprowiser”). READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE DOWNLOADING, INSTALLING, OBTAINING A LICENSE KEY (IF ANY), OR OTHERWISE ACCESSING OR USING INPROWISER’S PROPRIETARY SOFTWARE (“CAPACITY TRACKER”) ACCOMPANIED BY THIS AGREEMENT (THE SOFTWARE”). THE CAPACITY TRACKER SOFTWARE IS LICENSED TO YOU UNDER THIS AGREEMENT, NOT SOLD TO YOU. BY DOWNLOADING, INSTALLING, OBTAINING A LICENSE KEY (IF ANY), OR OTHERWISE ACCESSING OR USING ANY PART OF THE SOFTWARE, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS AND CONDITIONS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY (“ENTITY”), YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS, AND REFERENCES TO “YOU” OR YOUR” REFER TO USER, THE INDIVIDUAL END-USER, AND THE ENTITY. IF YOU DO NOT HAVE THAT AUTHORITY OR IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT DOWNLOAD, INSTALL, OBTAIN A LICENSE KEY (IF ANY), OR OTHERWISE ACCESS OR USE THE SOFTWARE. IF YOU ARE ACCESSING THE SOFTWARE AS PART OF A HOSTED SERVICE, THEN ALL OF THESE TERMS STILL APPLY. HOSTED SERVICES INCLUDE USING ANY INPROWISER’S SOFTWARE AS A SERVICE, AND ALWAYS MEANS THE VERSION OF THE HOSTED SERVICES DESCRIBED IN INPROWISER’S THEN-CURRENT PRODUCT DESCRIPTION. THE TERM “PRODUCTS” AS USED IN THIS END USER LICENSE AGREEMENT INCLUDES BOTH SOFTWARE AND HOSTED SERVICES.
You do not have an active license to use the Products unless and until you have paid the requested license fee or service fee. Inprowiser reserves the right to increase license fees or service fees for the Products, including a higher price for new initial licenses, for yearly renewals and for monthly charges. Inprowiser may also charge for software or services that initially included in a license fee or service fee, including support, maintenance, updates or upgrades. You understand that Capacity Tracker or its licensors (“Inprowiser”) may modify or discontinue offering the Software at any time. This Agreement does not give You any rights not expressly and unambiguously granted herein. You shall not, nor permit anyone else to, directly or indirectly: (i) copy, modify, or distribute the Products or license key (if any); (ii) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of Products, in whole or in part (except that this restriction shall not apply to the limited extent restrictions on reverse engineering are prohibited by applicable law); (iii) assign, rent, lease, or use the Products for timesharing or service bureau purposes, or otherwise use the Products for any commercial purpose; or (iv) create any derivative works from or sublicense any rights in the Products. You shall maintain and not remove or obscure any proprietary notices on the Products, and shall reproduce such notices exactly on all permitted copies of the Products.
You represent, warrant and covenant that you will not use the Products: (i) to infringe the intellectual property or proprietary rights, or rights of publicity or privacy, of any third party; (ii) to violate any applicable federal, state or local law, statute, ordinance or regulation; (iii) to disseminate, transfer or store information or materials in any form or format (“Content”) that are harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable or that otherwise violate any law or right of any third party; (iv) to disseminate any software viruses or any other computer code, files or programs that may interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, or violate the security of any computer network; or (v) to run Maillist, Listserv, “bots,” “robots,” any form of auto-responder, or “spam,” or any processes that run or are activated while you are not logged in. You, not Inprowiser, remain solely responsible for all Content that you upload, post, e-mail, transmit, or otherwise disseminate using, or in connection with, the Products. You acknowledge that all Content you access through use of the Products is accessed at your own risk and you will be solely responsible for any damage or liability to any party resulting from such access.
3. Intellectual Property; Content
You acknowledge that the Products and its accompanying documentation are protected by copyright and other intellectual property laws and treaties. You further acknowledge and agree that Inprowiser and its licensors shall continue to own all title, ownership rights, and intellectual property rights in and to the Products, and any copies or portions thereof, and any accompanying documentation. You understand that Inprowiser or its licensors may modify or discontinue offering the Products at any time. This Agreement does not give you any rights not expressly and unambiguously granted herein.
4. Support; Equipment
Server Version of Products. If you are licensing the server version of the Products, your perpetual license entitles you to contact support, upgrades, patches, enhancements, and fixes (collectively, “Support”) for one (1) year following the commencement of a fully paid support term for this version of the Products (or the next version, at Inprowiser’s sole discretion, during such one (1) year support term), provided that you comply with all the terms and conditions of this Agreement. Such support is included for the license period in software as a service licenses. Your Support will automatically renew (and continue to renew) for a period of one (1) year unless you cancel your subscription. The fee for Support after year one will be 50% of the original perpetual license fee, which included one year of Support.
You shall be responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access, or otherwise use the Products, including, without limitation, modems, hardware, software, and long distance or local telephone service. You shall be responsible for ensuring that such equipment or ancillary services are compatible with the Products. Hosted Version of Products. If you are using the Hosted version of the Products, then you are licensing the use of a service which will include access to the then current version of the Inprowiser Software. If you have questions or problem with this version, please raise a support ticket. You shall be responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access, or otherwise use the Products, including, without limitation, modems, hardware, software, and long distance or local telephone service. You shall be responsible for ensuring that such equipment or ancillary services are compatible with the Products.
5. Warranty Disclaimer
THE PRODUCTS ARE PROVIDED “AS IS”. INPROWISER MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND INPROWISER EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. FURTHER, INPROWISER DOES NOT WARRANT RESULTS OF USE OR THAT THE PRODUCTS ARE BUG FREE OR ERROR FREE OR THAT ITS USE WILL BE UNINTERRUPTED. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. ALL THE FOREGOING DISCLAIMERS ALSO APPLY IN FULL WITH RESPECT TO INPROWISER’S LICENSORS, SUPPLIERS, DISTRIBUTORS, CONTRACTORS AND AGENTS.
You agree that Inprowiser and its licensors, distributors, contractors and agents (collectively, the “Indemnified Parties”) shall have no liability whatsoever for any use you make of the Products. You shall indemnify and hold harmless the Indemnified Parties from any claims, damages, liabilities, costs and fees (including reasonable attorneys’ fees) arising from (a) your failure to comply with any term of this Agreement; or (b) use of the Products in combination with other hardware, software or other systems that would have been avoided but for such use or combination. To the maximum extent permitted by applicable law, you hereby release, and waive all claims against, Inprowiser and its licensors, suppliers, employees and agents from any and all liability for claims, damages (actual and consequential), costs and expenses (including litigation costs and attorneys’ fees) of every kind and nature, arising out of or in any way connected with use of the Products. If you are a California resident, you waive your rights under California Civil Code § 1542, which states, "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." Residents of other states and nations waive their rights under all analogous laws, statutes or regulations.
7. Limitation of Remedies and Damages
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, SHALL THE INDEMNIFIED PARTIES BE LIABLE TO YOU OR ANY OTHER PERSON (I) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER OR (II) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL. INPROWISER’S LIABILITY FOR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES PAID BY YOU TO INPROWISER, EXCEPT WHERE NOT PERMITTED BY APPLICABLE LAW, IN WHICH CASE INPROWISER’S LIABILITY SHALL BE LIMITED TO THE MINIMUM AMOUNT PERMITTED BY SUCH APPLICABLE LAW. ALL THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF INPROWISER HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
If you selected a perpetual license for this Products in the Order Form, then this Agreement shall continue until terminated as set forth in this section. You may terminate this Agreement upon 90 days’ notice to Inprowiser.
If you selected software as a service license for these Products in the Order Form, then you have paid for a one-month license which will automatically renew (and continue to renew) unless you cancel your subscription before the end of the existing term. You will be responsible for paying for additional terms at the then-current rate. Your rights under this Agreement will terminate automatically and irrevocably without notice from Inprowiser if you fail to comply with any term(s) of this Agreement, including any attempt to transfer a copy of the Software or Software license key (if any) to another party except as provided in this Agreement. Upon termination for any reason, the Agreement granted hereunder shall terminate and you shall immediately discontinue all use of the Products and destroy and remove from all computers, hard drives, mobile devices, networks and other storage media all copies of the Products, but the terms of Section 2 (Restrictions); Section 5 (Warranty Disclaimer); Section 6 (Indemnity); Section 7 (Limitation of Liability); the last sentence of this Section 8 (Termination) and Section 10 (Miscellaneous) of this Agreement will otherwise remain in effect.
9. Export Law Assurances.
In connection with the Products, you agree to comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or other United States or foreign agency or authority, and you agree not to export, or allow the export or re-export of the Products in violation of any such restrictions, laws or regulations. By downloading, installing, accessing or using the Products, you agree to the foregoing and represent and warrant that you are not located in, under the control of, or a national or resident of any restricted country.
YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS END USER LICENSE AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CLICKING ON THE ACCEPT BUTTON AND/OR CONTINUING TO INSTALL OR OTHERWISE USE THE PRODUCTS, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS AND GRANT TO INPROWISER THE RIGHTS SET FORTH HEREIN.