SYNAMEDIA VIVIDTEC HOLDINGS, INC. END USER LICENSE AGREEMENT (“EULA”)
This is an agreement between You and Synamedia Vividtec Holdings, Inc. or its affiliates (“Synamedia”) and governs your Use of Synamedia Software. “You” and “Your” means the individual or legal entity licensing the Software under this EULA. “Use” or “Using” means to download, install, activate, access or otherwise use the Software. “Software” means the Synamedia computer programs and any Upgrades made available to You by an Approved Source and licensed to You by Synamedia. “Documentation” is the Synamedia user or technical manuals, training materials, specifications or other documentation applicable to the Software and made available to You by an Approved Source. “Approved Source” means (i) Synamedia or (ii) the Synamedia authorized reseller, distributor or systems integrator from whom you acquired the Software. “Entitlement” means the license detail; including license metric, duration, and quantity provided in a product ID (PID) published on Synamedia’s price list, claim certificate or right to use notification. “Upgrades” means all updates, upgrades, bug fixes, error corrections, enhancements and other modifications to the Software and backup copies thereof.
- ACCEPTANCE OF TERMS
By Using the Software, You agree to be bound by the terms of the EULA. If you are entering into this EULA on behalf of an entity, you represent that you have authority to bind that entity. If you do not have such authority or you do not agree to the terms of the EULA, neither you nor the entity may Use the Software and it may be returned to the Approved Source for a refund within thirty (30) days of the date you acquired the Software or Synamedia product. Your right to return and refund applies only if you are the original end user licensee of the Software.
- Subject to payment of the applicable fees and compliance with this EULA, Synamedia grants You a limited, non-exclusive and non-transferable license to Use object code versions of the Software and the Documentation solely for Your internal operations and in accordance with the Entitlement and the Documentation. Synamedia licenses You the right to Use only the Software You acquire from an Approved Source. Unless contrary to applicable law, You are not licensed to Use the Software on second-hand or refurbished Synamedia equipment not authorized by Synamedia, or on Synamedia equipment not purchased through an Approved Source. In the event that Synamedia requires You to register as an end user, Your license is valid only if the registration is complete and accurate. The Software may contain open source software, subject to separate license terms made available with the Synamedia Software or Documentation.
- If the Software is licensed for a specified term, Your license is valid solely for the applicable term in the Entitlement. Your right to Use the Software begins on the date the Software is made available for download or installation and continues until the end of the specified term, unless otherwise terminated in accordance with this EULA.
- EVALUATION LICENSE
If You license the Software or receive Synamedia product(s) for evaluation purposes or other limited, temporary use as authorized by Synamedia (the “Evaluation Product”), Your Use of the Evaluation Product is only permitted for the period limited by the license key or otherwise stated by Synamedia in writing. If no evaluation period is identified by the license key or in writing, then the evaluation license is valid for thirty (30) days from the date the Software or Synamedia product is made available to You. You will be invoiced for the list price of the Evaluation Product if You fail to return or stop Using it by the end of the evaluation period. The Evaluation Product is licensed “AS-IS” without support or warranty of any kind, express or implied. Synamedia does not assume any liability arising from any use of the Evaluation Product. You may not publish any results of benchmark tests run on the Evaluation Product without first obtaining written approval from Synamedia. You authorize Synamedia to use any feedback or ideas You provide Synamedia in connection with Your Use of the Evaluation Product.
Synamedia or its licensors retain ownership of all intellectual property rights in and to the Software, including copies, improvements, enhancements, derivative works and modifications thereof. Your rights to Use the Software are limited to those expressly granted by this EULA. No other rights with respect to the Software or any related intellectual property rights are granted or implied.
- LIMITATIONS AND RESTRICTIONS
You will not and will not allow a third party to:
- transfer, sublicense, or assign Your rights under this license to any other person or entity (except as expressly provided in Section 12 below), unless expressly authorized by Synamedia in writing;
- modify, adapt or create derivative works of the Software or Documentation;
- reverse engineer, decompile, decrypt, disassemble or otherwise attempt to derive the source code for the Software, except as provided in Section 15 below;
- make the functionality of the Software available to third parties, whether as an application service provider, or on a rental, service bureau, cloud service, hosted service, or other similar basis unless expressly authorized by Synamedia in writing;
- Use Software that is licensed for a specific device, whether physical or virtual, on another device, unless expressly authorized by Synamedia in writing; or
- remove, modify, or conceal any product identification, copyright, proprietary, intellectual property notices or other marks on or within the Software.
- THIRD PARTY USE OF SOFTWARE
You may permit a third party to Use the Software licensed to You under this EULA if such Use is solely (i) on Your behalf, (ii) for Your internal operations, and (iii) in compliance with this EULA. You agree that you are liable for any breach of this EULA by that third party.
- LIMITED WARRANTY AND DISCLAIMER
- Limited Warranty.
Synamedia warrants that the Software will substantially conform to the applicable Documentation for ninety (90) days following the date the Software is made available to You for your Use. This warranty does not apply if the Software, Synamedia product or any other equipment upon which the Software is authorized to be used: (i) has been altered, except by Synamedia or its authorized representative, (ii) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by Synamedia, (iii) has been subjected to abnormal physical or electrical stress, abnormal environmental conditions, misuse, negligence, or accident; (iv) is licensed for beta, evaluation, testing or demonstration purposes or other circumstances for which the Approved Source does not receive a payment of a purchase price or license fee; or (v) has not been provided by an Approved Source. Synamedia will use commercially reasonable efforts to deliver to You Software free from any viruses, programs, or programming devices designed to modify, delete, damage or disable the Software or Your data.
- Exclusive Remedy.
At Synamedia’s option and expense, Synamedia shall repair, replace, or cause the refund of the license fees paid for the non-conforming Software. This remedy is conditioned on You reporting the non-conformance in writing to Your Approved Source within the warranty period. The Approved Source may ask You to return the Software, the Synamedia product, and/or Documentation as a condition of this remedy. This Section is Your exclusive remedy under the warranty.
EXCEPT AS EXPRESSLY SET FORTH ABOVE, SYNAMEDIA AND ITS LICENSORS PROVIDE SOFTWARE “AS IS” AND EXPRESSLY DISCLAIM ALL WARRANTIES, CONDITIONS OR OTHER TERMS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, WARRANTIES, CONDITIONS OR OTHER TERMS REGARDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DESIGN, CONDITION, CAPACITY, PERFORMANCE, TITLE, AND NON-INFRINGEMENT. SYNAMEDIA DOES NOT WARRANT THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED OR ERROR-FREE OR THAT ALL ERRORS WILL BE CORRECTED. IN ADDITION, SYNAMEDIA DOES NOT WARRANT THAT THE SOFTWARE OR ANY EQUIPMENT, SYSTEM OR NETWORK ON WHICH THE SOFTWARE IS USED WILL BE FREE OF VULNERABILITY TO INTRUSION OR ATTACK.
- Limited Warranty.
- LIMITATIONS AND EXCLUSIONS OF LIABILITY
IN NO EVENT WILL SYNAMEDIA OR ITS LICENSORS BE LIABLE FOR THE FOLLOWING, REGARDLESS OF THE THEORY OF LIABILITY OR WHETHER ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR OTHERWISE, EVEN IF A PARTY BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES: (A) INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES; (B) LOSS OR CORRUPTION OF DATA OR INTERRUPTED OR LOSS OF BUSINESS; OR (C) LOSS OF REVENUE, PROFITS, GOODWILL OR ANTICIPATED SALES OR SAVINGS. ALL LIABILITY OF SYNAMEDIA, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS COLLECTIVELY, TO YOU, WHETHER BASED IN WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL NOT EXCEED THE LICENSE FEES PAID BY YOU TO ANY APPROVED SOURCE IN THE TWELVE MONTHS PRIOR TO THE DATE OF THE CLAIM FOR THE SOFTWARE THAT GAVE RISE TO THE CLAIM. THIS LIMITATION OF LIABILITY FOR SOFTWARE IS CUMULATIVE AND NOT PER INCIDENT. NOTHING IN THIS EULA LIMITS OR EXCLUDES ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED UNDER APPLICABLE LAW.
- UPGRADES AND ADDITIONAL COPIES OF SOFTWARE
Notwithstanding any other provision of this EULA, You are not permitted to Use Upgrades unless You, at the time of acquiring such Upgrade:
- already hold a valid license to the original version of the Software, are in compliance with such license, and have paid the applicable fee for the Upgrade; and
- limit Your Use of Upgrades or copies to Use on devices You own or lease; and
- unless otherwise provided in the Documentation, make and Use additional copies solely for backup purposes, where backup is limited to archiving for restoration purposes.
During the license term for the Software and for a period of three (3) years after its expiration or termination, You will take reasonable steps to maintain complete and accurate records of Your use of the Software sufficient to verify compliance with this EULA. No more than once per twelve (12) month period, You will allow Synamedia and its auditors the right to examine such records and any applicable books, systems (including Synamedia product(s) or other equipment), and accounts, upon reasonable advanced notice, during Your normal business hours. If the audit discloses underpayment of license fees, You will pay such license fees plus the reasonable cost of the audit within thirty (30) days of receipt of written notice.
- TERM AND TERMINATION
This EULA shall remain effective until terminated or until the expiration of the applicable license or subscription term. You may terminate the EULA at any time by ceasing use of or destroying all copies of Software. This EULA will immediately terminate if You breach its terms, or if You fail to pay any portion of the applicable license fees and You fail to cure that payment breach within thirty (30) days of notice. Upon termination of this EULA, You shall destroy all copies of Software in Your possession or control.
Neither this EULA nor any rights, duties or obligations hereunder shall be assignable or transferable, in whole or in part.
Synamedia Software, products, technology and services are subject to local and extraterritorial export control laws and regulations. You and Synamedia each will comply with such laws and regulations governing use, export, re-export, and transfer of Software, products and technology and will obtain all required local and extraterritorial authorizations, permits or licenses.
Sections 4, 5, the warranty limitation in 7(a), 7(b) 7(c), 8, 10, 11, 13, 14, 16 and 17 shall survive termination or expiration of this EULA.
To the extent required by applicable law, Synamedia shall provide You with the interface information needed to achieve interoperability between the Software and another independently created program. Synamedia will provide this interface information at Your written request after you pay Synamedia’s licensing fees (if any). You will keep this information in strict confidence and strictly follow any applicable terms and conditions upon which Synamedia makes such information available.
- GOVERNING LAW, JURISDICTION AND VENUE
This EULA and any dispute or claim arising out of or in connection with it (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the state of Georgia, U.S.A. The State and Federal courts based in Atlanta, Georgia, USA shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this EULA. The parties specifically disclaim the application of the UN Convention on Contracts for the International Sale of Goods to the interpretation or enforcement of this EULA
If any portion of this EULA is found to be void or unenforceable, the remaining provisions of the EULA shall remain in full force and effect. Except as expressly stated or as expressly amended in a signed agreement, the EULA constitutes the entire agreement between the parties with respect to the license of the Software and supersedes any conflicting or additional terms contained in any purchase order or elsewhere, all of which terms are excluded. The parties agree that the English version of the EULA will govern in the event of a conflict between it and any version translated into another language.
Synamedia and the Synamedia logo are trademarks or registered trademarks of Synamedia and/or its affiliates. Third-party trademarks mentioned are the property of their respective owners. The use of the word partner does not imply a partnership relationship between Synamedia and any other company.