Enerjy® Software – Software License Agreement and User Agreement
This is a legal agreement between you, the end-user, and Enerjy Software, a division of Teamstudio, Inc., a Massachusetts, U.S.A. corporation. By clicking on the "accept" button for downloads or upon installation, you signify that you have read this Agreement and accept these terms, and are authorized (on behalf of any entity for which you are using or installing the Software) to accept and be bound by these terms. If you do not agree to the terms of this Agreement, then we are unwilling to license the Software to you, in which event you must not download, install or use the Software.
The term "you" means the company, entity or individual who is acquiring the license to use the Software under this Agreement. The term "we" or "us" means Enerjy Software, a division of Teamstudio, Inc., a Massachusetts, U.S.A. corporation, except that terms such as "both of us" means both you and us.
In this Agreement, the term “Software" means the software that this Agreement accompanies by "click-wrap" display box, including computer software and associated media and printed materials, and may include "online" or electronic documentation.
The Software is beta test software and is licensed to you for (a) the purpose of testing the software, reporting bugs and recommending changes to us, and (b) evaluating whether you wish to obtain a full license to the Software under a separate agreement.
1. Grant of License
We grant you the right to install and use the Software on a single user’s computer.
We reserve the right to require you or an officer of the licensee to certify that the terms of this agreement have been complied with, including, but not limited to, that the number of users has not at any time exceeded that permitted by the license.
2. Other Restrictions
You have the right to use one copy of the Software. You may make additional copies of the Software, but only for backup, disaster recovery or archival purposes or when copying is an essential step in the authorized use of the Software. You must reproduce all copyright and other proprietary or restricted rights notices in the original Software on all authorized copies. You may not copy the User Guide or written materials accompanying the Software.
You may not sell, assign, hire out or lease out the Software or make available the Software or any copies thereof in any form to any third parties. You may not: modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Software provided to you in object code form. If you are using the Software in any country in the European Community, the prohibition against modifying, translating, reverse engineering, decompiling, disassembling or creating derivative works based on the Software does not affect your rights under any legislation implementing the E.C. Council Directive on the Legal Protection of Computer Programs; provided, as specified in such directive, if you wish to exercise any rights under such directive to make the Software interoperable with other software, you must first request from us in writing the tools necessary to create interoperable programs.
The Software is owned by us or our suppliers and is protected by United States copyright laws, international treaty provisions, and all other applicable laws. Your license confers no title or ownership in the Software and is not a sale of any rights in the Software. All ownership rights remain in us or our third party suppliers, as the case may be.
4. Other Software
We may provide to you certain software which is specifically labeled as being provided by and/or owned by third parties (“Third Party Materials"). You shall be licensing such Third-Party Materials directly from the third party provider, including the right to use such Third Party Materials in connection with the Software.
Certain of the Third Party Materials supplied by us for use with the Software are governed by open-source software license agreements supplied with such Third Party Materials, such as the GNU General Public License. We make no claim of ownership of such open-source software, and such software is supplied solely in accordance with the license agreements accompanying such software. Accordingly, the restrictions above under "Grant of License" concerning scope of use, ownership, modification, confidentiality and other provisions relating to the Software do not apply to such open-source software. However, the disclaimer of warranty does apply to Third Party Materials.
5. Warranty Disclaimer
AS THE SOFTWARE IS BEING PROVIDED FOR FREE, IT IS PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY FUNCTIONALITY OR ITS BEING VIRUS FREE. YOU RECOGNIZE THAT THE “AS IS” CLAUSE OF THIS AGREEMENT IS AN IMPORTANT PART OF THE BASIS OF THIS AGREEMENT, WITHOUT WHICH WE WOULD NOT HAVE AGREED TO ENTER THIS AGREEMENT. WE DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SOFTWARE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT REGARDING THE SOFTWARE SHALL BE DEEMED A WARRANTY FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY WHATSOEVER. YOU ACKNOWLEDGE THAT YOU HAVE RELIED ON NO WARRANTIES OR STATEMENTS OTHER THAN AS MAY BE SET FORTH HEREIN. YOU ASSUME ALL RISK ASSOCIATED WITH THE QUALITY, PERFORMANCE, INSTALLATION AND USE OF THE SOFTWARE INCLUDING, BUT NOT LIMITED TO, THE RISKS OF PROGRAM ERRORS, DAMAGE TO EQUIPMENT, LOSS OF DATA OR SOFTWARE PROGRAMS, OR UNAVAILABILITY OR INTERRUPTION OF OPERATIONS. YOU ARE SOLELY RESPONSIBLE FOR DETERMINING THE APPROPRIATENESS OF USING THE SOFTWARE AND ASSUME ALL RISKS ASSOCIATED WITH ITS USE.
6. Limitation of Liability
WE SHALL NOT BE LIABLE TO USER OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, REVENUE OR SAVINGS, LOSS OF GOODWILL, OR THE LOSS OF USE OF ANY DATA, EVEN IF WE HAVE BEEN ADVISED OF, KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY THEREOF. IF ANY FEES ARE PAID FOR THE SOFTWARE, UNDER NO CIRCUMSTANCES SHALL OUR AGGREGATE CUMULATIVE LIABILITY HEREUNDER, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY YOU UNDER THIS AGREEMENT. YOU ACKNOWLEDGE THAT IF THE FEES ARE PAID BY YOU, THOSE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT WE WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON OUR LIABILITY.
You agree to indemnify and hold us, our parent company(ies), subsidiaries, affiliates, officers and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your use of the Software, or the infringement by you of any intellectual property or other right of any person or entity.
8. Technical Support
We provide technical support, under terms to be solely determined by us, electronically through our website.
9. U.S. Government Licenses.
The Software is a “commercial item,” as that term is defined in 48 C.F.R.12.101 (Oct.1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R.12.212 (Sept.1995). Consistent with 48 C.F.R.12.212 and 48 C.F.R.227.7202-1 through 227.7202-4 (June 1995), all U.S. Government end users acquire the Software with only those rights set forth herein.
You acknowledge that the Software and the media are subject to export controls under the U.S. Export Administration Regulations and the export regulations of other countries. You may not export or re-export, directly or indirectly, the Software, the media, or any related technical information or materials unless you have obtained an appropriate authorization from the U.S. Commerce Department and any other relevant government authority.
You may not transfer or assign the Software to a separate legal entity without our prior written consent.
Either you or we may terminate this Agreement at any time upon written notice. This Agreement shall terminate automatically, without notice, if you fail to comply with the terms of this Agreement. Upon any termination of this Agreement, you must immediately discontinue use of the Software and uninstall and destroy all copies of the Software you have obtained or made.
The validity, construction and performance of this Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, USA applicable to contracts executed in and performed entirely within such Commonwealth, without reference to any choice of law principles of such Commonwealth. The application to this Agreement of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly excluded. No amendment, modification or change to this Agreement, or any waiver of any right or remedy under this Agreement, will be valid unless in writing and signed by an authorized representative of the party to be bound. If any provision of this Agreement conflicts with the law under which this Agreement is to be construed or if any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, that provision will be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with the applicable law. The remaining provisions of this Agreement will not be affected thereby, and each of those provisions will be valid and enforceable to the full extent permitted by law. In the event that either party is unable to perform any of its obligations under this Agreement because of an event wholly beyond its control, including but not limited to, fire, natural disaster and action or decree of a governmental body, the party who has been so affected shall immediately give written notice to the other party and use reasonable efforts to resume performance. In connection with any dispute under this Agreement, if requested by us, you agree to submit to arbitration in a forum selected by us within the Commonwealth of Massachusetts for the resolution of any disputes, hereunder; provided, this does not limit our right to obtain injunctive relief in any court of competent jurisdiction. This Agreement constitutes the entire agreement of the parties, superseding all prior agreements and understandings as to the subject matter hereof, notwithstanding any oral representations or statements to the contrary heretofore made.