Beta End User License Agreement
BETA END-USER LICENSE AGREEMENT FOR FOTOWARE SOFTWARE RELEASED ON LABS.FOTOWARE.COM
PUBLISHED: 20 MAY 2004
PLEASE READ THIS BETA END-USER LICENSE AGREEMENT (“BEULA”) CAREFULLY. BY INSTALLING OR USING THE SOFTWARE THAT ACCOMPANIES THIS AGREEMENT (“SOFTWARE”), YOU AGREE TO THE TERMS OF THIS BEULA. IF YOU DO NOT AGREE, YOU MUST NOT USE THE SOFTWARE AND IMMEDIATELY DESTROY ALL COPIES YOU MAY HAVE OBTAINED OF IT. THIS SOFTWARE CONTAINS FUNCTIONALITY THAT IS TIME SENSITIVE. IT IS DESIGNED TO CEASE FUNCTIONING AFTER A CERTAIN PERIOD OF USE OR AT A PREDETERMINED DATE SET BY FOTOWARE. PLEASE SEE SECTION 5 FOR MORE INFORMATION.
1. GENERAL This BEULA is a legal agreement between you (either an individual or a single entity) and FotoWare a.s. (“FOTOWARE”), a company registered in Oslo, Norway. This BEULA governs the SOFTWARE, which includes computer software (including online and electronic documentation) and any associated media and printed materials. This BEULA applies to updates, supplements and add-on components that FOTOWARE may provide or make available to you unless FOTOWARE provides other terms with the update, supplement or add-on component. This BEULA also governs any product support services related to the SOFTWARE.
2. PURPOSE The purpose of this BEULA is to provide you with early access to the unreleased SOFTWARE for the purpose of evaluating the SOFTWARE and performing compatibility testing at your election.
3. GRANT OF LICENSE FOTOWARE grants to you a limited, non-exclusive, non-transferable, royalty-free license to install and use ten (10) copies of the SOFTWARE on computers residing on your premises, solely for the purposes of (A) testing software programs that run in conjunction with the SOFTWARE, and (B) to evaluate the SOFTWARE for the purpose of providing feedback thereon to FOTOWARE. The foregoing limit is aggregate and applies regardless of how many copies of the SOFTWARE you obtain from FOTOWARE. This license is conditioned on your complying with all terms and conditions of this BEULA.
4. TERM OF AGREEMENT FOTOWARE may terminate this BEULA at any time, with or without cause, by notifying you in writing of such termination. This BEULA will terminate without notice upon the commercial release of the SOFTWARE, unless terminated earlier by FOTOWARE. Upon termination of this BEULA, you must cease use of the SOFTWARE, and destroy all copies you have of the SOFTWARE.
5. TIME-SENSITIVE SOFTWARE THE SOFTWARE IS TIME SENSITIVE AND WILL CEASE TO FUNCTION AFTER A CERTAIN PERIOD OF USE (“USAGE PERIOD”) OR AT A PREDETERMINED DATE SET BY FOTOWARE (“TERMINATION DATE”). WHEN EITHER OF THESE DATES ARE REACHED, THE SOFTWARE WILL CEASE TO WORK. NOTICE OF EXPIRATION WILL NOT BE GIVEN, SO YOU WILL NEED TO PLAN FOR THE EXPIRATION DATE. The TERMINATION DATE or allowed USAGE PERIOD is stated on the media on which you obtained the SOFTWARE, or if the SOFTWARE was obtained electronically, in electronic form in the location of which you obtained the SOFTWARE. This BEULA and your right to use the SOFTWARE may terminate before the TERMINATION DATE or the end of the USAGE PERIOD (see section 4 above). You are strictly prohibited from designing or implementing any routine or mechanism, either by modifying the product or its surrounding environments, or in any other way, to bypass the SOFTWARE’s check of the TERMINATION DATE or prolong the SOFTWARE’s USAGE PERIOD.
6. FEEDBACK You may from time to time provide suggestions, comments regarding usability, bug reports, rest reports or other feedback (collectively, “FEEDBACK”) to FOTOWARE with respect to the SOFTWARE. This FEEDBACK must be provided to FOTOWARE’s representative in your area, who will be responsible for passing the information on to FOTOWARE, unless you have been instructed otherwise by FOTOWARE in writing. You agree that FOTOWARE may freely use, disclose, reproduce, license, distribute and otherwise commercialize the FEEDBACK in any FOTOWARE product, technology, service, specification or documentation.
7. RESTRICTIONS ON USE You may not demonstrate, test, examine, evaluate or otherwise use the SOFTWARE in a live operating environment or with data that has not been sufficiently backed up. You may not use the SOFTWARE for benchmark or performance testing.
8. COST OF TESTING There is no charge to you for evaluation of the SOFTWARE. FOTOWARE will, however, charge you for shipping and handling expenses relating to shipment of the SOFTWARE to your place of business.
9. RESERVATION OF RIGHTS; OTHER RESTRICTIONS The SOFTWARE is protected by copyright and other intellectual property laws and treaties. FOTOWARE owns the title, copyright and other intellectual property rights in the SOFTWARE. The SOFTWARE is licensed, not sold. FOTOWARE reserves all rights not expressly granted to you in this BEULA. Reverse engineering, decompiling or disassembling the SOFTWARE is prohibited. Renting, leasing or lending the SOFTWARE (including providing commercial hosting services) is also prohibited.
10. SOFTWARE TRANSFER You may move the SOFTWARE to a different computer on your premises. After the transfer, you must completely remove the SOFTWARE from the former computer. You may not transfer the SOFTWARE or this BEULA to any third party.
11. DISCLAIMER OF WARRANTIES THE SOFTWARE IS DEEMED ACCEPTED BY YOU. THE SOFTWARE CONTAINS PRE-RELEASE SOFTWARE AND MAY BE CHANGED SUBSTANTIALLY BEFORE COMMERCIAL RELEASE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FOTOWARE AND ITS SUPPLIERS PROVIDE THE SOFTWARE, AND SUPPORT SERVICES (IF ANY) AS IS AND WITH ALL FAULTS, AND FOTOWARE AND ITS SUPPLIERS HEREBY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY (IF ANY) IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF RELIABILITY OR AVAILABILITY, OF ACCURACY OR COMPLETENESS OF RESPONSES, OF RESULTS, OF WORKMANLIKE EFFORT, OF LACK OF VIRUSES, AND OF LACK OF NEGLIGENCE, ALL WITH REGARD TO THE SOFTWARE, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATION, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON -INFRINGEMENT WITH REGARD TO THE SOFTWARE. THE ENTIRE RISK AS TO THE QUALITY, OR ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE AND ANY SUPPORT SERVICES, REMAINS WITH YOU.
12. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL FOTOWARE OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATION, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS BEULA, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF FOTOWARE OR ANY SUPPLIER, AND EVEN IF FOTOWARE OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13. LIMITATION OF LIABILITY AND REMEDIES NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED HEREIN AND ALL DIRECT OR GENERAL DAMAGES IN CONTRACT OR ANYTHING ELSE), THE ENTIRE LIABILITY OF FOTOWARE AND ANY OF ITS SUPPLIERS UNDER ANY PROVISION OF THIS BEULA AND YOUR EXCLUSIVE REMEDY HEREUNDER WILL BE LIMITED TO THE GREATER OF THE ACTUAL DAMAGES YOU INCUR IN REASONABLE RELIANCE ON THE SOFTWARE UP TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE OR € 5.00. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
14. GOVERNING LAW In case of a dispute between the parties which can not be solved by negotiations, you hereby submit for the benefit of FOTOWARE, to the jurisdiction of the Norwegian courts, with the Oslo City Court as due venue. Nevertheless, FOTOWARE has the right to instigate legal proceedings in the country where you have your place of residence or perform business activities.
15. ENTIRE AGREEMENT; SEVERABILITY This BEULA constitutes the complete and exclusive agreement between FOTOWARE and you with respect to the subject matter hereof, and supersedes all prior or contemporaneous oral or written communications, proposals, representations, understandings, or agreements not specifically incorporated herein. If any provision of this BEULA is held to be void, invalid, unenforceable or illegal, the other provisions will continue in full force and effect.