Faye Business Systems Group, Inc. (“FBSG”) is willing to grant you a license of the scope described herein only upon the conditions that you or someone acting on your direction and behalf, such as the Distributor: (a) has provided FBSG with information including your organization name and address and serial numbers to register you as a licensee of the modules covered by this license, and (b) during installation of copies of those modules on your hardware, has accepted all of the terms and conditions of this End User License Agreement (this “Agreement”). If you do not accept all of the terms and conditions in this Agreement, then you do not have a license to use the Program.
Definitions: As used herein, the following terms have the following meanings:
“Distributor” means the reseller from which you have chosen to acquire a copy of the Software;
“Documentation” means the specifications for the Program including those set forth in the help files of the Program and the Release Notes accompanying the Program;
“Program” means the modules of the computer program recorded on the media accompanying this Agreement and for which you are registered as a licensee, and any part thereof;
“Software” means the Program and the Documentation, and any part thereof; and
“use” means storing, loading, installing, executing, or displaying the Program.
Terms and Conditions Effective After Acceptance:
1. Grant of License. FBSG hereby grants to you a limited, non-exclusive, non-transferable (except as set forth in Section 2(b) below) license to use the Program on the terms and conditions set forth in this Agreement.
As a licensee, you have limited rights to use the Program for business purposes, and in support of such use, you may: (a) Install copies of the Program onto hard disk drives or similar storage devices only as necessary for use of the Program by the number of users for which you are registered as a licensee; (b) Make one backup copy of the Program, provided that: the backup copy is used only to re-install the Program, when replacement is necessary, you keep possession of the backup copy at all times, and you refrain from deleting any copyright, trademark, or any other confidentiality or proprietary legend that is on the original copy of the Program; and (c) Install a copy of the Program onto a back-up server solely for purposes of testing the Program on your system.
The license does not include the right to perform any of the following and you agree to refrain from performing any of the following: (a) making any copy of the Software, except as specifically authorized above; (b) distributing any copy of the Software; (c) renting, leasing, lending, sublicensing, time-sharing, or otherwise permitting any other party to use the Software, except that you may permit another party to load the Program onto a server not owned by you if you will be the only party with access to the Program on such server; (d) using the Program for personal, family, household, or other non-business purposes; (e) altering, modifying, translating, decompiling, disassembling, or reverse-engineering the Program, or creating any derivative work based upon the Program; (f) removing or obscuring any copyright or trademark notices from the Program; or (g) loading the server part of the Program on more than one production server.
2. Additional Restrictions.
(a) The report writing software contained within the Program may only be used to access data that is created by, or used by, the Program;
(b) You may not sell, assign or otherwise transfer the Software to another party. A transfer of the Software to a party that purchases all, or substantially all, of the assets of your business shall not be deemed a transfer in violation of this Agreement, provided that you notify FBSG in writing of such sale prior to the transfer of the Software, the other party reads and accepts (in writing to FBSG) the terms and conditions of this Agreement, and you do not retain a copy of the Software. Additional restrictions may apply to any such transfer; and
(c) Export of the Software is restricted by U.S. export regulations and you may not export the Software without the appropriate U.S. and foreign government approvals.
3. U.S. Government Restricted Rights. The Software is provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the Government is subject to restrictions as set forth in paragraphs (a) – (d) of the Commercial Computer Software – Restricted Rights clause at 48 CFR 52.227-19, or Section 227.7202 of the DFARS. Contractor/Manufacturer does business as Faye Business Systems Group, Inc., 6320 Canoga Ave, 15th Floor, Woodland Hills, CA 91367.
4. Limited Warranty.
(a) For a period of ninety (90) days from the date the Software is first delivered to you (and not to any transferee), FBSG warrants that the Program when properly used shall perform substantially in accordance with the Documentation. FBSG does not warrant or represent that your use of the Software will be uninterrupted or error-free. If you report to FBSG in writing within such ninety (90) day period any non-conformity between the Documentation and the Program, and if FBSG is able to replicate and verify that such non-conformity exists, FBSG shall make commercially reasonable efforts to correct such non-conformity and, if successful, shall supply you with such correction or, if unsuccessful and such non-conformity is material, you may return the Software to FBSG and FBSG shall remit to you the license fee actually paid to FBSG, whether by you or the Distributor, for the Software covered by this license. The foregoing states your SOLE AND EXCLUSIVE REMEDY for any breach of this warranty;
(b) FBSG warrants that the media on which it recorded your copy of the Program is free from defects in materials and workmanship under normal use for a period of ninety (90) days from the date the Software is first delivered to you (and not to any transferee). Your SOLE AND EXCLUSIVE REMEDY under this warranty is limited to replacement of defective media; and
(c) OTHER THAN THE EXPRESS, LIMITED WARRANTIES STATED ABOVE IN THIS SECTION, NEITHER FBSG NOR ITS SUPPLIERS MAKE ANY OTHER WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE OF OR INABILITY TO USE THE SOFTWARE OR MEDIA. Any such implied warranty shall in any event be limited in duration to the ninety (90) day period specified above. YOU UNDERSTAND AND AGREE THAT: (1) SOFTWARE IS LIKE ANY OTHER PRODUCT AND WILL NOT LAST FOREVER, (2) YOU ARE FREE TO DECIDE, AND RESPONSIBLE FOR DECIDING, WHEN TO UPGRADE YOUR SOFTWARE, AND (3) FBSG DISCLAIMS ANY RESPONSIBILITY TO PROVIDE ANY CUSTOMER SUPPORT EXCEPT AS MAY BE AGREED TO UNDER A SEPARATE MAINTENANCE PLAN.
5. Limitation of Liability. Because software is inherently complex and may not be free from errors, you are advised to verify the work produced by the Program. Neither FBSG nor its suppliers shall be liable for any special, indirect, incidental or consequential damages resulting from any defect in the Software or media, even if FBSG has been advised of the possibility of such damages. This means FBSG is not responsible or liable for damages or costs incurred as a result of loss of time, loss of data, loss of anticipated profits or benefits resulting from use of the Software or loss of use of the Software, nor for damages or costs incurred in connection with obtaining substitute software, claims by others or similar costs. IN NO EVENT SHALL FBSG’S LIABILITY TO YOU ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE LICENSE FEE ACTUALLY PAID TO FBSG BY YOU OR YOUR DISTRIBUTOR FOR YOUR COPY OF THE SOFTWARE.
6. Other Limitations. FBSG will have no responsibility under these limited warranties for any Software or media that has been modified, lost, stolen or damaged by accident, abuse or misapplication. No employee, agent or representative of FBSG, nor any reseller (including your Distributor) or any other third party, is authorized to make any warranty with respect to the Software, except those expressly stated in this Agreement, and you may not rely on any such unauthorized warranty.
7. Allocation of Risk. You acknowledge and agree that this Agreement allocates risk between you and FBSG as authorized by the Uniform Commercial Code and other applicable law, and that the pricing of FBSG’s products reflects this allocation of risk and the limitations of liability contained in this Agreement. If any remedy hereunder is determined to have failed of its essential purpose, all limitations of liability and exclusion of damages set forth in this Agreement shall remain in full force and effect.
8. State Law Rights. This Agreement gives you specific legal rights, and you may also have other rights, which vary from state to state. Some states do not allow the exclusion or limitation of implied warranties or of liability for incidental or consequential damages, so some of the above may not apply to you.
9. Term. This Agreement is effective from the date you accept the terms of this Agreement, and continues in effect until terminated. You may terminate this Agreement at any time, at which point your license hereunder will terminate. This Agreement and the license granted herein will terminate automatically and without notice if you fail to comply with any term or condition of this Agreement. You agree upon termination to return the original Software to FBSG and to destroy all other Software copies in your possession. Any provision in this Agreement which when reasonably read is intended to survive the termination of this Agreement shall survive, including without limitation, the disclaimer of warranties and limitations on liability.
10. General. This Agreement represents the complete and exclusive understanding between you and FBSG regarding the Software, and supersedes any prior purchase order, confirmation, advertising, representation, or other communication. You hereby give FBSG permission to send you information regarding FBSG’s products and services, including via facsimile. This Agreement may not be modified except by a written agreement signed by an authorized FBSG representative. If any provision of this Agreement is found to be void, invalid, or unenforceable, it shall be severed from and shall not affect the remainder of this Agreement, which shall remain valid and enforceable. Any such severed provision shall be replaced with a similar provision, which conforms to applicable law and embodies as closely as possible the original intent of the parties.
This Agreement shall be governed by the internal laws of the State of California, without regard to the conflict of laws provisions thereof. In the event of any legal action to enforce this Agreement, the prevailing party shall be entitled to recover its attorney’s fees and costs, in addition to any other legal and equitable relief granted.
11. Indemnification. If you receive notice of any claim that your use of any part of the Software infringes the rights of a third party in or to any patent, copyright, trademark or trade secret, or violates any other intellectual property right, FBSG shall defend, and shall indemnify and hold you harmless by paying any resulting costs and damages finally awarded by a court with respect to any such claim provided that you:
(a) notify FBSG in writing promptly upon becoming aware of the claim,
(b) at FBSG’s request and expense, give FBSG such information and assistance as is reasonable under the circumstances, and
(c) give FBSG the right, at FBSG’s sole discretion, to settle the claim at FBSG’s expense.
This indemnification does not extend to any claim based upon any alleged infringement arising from the combination of the Software with other elements not under FBSG’s sole control, or arising from any part of the Software that you or a third-party modify, or that incorporates specifications, designs or formulas that you provide.
If you are prevented from using the Software because of an actual or claimed infringement, then at FBSG’s option, FBSG shall promptly either obtain for you the right to continue using the affected part of the Software, replace or modify the affected part of the Software so that it becomes non-infringing, or if none of the foregoing alternatives are possible after FBSG’s commercially reasonable efforts, you may terminate this Agreement and FBSG shall remit to you a pro rata portion of the license fee paid by you (or your Distributor on your behalf) to FBSG for the Software based on the commercially reasonable life of the Software, which shall not be less than five (5) years, calculated from the date(s) of your (or your Distributor’s) payment of such sums. THIS SECTION SETS OUT THE ENTIRE EXPOSURE OF FBSG FOR ANY INTELLECTUAL PROPERTY CLAIMS OR ACTUAL INFRINGEMENTS RELATING TO THE SOFTWARE.