EULA - End User License Agreement
END USER SOFTWARE BINARY LICENSE AGREEMENT
PROVIDENCE SOFTWARE SOLUTIONS, INC.
VERSION: 1.3 - EFFECTIVE DATE: 1 JANUARY 2009.
IMPORTANT - PLEASE READ CAREFULLY
This End User Software Binary License Agreement ('Agreement') is a contract between you (referred to as "you" or "your") and Providence Software Solutions, Inc., a North Carolina Corporation with a mailing address of 201 Shannon Oaks Circle; Ste 201, Cary, NC 27511, USA ("referred to as "PSSI", "we", "us" or "our") , and governs your use of PSSI’s software; we and you collectively referred to as the “Parties”.
BY CLICKING ON THE "SUBMIT", "DOWNLOAD", “I AGREE”, "I ACCEPT" OR SUCH SIMILAR BUTTON OR LINK AS MAY BE DESIGNATED FOR PURPOSES OF INITIATING THE DOWNLOAD OF ANY XVT™ SOFTWARE PRODUCT (THE "LICENSED SOFTWARE") AND USING THE LICENSED SOFTWARE, YOU AGREE TO BE LEGALLY BOUND BY THESE LICENSE TERMS AND CONDITIONS. THE LICENSED SOFTWARE INCLUDES ANY VERSION OF THE XVT DSC™, XVT DSP™ AND XVT DSE™ SOFTWARE PROGRAMS IN BINARY FORMAT (MACHINE READABLE FORM), EACH OF WHICH IS COVERED BY THIS AGEEMENT.
1. License Granted
Subject to the terms and conditions of this Agreement, Providence Software Solutions, Inc. grant you a nontransferable, non-exclusive, limited license, to (a) download and install the purchased version of the Licensed Software (including all updates thereto) solely on the computer for which you have obtained a license key, and (b) use the Licensed Software you download for the sole purpose of developing software applications (“Use”, “Used”, “Using”).
2. License Conditions
You may not rent, sell, lease, sublicense, distribute, assign, copy (other than a single copy for your own backup purposes), or in any way transfer any Licensed Software or Use any Licensed Software for the benefit of any third party through any outsourcing or time-sharing arrangement or through the operation of any service bureau. You may not modify, reverse-engineer, decompile, disassemble, or otherwise discover the Licensed Software, or attempt to do so for any reason. You do not have the right to and may not create derivative works of the Licensed Software, such as modifications or enhancements of the Licensed Software.
We reserve the right to modify existing and/or add additional features or functions of the Licensed Software. You agree that the Licensed Software does not include any future updates and upgrades that may be available from PSSI unless you purchase separate maintenance services from PSSI or maintenance is included with your purchase.
You acknowledge and agree that the Licensed Software is licensed, not sold to you by PSSI. You acknowledge that the Licensed Software, including all code, content, protocols, software, and documentation provided to you by PSSI in conjunction with the Licensed Software or our services are PSSI's property or the property of PSSI's licensors, and are protected by U.S. and international copyright, trademarks, patents and other proprietary rights and laws relating to Intellectual Property Rights. "Intellectual Property Rights" means, collectively, rights under patent, trademark, copyright and trade secret laws, and any other intellectual property or proprietary rights recognized in any country or jurisdiction worldwide, including, without limitation, moral or similar rights. You may not delete, alter, or remove any copyright, trademark, or other proprietary rights notice we have placed on the Licensed Software.
We agree that, Using the Licensed Software, you shall be able to develop proprietary software which shall remain your property and that you shall be able to market the developed software without paying any royalties, runtime or other fees on that software to PSSI.
4. Maintenance Services
The term “Error” shall mean any error, problem, or defect resulting from an incorrect functioning of the Licensed Software or an incorrect statement in related documentation, if such an error, problem, or defect renders the Licensed Software inoperable or causes incorrect functions to occur when the Licensed Software is Used. The term “Release” shall mean new versions of the Licensed Software that contain feature additions and enhancements, Error fixes, and support for new operating systems, and require that any application software that Uses the Licensed Software be recompiled to take advantage of new features.
Provided that you have prepaid “Maintenance Fees”, PSSI agrees to provide the maintenance services described herein to you only during the period of maintenance coverage and only for those components for which Maintenance Fees have been paid under the following limited conditions: (i) PSSI shall provide e-mail, telephone and facsimile services to answer installation, configuration, usage and basic how-to questions regarding the Licensed Software; (ii) PSSI shall use reasonable diligence to correct verifiable and reproducible Errors, provided you have given PSSI a notice that an Error in the Licensed Software has
occurred via electronic communication; (iii) PSSI shall use reasonable efforts to respond to you within three (3) business days to give an assessment of the scope and severity of each Error and a time period within which the problem may be addressed or resolved; (iv) Following completion of an Error correction, PSSI shall provide, without additional charge, the Error correction by means of a "Patch" consisting of sufficient programming and operating instructions to remedy the Error; if PSSI so elects, PSSI may include such Patches in all subsequent Releases of the Licensed Software; and (v) PSSI may, from time to time and if
PSSI so elects, create and distribute new Releases of the Licensed Software; PSSI shall provide you with one (1) copy of each new Release published during the period of maintenance coverage, without additional charge. You agree to report any Error by connecting to PSSI’s Online Help Desk on their internet web site (http://www.xvt.com) and reporting each Error against the specific Release of the Licensed Software for which you have purchased maintenance services.
You agree that we are not responsible for correcting Errors in any Release of the Licensed Software that is
more than two (2) years old on the then current date. Further, you agree that the following events are not
covered by the services provided under this section and that you shall be responsible for paying PSSI’s
normal charges and expenses for time or other resources provided by PSSI to diagnose or attempt to correct
any such problem(s): (i) Any problem that results from the improper Use of the Licensed Software; (ii) Any
problem that was caused by modifications of the Licensed Software not made or authorized by PSSI; (iii) Any
problem that results from Errors in third party programming or software other than the Licensed Software; (iv)
Any problem that results from improper archival or retrieval of the Licensed Software; (v) Any problem that
results from a violation of any of the terms of this License Agreement; and (vi) Any problem that results from
causes that are unrelated to the Usage of the Licensed Software such as fire, flood, earthquake, lightning
strike, power failure, or voltage surge.
Further, you agree that the following services are explicitly not provided to you, unless otherwise mutually
agreed in writing between PSSI and you: (i) Installation services needed to download, install and configure
new Releases of the Licensed Software; (ii) Application development services needed to design, develop, test
and integrate proprietary software applications that Use the Licensed Software; and (iii) Training of your
users. You also agree that any service needed by you from PSSI that is not identified in this section shall be
subject to: (i) separate quotation approved by the Parties; and (ii) availability of PSSI’s technical support staff.
5. Your Obligations
You represent and warrant that (i) you are authorized to act on behalf of the entity licensing the Licensed
Software, and (ii) you are either the owner or an authorized user of the computer for which a license key has
been issued and where the Licensed Software will be installed and Used.
6. Proprietary Information and Copying
You acknowledge and agree that the Licensed Software is a valuable asset of PSSI and that you shall make
reasonable efforts to notify and inform any employee, agent, consultant or contractor having access to
Licensed Software of your limitations, duties and obligations regarding non-disclosure and copying of the
You shall take all reasonable steps to safeguard the Licensed Software and to ensure that no unauthorized
persons have access to the Licensed Software and that no persons authorized to have such access shall take
any action which would be in violation of this Agreement. You shall promptly report to PSSI any actual or
suspected violation and shall take further steps as may reasonably be requested by PSSI to prevent or
remedy any such violation.
Notwithstanding any provisions herein concerning non-disclosure and non-use of Proprietary Information, you
shall have no obligations for disclosure or use of any such information which (i) is already known to you, (ii) is
or becomes publicly known through publication, inspection of product or otherwise and through no wrongful
act of you, (iii) is disclosed to a third party by or on behalf of PSSI without similar restriction on the third
party’s rights, or (iv) is approved for release or used by written authorization of PSSI.
7. Electronic Signatures and Agreements
You acknowledge and agree that by clicking on the button labeled "SUBMIT", "DOWNLOAD", “I AGREE”, "I
ACCEPT" or such similar links as may be designated by PSSI to download the Licensed Software to accept
the terms and conditions of this Agreement, you are submitting a legally binding electronic signature and are
entering into a legally binding contract. You acknowledge that your electronic submissions constitute your
agreement and intent to be bound by this Agreement. Pursuant to any applicable statutes, regulations, rules,
ordinances or other laws, including without limitation the United States Electronic Signatures in Global and
National Commerce Act, P.L. 106-229 (the "E-Sign Act") or other similar statutes, YOU HEREBY AGREE TO
THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO
ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR
COMPLETED THROUGH THE LICENSED SOFTWARE OR SERVICES OFFERED BY PSSI. Further, you
hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in
any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to
payments or the granting of credits by other than electronic means.
8. Disclaimer of Warranty
YOU ACCESS AND USE THE LICENSED SOFTWARE AT YOUR SOLE RISK.
WE PROVIDE THE LICENSED SOFTWARE ON AN "AS IS," AND "AS AVAILABLE" BASIS WITHOUT
WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT
LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE, CUSTOM, TRADE, SYSTEM INTEGRATION OR NON-INFRINGEMENT.
NEITHER WE NOR OUR DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS,
CONTRACTORS, THIRD PARTY VENDORS, INFORMATION PROVIDERS, LICENSORS (EACH A
"PROVIDER") MAKE ANY REPRESENTATION OR WARRANTY: (A) AS TO THE TIMELINESS,
SEQUENCE, ACCURACY, COMPLETENESS, RELIABILITY OR CONTENT OF THE LICENSED
SOFTWARE OR PSSI'S SERVICES OR ANY INFORMATION, SERVICE OR TRANSACTION PROVIDED
THEREBY, OR (B) THAT THE LICENSED SOFTWARE OR PSSI'S SERVICES WILL BE AVAILABLE OR
WILL OPERATE IN AN UNINTERRUPTED OR ERROR-FREE MANNER, OR (C) THAT ERRORS OR
DEFECTS RELATED TO THE LICENSED SOFTWARE OR THE SERVICES WILL BE CORRECTED.
THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
The above exclusions may not apply in jurisdictions that do not allow the exclusion of certain implied
The term of this License Agreement is perpetual, subject to the termination provisions of this Article.
If we have reason to believe that you have failed to comply with your obligations under this Agreement, PSSI
may terminate this Agreement, provided PSSI has requested that you cure the failure and you have failed to
do so within ten (10) days of such notice.
Upon termination of this Agreement, you shall immediately discontinue the Use of the Licensed Software and
you agree to return to PSSI or destroy all copies of the Licensed Software at PSSI’s written instructions. Upon
termination of this Agreement, the license and rights granted hereunder shall expire and you shall have no
further rights or access to the Licensed Software. Except as otherwise provided in this Agreement, you shall
not thereby be entitled to any refund or credit.
10. Limitation of Liability
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT IN NO EVENT WILL PSSI, ITS PARENTS,
SUBSIDIARIES, OR AFFILIATES OR THEIR EMPLOYEES, DISTRIBUTORS, SUPPLIERS, MERCHANT
PARTNERS, ADVERTISERS, DIRECTORS OR AGENTS (EACH A "PROTECTED PARTY, COLLECTIVELY
"PROTECTED PARTIES") BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE,
CONSEQUENTIAL OR EXEMPLARY DAMAGES OR OTHER RELIEF ARISING OUT OF, OR RELATED
TO, THIS AGREEMENT OR TO YOUR USE OR INABILITY TO USE ANY OR ALL OF THE LICENSED
SOFTWARE OR PSSI’S SERVICES INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST
BUSINESS OR LOST OPPORTUNITY, GOODWILL, OR OTHER INTANGIBLE LOSSES (EVEN IF PSSI
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES).
SOLELY TO THE EXTENT THE FOREGOING LIMITATION OF LIABILITY IS, FOR ANY REASON, HELD
TO BE INAPPLICABLE OR UNENFORCEABLE IN WHOLE OR IN PART, THEN THE PROTECTED
PARTIES' AGGREGATE LIABILITY, FOR ANY REASON AND FOR ANY CAUSE OF ACTION AND ANY
THEORY OF LIABILITY, ARISING OUT OF OR RELATED TO THE SERVICES OR THIS AGREEMENT
SHALL BE LIMITED TO THE LESSER OF DAMAGES ACTUALLY INCURRED OR THE REVENUES
RECEIVED BY PSSI DURING THE LAST YEAR PRECEEDING A CLAIM. THE PROTECTED PARTIES
ASSUME NO LIABILITY HEREUNDER FOR, AND SHALL HAVE NO OBLIGATION TO DEFEND YOU OR
TO PAY COSTS, DAMAGES OR ATTORNEYS' FEES FOR, ANY CLAIM BASED UPON: (I) ANY METHOD
OR PROCESS IN WHICH THE LICENSED SOFTWARE MAY BE USED BY YOU; (II) ANY RESULTS OF
USING THE LICENSED SOFTWARE; (III) ANY USE OF OTHER THAN A CURRENT UNALTERED
RELEASE OF THE LICENSED SOFTWARE; OR (IV) THE COMBINATION, OPERATION OR USE OF THE
LICENSED SOFTWARE WITH THIRD PARTY PROGRAMS OR DATA.
BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION
OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR
JURISDICTIONS, OUR LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
12. Notice to Government End Users
Any Licensed Software, software and documentation hereunder downloaded or otherwise installed for or on
behalf of the United States of America, its agencies and/or instrumentalities ("U.S. Government"), is provided
with Restricted Rights as "Commercial Items," as that term is defined at 48 C.F.R. §2.101, consisting of
"Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are
used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Pursuant to Federal Acquisition Regulation
12.212 (48 C.F.R. § 12.212), the U.S. Government shall have only those rights specified in the license
contained herein. The U.S. Government shall not be entitled to (i) technical information that is not customarily
provided to the public or to (ii) use, modify, reproduce, release, perform, display, or disclose commercial
computer software or commercial computer software documentation except as specified herein. Use,
duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph
(c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or
subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48 C.F.R. 52.227-
19, as applicable.
13. Applicable Law
By accessing or using the Licensed Software or our services, you agree that the substantive laws of the State
of North Carolina in the United States of America shall govern all matters relating to or arising from this
Agreement, and the Use (or inability to Use) any or all of the Licensed Software or our services, and that such
laws shall apply without regard to principles of conflict of laws. Subject to the dispute resolution procedures
set forth below, you hereby submit to the exclusive jurisdiction and venue of the appropriate State and
Federal courts located in Wake County, North Carolina, with respect to all matters arising out of or relating to
this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not
apply to this Agreement. You agree that regardless of any statute or law to the contrary, any claim or cause of
action arising out of or related to the Use of the Licensed Software or PSSI’s Service must be filed within one
(1) year after such claim or cause of action arose or be forever barred.
Any claim or controversy arising out of or related to this Agreement, or the products or services we provide or
distribute shall be settled by individual binding arbitration in accordance with the rules of the American
Arbitration Association then effective. Any such claim or controversy shall be arbitrated on an individual basis
and shall not be consolidated with a claim of any other party. Further, in any such dispute, under no
circumstances will you be permitted to obtain awards for, and you hereby waive all rights to claim punitive,
incidental or consequential damages, and you further waive all rights to have damages multiplied or
increased. This shall not preclude PSSI from seeking any injunctive relief for protection of our Intellectual
Property Rights. The arbitration shall take place in Raleigh, North Carolina or such other location as the
Parties may mutually agree. The arbitrator(s) shall issue a reasoned award, and any judgment on the award
rendered by the arbitrator(s) may be entered in any court of competent jurisdiction. The arbitrator(s) will each
be a natural person who has never been employed (either as an employee or as an independent consultant)
by either of the Parties, or any parent, subsidiary or affiliate thereof, and will be generally familiar with the
business of the Parties. The arbitrator(s) may upon request exclude from use in the arbitration proceeding any
evidence not made available to the other party pursuant to a proper discovery request. The cost of the
arbitration will be borne equally by the Parties. The Parties, their representatives, other participants, the
arbitrator(s) and the administrator(s) of the arbitration will hold in confidence the existence, content and
outcome of the arbitration. The Parties understand that: (i) arbitration is final and binding on the Parties; (ii)
the Parties are waiving their right to seek remedies in court, including the right to a jury trial; (iii) pre-arbitration
discovery is generally more limited than and different from court procedures; and (iv) any party's right to
appeal or to seek modification of rulings by the arbitrators is strictly limited.
15. Successor Agreements
16. Order of Precedence
FULL EULA COMES WITH INSTALLATION PACKAGE