END-USER LICENSE AGREEMENT
for Serial Port Monitor
by Electronic Team, Inc.
NOTICE TO USER:
THIS AGREEMENT (THIS “AGREEMENT”) CONSTITUTES A LEGAL AGREEMENT BETWEEN THE LICENSEE AND LICENSOR WITH RESPECT TO THE SOFTWARE IDENTIFIED BELOW. BY USING THE SOFTWARE (AS DEFINED BELOW), LICENSEE AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, THE LICENSOR IS UNWILLING TO GRANT THE LICENSEE ANY RIGHTS TO USE THE SOFTWARE. IN SUCH EVENT, LICENSEE MAY NOT USE THE SOFTWARE, AND LICENSEE SHOULD PROMPTLY DESTROY ALL COPIES OF THE SOFTWARE AND ACCOMPANYING DOCUMENTATION. THIS REPRESENTS THE ENTIRE AGREEMENT BETWEEN THE LICENSOR AND THE LICENSEE.
PLEASE READ THIS AGREEMENT CAREFULLY. LICENSEE’S USE OF THE SOFTWARE INDICATES THAT LICENSEE HAS READ, ACCEPTED AND UNCONDITIONALLY AGREED TO THESE TERMS AND CONDITIONS. LICENSEE MAY NOT USE THE SOFTWARE IF LICENSEE IS A (A) PERSON WHO IS NOT OF LEGAL AGE TO FORM A BINDING CONTRACT WITH LICENSOR OR (B) PERSON WHO IS BARRED FROM RECEIVING THE SOFTWARE UNDER THE LAWS OF ANY COUNTRY INCLUDING THE COUNTRY IN WHICH THE LICENSEE IS A RESIDENT OR FROM WHICH THE LICENSEE IS USING THE SOFTWARE. LICENSEE HEREBY ACKNOWLEDGES THAT LICENSEE’S ELECTRONIC ASSENT CONSTITUTES LICENSEE’S AGREEMENT AND INTENT TO BE BOUND BY THESE TERMS AND CONDITIONS AND HONOR ALL TRANSACTIONS ENTERED INTO.
When used in this Agreement, the following terms shall have the respective meanings indicated, such meanings to be applicable to both the singular and plural forms of the terms defined:
“Intellectual Property Rights” means all rights in intellectual property, including the following rights protected, created, or arising under the laws of the United States or any other jurisdiction: (i) all trademarks, service marks, trade names, service names, brand names, trade dress rights, logos, corporate names, trade styles, logos, and other source or business identifiers and general intangibles of a like nature, together with the goodwill associated with any of the foregoing, along with all applications, registrations, renewals, and extensions thereof (the “Trademarks”); (ii) all copyrights, design rights, object/source code rights, algorithms and database rights whether or not registered or published, all registrations and recordations thereof, and all applications in connection therewith, along with all reversions, extensions, and renewals thereof; (iii) all trade secrets, and (iv) all patents and applications therefor, including all continuations, divisionals, and continuations-in-part thereof and patents issuing thereon, along with all reissues, reexaminations, and extensions thereof.
“Licensee”, “You” or “Your” means the person/individual or legal entity that will Use the Software hereunder, unless otherwise indicated.
“Licensor” means Electronic Team, Inc.
“Software” means (a) all of the contents of the files, disk(s), CD-ROM(s) or other media that are provided to Licensee or Used by Licensee, which pertain to Licensor’s “Serial Port Monitor ®”; (b) all of the contents of the files, disk(s), CD-ROM(s) or other media with which this Agreement is provided or which are made available to Licensee by Licensor, including but not limited to (i) registration information, i.e. License key which is unique for a registration name of the Licensee; (ii) related explanatory written materials or files (“Documentation”); and (iii) Software setup files and code samples (if any); and (c) upgrades, modified versions, updates, additions, and copies of the Software, if any, licensed to you by Electronic Team, Inc. (collectively, “Updates”).
“Use” or “Used” or “Using” means to access, install, download, copy or otherwise benefit from using the functionality of the Software in accordance with the Documentation.
“User(s)” means any person authorized to Use the Software by the Licensee. In all cases, all Users shall be employed by or through the same parent company as the Licensee.
“System” means Windows OS, GNU/Linux or macOS, or any virtual machine.
2. GENERAL USE
As long as the Licensee complies with the terms of this Agreement, the Licensor grants the Licensee a non-exclusive right to Use the Software for the purposes described in the Documentation under the following conditions:
The Software can be installed and used on a single installation of an operating system;
The Software under this License cannot be installed on multiple systems. When multiple copies are necessary, each system must have a separate Single License installed.
3. SOFTWARE ACTIVATION
3.1 Among other protection methods some portions of Licensor’s Software may require activation.
3.2 Should activation be required, the Licensor shall supply the Licensee the activation code after the order is processed. The supplied activation code may be by Licensee used to activate the purchased applications. Certain portions of the Software may not be fully functional without activation by Licensee.
3.3 Access to the Internet on the Licensee’s System is required to activate certain portions of the Software. If there is no access to the Internet available, Licensee may activate the Software manually (offline). In such case, Licensee will need to use a separate System that is online to get a special activation file, which will be made available by Licensor.
3.4 Software that is purchased will be activated automatically once the activation code is entered. Any such Software may be occasionally reactivated by the Licensor, in the background, to ensure smooth and uninterrupted license compliance check. This will require an Internet connection as well (as stated in section 3.3 above).
3.5 During the activation process, hardware serial numbers (a System or computer’s unique hardware ID), the purchased product ID and the build number, together with the activation code, are encrypted and sent to the Licensor’s servers to verify that the copy of the purchased Software is genuine and to determine whether the number of permitted activations are not exceeded.
3.6 Demonstration versions of the Software will perform and achieve its activation in the background without any Users’ interference (no activation code is needed). Activation of the demonstration version is required for statistics only and does not collect any personal information.
4. SOFTWARE UPDATE(S)
4.1 All minor upgrades (or updates) are free, but all major upgrades to the Software must be purchased by the Licensee. The Licensee may purchase any such major upgrades with a 50% discount. Whether any upgrade or update is “minor” or “major”, shall be determined in the sole discretion of the Licensor.
4.2 In certain cases, the Licensor may provide a “grace period” wherein if the Licensee has purchased a License within any such grace period, shortly before a new major upgrade or update is released by Licensor, then the Licensor will provide the Licensee with the relevant upgrade or update, at no charge, regardless of the type of License. All grace periods shall be provided in the sole discretion of the Licensor.
4.3 When an update or upgrade is made available by the Licensor, the Licensor shall assist the Licensee in the transition to the update or upgrade, provided that: (i) the update or upgrade and the previous version of the Software are installed on the same System; (ii) the previous version of the Software and/or any copies thereof are not transferred to any other third party or System that does not belong to the Licensee; and (iii) the Licensee acknowledges that any obligation the Licensor may have to support the previous version of the Software may by voluntarily terminated or continued by the Licensor, when any update or upgrade is made available.
4.4 The Licensee may continue to Use the previous version of the Software regardless of whether the Licensee received any applicable upgrade or update.
5. Prohibited Actions. The Licensee AGREES not to Use or permit Use of the Software for any purpose that may (i) menace, threaten, defraud or harass any person (including other users of the Software) or cause damage or injury to any person or property; (ii) involve the publication of any material that is false, defamatory, harassing or obscene; (iii) violate privacy rights or promote bigotry, racism, hatred or harm; (iv) constitute an infringement of intellectual property or other proprietary rights; (v) otherwise violate applicable laws, ordinances or regulations; (vi) Transmit any worms or viruses or any code of a destructive nature through Licensor’s Software; (vii) Share Software activation code(s) with a third party or encourage another User to do so; (viii) Misrepresent the source, identity, or content of information transmitted via the Software, for example, by claiming to be someone that Licensee is not; (ix) Use the Software for any illegal or unlawful purpose; (x) Interfere with any security-related features of the Software, or otherwise attempt to gain unauthorized access to the Software or networks connected to the Software, through hacking, password mining, or any other means or interfere or attempt to interfere with the proper working of the Software or any activities conducted via the Software; (xi) Intentionally interfere with the operation of the Software or any User’s enjoyment of the Software; (xii) Post inflammatory statements to get responses; and (xiv) Use the Software in any manner that in Licensor’s sole discretion could damage, disable, overburden, or impair it or interfere with any other party’s Use and enjoyment of the Software.
Licensee AGREES not to access (or attempt to access) the Software by any means other than through the means provided by Licensor or its authorized Partners. Licensee AGREES not to access (or attempt to access) the Software by way of automated means and that Licensee will not engage in any activity that interferes with or disrupts the operation of the Software (or the servers and networks which are connected to the Software). Specifically, Licensee AGREES that Licensee will not:
share Software-related activation code(s);
remove or modify any Software markings or any notice of Licensor’s or its licensors’ proprietary rights;
modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Software, or access or use the Software in order to build or support, and/or assist a third party in building or supporting, products or services competitive to Licensor;
disrupt or interfere with any other user’s enjoyment of the Software
upload, post, or otherwise transmit through the Software any viruses or other harmful, disruptive, or destructive files;
access or attempt to access any portion of the Software, which Licensee is not authorized to access under the present License; and
disrupt or interfere with the security of, or otherwise cause harm to the Software, or system resources, accounts, passwords, servers, and/or networks connected to or accessible through the Software.
No part of the Software may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other methods, except as expressly provided herein.
6. Licensor reserves the right to disable, remove, or revoke access to Licensee to any portion of the Software if Licensee violates the present Agreement. Licensor shall have no liability to Licensee in the event that Licensor takes such action.
Licensee AGREES to defend and indemnify Licensor against any claim arising out of a violation of Licensee’s obligations under this Section.
Licensee AGREES to make every reasonable effort to prevent unauthorized third parties not authorized by Licensor from accessing or using the Software.
ANY VIOLATION OF THE PROVISIONS UNDER SECTION 5 (DETERMINED IN LICENSOR’S SOLE DISCRETION) WILL RESULT IN THE TERMINATION OF LICENSEE’S ABILITY TO USE THE SOFTWARE.
LICENSEE UNDERSTANDS AND AGREES THAT LICENSOR CANNOT BE RESPONSIBLE FOR ANY CONTENT POSTED, SHARED, OR TRANSMITTED VIA LICENSEE’S USE OF THE SOFTWARE AND WHICH VIOLATES THE PROHIBITIONS AS STATED UNDER SECTION 5 OF THIS AGREEMENT. LICENSEE AGREES TO USE THE SOFTWARE AT LICENSEE’S OWN RISK.
LICENSOR SHALL NOT BE RESPONSIBLE FOR ANY VIOLATION OF APPLICABLE LAWS, RULES, OR REGULATIONS COMMITTED BY LICENSEE WHEN USING THE SOFTWARE. IT IS LICENSEE’S RESPONSIBILITY TO ENSURE THAT LICENSEE’S USE OF THE SOFTWARE DOES NOT CONTRAVENE APPLICABLE LAWS, RULES, OR REGULATIONS.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 This License does not transmit any Intellectual Property Rights on or in the Software. The Software and any copies that the Licensee is authorized by the Licensor to make, are the property of, and contain the Intellectual Property Rights belonging to, the Licensor.
7.2 The Software is protected by copyright, including without limitation by Copyright Law and international treaty provisions.
7.3 Any copies that the Licensee is permitted to make pursuant to this Agreement must contain the same copyright and other proprietary notices that appear on or in the Software. The Licensee may not alter, edit, or obscure any such copyright and other proprietary notices that appear on or in the Software in any manner.
7.4 The structure, organization, and code of the Software contain the valuable Intellectual Property Rights of the Licensor. The Licensee agrees not to decompile, “unlock,” reverse-engineer, disassemble, or otherwise translate the object code versions of the Software to human-perceivable form except as permitted by applicable law which cannot be waived by this Agreement.
7.5 Any attempts to decompile, “unlock,” reverse-engineer, disassemble, translate the object code versions of the Software, copy, clone, modify or alter in any way the Software or any related installer program(s) without the Licensor’s specific approval are strictly prohibited. The Licensee is not authorized to use any plug-in or enhancement that permits Licensee to save modifications to a file with the Software.
7.6 All of the Licensor’s Trademarks shall be used in accordance with accepted trademark practice, including identification of a trademark owners’ names. Trademarks can only be used to identify printed output produced by the Software and such use of any Trademark does not give the Licensee any rights of ownership in that Trademark.
8. LICENSE TRANSFER
8.1 This License is non-transferable. The Licensee may not transfer the rights to Use the Software to any third party (any other person or legal entity), regardless of whether the Licensee has a need or use for Licensed Software anymore.
8.2 The Licensee may not rent, lease, sublicense, distribute, lend or transfer any versions or copies of the Software to any third party (any other person or legal entity) regardless of whether the Licensee has a need or use for Licensed Software anymore and/or even if the Licensee has not Used all or any portion of the Software.
8.3 The Licensee may make a backup copy of the Software, provided a backup copy is not installed or used on any System not owned by the Licensee. The Licensee may not transfer the rights to install or use a backup copy of the Software to third parties (another person or legal entity).
9.1 The Licensor warrants that:
9.1.1 The Licensor owns the Software and the Documentation and/or is in possession of valid and existing licenses that support the terms of this Agreement;
9.1.2 For the twelve (12) month period following the Licensee’s first Use of the Software, the Software will reasonably conform to the specifications and functionality as specified in Documentation;
9.1.3 To the best of the Licensor’s knowledge, the Software does not infringe upon or violate any Intellectual Property Rights of any third party; and
9.1.4 The Software does not contain any back door, time bomb, drop dead device or another routine intentionally designed by the Licensor to disable a computer program or computer instructions that alter, destroy or inhibit the processing environment.
9.2 EXCEPT THOSE WARRANTIES SPECIFIED IN SECTION 9.1 ABOVE, THE SOFTWARE IS BEING DELIVERED TO THE LICENSEE “AS IS” AND THE LICENSOR MAKES NO WARRANTY AS TO ITS USE OR PERFORMANCE. THE LICENSOR MAKES NO OTHER WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, REGARDING THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, SYSTEM INTEGRATION, OR ACCURACY.
9.3 The Licensor does not and cannot warrant the performance or results the Licensee may obtain by using the Software. The entire risk arising out of use or performance of the Software remains with the Licensee.
9.4 The Licensor gives no warranty, express or implied, that (i) the Software will be of satisfactory quality, suitable for any particular purpose or for any particular use under specified conditions, notwithstanding that such purpose, use, or conditions may be known to the Licensor; or (ii) that the Software will operate error free or without interruption or that any errors will be corrected.
10. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, IN NO EVENT SHALL LICENSOR BE LIABLE TO THE LICENSEE OR ANY OTHER PERSON OR ENTITY WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY (1) INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, (2) LOST PROFITS, LOST BUSINESS, OR LOST OR CORRUPTED DATA, OR (3) COST OF PROCUREMENT OF SUBSTITUTE TECHNOLOGY, INTELLECTUAL PROPERTY RIGHTS, GOODS OR SERVICES, EVEN IF THE REMEDIES PROVIDED FOR IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE AND EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OR PROBABILITY OF SUCH DAMAGES.
IN NO EVENT SHALL LICENSOR’S AGGREGATE LIABILITY FROM ALL LAWSUITS, CLAIMS, WARRANTY OBLIGATIONS, INDEMNITY OBLIGATIONS, AND ANY OTHER OBLIGATIONS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY USE OF THE SOFTWARE OR ASSOCIATED DOCUMENTATION PROVIDED HEREUNDER EXCEED THE AMOUNT PAID BY THE LICENSEE TO THE LICENSOR DURING THE TWELVE (12) MONTH PERIOD PROCEEDING THE EVENT GIVING RISE TO ANY SUCH CLAIM. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE OR EXTEND THESE LIMITS.
If a portion of this Agreement is held unenforceable, the remainder shall be valid. That means that if one section of this Agreement is found to be unlawful, the rest of the Agreement is still in force. A party’s failure to exercise any right under this Agreement will not constitute a waiver of (a) any other terms or conditions of this Agreement, or (b) a right at any time thereafter to require exact and strict compliance with the terms of this Agreement.
12. GENERAL TERMS
TERMINATION. Licensee’s right to use the Software continues until terminated. Licensee’ may terminate this Agreement at any time by notifying Licensor. On termination, Licensee must destroy all copies of the Software and cease all use of the Software. Without limiting the generality of the foregoing, Licensor is entitled to disable Licensee’s access to and use of the Software at any time and without observing any notice period if Licensee is in breach of any provision of this Agreement.
ASSIGNMENT. Neither this Agreement nor any rights granted hereunder may be sold, leased, assigned, or otherwise transferred, in whole or in part, by Licensee, whether voluntary or by operation of law. Any such attempted assignment shall be void and of no effect without the prior written consent of Licensor. The foregoing shall not prohibit or restrict Licensor from assigning this Agreement in connection with a merger, assignment, sale of assets or similar change of control transaction, or from assigning its rights or delegating its duties under this Agreement to an affiliate.
ENTIRE AGREEMENT. This Agreement represents the complete agreement concerning this License and supersedes (i) all prior agreements and representations with respect to its subject matter; and (ii) prevails over any conflicting or additional terms of any order, acknowledgment, or similar communication between the Licensor and the Licensee. It may be amended only by a writing executed by both parties.
SEVERABILITY. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force.
GOVERNING LAW. This Agreement, including all revisions and amendments thereto, is governed by and construed in accordance with the laws of the Commonwealth of Virginia, without regard to its conflict or choice of law principles. The United States Uniform Computer Information Transactions Act the United Nations Convention on the International Sale of Goods shall not apply. If either the Licensor or the Licensee employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees.
EQUITABLE RELIEF. The parties agree that a breach of this Agreement would cause irreparable injury to Licensor for which there may be no adequate remedy at law. Accordingly, Licensor shall have the right to apply to any court of competent jurisdiction for injunctive relief and specific performance, without prejudice to any remedies available to it at law or in equity.
LEGAL AND EXPORT COMPLIANCE. Licensee shall comply fully with all international and national laws and regulations that apply to the Software and Documentation and to Licensee’s Use thereof, including, but not limited to, the U.S. Export Administration Regulations, end-user, end-use and destination restrictions issued by U.S. and other governments. Licensee represents and warrants that (i) Licensee is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) Licensee is not listed on any U.S. Government list of prohibited or restricted parties.
FORCE MAJEURE. Licensor and its suppliers shall not be liable in any respect for failures to perform hereunder due wholly or substantially to the elements, acts of God, labor disputes, acts of terrorism, acts of civil or military authority, fires, floods, epidemics, quarantine restrictions, armed hostilities, riots and other unavoidable events beyond the control of Licensor, and the time for performance of obligations hereunder by Licensor or its suppliers subject to such event shall be extended for the duration of such event.