HEXAGON GEOSPATIAL CLOUD PLATFORM
PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE HEXAGON GEOSPATIAL CLOUD PLATFORM WEBSITE (“WEBSITE”). USE OF THIS WEBSITE INDICATES ACCEPTANCE OF THIS AGREEMENT WITHOUT MODIFICATION. IF YOU DO NOT AGREE TO THE TERMS HEREOF (“TERMS”), DO NOT USE THIS WEBSITE. Additional terms and conditions applicable to specific areas of this Website or to particular content or transactions are also posted in various areas of this Website and, together with these Terms, govern your use of those areas, content or transactions.
Use of this Website
All materials on this Website are copyrighted and any unauthorized use may violate worldwide copyright, trademark, and other laws. Subject to the terms of this Agreement, Intergraph Corporation by and through its Hexagon Geospatial Division and Intergraph Corporation’s subsidiaries (“Hexagon Geospatial,” “We, “Us,” “Our”) hereby authorize you to view information and purchase software, services on this Website and other merchandise that may or may not be available for purchase, download (collectively “Services”). In consideration of this authorization, you agree to retain all copyright and other proprietary notices contained therein. You may not modify the Services in any way or reproduce or publicly display, perform, or distribute or otherwise use them except as specifically authorized in a separate agreement with Hexagon Geospatial. You may not decompile, reverse engineer, or disassemble software except and only to the extent permitted by applicable law. Any unauthorized use of the Services on any other website or networked computer environment for any purpose is prohibited.
The foregoing authorization specifically excludes content or material bearing a copyright notice or attribution of rights of a third party. Except as expressly provided, nothing contained herein shall be construed as conferring by implication, estoppel or otherwise any license or right under any copyright, patent or trademark of Intergraph or any third party.
If you breach any of these Terms, your authorization to use this Website automatically terminates. Upon termination, you will immediately destroy any downloaded or printed Materials in your possession or control.
FOR THE SOFTWARE AND SERVICES AVAILABLE FOR PURCHASE, USE OR DOWNLOAD FROM THIS WEBSITE, HEXAGON GEOSPATIAL MAKES NO WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. HEXAGON GEOSPATIAL DOES NOT WARRANT THAT ANY SOFTWARE PRODUCT WILL MEET YOUR REQUIREMENTS, AND UNDER NO CIRCUMSTANCES DOES HEXAGON GEOSPATIAL WARRANT THAT ANY SOFTWARE PRODUCT WILL OPERATE UNINTERRUPTED OR ERROR FREE. THE SOFTWARE PRODUCT IS PROVIDED “AS IS” AND YOU BEAR THE SOLE RISK OF USING THE SOFTWARE PRODUCT. IF ANY PART OF THIS DISCLAIMER OF EXPRESS OR IMPLIED WARRANTIES IS RULED INVALID, THEN HEXAGON GEOSPATIAL DISCLAIMS EXPRESS OR IMPLIED WARRANTIES TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW. IF A GREATER WARRANTY OR LIABILITY IS MANDATED PURSUANT TO THE LAW HELD APPLICABLE TO THIS AGREEMENT, THEN HEXAGON GEOSPATIAL WARRANTS THE SOFTWARE PRODUCT AND PROVIDES LIABILITY TO THE MINIMUM EXTENT REQUIRED BY SAID LAW. Hexagon Geospatial may make changes to the Services available at this Website at any time without notice.
Limitation of Liability
IN NO EVENT SHALL HEXAGON GEOSPATIAL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, ARISING FROM YOUR ACCESS TO, OR USE OF, THIS WEBSITE OR THE SERVICES PURCHASED FROM THIS WEBSITE.
You agree to defend, indemnify, and hold harmless Intergraph Corporation, Hexagon Geospatial, its officers, directors, employees, and agents from and against any and all claims, liabilities, damages, losses or expense, including reasonable attorney’s fees and costs, arising out of or in any way connected with your access to or use of this Website, including, but not limited to, allegations of infringement by You of third parties intellectual property rights, and your compliance with the export compliance provisions of this Agreement.
Use of Software
Software available on this Website is licensed and not sold. Use of software available on this Website is subject to the terms of the end user license agreement that accompanies the software. If You are purchasing the license on behalf of a company or other legal entity, You warrant that You are authorized to bind your agents or employees to the end user license agreement that accompanies the software. If You are purchasing the license on behalf of a company or other legal entity, You further agree to be responsible for any acts or omissions of those agents and employees which breach the terms of the end user license agreement. For greater clarity, as it pertains to the end user license agreement the license type for Intergraph owned software You use within the Website is classified as “(CH) Cloud-Hosted.” You may not download, install or otherwise use any software that is accompanied by or includes an end user license agreement unless you have read and accepted the terms of such license agreement. Any such software is the copyrighted work of Intergraph Corporation, its affiliates and subsidiaries including Hexagon Geospatial or other licensors as applicable.
Terms of Sale for Software
Software available for purchase on this Website may be subject to export control laws as provided in the end user license agreement with that software. You agree to comply with all applicable US and international laws and regulations that apply to you in relation to such software.
You agree to provide current, complete and accurate billing and account information for all purchases made on this Website. You are responsible for updating your account and other billing or contact information as soon as possible so that we can process your orders as quickly as possible or contact you if necessary regarding your transaction.
Payment is due immediately for all Services available for purchase from this Website. Prices shown on this Website are exclusive of all taxes or charges that may apply to your purchase. Because the Software is downloaded electronically or streamed to you, delivery charges do not apply to Software from this Website. Taxes and charges will be added to your order at the time of checkout and you will have the opportunity to review the taxes and other charges applicable to your order prior to completing your purchase. Orders will not be processed without a fully paid up license for Software. Prices and availability are subject to change without notice at the discretion of Hexagon Geospatial. Hexagon Geospatial reserves the right to refuse or reject an order at any time, refunding you the monies you have paid for the refused or rejected order for any reason, including, but not limiting to, your failure to pay or your payment cannot be processed or if the Services are not available, or for obvious errors on this Website regarding your order. In the event of an obvious error on this Website regarding your order, Hexagon Geospatial reserves the right to correct the error and charge you the correct price. For obvious errors, if necessary, Hexagon Geospatial will contact you and offer you the option of purchasing the Services at the correct price or canceling your order. Any refunds will be made in the same method of payment used to place the order.
Technical Support of Software
Support for Hexagon Geospatial software is available for software under a current subscription through this Website via telephone support or email support. Intergraph and Hexagon Geospatial are not responsible for support for any third-party provided software or applications that may be available through this Website. The phone number for support is: 1-800-661-8134 and the email address for support is: email@example.com. Support hours for phone and email support are 8:00am – 5:00PM CST. There is no guarantee that your problem or issue that you seek support for may be solved through technical support and there are no guarantees for incident response times unless you have a separate agreement with Intergraph Corporation or Hexagon Geospatial that provides for incident response times. Hexagon Geospatial will make available the current version and one version prior of the software for which you have current subscription.
Any material or information posted to this Website shall be deemed to be non-confidential and non-proprietary and Intergraph shall have no obligation of any kind with respect to such information. Intergraph shall be free to reproduce, use, disclose and distribute the information to others without limitation. Further, Intergraph shall be free to use any ideas, concepts, know-how or techniques contained in such information for any purpose whatsoever including but not limited to developing, manufacturing and marketing products incorporating such information.
Personally identifiable information that you submit to Hexagon Geospatial via this Website will be handled in accordance with the Hexagon Geospatial Electronic Information Privacy Notice.
Third Party Privacy Policies
The use of some of the software and Services available from this Website is accessible only through third parties and not Hexagon Geospatial and as such are subject to and your acceptance of the privacy policies of those third parties. When applicable and as required, Hexagon Geospatial has provided such third party privacy policies in this section. If you do not or cannot agree to these terms and conditions for the use of those third party services, do not use these Services. Hexagon Geospatial does not sell your information or for “spam” purposes.
Ownership; Proprietary Rights. Supplier retains all right, title and interest in and to the Branded Platform. Supplier retains all rights associated with the Branded Platform that are not expressly granted by this Agreement.
Warranty Disclaimer. For the use of the Branded Platform, neither Hexagon Geospatial nor Supplier makes any warranty of any kind, express or implied, including, but not limited to, any implied warranties of merchantability, fitness for a particular purpose, or non-infringement for the use of the Branded Platform.
Limitation of Liability and Damages. You agree that Supplier is not responsible for any damages you may incur by your use of the Branded Platform, including, but not limited to consequential damages or lost profits. Your use of the Branded Platform is “as-is” with no warranties express or implied.
No reverse engineering. You agree that You will not (i) decompile or reverse engineer the Branded Platform or take any other action to discover the source code or underlying ideas of algorithm of any components thereof; (ii) copy the Branded Platform, (iii) post, publish or create derivative works based on the Branded Platform, or (iv) remove any copyright notice, trade or service marks, brand names and the like from the Branded Platform, related documentation or packaging.
By using the Branded Platform as a user, You will submit what is generally called “personally identifiable” information (such as your name, email address, postal mailing address, home/mobile telephone number, pay account information (such as credit card information), demographic information) when using the Branded Platform.
Cookies’ information: Supplier may send one or more cookies – small text files containing a string of alphanumeric characters – to Your computer. Supplier may use both session cookies and persistent cookies.
Automatically collected information: When You access or use the Branded Platform or open a Supplier generated HTML email, there may be different types of technology used to automatically record certain information from Your web browser by using different types of technology, including standard log files, or “clear gifs”. This automatically collected information may include Internet Protocol address (“IP Address”) or other device address or ID, web browser and/or device type, the web pages or sites that the You visited just before or just after the Branded Platform, the pages You viewed on the Branded Platform, and the dates and times that You visited the Branded Platform.
For users in the EU: The following definition applies to the details you provide to, and may collected by Supplier: "Personal Information": Supplier may collect information that (i) is transferred from the EU to the United States; (ii) is recorded in any form; (iii) is about or pertains to a specific individual; and (iv) can be linked to that individual.
The way Supplier may use the information provided by You:
- To operate, maintain, enhance and provide all of the features and services found in the Branded Platform.
- To use your email address to contact You for administrative purposes, customer service purposes, address intellectual property infringement, rights of privacy, or defamation issues or regarding Your submissions that have been posted on the Branded Platform.
- To analyze and understand the usage trends and preferences of users to improve the way the Branded Platform works and looks and to create new features and functionality.
- Supplier may use “automatically collected” information and “cookies” to (a) personalize its services, such as remembering user information so that You will not have to re-enter it during Your visit or the next time You use the Branded Platform; (b) monitor and analyze the effectiveness of the Branded Platform and third party marketing activities; (c) monitor aggregate site usage metrics such as total number of visitors and pages viewed; and (d), track entries, submissions and status of any promotions or other activities.
- Supplier may use Your email address or other personally identifiable information to send (a) messages about the Branded Platform, such as when You receive a message, comment, or request from another user, and (b) messages on behalf of other users who think You may be interested in the Branded Platform, such as through “refer-a-friend” features of the Branded Platform. You have the ability to opt-out of receiving any such communications, either through links provided in the messages, or by updating Your account preferences through the Branded Platform.
The Supplier does not sell Your information to direct marketers. The Supplier does, however, disclose your personally identifiable information in a variety of circumstances in connection with the operation of their business. For example:
- Supplier discloses the information end users provide or that it collects to Hexagon Geospatial and to Developers of Products in connection with the operation of their services (including Developer Products the end user subscribes to) with the Branded Platform.
- The Branded Platform enables users to communicate in a variety of ways. Any personally identifiable information that end users voluntarily choose to include in an area on the Branded Platform that is accessible to another user will be available to other users who have access to that content. Once an end user makes his personally identifiable information available to others any of these ways, it may be collected, used, and disclosed by the recipients without restriction.
- Supplier may provide Developers of Products that end users subscribe to and Hexagon Geospatial with information regarding end user’s use of the Branded Platform.
- Supplier may disclose automatically collected and other aggregate non-personally-identifiable information with interested third parties, to assist such parties in understanding the usage, viewing, and demographic patterns for certain programs, content, services, and/or functionality on the Branded Platform.
- Supplier works with third party service providers who provide website development, hosting, maintenance, and support as well as other business services for us. To the extent it is necessary for these service providers to complete their work, these third parties may have access to or process end user’s personally identifiable information. Generally, these disclosures are made under terms comparable to this policy, and the recipients are limited to using the information the purpose for which it was provided.
- Supplier uses third party payment processing services, and end user’s personal information will be disclosed to such providers in connection with processing their payments of fees and other transactions they initiate on the Branded Platform
- Supplier may also disclose end user information if required to do so by law or in the good-faith belief that such action is necessary to comply with state and federal laws (such as U.S. Copyright law), in response to a court order, judicial or other government subpoena or warrant, or to otherwise cooperate with law enforcement activity.
- Supplier reserves the right to disclose end user information that it believes, in good faith, is appropriate or necessary to take precautions against liability; to protect Supplier and others from fraudulent, abusive, predatory, or unlawful uses or activity; to investigate and defend Supplier against any third party claims or allegations; to assist government enforcement agencies; to protect the security or integrity of the Branded Platform; or to protect or vindicate the rights, property, or personal safety of Supplier, its users, or others.
Choices - Opting-out.
- You may decline to share certain personally identifiable information with the Supplier, in which case, however, the Supplier may not be able to provide to You some or all of the features and functionality found in the Branded Platform. You may update, correct, or delete your profile information and preferences at any time by accessing your account preferences page in the Branded Platform. While such changes are reflected promptly in active user databases, the Supplier may retain all information that You submit for a variety of purposes including backups and archiving, prevention of fraud and abuse, and analytics.
- For users in the EU, Supplier offers the opportunity to choose (opt-out) whether Your Personal Information is (a) to be disclosed to a non-agent third party, or (b) to be used for a purpose other than the purpose for which it was originally collected or subsequently authorized by you. For Your Sensitive Personal Information, You may affirmatively or explicitly (opt-in) give Your consent to the disclosure of the information for a purpose other than the purposes listed above, or those that You have already authorized.
- To protect Your privacy and security, Supplier takes steps to verify Your identity before granting access to Your account or making corrections to Your information. You are responsible for maintaining the secrecy of your unique password and account information at all times.
Third party services. From time to time, the Branded Platform may contain links to and integrations with websites and services provided by third parties. Any personally identifiable information an end user provides on third party sites or services is provided directly to that third party and is subject to that third party’s policies, if any, governing privacy and security. Supplier is not responsible for the content or privacy and security practices and policies of third party sites or services to which links are displayed on the Branded Platform.
Data security. Supplier makes use of certain physical, managerial, and technical safeguards in their efforts to safeguard the integrity and security of Your personally identifiable information. Once Supplier receives a transmission of Your information, Supplier endeavors to secure its systems, provided, however that it does not guarantee that such information may not be accessed, disclosed, altered, or destroyed by system malfunction or circumvention of Supplier safeguards. If Hexagon Geospatial or Supplier learns of a security systems breach, then they may attempt to notify You electronically so that they can take appropriate protective steps. Supplier may post a notice through the Branded Platform if a security breach occurs.
Supplier will investigate and attempt to resolve complaints and disputes regarding use and disclosure of personal information in accordance with the principles contained in this Policy. For EU users whose complaints cannot be satisfactorily addressed by Supplier, please contact the Better Business Bureau European Dispute Resolution (application pending) at: http://www.bbb.org/us/consumer/european-dispute-resolution/complaint-info/.
Numecent respects the privacy of our customers, business partners and other visitors to its website. Numecent recognize the need for appropriate protections and management of Your personal information that You provide to Numecent. Numecent has therefore established this Privacy Statement to assist you in understanding what personal information we collect and how that personal information is used. This Privacy Statement applies to data collected by Numecent Holdings Ltd. and its subsidiaries and affiliates (“Numecent” or the “Company”) through numecent.com, numecentcloud.com, and other web pages which we operate and in which we post a direct link to this statement.
Numecent offers certain services through its Native as a Service (“NaaS”) platform, which services are collectively referred to as NaaS. Numecent may collect personal contact information such as name, company name, address, telephone number or email address, user IDs and passwords, billing and transaction information, credit card or other financial information and contact preferences (“Required Contact Information”).
Numecent may also collect information through the use of commonly-used information-gathering tools, such as cookies and Web beacons (“Website Navigational Information”). Website Navigational Information includes standard information from your Web browser (such as browser type and browser language), your Internet Protocol (“IP”) address, and the actions you take on the Company’s website (such as the web pages viewed and the links clicked). Personal information collected online may be supplemented with information you provide to Numecent through other Numecent services, as well as other sources such as trade shows or seminars, and other data appending methods such as spot tags, tracking and cookies as referenced below. Personal information collected on Numecent’s website and services may be stored and processed in the United States or any other country in which Numecent or service providers maintain facilities.
Numecent will use your information to communicate with You, to deliver products/services to You such as NaaS and to provide ongoing service and support and to help them understand Your needs and interests. Numecent may also use Website Navigational Information alone or in combination with Data About Numecent Customers to provide personalized information about the Company or NaaS.
Numecent may contract with third party service providers and suppliers (including distributors and resellers) to deliver certain products, services and customer solutions. Numecent may share personal information with its service providers and suppliers to the extent needed to deliver the service or respond to requests for information on products or services or otherwise support the customers' business needs. Just as Numecent maintains the confidentiality of personal information, third party service providers and suppliers receiving personal information are expected to apply the same level of privacy protection as contained in this Privacy Statement. They are required to keep confidential the personal information received from Numecent and may not use it for any purpose other than as originally intended.
Numecent is not in the business of selling or renting your information to others and will not share personally identifiable information with other third parties without your permission, unless required by, or in connection with, law enforcement action, subpoena or other litigation, or applicable law or in connection with a prospective or actual sale, merger, transfer or other reorganization of all or parts of our business, or within the group of affiliated Numecent companies, if and to the extent legally permissible.
If you would like to request access to personal information that Numecent may have collected from you (possibly subject to handling fees), please send us an email to firstname.lastname@example.org. To protect your privacy and security, we may take steps to verify your identity, such as a password and user ID, before granting access to data. You may manage your receipt of marketing and non-transactional communications by clicking on the “unsubscribe” link located on the bottom of any emails you may receive on behalf of Numecent. Additionally, you may send a request specifying your communications preferences to email@example.com. You cannot opt out of receiving transactional emails related to your account with Numecent or NaaS. If you would like to receive or unsubscribe from receiving marketing communications, please send us an email to firstname.lastname@example.org. Numecent employs industry-standard controls to secure your personal data. Access to confidential information is limited to those individuals and agents having a need to know and who agree to maintain the confidentiality of such information.
Numecent does not support the Do Not Track browser setting.
If you have any questions regarding this Privacy Statement or believe that the privacy of your personal information has not been respected, you may submit a complaint in writing to the attention of Numecent's Chief Financial Officer, 15635 Alton Parkway, Suite 100, Irvine, CA 92618. If you have a comment or concern that cannot be resolved with Numecent directly, you may contact the competent local data protection authority.
Use And Protection Of Account Number And Password
If you obtain a user name and/or password to permit access to any area of this Website, you are responsible for maintaining the confidentiality of such information. You are responsible for damages resulting from all uses of your user name and/or password, whether actually or expressly authorized by you, unless access to your user name and/or password was obtained through no fault or negligence of your own.
Links To Third Party Websites
This Website may provide links to third party websites for your use, convenience and information. If you access those links, you will leave this Website. Third party websites will be governed by their own terms and conditions. Unless otherwise expressly provided, Hexagon Geospatial does not endorse companies or products to which it links.
Third party websites are owned and operated by independent parties over which Hexagon Geospatial has no control. Hexagon Geospatial shall not have any liability resulting from your use of the third party website. Any link you make to or from the third party website will be at your own risk and any information you share with the third party website will be subject to the terms of the third party website, including those relating to confidentiality, data privacy, and security.
The trademarks, logos and service marks (“Marks”) displayed on this Website are the property of Intergraph Corporation or other third parties. Users are not permitted to use Marks without the prior written consent of Intergraph Corporation or the third party that owns the Mark. “Intergraph” is a registered trademark of Intergraph Corporation in the United States and in other countries. Other brands and product names are trademarks of their respective owners.
Additional trademark information is available.
Procedure For Making Claims Of Copyright Infringement
Notifications of claimed copyright infringement should be sent to Intergraph by mail at the following address: Intergraph Corporation, Attn: Intergraph Legal Department, Mail Stop 1S, P.O. Box 240000, Huntsville, Alabama 35824. Please see: http://www.intergraph.com/reportviolations.aspx
US Government Restricted Right
Services are provided with “RESTRICTED RIGHTS.” Use, duplication, or disclosure of Materials by the U.S. Government is subject to restrictions as set forth in FAR 52.227-14 and DFARS 252.227-7013 et seq. or successor provisions thereto. Use of Services by the Government constitutes acknowledgement of Intergraph’s proprietary rights therein.
International Use and Export Compliance
You may not use or export software or Services available for use and/or download from this Website in violation of U.S. export laws and regulations. Hexagon Geospatial makes no representation that Services are appropriate or available for use in every country, and access to them from territories where their content is illegal is prohibited.
Hexagon Geospatial provides access to Hexagon Geospatial international data and, therefore, may contain references or cross references to Hexagon Geospatial products, programs and services that are not announced in your country. These references do not imply that Hexagon Geospatial intends to announce such products, programs or services in your country.
The software and Services available for use and/or download from this Website are subject to U.S. export control and economic sanctions laws and regulations and you agree to comply strictly with all such laws and regulations. In addition, you represent and warrant that you are not a national of, or otherwise located within, a country subject to U.S. economic sanctions (including without limitation Iran, Syria, Sudan, Cuba, and North Korea) and that you are not otherwise prohibited from receiving or accessing the Materials under U.S. export control and economic sanctions laws and regulations. Hexagon Geospatial makes no representation that the software and Services are appropriate or available for use in every country, and access to them from territories where their content is illegal is prohibited. All rights to use the software and Services are granted on condition that such rights are forfeited if you fail to comply with the terms of this agreement.
Hexagon Geospatial reserves the right to revise these Terms at any time. You are responsible for regularly reviewing these Terms. Your continued use of this Website after the effective date of such changes constitutes your acceptance of and agreement to such changes.
This Website is created and controlled by Intergraph Corporation in the State of Alabama. As such, the laws of the State of Alabama will govern these Terms, without giving effect to any principles of conflicts of law. You hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the United States District Court for the Northern District of Alabama, Northeastern Division, or the Circuit Court for Madison County, Alabama for any litigation arising out of or relating to use of or purchase made through this Website (and agree not to commence any litigation relating thereto except in such courts), waive any objection to the laying of venue of any such litigation in such Courts and agree not to plead or claim in any such Courts that such litigation brought therein has been brought in an inconvenient forum. Some jurisdictions do not allow the exclusions or limitations set forth in these Terms. Such exclusions or limitations shall apply in all jurisdictions to the maximum extent allowed by applicable law.
Contact us with any questions regarding these Terms.
Copyright 2015 – Intergraph Corporation.
Hexagon Geospatial Cloud Platform
NUMECENT NaaS END USER LICENSE AGREEMENT
IMPORTANT-PLEASE READ CAREFULLY:
BY DOWNLOADING, INSTALLING, OR USING THE SOFTWARE, YOU (THE INDIVIDUAL OR LEGAL ENTITY) AGREE TO BE BOUND BY AND ACCEPT THE TERMS OF THIS END USER LICENSE AGREEMENT ("EULA") FOR LICENSED SOFTWARE FROM NUMECENT (“NUMECENT”). IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MUST NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE, AND YOU MUST DELETE OR RETURN THE UNUSED SOFTWARE TO NUMECENT WITHIN THIRTY (30) DAYS AND REQUEST A REFUND OF THE LICENSE FEE, IF ANY, THAT YOU PAID FOR THE SOFTWARE.
THE EFFECTIVE DATE OF THIS EULA IS THE DAY YOU FIRST DOWNLOAD, INSTALL OR USE THE SOFTWARE.
Capitalized terms, not otherwise defined in the EULA, shall have the meaning set forth in this Section 1.
1.1 Application Jukebox Player means the object code version of the Software residing on your computer and used by You to access and cloudpage applications.
1.2 Authorized Concurrent User(s) means an Authorized User that You authorize to have concurrent access to and use of the Software pursuant to the terms of this EULA.
1.3 Authorized Server means a computer file server on your internal network designated to run the Software for use by Authorized Users or Authorized Concurrent Users.
1.4 Authorized Reseller means an authorized distributor, reseller or dealer of the Software.
1.5 Authorized User(s) means You, or your employees or an individual independent contractor authorized by You to use the Software pursuant to the terms of this EULA. An Authorized User means an individual person, and is not a corporation, company, partnership or association or other entity or organization.
1.6 Documentation means, collectively, any user guides, reference manuals, installation materials, release notes and other supporting material relating to the Software as are currently maintained by Numecent and provided to its licensees, in online, electronic or written form.
1.7 Guest Operating Systems means instances of third-party operating systems licensed separately by You and installed in a Virtual Machine.
1.8 License Fee means the applicable fee, if any, for which You license the Software.
1.9 Open Source Software means various software components including open source software, which may be part of the Software, each licensed to You under its own applicable license terms and conditions, which can be found in the open_source_licenses.txt file or the Documentation.
1.10 Permitted Use means uses in non-hazardous environments and environments that do not require fail-safe controls, thus excluding for example only, uses for navigation, power facilities, communications, hospital or life support systems.
1.11 Software means Application Jukebox Player as well as any other all software products, in object code only, that are licensed to You under this EULA, including, but not limited to, the Software License Key and any related software components purchased or provided with the software, Documentation, and any Numecent-authorized Updates, replacements or modifications thereto.
1.12 Software License Key means a unique series of data elements which enables You to access and use the version of the Software licensed to You.
1.13 Third Party Software means certain software supplied by third parties that Numecent or an Authorized Reseller or partner provides access to as part of or through the use of the Software.
1.14 Virtual Machine means an instance of a Guest Operating System and any application programs installed thereon, running on a computing device on which the Software is installed, or suspended to disk or other storage media accessible by the computing device.
2. BETA, EVALUATION AND PARTNER DEMO LICENSES
2.1 General. If available, the Software may be activated with no-cost evaluation Software License Key(s). You acknowledge that evaluation Software License Keys have an expiration date (“Expiration Date”) and that Numecent is not obligated to allow further Permitted Use of the Software.
2.2 Beta Software. If the Software you have received is pre-release or beta Software (“Beta Software”) then this provision applies. To the extent of the conflict between this provision and any other term or condition in the Agreement, this section shall supersede such other terms or conditions with respect to the Beta Software. You acknowledge that the Beta Software is a pre-release version, does not represent the final product from Numecent, and may contain bugs, errors and other problems that could cause system or other failures. You acknowledge that Numecent has no express or implied obligation to You to announce or introduce the Beta Software, and that Numecent may not introduce a product similar to or compatible with the Beta Software. You may not sublicense, lease, loan, rent, distribute or otherwise transfer the Beta Software.
2.3 Evaluation License. If You are licensing the Software for demonstration or evaluation purposes (the “Evaluation Product”), your use of the Evaluation Product is only allowed in a non-production environment and only for internal demonstration, test or evaluation of the suitability of the Evaluation Product for licensing on a for-fee basis until the Expiration Date.
2.4 Not For Resale. If the Software is “Not for Resale Software,” notwithstanding any term to the contrary in this Agreement, your license allows a Permitted Use only if You are a current Numecent Authorized Reseller and then only for demonstration, test or evaluation purposes in support of your customers. Note that Not for Resale Software disables itself on the Expiration Date in the Software Documentation.
2.5 Beta Software, Evaluation Product and Not for Resale Warranty Disclaimer. NOTWITHSTANDING ANY OTHER PROVISION IN THIS EULA, EACH OF THE BETA SOFTWARE, EVALUATION PRODUCT AND THE NOT FOR RESALE SOFTWARE IS PROVIDED TO YOU “AS IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. NUMECENT AND ANY LICENSOR OF THE SOFTWARE TO YOU BEAR NO LIABILITY FOR ANY DAMAGES RESULTING FROM PERMITTED USE (OR ATTEMPTED PERMITTED USE) OF EACH OF THE EVALUATION PRODUCT AND THE NOT FOR RESALE SOFTWARE THROUGH AND AFTER THE EXPIRATION DATE. WHERE LEGAL LIABILITY CANNOT BE EXCLUDED FOR BETA SOFTWARE, EVALUATION PRODUCT OR NOT FOR RESALE PRODUCT, BUT IT MAY BE LIMITED, NUMECENT’S LIABILITY SHALL BE LIMITED TO THE SUM OF FIFTY DOLLARS (USD $50) IN TOTAL.
2.6 No Support. Numecent has no duty to provide support to you during your Permitted Use of the Beta Software, Evaluation Product or the Not for Resale Software.
3. GRANT AND USE RIGHTS FOR SOFTWARE
3.1 License Grant. The Software is licensed, not sold. Subject to the terms and conditions of this EULA, Numecent grants You a non-exclusive, non-transferable license, without rights to sublicense, to (i) install the Software on the Authorized Servers; (ii) reproduce, distribute and install the number of copies of the Software on the computers of the Authorized Users or the Authorized Concurrent Users, as applicable; or (iii) allow up to the permitted number of Authorized Users or Authorized Concurrent Users, as applicable, to use for a Permitted Use the Software in accordance with the Documentation and, subject to Section 3.2, for which You have paid the applicable License Fees. If You were invoiced in the European Union for the Software, You may use that Software in any of the European Union member states for a Permitted Use. You may allow Authorized Users to access and use the Software on Your behalf for a Permitted Use solely for your internal business operations, provided, they are bound by an agreement with You protecting Numecent's intellectual property with terms no less stringent than this EULA and You ensure that such third party use of the Software complies with the terms of this EULA. This license grant includes the right to use the Documentation for the sole purpose of using the Software for a Permitted Use. You may make one backup, unmodified copy of the Software in machine readable form solely for archival purposes provided that you reproduce all proprietary notices on the copy. If You upgrade or exchange the Software from a previous validly licensed version, You must cease use of the prior version of that Software. The Application Jukebox Player is intended for your own personal non-commercial use only. The Application Jukebox Player may only be used commercially or be re-distributed with written agreement from Numecent.
3.2 Restrictions and Other Rights.
(a) Except as expressly permitted by this EULA or by applicable law, You may not directly or indirectly:
(i) sell, lease, assign, license, sublicense, distribute or otherwise transfer in whole or in part the Software;
(ii) permit any use of or access to the Software by any third party, except as provided in Section 3.1 above;
(iii) operate the Software on behalf of or for the benefit of any third party, including the operation of any service that is accessed by a third party, except that, for the purposes of this Section 3.2(iii), You may use the Software to deliver hosted services to Your affiliates that are directly or indirectly controlled by, or are under common control with You. "Control" in this Section 3.2(iii) means an ownership, voting or similar interest representing fifty percent (50%) or more of the total interests then outstanding of the relevant entity;
(iv) copy, decompile, disassemble, reverse engineer, otherwise alter the Software or reduce the software to human readable form;
(v) modify or create derivative works based upon the Software;
(vi) create, develop, license, install, use, or deploy any software or services to circumvent, enable, modify or provide access, permissions or rights which violate the technical restrictions in the Software; or
(vii) Alter or remove any copyright, patent, trade secret, proprietary or other legal notices, labels or marks on any Software.
(b) You acknowledge that the Software may include features that ensure that your use of the Software complies with the terms of this Agreement.
(c) You shall ensure that Your Authorized Users and Authorized Concurrent Users, if any, comply with the terms of this Agreement applicable to their use of the Software.
3.3 Third-Party Software. You are responsible for separately obtaining and complying with any licenses necessary to operate Third-Party Software, including but not limited to, Guest Operating Systems and application programs which the Software enables You to run.
3.4 Data Collection and Privacy.
3.5 Audit Rights. During the term of this EULA and for two (2) years after termination or expiration of the EULA or support services for the applicable Software has expired, You agree to maintain accurate records as to your installation and use of the Software, sufficient to provide evidence of compliance with the terms of this EULA. Numecent, or an independent third party designated by Numecent, may audit, upon written notice to You, your books, records, and computing devices to determine your compliance with this EULA and your payment of the applicable license and support services fees, if any, for the Software. Numecent may conduct no more than one (1) audit in any twelve (12) month period. In the event that any such audit reveals an underpayment by You of more than five percent (5%) of the license amounts due to Numecent in the period being audited, or that You have breached any term of the EULA, then, in addition to paying to Numecent any underpayments for Software licenses fees and any other remedies Numecent may have, You will promptly pay to Numecent the audit costs incurred by Numecent.
3.6 Upgrading the Software. Numecent may issue you an upgraded version of the Software automatically upon an instance of your use of the Software or otherwise in connection with your use of the Numecent ready device. Alternatively, Numecent may require you to consent to an upgrade to the Software ("Software Upgrades") before using, installing or accessing the Software. If you decline the Software Upgrades, you may not be able to use or access the Software.
4. TITLE. No title to or ownership of the Software is transferred to you. Numecent retains all rights, title, interest in and ownership of the Software, the Software License Key(s), the Documentation or any copy thereof regardless of the form or media on or in which the original or any copy may exist and all related intellectual property rights, including, without limitation, patents, copyrights, trade secrets.
5. SUPPORT SERVICES. Numecent does not provide any support for the Software under this EULA.
6. TERMINATION. This License Agreement is effective until terminated. Your rights under this License Agreement are terminable by Numecent at any time without notice. Further, this License Agreement will terminate if Numecent finds that you have violated any of the terms of this License Agreement. No waiver of any breach of any provision of this License Agreement by Numecent shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless it is made in writing and is signed by an authorized representative of Numecent. Any obligations to pay fees incurred prior to termination, all provisions relating to confidentiality, proprietary rights, and nondisclosure and Sections 3, 4 and 7 shall survive the termination of this License Agreement. In the event of termination, You must remove and destroy all copies of the Software and Software License Key(s), including all backup copies, from the server and all computers and terminals You own, possess or control and on which the Software is installed.
7. LIMITED WARRANTY AND LIMITATION OF LIABILITY
7.1 Limited Warranty. Numecent warrants that (i) the physical media, if any, on which the Software is delivered will be free of defects in materials and workmanship; and (ii) that the Software will substantially conform to the functional description set forth in the standard Documentation accompanying the Software for a period of 90 days after the date of delivery of the Software License Key to You, provided that You implement all releases, enhancements and corrections previously offered to you by Numecent ("Warranty Period"). If the physical media is defective and is returned to Numecent within the Warranty Period, your exclusive remedy will be Numecent's option to repair or replace the defective physical media. To return the defective physical media, send an email to email@example.com to request a return authorization number. If during the Warranty Period the Software does not substantially conform to the functional description set forth in the Documentation, your exclusive remedy will be that Numecent shall, at its sole option, correct the defects in the Software or refund the license fees You paid, if any, for the Software provided that (i) the Software has been properly installed and used at all times and in accordance with the Documentation; (ii) no modification, deletion or addition has been made to the Software by persons other than Numecent or its authorized representative; and (iii) Numecent receives written notice of the non-conformity within the Warranty Period. EXCEPT FOR THE PRECEDING EXPRESS LIMITED WARRANTY, TO THE MAXIMUM EXTENT MANDATED BY LAW, NUMECENT PROVIDES THE SOFTWARE WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS EULA OR COMMUNICATION WITH YOU, AND NUMECENT SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY NUMECENT OR ANY OF ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN.
7.2 OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT NEITHER NUMECENT NOR ITS AFFILIATES, OR AUTHORIZED RESELLERS SHALL BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA OR PRIVACY, THE COST OF RECOVERY OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF THE SOFTWARE OR SUPPORT OR DAMAGE ARISING FROM YOUR USE OF THIRD PARTY SOFTWARE OR HARDWARE UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE PRECEDING LIMITATION MAY NOT APPLY TO YOU. NUMECENT'S LIABILITY UNDER THIS EULA WILL NOT, IN ANY EVENT, EXCEED THE LICENSE FEES YOU PAID FOR THE SOFTWARE, IF ANY. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER NUMECENT HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
8. U.S. GOVERNMENT END USERS.
The Software and Documentation are deemed "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", respectively, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through §227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
9.1 Entire Agreement. This EULA represents the entire agreement between the parties with respect to the Software, and supersedes any prior or contemporaneous oral or written agreements concerning the subject matter contained herein.
9.2 Headings. Headings under this EULA are intended only for convenience and shall not affect the interpretation of this EULA.
9.3 Waiver and Modification. No failure of either party to exercise or enforce any of its rights under this EULA will act as a waiver of those rights. This EULA may only be modified, or any rights under it waived, by a written agreement executed by the party against which it is asserted.
9.4 Severability. If any provision of this EULA is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this EULA will not be affected.
9.5 Export Controls. The Software is of United States origin and is provided subject to the U.S. Export Administration Regulations. Diversion contrary to U.S. law is prohibited. Without limiting the foregoing, you agree that (1) you are not, and are not acting on behalf of, any person who is a citizen, national, or resident of, or who is controlled by the government of, Cuba, Iran, North Korea, Sudan, or Syria, or any other country to which the United States has prohibited export transactions; (2) you are not, and are not acting on behalf of, any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List; and (3) you will not use the Software for, and will not permit the Software to be used for, any purposes prohibited by law, including, without limitation, for any prohibited development, design, manufacture or production of missiles or nuclear, chemical or biological weapons.
9.6 U.S. Government Restricted Rights. The Software and Documentation are deemed to be "commercial computer software" and "commercial computer software documentation," respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performance, display, or disclosure of the Software by the U.S. Government shall be governed solely by the terms of this EULA.
9.7 Governing Law.
(a)If you are located in the United States and are using the Software in the United States then this EULA will be governed and construed in accordance with the laws of the state of California (excluding its conflict of laws principles and the U.N. Convention on Contracts for the International Sale of Goods) and you expressly agree that exclusive jurisdiction for any claim or dispute with Numecent or relating in any way to your use of the Software resides in the federal or state courts of the state of California and you further agree and expressly consent to the exercise of personal jurisdiction in the federal or state courts of the state of California in connection with an such claim or dispute.
(b) If You are located in the European Union and are using the Software in the European Union and not in the United States, then this EULA will be governed and construed in accordance with the laws of England and Wales (excluding its conflict of laws principles and the U.N. Convention on Contracts for the International Sale of Goods) and you expressly agree that exclusive jurisdiction for any claim or dispute with Numecent or relating in any way to your use of the Software resides in the courts of England and Wales in connection with any such claim or dispute.
(c) If You are located outside of the European Union or the United States and are not using the Software in the United States, then this EULA will be governed and construed in accordance with the laws of the state of California (excluding its conflicts of laws principles and the U.N. Convention on Contracts for the International Sale of Goods) and you expressly agree that exclusive jurisdiction for any claim or dispute with Numecent relating in any way to your use of the Software resides in the courts of the federal or state courts of the state of California and you further agree and expressly consent to the exercise of personal jurisdiction in the federal or state courts of the state of California in connection with an such claim or dispute.
9.8 Open Source Notices. Click here for notices relating to Open Source Software: Open_source_licenses.txt.
9.9 Contact Information. Please direct legal notices or other correspondence to Numecent, Inc., 15635 Alton Parkway, Irvine, California 92618, United States of America. If You have any questions concerning this EULA, please send an email to firstname.lastname@example.org.
9.10 Notices. Any notice or communication given under this EULA shall be in writing and shall have been properly given by either of us to the other if sent by certified or registered mail, return receipt requested, or by overnight courier to the address shown on Numecent’s website for Numecent and the address shown in Numecent’s records for You, or such other address as the parties shall designate by notice given in the manner set forth above.
9.11 Binding. This EULA will bind and inure to the benefit of the parties and our respective heirs, personal and legal representatives, affiliates, successors and permitted assigns.
Copyright © 2013. Numecent Inc. All rights reserved. Numecent software products are protected by one or more US Patent Numbers.