1.1. “equinux” means equinux USA, Inc., 533 Airport Blvd. Suite 400, Burlingame, CA 94010, USA.
1.2.”Permitted Number” means one (1) unless otherwise indicated under a valid license (e.g. volume license) granted by equinux.
1.3.”Software” means (a) all of the information with which this agreement is provided, including but not limited to (i) equinux or third party software files and other computer information; (ii) related explanatory written materials and files (“Documentation”); and (b) any modified versions and copies of, and upgrades, updates and additions to, such information, provided to you by equinux at any time, to the extent not provided under a separate agreement (collectively, “Updates”).
1.4. “Demo Version” means a version of the Software, so identified, to be used only to review, demonstrate and evaluate the Software for a limited time period or limited extent. The Demo Version may have limited features and/or may cease operating after a predetermined amount of time due to an internal mechanism within the Demo Version.
1.5.„Betatest-Version“ means an ex ante-version of the Software, which is delivered before the final, generally available product offering. The Betatest-Version ist published for the purpose of testing only and does not possess the level of performance and compatibility of a final, generally available product offering.
2. GRANT OF LICENSE
equinux grants you the following rights provided that you comply with all terms and conditions of this EULA:
2.1.Installation and use for End users (Personal Use; Non Commercial Use):
(a) install and use a copy of the Software on one compatible computer that you own. The license is bound to you as a person. It is not permitted to install the Software simultaneously on more than one computer.
(b) install and use a copy of the Demo Version on any number of your compatible computers.
2.2. Installation and use for commercial/academic usage:
(a) install and use a copy of the Software on one compatible computer of your organization.
(b) install and use a copy of the Demo Version on any number of your compatible computers.
2.3.License Grant for Documentation. The Documentation that accompanies the Software is licensed for internal, non-commercial reference purposes only.
2.4. Betatest-Version. equinux desires that the Software is tested prior to the final, generally available product offering; you wish to serve as a Beta Test Site for such Software. equinux grants to you a non-exclusive, non-transferable license to use the Software on any of your compatible computers.
3. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS
3.1. Demo Version. Your right to use the Software is effective from the date you first install the Software on any computer for an unlimited period of time. The Demoversion allows you to create an unlimited number of individualized templates each time you start the Demoversion. The created individualized templates can not be saved by Demoversion.
3.2. Mandatory Activation. THERE ARE TECHNOLOGICAL MEASURES IN THIS SOFTWARE THAT ARE DESIGNED TO PREVENT UNLICENSED USE OF THE SOFTWARE. You may only be able to exercise your rights to the Software under this EULA under certain limitations (see 3.1) unless you activate your copy of the Software in the manner described in the licensening panel. You may also need to reactivate the Software if you modify your computer hardware or alter the Software. equinux will use those measures to confirm you have a legally licensed copy of the Software. If you are not using a licensed copy of the Software, you are not allowed to install the Software or future Software updates.
As long as the Software is not activated it runs as a Demo Version (see 3.1).
3.3. License Codes may be used, stored or copied only by the person or organization, which has licensed the Software, and solely for the purpose of using the Software within the terms and conditions of this Agreement. No person or organization is permitted to store or copy a License Code for any other purpose without written agreement from equinux. The copyright of all License Codes remains vested in equinux which reserves the right to withhold or withdraw authorization of use of all License Codes issued to a person or organization if there is reasonable evidence to indicate that the person or organization is involved in a breach of the terms of this document.
3.4.Secrecy. As the owner of a License Code you are responsible for keeping this Code secret. If any third party gets access to your License Code due to willful or negligent act, you are liable for the damage that arises to equinux.
3.5. Reproduction. Except for backup and installation purposes the Software must not be reproduced on any type of media (including, but not limited to, CD-ROM, DVD or internet download) without formal approval from equinux.
3.6. Betatest-Version. In consideration for receiving a copy of the Software for testing, you agree to serve as a “Beta Test Site” for the Software. You will notify equinux of all problems and ideas for enhancements which come to your attention during the period of this Agreement. Please address any notice required by this Agreement by mail to: firstname.lastname@example.org Use is granted solely for Beta Site Testing and internal use, in case of private persons – personal use. Use is terminated for the Beta Test Site – period of time. equinux reserves the right to cancel this license agreement any time, without giving reasons. Cancelling will at the latest take place by a final, generally available product offering. In case of cancelling this license agreement the Software and all copies shall be returned to equinux or destroyed and equinux shall be informed (via email: email@example.com) in writing about the destruction.
3.7. Confirmation Betatest-Version. You confirm hereby that you provided a backup of your data medium prior to installation of the Software and that you are provided with necessary means for reinstallation and data restoration.
4. RESERVATION OF RIGHTS AND OWNERSHIP
equinux reserves all rights not expressly granted to you in this EULA. The Software is protected by copyright and other intellectual property laws and treaties. equinux or its suppliers own the title, copyright, and other intellectual property rights in the Software. The images used by equinux were either created by our in-house design team or acquired from the following photo libraries and the sole property of their respective owners: photocase.com, dreamstime.com, fotolia.com, istockphoto.com, stockxpert.com, pixelio.de, sxc.hu, aboutpixel.de, morguefile.com, flickr.com, imageafter.com
The Software is licensed, not sold. This EULA does not grant you any rights to trademarks or service marks of equinux. Parts of this Software are not proprietary Software of equinux, but subject to Mozilla Public License (MPL). Those parts that are subject to MPL are cleary marked as such. You can find the applicable MPL license conditions here: http:// fs.equinux.net/docs/software/legal/MPL/
5. LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION, AND DISASSEMBLY
You may not reverse engineer, decompile, or disassemble the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
6. NO RENTAL / COMMERCIAL HOSTING
You may not rent, lease or lend this software (or provide commercial hosting services with the Software).
7. CONSENT TO USE OF DATA
You agree that equinux and its subsidiaries may collect and use technical and related information, including but not limited to technical information about your computer, system and application software, and peripherals, to facilitate the provision of software updates, product support and other services to you (if any) related to the equinux Software, and to verify compliance with the terms of this EULA. equinux may use this information, as long as it is in a form that does not personally identify you, to improve products or to provide services or technologies to you.
8. LINKS TO THIRD PARTY SITES
8.1. equinux is not responsible for the contents of any third-party sites or services, any links contained in third-party sites or services, or any changes or updates to third-party sites or services. equinux is providing these links and access to third-party sites and services in its software to you only as a convenience, and the inclusion of any link or access does not imply an endorsement by equinux of the third-party site or service.
8.2.You notice and agree that equinux is not responsible for any losses and damages that may occur to you, as a consequence of non-availability of such external Websites or sources or as consequence to your faith in completeness, accuracy or existence of any advertising, products or other material that exist on such Websites or are available by those.
8.3.equinux asks you to be alert when leaving its Website and to carefully read the conditions of use and the data-directive of any other Website prior to your visit.
9. ADDITIONAL SOFTWARE / SERVICES
9.1. All external connections/APIs/links/devices/services, etc. are delivered on an “As-Is“ and an „As Available“ basis. For product – releases/updates it is only possible for equinux to test functionality of external connections/APIs/links/devices/services, etc. in equinux- products up to the moment of each release/update. equinux has no influence on suppliers of external connections/APIs/links/devices/services, etc., therefore equinux is not liable for further, error-free, lingering or uninterrupted availability or provision of specific results of external connections/APIs/links/devices/services, etc. in equinux-products, which are available in the moment when release/update is published. There is no obligation for equinux to fix disruptions in case of unavailability of external connections/APIs/links/ devices/services, etc. caused by external changes. In case an integrated, external Service or external link is cut off/no longer offered by provider, equinux is neither liable nor does warrant. equinux also is not liable for any content of integrated, external services or links.
9.2. This EULA also applies to updates, supplements, add-on components, or Internet- based service components, of the Software that equinux may provide to you or make available to you after the date you obtain your initial copy of the Software, unless they are accompanied by separate terms. equinux reserves the right to discontinue on its sole discretion Internet-based services provided to you or made available to you through the use of the Software.
To use Software identified as an upgrade, you must first be licensed for the software identified by equinux as eligible for the upgrade. After installing the upgrade, you may no longer use the original software that formed the basis for your upgrade eligibility, except as part of the upgraded software.
11. NOT FOR RESALE SOFTWARE
Software identified as “Not for Resale” or “NFR,” may not be sold or otherwise transferred for value, or used for any purpose other than demonstration, test or evaluation.
12. ACADEMIC EDITION SOFTWARE
To use Software identified as “Edu”, you must be a “Qualified Educational User.” For qualification-related questions, please contact equinux (see 1.1) or at firstname.lastname@example.org.
13. EXPORT RESTRICTIONS
You acknowledge that the Software is subject to U.S. export jurisdiction. You agree to comply with all applicable international and national laws that apply to the Software, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments.
14. SEPARATION OF COMPONENTS
The Software is licensed as a single product. Its component parts may not be separated for use on more than one device.
15. SOFTWARE TRANSFER
15.1. Internal. You may transfer your copy of the Software to a different device. After the transfer, you must completely remove the Software from the former device.
15.2. Transfer to Third Party. The initial user of the Software may make a one-time permanent transfer of this EULA and Software to another end user, provided the initial user retains no copies of the Software. This transfer must include all of the Software (including all component parts, the media and printed materials, any upgrades and this EULA). The transfer may not be an indirect transfer, such as a consignment. Prior to the transfer, the end user receiving the Software must agree to all the EULA terms.
Without prejudice to any other rights, equinux may terminate this EULA if you fail to comply with the terms and conditions of this EULA. In such event, you must destroy all copies of the Software and all of its component parts.
17. LIMITED WARRANTY FOR SOFTWARE ACQUIRED IN THE US
equinux warrants that the Software will perform substantially in accordance with the accompanying materials for a period of ninety (90) days from the date of receipt. If an implied warranty or condition is created by your state/jurisdiction and federal or state/ provincial law prohibits disclaimer of it, you also have an implied warranty or condition, BUT ONLY AS TO DEFECTS DISCOVERED DURING THE PERIOD OF THIS LIMITED WARRANTY (NINETY DAYS). AS TO ANY DEFECTS DISCOVERED AFTER THE NINETY DAY PERIOD, THERE IS NO WARRANTY OR CONDITION OF ANY KIND. Some states/jurisdictions do not allow limitations on how long an implied warranty or condition lasts, so the above limitation may not apply to you. Any supplements or updates to the Software, including without limitation, any (if any) hot fixes provided to you after the expiration of the ninety day Limited Warranty period are not covered by any warranty or condition, express, implied or statutory. LIMITATION ON REMEDIES; NO CONSEQUENTIAL OR OTHER DAMAGES. Your exclusive remedy for any breach of this Limited Warranty is as set forth below. Except for any refund elected by equinux, YOU ARE NOT ENTITLED TO ANY DAMAGES, INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL DAMAGES, if the Software does not meet equinux’s Limited Warranty, and, to the maximum extent allowed by applicable
law, even if any remedy fails of its essential purpose. The terms of Section 19 (“Exclusion of Incidental, Consequential and Certain Other Damages”) are also incorporated into this Limited Warranty. Some states/jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. This Limited Warranty gives you specific legal rights. You may have other rights which vary from state/jurisdiction to state/jurisdiction. YOUR EXCLUSIVE REMEDY. equinux’s and its suppliers’ entire liability and your exclusive remedy for any breach of this Limited Warranty or for any other breach of this EULA or for any other liability relating to the Software shall be, at equinux’s option from time to time exercised subject to applicable law, (a) return of the amount paid (if any) for the Software, or (b) repair or replacement of the Software, that does not meet this Limited Warranty and that is returned to equinux with a copy of your receipt. You will receive the remedy elected by equinux without charge, except that you are responsible for any expenses you may incur (e.g. cost of shipping the Software to equinux). This Limited Warranty is void if failure of the Software has resulted from accident, abuse, misapplication, abnormal use or a virus. Any replacement Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer, and equinux will use commercially reasonable efforts to provide your remedy within a commercially reasonable time of your compliance with equinux’s warranty remedy procedures. Outside the United States, neither these remedies nor any product support services offered by equinux are available without proof of purchase from an authorized international source. To exercise your remedy, contact: equinux (see 1.1) – Sales Department.
18. DISCLAIMER OF WARRANTIES
18.1. The Limited Warranty that appears above is the only express warranty made to you and is provided in lieu of any other express warranties or similar obligations (if any) created by any advertising, documentation, packaging, or other communications. Except for the Limited Warranty and to the maximum extent permitted by applicable law, equinux and its suppliers provide the Software and support services (if any) AS IS AND WITH ALL FAULTS, and hereby disclaim all other warranties and conditions, whether express, implied or statutory, including, but not limited to, any (if any) implied warranties, duties or conditions of merchantability, of fitness for a particular purpose, of reliability or availability, of accuracy or completeness of responses, of results, of workmanlike effort, of lack of viruses, and of lack of negligence, all with regard to the Software, and the provision of or failure to provide support or other services, information, software, and related content through the Software or otherwise arising out of the use of the Software. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE SOFTWARE.
18.2. Annex Betatest-Version. Software is a pre-release code and is not at the level of performance and compatibility of a final, generally available product offering. Software may not operate correctly and may be substantially modified prior to first commercial shipment, or withdrawn.
Software is provided “AS IS” without warranty of any kind. The entire risk arising out of the use or performance of software remains with Licensee. In no event shall equinux or system be liable for any damage whatsoever arising out of the use of or inability to use software, even if equinux or system has been advised of the possibility of such damages.
19. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EQUINUX OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING,
BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATION, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF EQUINUX OR ANY SUPPLIER, AND EVEN IF EQUINUX OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
20. LIMITATION OF LIABILITY AND REMEDIES
Notwithstanding any damages that you might incur for any reason whatsoever (including, without limitation, all damages referenced herein and all direct or general damages in contract or anything else), the entire liability of equinux and any of its suppliers under any provision of this EULA and your exclusive remedy hereunder (except for any remedy of repair or replacement elected by equinux with respect to any breach of the Limited Warranty) shall be limited to the greater of the actual damages you incur in reasonable reliance on the Software up to the amount actually paid by you for the Software or US $5.00. The foregoing limitations, exclusions and disclaimers (including Sections 17, 18 and 19) shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
21. APPLICABLE LAW
This EULA is governed by the laws of the Government of California, USA.
22. ENTIRE AGREEMENT; SEVERABILITY
This EULA (including any addendum or amendment to this EULA which is included with the Software) is the entire agreement between you and equinux relating to the Software and the support services (if any) and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software or any other subject matter covered by this EULA. To the extent the terms of any equinux policies or programs for support services conflict with the terms of this EULA, the terms of this EULA shall control. If any provision of this EULA is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect.
Should you have any questions concerning this EULA, or if you desire to contact equinux for any reason, please contact equinux (see 1.1) or visit equinux on the World Wide Web at http://www.equinux.com.
equinux and other trademarks contained in the Software are trademarks or registered trademarks of equinux USA, Inc. in the United States and/or other countries. Third party trademarks, trade names, product names and logos may be the trademarks or registered trademarks of their respective owners. You may not remove or alter any trademarks, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Software. This EULA does not authorize you to use equinux’s or its partners’ names or any of their respective trademarks. All trademarks used with permission.