Epitiro Holdings, Inc. (“Epitiro”)
End User License Agreement
This End User License Agreement (“Agreement”) is between you (both the individual installing the Program and any single legal entity on behalf of which such individual is acting) (“You” or “Your”) and Epitiro Holdings, Inc. (“Epitiro”).
IT IS IMPORTANT THAT YOU READ CAREFULLY AND UNDERSTAND THIS AGREEMENT. BY USING THE EPITIRO HARDWARE AND ASSOCIATED SERVICES, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL THE TERMS OF THIS AGREEMENT AND DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, DO NOT USE THE HARDWARE TEST DEVICE, THE AGENT APPLICATION OR THE SERVICES.
1.1 “Documentation” means the user guides for installation and use of the Program that Epitiro makes generally available.
1.2 “Program” means the Epitiro software to be downloaded by You or that is otherwise provided by Epitiro to You, in object code form only, and the media, Documentation and any updates provided by Epitiro to You and for which You are granted a license pursuant to this Agreement.
1.3 “Hardware” means an Epitiro supplied computer running Epitiro software as well as associated accessories and parts (collectively, the “Hardware”).
2. Program license
2.1 Limited License. Epitiro hereby grants to You a limited, non-exclusive, non-transferable license (without the right to sublicense) to: (a) use a single copy of the Program solely for Your own internal business operations; and (b) use the Documentation provided with the Program in support of Your authorized use of the Program. Your use of the Program is subject to You paying all applicable fees.
2.2 Restrictions. You will not copy or use the Program (including the Documentation) except as expressly permitted by this Agreement. You will not relicense, sublicense, rent or lease the Program or use the Program for third-party training, commercial time-sharing or use the output from the Program to provide services without Epitiro’s prior written consent. You will not, and will not permit any third party to, reverse engineer, disassemble or decompile any Program or Hardware, except to the extent expressly permitted by applicable law, and then only after You have notified Epitiro in writing of Your intended activities. You will not use the Program on multiple processors without the prior written consent of Epitiro.
2.3 Ownership. Epitiro will retain all right, title and interest in and to the patent, copyright, trademark, trade secret and any other intellectual property rights in the Program and any derivative works thereof, subject only to the limited licenses set forth in this Agreement. You do not acquire any other rights, express or implied, in the Program other than those rights expressly granted under this Agreement.
2.4 No Support. Epitiro has no obligation to provide support, maintenance, upgrades, modifications or new releases under this Agreement. Notwithstanding the foregoing, You may separately purchase maintenance and technical support from Epitiro.
3. Warranties and Remedies
3.1 Limited Warranties. Epitiro warrants that the Program and the Hardware will substantially perform the functions described in the Documentation for a period of one year from the date of purchase by You. Epitiro warrants that the Hardware will be free of any material defects in materials and workmanship under normal use and will materially conform to the published specifications and any functional or technical specifications referenced or contained in the applicable order for a period of one year from the date of shipment to You.
3.2 Disclaimer. THE WARRANTIES IN THIS SECTION 3 ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTIES THAT MAY ARISE OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. Epitiro does not warrant that the Program will operate in combination with hardware, software, systems or data not provided by Epitiro or that the operation of the Program will be uninterrupted or error-free. You are responsible for the initial determination of whether a problem is caused by an equipment or Program error. Epitiro does not provide assistance on the general use of the Program or problem diagnosis to customers that have not ordered support services from Epitiro.
3.3 Exclusive Remedies. You must report to Epitiro in writing any breach of the warranties contained in Section 3.1 during the warranty period set forth in Section 3.1. Your sole and exclusive remedies, and Epitiro’s entire liability, for such a reported breach will be to correct or provide a reasonable workaround for Program errors that caused the breach of warranty, or if Epitiro is unable to make the Program operate as warranted, You will be entitled to terminate the Program license return the Hardware and recover the fees paid to Epitiro.
3.4 Limitations. Epitiro will have no obligations under Section 3.3 if the breach of warranty is caused by abuse, misuse, alteration, neglect or accidental damage of the Program or Hardware; the unauthorized repair, modification or installation of the Program or Hardware; or the use or attempted use of non-Epitiro software or hardware in combination with the Program. Replacement or repair of a Program or Hardware does not extend its warranty period beyond the original warranty expiration date.
This Agreement is effective until terminated. Epitiro may terminate this Agreement at any time upon Your breach of any of the provisions hereof. Upon termination of this Agreement, You will cease all use of the Program, return to Epitiro or destroy the Program and all Documentation and related materials in Your possession, and so certify to Epitiro. Except for the license granted herein and as expressly provided herein, the terms of this Agreement will survive termination.
5. General Terms
5.1 Law. This Agreement and all matters arising out of or relating to this Agreement will be governed by the internal laws of the State of New York without giving effect to any choice of law rules. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sales of Goods, the application of which is expressly excluded.
5.2 Limitation of Liability. In no event will either party be liable for any indirect, incidental, special, consequential or punitive damages, or damages for loss of profits, revenue, business, savings, data, use or cost of substitute procurement, incurred by either party or any third party, whether in an action in contract or tort, even if the other party has been advised of the possibility of such damages or if such damages are foreseeable. In no event will Epitiro’s liability for damages hereunder exceed the amounts actually paid by You to Epitiro for the Program and the Hardware. The parties acknowledge that the limitations of liability in this Section 5.2 and in the other provisions of this Agreement and the allocation of risk herein are an essential element of the bargain between the parties, without which Epitiro would not have entered into this Agreement.
5.3 Severability and Waiver. If any provision of this Agreement is held to be illegal, invalid or otherwise unenforceable, such provision will be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of such enforcement, will be deemed to be severed and deleted from this Agreement, while the remainder of this Agreement will continue in full force and effect. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.
5.4 No Assignment. You may not assign, sell, transfer, delegate or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement or any rights or obligations under this Agreement without the prior written consent of Epitiro. Any purported assignment, transfer or delegation by You will be null and void. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and permitted assigns.
5.5 Export Administration. You will comply fully with all relevant export laws and regulations of the United States, including, without limitation, the U.S. Export Administration Regulations (collectively “Export Controls”). Without limiting the generality of the foregoing, You will not, and You will require Your representatives not to, export, direct or transfer the Program, or any direct product thereof, to any destination, person or entity restricted or prohibited by the Export Controls.
5.6 Entire Agreement. This Agreement constitutes the entire agreement between the parties and, other than any Epitiro standard form customer agreement signed by the parties, supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. In the event of a conflict between the terms of this Agreement and a signed Epitiro standard form customer Agreement, the terms of the signed customer agreement will control. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party; no other act, document, usage or custom will be deemed to amend or modify this Agreement. It is expressly agreed that the terms of this Agreement will supersede the terms in any of Your purchase orders or other ordering documents, except with respect to the license fees paid to use the Program which are set forth in such purchase order or ordering documents.