Stylus Studio End user license agreement
Stylus Studio 2006 End User Product License Agreement
CAUTION: CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY CLICKING ON THE "YES" BUTTON, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. DATADIRECT TECHNOLOGIES, AN OPERATING COMPANY OF PROGRESS SOFTWARE COMPANY ("DATADIRECT") IS ONLY WILLING TO PROVIDE THE SOFTWARE TO YOU UNDER THESE TERMS AND CONDITIONS. YOUR ACT OF CLICKING THE "YES" BUTTON AND/OR ANY USE BY YOU OF THE SOFTWARE WILL SIGNIFY YOUR AGREEMENT TO BE BOUND BY THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, CLICK THE "NO" BUTTON AND DO NOT PROCEED WITH THE INSTALLATION OF THE SOFTWARE. YOU SHOULD PROMPTLY RETURN THE SOFTWARE TO DATADIRECT OR THE DISTRIBUTOR OR SUPPLIER FROM WHICH IT WAS ACQUIRED FOR A FULL REFUND. THE TERM "PROMPTLY" AS USED HEREIN SHALL MEAN NO LATER THAN SIXTY (60) DAYS FOLLOWING THE DELIVERY OF THE SOFTWARE TO YOU.
Subject to the following terms and conditions, DataDirect grants to you ("User") a non-exclusive license to use the Stylus Studio® software product(s) identified in the install procedure and related documentation (collectively, the "Products").
1. Scope of License.
1.1 Subject to payment of applicable license fees, User shall have a non-exclusive, non-transferable license to use the Product(s) solely in connection with User`s own internal business operations, subject to the following limitations:
(i) if the Product is Stylus Studio, Stylus Studio XML Enterprise Edition, or Stylus Studio XML Professional Edition then the Product is licensed on a named user basis meaning specific individuals are authorized to access the Product and the total number of named users may not exceed the total number licensed by User. Stylus Studio, Stylus Studio XML Enterprise Edition and Stylus Studio XML Professional Edition are subject to the additional restriction that it may be used by User solely for development and testing of software applications, and not in conjunction with the deployment of such software applications. If the Product is Stylus Studio XML Home Edition, then the Product is licensed on a single named user basis for personal use only. The Stylus Studio XML Home Edition is subject to the additional restriction that it not be used in conjunction with any commercial or for-profit transactions. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 4 BELOW, AND EXCEPT AS PROHIBITED BY APPLICABLE LAW, STYLUS STUDIO XML HOME EDITION IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. DATADIRECT MAKES NO WARRANTIES WITH RESPECT TO THE STYLUS STUDIO XML HOME EDITION, EXPRESS, IMPLIED, OR ARISING BY CUSTOM OR TRADE USAGE, AND SPECIFICALLY MAKES NO WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR ANY PARTICULAR PURPOSE OR NONINFRINGEMENT. User shall have the sole responsibility for adequate protection and back-up of all data use in connection with the product:
(ii) if the Product is Stylus Studio Evaluation Edition, then the Product is licensed on a single named user basis. The Stylus Studio Evaluation is subject to the additional restriction that it be used by User solely for evaluation of software applications, and not in conjunction with the development or deployment of such software applications. User must purchase a license for Stylus Studio for the development and testing of software applications. Evaluation includes the use of Products in performance benchmarking. DataDirect updates the Product regularly and benchmarking data for the Product is subject to change. Benchmark tests on prior versions of the Product may yield results that are not reflective of the performance of the current version of the Product. The most current version of the Product is available at www.stylusstudio.com. USER UNDERSTANDS AND ACKNOWLEDGES THAT THE STYLUS STUDIO EVALUATION CONTAINS A DISABLING DEVICE THAT WILL AUTOMATICALLY DISABLE THE STYLUS STUDIO EVALUATION THIRTY (30) DAYS FROM INSTALLATION. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 4 BELOW, STYLUS STUDIO EVALUATION IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. DATADIRECT MAKES NO WARRANTIES WITH RESPECT TO THE STYLUS STUDIO EVALUATION, EXPRESS, IMPLIED, OR ARISING BY CUSTOM OR TRADE USAGE, AND SPECIFICALLY MAKES NO WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR ANY PARTICULAR PURPOSE OR NONINFRINGEMENT;
(iii) if User ordered or obtained the Product license from a third party authorized by DataDirect to resell the Product in conjunction with such third party`s software product(s) ("Third Party Reseller"), then, in addition to the terms and conditions of this Agreement, User`s use of the Product may be subject to additional scope of license terms and conditions (if any) specified by the Third Party Reseller, including, without limitation, a restriction that User limit its use of the Product to use solely in conjunction with the Third Party Reseller`s software product(s) licensed by the Third Party Reseller to User. To the extent that any additional scope of license terms and conditions communicated by the Third Party Reseller to User are in direct conflict with the scope of license specified in this Section 1.1, then the scope of license terms and conditions specified by the Third Party Reseller shall apply. Otherwise the terms and conditions of this Agreement shall govern. In no event does DataDirect make any representations or warranties, express, implied or arising by custom or trade usage, regarding the Third Party Reseller`s software products and assumes no liability or responsibility with regard to said software products.
1.2 The Products may not be transferred, sold, assigned, leased, rented, licensed, sublicensed, or otherwise conveyed, in whole or part, by User to another party without DataDirect`s prior written consent. This Agreement automatically terminates if User transfers possession of any copy of the Product to another party. User shall have no right to use the Product(s) to provide time sharing services or operate a service bureau for others.
1.3 A Product upgrade ("Upgrade") replaces part or all of a Product previously licensed. Use of the Upgrade terminates the license to use the Product or that part of the Product which the Stylus Studio Upgrade replaces and User shall destroy or return to DataDirect all copies of any prior Product.
2. DataDirect`s Rights
The Product is a proprietary product of DataDirect, or its licensors (if any), and is protected by intellectual property law. By virtue of this Agreement, User acquires only the non-exclusive right to use the Product and does not acquire any rights of ownership in the Product upon which it is embodied. DataDirect, or its licensors (if any), shall at all times retain all rights, title, and interest in the Product. Except as otherwise expressly provided for in this Agreement, User acquires no rights of any kind in or to any trade name, logo, or trademark of DataDirect, or its affiliates or licensors, or any product designation under which the Products were or are marketed and shall not make use of the same for any reason except as expressly authorized by this Agreement or otherwise authorized in writing by DataDirect.
3. Non-Disclosure; Copies; Alterations.
User acknowledges that the Products are the valuable proprietary and trade secret information of DataDirect or its licensors (if any). User shall (i) limit use and disclosure of the Products to its employees and to its consultants who agree to be bound by the terms of this Agreement; (ii) not provide or disclose any of the Products to another party; (iii) take all reasonable precautions to maintain the confidentiality of the Products. User agrees not to cause or permit the reverse engineering, modification, decryption, extraction, disassembly, copying, or decompilation of the Products, except as required by applicable local law or to reproduce machine-readable object code portions for backup purposes and installation of new releases, under penalty of license termination but not exclusive of any other remedies. User may copy the Products only for archival purposes. Notwithstanding the foregoing, User does not have the right to copy the Products for standby, disaster recovery, or backup purposes. User may copy the documentation (in electronic format) accompanying the Product solely for the purpose of facilitating User`s use of the Product in accordance with, and subject to, the terms and conditions of this Agreement. User may not copy nor allow others to copy the Product or any portion thereof, for any other purpose. User agrees not to remove any product identification, copyright notices, or other notices or proprietary restrictions from the Product.
4. Limited Warranty.
DataDirect warrants that the materials of both the Product media (if any) and printed documentation are not defective. If either the media (such as the diskettes, cartridges, and magnetic tapes) or the printed documentation is physically defective, DataDirect will replace it free of charge during the ninety (90) day warranty period. User`s remedy is limited to return of the media and/or printed documentation to the supplier or to DataDirect for replacement. This warranty is in effect for claims made within ninety (90) days from User`s purchase of the Product. DataDirect warrants that it has the right to license the Product(s). DataDirect will defend User against any claim based on an allegation that a Product infringes a U.S. patent or copyright, but only if DataDirect is notified promptly in writing of such claim and is given sole control of the defense thereof and all related settlement negotiations relating thereto. Notwithstanding the foregoing, DataDirect shall not be liable to User for any claim arising from or based upon the alteration or modification of any of the Product(s). THE LIMITED WARRANTY SPECIFIED IN THIS SECTION 4 SETS FORTH THE ENTIRE WARRANTIES AND REPRESENTATIONS PROVIDED BY DATADIRECT TO USER WITH RESPECT TO THE PRODUCTS. SUCH LIMITED WARRANTY IS PROVIDED SOLELY BY DATADIRECT AND NOT DATADIRECT`S LICENSORS. EXCEPT FOR THE LIMITED WARRANTY PROVIDED SOLELY BY DATADIRECT TO USER PURSUANT TO THIS SECTION 4, NEITHER DATADIRECT NOR ITS LICENSORS, NOR ANY OF THEIR RESPECTIVE SUPPLIERS, MAKE ANY EXPRESS WARRANTIES OR REPRESENTATIONS RELATING TO THE PRODUCTS OR ANY SERVICES RELATED THERETO, AND FURTHER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DISCLAIM ALL IMPLIED WARRANTIES AND REPRESENTATIONS INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES AND REPRESENTATIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, WITH RESPECT TO THE PRODUCTS AND ANY SERVICES RELATED THERETO. For example, DataDirect does not warrant that there are no discrepancies between the Product and the Documentation, or that errors cannot arise during the use of the Product. THE LIMITED WARRANTY SPECIFIED IN THIS SECTION 4 GIVES THE USER SPECIFIC LEGAL RIGHTS, AND MAY ALSO IMPLY OTHER RIGHTS WHICH VARY FROM STATE TO STATE. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, AND DO NOT ALLOW A LIMITATION ON HOW LONG ANY IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY. No DataDirect employee, supplier, or agent is authorized to make any modification or addition to this warranty.
5. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LIABILITY OF DATADIRECT, IF ANY, FOR DAMAGES RELATING TO ANY PRODUCTS AND/OR SERVICES SHALL BE LIMITED TO THE ACTUAL AMOUNTS PAID BY USER FOR SUCH PRODUCTS AND/OR SERVICES. DATADIRECT`S LICENSORS AND THEIR SUPPLIERS SHALL HAVE NO LIABILITY TO USER FOR ANY DAMAGES SUFFERED BY USER OR ANY THIRD PARTY AS A RESULT OF USING THE PRODUCTS OR DISTRIBUTING ANY PORTION THEREOF, OR AS A RESULT OF ANY SERVICES RELATING THERETO. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL DATADIRECT, ITS LICENSORS, OR ANY OF THEIR RESPECTIVE SUPPLIERS BE LIABLE FOR ANY LOST REVENUE, PROFIT OR DATA, OR FOR INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, ANY COMMERCIAL DAMAGES OR LOSSES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCTS, OR ANY PORTION THEREOF, OR ANY SERVICES, EVEN IF DATADIRECT, ITS LICENSORS AND/OR ANY OF THEIR RESPECTIVE SUPPLIERS HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY.
6. Export Regulations.
The Products, including technical data, are subject to U.S. export control laws, including, without limitation, the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. User shall not directly or indirectly export or re-export the Products, or the direct product thereof, without first obtaining DataDirect`s written approval. User agrees to comply strictly with all regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export, or import the Products. The Products may not be downloaded, or otherwise exported or re-exported (i) into, or to a national or resident of, Cuba, Iraq, Iran, North Korea, Libya, Sudan, Syria, Taliban and areas of Afghanistan controlled by the Taliban, or any country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department`s list of Specially Designated Nations or the U.S. Commerce Department`s Table of Denial Orders.
7. U.S. Government Restricted Rights.
If the Product is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), then the Government`s rights in the Product and accompanying documentation will be only as set forth herein; this is in accordance with 48 CFR 227.7201 through 227.7202-4 (for Department of Defense (DOD) acquisitions) and with 48 CFR 2.101 and 12.212 (for non-DOD acquisitions). Contractor/manufacturer is DataDirect Technologies, an operating company of Progress Software Corporation, 14 Oak Park, Bedford, MA 01730. Unpublished—all rights reserved under the copyright laws of the United States.
8. Records Inspection.
User shall maintain books and records in connection with User`s use of the Product(s) under this Agreement. Such records shall include at a minimum the number of licenses purchased and being used by User. DataDirect may, at its expense, audit the records of User to ensure compliance with the terms of this Agreement. Any such audit shall be conducted during regular business hours at User`s offices and shall not interfere unreasonably with User`s activities. If any audit reveals that User has underpaid license and/or maintenance fees to DataDirect, User shall be invoiced for such underpaid fees based on DataDirect`s list price in effect at the time the audit is conducted. If the underpaid fees are in excess of five percent (5%) of the fees paid by User, then User shall pay DataDirect`s reasonable costs of conducting the audit. Audits shall be made no more than twice per calendar year.
This Agreement constitutes the complete agreement between the parties with respect to the Products and supersedes any other communication or advertising, whether written or oral, with respect to the Products. However, if User has signed a license or other agreement with DataDirect or one of DataDirect`s subsidiary or affiliate corporations, and if there is a conflict between the terms and conditions of such license agreement and this Agreement, the terms and conditions of the signed license agreement shall govern with respect to such conflict. This Agreement is governed by the laws of the Commonwealth of Massachusetts, United States of America, excluding conflict of laws provisions. Notwithstanding the foregoing, this Agreement is governed by the laws of the Province of Ontario if the User is located in Canada. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. If any provision of this Agreement is held to be unenforceable, such provision shall be limited, modified or severed as necessary to eliminate its unenforceability, and all other provisions shall remain unaffected. DataDirect`s failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision. To the extent there are any terms and conditions contained in User`s purchase order or other documentation supplied by User ("User Documents") that are in conflict with or in addition to those terms and conditions specified in this Agreement, the terms and conditions contained in the User Documents shall be deemed to be stricken and the terms and conditions of this Agreement shall govern.