ACTIFSOURCE EULA
Software License Agreement
NOTICE TO USER: PLEASE READ THIS AGREEMENT CAREFULLY. BY COPYING, INSTALLING OR USING ALL OR ANY PORTION OF THE SOFTWARE YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING, IN PARTICULAR THE PROVISIONS ON: TRANSFERABILITY IN SECTION 4; WARRANTY IN SECTIONS 6 AND 7; LIABILITY IN SECTION 8; CONNECTIVITY AND PRIVACY IN SECTION 13; AND SPECIFIC PROVISIONS AND EXCEPTIONS IN SECTION 14. YOU AGREE THAT THIS AGREEMENT IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. THIS AGREEMENT IS ENFORCEABLE AGAINST YOU AND ANY LEGAL ENTITY THAT OBTAINED THE SOFTWARE AND ON WHOSE BEHALF IT IS USED: FOR EXAMPLE, IF APPLICABLE, YOUR EMPLOYER. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE AND/OR BUY THE SOFTWARE.
ACTIFSOURCE AND ITS SUPPLIERS OWN ALL INTELLECTUAL PROPERTY IN THE SOFTWARE. THE SOFTWARE IS LICENSED, NOT SOLD. ACTIFSOURCE PERMITS YOU TO COPY, DOWNLOAD, INSTALL, USE, OR OTHERWISE BENEFIT FROM THE FUNCTIONALITY OR INTELLECTUAL PROPERTY OF THE SOFTWARE ONLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT. USE OF SOME ACTIFSOURCE AND SOME THIRD PARTY MATERIALS AND SERVICES INCLUDED IN OR ACCESSED THROUGH THE SOFTWARE MAY BE SUBJECT TO OTHER TERMS AND CONDITIONS TYPICALLY FOUND IN A SEPARATE LICENSE AGREEMENT, TERMS OF USE OR “READ ME” FILE LOCATED WITHIN OR NEAR SUCH MATERIALS AND SERVICES OR AT http://www.actifsource.com.
THE SOFTWARE MAY CAUSE YOUR COMPUTER TO AUTOMATICALLY CONNECT TO THE INTERNET. SEE SECTIONS 13 AND 14 FOR ADDITIONAL INFORMATION. THE SOFTWARE MAY INCLUDE PRODUCT ACTIVATION AND OTHER TECHNOLOGY DESIGNED TO PREVENT UNAUTHORIZED USE AND COPYING. THIS TECHNOLOGY MAY CAUSE YOUR COMPUTER TO AUTOMATICALLY CONNECT TO THE INTERNET AS DESCRIBED IN SECTION 13. ADDITIONALLY, ONCE CONNECTED, THE SOFTWARE MAY TRANSMIT YOUR SERIAL NUMBER TO ACTIFSOURCE AND IN DOING SO MAY PREVENT USES OF THE SOFTWARE THAT ARE NOT PERMITTED. VISIT http://www.actifsource.com FOR ADDITIONAL INFORMATION ABOUT PRODUCT ACTIVATION.
1. Definitions.
“Actifsource” means Actifsource AG, Twaerfallenstrasse 3, 6313 Finstersee, Switzerland.
“Computer” means a virtual or physical computer device that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions.
“Internal Network” means a private, proprietary network resource accessible only by employees and individual contractors (i.e., temporary employees) of a specific corporation or similar business entity. Internal Network does not include portions of the Internet or any other network community open to the public, such as membership or subscription driven groups, associations and similar organizations.
“Output File” means an output file you create with the Software.
“Permitted Number” means one (1) unless otherwise indicated under a valid license (e.g., volume license) granted by Actifsource.
“Software” means (a) all of the information with which this agreement is provided, including but not limited to (i) Actifsource or third party software files and other computer information; (ii) sample files bundled with Actifsource software or obtained from Actifsource through a separate service; (iii) 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 Actifsource at any time, to the extent not provided under a separate agreement (collectively, “Updates”).
2. Software License.
If you obtained the Software and any required serial number(s) from Actifsource or one of its authorized licensees and as long as you comply with the terms of this agreement, Actifsource grants you a non-exclusive license to install and use the Software in a manner consistent with its design and Documentation and as further set forth below. See Section 14 for specific provisions related to the use of certain products and components.
2.1 General Use. You may install and use one copy of the Software on up to the Permitted Number of your compatible Computers as long as, when required by the Software, you present a valid serial number for each copy; and
2.2 Distribution from Server. You may copy an image of the Software onto file server(s) within your Internal Network for the purpose of downloading and installing the Software onto Computers within the same Internal Network for use as permitted by Section 2.1; and
2.3 Server Use. You may install the Software on Computer file server(s) within your Internal Network only for use of the Software initiated by an individual from a Computer within the same Internal Network as permitted by Section 2.1. The total number of users (not the concurrent number of users) able to use the Software on such Computer file server(s) may not exceed the Permitted Number. By way of example, the foregoing does not permit you to install or access (either directly or through commands, data or instructions) the Software: (i) from or to a Computer not part of your Internal Network, (ii) for enabling web hosted workgroups or services available to the public, (iii) by any individual or entity to use, download, copy or otherwise benefit from the functionality of the Software unless licensed to do so by Actifsource, (iv) as a component of a system, workflow or service accessible by more than the Permitted Number of users, or (v) for operations not initiated by an individual user (e.g., automated server processing); and
2.4 Backup Copy. You may make a reasonable number of backup copies of the Software, provided your backup copies are not installed or used for other than archival purposes.
2.5 Sample Application Code. You may modify the source code form of those portions of such software programs that are identified as sample code, sample application code, or components (each, “Sample Application Code”) in the accompanying Documentation solely for the purposes of designing, developing and testing applications developed using Actifsource software programs; provided, however, you are permitted to copy and distribute the Sample Application Code (modified or unmodified) only if all of the following conditions are met: (1) you distribute the compiled object Sample Application Code with your application; (2) you do not include the Sample Application Code in any product or application designed for software development; and (3) you do not use the Actifsource name, logos or other Actifsource trademarks to market your application. You agree to indemnify, hold harmless and defend Actifsource from and against any loss, damage, claims or lawsuits, including attorney’s fees, that arise or result from the use or distribution of your application. You may be granted additional rights to modify or distribute Actifsource software code within documentation relating to such code and/or the Software or in a separate agreement between you and Actifsource.
2.6 Tryout Software. The Software, or portions of the Software, may be configured to allow trial or tryout for a limited period of time or for a limited number of launches. You are not permitted to use the Software in a manner inconsistent with its design or Documentation. For example, you may not use the Software after its tryout period has ended unless you input a valid serial number. ACCESS TO ANY OUTPUT FILES CREATED WITH THE SOFTWARE USED ON A TRYOUT OR TRIAL BASIS IS ENTIRELY AT YOUR OWN RISK.
3. Intellectual Property Ownership.
The Software and any authorized copies that you make are the intellectual property of and are owned by Actifsource and its suppliers. The structure, organization and code of the Software are the valuable trade secrets and confidential information of Actifsource and its suppliers. The Software is protected by law, including but not limited to the copyright laws of the Switzerland and other countries, and by international treaty provisions.
Except as expressly stated herein, this agreement does not grant you any intellectual property rights in the Software and all rights not expressly granted are reserved by Actifsource and its suppliers.
4. Restrictions and Requirements.
4.1 Notices. Any permitted copy of the Software that you make must contain the same copyright and other proprietary notices that appear on or in the Software.
4.2 Use Obligations. You agree that you will not use the Software other than as permitted by this agreement and that you will not use the Software in a manner inconsistent with its design or Documentation.
4.3 No Modifications. Except as permitted in Section 14, you may not modify, adapt or translate the Software.
4.4 No Reverse Engineering. You will not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software except to the extent you may be expressly permitted under applicable law to decompile only in order to achieve interoperability with the Software.
4.5 No Unbundling. The Software may include various applications, utilities and components, may support multiple platforms and languages and may be provided to you on multiple media or in multiple copies. Nonetheless, the Software is designed and provided to you as a single product to be used as a single product on Computers as permitted by Sections 2 and 14. You are not required to install all component parts of the Software, but you may not unbundle the component parts of the Software for use on different Computers. You may not unbundle or repackage the Software for distribution, transfer or resale. See Section 14 for specific exceptions to this Section 4.5.
4.6 No Transfer. YOU WILL NOT RENT, LEASE, SELL, SUBLICENSE, ASSIGN OR TRANSFER YOUR RIGHTS IN THE SOFTWARE, OR AUTHORIZE ANY PORTION OF THE SOFTWARE TO BE COPIED ONTO ANOTHER INDIVIDUAL OR LEGAL ENTITY’S COMPUTER EXCEPT AS MAY BE EXPRESSLY PERMITTED HEREIN. You may, however, permanently transfer all your rights to use the Software to another individual or legal entity provided that: (a) you also transfer (i) this agreement, (ii) the serial number(s), the Software affixed to media provided by Actifsource or its authorized distributor, and all other software or hardware bundled, packaged or pre-installed with the Software, including all copies, upgrades, updates and prior versions, to such individual or entity; (b) you retain no upgrades, updates or copies, including backups and copies stored on a Computer; and (c) the receiving party accepts the terms and conditions of this agreement and any other terms and conditions under which you purchased a valid license to the Software. NOTWITHSTANDING THE FOREGOING, YOU MAY NOT TRANSFER EDUCATION, PRERELEASE,
OR NOT FOR RESALE COPIES OF THE SOFTWARE. Prior to a transfer Actifsource may require that you and the receiving party confirm in writing your compliance with this agreement, provide Actifsource with information about yourselves, and register as end-users of the Software. Allow 4-6 weeks to
transfer. Please visit http://www.actifsource.com or contact Actifsource for more information.
4.7 No Service Bureau. You will not use or offer the Software on a service bureau basis. By way of example, you are not allowed to offer the Software as a service (SaaS).
5. Updates.
If the Software is an upgrade or update to a previous version of Actifsource software, you must possess a valid license to such previous version in order to use such upgrade or update. After you install such update or upgrade, you may continue to use any such previous version in accordance with its end-user license agreement only if (a) the upgrade or update and all previous versions are installed on the same Computer, (b) the previous versions or copies thereof are not transferred to another party or device unless all copies of the update or upgrade are also transferred to such party or device and (c) you acknowledge that any obligation Actifsource may have to support the previous version(s) may end upon the availability of the upgrade or update. No other use of the previous version(s) is permitted after installation of an update or upgrade. Upgrades and updates may be licensed to you by Actifsource with additional or different terms.
6. LIMITED WARRANTY.
Actifsource warrants to the individual or entity that first purchases a license for the Software for use pursuant to the terms of this agreement that the Software will perform substantially in accordance with the Documentation for the ninety (90) day period following receipt of the Software when used on the recommended operating system and hardware configuration. Non-substantial variation of performance from the Documentation does not establish a warranty right. This limited warranty does not apply to the following, which are made available AS-IS and without warranty from Actifsource: patches, pre-release (beta), trial, starter, evaluation, product sampler, and not for resale (NFR) copies of the Software; websites, Actifsource Online Services; Third Party Online Services; and any software made available by Actifsource for free via web download from an Actifsource website. All warranty claims must be made, along with proof of purchase, to Actifsource within such ninety (90) day period. Visit the Actifsource website at http://www.actifsource.com for more information about warranty claims. If the Software does not perform substantially in accordance with the Documentation, the entire liability of Actifsource and its affiliates and your exclusive remedy will be limited to either, at Actifsource’s option, replacement of the Software or refund of the license fee you paid for the Software. THE LIMITED WARRANTY SET FORTH IN THIS SECTION GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE ADDITIONAL RIGHTS UNDER LAW WHICH VARY FROM JURISDICTION TO JURISDICTION. ACTIFSOURCE DOES NOT SEEK TO LIMIT YOUR WARRANTY RIGHTS TO ANY EXTENT NOT PERMITTED BY LAW. Please see Section 14 for jurisdiction-specific provisions or contact Actifsource.
7. DISCLAIMER.
THE FOREGOING LIMITED WARRANTY IS THE ONLY WARRANTY OFFERED BY ACTIFSOURCE AND ITS AFFILIATES AND IT STATES THE SOLE AND EXCLUSIVE REMEDIES FOR ACTIFSOURCE’S, ITS AFFILIATES’ OR SUPPLIERS’ BREACH OF THAT OFFERED WARRANTY. THE FOREGOING OFFERED WARRANTY AND ANY STATUTORY WARRANTY AND REMEDY THAT CANNOT BE EXCLUDED OR LIMITED UNDER LAW ARE THE ONLY WARRANTIES APPLICABLE TO THE SOFTWARE. OTHER THAN THOSE OFFERED AND STATUTORY WARRANTIES AND REMEDIES, ACTIFSOURCE, ITS AFFILIATES, SUPPLIERS AND CERTIFICATE AUTHORITIES (DEFINED BELOW) DISCLAIM ALL WARRANTIES, CONDITIONS, REPRESENTATIONS AND TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE AS TO ANY MATTER, INCLUDING BUT NOT LIMITED TO PERFORMANCE, SECURITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, MERCHANTABILITY, QUIET ENJOYMENT, SATISFACTORY QUALITY AND FITNESS FOR ANY PARTICULAR PURPOSE. OTHER THAN SUCH OFFERED AND STATUTORY WARRANTIES AND REMEDIES, ACTIFSOURCE AND ITS SUPPLIERS PROVIDE THE SOFTWARE AND ACCESS TO ANY WEBSITES, ACTIFSOURCE OR THIRD PARTY ONLINE SERVICES AND CERTIFICATE AUTHORITY SERVICES AS-IS AND WITH ALL FAULTS. THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME STATES. YOU MAY HAVE ADDITIONAL WARRANTY RIGHTS UNDER LAW WHICH MAY NOT BE WAIVED OR DISCLAIMED. ACTIFSOURCE DOES NOT SEEK TO LIMIT YOUR WARRANTY RIGHTS TO ANY EXTENT NOT PERMITTED BY LAW. The provisions of Sections 7 and Section 8 will survive the termination of this agreement, howsoever caused, but this will not imply or create any continued right to use the Software after termination of this agreement.
8. LIMITATION OF LIABILITY.
EXCEPT FOR THE EXCLUSIVE REMEDY OFFERED BY ACTIFSOURCE ABOVE AND ANY REMEDIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER LAW, ACTIFSOURCE, ITS AFFILIATES, SUPPLIERS, OR CERTIFICATE AUTHORITIES WILL NOT BE LIABLE TO YOU FOR ANY LOSS, DAMAGES, CLAIMS OR COSTS WHATSOEVER INCLUDING ANY CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES, ANY LOST PROFITS OR LOST SAVINGS, ANY DAMAGES RESULTING FROM BUSINESS INTERRUPTION, PERSONAL INJURY OR FAILURE TO MEET ANY DUTY OF CARE, OR CLAIMS BY A THIRD PARTY, EVEN IF AN ACTIFSOURCE REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS. IN ANY EVENT, ACTIFSOURCE’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES, SUPPLIERS, AND CERTIFICATE AUTHORITIES UNDER OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT PAID FOR THE SOFTWARE, IF ANY. THIS LIMITATION WILL APPLY EVEN IN THE EVENT OF A FUNDAMENTAL OR MATERIAL BREACH OR A BREACH OF THE FUNDAMENTAL OR MATERIAL TERMS OF THIS AGREEMENT. Nothing contained in this agreement limits Actifsource’s liability to you in the event of death or personal injury resulting from Actifsource’s negligence or for the tort of deceit (fraud). Actifsource is acting on behalf of its affiliates, suppliers, and Certificate Authorities for the purpose of disclaiming, excluding and limiting obligations, warranties and liability, but in no other respects and for no other purpose. For further information, contact Actifsource.
THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. THIS LIMITATION OF LIABILITY MAY NOT BE VALID IN SOME COUNTRIES. YOU MAY HAVE RIGHTS THAT CANNOT BE WAIVED UNDER CONSUMER PROTECTION AND OTHER LAWS. ACTIFSOURCE DOES NOT SEEK TO LIMIT YOUR WARRANTY OR REMEDIES TO ANY EXTENT NOT PERMITTED BY LAW. SEE SECTION 14 FOR JURISDICTION-SPECIFIC STATEMENTS.
9. Export Rules.
You agree that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the “Export Laws”). In addition, if the Software is identified as an export controlled item under the Export Laws, you represent and warrant that you are not a citizen of, or located within, an embargoed or otherwise restricted nation and that you are not otherwise prohibited under the Export Laws from receiving the Software. All rights to use the Software are granted on condition that such rights are forfeited if you fail to comply with the terms of this agreement.
10. Governing Law.
If you are a consumer who uses the Software for only personal non-business purposes, then this agreement will be governed by the laws of the state in which you purchased the license to use the Software. If you are not such a consumer, this agreement will be governed by and construed in accordance with the substantive laws in force in SWITZERLAND. The commercial court of the canton of Aargau shall have non-exclusive jurisdiction over all disputes relating to this agreement. This agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
11. General Provisions.
If any part of this agreement is found void and unenforceable, it will not affect the validity of the balance of this agreement, which will remain valid and enforceable according to its terms This agreement may only be modified in writing, signed by an authorized officer of Actifsource. This is the entire agreement between Actifsource and you relating to the Software and it supersedes any prior representations, discussions, undertakings, communications or advertising relating to the Software.
12. Compliance with Licenses.
If you are a business, company, or organization, you agree that, no more than once every 12 months, Actifsource or its authorized representative shall, upon 10 days’ prior notice to you, have the right to inspect your records, systems, and facilities to verify that your use of any and all Actifsource software is in conformity with your valid licenses from Actifsource. If a verification discloses that your use is not in conformity with a valid license, you shall immediately obtain valid licenses to bring your use into conformity.
13. Internet Connectivity and Privacy.
13.1 Automatic Connections to the Internet.
The Software may cause your Computer to automatically connect to the Internet and to communicate with an Actifsource website for purposes that may include providing you with additional information, features and functionality. The following provisions apply to all automatic Internet connections by the Software:
13.1.1 When the Software automatically connects to the Internet, an Internet protocol address (“IP Address”) that is associated with your current Internet connection is sent to an Actifsource website;
13.1.2 When the Software automatically connects to the Internet, no personally identifiable information is sent except to the extent that IP Addresses may be considered personally identifiable in some jurisdictions; and
13.1.3 Whenever the Software makes an Internet connection and communicates with an Actifsource website, unless you are provided with separate terms of use at that time, the Actifsource.com Terms of Use (http://www.actifsource.com) shall apply. Please note that the Actifsource Privacy Policy allows tracking of website visits and it addresses in detail the topic of tracking and use of cookies, web beacons and similar devices.
13.1.4 The Software may transmit your serial number and your e-mail address you used to register your license to Actifsource and in doing so may prevent uses of the Software that are not permitted.
13.2 Updating. The Software may cause your Computer to automatically connect to the Internet to check for Updates that are available for automatic download to your Computer and to let Actifsource know the Software is successfully installed. Please consult the Documentation for information about changing default update settings.
13.4 Use of Actifsource Online Services. The Software may use your Computer to automatically connect to the Internet to facilitate your access to content and services that are provided to you by Actifsource. Your Software may automatically update downloadable materials from these services so as to provide immediate availability of these services even when you are offline. Please consult the Documentation for information about changing default update settings.
13.5 Digital Certificates. The Software uses digital certificates to help you identify downloaded files (e.g., applications and content) and the publishers of those files. Your Computer may connect to the Internet at the time of validation of a digital certificate.
14. Specific Provisions and Exceptions.
This section sets forth specific provisions related to certain products and components of the Software as well as limited exceptions to the above terms and conditions. To the extent that any provision in this section is in conflict with any other term or condition in this agreement, this section will supersede such other term or condition.
14.1 No Prejudice, European Union Provisions.
14.1.1 This agreement will not prejudice the statutory rights of any party, including those dealing as consumers. For example, for consumers in New Zealand who obtain the Software for personal, domestic or household use (not business purposes), this agreement is subject to the Consumer Guarantees Act.
14.1.2 If you obtained the Software in the European Union (EU), you usually reside in the EU and you are a consumer (that is you use the Software for personal, non-business related purposes), then Section 6 does not apply to your purchase and use of the Software. Instead, Actifsource warrants for a period of 2 years from purchase that the Software provides the functionalities set forth in the Documentation (the “agreed upon functionalities”) when used on the recommended hardware configuration. Non-substantial variation from the agreed upon functionalities will not establish any warranty rights. THIS WARRANTY DOES NOT APPLY TO SOFTWARE THAT YOU REQUEST TO USE ON A PRE-RELEASE, TRYOUT, STARTER, PRODUCT SAMPLER BASIS, OR TO FONT SOFTWARE CONVERTED INTO OTHER FORMATS OR TO THE EXTENT THE SOFTWARE FAILS TO PERFORM BECAUSE IT HAS BEEN ALTERED BY YOU. To make a warranty claim, you must notify Actifsource during this 2 year period, providing details of proof of purchase of the Software. Actifsource will verify with you whether there is a defect in the Software or advise you that the error arises because you have not installed the Software correctly (in which case, Actifsource shall assist you). If there is a defect in the Software, you may request from Actifsource either a refund or a repaired/replacement copy of the Software. Requests must be accompanied by proof of purchase. In the event your warranty details are substantiated, Actifsource will meet your request for repaired/replacement Software, unless it is not reasonable for Actifsource to do so, in which case Actifsource will provide you with a refund. For warranty assistance, please contact Actifsource.
Please note that the provisions of Section 8 (Limitation of Liability) will continue to apply to any damages claims you make in respect of your use of the Software. Nonetheless, Actifsource shall be liable for direct losses that are reasonably foreseeable in the event of a breach by Actifsource of this agreement. You are advised to take all reasonable measures to avoid and reduce damages, in particular by making back-up copies of the Software and your computer data.
This agreement, and in particular, this Section 14.1.2, is intended to describe your rights (including your statutory rights) in the event there should be problems with your use of the Software. If your statutory rights should be greater than this description, your statutory rights shall apply.
14.2 Pre-release Software Additional Terms. If the Software is pre-commercial release or beta software (“Pre-release Software”), then this section applies. The Pre-release Software is a pre-release version, does not represent final product from Actifsource, and may contain bugs, errors and other problems that could cause system or other failures and data loss. Actifsource may never commercially release the Pre-release Software. If you received the Pre-release Software pursuant to a separate written agreement your use of the Software is also governed by such agreement. You will return or destroy all copies of Pre-release Software upon request by Actifsource or upon Actifsource’s commercial release of such Software. YOUR USE OF PRE-RELEASE SOFTWARE IS AT YOUR OWN RISK. SEE SECTIONS 7 AND 8 FOR WARRANTY DISCLAIMERS AND LIABILITY LIMITATIONS WHICH GOVERN PRE-RELEASE SOFTWARE.
If you have any questions regarding this agreement or if you wish to request any information from Actifsource please use the address and contact information included with this product to contact Actifsource.
Actifsource is a registered trademark of Actifsource in the Switzerland and/or other countries. All other trademarks are the property of their respective owners.
NOTICE TO USER: PLEASE READ THIS AGREEMENT CAREFULLY. BY COPYING, INSTALLING OR USING ALL OR ANY PORTION OF THE SOFTWARE YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING, IN PARTICULAR THE PROVISIONS ON: TRANSFERABILITY IN SECTION 4; WARRANTY IN SECTIONS 6 AND 7; LIABILITY IN SECTION 8; CONNECTIVITY AND PRIVACY IN SECTION 13; AND SPECIFIC PROVISIONS AND EXCEPTIONS IN SECTION 14. YOU AGREE THAT THIS AGREEMENT IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. THIS AGREEMENT IS ENFORCEABLE AGAINST YOU AND ANY LEGAL ENTITY THAT OBTAINED THE SOFTWARE AND ON WHOSE BEHALF IT IS USED: FOR EXAMPLE, IF APPLICABLE, YOUR EMPLOYER. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE AND/OR BUY THE SOFTWARE.
ACTIFSOURCE AND ITS SUPPLIERS OWN ALL INTELLECTUAL PROPERTY IN THE SOFTWARE. THE SOFTWARE IS LICENSED, NOT SOLD. ACTIFSOURCE PERMITS YOU TO COPY, DOWNLOAD, INSTALL, USE, OR OTHERWISE BENEFIT FROM THE FUNCTIONALITY OR INTELLECTUAL PROPERTY OF THE SOFTWARE ONLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT. USE OF SOME ACTIFSOURCE AND SOME THIRD PARTY MATERIALS AND SERVICES INCLUDED IN OR ACCESSED THROUGH THE SOFTWARE MAY BE SUBJECT TO OTHER TERMS AND CONDITIONS TYPICALLY FOUND IN A SEPARATE LICENSE AGREEMENT, TERMS OF USE OR “READ ME” FILE LOCATED WITHIN OR NEAR SUCH MATERIALS AND SERVICES OR AT http://www.actifsource.com.
THE SOFTWARE MAY CAUSE YOUR COMPUTER TO AUTOMATICALLY CONNECT TO THE INTERNET. SEE SECTIONS 13 AND 14 FOR ADDITIONAL INFORMATION. THE SOFTWARE MAY INCLUDE PRODUCT ACTIVATION AND OTHER TECHNOLOGY DESIGNED TO PREVENT UNAUTHORIZED USE AND COPYING. THIS TECHNOLOGY MAY CAUSE YOUR COMPUTER TO AUTOMATICALLY CONNECT TO THE INTERNET AS DESCRIBED IN SECTION 13. ADDITIONALLY, ONCE CONNECTED, THE SOFTWARE MAY TRANSMIT YOUR SERIAL NUMBER TO ACTIFSOURCE AND IN DOING SO MAY PREVENT USES OF THE SOFTWARE THAT ARE NOT PERMITTED. VISIT http://www.actifsource.com FOR ADDITIONAL INFORMATION ABOUT PRODUCT ACTIVATION.
1. Definitions.
“Actifsource” means Actifsource AG, Twaerfallenstrasse 3, 6313 Finstersee, Switzerland.
“Computer” means a virtual or physical computer device that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions.
“Internal Network” means a private, proprietary network resource accessible only by employees and individual contractors (i.e., temporary employees) of a specific corporation or similar business entity. Internal Network does not include portions of the Internet or any other network community open to the public, such as membership or subscription driven groups, associations and similar organizations.
“Output File” means an output file you create with the Software.
“Permitted Number” means one (1) unless otherwise indicated under a valid license (e.g., volume license) granted by Actifsource.
“Software” means (a) all of the information with which this agreement is provided, including but not limited to (i) Actifsource or third party software files and other computer information; (ii) sample files bundled with Actifsource software or obtained from Actifsource through a separate service; (iii) 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 Actifsource at any time, to the extent not provided under a separate agreement (collectively, “Updates”).
2. Software License.
If you obtained the Software and any required serial number(s) from Actifsource or one of its authorized licensees and as long as you comply with the terms of this agreement, Actifsource grants you a non-exclusive license to install and use the Software in a manner consistent with its design and Documentation and as further set forth below. See Section 14 for specific provisions related to the use of certain products and components.
2.1 General Use. You may install and use one copy of the Software on up to the Permitted Number of your compatible Computers as long as, when required by the Software, you present a valid serial number for each copy; and
2.2 Distribution from Server. You may copy an image of the Software onto file server(s) within your Internal Network for the purpose of downloading and installing the Software onto Computers within the same Internal Network for use as permitted by Section 2.1; and
2.3 Server Use. You may install the Software on Computer file server(s) within your Internal Network only for use of the Software initiated by an individual from a Computer within the same Internal Network as permitted by Section 2.1. The total number of users (not the concurrent number of users) able to use the Software on such Computer file server(s) may not exceed the Permitted Number. By way of example, the foregoing does not permit you to install or access (either directly or through commands, data or instructions) the Software: (i) from or to a Computer not part of your Internal Network, (ii) for enabling web hosted workgroups or services available to the public, (iii) by any individual or entity to use, download, copy or otherwise benefit from the functionality of the Software unless licensed to do so by Actifsource, (iv) as a component of a system, workflow or service accessible by more than the Permitted Number of users, or (v) for operations not initiated by an individual user (e.g., automated server processing); and
2.4 Backup Copy. You may make a reasonable number of backup copies of the Software, provided your backup copies are not installed or used for other than archival purposes.
2.5 Sample Application Code. You may modify the source code form of those portions of such software programs that are identified as sample code, sample application code, or components (each, “Sample Application Code”) in the accompanying Documentation solely for the purposes of designing, developing and testing applications developed using Actifsource software programs; provided, however, you are permitted to copy and distribute the Sample Application Code (modified or unmodified) only if all of the following conditions are met: (1) you distribute the compiled object Sample Application Code with your application; (2) you do not include the Sample Application Code in any product or application designed for software development; and (3) you do not use the Actifsource name, logos or other Actifsource trademarks to market your application. You agree to indemnify, hold harmless and defend Actifsource from and against any loss, damage, claims or lawsuits, including attorney’s fees, that arise or result from the use or distribution of your application. You may be granted additional rights to modify or distribute Actifsource software code within documentation relating to such code and/or the Software or in a separate agreement between you and Actifsource.
2.6 Tryout Software. The Software, or portions of the Software, may be configured to allow trial or tryout for a limited period of time or for a limited number of launches. You are not permitted to use the Software in a manner inconsistent with its design or Documentation. For example, you may not use the Software after its tryout period has ended unless you input a valid serial number. ACCESS TO ANY OUTPUT FILES CREATED WITH THE SOFTWARE USED ON A TRYOUT OR TRIAL BASIS IS ENTIRELY AT YOUR OWN RISK.
3. Intellectual Property Ownership.
The Software and any authorized copies that you make are the intellectual property of and are owned by Actifsource and its suppliers. The structure, organization and code of the Software are the valuable trade secrets and confidential information of Actifsource and its suppliers. The Software is protected by law, including but not limited to the copyright laws of the Switzerland and other countries, and by international treaty provisions.
Except as expressly stated herein, this agreement does not grant you any intellectual property rights in the Software and all rights not expressly granted are reserved by Actifsource and its suppliers.
4. Restrictions and Requirements.
4.1 Notices. Any permitted copy of the Software that you make must contain the same copyright and other proprietary notices that appear on or in the Software.
4.2 Use Obligations. You agree that you will not use the Software other than as permitted by this agreement and that you will not use the Software in a manner inconsistent with its design or Documentation.
4.3 No Modifications. Except as permitted in Section 14, you may not modify, adapt or translate the Software.
4.4 No Reverse Engineering. You will not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software except to the extent you may be expressly permitted under applicable law to decompile only in order to achieve interoperability with the Software.
4.5 No Unbundling. The Software may include various applications, utilities and components, may support multiple platforms and languages and may be provided to you on multiple media or in multiple copies. Nonetheless, the Software is designed and provided to you as a single product to be used as a single product on Computers as permitted by Sections 2 and 14. You are not required to install all component parts of the Software, but you may not unbundle the component parts of the Software for use on different Computers. You may not unbundle or repackage the Software for distribution, transfer or resale. See Section 14 for specific exceptions to this Section 4.5.
4.6 No Transfer. YOU WILL NOT RENT, LEASE, SELL, SUBLICENSE, ASSIGN OR TRANSFER YOUR RIGHTS IN THE SOFTWARE, OR AUTHORIZE ANY PORTION OF THE SOFTWARE TO BE COPIED ONTO ANOTHER INDIVIDUAL OR LEGAL ENTITY’S COMPUTER EXCEPT AS MAY BE EXPRESSLY PERMITTED HEREIN. You may, however, permanently transfer all your rights to use the Software to another individual or legal entity provided that: (a) you also transfer (i) this agreement, (ii) the serial number(s), the Software affixed to media provided by Actifsource or its authorized distributor, and all other software or hardware bundled, packaged or pre-installed with the Software, including all copies, upgrades, updates and prior versions, to such individual or entity; (b) you retain no upgrades, updates or copies, including backups and copies stored on a Computer; and (c) the receiving party accepts the terms and conditions of this agreement and any other terms and conditions under which you purchased a valid license to the Software. NOTWITHSTANDING THE FOREGOING, YOU MAY NOT TRANSFER EDUCATION, PRERELEASE,
OR NOT FOR RESALE COPIES OF THE SOFTWARE. Prior to a transfer Actifsource may require that you and the receiving party confirm in writing your compliance with this agreement, provide Actifsource with information about yourselves, and register as end-users of the Software. Allow 4-6 weeks to
transfer. Please visit http://www.actifsource.com or contact Actifsource for more information.
4.7 No Service Bureau. You will not use or offer the Software on a service bureau basis. By way of example, you are not allowed to offer the Software as a service (SaaS).
5. Updates.
If the Software is an upgrade or update to a previous version of Actifsource software, you must possess a valid license to such previous version in order to use such upgrade or update. After you install such update or upgrade, you may continue to use any such previous version in accordance with its end-user license agreement only if (a) the upgrade or update and all previous versions are installed on the same Computer, (b) the previous versions or copies thereof are not transferred to another party or device unless all copies of the update or upgrade are also transferred to such party or device and (c) you acknowledge that any obligation Actifsource may have to support the previous version(s) may end upon the availability of the upgrade or update. No other use of the previous version(s) is permitted after installation of an update or upgrade. Upgrades and updates may be licensed to you by Actifsource with additional or different terms.
6. LIMITED WARRANTY.
Actifsource warrants to the individual or entity that first purchases a license for the Software for use pursuant to the terms of this agreement that the Software will perform substantially in accordance with the Documentation for the ninety (90) day period following receipt of the Software when used on the recommended operating system and hardware configuration. Non-substantial variation of performance from the Documentation does not establish a warranty right. This limited warranty does not apply to the following, which are made available AS-IS and without warranty from Actifsource: patches, pre-release (beta), trial, starter, evaluation, product sampler, and not for resale (NFR) copies of the Software; websites, Actifsource Online Services; Third Party Online Services; and any software made available by Actifsource for free via web download from an Actifsource website. All warranty claims must be made, along with proof of purchase, to Actifsource within such ninety (90) day period. Visit the Actifsource website at http://www.actifsource.com for more information about warranty claims. If the Software does not perform substantially in accordance with the Documentation, the entire liability of Actifsource and its affiliates and your exclusive remedy will be limited to either, at Actifsource’s option, replacement of the Software or refund of the license fee you paid for the Software. THE LIMITED WARRANTY SET FORTH IN THIS SECTION GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE ADDITIONAL RIGHTS UNDER LAW WHICH VARY FROM JURISDICTION TO JURISDICTION. ACTIFSOURCE DOES NOT SEEK TO LIMIT YOUR WARRANTY RIGHTS TO ANY EXTENT NOT PERMITTED BY LAW. Please see Section 14 for jurisdiction-specific provisions or contact Actifsource.
7. DISCLAIMER.
THE FOREGOING LIMITED WARRANTY IS THE ONLY WARRANTY OFFERED BY ACTIFSOURCE AND ITS AFFILIATES AND IT STATES THE SOLE AND EXCLUSIVE REMEDIES FOR ACTIFSOURCE’S, ITS AFFILIATES’ OR SUPPLIERS’ BREACH OF THAT OFFERED WARRANTY. THE FOREGOING OFFERED WARRANTY AND ANY STATUTORY WARRANTY AND REMEDY THAT CANNOT BE EXCLUDED OR LIMITED UNDER LAW ARE THE ONLY WARRANTIES APPLICABLE TO THE SOFTWARE. OTHER THAN THOSE OFFERED AND STATUTORY WARRANTIES AND REMEDIES, ACTIFSOURCE, ITS AFFILIATES, SUPPLIERS AND CERTIFICATE AUTHORITIES (DEFINED BELOW) DISCLAIM ALL WARRANTIES, CONDITIONS, REPRESENTATIONS AND TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE AS TO ANY MATTER, INCLUDING BUT NOT LIMITED TO PERFORMANCE, SECURITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, MERCHANTABILITY, QUIET ENJOYMENT, SATISFACTORY QUALITY AND FITNESS FOR ANY PARTICULAR PURPOSE. OTHER THAN SUCH OFFERED AND STATUTORY WARRANTIES AND REMEDIES, ACTIFSOURCE AND ITS SUPPLIERS PROVIDE THE SOFTWARE AND ACCESS TO ANY WEBSITES, ACTIFSOURCE OR THIRD PARTY ONLINE SERVICES AND CERTIFICATE AUTHORITY SERVICES AS-IS AND WITH ALL FAULTS. THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME STATES. YOU MAY HAVE ADDITIONAL WARRANTY RIGHTS UNDER LAW WHICH MAY NOT BE WAIVED OR DISCLAIMED. ACTIFSOURCE DOES NOT SEEK TO LIMIT YOUR WARRANTY RIGHTS TO ANY EXTENT NOT PERMITTED BY LAW. The provisions of Sections 7 and Section 8 will survive the termination of this agreement, howsoever caused, but this will not imply or create any continued right to use the Software after termination of this agreement.
8. LIMITATION OF LIABILITY.
EXCEPT FOR THE EXCLUSIVE REMEDY OFFERED BY ACTIFSOURCE ABOVE AND ANY REMEDIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER LAW, ACTIFSOURCE, ITS AFFILIATES, SUPPLIERS, OR CERTIFICATE AUTHORITIES WILL NOT BE LIABLE TO YOU FOR ANY LOSS, DAMAGES, CLAIMS OR COSTS WHATSOEVER INCLUDING ANY CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES, ANY LOST PROFITS OR LOST SAVINGS, ANY DAMAGES RESULTING FROM BUSINESS INTERRUPTION, PERSONAL INJURY OR FAILURE TO MEET ANY DUTY OF CARE, OR CLAIMS BY A THIRD PARTY, EVEN IF AN ACTIFSOURCE REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS. IN ANY EVENT, ACTIFSOURCE’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES, SUPPLIERS, AND CERTIFICATE AUTHORITIES UNDER OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT PAID FOR THE SOFTWARE, IF ANY. THIS LIMITATION WILL APPLY EVEN IN THE EVENT OF A FUNDAMENTAL OR MATERIAL BREACH OR A BREACH OF THE FUNDAMENTAL OR MATERIAL TERMS OF THIS AGREEMENT. Nothing contained in this agreement limits Actifsource’s liability to you in the event of death or personal injury resulting from Actifsource’s negligence or for the tort of deceit (fraud). Actifsource is acting on behalf of its affiliates, suppliers, and Certificate Authorities for the purpose of disclaiming, excluding and limiting obligations, warranties and liability, but in no other respects and for no other purpose. For further information, contact Actifsource.
THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. THIS LIMITATION OF LIABILITY MAY NOT BE VALID IN SOME COUNTRIES. YOU MAY HAVE RIGHTS THAT CANNOT BE WAIVED UNDER CONSUMER PROTECTION AND OTHER LAWS. ACTIFSOURCE DOES NOT SEEK TO LIMIT YOUR WARRANTY OR REMEDIES TO ANY EXTENT NOT PERMITTED BY LAW. SEE SECTION 14 FOR JURISDICTION-SPECIFIC STATEMENTS.
9. Export Rules.
You agree that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the “Export Laws”). In addition, if the Software is identified as an export controlled item under the Export Laws, you represent and warrant that you are not a citizen of, or located within, an embargoed or otherwise restricted nation and that you are not otherwise prohibited under the Export Laws from receiving the Software. All rights to use the Software are granted on condition that such rights are forfeited if you fail to comply with the terms of this agreement.
10. Governing Law.
If you are a consumer who uses the Software for only personal non-business purposes, then this agreement will be governed by the laws of the state in which you purchased the license to use the Software. If you are not such a consumer, this agreement will be governed by and construed in accordance with the substantive laws in force in SWITZERLAND. The commercial court of the canton of Aargau shall have non-exclusive jurisdiction over all disputes relating to this agreement. This agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
11. General Provisions.
If any part of this agreement is found void and unenforceable, it will not affect the validity of the balance of this agreement, which will remain valid and enforceable according to its terms This agreement may only be modified in writing, signed by an authorized officer of Actifsource. This is the entire agreement between Actifsource and you relating to the Software and it supersedes any prior representations, discussions, undertakings, communications or advertising relating to the Software.
12. Compliance with Licenses.
If you are a business, company, or organization, you agree that, no more than once every 12 months, Actifsource or its authorized representative shall, upon 10 days’ prior notice to you, have the right to inspect your records, systems, and facilities to verify that your use of any and all Actifsource software is in conformity with your valid licenses from Actifsource. If a verification discloses that your use is not in conformity with a valid license, you shall immediately obtain valid licenses to bring your use into conformity.
13. Internet Connectivity and Privacy.
13.1 Automatic Connections to the Internet.
The Software may cause your Computer to automatically connect to the Internet and to communicate with an Actifsource website for purposes that may include providing you with additional information, features and functionality. The following provisions apply to all automatic Internet connections by the Software:
13.1.1 When the Software automatically connects to the Internet, an Internet protocol address (“IP Address”) that is associated with your current Internet connection is sent to an Actifsource website;
13.1.2 When the Software automatically connects to the Internet, no personally identifiable information is sent except to the extent that IP Addresses may be considered personally identifiable in some jurisdictions; and
13.1.3 Whenever the Software makes an Internet connection and communicates with an Actifsource website, unless you are provided with separate terms of use at that time, the Actifsource.com Terms of Use (http://www.actifsource.com) shall apply. Please note that the Actifsource Privacy Policy allows tracking of website visits and it addresses in detail the topic of tracking and use of cookies, web beacons and similar devices.
13.1.4 The Software may transmit your serial number and your e-mail address you used to register your license to Actifsource and in doing so may prevent uses of the Software that are not permitted.
13.2 Updating. The Software may cause your Computer to automatically connect to the Internet to check for Updates that are available for automatic download to your Computer and to let Actifsource know the Software is successfully installed. Please consult the Documentation for information about changing default update settings.
13.4 Use of Actifsource Online Services. The Software may use your Computer to automatically connect to the Internet to facilitate your access to content and services that are provided to you by Actifsource. Your Software may automatically update downloadable materials from these services so as to provide immediate availability of these services even when you are offline. Please consult the Documentation for information about changing default update settings.
13.5 Digital Certificates. The Software uses digital certificates to help you identify downloaded files (e.g., applications and content) and the publishers of those files. Your Computer may connect to the Internet at the time of validation of a digital certificate.
14. Specific Provisions and Exceptions.
This section sets forth specific provisions related to certain products and components of the Software as well as limited exceptions to the above terms and conditions. To the extent that any provision in this section is in conflict with any other term or condition in this agreement, this section will supersede such other term or condition.
14.1 No Prejudice, European Union Provisions.
14.1.1 This agreement will not prejudice the statutory rights of any party, including those dealing as consumers. For example, for consumers in New Zealand who obtain the Software for personal, domestic or household use (not business purposes), this agreement is subject to the Consumer Guarantees Act.
14.1.2 If you obtained the Software in the European Union (EU), you usually reside in the EU and you are a consumer (that is you use the Software for personal, non-business related purposes), then Section 6 does not apply to your purchase and use of the Software. Instead, Actifsource warrants for a period of 2 years from purchase that the Software provides the functionalities set forth in the Documentation (the “agreed upon functionalities”) when used on the recommended hardware configuration. Non-substantial variation from the agreed upon functionalities will not establish any warranty rights. THIS WARRANTY DOES NOT APPLY TO SOFTWARE THAT YOU REQUEST TO USE ON A PRE-RELEASE, TRYOUT, STARTER, PRODUCT SAMPLER BASIS, OR TO FONT SOFTWARE CONVERTED INTO OTHER FORMATS OR TO THE EXTENT THE SOFTWARE FAILS TO PERFORM BECAUSE IT HAS BEEN ALTERED BY YOU. To make a warranty claim, you must notify Actifsource during this 2 year period, providing details of proof of purchase of the Software. Actifsource will verify with you whether there is a defect in the Software or advise you that the error arises because you have not installed the Software correctly (in which case, Actifsource shall assist you). If there is a defect in the Software, you may request from Actifsource either a refund or a repaired/replacement copy of the Software. Requests must be accompanied by proof of purchase. In the event your warranty details are substantiated, Actifsource will meet your request for repaired/replacement Software, unless it is not reasonable for Actifsource to do so, in which case Actifsource will provide you with a refund. For warranty assistance, please contact Actifsource.
Please note that the provisions of Section 8 (Limitation of Liability) will continue to apply to any damages claims you make in respect of your use of the Software. Nonetheless, Actifsource shall be liable for direct losses that are reasonably foreseeable in the event of a breach by Actifsource of this agreement. You are advised to take all reasonable measures to avoid and reduce damages, in particular by making back-up copies of the Software and your computer data.
This agreement, and in particular, this Section 14.1.2, is intended to describe your rights (including your statutory rights) in the event there should be problems with your use of the Software. If your statutory rights should be greater than this description, your statutory rights shall apply.
14.2 Pre-release Software Additional Terms. If the Software is pre-commercial release or beta software (“Pre-release Software”), then this section applies. The Pre-release Software is a pre-release version, does not represent final product from Actifsource, and may contain bugs, errors and other problems that could cause system or other failures and data loss. Actifsource may never commercially release the Pre-release Software. If you received the Pre-release Software pursuant to a separate written agreement your use of the Software is also governed by such agreement. You will return or destroy all copies of Pre-release Software upon request by Actifsource or upon Actifsource’s commercial release of such Software. YOUR USE OF PRE-RELEASE SOFTWARE IS AT YOUR OWN RISK. SEE SECTIONS 7 AND 8 FOR WARRANTY DISCLAIMERS AND LIABILITY LIMITATIONS WHICH GOVERN PRE-RELEASE SOFTWARE.
If you have any questions regarding this agreement or if you wish to request any information from Actifsource please use the address and contact information included with this product to contact Actifsource.
Actifsource is a registered trademark of Actifsource in the Switzerland and/or other countries. All other trademarks are the property of their respective owners.
