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License Agreement
LIMITED USE SOFTWARE AND
DATA LICENSE AGREEMENT
Please read this document
carefully before opening the software envelope.
IF YOU DO NOT
AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT OPEN THE SOFTWARE ENVELOPE.
PROMPTLY RETURN, WITHIN FIFTEEN (15) DAYS THE ENTIRE UN-OPENED PACKAGE WITH ALL
OF ITS CONTENTS TO PHOENIX FOR A FULL REFUND OF LICENSE FEE.
You, as the User, assume
full responsibility for the selection of the software and its associated data and/or
information to achieve his/her intended results, and for the installation, use and
results obtained from the software.
THIS DOCUMENT
STATES THE TERMS AND CONDITIONS UPON WHICH PHOENIX INFORMATION SYSTEMS, LLC., ("PHOENIX")
OFFERS TO LICENSE THE SOFTWARE ENCLOSED AND ITS ASSOCIATED DATA AND/OR INFORMATION,
AND HARDWARE KEY.
BY USING THIS SOFTWARE, HARDWARE KEY, OR OPENING THIS ENVELOPE,
YOU ARE AGREEING TO BECOME BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
THE SOFTWARE ENCLOSED AND ITS ASSOCIATED DATA AND/OR INFORMATION, AND HARDWARE KEY
AS SUPPLIED BY PHOENIX IS LICENSED, NOT SOLD, TO YOU FOR USE ONLY UNDER THE TERMS
OF THIS LICENSE AND PHOENIX RESERVES ALL RIGHTS NOT EXPRESSLY GRANTED TO YOU UNDER
THIS AGREEMENT.
1. License:
The User acknowledges that the programs, hardware
key and documents contained in the package and underlying ideas, algorithms, concepts,
procedures, processes, principals and methods of operation are confidential and
contain trade secrets, and User shall use its best efforts to maintain the confidentialities
thereof.
User acknowledges
that all intellectual property rights and the programs and documents are owned by
PHOENIX Without limiting the generality of the preceding sentence,
the programs, documents and user manuals are copyrighted and may not be copied except
as specifically allowed by this license for backup purposes and to load the program
on to the computer as part of executing the programs. All other copies of the
programs and related user manuals are in violation of this agreement.
The copyright protection claim also includes all forms and matters of copyrightable
materials and information not allowed by statutory or common law or hereinafter
granted including, without limitation, material generated from the software programs
that are displayed on the screen such as icons and screen displays. The programs and documents
may contain trade secrets and are subject to the protection of the Oregon Uniform
Trade Secrets Act.
The User acknowledges
that this licensing agreement unless modified by PHOENIX also applies to subsequent
purchases of software and data, and any updated versions of the program and materials
including any upgrades and enhancements related thereto. Any receipt of an updated
version and the use thereof is subject to this licensing agreement's application
thereto.
User may not sublease, assign
or otherwise transfer the software and documents to any other person or business
entity without the prior written consent of PHOENIX
This license allows you to:
(a) Use the software and its associated data and/or information and hardware key
for your organization only on a single computer, for which it was designed; (b)
Make copies of the software and its associated data and/or information in machine
readable form, solely for backup purposes; and (c) Physically transfer the programs
from one computer to another provided that the programs and hardware key are used
on only one computer at a time.
If you have
purchased a network version of this software, this license agreement applies to
the installation of the software on and use of a hardware key with a single "file
server". It may not be copied onto multiple systems.
PHOENIX may adopt from time
to time mechanical or electronic methods that PHOENIX deems necessary to protect
you and to control unauthorized use or distribution of the programs.
2. Restrictions:
(a)
You may not market, distribute or transfer copies of the software and its associated
data and/or information and hardware key to others outside your organization.
The software and its associated data and/or information and hardware key contain
intellectual property and in order to protect them you may not decompile, reverse
compile, reverse engineer, reverse translate, disassemble or otherwise reduce the
software or its associated data and/or information to a human readable form or distribute
them to any third party.
YOU MAY NOT MODIFY, ADAPT, TRANSLATE, RENT, SELL,
GIVE, LEASE OR LOAN THE SOFTWARE OR ITS ASSOCIATED DATA AND/OR INFORMATION OR CREATE
DERIVATIVE WORKS BASED ON THE SOFTWARE, ITS ASSOCIATED DATA AND/OR INFORMATION OR
THE ACCOMPANYING WRITTEN MATERIALS.
(b)
The software, its associated data and/or information
and accompanying written materials are copyrighted. Unauthorized copying is
expressly forbidden.
You may be held legally responsible for any copyright infringement
that is caused or encouraged by your failure to abide by the terms of this license.
(c)
You understand that PHOENIX may upgrade, enhance, or revise
the software and in doing so incurs no obligation to furnish such upgrades to you.
(These changes may render the software obsolete.) Consequently, PHOENIX reserves
the right to terminate this agreement as to such prior versions of the software.
No distributor, dealer, salesperson,
employee or agent of PHOENIX or any other entity or person is authorized to expand
or alter this warranty or this agreement without the prior written consent of PHOENIX
3. Termination:
This
license is effective until terminated.
Except for sections 4, 5 and 6, this license shall
terminate automatically upon the earlier of:
(a) Breach of your obligations under the license;
(b) PHOENIX's written termination of this license; or (c) By your nonpayment of any
outstanding monies owed to PHOENIX
Upon termination you agree that you will immediately
discontinue the use of and destroy all copies of the software and its associated
data and/or information and return to PHOENIX any and all pieces of electronic media
and hardware key supplied by PHOENIX
4. Limited Warranty:
A.
What is Covered. PHOENIX warrants to User that the Magnetic Media on which
the enclosed Programs are recorded are free from defects in material and workmanship
under normal use.
PHOENIX does NOT warrant that the operation of the software
and its associated data and/or information will meet your requirements or that the
operation of the software and its associated data and/or information will be uninterrupted
or error-free.
B.
For How Long.
The warranty covering the Magnetic Media is made for sixty
(60) days from the date of the original delivery to User.
C.
What PHOENIX Will Do.
PHOENIX will replace any Magnetic Media that proves defective
in materials or workmanship on an exchange basis without charge. If PHOENIX is unable to
replace defective Magnetic Media within a reasonable time, PHOENIX will, as its sole
and exclusive option, either replace the Magnetic Media with a functionally equivalent
Magnetic Media without charge or refund all or part of the fees paid for licensing
the Programs contained on the Magnetic Media. These are User's sole
and exclusive remedies for any breach of warranty.
D.
What PHOENIX Will Not Do.
PHOENIX does not warrant that the Programs will meet
User's requirements or that the operation of the Programs will be uninterrupted
or error-free in all circumstances.
The warranty does not cover any Magnetic Media that
have been subject to damage or abuse.
The warranty does not cover any Programs that have
been altered or changed in any way by anyone other than PHOENIX PHOENIX is not responsible
for problems caused by changes in the operating characteristics of computer hardware
or computer operating systems, nor for problems in the interaction of the Programs
with non-PHOENIX software.
E.
Return of Defective Item.
The original User must return the defective Magnetic
Media, shipping prepaid, to PHOENIX
5. Disclaimer:
USER AGREES THAT THE FOREGOING LIMITED WARRANTY
IS IN LIEU OF ALL OTHER WARRANTIES OF PHOENIX AND PHOENIX DISCLAIMS ALL OTHER WARRANTIES,
EXPRESSED OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, AND NON INFRINGEMENT OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION
OR ADVICE GIVEN BY PHOENIX, ITS DEALERS, DISTRIBUTORS, AGENTS, EMPLOYEES, REPRESENTATIVES
OR ASSOCIATES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY
UNLESS AGREED TO IN WRITING BY PHOENIX.
ANY SUCH REPRESENTATIVES WILL NOT BIND PHOENIX.
USER ASSUMES ENTIRE RISK AS IT APPLIES TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE
AND ITS ASSOCIATED DATA AND/OR INFORMATION.
SHOULD THE SOFTWARE AND ITS ASSOCIATED DATA AND/OR
INFORMATION PROVE DEFECTIVE, YOU (AND NOT PHOENIX) ASSUMES THE ENTIRE COST OF ALL
NECESSARY SERVICING REPAIR OR CORRECTION.
6. Limitation
of Remedies and Liability:
NEITHER PHOENIX NOR ANYONE ELSE WHO HAS BEEN INVOLVED
IN THE CREATION, PRODUCTION OR DELIVERY OF THE PROGRAMS AND SERVICES RELATED THERETO,
OR EQUIPMENT (INCLUDING COMPUTERS AND MACHINES) AND SERVICES RELATED THERETO, SHALL
BE LIABLE TO USER OR ANY PARTY CLAIMING THROUGH USER FOR ANY DAMAGES OR EXPENSES
OF ANY TYPE, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, LOST SAVINGS, LOST BUSINESS,
LOSS OF ANTICIPATED BENEFITS OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES, DIRECT
OR INDIRECT, SPECIAL OR GENERAL, ARISING OUT OF THE USE OR INABILITY TO USE SUCH
PROGRAMS OR EQUIPMENT, WHETHER ARISING OUT OF CONTRACT, NEGLIGENCE, TORT OR UNDER
ANY WARRANTY OR OTHERWISE AND WHETHER CAUSED BY DEFECT, NEGLIGENCE, BREACH OF WARRANTY,
DELAY IN DELIVERY OR OTHERWISE, EVEN IF PHOENIX HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES OR FOR ANY OTHER CLAIM BY ANY OTHER PARTY. NO OBLIGATION OR LIABILITY
SHALL ARISE OR FLOW FROM PHOENIX RENDERING TECHNICAL OR OTHER ADVICE IN CONNECTION
WITH EQUIPMENT, PHOENIX PROGRAMS OR PHOENIX SERVICES, INCLUDING BUT NOT LIMITED TO,
PHOENIX INSTALLATION AND TRAINING SERVICES AND ANNUAL SUPPORT AND MAINTENANCE SERVICES.
PHOENIX'S LIABILITY FOR DAMAGES IN NO EVENT SHALL EXCEED THE LICENSE FEE PAID FOR
THE RIGHT TO USE THE PROGRAMS.
7. Complete
Software Solutions ("PHOENIX"):
PHOENIX is an Oregon corporation, with its
principal offices at 3470 Pipebend Place NE, Suite 100, Salem, Oregon 97301, USA.
PHOENIX can be contacted by calling 1-800-922-4556 or 1-503-399-9270.
8. General: (a) This license shall
be governed and interpreted, except the federal laws which govern trademarks and
copyrights, in accordance with the laws of the State of Oregon. This agreement has been
made entirely within the State of Oregon.
If any suit or action is filed by any party to enforce
this license or otherwise with respect to the subject matter of this license, venue
SHALL
be in the federal or state courts in Salem, Oregon.
The parties further agree that this provision shall survive the termination of this
agreement and that NO ACTION, regardless of form arising hereunder, may be instituted
by either party more than one (1) year after the cause of action arose, or, in the
case of nonpayment, more than two (2) years from the date of the last payment, except
that the above limitations shall not apply to the enforcement of any of PHOENIX's
intellectual property rights.
In any such action, the prevailing party shall be
entitled to its reasonable attorney fees at trial or on appeal thereof, as awarded
by the court.
This license shall be construed in such a fashion as to
make each provision enforceable to the maximum extent possible under law.
(b)
User acknowledges that User has read this agreement, which
comprises of all the terms and conditions in this agreement, understands each and
every term and condition of it, and agrees to be bound by its terms and conditions.
User agrees that this agreement is the complete and exclusive statement of the agreement
between PHOENIX and User and that this agreement supersedes all prior and contemporaneous
agreements, proposals, negotiations or discussions, oral or written, relating to
the subject matter herein.
No course of dealing or usage of trade or course
of performance shall be relevant to explain or supplement any terms expressed herein.
User further agrees that no representations or statements of any kind, including
but not limited to, dealer advertising, presentations, oral or written, made by
any agent or representative of PHOENIX which are not stated herein shall be binding
on User or PHOENIX
Failure or delay in enforcing any right to a provision
of this agreement shall not be deemed as a waiver of such provisions or right in
respect to any subsequent breach or a continuance of any existing breach.
If any provision of this license shall be held to be unenforceable by a court of
jurisdiction, the remaining provisions will remain in force and effect and be enforced
to the maximum extent permissible.
(c) PHOENIX shall not be in default by reason
of any failure of its performance under this agreement if failure results, directly
or indirectly, from, but not limited to, fire, explosion, strike, freight embargo,
act of God, or the public enemy, war, civil disturbance, act of any government,
de jure or de facto, or any agency or official thereof, labor shortage, transportation
contingencies, unusually severe weather, default of manufacturer or supplier as
a subcontractor, quarantine or restriction, epidemic or catastrophe or other similar
event beyond the control of PHOENIX
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