THIS END USER LICENSE AGREEMENT ("Agreement") IS A LEGAL AGREEMENT BETWEEN YOU (EITHER ON BEHALF OF YOURSELF AS AN INDIVIDUAL OR ON BEHALF OF AN ENTITY AS ITS AUTHORIZED REPRESENTATIVE) AND FeMi Instruments, LLC ("SpecMan4EPR developer"). PLEASE READ THIS AGREEMENT CAREFULLY AND PRINT OUT A COPY FOR YOUR RECORDS. THIS AGREEMENT SUPERSEDES ALL PREVIOUS VERSIONS.
THIS AGREEMENT MAY BE ACCEPTED (i) BY THE MUTUAL EXECUTION OF THIS AGREEMENT, OR OF AN ORDER FORM, QUOTATION, OR LICENSE CERTIFICATE THAT INCORPORATES THIS AGREEMENT BY REFERENCE, BY BOTH SpecMan4EPR developer AND YOU, WHETHER BY ORIGINAL SIGNATURE OR BY VERIFIABLE AND AUTHENTICABLE ELECTRONIC SIGNATURE ATTACHED TO OR LOGICALLY ASSOCIATED WITH THIS AGREEMENT, OR (ii) BY DOWNLOADING, INSTALLING, COPYING OR OTHERWISE USING THE SpecMan4EPR SOFTWARE. IN EITHER CASE YOU AGREE TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. WHEN THIS AGREEMENT IS EXECUTED BY BOTH PARTIES UNDER CLAUSE (i), IT CONSTITUTES A WRITTEN AGREEMENT SIGNED BY THE LICENSOR AND THE CUSTOMER, AND ELECTRONIC SIGNATURES SHALL HAVE THE SAME FORCE AND EFFECT AS ORIGINAL SIGNATURES. THIS AGREEMENT MAY BE EXECUTED IN COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN ORIGINAL AND ALL OF WHICH TOGETHER SHALL CONSTITUTE ONE AND THE SAME AGREEMENT.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT SIGN THIS AGREEMENT AND DO NOT DOWNLOAD, INSTALL, COPY OR OTHERWISE USE THE SOFTWARE. BY SIGNING THIS AGREEMENT OR BY DOWNLOADING, INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU REPRESENT AND WARRANT THAT YOU HAVE READ AND UNDERSTOOD THIS AGREEMENT, THAT YOU AGREE TO BE BOUND BY ITS TERMS, AND THAT YOU HAVE THE LEGAL CAPACITY AND FULL AUTHORITY TO ENTER INTO THIS AGREEMENT. IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE DULY AUTHORIZED TO BIND THAT ENTITY, AND THE TERM "YOU" SHALL REFER TO BOTH YOU AND THAT ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF THAT ENTITY IS FOR ANY REASON NOT BOUND BY THIS AGREEMENT, YOU ACCEPT THIS AGREEMENT IN YOUR INDIVIDUAL CAPACITY AND ARE PERSONALLY BOUND BY IT. YOU AGREE TO INDEMNIFY AND HOLD HARMLESS SpecMan4EPR developer FROM ANY CLAIM, LOSS, OR EXPENSE ARISING FROM ANY BREACH OF THESE REPRESENTATIONS, INCLUDING ANY MISREPRESENTATION OF YOUR AUTHORITY.
1. SOFTWARE: As used in this Agreement, the term "Software" refers to the SpecMan4EPR software which you have selected to download. The term "Software" also shall include any upgrades, modified versions or updates of the Software made available to you by SpecMan4EPR developer. The term "Software" also includes any third party software made available to you by SpecMan4EPR developer. The term "Documentation" refers to the online or written documentation accompanying the version of the Software downloaded by you, as it exists at the date of delivery.
2. GRANT OF LICENSE: Subject to the terms of this Agreement, SpecMan4EPR developer hereby grants you a perpetual, non-exclusive, non-transferable right to: (i) install the Software, (ii) use the Software for your internal use, and (iii) copy the Software for back-up or archival purposes. Only ONE installation of the Software in NO NETWORK or SERVER mode can be done per LICENSE. It is the policy of SpecMan4EPR developer to permit you to make and keep one back-up or archival copy of the Software as provided in clause (iii) of this Section and, in addition, to provide you with a replacement copy of the Software at no charge, or at a minimal charge, in the event your copy of the Software is lost, damaged, or destroyed.
3. TECHNICAL SUPPORT: Subject to payment of the applicable license fee, SpecMan4EPR developer will provide you with one year of technical support from the moment of the purchase of the Software. You may obtain continued technical support for a specified period of time by paying the applicable fee. All technical support is provided subject to the then-current technical support policy. All updates to the Software shall be governed by this Agreement unless other license terms are provided with the update.
3.1 THE SCOPE OF TECHNICAL SUPPORT: Technical support includes the e-mail or telephone line for consulting on questions of application and configuring of the Software. On request of users, SpecMan4EPR developer may modify the Software to fit the user's needs. SpecMan4EPR developer will notify you in case any updates are available to be downloaded by you.
4. PROGRAM MODIFICATIONS: All program modifications (free or paid for) requested by a user during the period of technical support may, in SpecMan4EPR developer's sole discretion, be made available to the general public in the form of program updates or new versions of the Software. Modifications of the program on user request (free or paid for) do not transfer to the user any additional rights other than those granted in Section 2 of this Agreement.
5. LICENSE RESTRICTIONS: You acknowledge that the foregoing license extends only to your use of the features and functionality of the Software as described in the Documentation, and you agree not to modify the Software in order to enable features or functionality different than those described in such Documentation without notifying SpecMan4EPR developer and paying the applicable Software upgrade fee. You may not: (i) reverse engineer, decompile, or disassemble the Software, or otherwise attempt to derive its source code; (ii) modify, adapt, translate, or create derivative works based upon the Software in whole or in part; (iii) distribute, publish, or make the Software available to any third party; (iv) remove, alter, or obscure any proprietary notices or labels on the Software; (v) resell, lease, rent, loan, transfer, sublicense, or otherwise transfer rights to the Software, in each case without the prior written permission of SpecMan4EPR developer, which retains continued control over any such licensing, sublicensing, or transfer; or (vi) publish or disclose to any third party any benchmark, performance, or comparison results relating to the Software without SpecMan4EPR developer's prior written consent. This Software is not intended for use as part of any critical infrastructure system, including but not limited to energy, transportation, or communication networks, nor is it approved for use in medical applications or devices where its failure could result in personal injury, loss of life, or significant harm to health or property. You are solely responsible for the selection, configuration, operation, monitoring, and protection of any instrument, hardware, equipment, or system used with or controlled by the Software, including the establishment and enforcement of all safe operating limits, interlocks, and protective measures appropriate to your equipment, and for ensuring that any commands, parameters, or settings issued through or by the Software are safe for your hardware. SpecMan4EPR developer shall not be responsible for any damage to, or malfunction of, any instrument, hardware, equipment, or system arising from or in connection with the use of the Software. Any use in violation of this Section shall immediately terminate your license to the Software.
6. ACCEPTANCE, EVALUATION PERIOD, AND FEATURES:
6.1 FEATURES DEFINED BY DOCUMENTATION: The features, functions, capabilities, and performance characteristics of the Software are exclusively those described in the Documentation for the version of the Software delivered to you. No statement, representation, demonstration, marketing material, proposal, quotation, or communication, whether oral or written, made by SpecMan4EPR developer or any third party shall be deemed to add to, expand, or modify the features of the Software, and you acknowledge that you have not relied on any such statement in licensing the Software.
6.2 EVALUATION PERIOD: You shall have thirty (30) days from the date the Software is first delivered to you or first installed by you, whichever occurs first (the "Evaluation Period"), to verify that the Software contains the features and functionality described in the Documentation and that it meets your requirements, expectations, and intended use. You are solely responsible for conducting this verification during the Evaluation Period.
6.3 DEEMED ACCEPTANCE: UNLESS YOU NOTIFY SpecMan4EPR developer IN WRITING OF A SPECIFIC, REPRODUCIBLE NON-CONFORMITY BETWEEN THE SOFTWARE AND THE DOCUMENTATION BEFORE THE END OF THE EVALUATION PERIOD, THE SOFTWARE SHALL BE CONCLUSIVELY AND IRREVOCABLY DEEMED TO HAVE BEEN ACCEPTED BY YOU AND TO CONTAIN ALL FEATURES AND FUNCTIONALITY DESCRIBED IN THE DOCUMENTATION. FOLLOWING THE EVALUATION PERIOD, YOU WAIVE, RELEASE, AND AGREE NOT TO ASSERT ANY CLAIM, DEMAND, OR REMEDY OF ANY KIND BASED ON AN ALLEGATION THAT THE SOFTWARE LACKS ANY FEATURE, FUNCTION, CAPABILITY, CHARACTERISTIC, OR LEVEL OF PERFORMANCE, OR THAT IT FAILS TO MEET ANY EXPECTATION, REQUIREMENT, OR INTENDED USE, AND SpecMan4EPR developer SHALL HAVE NO LIABILITY WITH RESPECT TO ANY SUCH CLAIM. This Section 6 does not limit your exclusive remedy, if any, for a defect timely reported under the limited warranty in Section 8.1.
6.4 FEATURE-SCOPE CLAIMS DISTINGUISHED FROM DEFECT CLAIMS: For the avoidance of doubt, any assertion that the Software does not provide, include, or implement a particular feature, function, or capability is a feature-scope matter governed exclusively by this Section 6 and is subject to the Evaluation Period and the waiver set forth above, regardless of how such assertion is characterized (including, without limitation, as a "bug," "error," "defect," or "non-conformity"). Only an assertion that a feature, function, or capability that is in fact implemented in the Software and described in the Documentation produces materially incorrect results, or fails to operate substantially as described in the Documentation, shall constitute a non-conformity capable of being addressed under the limited warranty in Section 8.1. The absence of a feature, function, or capability shall not, under any characterization, constitute a non-conformity under Section 8.1.
7. TITLE: You agree that no title to the intellectual property in the Software is transferred to you. Title, ownership, rights, and intellectual property rights in and to the Software shall remain in SpecMan4EPR developer and/or SpecMan4EPR developer's licensors. The Software is protected by the intellectual property laws of the United States and other countries and by international treaties.
8. WARRANTY:
8.1 LIMITED WARRANTY: SpecMan4EPR developer warrants to you that the encoding of the Software on the media on which the Software is furnished will be free from defects in material and workmanship, and that the Software shall substantially conform to its Documentation, as it exists at the date of delivery, for a period of ninety (90) days from the date of purchase. For purposes of this limited warranty, a failure to conform means that a feature, function, or capability that is implemented in the Software and described in the Documentation does not operate substantially as so described; the absence of any feature, function, or capability does not constitute a failure to conform and is governed exclusively by Section 6, as provided in Section 6.4. SpecMan4EPR developer's entire liability and your exclusive remedy under this limited warranty shall be, at SpecMan4EPR developer's option, either: (i) return of the price paid to SpecMan4EPR developer for the Software, resulting in the termination of this Agreement, or (ii) repair or replacement of the Software or media that does not meet this limited warranty. Some jurisdictions do not allow the exclusion of implied warranties or limitations on how long an implied warranty may last, so the above limitations may not apply to you. This warranty gives you specific legal rights. You may have other rights that vary from state to state.
8.2 GENERAL: SpecMan4EPR developer does not guarantee that use of the Software will be uninterrupted or error-free. SpecMan4EPR developer does not guarantee that the information accessed by the Software will be accurate or complete. You acknowledge that performance of the Software may be affected by any number of factors, including without limitation technical failure of the Software and other causes reasonably beyond the control of SpecMan4EPR developer. Certain features of the Software may not be forward-compatible with future versions of the Software, and use of such features with future versions of the Software may require purchase of the applicable future version of the Software.
8.3 AS IS SALE: EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8.1, YOU AGREE THAT SpecMan4EPR developer AND ITS LICENSORS HAVE MADE NO EXPRESS WARRANTIES, ORAL OR WRITTEN, TO YOU REGARDING THE SOFTWARE AND THAT THE SOFTWARE IS BEING PROVIDED TO YOU "AS IS" WITHOUT WARRANTY OF ANY KIND. YOU ACKNOWLEDGE THAT THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS WITH YOU. SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU (AND NOT SpecMan4EPR developer, THE RETAILER, OR ANY DISTRIBUTOR) ASSUME THE ENTIRE COST OF ALL NECESSARY REPAIRS.
8.4 DISCLAIMER: SpecMan4EPR developer DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT WITHOUT LIMITATION, (i) THE IMPLIED WARRANTIES OF NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (ii) THAT THE SOFTWARE WILL AVERT OR PREVENT ALL OCCURRENCES (OR THE CONSEQUENCES THEREFROM) THAT THE SOFTWARE IS DESIGNED TO DETECT AND/OR PREVENT; OR (iii) THAT ANY INFORMATION ACCESSED BY THE SOFTWARE WILL BE ACCURATE OR COMPLETE. THIS WARRANTY DISCLAIMER AFFECTS YOUR LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
9. LIMITATION ON LIABILITY: IN NO EVENT WILL SpecMan4EPR developer BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT, THE SOFTWARE, OR ANY SERVICES, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS), OR FOR LOSS OF OR CORRUPTION OF DATA, OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR TECHNOLOGY, IRRESPECTIVE OF WHETHER SpecMan4EPR developer HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SpecMan4EPR developer'S MAXIMUM AGGREGATE LIABILITY FOR DAMAGES SHALL BE LIMITED TO THE LICENSE FEES RECEIVED BY SpecMan4EPR developer UNDER THIS AGREEMENT FOR THE PARTICULAR PRODUCT(S) WHICH CAUSED THE DAMAGES. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. You acknowledge and agree that the limitations and exclusions of liability set forth in this Agreement, together with your responsibilities under Section 5, represent a deliberate and agreed allocation of risk between you and SpecMan4EPR developer, that this allocation of risk is reflected in the license fees charged for the Software, that the license fees would be substantially higher absent this allocation, and that these limitations and exclusions shall apply notwithstanding the failure of essential purpose of any limited remedy.
10. TERM AND TERMINATION: This Agreement shall terminate automatically if you fail to comply with the terms of this Agreement. No notice shall be required from SpecMan4EPR developer to effect such termination. You may also terminate this Agreement at any time by notifying SpecMan4EPR developer in writing of termination. Upon any termination of this Agreement, you must cease all use of the Software, uninstall the Software, and destroy or return to SpecMan4EPR developer all copies of the Software, including any back-up or archival copies. Sections 5 through 9 and 11 through 13 shall survive any termination of this Agreement.
11. EXPORT COMPLIANCE: The Software may be subject to the export control laws and regulations of the United States and other jurisdictions. You agree to comply with all such laws and regulations, and you represent that you are not located in, under the control of, or a national or resident of any country or on any list of persons or entities to which export, re-export, or transfer of the Software is prohibited. You shall not export, re-export, or transfer the Software in violation of any applicable law or regulation.
12. GOVERNING LAW AND DISPUTE RESOLUTION: This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, United States, without regard to its conflict-of-laws principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. You agree that any dispute arising out of or relating to this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located in Cook County, Illinois, and you consent to the personal jurisdiction of, and venue in, such courts.
13. GENERAL: This Agreement, together with any order form, quotation, or license certificate executed by the parties that incorporates this Agreement by reference, constitutes the entire agreement between you and SpecMan4EPR developer with respect to the Software and supersedes all prior or contemporaneous understandings, communications, representations, or agreements, whether oral or written, regarding the Software. No modification of this Agreement shall be binding unless in writing and signed by an authorized representative of SpecMan4EPR developer. If any provision of this Agreement is held to be unenforceable, that provision shall be enforced to the maximum extent permissible, and the remaining provisions shall remain in full force and effect. The failure of SpecMan4EPR developer to enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. You may not assign or transfer this Agreement or any rights or obligations hereunder, by operation of law or otherwise, without the prior written consent of SpecMan4EPR developer; SpecMan4EPR developer may freely assign this Agreement. Neither party shall be liable for any failure or delay in performance due to causes beyond its reasonable control. The section headings in this Agreement are for convenience only and have no legal effect.
14. NOTICES: Any notice, request, or other communication required or permitted under this Agreement, including any notice of a non-conformity under Section 6 or any notice of termination under Section 10, must be in writing and given to SpecMan4EPR developer by email to femi.instruments@gmail.com or by registered mail or recognized courier to FeMi Instruments, LLC, 5301 S Greenwood Ave, Chicago, IL 60615. No notice given by any other means, to any other address, or to any individual employee or contractor of SpecMan4EPR developer shall be effective. A notice shall be deemed given when sent: a notice by email shall be deemed given when sent to the address designated above, provided the sender does not receive a delivery-failure or non-delivery response; and a notice by mail or courier shall be deemed given when deposited with the postal service or courier, as evidenced by a dated dispatch receipt or postmark. Any notice that must be given within a specified period, including within the Evaluation Period under Section 6, is timely if sent to the address designated above before the end of that period. SpecMan4EPR developer may update the addresses designated in this Section by posting the revised information with the Software or its Documentation.
15. RESERVATION OF RIGHTS: All rights not expressly granted in this Agreement are reserved by SpecMan4EPR developer.
16. SIGNATURES: Where the parties elect to accept this Agreement by mutual execution, the parties have caused this Agreement to be executed by their duly authorized representatives as of the date of the last signature below (the "Effective Date"). Execution may be completed by original signature or by verifiable and authenticable electronic signature.
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