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SOFTWARE LICENSE AGREEMENT |
I. IMPORTANT:
THIS IS A LICENSE, NOT A SALE. PLEASE READ THE TERMS AND CONDITIONS OF THIS
LICENSE AGREEMENT (HEREAFTER
“AGREEMENT”) CAREFULLY BEFORE USING THE SOFTWARE. BY
CLICKING THE “I AGREE” OR “YES” BUTTON OR OTHERWISE INDICATING ASSENT
ELECTRONICALLY, OR INSTALLING THE SOFTWARE, YOU ACCEPT AND AGREE TO BE BOUND BY
AND COMPLY WITH ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. FURTHER YOU
ACKNOWLEDGE AND AGREE WITH (HEREAFTER “FUTURE CORPORATION”) THAT THIS AGREEMENT IS LIKE ANY
NEGOTIATED WRITTEN AGREEMENT SIGNED BY YOU AND THAT THIS AGREEMENT IS
ENFORCEABLE AGAINST YOU AND/OR THE LEGAL ENTITY THAT OBTAINED THE SOFTWARE AND
ON WHOSE BEHALF IT IS USED (REFERRED COLLECTIVELY HEREIN AS “YOU” OR “YOUR”).
IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT AND ALL TERMS AND
CONDITIONS IN ADDENDUM HEREIN APPLICABLE TO YOU AS SET FORTH BELOW, CLICK THE
“DO NOT ACCEPT” OR “NO” BUTTON OR OTHERWISE INDICATE YOUR REFUSAL OR DO NOT
DOWNLOAD THE PRODUCT AND THE INSTALLATION PROCESS WILL NOT CONTINUE. YOU MAY
RETURN THE SOFTWARE TO THE PLACE OF PURCHASE FOR A FULL REFUND AS SET OUT IN
III. BELOW;
II. DOWNLOADS: BEFORE DOWNLOADING THE
SOFTWARE, CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY
DOWNLOADING THE SOFTWARE: (I) YOU CERTIFY THAT YOU ARE NOT UNDER 13
YEARS OF AGE AND THAT YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS
SET OUT IN THIS AGREEMENT; AND (II) YOU AGREE
THAT BY INSTALLING THE SOFTWARE THIS WILL BE AN IRREVOCABLE ACCEPTANCE OF THE
TERMS AND CONDITIONS OF THIS AGREEMENT; AND,
(III) YOU AGREE TO BE RESPONSIBLE FOR YOUR INTERNET SERVICE PROVIDER FEES, TELECOMMUNICATIONS
AND ALL OTHER CHARGES THAT MAY APPLY AS A RESULT OF YOUR DOWNLOAD OF THE
SOFTWARE; AND, (IV) YOU REPRESENT AND WARRANT TO FUTURE CORPORATION, IF YOU ARE
DOWNLOADING AND ACCEPTING THE SOFTWARE ON BEHALF OF ANY OTHER LEGAL ENTITY,
THAT YOU HAVE FULL LEGAL AUTHORITY TO BIND SUCH ENTITY; AND, (V) ALL RISK OF DAMAGE
TO THE SOFTWARE DURING TRANSMISSION AND DOWNLOAD IS ASSUMED BY YOU. IF YOU DO
NOT AGREE OR COMPLY WITH THE ABOVE TERMS AND CONDITIONS, DO NOT DOWNLOAD THE
SOFTWARE;
III. FOURTEEN (14) DAY MONEY BACK GUARANTEE:
If you are the first user of the Software and are
not satisfied with it, excluding: Beta, Demonstration, Installment,
OEM, SDK,
Subscription or Upgrade Software as set forth under their respective sections below, you may
return it at any time during the fourteen (14) day period following the date of
purchase subject to the following conditions: (i) you must uninstall and where applicable deactivate and/or
deregister the Software; and, (ii) fill in a
Return Advice form and submit it at the
Software's website; and (iii) return any media and other associated
materials including the hardware security device (if applicable)
with proof of purchase
and the Return Advice (RA) number to Future
Corporation or the Authorized Dealer you purchased the Software from to obtain a refund of the money you
paid for the software (less all shipping, handling, applicable taxes and any other
non-recoverable costs including but not limited to any other or 3rd party fees
and/or charges howsoever incurred).
No returns will be accepted by Future Corporation, or its Affiliates
and/or its Authorized Dealers after the
fourteen
(14) day period has expired.
Please visit
http://www.iifuture.com/en/support_customer_service.html;
THIS LICENSE IS GRANTED BY FUTURE CORPORATION OR ITS AFFILIATES AND
INCLUDES THE FOLLOWING
PART I
1. TERMS AND DEFINITIONS
2. SOFTWARE LICENSE
3. GENERAL PROVISIONS
4. GOVERNING LAW
5. TECHNICAL SUPPORT
6. INSTALLMENT AND SUBSCRIPTION SOFTWARE
PART II
7.1 ACADEMIC, EDUCATION STUDENT AND TEACHER ADDENDUM TO THE LICENSE
7.2 BETA SOFTWARE ADDENDUM TO THE LICENSE
7.3 DEMONSTRATION SOFTWARE ADDENDUM TO THE LICENSE
7.4 OEM EDITION ADDENDUM TO THE LICENSE
7.5 SOFTWARE DEVELOPMENT KIT ADDENDUM TO THE LICENSE
PART III
8. COUNTRY SPECIFIC TERMS IN ADDENDUM TO THIS LICENSE
PART I
1. TERMS AND DEFINITIONS
1.1 Words importing the singular number shall include the plural and
vice versa; and,
1.1.2 Words importing any particular gender shall include all other
genders; and words importing persons include individuals, sole proprietors,
partnerships, companies, corporations (public or private), all government
bodies and departments including the armed and covert forces, trusts and
unincorporated associations, businesses, organizations and all other legal
entities; and,
1.1.3 Unless expressly stated otherwise all words herein shall be
given their ordinary or plain meaning according to the Australian Oxford
English dictionary at such date this Agreement is executed by the parties; and,
1.1.4 References in this Agreement to Sections are to sections in this
Agreement except where otherwise expressly stated; and,
1.1.5 Numbered Headings (as described in Section 1.2 below), excluding those words referred to in section 1.1.6
(below), are used in this Agreement for the convenience of the
Parties only and shall not be incorporated into this Agreement and shall not be
deemed to be any indication of the meaning of the Clauses or Sections to which
they relate; and,
1.1.6 For the purposes of section 1.1.5 (above) Numbered Headings hereby excludes all
those words contained within inverted commas (“”) or in
parentheses (), italicized or bolded; and,
1.1.7 To avoid any doubt those words contained within inverted commas (“”) or in
parentheses (), italicized or bolded that are not Numbered Headings are
included in and form part of this Agreement;
1.2
IN THIS AGREEMENT UNLESS EXPRESSLY STATED OTHERWISE THE FOLLOWING WORDS,
GROUPING OF WORDS OR PHRASES SHALL HAVE THE FOLLOWING MEANING:
“Activation Number” means the unique number used to Activate the
Software to operate in a restricted or unrestricted state;
“Affiliate” means any corporation, company or other entity that
directly or indirectly, is controlled by, or is under common control with,
Future Corporation;
“Agent” means the interactive assistants which form part
of the SuperTutor training program;
“Antivirus software” means a computer program that attempts to
identify, neutralize or eliminate a wide range of threats to a computer or
device, including but not limited to (i) malware,
(ii) worms, (iii) phishing attacks, (iv) rootkits,
and (v) Trojan horses or any other type of similar,
related or
malicious software;
“Apple computer” means a computer or device manufactured,
supplied and/or sold by Apple Computer Inc. or its Authorized or Licensed
Dealers;
“Authorized Dealer” means an individual or a business
(incorporated or otherwise) that has
been approved and authorized by Future Corporation under a separate agreement
to carry (store or stock) the Software to promote, support and sell it to
end-users;
“Beta” means a version (complete or incomplete) of Future Corporation Software that is in
its final development and/or testing stage that may contain bugs, errors and
other glitches or problems that could cause system failures and/or data loss
and may not perform all functions for which it is intended or represented;
“Circumvent” means (i) to deliberately, utilizing any means, work-around or bypass and/or
eliminate (successfully or otherwise) the Software’s built-in (programmed)
mechanisms that are intended to prevent its unlicensed, unauthorized or unlawful use; or
(ii) to work-around or bypass
and eliminate the hardware security device commonly referred to as a "Dongle"
(successfully or otherwise) to prevent the Software’s unlicensed, unauthorized or unlawful use; and/or
(iii) to interfere with the Software’s programming code and/or secret mechanisms
using an individual's skills and/or another program, utility, script or device, commonly known as
"Reverse Engineering", "Cracking" or "Hacking", in an
attempt (successful or otherwise) to either remove, work-around or bypass the Software’s built-in (programmed) or hardware (security device)
mechanisms that is intended to prevent the software's unlicensed, unauthorized or unlawful use;
“Compatible computer” means IBM compatible computer for the
purposes of this Agreement (see below);
“Component” means a separate and identifiable part of the
Software that may be obtained separately for a fee or at no charge as described
in the Software’s documentation that seamlessly integrates with the Software
and is typically referred to as a plug-in, snap-in or module;
“Computer” or “Device” means an electronic device that accepts information
in digital or similar form and manipulates it for a specific result based on a
sequence of instructions;
“Content Files” means the animations, artistic works and samples, audio, charts,
clipart, data, gradients, fonts (in all formats),
illustrations, images, internal graphics and works, sample and stock photographs, sample files, sounds,
templates, text, textures, video and all other similar works bundled (included)
with the Software and/or available online at no charge, or for a fee, and are provided for
demonstration and training purposes with the Software;
“Copy” with respect to the Software means one (1) instance of
the Software that is installed onto one (1) hard disc drive that is permanently
affixed and/or exclusively used in one (1) computer; and does not mean a
removable or transportable hard disc drive that is used as a start up drive on
more than one (1) computer (e.g. you may not install a copy of the Software on
a hard disc drive (C:\ drive) that is then cloned and used as a boot up disc on two or more
computers simultaneously);
“Credit-Card” means a payment device lawfully issued to the bearer
by a Major credit card company that is accepted by Future Corporation, its
Affiliates and/or its Authorized Dealers as listed at the Future Corporation
Internet site:
http://www.iifuture.com/en/products_payment_options.html;
“Customer Number”
means Product Serial Number for the
purposes of this Agreement (see below);
“Day” or “Days” means consecutive calendar days
and does not exclude weekend days, or any: public, bank and government
sanctioned public holidays with each day concluding precisely at 4:00PM AEST and any time
thereafter considered the following day for the purposes of this Agreement;
“Delphi” means a computer programming language, more
specifically a branch of object oriented derivatives of Pascal;
“Documentation” means any accompanying printed materials, Software
License, and any other Agreement you may have with Future Corporation relating to
the Software, and online (Future Corporation Internet sites); or its electronic
equivalent;
“Dongle” means a Hardware Security Device for the purposes of this Agreement (see
below);
“Expert” means an individual or individuals who comply with the
experience and/or tertiary qualifications as required under the Software License
Agreement to provide sworn testimony in the event of a dispute between the
parties hereto in a court of competent jurisdiction, to assist the court if
required;
“First user” means the individual or legal entity that first
licensed the Software from Future Corporation or its Affiliate;
“Future Corporation” means ;
“Hard disc drive” or
“HDD” (Internal or External) means any disc or media regardless of kind or
type that is capable of having the Software copied or installed onto it for use
in or with a computer or device;
“Hardware Security Device” means a piece of hardware that
physically attaches to a Computer or Device
(typically through its
Parallel, Serial or USB communications port)
that is interrogated by the Software to determine its authenticity and
a user's right to fully access the Software;
“Help” means the printed and/or electronic documentation
provided by Future Corporation with the Software and/or online and does not mean
email, facsimile, telephone or technical support, training or assistance;
“IBM compatible computer” means any computer or device that is
capable of running Microsoft’s computer operating system: Windows and excludes
ALL Apple computer operating systems, and for the purposes of this Agreement means Windows:
8, 7, Vista,
and XP in all variants and service packs or
any version thereof for Apple computers, but
does not include any other version or variant of Microsoft Windows including but
not limited to: Windows: 2000, Me (Millennium), 98, 95, 3.X and all prior releases, versions
and variants and to avoid any doubt does not include any future
versions of Windows after Windows 8;
“In writing” from Future Corporation which appends or modifies
this agreement means a written document signed by
the C.E.O., a director, a vice president, or a senior executive of
Future Corporation that is duly authorized to represent Future Corporation for
such purposes;
“Install Code” means the unique number that identifies each
computer and is required to Activate or Register the Software;
“Interactive Agents” means a technology developed by Microsoft
which employs animated characters, text-to-speech engines, and speech
recognition software to enhance interaction with computer users;
“Internal Network” means a private or proprietary network
resource (Intranet) accessible only by management, employees and individual
contractors (i.e. subcontractors) of a specific corporation, company, business entity
or government department or body. Internal Network does not mean or include a global
and/or public network (Internet) or any portion thereof or any other network community open
to the public or other non-related corporations, such as membership or
subscription driven groups, trade or professional associations, public
associations or forums and/or similar organizations or groups;
“Internet”
means the global computer network commonly referred to as the world
wide web;
“License Management Regime” means the system employed by Future
Corporation and the Software to manage the Software's
Licensing on a computer;
“License Remaining” means the contiguous time remaining (usually
reported in days) before the License expires on a computer;
“License Status” means the current state of the Software License
on a computer;
“License Type” means the method of payment for the Software
License;
“Life”, “Life Cycle” or “Life of the Product” means Product Life
for the purposes of this Agreement (see below);
“Machine code” or “Machine language” means a system of
instructions and data directly executed by a computer’s central processing
unit;
“Materials and workmanship” means the Software’s physical: (i) media (including but not limited to discs and the
hardware security device), (ii) written (printed) materials, (iii) packaging,
and (iv) any other similar materials but does not refer or relate to the
Software program and/or its components, extras, plug-ins, snap-ins, modules or its code, or any online services.
Materials and workmanship does not mean or include the quantity or
quality of the Software or its code, its fitness for purpose or merchantability;
“Microsoft” means Microsoft Corporation Inc. of 1 Microsoft
Way, Redmond, WA 98052-6399 United States;
“Module” means Component for the purposes of this Agreement
(above);
“Month” or “Months” means consecutive calendar months and does
not exclude weekend days, or any: public, bank and government sanctioned
public holidays within such month or months;
“MSRP” means Manufacturer’s Suggested
Retail Price abbreviated to MSRP and has the same meaning as:
Recommended Retail Price or RRP, or the list price;
“Numbered Headings” means a word or
group of words within this Agreement that are immediately preceded by a numeric
value which is the consecutive decimalized number to those numbers that have
come before it in preceding sections and does not include alpha, roman or other
numerals which may appear within and throughout the various sections of this
Agreement;
“Online” means access to and/or interaction with the global
computer network commonly referred to as the Internet or world wide web via a
computer or other device whether it be unrestricted or otherwise;
“Operating System” means Microsoft’s computer operating system
software: Windows: 7, Vista, and XP in all correctly installed (loaded) variants and service packs or
any version thereof for Apple computers, but
does not include any other version or variant of Microsoft Windows including but
not limited to: Windows: 2000, Me (Millennium), 98, 95, 3.X and all prior releases,
versions and variants and to avoid any doubt does not include any future
versions of Windows after Windows 7;
“Original Equipment Manufacturer” or
“OEM” means a variation of the Software that is exclusively
included (bundled) and licensed by Future Corporation with a piece of third party
equipment or hardware (machines and devices) including but not limited to: CNC, engraving, laser, plotting, printing, routing and
vinyl cutting machines and devices by the manufacturer and/or their agents and
dealers to end-users;
“Output File” means a file in a Future Corporation proprietary
or generic format that has been created and saved and/or exported by the
Software;
“Patch” means Update for the purposes of this Agreement (see
below);
“Permitted Number” means a single unit or one (1) unless otherwise indicated
under a valid Volume License granted by Future Corporation or one of its
subsidiaries, authorized Licensees or Dealers;
“Perpetual” or "Perpetual License” means a period of no more than ten (10)
consecutive years and for the purposes of this agreement DOES NOT mean
everlasting or forever;
“Plotter” or “Vinyl Cutter” means an electronic device that uses
a pen or blade to create drawings on a substrate or to cut out signage from an adhesive
backed
vinyl or similar substrate which is expressly supported by the Software and
does not include every make and model of plotter or vinyl cutter
manufactured or currently available;
“Plug-In” means Component for the purposes of this Agreement
(see above);
“Possession or Control” means (i) the effective ownership or
proprietorship of the Software license notwithstanding the legal ownership or
proprietorship thereof, and/or (ii) the effective ownership or
proprietorship of a computer or device notwithstanding the legal ownership or
proprietorship thereof that has any prior or actual relationship
with, or to, the Software;
“Printer” or “Large/Wide Format Printer”
means an electronic device that uses
any process/technology to print onto a substrate which is expressly supported by
the Software and does not include every make and model of printer or
large/wide format printer manufactured or currently available;
“Product” means the version of the Software licensed by Future
Corporation under the terms of this Agreement;
“Product Life” means the period of time from where a version of
the Software is released for licensing to the public (the current version) and
remains current up until such time as a subsequent or replacement version
(Upgrade) is released
for licensing to the public (see Upgrade below);
“Product Serial Number or PSN” means the unique and identifying
number for each Future Corporation Software product;
“Programming language” means a set of written instructions (and
comments) that are
used to develop and create programs which control the behaviour of a computer or device;
“Published functionality” means the functions (i.e. tools and
features) each variation or level of the Software includes as set forth and
listed at the Software’s dedicated Internet site in the ‘Products’ webpage
under ‘Feature’s List’ or similar list;
“Reasonable amount” means for the purposes of section 5 (below) an
amount only to the extent necessary to resolve, or an attempt to resolve
(successful or otherwise), a
technical issue pertaining or relating to the Software; and does not imply or mean a guarantee,
warranty or promise of any kind to permanently resolve such technical issue;
“Registration Number” has the same meaning as Activation Number
for the purposes of this Agreement
(see above);
“RRP”
means MSRP for the purposes of this Agreement (see above);
“Sample File” means a file in a Future Corporation proprietary
or generic format that has been created and saved and/or exported by Future
Corporation, its Affiliates and/or its Authorized Dealers using the Software;
“Security-1” or “S1” means an extension, variation or
modification of the Software that (i) is for use within a secured or protected internal
network, and/or (ii) provides for restricted user levels and access, and/or
(iii) has built-in mechanisms to track all access and use of the Software,
and/or (iv) implements strong encryption to protect Output and Export files;
“Snap-In” means Component for the purposes of this Agreement
(see above);
“Software Development Kit” or “SDK” means a set of development
tools provided by Future Corporation that assists a software programmer to
create components, file format filters for Future Corporation Software and/or
its components for use with third party computer programs, utilities or applications;
“Software” means (i) computer software (including its compiled
code), and/or (ii) a computer program including plug-ins, snap-ins, modules
and/or components (including their respective code), and (iii) any modified
versions and copies of, and upgrades, updates and additions to the Software; and
(iv) all of the information with which the Software License Agreement is
provided, including but not limited to Future Corporation or third party
software files and other computer information but does not include
the physical: (i) media (including but not limited to discs and the
hardware security device), (ii) written (printed) materials, (iii) packaging,
and (iv) any other similar materials;
“Strong encryption” means a method of data encryption that is
less susceptible to having its key discovered by a third party through what is
commonly referred to as brute force attack, hacking or cracking;
“Subsidiary” means Affiliate for the purposes of this Agreement
(see above);
“Supervisor” and “Manager” means an employee of Future Corporation who
has a senior position within the company and has been authorized by the C.E.O., a
director, a vice president, or senior executive of Future Corporation to represent Future
Corporation for the tasks as expressly set forth in this Agreement;
“Supplier” means an individual or a business which has and/or
continues to provide Future Corporation with any goods, intellectual property
and/or services to assist Future Corporation in designing, creating, producing
and delivering the Software;
“Technical support” means the identification and attempted remedy
(successful or otherwise) of an error, bug or an unexpected circumstance
pertaining or relating to the Software when used in accordance with the Software's
documentation, the Operating System and directions from Future Corporation via email, user forums, knowledgebase, online ticketing, facsimile,
telephone or by any other appropriate means, undertaken by an authorised Future Corporation
representative; and does not mean the consulting or consultation of the
applicability, suitability or otherwise of the Software or any training or explanation of
how to use the Software or any other Software or Hardware, or how it is supposed
to, or does function except to the extent to remedy the technical issue;
“Update” means a separate component of Software designed to update,
modify, repair, remove or
fix problems identified by Future Corporation with the Software that includes
fixing bugs, replacing or removing tools and/or features and improving the usability or
performance of the Software (e.g. V1.0 of the Software may be replaced with V1.1 of the Software,
with V1.1 an update from V1.0, with V1.1 potentially followed by V1.2 and so on
and so forth. Note, update increments may not necessarily be in values of .1);
“Upgrade” means the complete replacement of the Software with a
newer version of the same branded Software, that may include but is not limited
to: error corrections, modifications,
removal/replacement of tools and features,
compatibility improvements, new tools and
features, additions and/or enhancements to the Software (e.g. V1.0 of the Software
will be replaced with V2.0 of the Software, with V2.0 an upgrade from V1.0, with
V2.0 subsequently followed by V3.0 and so on and so forth.
Note, update increments may not necessarily be in values of 1);
“USB Drive” or
“USB Flash Disc/Drive”
means Hard disc drive for the purposes of this Agreement (see above);
“Use” means the opening and/or installation (loading) of the Software
with an Operating System and its
manipulation and/or exploitation on a computer or device by a user;
“User” means the individual or legal entity that is licensed to
use the Software or has effective control of the Software;
“Valid Credit Card” means credit card for the purposes of this
Agreement (see above);
“Version” means the numeric or alphanumeric value given to
the Software license as each subsequent edition is released for sale by Future
Corporation or its Affiliates at their absolute discretion and from time to time;
“Volume License” means either (i) a
Site License granted in single licenses, or (ii) a License Pack usually granted in
multiples of five (5) five licenses, or (iii) License Seats usually granted in multiples of one hundred
(100) licenses;
“Written notice” means any method of delivering written advice
to the recipient including but not limited to (i)
email, (ii) facsimile, (iii) post, (iv) courier, or (v) hand delivery and as
long as the written notice is delivered to the ordinary or registered address
of the recipient it does not require third party or independent verification to
effect legal notification;
“Year” or “Years” means consecutive calendar years and does not
exclude weekend days, or any: public, bank and government sanctioned public holidays
within such year or years;
2. SOFTWARE LICENSE:
THE SOFTWARE IS LICENSED, NOT SOLD. YOU HEREBY ACKNOWLEDGE AND AGREE
WITH FUTURE CORPORATION, ITS AFFILIATES AND/OR AUTHORIZED DEALERS THAT THIS
LICENSE AGREEMENT ONLY GIVES YOU SOME RIGHTS TO USE THE SOFTWARE AND MAY
BE LIMITED BY TIME AS SET OUT IN THE SOFTWARE'S DOCUMENTATION AND/OR MATERIALS. FUTURE
CORPORATION, ITS AFFILIATES, AND ITS SUPPLIERS RESERVE ALL OTHER RIGHTS.
NOTWITHSTANDING THIS LIMITATION AND UNLESS APPLICABLE LAW GIVES YOU MORE
RIGHTS, YOU MAY ONLY USE THE SOFTWARE AS EXPRESSLY PERMITTED IN THIS AGREEMENT;
2.1 GRANT OF LICENSE:
IF YOU OBTAINED THE SOFTWARE FROM FUTURE CORPORATION, ONE
OF ITS AFFILIATES OR ONE OF ITS AUTHORIZED DEALERS AND AS LONG AS YOU COMPLY
WITH THE TERMS OF THIS LICENSE AGREEMENT, FUTURE CORPORATION GRANTS YOU A
NONEXCLUSIVE LICENSE TO USE THE SOFTWARE IN THE MANNER AND FOR THE PURPOSES
DESCRIBED IN THE SOFTWARE’S DOCUMENTATION AND/OR MATERIALS AND IN THIS LICENSE AGREEMENT AS
FURTHER SET FORTH BELOW;
2.1.1 GENERAL USE:
You may install and use one (1) copy of the Software on one (1) computer; or
(if applicable);
2.1.2 VOLUME USE:
You may install and use one (1) copy of the Software on one (1) computer up to
the Permitted Number of your compatible Computers under a valid Volume License
Agreement with Future Corporation, its Affiliates, and/or its
Authorized Dealers; or,
2.1.3 SERVER DEPLOYMENT: You may install the Permitted Number of copies of the Software on
the Permitted Number of Computer file server(s) within your Internal Network
for the purpose of downloading and installing the Software on up to the
Permitted Number of Computers within the same Internal Network;
2.1.4 HOME USE RIGHTS USER: You must
qualify as a “Home Use Rights User” to use Future Corporation Software with
“Home Use Rights” as listed in the Software’s documentation. To qualify as a
“Home Use Rights User”, you must be both (i) an
employee of an organization that has a Future Corporation Volume License
Agreement with Home Use Rights; and (ii) the user of a Licensed copy of the
Software, or a product that includes the Software, with Home Use Rights;
2.1.5 BACKUP COPY:
You may make up to two (2) backup copies of the Software, provided your backup
copies are not installed or used for anything other than archival purposes;
2.1.6 TAXES AND CHARGES: You acknowledge and agree with
Future
Corporation, its Affiliates, and/or its Authorized Dealers that you are responsible for any and all tariffs, custom
charges and duty taxes, value added taxes, goods and services taxes, and sales
taxes payable in connection with this License Agreement;
2.1.7 CREDIT-CARD CHARGE BACK:
NOTWITHSTANDING ANY WARRANTY CLAIM OR BREACH OF THIS
AGREEMENT YOU HEREBY ACKNOWLEDGE AND AGREE WITH
FUTURE
CORPORATION, ITS AFFILIATES AND/OR ITS AUTHORIZED DEALERS THAT IF YOU PAID FOR THIS LICENSE WITH A CREDIT-CARD AND
HAVE INSTALLED THE SOFTWARE OR OTHERWISE EXECUTED THIS AGREEMENT AND THE 14
(FOURTEEN) DAY MONEY-BACK GUARANTEE (AS SET FORTH IN III. ABOVE) HAS EXPIRED AND
YOU INITIATE A CHARGE-BACK FOR SUCH CREDIT-CARD PAYMENT WITH YOUR BANK OR CARD
ISSUER, THAT THIS IS A VIOLATION AND MATERIAL BREACH OF THIS AGREEMENT AND MAY RESULT
IN THE AUTOMATIC AND IMMEDIATE TERMINATION OF YOUR LICENSE TO USE THE SOFTWARE
AND FUTURE CORPORATION, ITS AFFILIATES AND/OR ITS AUTHORIZED DEALERS
SHALL BE ENTITLED TO (I) REJECTING YOUR APPLICATION WITH YOUR BANK OR CARD
ISSUER, AND SHOULD SUCH REJECTION BE REFUSED BY YOUR BANK OR CARD ISSUER; (II) TAKE SUCH ACTION AS FUTURE CORPORATION, ITS
AFFILIATES AND/OR ITS AUTHORIZED DEALERS SEE FIT,
INCLUDING IMMEDIATELY BLOCKING ACCESS TO ONLINE SERVICES, REMOTELY DEACTIVATING
OR DEREGISTERING THE SOFTWARE AND/OR REFUSAL TO PERMIT FURTHER ACTIVATIONS OR
REGISTRATIONS AND PERMANENTLY TERMINATING YOUR ACCOUNT WITH FUTURE
CORPORATION, ITS AFFILIATES AND/OR ITS AUTHORIZED DEALERS, DISCLOSING SUCH INFORMATION (INCLUDING YOUR IDENTITY) TO
RELEVANT AUTHORITIES AND/OR ANY PERSON OR ENTITY THAT HAS THE LEGAL RIGHT TO
SUCH INFORMATION, AND/OR TAKING LEGAL ACTION AGAINST YOU TO RECOVER ANY AND ALL
LOSSES INCURRED BY FUTURE CORPORATION;
2.2 INTELLECTUAL PROPERTY OWNERSHIP:
THE SOFTWARE AND ANY AUTHORIZED COPIES THAT YOU MAKE ARE
THE INTELLECTUAL PROPERTY OF AND ARE OWNED BY FUTURE CORPORATION AND ITS
SUPPLIERS. THE ALGORITHMS, DESIGNS, METHODS, LAYOUTS, ORGANIZATION, STRUCTURE
AND UNDERLYING TECHNOLOGIES OF AND WITHIN THE CODE OF THE SOFTWARE ARE THE
VALUABLE TRADE SECRETS AND STRICTLY CONFIDENTIAL INFORMATION AND PROPERTY OF
FUTURE CORPORATION AND/OR ITS SUPPLIERS. EXCEPT AS EXPRESSLY STATED HEREIN,
THIS AGREEMENT DOES NOT GRANT YOU ANY INTELLECTUAL PROPERTY RIGHTS IN THE
SOFTWARE, ITS COMPONENTS, THE CONTENT FILES OR SOFTWARE DEVELOPMENT KITS AND ALL RIGHTS NOT EXPRESSLY GRANTED ARE
RESERVED BY FUTURE CORPORATION AND ITS SUPPLIERS;
2.2.1 COPYRIGHT:
THE SOFTWARE AND ITS INTERFACE (INCLUDING BUT NOT LIMITED
TO CONTENT FILES, CURSORS, ICONS, IMAGES, MODULE NAMES, MARKS AND TRADEMARKS) IS
PROTECTED BY LAW, INCLUDING BUT NOT LIMITED TO THE COPYRIGHT LAWS OF AUSTRALIA,
CANADA, INDIA, MEMBER COUNTRIES OF THE EUROPEAN UNION, NEW ZEALAND, THE UNITED
KINGDOM, THE UNITED STATES AND OTHER COUNTRIES, AND BY INTERNATIONAL TREATY
PROVISIONS. EXCEPT AS EXPRESSLY STATED HEREIN, THIS AGREEMENT DOES NOT GRANT YOU
ANY COPYRIGHT, DESIGN, OR TRADEMARK RIGHTS IN THE SOFTWARE, ITS COMPONENTS, THE CONTENT FILES OR
SOFTWARE DEVELOPMENT KITS AND ALL RIGHTS NOT EXPRESSLY GRANTED HEREIN ARE
RESERVED BY FUTURE CORPORATION AND/OR ITS SUPPLIERS;
2.3 SOFTWARE PROTECTION MEASURES (ACTIVATION/REGISTRATION):
You hereby acknowledge that the Software may require
Activation and/or Registration and/or the presence of a Hardware Security
Device in order for it to become fully functional (referred collectively herein
as “Software Protection Measures”) and except as expressly limited by
applicable law, you agree with
Future Corporation, its
Affiliates, and/or its Authorized Dealers that: (i) if the Software requires mandatory Activation, your
License and ability to use the Software is contingent upon your having access to
the Internet and successfully completing
the activation process and providing Future Corporation with accurate
information as required by this process; and/or, (ii) if the Software requires
mandatory Registration, your License and ability to use the Software is
contingent
your having access to
the Internet and upon you successfully completing the registration process and
providing Future Corporation with accurate information as required by this
process; and/or, (iii) if the Software requires a Hardware Security Device to
enable certain functionality, your License and ability to use the Software is
contingent upon the continuous presence of this hardware security device in
your computer as described in the Software’s documentation (typically through
its Parallel, Serial or USB communications port). You further agree with Future
Corporation to make such communications port available on your computer,
install and configure it for the hardware device at your own cost with any
accidental, intentional or consequential damage or loss to the hardware device
and/or your computer and any other device through its use is assumed by you and
you agree to indemnify, hold harmless and defend Future Corporation from and
against any loss, damage, claims or lawsuits, including legal fees (on an attorney/solicitor and own client basis) that arise or result from such use; and, (iv)
you acknowledge and agree that Future Corporation,
its Affiliates, and/or its Authorized
Dealers will
require your computer to communicate with it and/or a third party via the
Internet or other telecommunications process to confirm and/or verify the accuracy and/or authenticity of the
Activation,
Registration process and/or
Hardware Security Device; and, (v) Future
Corporation may provide you with product and marketing information regarding
the Software and other Future Corporation, and Future Corporation third party
marketing partners’ products and services while you are using the Software; and
(vi) you hereby
acknowledge and agree that
it is your sole responsibility to at all times keep your Customer and/or Product
Serial Number(s) and/or any other similar or related number(s) safe from partial
or complete loss, and/or unauthorised use or misuse by another or third party
and that Future
Corporation,
its Affiliates, and/or its Authorized
Dealers shall not be obliged or held responsible for maintaining and/or
recording such numbers on your, another or third party's behalf or liable for
their complete or partial loss howsoever caused;
2.3.1 LICENSE ACCESS AND VALIDATION:
You hereby acknowledge and consent to Future Corporation:
(i) monitoring your use of the Software; and, (ii)
authenticating and periodically relicensing and/or verifying your licensing rights in the software
(referred collectively herein as “Validation”); and, (iii) collecting,
transmitting, using, and sharing with Future Corporation’s third party
marketing partners, data relating to you and your use of the Software for
advertising, marketing, operational and other purposes; and, (iv) accessing,
utilizing and altering the existing functionality, including any default
settings, of the computer system on which you use the Software; and, (v)
receiving messages from Future Corporation from within the Software and its
third party marketing partners; and, (vi) you agree to
be responsible for your Internet service provider fees, telecommunications and all
other charges that may apply as a result of the Software undertaking the
abovementioned License Validation and communications as is necessary from time
to time. If, for any reason, you fail to activate or insert and
maintain the presence of the hardware security device or register the Software
which requires mandatory registration within the period of time specified in the Software and/or its
documentation, you will be unable to use the Software and your License to use the
software shall be suspended (at your cost) until such time as you complete the
activation, relicensing or related process or insert, install and configure the hardware security
device and/or complete the registration process;
2.3.2 MANDATORY RELICENSING: YOU HEREBY ACKNOWLEDGE AND AGREE WITH FUTURE CORPORATION, ITS AFFILIATES, AND/OR
ITS AUTHORIZED DEALERS THAT THE SOFTWARE WILL CEASE TO FUNCTION UNRESTRICTED
(LICENSED) UNLESS YOU PERIODICALLY RELICENSE THE SOFTWARE AS SET OUT AND
REQUIRED UNDER (I) THIS LICENSE, AND/OR (II) THE LICENSE MANAGEMENT REGIME, AND/OR
(III) ACCORDING TO THE LICENSE
TYPE AS SET FORTH IN THE SOFTWARE'S DOCUMENTATION AND/OR MATERIALS. YOU FURTHER AGREE WITH FUTURE CORPORATION, ITS AFFILIATES, AND/OR ITS
AUTHORIZED DEALERS THAT IT IS YOUR SOLE RESPONSIBILITY AND SHALL BE ENTIRELY AT
YOUR OWN COST TO COMPLETE THE SOFTWARE LICENSE RENEWAL ON YOUR LICENSED COMPUTER(S) AND THAT NEITHER FUTURE CORPORATION, ITS AFFILIATES, AND/OR ITS
AUTHORIZED DEALERS SHALL BE HELD (I) LIABLE, OR (II) RESPONSIBLE, AND/OR (III)
DEEMED IN DEFAULT OF THIS AGREEMENT BY YOU, ANOTHER OR THIRD PARTY FOR ANY
FAILURE OR DELAY BY YOU TO RENEW YOUR SOFTWARE LICENSE OR ANY COMPLETE OR
PARTIAL LOSS OF ANY NUMBERS OR HARDWARE DEVICES REQUIRED TO COMPLETE THIS
PROCESS;
2.3.2.1 MANDATORY INTERNET ACCESS:
PURSUANT TO SECTION 2.3 ABOVE AND WHERE THE SOFTWARE REQUIRES ACTIVATION AND
EITHER DIRECT OR INDIRECT INTERNET ACCESS TO BECOME FULLY FUNCTIONAL YOU
HEREBY ACKNOWLEDGE AND AGREE WITH FUTURE CORPORATION THAT YOU SHALL HAVE,
PROCURE AND/OR OTHERWISE AND HOWSOEVER OBTAIN INTERNET ACCESS IN ORDER TO
FULFILL
YOUR OBLIGATIONS UNDER THE TERMS OF THIS LICENSE AGREEMENT TO PROPERLY COMPLETE
THE ACTIVATION PROCESS AND YOU FURTHER AGREE THAT YOU SHALL PROVIDE THE MINIMUM
INFORMATION AS IS REQUIRED BY THE ACTIVATION PROCESS INCLUDING BUT NOT LIMITED
TO A VALID EMAIL ADDRESS;
2.3.2.2 INTERRUPTION OF ONLINE AND/OR TELECOMMUNICATIONS SERVICES:
NEITHER FUTURE CORPORATION, ITS
AFFILIATES, AND/OR ITS AUTHORIZED DEALERS SHALL BE
HELD (I) LIABLE, OR (II) RESPONSIBLE, (III) AND/OR DEEMED IN DEFAULT OF THIS AGREEMENT
BY YOU, ANOTHER OR THIRD PARTY FOR ANY FAILURE OR DELAY OR
INTERRUPTION IN THE ONLINE SERVICES OR ANY FAILURE OF ANY HARDWARE DEVICES, EQUIPMENT, SOFTWARE OR
TELECOMMUNICATIONS RESULTING FROM ANY CAUSE OR CIRCUMSTANCE BEYOND THE
REASONABLE CONTROL OF FUTURE CORPORATION, ITS AFFILIATES, AND/OR ITS
AUTHORIZED DEALERS;
2.3.3 PRIVACY AND DATA COLLECTION:
You hereby acknowledge and
agree to allow Future
Corporation, its Affiliates, and/or its Authorized Dealers to store and use
your contact information, including names, telephone numbers, and email
addresses, anywhere they do business. Such information will be processed and
used in connection with your License and our business relationship, and may be
provided to Future Corporation’s Affiliates, Contractors, Partners, Suppliers,
and/or its Authorized Dealers for uses consistent with their collective
business activities, including communicating with you;
2.3.4 NO CIRCUMVENTION:
YOU HEREBY ACKNOWLEDGE AND AGREE WITH FUTURE CORPORATION,
ITS AFFILIATES, ITS SUPPLIERS AND/OR ITS AUTHORIZED DEALERS THAT ANY ATTEMPT
(SUCCESSFUL OR UNSUCCESSFUL) BY
YOU, OR A THIRD PARTY AT YOUR DIRECTION OR REQUEST, TO CIRCUMVENT OR ACTUAL CIRCUMVENTION OF: (I) THE ACTIVATION PROCESS AND/OR
ITS UNDERLYING AND SECRET TECHNOLOGY; (II) THE HARDWARE SECURITY DEVICE AND/OR
ITS UNDERLYING AND SECRET TECHNOLOGY; OR (III) REGISTRATION PROCESS AND/OR ITS
UNDERLYING AND SECRET TECHNOLOGY; OR (IV) OTHER MECHANISM AND/OR PROTECTION
TECHNOLOGY CONTAINED WITHIN THE SOFTWARE, OR (V) AN
ACTUAL DENIAL OR ATTEMPT AT A DENIAL OF SERVICE AGAINST ANY FUTURE CORPORATION SERVERS OR OFF-SITE SERVERS, OR (VI) MANDATORY LICENSE VALIDATION AND/OR VERIFICATION
ON A COMPUTER OR COMPUTERS IN YOUR POSSESSION OR CONTROL FOR THE SOFTWARE OR
RELATED FUTURE CORPORATION PRODUCT IS A VIOLATION AND MATERIAL BREACH OF THIS
LICENSE AND MAY RESULT IN THE AUTOMATIC AND IMMEDIATE TERMINATION OF YOUR
LICENSE TO USE THE SOFTWARE;
2.3.4.1 FUTURE CORPORATION REMEDY FOR BREACH:
IN THE EVENT THAT
FUTURE
CORPORATION, ITS AFFILIATES AND/OR ITS SUPPLIERS HAS
EVIDENCE OR DEEMS
(IN ITS ABSOLUTE DISCRETION) THAT YOU HAVE CIRCUMVENTED OR ATTEMPTED TO CIRCUMVENT THE SOFTWARE PROTECTION
MEASURES SET FORTH IN SECTION 2.3.4 ABOVE AND TO THE EXTENT PERMITTED BY
APPLICABLE LAW, FUTURE CORPORATION, ITS AFFILIATES AND/OR ITS SUPPLIERS SHALL
BE ENTITLED TO TAKE SUCH ACTION AS THEY SEE FIT,
INCLUDING ISSUING YOU A WRITTEN CEASE AND DESIST DEMAND, IMMEDIATELY BLOCKING
ACCESS TO ANY OR ALL ONLINE SERVICES, REMOTELY DEACTIVATING OR DEREGISTERING
THE SOFTWARE, AND/OR REFUSAL TO PERMIT FURTHER ACTIVATIONS OR REGISTRATIONS AND
TEMPORARILY OR PERMANENTLY TERMINATING YOUR ACCOUNT WITH FUTURE CORPORATION, ITS
AFFILIATES AND/OR ITS AUTHORIZED DEALERS, DISCLOSING
SUCH INFORMATION (INCLUDING YOUR IDENTITY) TO RELEVANT AUTHORITIES AND/OR ANY
PERSON OR ENTITY THAT HAS THE LEGAL RIGHT TO SUCH INFORMATION, AND/OR TAKING
LEGAL ACTION AGAINST YOU TO RECOVER ANY
AND ALL LOSSES INCURRED BY FUTURE CORPORATION
INCLUDING BUT NOT LIMITED TO APPLYING TO A COURT OF
COMPETENT JURISDICTION FOR URGENT INJUNCTIVE RELIEF WITHOUT THE NEED FOR
POSTING A BOND;
2.4 TRANSFER OF LICENSE
2.4.1 NO ASSIGNMENT OF LICENSE: You may not lease, rent, sell, sublicense, assign or
transfer your rights in this Software license, or authorize any part or component of the
Software to be copied onto another individual’s or legal entity’s computer
except as expressly permitted herein;
2.4.2 LICENSE TRANSFER TO THIRD PARTIES: You may, except for those restrictions in section 2.4.3
below, permanently transfer all your rights under this License Agreement to another
or third
party provided that: (a) you also transfer (i) this
License Agreement; (ii) the Software’s Serial or Product or Customer number(s),
where applicable the Software’s media including but not limited to discs and
product documentation provided by Future Corporation, its Affiliates, and/or
its Authorized Dealers, and all other software or hardware bundled, packaged,
downloaded or preinstalled with the Software, including all copies,
conversions, patches, service packs, upgrades, updates and prior versions; and
(iii) any and all Volume Licenses obtained with, a part of or pertaining to this
License; (b)
you retain no copies, conversions, patches, service packs, upgrades, updates
and prior versions, including backups and copies stored on a computer in your
possession or control; and (c) the receiving party acknowledges and accepts the
terms and conditions of this License Agreement and any other terms and
conditions under which you purchased a valid License to or for the Software;
2.4.3 THIRD PARTY RESTRICTIONS: Notwithstanding section 2.4.2 above, you may not transfer
Academic, Education, Student and Teacher (Education Software), Beta,
Pre-Release, or Not For Resale (Beta Software), individual Volume Licenses
(unless all such Volume Licenses are wholly transferred pursuant to section
2.4.2 above), Demonstration, Evaluation, Free-Trial,
or Try-Out (Demonstration Software) copies or versions of the Software to another
or
third party;
2.4.4 LICENSE TRANSFER BETWEEN COMPUTERS: As long as you deactivate or deregister or entirely remove the copy
of the Software from the computer the Software is licensed to, as provided for
in the Software, Future Corporation grants you permission to transfer this
License to another computer or device that is in your possession or control.
HOWEVER, YOU HEREBY ACKNOWLEDGE AND AGREE THAT IF FUTURE CORPORATION, OR THE
SOFTWARE, OR A THIRD PARTY UNDER SECTIONS 2.3, 2.3.1 AND 2.3.4 (ABOVE) DEEMS
THAT AN UNAUTHORIZED COPY OR COPIES OF FUTURE CORPORATION SOFTWARE ON A
COMPUTER OR COMPUTERS IS IN YOUR POSSESSION OR CONTROL AND YOU FAIL TO
DEACTIVATE OR DEREGISTER OR ENTIRELY REMOVE THE UNAUTHORIZED COPY OR COPIES OF
THE SOFTWARE AS DIRECTED BY FUTURE CORPORATION OR FAIL TO PROVIDE A REASONABLE
EXPLANATION WITH SUFFICIENT EVIDENCE AS TO THE PARTICULAR CIRCUMSTANCES WITHIN
FOURTEEN (14) DAYS OF SUCH NOTICE, WHICH YOU FURTHER AGREE IS AT FUTURE
CORPORATION’S ABSOLUTE DISCRETION TO EITHER (I) ACCEPT; OR (II) REJECT, YOU
WILL BE UNABLE TO USE THE SOFTWARE AND YOUR LICENSE SHALL BE SUSPENDED UNTIL
SUCH TIME AS YOU DEACTIVATE OR DEREGISTER OR REMOVE THE UNAUTHORIZED COPY OR COPIES
OF THE SOFTWARE TO FUTURE CORPORATION’S SATISFACTION, THE DETERMINATION OF
WHICH, YOU AGREE IS AT FUTURE CORPORATION’S ABSOLUTE DISCRETION. FURTHER, YOU
AGREE WITH FUTURE CORPORATION THAT (I) ANY SPECIAL, CONSEQUENTIAL, ECONOMIC,
INCIDENTAL, OR INDIRECT DAMAGES; OR (II) LOST PROFITS, BUSINESS, REVENUE,
GOODWILL, OR ANTICIPATED SAVINGS; OR (III) CLAIMS OR LAWSUITS, INCLUDING
ATTORNEY’S/SOLICITOR’S FEES NOTWITHSTANDING ANY REASONABLE AND MISTAKEN BELIEF
OF FUTURE CORPORATION (WHICH SHALL NOT OF ITSELF GIVE RISE TO ANY COUNTER-CLAIM
BY YOU OR THIRD-PARTY), THAT ARISE OR RESULT FROM YOUR FAILING TO DEACTIVATE OR
DEREGISTER OR ENTIRELY REMOVE AN UNAUTHORIZED OR ILLEGAL COPY OF FUTURE
CORPORATION SOFTWARE ON A COMPUTER OR COMPUTERS IN YOUR POSSESSION OR CONTROL,
SO FAR AND TO THE EXTENT APPLICABLE LAW ALLOWS, IS SOLELY ASSUMED BY YOU;
2.4.4.1 FUTURE CORPORATION REMEDY FOR BREACH:
IN THE EVENT THAT FUTURE
CORPORATION, ITS AFFILIATES AND/OR ITS SUPPLIERS HAS
EVIDENCE OR DEEMS (IN ITS ABSOLUTE DISCRETION) THAT YOU HAVE
AN UNAUTHORIZED OR ILLEGAL COPY OF FUTURE CORPORATION
SOFTWARE ON A COMPUTER OR COMPUTERS IN YOUR POSSESSION OR CONTROL AS SET FORTH IN SECTION 2.4.4 ABOVE
AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, FUTURE CORPORATION, ITS
AFFILIATES AND/OR ITS SUPPLIERS SHALL BE ENTITLED TO
TAKE SUCH ACTION AS THEY SEE FIT, INCLUDING ISSUING YOU A WRITTEN CEASE AND
DESIST DEMAND, IMMEDIATELY BLOCKING ACCESS TO ANY OR ALL ONLINE SERVICES,
REMOTELY DEACTIVATING OR DEREGISTERING THE SOFTWARE, AND/OR REFUSAL TO PERMIT
FURTHER ACTIVATIONS OR REGISTRATIONS AND TEMPORARILY OR PERMANENTLY TERMINATING
YOUR ACCOUNT WITH FUTURE CORPORATION, ITS AFFILIATES AND/OR ITS
AUTHORIZED DEALERS, DISCLOSING SUCH INFORMATION
(INCLUDING YOUR IDENTITY) TO RELEVANT AUTHORITIES AND/OR ANY PERSON OR ENTITY
THAT HAS THE LEGAL RIGHT TO SUCH INFORMATION, AND/OR TAKING LEGAL ACTION AGAINST
YOU TO RECOVER ANY AND ALL LOSSES INCURRED BY FUTURE CORPORATION INCLUDING BUT
NOT LIMITED TO APPLYING TO A COURT OF COMPETENT JURISDICTION FOR URGENT
INJUNCTIVE RELIEF WITHOUT THE NEED FOR POSTING A BOND;
2.4.5 NOTICE OF TRANSFER:
Pursuant to section 2.4.2 above and prior to a transfer to
a third party you acknowledge and agree with Future Corporation that Future
Corporation requires you and the receiving party to confirm in writing your
compliance with this License Agreement and any and all applicable addenda
thereto, and to provide Future Corporation with the address and contact details
of the receiving party, and register as an end-user of the Software using the
form provided with the Software and/or at Future Corporation’s Internet site
http://www.iifuture.com/en/support_profile.html;
2.4.5.1 FAILURE TO NOTIFY:
Pursuant to section 2.4.5 above where the licensee
fails for any reason to properly notify Future Corporation of a transfer of the
License Agreement to a third party or that party refuses to accept the terms and
conditions of the License Agreement, that third party shall have no use rights
under the License Agreement until the registered licensee fulfils their
obligation under section 2.4.5 above, notwithstanding any payment or other
consideration that third party has made to the registered licensee, their
liquidator or receiver;
2.4.6 LOST OR STOLEN: You acknowledge and agree that in the event the Software, its
media, the (i) serial, (ii) customer or product number, or (iii) the hardware security device and/or its documentation is
misplaced, stolen, damaged, destroyed or otherwise lost, Future Corporation,
its Affiliates, and/or its Authorized Dealers
shall be under no obligation to you, legal or otherwise, to replace the
Software, its media or provide any replacement activation or registration
numbers or hardware security device at any discounted rate or amount, or in
any way make good your loss;
2.5 OUTPUT AND SAMPLE FILES
2.5.1 SAMPLE FILES:
Unless stated otherwise in the Software’s documentation, which may include
specific rights and restrictions with respect to such materials, you may
display, modify, reproduce and distribute any of the Sample Files. However,
unless you substantially modify the Sample Files you may not advertise,
distribute, pass-off or sell the Sample Files as your own work or works;
2.5.2 OUTPUT FILES:
Unless permitted by applicable law Output Files including any third party File
Formats (producible from the Software) and Fonts regardless of type or format
(producible from the Software) shall not be used in the production of
defamatory, fraudulent, lewd, libellous, obscene or pornographic material or
any material that infringes upon any third party intellectual property rights
or in any otherwise unlawful manner. See important and further terms and
conditions that affect this paragraph in section 2.5.5 below;
2.5.3 USE OF COPYRIGHT AND TRADEMARKS: Unless it is an original work produced by you or you are permitted by applicable law
to import into the Software and/or design and/or create using the Software you
may not claim, disseminate and/or benefit from any intellectual property rights including but not limited to any copyright and/or trademark rights in the Output Files or
derivative works thereof including any third party File Formats (producible
from the Software) and Fonts regardless of type or format (producible from the
Software) without the express permission from the lawful owner of such
copyright material(s) or trademark(s) or otherwise intellectual property owner(s). See important and further terms and
conditions that affect this paragraph in section 2.5.5 below;
2.5.4 SECURITY-1: INFORMATION RIGHTS AND USE MANAGEMENT:
The Software may contain a feature known as Security-1 or S1 that
allows you to install the software onto highly secured and/or secret networks,
password protect the software from unauthorised access or use and to create
content that cannot be printed, copied, sent to, used, or otherwise modified by
another or third party without your permission and that may be encrypted using
strong encryption. YOU HEREBY REPRESENT AND WARRANT TO FUTURE CORPORATION THAT
YOU ARE LAWFULLY PERMITTED TO POSSESS AND USE SECURITY-1 WITH SUCH ENCRYPTION
CAPABILITIES WITHIN YOUR JURISDICTION AND WARRANT TO INDEMNIFY FUTURE
CORPORATION AGAINST ANY AND ALL CLAIMS OR DEMANDS RESULTING FROM SUCH USE,
POSSESSION OF, OR APPLICATION OF SECURITY-1 OR S1 WHATSOEVER, AS FURTHER SET
FORTH IN SECTION 2.5.5 BELOW;
2.5.5 INDEMNIFICATION: PURSUANT TO SECTIONS 2.5.2, 2.5.3 AND
2.5.4 ABOVE YOU AGREE TO INDEMNIFY, HOLD HARMLESS AND DEFEND FUTURE CORPORATION
AND OR ITS SUPPLIERS FROM AND AGAINST ANY LOSS, DAMAGE, CLAIMS OR LAWSUITS,
INCLUDING LEGAL FEES (ON AN ATTORNEY’S/SOLICITOR’S AND OWN CLIENT BASIS), THAT ARISE OR RESULT FROM THE
APPLICATION, USE OR DISTRIBUTION OF YOUR OUTPUT FILES INCLUDING ANY THIRD PARTY
FILE FORMATS (PRODUCIBLE FROM THE SOFTWARE), FONTS
REGARDLESS OF TYPE (PRODUCIBLE FROM THE SOFTWARE) AND THE POSSESSION,
IMPLEMENTATION AND USE OF SECURITY-1 OR S1;
2.5.6 IMPORT AND EXPORT RESTRICTIONS:
Pursuant to this Agreement including but not limited to any
Output files or other materials created from or in conjunction with the Software you
hereby acknowledge and agree with
Future
Corporation, its Affiliates, and/or its Authorized Dealers to comply with all applicable export and import and/or Customs laws
and regulations applicable to or within your jurisdiction;
2.5.7 WARNING: (1) FUTURE CORPORATION SOFTWARE AND GOODS ARE NOT
DESIGNED WITH COMPONENTS AND TESTING FOR A LEVEL OF RELIABILITY
SUITABLE FOR USE IN OR IN CONNECTION WITH NUCLEAR OR
SCIENTIFIC OR LIKE FACILITIES THAT INVOLVE HIGH-RISK AND/OR
DANGEROUS ACTIVITIES, SURGICAL IMPLANTS OR AS CRITICAL
COMPONENTS IN ANY LIFE SUPPORT SYSTEMS WHOSE FAILURE TO PERFORM CAN
REASONABLY BE EXPECTED TO CAUSE SIGNIFICANT INJURY TO A PERSON OR
PERSONS AND/OR TO A POPULATION; AND (2) IN ANY APPLICATION, INCLUDING
THE ABOVE, RELIABILITY OF OPERATION OF FUTURE CORPORATION SOFTWARE CAN BE IMPAIRED BY ADVERSE FACTORS,
INCLUDING BUT NOT LIMITED TO FLUCTUATIONS IN ELECTRICAL POWER
SUPPLY, COMPUTER HARDWARE MALFUNCTIONS, COMPUTER OPERATING SYSTEM
SOFTWARE FITNESS, FITNESS OF COMPILERS AND DEVELOPMENT SOFTWARE USED
TO DEVELOP AN APPLICATION, INSTALLATION ERRORS, SOFTWARE AND
HARDWARE COMPATIBILITY PROBLEMS, MALFUNCTIONS OR FAILURES OF
ELECTRONIC MONITORING OR CONTROL DEVICES, TRANSIENT FAILURES OF
ELECTRONIC SYSTEMS (HARDWARE AND/OR SOFTWARE), UNANTICIPATED USES OR
MISUSES, OR ERRORS ON THE PART OF THE USER OR APPLICATIONS DESIGNER
(ADVERSE FACTORS SUCH AS THESE ARE HEREAFTER COLLECTIVELY TERMED
"SYSTEM FAILURES"). ANY APPLICATION WHERE A SYSTEM FAILURE WOULD
CREATE A RISK OF HARM TO PROPERTY OR PERSONS (INCLUDING THE RISK OF
BODILY INJURY AND DEATH) SHOULD NOT BE RELIANT SOLELY UPON ONE FORM
OF ELECTRONIC SYSTEM DUE TO THE RISK OF SYSTEM FAILURE. TO AVOID
DAMAGE, INJURY, OR DEATH, THE USER OR APPLICATION DESIGNER MUST TAKE
ALL REASONABLE STEPS TO PROTECT AGAINST SYSTEM FAILURES,
INCLUDING BUT NOT LIMITED TO BACK-UP OR SHUT DOWN MECHANISMS.
BECAUSE EACH END-USER SYSTEM IS CUSTOMIZED AND DIFFERS FROM FUTURE
CORPORATION’S TESTING PLATFORMS AND BECAUSE A USER OR APPLICATION
DESIGNER MAY USE FUTURE CORPORATION SOFTWARE AND/OR GOODS IN
COMBINATION WITH OTHER PRODUCTS IN A MANNER NOT EVALUATED OR
CONTEMPLATED BY FUTURE CORPORATION, THE USER OR APPLICATION DESIGNER
IS ULTIMATELY RESPONSIBLE FOR VERIFYING AND VALIDATING THE
SUITABILITY OF FUTURE CORPORATION SOFTWARE AND/OR GOODS WHENEVER
SUCH SOFTWARE AND/OR GOODS ARE INCORPORATED IN A SYSTEM OR
APPLICATION, INCLUDING, WITHOUT LIMITATION, THE APPROPRIATE DESIGN,
PROCESS AND SAFETY LEVEL OF SUCH SYSTEM OR APPLICATION;
2.6 NEW SOFTWARE: UPDATES
AND UPGRADES
2.6.1 UPDATES AND UPGRADES: You
acknowledge that Future Corporation may, but is under no obligation to, from
time to time provide you with additional features, functions, patches, service
packs, updates or other similar files related to the Software (referred
collectively herein as “Updates”). In addition to Updates you acknowledge that
Future Corporation may, but is under no obligation to, produce additional
plug-ins, snap-ins, and/or conversions, or other similar files related to the
Software available for you in the form of a version upgrade to purchase at your
discretion, (referred collectively herein as “Upgrades”). You acknowledge and
agree that Future Corporation need not provide you with advance notice of any
such Updates and/or Upgrades;
2.6.2 MANDATORY PREREQUISITE: To obtain and
use an Update or Upgrade for the Software, you must first be Licensed to use
the Software that is eligible for an Update or Upgrade and you acknowledge and
agree with Future Corporation this License Agreement takes the place of any
prior License Agreement for the Software you obtained the Update or Upgrade for
which shall not be revoked or set back by removing or uninstalling such Update
or Upgrade;
2.6.3 LIVE UPDATE AND SERVICE PACKS:
Pursuant to sections 2.6.1 and 2.6.2 above Future Corporation provides Updates
as an Internet-based service commonly referred to as “Live Update” or a
“Service Pack” for use with the Software. Except as otherwise noted in
materials accompanying these services and in the Software, Future Corporation
may modify the Live Update and/or Service Pack process/technology and/or change
or cancel these services at any time Future Corporation sees fit without
notice. By using Live Update and/or Service Packs to the extent allowed by
applicable law, you consent to the transmission of this information and you
agree: (i) to be responsible for your Internet
service provider fees, telecommunications and all other charges that may apply
as a result of using Live Update and/or Service Packs; and (ii) all risk of
damage to the Software during transmission and download is assumed by you. If
you do not agree with the above terms and conditions, do not use Live Update.
Instead contact Future Corporation, its Affiliate, and/or its Authorized Dealer
in your region to order a disc based version of Live Update with any associated
costs thereof to be borne by you;
2.6.4 USE OF UPDATES AND UPGRADES: After you install Updates or Upgrades, you may not
continue to use any previous version of the Software you applied such Updates
or Upgrades to and acknowledge and agree with Future Corporation that (i) Updates or Upgrades and all previous versions are
installed on the same computer unless properly transferred pursuant to section
2.4.4 above; and (ii) the previous versions or copies
thereof are not assignable or transferable to another or third party; and (iii)
you acknowledge that any obligation Future Corporation may have to support the
previous version(s) may cease upon the availability of Updates or installation
of Upgrades; and (iv) No further use of the previous version(s) is permitted
after installation of Updates or Upgrades; and (v) Future Corporation may
reissue you with another Product Serial Number and/or Hardware device and
deactivate your existing Product Serial Number; and (vi) Updates and Upgrades may be
licensed to you by Future Corporation with additional terms and conditions in
addenda to this License Agreement;
2.6.4.1 RESALE OF PREVIOUS OR EARLIER SOFTWARE LICENSE(S): Pursuant to
section 2.6.4 above and to avoid any doubt you hereby agree and acknowledge with
Future Corporation that you are not permitted to and shall not sell, relicense,
sublicense, assign or transfer any previous or earlier software license that has been subsequently
upgraded to a higher version by you;
2.7 RESTRICTIONS
2.7.1 NOTICES:
You may not copy and/or make copies of the Software except as set forth in
section 2.1.5 above. Any permitted copy of the Software that you make must
contain the same copyright and other proprietary Future Corporation notices
that appear on or in the Software;
2.7.2 NO MODIFICATIONS: YOU MAY NOT
(I) MODIFY, ADAPT OR TRANSLATE THE SOFTWARE, (II) DECOMPILE, DISASSEMBLE,
REVERSE ENGINEER OR OTHERWISE ATTEMPT TO DISCOVER THE SOURCE CODE OF THE
SOFTWARE, (III) MODIFY THE SOFTWARE OR MERGE ALL OR ANY PART OF THE SOFTWARE
WITH ANOTHER PRODUCT OR PROGRAM, (IV) IF APPLICABLE, ATTEMPT TO, OR CIRCUMVENT THE ACTIVATION AND/OR THE
REGISTRATION MECHANISMS, AND/OR THE HARDWARE SECURITY DEVICE,
EXCEPT AS PERMITTED IN SECTIONS 7.5.1 THROUGH 7.5.12 AND
TO THE
EXTENT YOU MAY BE EXPRESSLY PERMITTED UNDER APPLICABLE LAW TO DECOMPILE ONLY IN
ORDER TO ACHIEVE INTEROPERABILITY WITH THE SOFTWARE;
2.7.3 NO UNBUNDLING: The Software may include various applications, components,
modules, other software titles, plug-ins, snap-ins, and utilities and may be
provided to you on multiple and various media or in multiple copies. Notwithstanding
this, the Software is produced and intended to be used as a single product on a
single computer or up to your Permitted Number of compatible Computers under a
valid Volume License Agreement with Future Corporation, its Affiliates, and/or
its Authorized Dealers. You are not required to use or install all parts of the
Software, however, you may not unbundle any part of the Software for use on
different computers. You may not unbundle and/or repackage the Software for
distribution, transfer or resale to another or third party;
2.8 LIMITED WARRANTY:
FUTURE CORPORATION WARRANTS TO THE INDIVIDUAL OR LEGAL
ENTITY THAT FIRST PURCHASES A LICENSE FOR THE SOFTWARE FOR USE PURSUANT TO THE
TERMS OF THIS LICENSE AGREEMENT THAT THE SOFTWARE WILL PERFORM SUBSTANTIALLY IN ACCORDANCE
WITH THE SOFTWARE’S PUBLISHED FUNCTIONALITY AND
WILL BE
FREE FROM DEFECT IN MATERIALS AND WORKMANSHIP FOR
NINETY (90) DAYS FROM THE DATE OF PURCHASE ONLY WHEN USED WITH THE RECOMMENDED
OPERATING SYSTEM AND HARDWARE CONFIGURATION FOR THE SOFTWARE AS SET OUT IN THE
SOFTWARE’S DOCUMENTATION AND/OR AT FUTURE CORPORATION’S INTERNET SITE;
2.8.1 EXCLUSIONS FROM WARRANTY:
THIS LIMITED WARRANTY DOES NOT APPLY TO: (1) BETA, DEMONSTRATION, EVALUATION,
FREE-TRIAL, PRE-RELEASE, PRODUCT SAMPLER, TRY-OUT, SDK, USED (SECOND-HAND), OR
NOT FOR RESALE VERSIONS OF THE SOFTWARE OR FUTURE CORPORATION ONLINE SERVICES,
FUTURE CORPORATION TECHNICAL SUPPORT OR HELP, FUTURE CORPORATION LIVE UPDATE,
FUTURE CORPORATION INTERNET SITES, THE SOFTWARE’S INTERACTIVE AGENTS OR ANY
OTHER RELATED FUTURE CORPORATION PRODUCT OR SERVICE; AND/OR (2)
COMPATIBILITY, USE OF
OR WITH ANY THIRD PARTY SOFTWARE OR HARDWARE INCLUDING BUT NOT LIMITED TO (I)
SOFTWARE FILES AND/OR FORMATS, OR; (II) PLOTTERS, VINYL CUTTERS, PRINTERS,
LARGE/WIDE FORMAT PRINTERS OR ANY OTHER ELECTRONIC DEVICE; AND/OR (3)
PROBLEMS CAUSED BY: (I) YOUR ACTS OR OMISSIONS (FAILURES TO
ACT); AND/OR (II) THE ACTS OF OTHERS (INCLUDING THIRD PARTIES); AND/OR (III)
MALICIOUS SOFTWARE (INCLUDING BUT NOT LIMITED TO MALWARE, TROJANS, VIRUSES OR
WORMS); AND/OR (IV) INCORRECTLY OR IMPROPERLY CONFIGURED THIRD PARTY SOFTWARE
(INCLUDING BUT NOT LIMITED TO THE OPERATING SYSTEM, ANTIVIRUS AND/OR ANY
INTERNAL OR EXTERNAL NETWORK); AND/OR (V) EVENTS BEYOND FUTURE CORPORATION’S
REASONABLE CONTROL. FURTHER YOU HEREBY ACKNOWLEDGE AND AGREE THAT
INSUBSTANTIAL OR MINOR
VARIATION OF PERFORMANCE FROM THE SOFTWARE’S PUBLISHED FUNCTIONALITY OR YOUR
INABILITY TO CORRECTLY USE THE SOFTWARE OR OPERATING SYSTEM (COMPUTER
ILLITERACY) DOES NOT ON ITS OWN ESTABLISH A WARRANTY RIGHT;
2.8.2 REMEDY FOR BREACH OF WARRANTY: FUTURE CORPORATION WILL REPAIR OR REPLACE THE SOFTWARE AT
NO CHARGE. IF FUTURE CORPORATION CANNOT REPAIR OR REPLACE IT, FUTURE
CORPORATION WILL REFUND THE AMOUNT SHOWN ON YOUR RECEIPT FOR THE SOFTWARE.
FUTURE CORPORATION WILL ALSO REPAIR OR REPLACE
PATCHES,
SERVICE PACKS, UPDATES, UPGRADES AND CONVERSION
SOFTWARE AT NO CHARGE. IF FUTURE CORPORATION CANNOT REPAIR OR REPLACE THEM, IT
WILL REFUND THE AMOUNT YOU PAID FOR THEM, IF ANY. YOU MUST UNINSTALL AND WHERE
APPLICABLE DEACTIVATE AND/OR DEREGISTER THE SOFTWARE AND RETURN ANY MEDIA AND
OTHER ASSOCIATED MATERIALS INCLUDING THE HARDWARE SECURITY DEVICE (IF
APPLICABLE) TO FUTURE CORPORATION WITH PROOF OF PURCHASE TO OBTAIN A REFUND.
THESE ARE YOUR ONLY REMEDIES FOR BREACH OF THE LIMITED WARRANTY;
2.8.3 CONSUMER RIGHTS NOT AFFECTED: YOU MAY HAVE ADDITIONAL CONSUMER RIGHTS UNDER YOUR
JURISDICTION, WHICH THIS AGREEMENT CANNOT CHANGE, SEE SECTION 8 FOR SPECIFIC
PROVISIONS RELATED TO OTHER JURISDICTIONS WHICH MAY BE APPLICABLE TO YOU;
2.8.4 WARRANTY PROCEDURES: ALL WARRANTY CLAIMS MUST BE MADE, ALONG WITH PROOF OF
PURCHASE, TO THE FUTURE CORPORATION CUSTOMER SUPPORT DEPARTMENT WITHIN THE
NINETY (90) DAY PERIOD. VISIT FUTURE CORPORATION FOR
MORE INFORMATION ABOUT WARRANTY CLAIMS AT:
http://www.iifuture.com/en/support.html;
2.9 DISCLAIMER:
THE FOREGOING LIMITED WARRANTY IS THE ONLY WARRANTY MADE
BY FUTURE CORPORATION, ITS AFFILIATES, ITS SUPPLIERS AND/OR ITS AUTHORIZED
DEALERS AND STATES THE SOLE AND EXCLUSIVE REMEDIES FOR
FUTURE CORPORATION, ITS AFFILIATES’, ITS SUPPLIERS’ AND/OR ITS AUTHORIZED DEALERS’ BREACH OF WARRANTY. EXCEPT
FOR THE FOREGOING LIMITED WARRANTY AND FOR ANY WARRANTY, CONDITION, REPRESENTATION
OR TERM TO THE EXTENT TO WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR
LIMITED BY LAW APPLICABLE TO YOU IN YOUR JURISDICTION, THE SOFTWARE IS PROVIDED
ON AN AS-IS BASIS, WITHOUT ANY OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS OR
TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, COURSE OF DEALING,
CUSTOM, EQUITY, USAGE, OR UNDER ANY THEORY OF LAW, OR OTHERWISE AS TO ANY MATTER, INCLUDING, BUT NOT
LIMITED TO PERFORMANCE, SECURITY, WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY
RIGHTS, INTEGRATION, QUIET ENJOYMENT, MERCHANTABLE QUALITY, SATISFACTORY
QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FUTURE
CORPORATION, ITS AFFILIATES, ITS SUPPLIERS AND/OR ITS AUTHORIZED DEALERS DO NOT
AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE
SOFTWARE. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE IS
ASSUMED BY YOU. WHERE ANY NON-EXCLUDABLE TERMS ARE IMPLIED INTO THIS LICENSE BY
OPERATION OF LAW, TO THE EXTENT PERMISSIBLE BY LAW, FUTURE CORPORATION LIMITS
ITS LIABILITY TO, AT ITS ABSOLUTE DISCRETION, THE REPAIR OR REPLACEMENT OF THE
GOODS, THE RE-SUPPLY OF EQUIVALENT GOODS, OR THE COST THEREOF. THIS DISCLAIMER
OF WARRANTY MAY NOT BE VALID IN SOME JURISDICTIONS, SEE SECTION 8 FOR SPECIFIC
PROVISIONS RELATED TO OTHER JURISDICTIONS WHICH MAY BE APPLICABLE TO YOU;
2.10 LIMITATION OF LIABILITY:
EXCEPT FOR THE EXCLUSIVE REMEDY SET FORTH ABOVE, IN NO
EVENT WILL FUTURE CORPORATION, ITS AFFILIATES, ITS SUPPLIERS AND/OR ITS
AUTHORIZED DEALERS BE LIABLE TO YOU FOR ANY LOSS, DAMAGES, CLAIMS OR COSTS
WHATSOEVER INCLUDING ANY SPECIAL, CONSEQUENTIAL, INDIRECT, ECONOMIC OR
INCIDENTAL DAMAGES, LOST TIME, LOST PROFITS OR LOST SAVINGS, ANY DAMAGES RESULTING
FROM BUSINESS INTERRUPTION, LOST DATA, OR TO BUSINESS AND/OR PERSONAL
REPUTATION, PERSONAL INJURY (INCLUDING DEATH) OR FAILURE TO MEET ANY DUTY OF
CARE, OR CLAIMS BY A THIRD PARTY ARISING FROM THIS AGREEMENT, EVEN IF FUTURE
CORPORATION, ITS AFFILIATES, ITS SUPPLIERS AND/OR AUTHORIZED DEALERS AND/OR A
FUTURE CORPORATION REPRESENTATIVE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
LOSS, DAMAGES, CLAIMS OR COSTS. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY
TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. FUTURE
CORPORATION’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES, ITS SUPPLIERS
AND/OR ITS AUTHORIZED DEALERS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL
BE LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF ANY. THIS LIMITATION WILL
APPLY EVEN IN THE EVENT OF A FUNDAMENTAL, MATERIAL OR SERIOUS BREACH OR A
BREACH OF THE FUNDAMENTAL OR MATERIAL TERMS OF THIS AGREEMENT. FUTURE
CORPORATION IS ACTING ON BEHALF OF ITS AFFILIATES, ITS SUPPLIERS AND/OR ITS
AUTHORIZED DEALERS FOR THE PURPOSE OF DISCLAIMING, EXCLUDING AND LIMITING OBLIGATIONS,
WARRANTIES AND LIABILITY WITH RESPECT TO THIS LICENSE ONLY AND FOR NO OTHER
PURPOSE OR RESPECT. THIS LIMITATION OF LIABILITY MAY NOT BE VALID IN SOME
JURISDICTIONS, SEE SECTION 8 FOR SPECIFIC PROVISIONS RELATED TO OTHER
JURISDICTIONS WHICH MAY BE APPLICABLE TO YOU;
2.11 LIMITED INDEMNITY AGAINST INFRINGEMENT
2.11.1
WITHIN AUSTRALIAN JURISDICTION: Excluding all content files Future Corporation
shall, at its own expense, defend any litigation resulting from
licensing of the Software to the extent that such litigation alleges
that the Software or any part thereof infringes any Australian
patent, copyright, or trademark, provided (i) that such claim does
not arise from the use of the Software in combination with equipment
or devices not manufactured by Future Corporation or from modification of
the Software; and (ii) such allegation is not frivolous, vexatious
and/or has doubtful or no legal merit; and (iii) further provided that
you notify Future
Corporation
by registered mail
within fourteen (14) days
upon your obtaining notice of such claim or impending
court hearing and cooperate fully with Future Corporation in preparing a
defence. If (i) you provide to Future Corporation the authority,
assistance, and information Future Corporation needs to defend or
settle such claim; and (ii) you have not intentionally, knowingly or
otherwise with constructive knowledge used or applied the Software
in any way to infringe another or third party's rights and/or
intellectual property; and (iii) you have not used the Software in
any way contrary to law; and (iv) you have not in any way acted in
bad faith and/or remained wilfully blind to any unlawful conduct or
behaviour pursuant to this section. Future Corporation will pay any final award of
damages in such suit and any reasonable expenses you incur at Future
Corporation’s written request, but Future Corporation shall not be
liable for a settlement made without its prior written consent. If
the Software is held by a court of competent jurisdiction to be infringing and the use thereof is
enjoined, Future Corporation shall, at its option and absolute
discretion, either: (i)
procure for you the right to use the Software; or (ii) replace
the Software with other Software which does not constitute infringement; or
(iii) remove the infringing Software and refund the payment(s) or
fees made thereupon by you. THE FOREGOING STATES YOUR SOLE REMEDY
FOR, AND FUTURE CORPORATION’S ENTIRE LIABILITY AND RESPONSIBILITY
FOR, INFRINGEMENT OF ANY PATENT, TRADEMARK, OR COPYRIGHT WITHIN
AUSTRALIAN JURISDICTION RELATING TO THE SOFTWARE PROVIDED HEREUNDER
TO YOU. THIS LIMITED INDEMNITY IS IN LIEU
OF ANY OTHER STATUTORY OR IMPLIED WARRANTY AGAINST INFRINGEMENT;
2.11.2 OUTSIDE AUSTRALIAN JURISDICTION:
Excluding all content files and while Future Corporation takes all reasonable steps to ensure that
its Software does not infringe any patent, copyright,
trademark or like Intellectual property outside Australian jurisdiction
(collectively in this section "Intellectual Property") Future Corporation cannot guarantee that
its Software does not infringe any Intellectual Property beyond its reasonable
knowledge and to the extent permitted by law you shall assume all
risk and liability when importing Future Corporation Software into
your jurisdiction and hereby warrant to Future Corporation that you
shall not import such Software in the knowledge (actual or
constructive) of any such infringement of any third party's
Intellectual Property and you acknowledge that such importation
shall be in material breach of this License. However, where Future Corporation Software
has been imported innocently into your jurisdiction, by you or the
Authorized Dealer that you purchased a License from, that on sound
legal theory (corroborated by at least two independent legal
practitioners of that jurisdiction)
procured at your cost, that in their professional
opinion may or does infringe another
or third party's
Intellectual Property and you advise Future Corporation
by registered mail
within
thirty (30) days of becoming aware of such potential infringement and provided
(i) you have not intentionally, knowingly or otherwise with constructive knowledge used or applied the Software in any way to
infringe another or third party's rights and/or Intellectual
Property; and (ii) you have not used the Software in any way
contrary to law; and (iii) you have not in any way acted in bad
faith and/or remained wilfully blind to any unlawful conduct or
behaviour pursuant to this section. Future Corporation shall, at its option and absolute
discretion, either: (i)
procure for you the right to use the Software; or (ii) replace
the Software with other Software which does not constitute infringement; or
(iii) remove the infringing Software and refund the payment(s) or
fees made thereupon by you. THE FOREGOING STATES YOUR SOLE REMEDY FOR, AND FUTURE
CORPORATION’S ENTIRE LIABILITY AND RESPONSIBILITY FOR, INFRINGEMENT
OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS OUTSIDE AUSTRALIAN
JURISDICTION RELATING TO THE SOFTWARE THAT HAS BEEN IMPORTED, BY OR
PROVIDED HEREUNDER TO, YOU. THIS LIMITED INDEMNITY IS IN LIEU OF ANY
OTHER STATUTORY OR IMPLIED WARRANTY AGAINST INFRINGEMENT;
2.11.3 CONTENT FILES: While Future Corporation takes all reasonable steps to
ensure that the content files, do not infringe any patent, copyright,
trademark or like Intellectual Property Future Corporation provides these
files for demonstration and training purposes only and cannot guarantee that
the content files do not infringe any Intellectual Property and to the extent permitted by law
hereby disclaims any liability for the provision of the content
files to you and/or any use thereof and you shall assume all
risk and liability when incorporating the content files into any of
your work(s) and/or output files. However, where you have
incorporated the content files into your work and/or output files
and a third party claims the work is an infringement that on sound
legal theory (corroborated by at least two independent legal
practitioners of that jurisdiction) procured at your cost, that is
likely to or does
in their professional
opinion infringe that third party's
Intellectual Property and you advise Future Corporation by
registered mail within
thirty (30) days of becoming aware of such potential infringement and provided
(i) you have not intentionally, knowingly or otherwise with constructive knowledge used or
incorporated the content files in any way to
infringe another or third party's rights and/or Intellectual
Property; and (ii) you have not used the content files in any way
contrary to law; and (iii) you have not in any way acted in bad
faith and/or remained wilfully blind to any unlawful conduct or
behaviour pursuant to this section. Future Corporation shall, at its option and absolute
discretion, either: (i)
procure for you the right to use the content file or files; or (ii) replace
the content file or files and/or the Software with other content
files and/or Software (that Future Corporation in its absolute
discretion considers reasonably interchangeable) which does not constitute infringement; or
(iii) remove the infringing content file or files and (a) refund the payment(s)
or fees, if any, made thereupon by you for such content file or files or (b) to
an amount of no more than
USD$50, whichever is the lesser of the two. THE FOREGOING STATES YOUR SOLE REMEDY FOR, AND FUTURE
CORPORATION’S ENTIRE LIABILITY AND RESPONSIBILITY FOR, INFRINGEMENT
OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS RELATING TO THE
CONTENT FILES THAT HAVE BEEN PROVIDED HEREUNDER TO, YOU. THIS LIMITED INDEMNITY IS IN LIEU OF ANY
OTHER STATUTORY OR IMPLIED WARRANTY AGAINST INFRINGEMENT;
3. GENERAL PROVISIONS
3.1 COMPLIANCE WITH LICENSES:
You acknowledge and agree that upon request from Future
Corporation, or the Affiliate or Authorized Dealer that you or the first user
obtained this License from that you will within a reasonable time but no more
than thirty (30) days fully document and certify that use of any and all Future
Corporation software at the time of the request is in conformity with your
valid Licenses from Future Corporation;
3.2 RECORDS:
You acknowledge and agree that any and all records pertaining and/or that are
related to the Software and/or your License, including but not limited to: (i) serial, product and/or customer numbers; (ii) usernames
and passwords; or (iii) information provided by you at the time of obtaining
this License (collectively “records”) are your sole responsibility to keep,
maintain and protect from any loss or damage and shall not be unreasonably
withheld from Future Corporation, or the Affiliate or the
Authorized Dealer that sold or provided you with this License upon request. Neither Future Corporation, its Affiliates, and/or
its Authorized Dealers shall be liable for any
failure to provide you with, or permanent loss of such records should these
become lost, destroyed or misplaced but shall not be unreasonably withheld from
you (if available) upon request by you;
3.3 FORCE MAJEURE:
Neither Future Corporation, its Affiliates, and/or its
Authorized Dealers shall be liable for any failure or
delay in performing services or any other obligation under this Agreement, nor
for any damages suffered by you by reason of such failure or delay, which is,
indirectly or directly, caused by criminal acts, strike, riot, war, acts of terrorism,
any natural
catastrophe or disaster, or any act of God, or any other cause beyond Future Corporation’s
reasonable control;
3.4 NO WAIVER:
The waiver of, or failure to enforce, any breach or default by
Future Corporation, its Affiliates, and/or its Authorized Dealers against you herein, shall not constitute the waiver of any
other or subsequent or continuing breach or default by Future
Corporation, its Affiliates, and/or its Authorized Dealers against you;
3.5 CERTAIN TERMS SHALL SURVIVE: The provisions of sections: (a) I., 1.2, 2.2, 2.2.1, 2.3.4, 2.3.4.1,
2.4.4, 2.4.4.1, 2.5.1, 2.5.2, 2.5.3, 2.5.4, 2.5.5, 2.5.6, 2.5.7, 2.7.2, 2.7.3, 2.8,
2.8.1, 2.8.2, 2.9, 2.10, 2.11.3, 3.2, 3.4, 3.5, 3.6, 3.7, 3.7.1, 3.7.2, 4.1.1, 4.1.2, 4.1.3,
4.1.4, 4.2, 4.3, 6.3.1, 6.4; and (b) any section applicable to you therein: 7.2.4,
7.2.5, 7.3.2, 7.3.3, 7.5.6, 7.5.7, 7.5.8, 7.5.9, 7.5.10, 7.5.12; and (c) any
section applicable to you therein of Part III; or (d) any other like section of
those found in (a) or (b), of this Agreement will survive the termination,
cancellation or rescission of this Agreement, howsoever caused, but this will
not imply or create any continued right to use the Software or any part thereof
after such termination, cancellation or rescission of this Agreement;
3.6 LIMITATION TO BRING AN ACTION:
You
acknowledge and agree that neither will Future Corporation, its Affiliates,
and/or its Authorized Dealers, or will you, bring a legal action under this
Agreement more than: (i) six (6) years after the
cause of action in tort or breach of contract arose; or (ii) more than three
(3) years after the cause of action for personal injury arose; or (iii) more
than one (1) year after the cause of action for defamation arose as legislated
in Victoria under the Limitation of Actions Act. This
limitation of liability may not be valid in some jurisdictions and may not
apply to you, see section 8 for specific provisions related to other
jurisdictions which may be applicable to you;
3.7 ENTIRE AGREEMENT: This License and any of the License terms in addenda applicable
to you as listed in this Agreement which define what you may do with the
Software and contain limitations on warranties and/or remedies is the entire
Agreement between you and Future Corporation, superseding any other or previous
Agreement or discussions, representations or advertising, oral or written,
other than (i) a separate, valid, existing and
applicable License Agreement duly signed by a Supervisor or Manager of
Future Corporation or one of its authorized Affiliates; or (ii) a separate,
valid, existing and applicable License Agreement for any updated or subsequent
version of the Software written and published exclusively by Future Corporation
that expressly appends to or wholly replaces this Agreement at such date; and
(iii) to the extent of their consistency with this License Agreement all those
Terms and Conditions of Sale and Use as set forth by Future Corporation at
http://www.iifuture.com/corporate_legal.html. To
the extent of any inconsistency between this Agreement and any additional
and/or superseding Agreement the additional and/or superseding Agreement shall
govern. This Agreement does (i) not grant any
concurrent right in the Software; and
(ii) not apply
to any Software installed on a terminal server and/or a Future Corporation
server based Hardware or Software Product. A separate License Agreement must
executed with Future Corporation to obtain any additional rights. You further
acknowledge that with respect to matters referring to or relating to time, that time is of the essence of this Agreement;
3.7.1 SEVERABILITY:
If and to the extent any provision of this Agreement is held illegal, invalid,
uncertain, or unenforceable in whole or in part under applicable law, such
provision or such portion thereof shall be ineffective as to the jurisdiction
in which it is illegal, invalid, uncertain, or unenforceable. To the extent of
its illegality, invalidity, uncertainty, or unenforceability it shall be
deemed modified to the extent necessary to conform to applicable law so as to give
the maximum effect to the intent of the parties. The illegality, invalidity,
uncertainty, or unenforceability of such provision in that jurisdiction shall
not in any way affect the legality, validity, certainty, or enforceability of
any other provision of this Agreement in any other jurisdiction;
3.7.2 TERMINATION:
Except for where expressly provided in this Agreement if any breach of this
License by you continues for more than thirty (30) days after receipt of
written notice of such breach by Future Corporation, Future Corporation may
terminate this License by written notice to you, whereupon this License and all
rights granted to you herein shall immediately cease.
In the event of any conflict between the terms of this section and
any express term requiring immediate termination for breach of this License
Agreement, the express terms of such other section shall govern. You may terminate this License at any time by providing
written notice to Future Corporation. In the event of any termination of this License
by you and except for III. (above) you (i) acknowledge that such termination
shall not entitle you, any other or third party to any refund or credit from
Future Corporation, its Affiliates and/or its Authorized Dealers; and (ii)
you shall: (i) promptly
uninstall and where applicable deactivate and/or deregister the Software; and (ii)
return any media and other associated materials including the hardware security
device (if applicable) to Future Corporation or the place of purchase; and
(iii) obtain a receipt for such return as evidence of such termination of this
License Agreement;
3.7.3 GENERAL INDEMNITY: You hereby agree that you shall indemnify and hold
Future Corporation, its Affiliates, its Suppliers and its Authorized Dealers harmless from and against any and all
claims, actions, suits, proceedings, costs, expenses, damages, liabilities,
including legal fees (on an attorney/solicitor and own client basis) arising out
of, connected with, or resulting from (i) your or (ii) your colleagues,
employees, agents, delegates or family members and/or any other or third party
that you provide, facilitate or otherwise allow for the (a) improper use or
misuse; or (b) otherwise unlawful or unconscionable use of the Software
whether intentional or otherwise described herein;
4. GOVERNING LAW
4.1.1 AUSTRALIA:
If you licensed the Software for use within Australia, Victorian state law
governs the interpretation of this Agreement and applies to any and all claims. Australian Commonwealth law and the laws of your state or territory may
govern other claims, including claims under state consumer protection laws,
unfair competition laws, and in tort. Notwithstanding this, you acknowledge and
agree with Future Corporation that any and all claims by you shall be brought
in the state of Victoria in any Melbourne court of
competent jurisdiction;
4.1.2 OUTSIDE AUSTRALIA: Notwithstanding where or from who you acquired this License for
the Software you acknowledge and agree with Future Corporation and its
Affiliates that the interpretation of this Agreement and any and all claims
brought by you for any breach of this Agreement, regardless of “conflict of
laws” or “private international law” principles, shall be brought under the
exclusive jurisdiction of Victorian State, and only to the extent applicable
Australian Commonwealth law;
4.1.3 EXCLUSIONS:
This License specifically excludes (i) that body of
law applicable to choice of law, and (ii) the United Nations Convention on
Contracts for the International Sale of Goods and any legislation implementing
such Convention, if otherwise applicable;
4.1.4 LEGAL EFFECT:
This agreement describes certain legal rights. You may have other rights under
the laws of your country or state, province, county or otherwise region where
you live. You may also have rights with respect to the party from whom you
acquired this License. This agreement does not change your rights under the
laws of your country or state, province, county or otherwise region where you
live if the laws thereof do not permit it to do so, see section 8 for specific
provisions related to other jurisdictions which may be applicable to you;
4.2 TRANSLATION:
The English version of this Agreement will be the version used when
interpreting or construing this Agreement. Any translation of this License
Agreement into any other languages shall be for convenience of reference only;
4.3 USE OF EXPERTS:
Where a dispute about the applicability, functionality, authenticity, suitability and/or of
an otherwise technical nature with respect the Software has arisen between the
parties you acknowledge and agree with Future Corporation that any expert
testimony relied upon by either party in an attempt to resolve such dispute,
shall have: (i) no less than ten (10) years
professional experience in computer graphics programming of: IBM compatible
computers; and (ii) be proficient in the Programming languages: (a) Delphi and
(b) what is commonly known as Machine code or Machine language; and (iii) a
University or College degree in Computer Science or its equivalent from a
recognized institution in that field; or in lieu of part (iii) where a
candidate does not comply with this part, no less than fifteen (15) years
professional experience in computer graphics programming of: IBM compatible
computers (parts (i) and (ii) shall apply
notwithstanding part (iii) compliance.);
5. TECHNICAL SUPPORT
5.1 TECHNICAL SUPPORT: Future Corporation and its Affiliates agree to provide a
reasonable amount of technical support to you for: (i) the term of the License
period; or (ii) until such time as Future Corporation or its Affiliates discontinue
any version of the Software (Product Life); or (iii) 2 (two) years from the date of purchase; or (iv)
whichever of (i), (ii) or (iii) occurs first notwithstanding anything to the
contrary herein. You acknowledge and agree with Future Corporation
that it reserves the right to limit or cease product and/or technical support
and updates for any such discontinued version at its absolute discretion, and that
neither consulting nor training for this or any other Software, Hardware or any
other related matter is included in, or with, technical support;
5.1.1 GETTING SUPPORT: In the first instance you acknowledge and agree with Future
Corporation and its Affiliates that it is your obligation to make use of the
Help files and Training facilities (where provided) within the Software and the
Help files and the material supplied through the Software’s Internet site
including but not limited to, the various articles, FAQ, member forums and
knowledgebase (if available). If this proves inadequate, you may lodge an
online ticket for technical support and/or contact your Future Corporation
authorized dealer who sold this License to you (if available). If this proves
inadequate, you may contact Future Corporation or its Affiliate by telephone or
facsimile using the contact information provided at
http://www.iifuture.com/en/corporate_contact_us.html;
5.1.2 TECHNICAL SUPPORT: EXCLUSIONS: You are solely responsible for the installation of, and
the regular updating of the Software, and for the proper installation,
configuration, and operation of the Software with your hardware, any supporting
Software including but not limited to the Operating System, Antivirus Software
and/or any Internal or External network, and services upon which the Software
relies. You are responsible for selecting the correct settings for your Server
and workstations. The Software is delivered with certain default settings which may
not be appropriate for all circumstances;
5.1.3 TECHNICAL SUPPORT: NO WARRANTY: SUBJECT TO ANY STATUTORY WARRANTIES WHICH CAN NOT BE EXCLUDED,
FUTURE CORPORATION, ITS AFFILIATES, ITS SUPPLIERS AND/OR ITS AUTHORIZED DEALERS
PROVIDE TECHNICAL SUPPORT ON AN AS-IS BASIS WITHOUT ANY WARRANTY,
REPRESENTATIONS, CONDITIONS OR TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE,
COMMON LAW, COURSE OF DEALING, CUSTOM, EQUITY, USAGE, OR UNDER ANY THEORY OF
LAW, OR OTHERWISE AS TO ANY
MATTER, INCLUDING, BUT NOT LIMITED TO PERFORMANCE, SECURITY, WARRANTIES OF
NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, QUIET ENJOYMENT,
MERCHANTABLE QUALITY, SATISFACTORY QUALITY, MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. FUTURE CORPORATION, ITS AFFILIATES, ITS SUPPLIERS AND/OR
ITS AUTHORIZED DEALERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU
MAY OBTAIN BY USING TECHNICAL SUPPORT. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE
OF USING TECHNICAL SUPPORT IS ASSUMED BY YOU. WHERE ANY NON-EXCLUDABLE TERMS
ARE IMPLIED INTO THIS LICENSE BY OPERATION OF LAW, TO THE EXTENT PERMISSIBLE BY
LAW, FUTURE CORPORATION LIMITS ITS LIABILITY TO, AT ITS ABSOLUTE DISCRETION,
THE REPAIR OR REPLACEMENT OF THE GOODS, THE RE-SUPPLY OF EQUIVALENT GOODS, OR
THE COST THEREOF. THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME
JURISDICTIONS, SEE SECTION 8 FOR SPECIFIC PROVISIONS RELATED TO OTHER
JURISDICTIONS WHICH MAY BE APPLICABLE TO YOU;
5.1.4 TECHNICAL SUPPORT LIMITATION OF LIABILITY: TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU
AGREE THAT NEITHER FUTURE CORPORATION NOR ITS AFFILIATES, ITS SUPPLIERS OR ITS
AUTHORIZED DEALERS SHALL BE LIABLE FOR ANY LOSS,
DAMAGES, CLAIMS OR COSTS WHATSOEVER INCLUDING ANY SPECIAL, CONSEQUENTIAL,
INDIRECT, ECONOMIC OR INCIDENTAL DAMAGES, LOST TIME, LOST PROFITS OR LOST
SAVINGS, ANY DAMAGES RESULTING FROM BUSINESS INTERRUPTION, LOST DATA, OR TO
BUSINESS AND/OR PERSONAL REPUTATION, PERSONAL INJURY OR FAILURE TO MEET ANY
DUTY OF CARE, OR CLAIMS BY A THIRD PARTY ARISING FROM YOUR USE OF, OR
GETTING, OR SOURCING TECHNICAL SUPPORT, EVEN IF
FUTURE CORPORATION, ITS AFFILIATES, ITS SUPPLIERS AND/OR ITS AUTHORIZED DEALERS
AND/OR A FUTURE CORPORATION REPRESENTATIVE HAVE BEEN ADVISED OF THE POSSIBILITY
OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, FUTURE CORPORATION’S AGGREGATE
LIABILITY AND THAT OF ITS AFFILIATES, ITS SUPPLIERS AND AUTHORIZED DEALERS
UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID
FOR TECHNICAL SUPPORT, IF ANY. THIS LIMITATION WILL APPLY EVEN IN THE EVENT OF
A FUNDAMENTAL, MATERIAL OR SERIOUS BREACH OR A BREACH OF THE FUNDAMENTAL OR
MATERIAL TERMS OF THIS AGREEMENT. THIS LIMITATION OF LIABILITY MAY NOT BE VALID
IN SOME JURISDICTIONS AND MAY NOT APPLY TO YOU, SEE SECTION 8 FOR SPECIFIC
PROVISIONS RELATED TO OTHER JURISDICTIONS WHICH MAY BE APPLICABLE TO YOU;
6. INSTALLMENT AND SUBSCRIPTION SOFTWARE
6.1 INSTALLMENT SOFTWARE:
You acknowledge that Future Corporation, its Affiliates and/or its Authorized Dealers may,
but are under no obligation to, allow you to pay for this License by way of
monthly installments as set out in the Software’s documentation and at the
Software’s Internet site
(collectively
“Installment Software”)
subject to the Future
Corporation Terms and Conditions of Sale provided online at
http://www.iifuture.com/corporate_legal.html.
If you apply to pay by monthly installments and except as expressly limited by
applicable law you:
(i) hereby
warrant that you have read and understand all your obligations under this
License Agreement prior to making application to license Installment Software;
and (ii) agree to be
bound by all those terms applicable to you in the Terms and Conditions of Sale and in particular but not limited to section 3.5.3 and if applicable
section 3.5.3.1 and 3.5.3.2 therein pursuant
to such Installment Software; and (iii) acknowledge
further terms and conditions that affect this paragraph in
sections 6.3, 6.4 and 6.5 of this License Agreement (below);
6.2 SUBSCRIPTION SOFTWARE:
You
acknowledge that Future Corporation, its Affiliates and/or its Authorized
Dealers may, but are under no
obligation to, allow you to License the Software on a Subscription
basis, as set out in the Software’s
documentation and at the Software’s Internet site
(collectively
“Subscription Software”) subject to the Future
Corporation Terms and Conditions of Sale provided online at
http://www.iifuture.com/corporate_legal.html. If you elect to License the Software on a
Subscription basis and except as expressly limited by
applicable law, you agree that: (i) your rights
to use the Software are limited to the Subscription period; and, (ii)
Subscription software is subject to all the terms and conditions of this License
Agreement; and, (iii) after the expiration of your Subscription the Software
will cease to operate. You may have the option to extend your Subscription or
convert it to a perpetual license. If you extend your Subscription, you may
continue using the software until the end of your extended Subscription period.
You may also elect to pay for the Subscription by monthly installments in advance
using a valid credit-card. If you apply to pay your Subscription by monthly
installments
in advance, and except as expressly limited by applicable law, you:
(i) hereby
warrant that you have read and understand all your obligations under this
License Agreement prior to making application to license Subscription Software;
and (ii) agree to be
bound by all those terms applicable to you in the Terms and Conditions of Sale and in particular but not limited to section 3.5.4 therein pursuant
to such Subscription Software; and (iii) acknowledge
further terms and conditions that affect this paragraph in
sections 6.3, 6.3.1, 6.4 and 6.5 of this License Agreement (below);
6.3 TERMINATION FOR NON-PAYMENT: If you elected and meet the criteria set forth in the
Terms and Conditions of Sale, and at
http://www.iifuture.com/en/products_payment_options.html and have been approved by Future Corporation, its
Affiliates and/or its Authorized Dealers to pay for the Software License by:
(a) equal Monthly Installments; or (b) Subscription Installments you hereby
acknowledge and agree with Future Corporation that should you or the legal
entity that obtained the software and on whose behalf it is used: (i) cannot; or (ii) do not pay (a) the full Installment
Amount (pursuant to Section 6.1 above) or (b) the full Subscription Installment
(pursuant to Section 6.2 above) within fourteen (14) days after any such due date,
that this Agreement may be terminated without notice to you on such date,
notwithstanding any reason given by you, except where expressly permitted by
applicable law, or at the absolute discretion of Future Corporation
its Affiliates and/or its Authorized Dealers (e.g.
If your installment due date is the 7th day of each month and you
fail to pay the installment amount by 4:00 PM on the 21st day of that
month, this Agreement may automatically be terminated, at the absolute
discretion of Future Corporation, as of midnight on the 21st day of
such month without notice to you);
6.3.1 INSTALLMENTS REMAIN DUE AND PAYABLE:
Notwithstanding sections 3.7.2 and 6.3 above, you hereby
acknowledge and agree that any amount that remains
unpaid and is outstanding for Installment Software shall
remain due and payable in full by you and/or the legal
entity on whose behalf it was licensed;
6.4 NO FURTHER RIGHT OF USE: PURSUANT TO SECTION 6.3 ABOVE, IF THIS AGREEMENT IS
TERMINATED FOR NON PAYMENT OF AN INSTALLMENT AMOUNT OR SUBSCRIPTION INSTALLMENT AT
ANY TIME AFTER FOURTEEN (14) DAYS HAVE ELAPSED SINCE THE INSTALLMENT DUE
DATE, YOU HEREBY ACKNOWLEDGE AND AGREE WITH FUTURE CORPORATION THAT YOU HAVE NO
LEGAL OR EQUITABLE RIGHTS OR CLAIM TO USE THE SOFTWARE OR ANY OF ITS COMPONENTS
SUBJECT TO THIS AGREEMENT FROM SUCH DATE OF TERMINATION AND THE SOFTWARE SHALL
BE OR BECOME DEACTIVATED OR DEREGISTERED AND RETURNED BY YOU AT YOUR EXPENSE
WITH ANY AND ALL ITS ACCOMPANYING MATERIALS IN YOUR POSSESSION OR CONTROL, AND
IF APPLICABLE THE HARDWARE SECURITY DEVICE, WITHIN THIRTY (30) DAYS TO THE
PLACE OF PURCHASE, OR TO FUTURE CORPORATION;
6.5 CREDIT-CARD CHARGE BACK:
YOU HEREBY ACKNOWLEDGE AND AGREE THAT WHERE FUTURE
CORPORATION, ITS AFFILIATES, AND/OR ITS AUTHORIZED DEALERS HAVE DISCHARGED OR
MET THEIR OBLIGATIONS TO YOU, AS THEY FALL DUE UNDER SECTIONS 6.1 OR 6.2 ABOVE
AND YOU HAVE ELECTED OR IT IS A CONDITION TO PAY BY INSTALLMENT WITH A
CREDIT-CARD THAT IF YOU INITIATE A CHARGE-BACK FOR SUCH CREDIT-CARD PAYMENT
WITH YOUR BANK OR CARD ISSUER, THAT THIS IS A VIOLATION AND MATERIAL BREACH OF
THIS AGREEMENT AND MAY RESULT IN THE AUTOMATIC AND IMMEDIATE TERMINATION OF
YOUR LICENSE TO USE THE SOFTWARE AND
FUTURE
CORPORATION, ITS AFFILIATES AND/OR ITS AUTHORIZED DEALERS SHALL BE ENTITLED TO
(I) REJECTING YOUR APPLICATION WITH YOUR BANK OR CARD ISSUER, AND SHOULD SUCH
REJECTION BE REFUSED BY YOUR BANK OR CARD ISSUER; (II) TAKE
SUCH ACTION AS FUTURE CORPORATION, ITS AFFILIATES AND/OR ITS AUTHORIZED
DEALERS SEE FIT, INCLUDING IMMEDIATELY BLOCKING
ACCESS TO ONLINE SERVICES, REMOTELY DEACTIVATING OR DEREGISTERING THE SOFTWARE
AND/OR REFUSAL TO PERMIT FURTHER ACTIVATIONS OR REGISTRATIONS AND PERMANENTLY
TERMINATING YOUR ACCOUNT WITH FUTURE CORPORATION, ITS AFFILIATES AND/OR
ITS AUTHORIZED DEALERS, DISCLOSING SUCH INFORMATION
(INCLUDING YOUR IDENTITY) TO RELEVANT AUTHORITIES AND/OR ANY PERSON OR ENTITY
THAT HAS THE LEGAL RIGHT TO SUCH INFORMATION, AND/OR TAKING LEGAL ACTION
AGAINST YOU;
PART II
7. ADDENDA TO THE LICENSE AGREEMENT
7.1 ACADEMIC, EDUCATION STUDENT AND TEACHER ADDENDUM TO THE LICENSE
7.1.1 ACADEMIC EDITION SOFTWARE: If the
Software is marked and/or installs and/or is licensed as: Academic, Education
or Student and Teacher Edition you acknowledge and agree with Future
Corporation or its Affiliate that you must qualify as, or be a certified
“Academic or Education Provider” or a currently registered “Teacher” or an
enrolled “Student” to use Future Corporation Software marked as “ALP”, “ALS” or
“SV” respectively, as listed in the Software’s
documentation and at:
http://www.iifuture.com/en/products_academic.html.
If the Software is identified as Academic, Education or Student and Teacher
Edition Software (referred collectively herein as “Education
Software”), your use of the Software is governed by the terms of this License
and as set out by the terms of this section in addendum to this License Agreement
herein. In the event of any conflict between the terms of this License
Agreement and this Education Software addendum, the express terms of this
addendum to this Agreement shall govern;
7.1.2 EDUCATION PROVIDER USE:
So long as
you remain qualified and/or certified as an “Academic or Education Provider”
under the terms and condition of section 7.1.1 above, you may (a) install and
use one (1) copy of the Software on one (1) computer up to the Permitted Number
of your compatible Computers; or (b) you may install
the Permitted Number of copies of the Software on the Permitted Number of
Computer file server(s) within your Internal Network for the purpose of
downloading and installing the Software on up to the Permitted Number of
Computers within the same Internal Network. Notwithstanding anything to
the contrary in this License Agreement, you may not (i)
transfer or assign the Software or any copy thereof, or your License to use the
Software to a third party; or (ii) use the Software in any way for any
commercial purpose or in any commercial enterprise or business whatsoever; and
(iii) pursuant to part (ii) the Software may only be used for academic
instruction and/or education purposes in a non-commercial environment;
7.1.3 STUDENT AND TEACHER USE:
So long as you remain a “Student or Teacher” under the terms and condition of
section 7.1.1 above
you may install and use one (1) copy of the Software on one
(1) computer in your domicile and one (1), if applicable, portable
computer that is in your possession or control and predominately for your
personal use. Notwithstanding anything to the contrary in this License
Agreement, you may not (i) transfer or assign the
Software or any copy thereof, or your License to use the Software to a third
party; or (ii) use the Software in any way for any commercial purpose or in any
commercial enterprise or business whatsoever; and (iii) pursuant to part (ii)
the Software may only be used for academic and/or education purposes in a
non-commercial environment;
7.2 BETA SOFTWARE ADDENDUM TO THE LICENSE
7.2.1 BETA SOFTWARE: If the
Software is marked and/or installs and/or is licensed as: Beta, Pre-Release, or Not For Resale Software (referred
collectively herein as “Beta Software”), you acknowledge and agree with
Future Corporation that such version of the Software is provided on an “as is”
basis solely for testing purposes and it should only be used in a dedicated
test environment that does not hold any risk of loss or damage to other
software and data. If the Software is identified as Beta
Software you are granted a nonexclusive License to use this version of the Software
only, and your use of the Software is governed by the terms of this License and as
set out by the terms of this section in addendum to this Agreement herein. You
acknowledge and agree with Future Corporation that this Beta Software License does not entitle you to any written
documentation, technical support or telephone assistance and although Future
Corporation or its Affiliates intend to distribute and license a commercial
version of the Beta Software, Future
Corporation, its Affiliates and/or Suppliers reserve the right not to release a
commercial version of the Beta Software or, if released, add, remove or alter
features, components or licensing terms of the commercial version. In the event
of any conflict between the terms of this License Agreement and this Beta Software addendum, the express terms of this
addendum shall govern. Such License shall continue for the period specified in
the Beta Software and/or under Future Corporation’s
direction, after which time your License to use the Beta Software shall terminate and you must uninstall
or entirely remove the Beta Software from all computers in your possession
and/or control within thirty (30) days of such termination;
7.2.2 BETA SOFTWARE USE: You may install and use one (1) copy of the Software on one
(1) computer in your domicile and one (1), if applicable, portable
computer that is in your possession or control and predominately for your
personal use. Notwithstanding anything to the contrary in this License
Agreement, you may not (i) transfer or assign the
Software or any copy thereof, or your License to use the Software to a third
party; or (ii) use the Software in any way for any commercial purpose or in any
commercial enterprise or business whatsoever; and (iii) pursuant to part (ii)
the Software may only be used for testing purposes in a non-commercial
environment;
7.2.3 BETA SOFTWARE REPORTING: As part of
testing Beta Software you acknowledge and agree with Future Corporation or its
Affiliate that Future Corporation may ask you to provide feedback or your
observations with respect the Beta Software’s functionality and suitability for
its intended purpose which you may or may not provide at your sole discretion.
However, you acknowledge and agree with Future Corporation that any feedback,
opinion, suggestion or advice that you provide Future Corporation, its
Affiliates and/or its Authorized Dealers with respect Beta or other Future
Corporation Software may be used, or discarded, by Future Corporation in its
absolute discretion without reference, consultation with, or permission from
you, and to do with as Future Corporation sees fit. You further acknowledge and
agree with Future Corporation that you shall make no claim or demands
intellectual or otherwise, or demand any remuneration in any form whatsoever
from Future Corporation, its Affiliates, its Suppliers and/or its Authorized
Dealers for any such feedback, opinion, suggestion or advice that you provide
that either is, or is not, used in any subsequent or commercial version of the
Beta Software;
7.2.4 BETA SOFTWARE: NO WARRANTY: SUBJECT TO ANY STATUTORY WARRANTIES WHICH CAN NOT BE
EXCLUDED, FUTURE CORPORATION, ITS AFFILIATES, ITS SUPPLIERS AND/OR ITS
AUTHORIZED DEALERS PROVIDE THE BETA SOFTWARE ON AN AS-IS BASIS WITHOUT ANY
WARRANTY, REPRESENTATIONS, CONDITIONS OR TERMS, EXPRESS OR IMPLIED, WHETHER BY
STATUTE, COMMON LAW, COURSE OF DEALING, CUSTOM, EQUITY, USAGE, OR UNDER ANY
THEORY OF LAW, OR OTHERWISE AS
TO ANY MATTER, INCLUDING, BUT NOT LIMITED TO PERFORMANCE, SECURITY, WARRANTIES
OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, QUIET ENJOYMENT,
MERCHANTABLE QUALITY, SATISFACTORY QUALITY, MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. FUTURE CORPORATION, ITS AFFILIATES, ITS SUPPLIERS AND/OR
ITS AUTHORIZED DEALERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU
MAY OBTAIN BY USING THE BETA SOFTWARE. THE ENTIRE RISK AS TO THE RESULTS AND
PERFORMANCE OF USING THE BETA SOFTWARE IS ASSUMED BY YOU. WHERE ANY
NON-EXCLUDABLE TERMS ARE IMPLIED INTO THIS LICENSE BY OPERATION OF LAW, TO THE
EXTENT PERMISSIBLE BY LAW, FUTURE CORPORATION LIMITS ITS LIABILITY TO, AT ITS
ABSOLUTE DISCRETION, THE REPAIR OR REPLACEMENT OF THE GOODS, THE RE-SUPPLY OF
EQUIVALENT GOODS, OR THE COST THEREOF. THIS DISCLAIMER OF WARRANTY MAY NOT BE
VALID IN SOME JURISDICTIONS, SEE SECTION 8 FOR SPECIFIC PROVISIONS RELATED TO
OTHER JURISDICTIONS WHICH MAY BE APPLICABLE TO YOU;
7.2.5 BETA SOFTWARE: LIMITATION OF LIABILITY:
TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT NEITHER FUTURE
CORPORATION NOR ITS AFFILIATES, ITS SUPPLIERS OR ITS AUTHORIZED DEALERS SHALL
BE LIABLE FOR ANY LOSS, DAMAGES, CLAIMS OR COSTS
WHATSOEVER INCLUDING ANY SPECIAL, CONSEQUENTIAL, INDIRECT, ECONOMIC OR
INCIDENTAL DAMAGES, LOST TIME, LOST PROFITS OR LOST SAVINGS, ANY DAMAGES RESULTING
FROM BUSINESS INTERRUPTION, LOST DATA, OR TO BUSINESS AND/OR PERSONAL
REPUTATION, PERSONAL INJURY (INCLUDING DEATH) OR FAILURE TO MEET ANY DUTY OF
CARE, OR CLAIMS BY A THIRD PARTY ARISING FROM USE OF THE BETA SOFTWARE, EVEN IF
FUTURE CORPORATION, ITS AFFILIATES, ITS SUPPLIERS AND/OR ITS AUTHORIZED DEALERS
AND/OR A FUTURE CORPORATION REPRESENTATIVE HAVE BEEN ADVISED OF THE POSSIBILITY
OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, FUTURE CORPORATION’S AGGREGATE
LIABILITY AND THAT OF ITS AFFILIATES, ITS SUPPLIERS AND AUTHORIZED DEALERS
UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID
FOR THE BETA SOFTWARE, IF ANY. THIS LIMITATION WILL APPLY EVEN IN THE EVENT OF
A FUNDAMENTAL, MATERIAL OR SERIOUS BREACH OR A BREACH OF THE FUNDAMENTAL OR
MATERIAL TERMS OF THIS AGREEMENT. THIS LIMITATION OF LIABILITY MAY NOT BE VALID
IN SOME JURISDICTIONS AND MAY NOT APPLY TO YOU, SEE SECTION 8 FOR SPECIFIC
PROVISIONS RELATED TO OTHER JURISDICTIONS WHICH MAY BE APPLICABLE TO YOU;
7.3 DEMONSTRATION SOFTWARE ADDENDUM TO THE LICENSE
7.3.1 DEMONSTRATION SOFTWARE: If the
Software is marked and/or installs and/or is licensed as: Demonstration, Evaluation, Free-Trial, or Try-Out Software
(referred collectively herein as “Demonstration Software”), you
acknowledge and agree with Future Corporation that such version of the Software
is provided on an “as is” basis solely for evaluation purposes and it should
only be used in a dedicated test environment that does not hold any risk of
loss or damage to other software and data. If the Software is identified as Demonstration Software you are granted a nonexclusive License to
use this version of the Software only, and your use of the Software is governed
by the terms of this License as set out by the terms of this section in
addendum to this License Agreement herein. You acknowledge and agree with
Future Corporation that this Demonstration Software License does not entitle
you to any written documentation, technical support or telephone assistance and
although Future Corporation or its Affiliates intend to distribute and license
a commercial version of the Demonstration Software, Future Corporation, its Affiliates
and/or Suppliers reserve the right not to release a commercial version of the
Demonstration Software or, if released, add, remove or alter features,
components or licensing terms of the commercial version. In the event of any
conflict between the terms of this License Agreement and this Demonstration
Software addendum, the express terms of this addendum shall govern. Such
License shall continue for the period specified in the Demonstration
Software, after which time your License to use the Demonstration Software shall terminate without
notice;
7.3.2 DEMONSTRATION SOFTWARE: NO WARRANTY: SUBJECT TO ANY STATUTORY WARRANTIES WHICH
CAN NOT BE EXCLUDED, FUTURE CORPORATION, ITS AFFILIATES, ITS SUPPLIERS AND/OR
ITS AUTHORIZED DEALERS PROVIDE THE DEMONSTRATION SOFTWARE ON AN AS-IS BASIS
WITHOUT ANY WARRANTY, REPRESENTATIONS, CONDITIONS OR TERMS, EXPRESS OR IMPLIED,
WHETHER BY STATUTE, COMMON LAW, COURSE OF DEALING, CUSTOM, EQUITY, USAGE, OR
UNDER ANY THEORY OF LAW, OR
OTHERWISE AS TO ANY MATTER, INCLUDING, BUT NOT LIMITED TO PERFORMANCE,
SECURITY, WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION,
QUIET ENJOYMENT, MERCHANTABLE QUALITY, SATISFACTORY QUALITY, MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. FUTURE CORPORATION, ITS AFFILIATES, ITS
SUPPLIERS AND/OR ITS AUTHORIZED DEALERS DO NOT AND CANNOT WARRANT THE
PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE DEMONSTRATION SOFTWARE. THE
ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF USING THE DEMONSTRATION
SOFTWARE IS ASSUMED BY YOU. WHERE ANY NON-EXCLUDABLE TERMS ARE IMPLIED INTO
THIS LICENSE BY OPERATION OF LAW, TO THE EXTENT PERMISSIBLE BY LAW, FUTURE
CORPORATION LIMITS ITS LIABILITY TO, AT ITS ABSOLUTE DISCRETION, THE REPAIR OR
REPLACEMENT OF THE GOODS, THE RE-SUPPLY OF EQUIVALENT GOODS, OR THE COST THEREOF.
THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME JURISDICTIONS, SEE SECTION
8 FOR SPECIFIC PROVISIONS RELATED TO OTHER JURISDICTIONS WHICH MAY BE
APPLICABLE TO YOU;
7.3.3 DEMONSTRATION SOFTWARE: LIMITATION OF LIABILITY: TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU
AGREE THAT NEITHER FUTURE CORPORATION NOR ITS AFFILIATES, ITS SUPPLIERS OR ITS
AUTHORIZED DEALERS SHALL BE LIABLE FOR ANY LOSS,
DAMAGES, CLAIMS OR COSTS WHATSOEVER INCLUDING ANY SPECIAL, CONSEQUENTIAL,
INDIRECT, ECONOMIC OR INCIDENTAL DAMAGES, LOST TIME, LOST PROFITS OR LOST
SAVINGS, ANY DAMAGES RESULTING FROM BUSINESS INTERRUPTION, LOST DATA, OR TO
BUSINESS AND/OR PERSONAL REPUTATION, PERSONAL INJURY (INCLUDING DEATH) OR
FAILURE TO MEET ANY DUTY OF CARE, OR CLAIMS BY A THIRD PARTY ARISING FROM
USE OF THE DEMONSTRATION SOFTWARE, EVEN IF FUTURE CORPORATION, ITS AFFILIATES, ITS SUPPLIERS
AND/OR ITS AUTHORIZED DEALERS AND/OR A FUTURE CORPORATION REPRESENTATIVE HAVE
BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS. TO
THE EXTENT PERMITTED BY APPLICABLE LAW, FUTURE
CORPORATION’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES, ITS SUPPLIERS AND
AUTHORIZED DEALERS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED
TO THE AMOUNT PAID FOR THE DEMONSTRATION SOFTWARE, IF ANY. THIS LIMITATION WILL
APPLY EVEN IN THE EVENT OF A FUNDAMENTAL, MATERIAL OR SERIOUS BREACH OR A
BREACH OF THE FUNDAMENTAL OR MATERIAL TERMS OF THIS AGREEMENT. THIS LIMITATION
OF LIABILITY MAY NOT BE VALID IN SOME JURISDICTIONS AND MAY NOT APPLY TO YOU, SEE
SECTION 8 FOR SPECIFIC PROVISIONS RELATED TO OTHER JURISDICTIONS WHICH MAY BE
APPLICABLE TO YOU;
7.4 OEM EDITION ADDENDUM TO THE LICENSE
7.4.1 OEM EDITION SOFTWARE:
If the Software is marked and/or installs and/or is licensed as: Bundled,
Bundleware, Included, OEM, OEM Edition or OEM Version (referred
collectively herein as
“OEM Edition”) you acknowledge
and agree with Future Corporation that such OEM Edition Software is sold under
License to a third party manufacturer (Future
Corporation Approved Partner)
and included (bundled) with such third party machines and devices including but not limited to: CNC,
engraving, laser, plotting, printing, routing and vinyl cutting machines and
devices as described in the notice located on the storage media and/or in the
OEM Edition Software’s documentation and you are not entitled to use OEM
Edition Software unless it was purchased in accordance therewith. You are not
entitled to use OEM Edition Software if you obtained it separately from an
approved piece of hardware assigned to the Software and/or in the Software’s
documentation or as a stand-alone Software. If the Software is identified as
OEM Edition Software, your use of the Software is governed by the terms of this
License and as set out by the terms of this section in addendum to this License
Agreement herein. In the event of any conflict between the terms of this
License Agreement and this OEM Edition Software addendum, the express terms of
this addendum shall govern;
7.4.2 OEM EDITION USE: You may install and use one (1) copy of the Software on one
(1) computer for and in conjunction only with the approved
piece of hardware assigned to the Software and/or in the Software’s
accompanying documentation;
7.4.3 OEM LICENSE TRANSFER:
Notwithstanding anything to the contrary in the License Agreement, you may not
transfer or assign OEM Edition Software or any copy thereof, or your License to
use this OEM Software to a third party unless: (a)
you also transfer (i) this License Agreement and OEM
Edition Software addendum, and (ii) the Software’s Serial or Product or Customer number(s), where applicable the Software’s media including but not limited to
discs and product documentation provided by Future Corporation or its Approved
Partner Hardware or Authorized Dealer, and all other
software or hardware bundled, packaged, downloaded or preinstalled with the
Software, including all copies, conversions, patches, service packs, upgrades,
updates and prior versions; and (b) you retain no copies, conversions, patches,
service packs, upgrades, updates and prior versions, including backups and
copies stored on a computer in your possession or control; and (c) the approved
piece of hardware assigned to the Software and/or in the Software’s
documentation; and (d) the receiving party
acknowledges and accepts the terms and conditions of this License Agreement and
any other terms and conditions under which you purchased a valid License to or
for the Software;
7.5 SOFTWARE DEVELOPMENT KIT ADDENDUM TO THE LICENSE
7.5.1 SOFTWARE DEVELOPMENT KIT: If the
Software contains a Future Corporation Software Developer’s Kit (referred
collectively herein as “SDK”), your use of the SDK portion of the Software is
governed by the terms of this License and as set out by the terms of this section
in addendum to this License Agreement herein. In the event of any conflict
between the terms of this License Agreement and this SDK addendum, the express
terms of this addendum to this License Agreement shall govern. BY USING THIS
SDK, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT
AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL OR USE THE SDK;
7.5.2 GRANT OF SDK LICENSE: The SDK may
include certain example source code (not compiled), tools, utilities, libraries, program
interfaces and text files relating to a Future Corporation Software Product
(referred collectively herein as “Future Corporation Extensions”). Future
Corporation grants you the following limited, nonexclusive and non-transferable
rights to the SDK;
7.5.3 USE OF THE FUTURE CORPORATION EXTENSIONS: Future Corporation grants to you (i) a
nonexclusive and non-transferable license to adapt and use the Future
Corporation client software and source code fragments, including updates,
solely to enable your products to connect to and communicate with the relevant
Future Corporation software product, including but not limited to Future
Corporation File Types and Formats, and (ii) a nonexclusive and
non-transferable license to adapt and use the other Future Corporation
Extensions for the purpose(s) solely for which they are intended, including but
not limited to Future Corporation Plug-Ins and Snap-Ins;
7.5.4 LICENSE TO DISTRIBUTE: Future
Corporation grants you the right to copy and distribute Future Corporation
Extensions intended for distribution with your Products, excluding source code
fragments, but including but not limited to exact copies of documentation, with
such Products. You agree that you will distribute such Future Corporation
Extensions and Products to your end users pursuant to such license addendums as
you customarily use to distribute other similar products. Except as permitted
in this Addendum, you shall contractually prohibit your end users from: (i) using, copying (except as necessary for backup or
archival purposes or to the extent expressly permitted by applicable law and to
the extent that Future Corporation is not permitted by that applicable law to
exclude or limit such rights), modifying, or transferring the Future
Corporation Extensions or Products or any copy in whole or in part, or granting
any rights in the Future Corporation Extensions or Products; (ii) translating,
reverse engineering, decompiling, disassembling, or creating derivative works
based on the Future Corporation Extensions or Products; or (iii) renting or
leasing the Future Corporation Extensions or Products;
7.5.5 SUPPORT: You agree with Future
Corporation that you shall provide support for the Future Corporation
Extensions and Products to your end users;
7.5.6 DESCRIPTION OF OTHER LIMITATIONS AND OBLIGATIONS: For all Future Corporation Extensions, you agree with Future
Corporation to treat those portions of the Future Corporation Extensions not
authorized for distribution as confidential. Each party’s obligation under this
Section shall survive the expiration, cancellation, rescission or earlier
termination of this Agreement and shall extend to the earlier of such time as
the information protected hereby falls into the public domain through no fault
of the obligated party or five (5) years following your receipt of the Future
Corporation Extensions. Notwithstanding the foregoing, with respect to source
code fragments in the Future Corporation Extensions, you agree to hold them in
strict confidence in perpetuity. You agree with Future Corporation that, except
as specified in Section 7.5.2 above, you will not use the Future Corporation
Extensions for any other purpose and will not translate, reverse engineer,
decompile, disassemble or otherwise alter the Future Corporation Extensions.
You further agree with Future Corporation that you shall not modify or remove
functions or copyright, trademark or patent notices in the Future Corporation
Extensions, except as may be authorized by this Addendum or as may be
authorized by Future Corporation in writing. You hereby agree, that to the
extent that any applicable laws give you the right to perform any of the
aforementioned activities without Future Corporation’s consent in order to gain
certain information about the Future Corporation Extensions for purposes
specified in the respective statutes, before you exercise any such rights, you
shall first request such information from Future Corporation in writing
detailing the purpose for which you need the information. Only if and after
Future Corporation, at its absolute discretion, partly or completely denies
your request, shall you exercise your statutory rights. To the extent permitted
by applicable law, you agree to allow Future Corporation to audit your
compliance with the terms of this Agreement upon prior written notice during
normal business hours;
7.5.7 INTELLECTUAL PROPERTY RIGHTS: No
title to or ownership of the Software is transferred to you. Future
Corporation, its Affiliates and/or Suppliers own and retain all title and
ownership of all intellectual property rights in and to the SDK and Future
Corporation Extensions, including any adaptations or copies. You acquire only a
limited License to use this SDK;
7.5.8 EXPORT RESTRICTION: You agree
with Future Corporation that you will not export, re-export or import the SDK
or Future Corporation Extensions in any form without the appropriate government
licenses. You understand that under no circumstances may the SDK or Future
Corporation Extensions be exported to any country subject to US embargo or to
US designated denied persons or prohibited entities or US specially designated
nationals. See section 8.1.2.1 through 8.1.2.4 below, for more information;
7.5.9 SDK: NO WARRANTY: SUBJECT TO ANY STATUTORY WARRANTIES WHICH CAN NOT BE
EXCLUDED, FUTURE CORPORATION, ITS AFFILIATES, IT SUPPLIERS AND/OR IT AUTHORIZED
DEALERS PROVIDE THE SDK AND FUTURE CORPORATION EXTENSIONS ON AN AS-IS BASIS WITHOUT ANY WARRANTY, REPRESENTATIONS,
CONDITIONS OR TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, COURSE
OF DEALING, CUSTOM, EQUITY, USAGE, OR UNDER ANY THEORY OF LAW, OR OTHERWISE AS TO ANY MATTER, INCLUDING,
BUT NOT LIMITED TO PERFORMANCE, SECURITY, WARRANTIES OF NON-INFRINGEMENT OF
THIRD PARTY RIGHTS, INTEGRATION, QUIET ENJOYMENT, MERCHANTABLE QUALITY,
SATISFACTORY QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
FUTURE CORPORATION, ITS AFFILIATES, ITS SUPPLIERS AND/OR ITS AUTHORIZED DEALERS
DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE
SDK AND FUTURE CORPORATION EXTENSIONS. THE ENTIRE
RISK AS TO THE RESULTS AND PERFORMANCE OF USING THE SDK AND FUTURE
CORPORATION EXTENSIONS IS ASSUMED BY YOU. THE
SDK IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE WITH ANY EQUIPMENT THE
FAILURE OF WHICH COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY OR SEVERE
PHYSICAL OR ENVIRONMENTAL DAMAGE. YOU ASSUME THE RESPONSIBILITY FOR THE
SELECTION OF THE SDK AND FUTURE CORPORATION EXTENSIONS AND RESULTS OBTAINED
FROM THEM. WHERE ANY NON-EXCLUDABLE TERMS ARE IMPLIED
INTO THIS LICENSE BY OPERATION OF LAW, TO THE EXTENT PERMISSIBLE BY LAW, FUTURE
CORPORATION LIMITS ITS LIABILITY TO, AT ITS ABSOLUTE DISCRETION, THE REPAIR OR
REPLACEMENT OF THE GOODS, THE RE-SUPPLY OF EQUIVALENT GOODS, OR THE COST
THEREOF. THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME JURISDICTIONS,
SEE SECTION 8 FOR SPECIFIC PROVISIONS RELATED TO OTHER JURISDICTIONS WHICH MAY
BE APPLICABLE TO YOU;
7.5.10 SDK: LIMITATION OF LIABILITY: TO THE
EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT NEITHER FUTURE CORPORATION
NOR ITS AFFILIATES, ITS SUPPLIERS OR ITS AUTHORIZED DEALERS SHALL BE LIABLE FOR
ANY LOSS, DAMAGES, CLAIMS OR COSTS WHATSOEVER
INCLUDING ANY SPECIAL, CONSEQUENTIAL, INDIRECT, ECONOMIC OR INCIDENTAL DAMAGES,
LOST TIME, LOST PROFITS OR LOST SAVINGS, ANY DAMAGES RESULTING FROM BUSINESS
INTERRUPTION, LOST DATA, OR TO BUSINESS AND/OR PERSONAL REPUTATION, PERSONAL
INJURY (INCLUDING DEATH) OR FAILURE TO MEET ANY DUTY OF CARE, OR CLAIMS BY A
THIRD PARTY ARISING FROM YOUR USE OF THE SDK OR FUTURE CORPORATION
EXTENSIONS OR DAMAGE ARISING FROM YOUR PARTICIPATION IN HOSTING OR USE OF THIRD
PARTY PRODUCTS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, EVEN IF FUTURE CORPORATION, ITS AFFILIATES, ITS SUPPLIERS
AND/OR ITS AUTHORIZED DEALERS AND/OR A FUTURE CORPORATION REPRESENTATIVE HAVE
BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS. TO
THE EXTENT PERMITTED BY APPLICABLE LAW, FUTURE
CORPORATION’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES, ITS SUPPLIERS
AND/OR ITS AUTHORIZED DEALERS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL
BE LIMITED TO THE AMOUNT PAID FOR THIS SDK LICENSE, IF ANY. THIS LIMITATION
WILL APPLY EVEN IN THE EVENT OF A FUNDAMENTAL, MATERIAL OR SERIOUS BREACH OR A
BREACH OF THE FUNDAMENTAL OR MATERIAL TERMS OF THIS AGREEMENT. THIS LIMITATION
OF LIABILITY MAY NOT BE VALID IN SOME JURISDICTIONS AND MAY NOT APPLY TO YOU,
SEE SECTION 8 FOR SPECIFIC PROVISIONS RELATED TO OTHER JURISDICTIONS WHICH MAY
BE APPLICABLE TO YOU;
7.5.11 SDK: TERMINATION: This
Agreement is effective until terminated. You may terminate this Agreement at
any time by permanently destroying all copies of the SDK and Future Corporation Extensions
and providing written notice to Future Corporation. Future Corporation may
terminate this Agreement at any time for your breach of this Agreement.
Unauthorized copying of the SDK or Future Corporation Extensions or the
accompanying documentation or otherwise failing to comply with the License
Grant of this Agreement will result in automatic termination of this Agreement
and will make available to Future Corporation all other legal remedies. You
agree and acknowledge that your fundamental, material or serious breach of this
Agreement shall cause Future Corporation, its Affiliates and its Suppliers
irreparable harm for which monetary damages alone would be inadequate and that,
to the extent permitted by applicable law, Future Corporation, its Affiliates
and/or its Suppliers shall be entitled to injunctive or equitable relief
without the need for posting a bond. Upon termination of this Agreement, the
License granted herein will terminate and you must immediately and permanently destroy the SDK
and accompanying documentation, and all backup copies thereof;
7.5.12 SDK: INDEMNIFICATION: You agree to
indemnify and hold Future Corporation, its Affiliates, its Suppliers and/or
Authorized Dealers harmless from and against any and all costs, liabilities,
claims, or demands, including legal fees (on an attorney/solicitor and own client basis) that arise or result from the use, reproduction or distribution
of your Software Application Software, documentation, or promotional or sales
materials;
PART III
8. COUNTRY SPECIFIC TERMS IN ADDENDUM TO THIS LICENSE
If you obtained the Software from Future Corporation or a Future
Corporation Affiliate or a Future Corporation Authorized Dealer in a country
listed below, and such country is your usual domicile, then Sections 2.8,
2.8.1, 2.8.2, 2.8.3, 2.8.4, 2.9, 2.10, 3.6, 5.1.3, 5.1.4, 7.2.4, 7.2.5, 7.3.2,
7.3.3, 7.5.9, and 7.5.10 (above) and other warranty and disclaimer provisions
contained in this License (including all sections in addendum), are to the
extent inconsistent with these sections, replaced, amended or appended to by
the country specific terms in addendum to this Agreement, as set forth below:
8.1 THE AMERICAS
8.1.1 PERU:
LIMITATION
OF LIABILITY: FOR SECTIONS 2.10,
5.1.4,
7.2.5, 7.3.3 AND 7.5.10 ABOVE: THE FOLLOWING IS ADDED AT THE END OF THIS SECTION:
In accordance with Article 1328 of the Peruvian Civil
Code, the limitations and exclusions specified in this section will not apply
to damages caused by Future Corporation’s wilful misconduct (“dolo”) or gross negligence (“culpa inexcusable”);
8.1.2
UNITED STATES OF AMERICA (“UNITED STATES”):
GENERAL PROVISIONS: Section 3: The following replaces section 3.6 in its entirety:
LIMITATION TO BRING AN ACTION:
You
acknowledge and agree that neither will Future Corporation, its Affiliates,
and/or its Authorized Dealers, or will you, bring a legal action under this
Agreement more than two (2) years after the cause of action arose unless
otherwise provided by local law without the possibility of contractual waiver or
limitation;
8.1.3 UNITED STATES:
GENERAL PROVISIONS: FOR SECTION 3 ABOVE: THE FOLLOWING IS ADDED AT
THE END OF THIS SECTION:
8.1.3.1 EXPORT RULES:
You agree that the Software will not be shipped, transferred,
transmitted or exported into any country or used in any manner prohibited by
the United States Export Administration Act or any other United States export
laws, restrictions or regulations (collectively the “US Export Laws”). If the
Software is identified as an export controlled item under such US Export Laws,
you represent and warrant to Future Corporation that (i)
you are not a citizen, national or resident of, and are not under the control
of, the government of: Cuba, Iran, Libya, North Korea, Sudan, Syria, or any
other country to which the United States has prohibited export under such US
Export Laws; (ii) you will not download, transmit or otherwise export the
Software, directly or indirectly, to or into the countries mentioned in clause
(i) or to citizens, nationals or residents of those
countries; (iii) you are not listed in the United States Department of Treasury
lists of Specially Designated: Narcotic Traffickers, Nationals and/or
Terrorists, or the United States Department of Commerce Table of Denial Orders;
and (iv) you will not download, transmit or otherwise export the Software,
directly or indirectly, to persons on the lists mentioned in clause (iii);
8.1.3.2 EXPRESS RESTRICTIONS:
You represent and warrant to Future Corporation that you
will not use the Software for, and will not allow the Software to be used for,
any purposes prohibited by United States law, including, without limitation,
for the development, design, manufacture or production of nuclear, chemical or
biological weapons of mass destruction;
8.1.3.3 RIGHTS FORFEITED: 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;
8.1.3.4 NOTICE TO UNITED STATES GOVERNMENT END USERS:
For the purposes of the United States
Code of Federal Regulations (“C.F.R.”) and
under the Federal Acquisition Regulations (“F.A.R.”) the Software pursuant to this License herein
consists of “Commercial Computer Software” and “Commercial Computer Software
Documentation” as such terms are used in 48 C.F.R.
section 12.212 or 48 C.F.R. section 227.7202, as
applicable. Consistent with 48 C.F.R. section 12.212
or 48 C.F.R. sections 227.7202-1 through 227.7202-4,
as applicable, the Commercial Computer Software and Commercial Computer
Software Documentation are being licensed to United States Government end users
(i) only as Commercial Items and (ii) with only those
rights as are granted to all other end users pursuant to the terms and
conditions of this License herein. Unpublished-rights reserved under the
copyright laws of the United States. If acquired by or on behalf of any agency
within the United States Department of Defense (“D.O.D.”), the United States Government acquires this
Commercial Computer Software and Commercial Computer Software Documentation
subject to the terms of this License Agreement herein as specified in 48 C.F.R. section 227.7202 of the D.O.D.
F.A.R. Supplement and its successors;
8.2 ASIA
8.2.1 INDIA:
LIMITATION
OF LIABILITY: FOR EACH SECTION 2.10,
5.1.4,
7.2.5, 7.3.3 AND 7.5.10 ABOVE, THE
FOLLOWING SECTION 8.2.1.1 AND SECTIONS
8.2.1.2, 8.2.1.3,
8.2.1.4 AND 8.2.1.5 REPLACES EACH SECTION IN ITS ENTIRETY
AS SET FORTH BELOW:
8.2.1.1 LIMITATION OF LIABILITY:
EXCEPT FOR THE EXCLUSIVE REMEDY SET FORTH ABOVE, IN NO
EVENT WILL FUTURE CORPORATION, ITS AFFILIATES, ITS SUPPLIERS AND/OR ITS
AUTHORIZED DEALERS BE LIABLE TO YOU FOR ANY LOSS, DAMAGES, CLAIMS OR COSTS
WHATSOEVER INCLUDING ANY SPECIAL, CONSEQUENTIAL, INDIRECT OR INCIDENTAL
DAMAGES, LOST TIME, LOST PROFITS OR LOST SAVINGS, ANY DAMAGES RESULTING FROM
BUSINESS INTERRUPTION, LOST DATA, OR TO BUSINESS AND/OR PERSONAL REPUTATION,
PERSONAL INJURY (INCLUDING DEATH) OR FAILURE TO MEET ANY DUTY OF CARE, OR
CLAIMS BY A THIRD PARTY ARISING FROM THIS AGREEMENT, EVEN IF FUTURE
CORPORATION, ITS AFFILIATES, ITS SUPPLIERS AND/OR AUTHORIZED DEALERS AND/OR A
FUTURE CORPORATION REPRESENTATIVE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
LOSS, DAMAGES, CLAIMS OR COSTS, EXCEPT WHERE LIABILITY FOR BODILY INJURY
(INCLUDING DEATH) OR DAMAGE TO REAL PROPERTY AND TANGIBLE PERSONAL PROPERTY
WILL BE LIMITED TO THAT CAUSED BY FUTURE CORPORATION’S NEGLIGENCE. THE
FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY
APPLICABLE LAW IN YOUR JURISDICTION. FUTURE CORPORATION’S AGGREGATE LIABILITY
AND THAT OF ITS AFFILIATES, ITS SUPPLIERS AND/OR ITS AUTHORIZED DEALERS UNDER
OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR
THIS LICENSE, IF ANY. THIS LIMITATION WILL APPLY EVEN IN THE EVENT OF A
FUNDAMENTAL, MATERIAL OR SERIOUS BREACH OR A BREACH OF THE FUNDAMENTAL OR
MATERIAL TERMS OF THIS AGREEMENT. FUTURE CORPORATION IS ACTING ON BEHALF OF ITS
AFFILIATES, ITS SUPPLIERS AND/OR ITS AUTHORIZED DEALERS FOR THE PURPOSE OF
DISCLAIMING, EXCLUDING AND LIMITING OBLIGATIONS, WARRANTIES AND LIABILITY WITH
RESPECT TO THIS LICENSE ONLY AND FOR NO OTHER PURPOSE OR RESPECT.
8.2.1.2 For the purposes of section 5.1.4 which is
replaced in its entirety by section 8.2.1.1 by section 8.2.1 above, the
following words from section 8.2.1.1: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM YOUR USE
OF, OR GETTING, OR SOURCING TECHNICAL SUPPORT”; and (ii) the following words: “SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF
ANY.”, are entirely replaced with: “SHALL BE LIMITED TO THE AMOUNT PAID FOR
TECHNICAL SUPPORT, IF ANY.”; and,
8.2.1.3 For the purposes of section 7.2.5 which is
replaced in its entirety by section 8.2.1.1 by section 8.2.1 above, the
following words from section 8.2.1.1: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM USE OF THE BETA SOFTWARE”; and (ii) the following words: “SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF
ANY.”, are entirely replaced with: “SHALL BE LIMITED TO THE AMOUNT PAID FOR THE
BETA SOFTWARE, IF ANY.”; and,
8.2.1.4 For the purposes of section 7.3.3 which is
replaced in its entirety by section 8.2.1.1 by section 8.2.1 above, the
following words from section 8.2.1.1: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM USE OF THE DEMONSTRATION SOFTWARE”; and (ii) the following
words: “SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS
LICENSE, IF ANY.”, are entirely replaced with: “SHALL BE LIMITED TO THE AMOUNT
PAID FOR THE DEMONSTRATION SOFTWARE, IF ANY.”; and,
8.2.1.5 For the purposes of section 7.5.10 which is
replaced in its entirety by section 8.2.1.1 by section 8.2.1 above, the
following words from section 8.2.1.1: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM YOUR USE
OF THE SDK OR FUTURE CORPORATION EXTENSIONS OR DAMAGE ARISING FROM YOUR PARTICIPATION
IN HOSTING OR USE OF THIRD PARTY PRODUCTS, HOWEVER CAUSED AND ON ANY THEORY OF
LIABILITY”; and (ii) the following words: “SHALL BE
LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF ANY.”, are entirely replaced
with: “SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS SDK LICENSE, IF ANY.”;
8.2.1.6 INDIA:
GENERAL PROVISIONS:
For Section 3 above: The following replaces section 3.6 in its entirety:
LIMITATION TO BRING AN ACTION:
You
acknowledge and agree that neither will Future Corporation, its Affiliates,
and/or its Authorized Dealers, or will you, bring a legal action under this
Agreement more than three (3) years after the cause of action arose unless
otherwise provided by local law without the possibility of contractual waiver or
limitation;
8.2.2 JAPAN: GENERAL PROVISIONS:
FOR SECTION 3 ABOVE, THE FOLLOWING IS ADDED TO THE END OF THIS
SECTION
8.2.2.1 NEGOTIATION: Any doubts concerning this Agreement will be initially resolved
between us in good faith and in accordance with the principle of mutual trust;
8.2.3 MALAYSIA:
LIMITATION
OF LIABILITY: FOR EACH SECTION 2.10,
5.1.4,
7.2.5, 7.3.3 AND 7.5.10 ABOVE, THE
FOLLOWING SECTION 8.2.3.1 AND SECTIONS
8.2.3.2, 8.2.3.3,
8.2.3.4 AND 8.2.3.5 REPLACES EACH SECTION IN ITS ENTIRETY
AS SET FORTH BELOW:
8.2.3.1 LIMITATION OF LIABILITY:
EXCEPT FOR THE EXCLUSIVE REMEDY SET FORTH ABOVE, IN NO
EVENT WILL FUTURE CORPORATION, ITS AFFILIATES, ITS SUPPLIERS AND/OR ITS
AUTHORIZED DEALERS BE LIABLE TO YOU FOR ANY LOSS, DAMAGES, CLAIMS OR COSTS
WHATSOEVER INCLUDING ANY CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES, LOST
TIME, LOST PROFITS OR LOST SAVINGS, ANY DAMAGES RESULTING FROM BUSINESS
INTERRUPTION, LOST DATA, OR TO BUSINESS AND/OR PERSONAL REPUTATION, PERSONAL
INJURY (INCLUDING DEATH) OR FAILURE TO MEET ANY DUTY OF CARE, OR CLAIMS BY A
THIRD PARTY ARISING FROM THIS AGREEMENT, EVEN IF FUTURE CORPORATION, ITS
AFFILIATES, ITS SUPPLIERS AND/OR AUTHORIZED DEALERS AND/OR A FUTURE CORPORATION
REPRESENTATIVE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES,
CLAIMS OR COSTS. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT
PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. FUTURE CORPORATION’S AGGREGATE
LIABILITY AND THAT OF ITS AFFILIATES, ITS SUPPLIERS AND/OR ITS AUTHORIZED
DEALERS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE
AMOUNT PAID FOR THIS LICENSE, IF ANY. THIS LIMITATION WILL APPLY EVEN IN THE
EVENT OF A FUNDAMENTAL, MATERIAL OR SERIOUS BREACH OR A BREACH OF THE
FUNDAMENTAL OR MATERIAL TERMS OF THIS AGREEMENT. FUTURE CORPORATION IS ACTING
ON BEHALF OF ITS AFFILIATES, ITS SUPPLIERS AND/OR ITS AUTHORIZED DEALERS FOR
THE PURPOSE OF DISCLAIMING, EXCLUDING AND LIMITING OBLIGATIONS, WARRANTIES AND
LIABILITY WITH RESPECT TO THIS LICENSE ONLY AND FOR NO OTHER PURPOSE OR
RESPECT;
8.2.3.2 For the purposes of section 5.1.4 which is
replaced in its entirety by section 8.2.3.1 by section 8.2.3 above, the
following words from section 8.2.3.1: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM YOUR USE
OF, OR GETTING, OR SOURCING TECHNICAL SUPPORT”; and (ii) the following words: “SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF
ANY.”, are entirely replaced with: “SHALL BE LIMITED TO THE AMOUNT PAID FOR
TECHNICAL SUPPORT, IF ANY.”; and,
8.2.3.3 For the purposes of section 7.2.5 which is
replaced in its entirety by section 8.2.3.1 by section 8.2.3 above, the
following words from section 8.2.3.1: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM USE OF THE BETA SOFTWARE”; and (ii) the following words: “SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF
ANY.”, are entirely replaced with: “SHALL BE LIMITED TO THE AMOUNT PAID FOR THE
BETA SOFTWARE, IF ANY.”; and,
8.2.3.4 For the purposes of section 7.3.3 which is
replaced in its entirety by section 8.2.3.1 by section 8.2.3 above, the
following words from section 8.2.3.1: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM USE OF THE DEMONSTRATION SOFTWARE”; and (ii) the following
words: “SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS
LICENSE, IF ANY.”, are entirely replaced with: “SHALL BE LIMITED TO THE AMOUNT
PAID FOR THE DEMONSTRATION SOFTWARE, IF ANY.”; and,
8.2.3.5 For the purposes of section 7.5.10 which is
replaced in its entirety by section 8.2.3.1 by section 8.2.3 above, the
following words from section 8.2.3.1: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM YOUR USE
OF THE SDK OR FUTURE CORPORATION EXTENSIONS OR DAMAGE ARISING FROM YOUR
PARTICIPATION IN HOSTING OR USE OF THIRD PARTY PRODUCTS, HOWEVER CAUSED AND ON
ANY THEORY OF LIABILITY”; and (ii) the following words: “SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF
ANY.”, are entirely replaced with: “SHALL BE LIMITED TO THE AMOUNT PAID FOR
THIS SDK LICENSE, IF ANY.”;
8.2.4 PEOPLE’S REPUBLIC OF CHINA:
GENERAL PROVISIONS: FOR SECTION 3 ABOVE: THE FOLLOWING
IS ADDED TO THE END OF THIS SECTION:
8.2.4.1 BANK CHARGES: All banking charges incurred in the People’s Republic of China
will be borne by you and those incurred outside the People’s Republic of China
will be borne by Future Corporation, its Affiliates, and/or its Authorized
Dealers;
8.2.5 PHILIPPINES:
LIMITATION
OF LIABILITY: FOR EACH SECTION 2.10,
5.1.4,
7.2.5, 7.3.3 AND 7.5.10 ABOVE, THE
FOLLOWING SECTION 8.2.5.1 AND SECTIONS
8.2.5.2, 8.2.5.3,
8.2.5.4 AND 8.2.5.5
REPLACES EACH SECTION IN
ITS ENTIRETY
AS SET FORTH BELOW:
8.2.5.1 LIMITATION OF LIABILITY:
EXCEPT FOR THE EXCLUSIVE REMEDY SET FORTH ABOVE, IN NO
EVENT WILL FUTURE CORPORATION, ITS AFFILIATES, ITS SUPPLIERS AND/OR ITS
AUTHORIZED DEALERS BE LIABLE TO YOU FOR ANY LOSS, DAMAGES, CLAIMS OR COSTS
WHATSOEVER INCLUDING ANY SPECIAL (INCLUDING NOMINAL AND EXEMPLARY DAMAGES),
MORAL, INCIDENTAL, OR INDIRECT DAMAGES OR FOR ANY ECONOMIC CONSEQUENTIAL
DAMAGES, LOST TIME, LOST PROFITS OR LOST SAVINGS, ANY DAMAGES RESULTING FROM
BUSINESS INTERRUPTION, LOST DATA, OR TO BUSINESS AND/OR PERSONAL REPUTATION,
PERSONAL INJURY (INCLUDING DEATH) OR FAILURE TO MEET ANY DUTY OF CARE, OR
CLAIMS BY A THIRD PARTY ARISING FROM THIS AGREEMENT, EVEN IF FUTURE
CORPORATION, ITS AFFILIATES, ITS SUPPLIERS AND/OR AUTHORIZED DEALERS AND/OR A
FUTURE CORPORATION REPRESENTATIVE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
LOSS, DAMAGES, CLAIMS OR COSTS. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY
TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. FUTURE
CORPORATION’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES, ITS SUPPLIERS
AND/OR ITS AUTHORIZED DEALERS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL
BE LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF ANY. THIS LIMITATION WILL
APPLY EVEN IN THE EVENT OF A FUNDAMENTAL, MATERIAL OR SERIOUS BREACH OR A
BREACH OF THE FUNDAMENTAL OR MATERIAL TERMS OF THIS AGREEMENT. FUTURE
CORPORATION IS ACTING ON BEHALF OF ITS AFFILIATES, ITS SUPPLIERS AND/OR ITS
AUTHORIZED DEALERS FOR THE PURPOSE OF DISCLAIMING, EXCLUDING AND LIMITING
OBLIGATIONS, WARRANTIES AND LIABILITY WITH RESPECT TO THIS LICENSE ONLY AND FOR
NO OTHER PURPOSE OR RESPECT;
8.2.5.2 For the purposes of section 5.1.4 which is
replaced in its entirety by section 8.2.5.1 by section 8.2.5 above, the
following words from section 8.2.5.1: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM YOUR USE
OF, OR GETTING, OR SOURCING TECHNICAL SUPPORT”; and (ii) the following words: “SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF
ANY.”, are entirely replaced with: “SHALL BE LIMITED TO THE AMOUNT PAID FOR
TECHNICAL SUPPORT, IF ANY.”; and,
8.2.5.3 For the purposes of section 7.2.5 which is
replaced in its entirety by section 8.2.5.1 by section 8.2.5 above, the
following words from section 8.2.5.1: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM USE OF THE BETA SOFTWARE”; and (ii) the following words: “SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF
ANY.”, are entirely replaced with: “SHALL BE LIMITED TO THE AMOUNT PAID FOR THE
BETA SOFTWARE, IF ANY.”; and,
8.2.5.4 For the purposes of section 7.3.3 which is
replaced in its entirety by section 8.2.5.1 by section 8.2.5 above, the
following words from section 8.2.5.1: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM USE OF THE DEMONSTRATION SOFTWARE”; and (ii) the following
words: “SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS
LICENSE, IF ANY.”, are entirely replaced with: “SHALL BE LIMITED TO THE AMOUNT
PAID FOR THE DEMONSTRATION SOFTWARE, IF ANY.”; and,
8.2.5.5 For the purposes of section 7.5.10 which is
replaced in its entirety by section 8.2.5.1 by section 8.2.5 above, the
following words from section 8.2.5.1: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM YOUR USE
OF THE SDK OR FUTURE CORPORATION EXTENSIONS OR DAMAGE ARISING FROM YOUR
PARTICIPATION IN HOSTING OR USE OF THIRD PARTY PRODUCTS, HOWEVER CAUSED AND ON
ANY THEORY OF LIABILITY”; and (ii) the following words: “SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF
ANY.”, are entirely replaced with: “SHALL BE LIMITED TO THE AMOUNT PAID FOR
THIS SDK LICENSE, IF ANY.”;
8.2.6 SINGAPORE:
LIMITATION
OF LIABILITY: FOR EACH SECTION 2.10,
5.1.4,
7.2.5, 7.3.3 AND 7.5.10 ABOVE, THE
FOLLOWING SECTION 8.2.6.1 AND SECTIONS
8.2.6.3, 8.2.6.4,
8.2.6.5 AND 8.2.6.6
REPLACES EACH SECTION IN
ITS ENTIRETY
AS SET FORTH BELOW:
8.2.6.1 LIMITATION OF LIABILITY:
EXCEPT FOR THE EXCLUSIVE REMEDY SET FORTH ABOVE, IN NO
EVENT WILL FUTURE CORPORATION, ITS AFFILIATES, ITS SUPPLIERS AND/OR ITS
AUTHORIZED DEALERS BE LIABLE TO YOU FOR ANY LOSS, DAMAGES, CLAIMS OR COSTS
WHATSOEVER INCLUDING ANY CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES, LOST
TIME, LOST PROFITS OR LOST SAVINGS, ANY DAMAGES RESULTING FROM BUSINESS
INTERRUPTION, LOST DATA, OR TO BUSINESS AND/OR PERSONAL REPUTATION, PERSONAL
INJURY (INCLUDING DEATH) OR FAILURE TO MEET ANY DUTY OF CARE, OR CLAIMS BY A
THIRD PARTY ARISING FROM THIS AGREEMENT, EVEN IF FUTURE CORPORATION, ITS
AFFILIATES, ITS SUPPLIERS AND/OR AUTHORIZED DEALERS AND/OR A FUTURE CORPORATION
REPRESENTATIVE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES,
CLAIMS OR COSTS. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT
PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. FUTURE CORPORATION’S AGGREGATE
LIABILITY AND THAT OF ITS AFFILIATES, ITS SUPPLIERS AND/OR ITS AUTHORIZED
DEALERS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE
AMOUNT PAID FOR THIS LICENSE, IF ANY. THIS LIMITATION WILL APPLY EVEN IN THE
EVENT OF A FUNDAMENTAL, MATERIAL OR SERIOUS BREACH OR A BREACH OF THE
FUNDAMENTAL OR MATERIAL TERMS OF THIS AGREEMENT. FUTURE CORPORATION IS ACTING
ON BEHALF OF ITS AFFILIATES, ITS SUPPLIERS AND/OR ITS AUTHORIZED DEALERS FOR
THE PURPOSE OF DISCLAIMING, EXCLUDING AND LIMITING OBLIGATIONS, WARRANTIES AND
LIABILITY WITH RESPECT TO THIS LICENSE ONLY AND FOR NO OTHER PURPOSE OR
RESPECT;
8.2.6.2
SUBJECT TO THE RIGHTS PROVIDED TO FUTURE CORPORATION’S SUPPLIERS AS PROVIDED IN
SECTION 8.2.6.1 ABOVE (LIMITATION OF LIABILITY), A PERSON WHO IS NOT A PARTY TO
THIS AGREEMENT SHALL HAVE NO RIGHT UNDER THE CONTRACTS (RIGHT OF THIRD PARTIES)
ACT TO ENFORCE ANY OF ITS TERMS;
8.2.6.3 For the purposes of section 5.1.4 which is
replaced in its entirety by section 8.2.6.1 by section 8.2.6 above, the
following words from section 8.2.6.1: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM YOUR USE
OF, OR GETTING, OR SOURCING TECHNICAL SUPPORT”; and (ii) the following words: “SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF
ANY.”, are entirely replaced with: “SHALL BE LIMITED TO THE AMOUNT PAID FOR
TECHNICAL SUPPORT, IF ANY.”; and,
8.2.6.4 For the purposes of section 7.2.5 which is
replaced in its entirety by section 8.2.6.1 by section 8.2.6 above, the
following words from section 8.2.6.1: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM USE OF THE BETA SOFTWARE”; and (ii) the following words: “SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF
ANY.”, are entirely replaced with: “SHALL BE LIMITED TO THE AMOUNT PAID FOR THE
BETA SOFTWARE, IF ANY.”; and,
8.2.6.5 For the purposes of section 7.3.3 which is
replaced in its entirety by section 8.2.6.1 by section 8.2.6 above, the
following words from section 8.2.6.1: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM USE OF THE DEMONSTRATION SOFTWARE”; and (ii) the following
words: “SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS
LICENSE, IF ANY.”, are entirely replaced with: “SHALL BE LIMITED TO THE AMOUNT
PAID FOR THE DEMONSTRATION SOFTWARE, IF ANY.”; and,
8.2.6.6 For the purposes of section 7.5.10 which is
replaced in its entirety by section 8.2.6.1 by section 8.2.6 above, the
following words from section 8.2.6.1: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM YOUR USE
OF THE SDK OR FUTURE CORPORATION EXTENSIONS OR DAMAGE ARISING FROM YOUR
PARTICIPATION IN HOSTING OR USE OF THIRD PARTY PRODUCTS, HOWEVER CAUSED AND ON
ANY THEORY OF LIABILITY”; and (ii) the following words: “SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF
ANY.”, are entirely replaced with: “SHALL BE LIMITED TO THE AMOUNT PAID FOR
THIS SDK LICENSE, IF ANY.”;
8.2.7 TAIWAN:
LIMITED
WARRANTY: SECTION 2.8 AND SECTION 2.8.3 ABOVE IS DELETED;
8.3 EUROPE, MIDDLE EAST AND AFRICA
8.3.1 EUROPEAN UNION:
LIMITED WARRANTY: FOR SECTION 2.8 THROUGH 2.8.4 INCLUSIVE (ABOVE): THE
FOLLOWING IS ADDED TO THE END OF THIS SECTION:
8.3.1.1 CONSUMER RIGHTS: IN THE EUROPEAN UNION, CONSUMERS HAVE LEGAL RIGHTS UNDER
APPLICABLE NATIONAL LEGISLATION GOVERNING THE SALE OF CONSUMER GOODS. SUCH RIGHTS
ARE NOT AFFECTED BY THE LIMITED WARRANTY PROVISION SET OUT ABOVE AT SECTION 2.8
THROUGH 2.8.4 INCLUSIVE OF THIS AGREEMENT. THE TERRITORIAL SCOPE OF THE LIMITED WARRANTY
IS WORLDWIDE;
8.3.2 AUSTRIA, DENMARK, FINLAND, GREECE, ITALY,
NETHERLANDS, NORWAY, PORTUGAL, SPAIN, SWEDEN AND SWITZERLAND:
LIMITATION
OF LIABILITY: FOR EACH SECTION 2.10,
5.1.4,
7.2.5, 7.3.3 AND 7.5.10 ABOVE, THE
FOLLOWING SECTIONS
8.3.2.1, 8.3.2.2 AND
8.3.2.3 REPLACES
EACH SECTION IN ITS ENTIRETY
AS SET FORTH BELOW:
8.3.2.1
EXCEPT AS OTHERWISE PROVIDED BY MANDATORY LAW: FUTURE CORPORATION’S LIABILITY
FOR ANY DAMAGES AND LOSSES THAT MAY ARISE AS A CONSEQUENCE OF THE FULFILMENT OF
ITS OBLIGATIONS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR DUE TO ANY OTHER
CAUSE RELATED TO THIS AGREEMENT IS LIMITED TO THE COMPENSATION OF ONLY THOSE
DAMAGES AND LOSSES PROVED AND ACTUALLY ARISING AS AN IMMEDIATE AND DIRECT
CONSEQUENCE OF THE NON-FULFILMENT OF SUCH OBLIGATIONS (IF FUTURE CORPORATION IS
AT FAULT) OR OF SUCH CAUSE, FOR A MAXIMUM AMOUNT EQUAL TO THE CHARGES YOU PAID
FOR THE SOFTWARE LICENSE;
THE ABOVE LIMITATION SHALL NOT APPLY TO DAMAGES FOR BODILY
INJURIES (INCLUDING DEATH) AND DAMAGES TO REAL PROPERTY AND TANGIBLE PERSONAL
PROPERTY FOR WHICH FUTURE CORPORATION IS LEGALLY LIABLE;
8.3.2.2
UNDER NO CIRCUMSTANCES IS FUTURE CORPORATION, ITS AFFILIATES, ITS SUPPLIERS
AND/OR ITS AUTHORIZED DEALERS, LIABLE FOR ANY OF THE FOLLOWING, EVEN IF
INFORMED OF THEIR POSSIBILITY: (I) LOSS OF, OR DAMAGE TO, DATA; (II) INCIDENTAL
OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; (III) LOST PROFITS,
EVEN IF THEY ARISE AS AN IMMEDIATE CONSEQUENCE OF THE EVENT THAT GENERATED THE
DAMAGES; OR (IV) LOSS OF BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS;
8.3.2.3
THE LIMITATION AND EXCLUSION OF LIABILITY HEREIN AGREED APPLIES NOT ONLY TO THE
ACTIVITIES PERFORMED BY FUTURE CORPORATION BUT ALSO TO THE ACTIVITIES PERFORMED
BY ITS AFFILIATES, ITS SUPPLIERS AND AUTHORIZED DEALERS, AND REPRESENTS THE
MAXIMUM AMOUNT FOR WHICH FUTURE CORPORATION, ITS AFFILIATES, ITS SUPPLIERS
AND/OR ITS AUTHORIZED DEALERS, ARE COLLECTIVELY RESPONSIBLE;
8.3.3 FRANCE AND BELGIUM:
LIMITATION
OF LIABILITY: FOR EACH SECTION 2.10,
5.1.4,
7.2.5, 7.3.3 AND 7.5.10 ABOVE, THE
FOLLOWING SECTIONS
8.3.3.1, 8.3.3.2 AND
8.3.3.3 REPLACES
EACH SECTION IN ITS ENTIRETY
AS SET FORTH BELOW:
8.3.3.1
EXCEPT AS OTHERWISE PROVIDED BY MANDATORY LAW: FUTURE CORPORATION’S LIABILITY
FOR ANY DAMAGES AND LOSSES THAT MAY ARISE AS A CONSEQUENCE OF THE FULFILMENT OF
ITS OBLIGATIONS UNDER OR IN CONNECTION WITH THIS AGREEMENT IS LIMITED TO THE
COMPENSATION OF ONLY THOSE DAMAGES AND LOSSES PROVED AND ACTUALLY ARISING AS AN
IMMEDIATE AND DIRECT CONSEQUENCE OF THE NON-FULFILMENT OF SUCH OBLIGATIONS (IF
FUTURE CORPORATION IS AT FAULT), FOR A MAXIMUM AMOUNT EQUAL TO THE CHARGES YOU
PAID FOR THE SOFTWARE LICENSE THAT HAS CAUSED THE DAMAGES;
THE ABOVE LIMITATION SHALL NOT APPLY TO DAMAGES FOR BODILY
INJURIES (INCLUDING DEATH) AND DAMAGES TO REAL PROPERTY AND TANGIBLE PERSONAL
PROPERTY FOR WHICH FUTURE CORPORATION IS LEGALLY LIABLE;
8.3.3.2
UNDER NO CIRCUMSTANCES IS FUTURE CORPORATION, ITS AFFILIATES, ITS SUPPLIERS
AND/OR ITS AUTHORIZED DEALERS, LIABLE FOR ANY OF THE FOLLOWING, EVEN IF
INFORMED OF THEIR POSSIBILITY: (I) LOSS OF, OR DAMAGE TO, DATA; (II) INCIDENTAL
OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; (III) LOST
PROFITS, EVEN IF THEY ARISE AS AN IMMEDIATE CONSEQUENCE OF THE EVENT THAT
GENERATED THE DAMAGES; OR (IV) LOSS OF BUSINESS, REVENUE, GOODWILL, OR
ANTICIPATED SAVINGS;
8.3.3.3
THE LIMITATION AND EXCLUSION OF LIABILITY HEREIN AGREED APPLIES NOT ONLY TO THE
ACTIVITIES PERFORMED BY FUTURE CORPORATION BUT ALSO TO THE ACTIVITIES PERFORMED
BY ITS AFFILIATES, ITS SUPPLIERS AND AUTHORIZED DEALERS, AND REPRESENTS THE
MAXIMUM AMOUNT FOR WHICH FUTURE CORPORATION, ITS AFFILIATES, ITS SUPPLIERS
AND/OR ITS AUTHORIZED DEALERS, ARE COLLECTIVELY RESPONSIBLE;
8.3.4 AUSTRIA:
LIMITED WARRANTY: FOR
EACH SECTION
2.8, 2.8.1, 2.8.2, 2.8.3, 2.8.4,
5.1.3, 7.2.4, 7.3.2 AND 7.5.9
ABOVE, THE FOLLOWING SECTIONS 8.3.4.1,
8.3.4.2,
8.3.4.3 AND
8.3.4.4 REPLACES THESE SECTIONS IN THEIR
ENTIRETY AS SET FORTH BELOW:
8.3.4.1 LIMITED WARRANTY:
FUTURE CORPORATION WARRANTS TO THE INDIVIDUAL OR LEGAL
ENTITY THAT FIRST PURCHASES A LICENSE FOR THE SOFTWARE FOR USE PURSUANT TO THE
TERMS OF THIS AGREEMENT THAT FOR NORMAL USE THE SOFTWARE WILL PERFORM
SUBSTANTIALLY IN ACCORDANCE WITH THE SOFTWARE’S PUBLISHED FUNCTIONALITY AND
WILL BE FREE FROM DEFECT IN MATERIALS AND WORKMANSHIP FOR ONE (1) YEAR FOR
BUSINESS USERS AND TWO (2) YEARS FOR INDIVIDUAL USERS FROM THE DATE OF PURCHASE
ONLY WHEN USED WITH THE RECOMMENDED OPERATING SYSTEM AND HARDWARE CONFIGURATION
FOR THE SOFTWARE AS SET OUT IN THE SOFTWARE’S DOCUMENTATION AND/OR AT FUTURE
CORPORATION’S INTERNET SITE;
8.3.4.2 EXCLUSIONS FROM WARRANTY: THIS LIMITED WARRANTY DOES NOT APPLY TO: BETA,
DEMONSTRATION, EVALUATION, FREE-TRIAL, PRE-RELEASE, PRODUCT SAMPLER, TRY-OUT,
SDK, OR NOT FOR RESALE VERSIONS OF THE SOFTWARE OR FUTURE CORPORATION ONLINE
SERVICES, FUTURE CORPORATION TECHNICAL SUPPORT, FUTURE CORPORATION LIVE UPDATE,
FUTURE CORPORATION INTERNET SITES, OR THE SOFTWARE’S INTERACTIVE AGENTS. THIS
WARRANTY DOES NOT COVER PROBLEMS CAUSED BY: (A) YOUR ACTS OR OMISSIONS
(FAILURES TO ACT); AND/OR (B) THE ACTS OF OTHERS (INCLUDING THIRD PARTIES);
AND/OR (C) MALICIOUS SOFTWARE (INCLUDING BUT NOT LIMITED TO MALWARE, TROJANS,
VIRUSES OR WORMS); AND/OR (D) INCORRECTLY OR IMPROPERLY CONFIGURED THIRD PARTY
SOFTWARE (INCLUDING BUT NOT LIMITED TO THE OPERATING SYSTEM, ANTIVIRUS AND/OR
ANY INTERNAL OR EXTERNAL NETWORK); AND/OR (E) EVENTS BEYOND FUTURE CORPORATION’S
REASONABLE CONTROL.
FURTHER YOU HEREBY
ACKNOWLEDGE AND AGREE THAT INSUBSTANTIAL OR MINOR VARIATION OF PERFORMANCE FROM
THE SOFTWARE’S PUBLISHED FUNCTIONALITY OR YOUR INABILITY TO CORRECTLY USE THE
SOFTWARE OR OPERATING SYSTEM (COMPUTER ILLITERACY) DOES NOT ON ITS OWN ESTABLISH
A WARRANTY RIGHT;
8.3.4.3 REMEDY FOR BREACH OF WARRANTY: FUTURE CORPORATION WILL REPAIR OR REPLACE THE SOFTWARE AT
NO CHARGE. IF FUTURE CORPORATION CANNOT REPAIR OR REPLACE IT, FUTURE CORPORATION
WILL REFUND THE AMOUNT SHOWN ON YOUR RECEIPT FOR THE SOFTWARE. FUTURE
CORPORATION WILL ALSO REPAIR OR REPLACE PATCHES, SERVICE PACKS, UPDATES,
UPGRADES AND CONVERSION SOFTWARE AT NO CHARGE. IF FUTURE CORPORATION CANNOT
REPAIR OR REPLACE THEM, IT WILL REFUND THE AMOUNT YOU PAID FOR THEM, IF ANY.
YOU MUST UNINSTALL AND WHERE APPLICABLE DEACTIVATE AND/OR DEREGISTER THE
SOFTWARE AND RETURN ANY MEDIA AND OTHER ASSOCIATED MATERIALS INCLUDING THE
HARDWARE SECURITY DEVICE (IF APPLICABLE) TO FUTURE CORPORATION WITH PROOF OF
PURCHASE TO OBTAIN A REFUND. THESE ARE YOUR ONLY REMEDIES FOR BREACH OF THE
LIMITED WARRANTY AND IS OUR SOLE OBLIGATION TO YOU, EXCEPT AS OTHERWISE
REQUIRED BY APPLICABLE STATUTORY LAW;
8.3.4.4 WARRANTY PROCEDURES: ALL WARRANTY CLAIMS MUST BE MADE, ALONG WITH PROOF OF
PURCHASE, TO THE FUTURE CORPORATION CUSTOMER SUPPORT DEPARTMENT WITHIN THE
WARRANTY PERIOD AS SET FORTH IN SECTION 8.3.4.1 ABOVE. VISIT THE FUTURE
CORPORATION CUSTOMER SUPPORT PAGES FOR MORE INFORMATION ABOUT WARRANTY CLAIMS AT:
http://www.iifuture.com/en/support.html;
8.3.5 GERMANY:
LIMITED WARRANTY: FOR
EACH SECTION
2.8, 2.8.1, 2.8.2, 2.8.3, 2.8.4,
5.1.3, 7.2.4, 7.3.2 AND 7.5.9
ABOVE, THE FOLLOWING SECTIONS 8.3.5.1, 8.3.5.2, 8.3.5.3 AND 8.3.5.4 REPLACES THESE SECTIONS IN THEIR
ENTIRETY AS SET FORTH BELOW:
8.3.5.1 LIMITED WARRANTY:
FUTURE CORPORATION WARRANTS TO THE INDIVIDUAL OR LEGAL
ENTITY THAT FIRST PURCHASES A LICENSE FOR THE SOFTWARE FOR USE PURSUANT TO THE
TERMS OF THIS AGREEMENT THAT FOR NORMAL USE THE SOFTWARE WILL PERFORM
SUBSTANTIALLY IN ACCORDANCE WITH THE SOFTWARE’S PUBLISHED FUNCTIONALITY AND
WILL BE FREE FROM DEFECT IN MATERIALS AND WORKMANSHIP FOR ONE (1) YEAR FOR
BUSINESS USERS AND TWO (2) YEARS FOR INDIVIDUAL USERS FROM THE DATE OF PURCHASE
ONLY WHEN USED WITH THE RECOMMENDED OPERATING SYSTEM AND HARDWARE CONFIGURATION
FOR THE SOFTWARE AS SET OUT IN THE SOFTWARE’S DOCUMENTATION AND/OR AT FUTURE
CORPORATION’S INTERNET SITE;
8.3.5.2 EXCLUSIONS FROM WARRANTY: THIS LIMITED WARRANTY DOES NOT APPLY TO: BETA,
DEMONSTRATION, EVALUATION, FREE-TRIAL, PRE-RELEASE, PRODUCT SAMPLER, TRY-OUT,
SDK, OR NOT FOR RESALE VERSIONS OF THE SOFTWARE OR FUTURE CORPORATION ONLINE
SERVICES, FUTURE CORPORATION TECHNICAL SUPPORT, FUTURE CORPORATION LIVE UPDATE,
FUTURE CORPORATION INTERNET SITES, OR THE SOFTWARE’S INTERACTIVE AGENTS. THIS
WARRANTY DOES NOT COVER PROBLEMS CAUSED BY: (A) YOUR ACTS OR OMISSIONS
(FAILURES TO ACT); AND/OR (B) THE ACTS OF OTHERS (INCLUDING THIRD PARTIES);
AND/OR (C) MALICIOUS SOFTWARE (INCLUDING BUT NOT LIMITED TO MALWARE, TROJANS,
VIRUSES OR WORMS); AND/OR (D) INCORRECTLY OR IMPROPERLY CONFIGURED THIRD PARTY
SOFTWARE (INCLUDING BUT NOT LIMITED TO THE OPERATING SYSTEM, ANTIVIRUS AND/OR
ANY INTERNAL OR EXTERNAL NETWORK); AND/OR (E) EVENTS BEYOND FUTURE CORPORATION’S
REASONABLE CONTROL.
FURTHER YOU HEREBY
ACKNOWLEDGE AND AGREE THAT INSUBSTANTIAL OR MINOR VARIATION OF PERFORMANCE FROM
THE SOFTWARE’S PUBLISHED FUNCTIONALITY OR YOUR INABILITY TO CORRECTLY USE THE
SOFTWARE OR OPERATING SYSTEM (COMPUTER ILLITERACY) DOES NOT ON ITS OWN ESTABLISH
A WARRANTY RIGHT;
8.3.5.3 REMEDY FOR BREACH OF WARRANTY: FUTURE CORPORATION WILL REPAIR OR REPLACE THE SOFTWARE AT
NO CHARGE. IF FUTURE CORPORATION CANNOT REPAIR OR REPLACE IT, FUTURE CORPORATION
WILL REFUND THE AMOUNT SHOWN ON YOUR RECEIPT FOR THE SOFTWARE. FUTURE
CORPORATION WILL ALSO REPAIR OR REPLACE PATCHES, SERVICE PACKS, UPDATES,
UPGRADES AND CONVERSION SOFTWARE AT NO CHARGE. IF FUTURE CORPORATION CANNOT
REPAIR OR REPLACE THEM, IT WILL REFUND THE AMOUNT YOU PAID FOR THEM, IF ANY.
YOU MUST UNINSTALL AND WHERE APPLICABLE DEACTIVATE AND/OR DEREGISTER THE
SOFTWARE AND RETURN ANY MEDIA AND OTHER ASSOCIATED MATERIALS INCLUDING THE
HARDWARE SECURITY DEVICE (IF APPLICABLE) TO FUTURE CORPORATION WITH PROOF OF
PURCHASE TO OBTAIN A REFUND. THESE ARE YOUR ONLY REMEDIES FOR BREACH OF THE
LIMITED WARRANTY AND IS OUR SOLE OBLIGATION TO YOU, EXCEPT AS OTHERWISE
REQUIRED BY APPLICABLE STATUTORY LAW;
8.3.5.4 WARRANTY PROCEDURES: ALL WARRANTY CLAIMS MUST BE MADE, ALONG WITH PROOF OF
PURCHASE, TO THE FUTURE CORPORATION CUSTOMER SUPPORT DEPARTMENT WITHIN THE
WARRANTY PERIOD AS SET FORTH IN SECTION 8.3.5.1 ABOVE. VISIT THE FUTURE
CORPORATION CUSTOMER SUPPORT PAGES FOR MORE INFORMATION ABOUT WARRANTY CLAIMS AT:
http://www.iifuture.com/en/support.html;
8.3.5.5 GERMANY:
LIMITATION
OF LIABILITY: FOR EACH SECTION 2.10, 5.1.4,
7.2.5, 7.3.3 AND 7.5.10 ABOVE: THE FOLLOWING IS ADDED TO THE END OF THESE SECTIONS:
8.3.5.6
THE
LIMITATIONS AND EXCLUSIONS SPECIFIED IN THIS SECTION WILL NOT APPLY TO DAMAGES
CAUSED BY FUTURE CORPORATION, ITS AFFILIATES, ITS SUPPLIERS AND/OR ITS
AUTHORIZED DEALERS INTENTIONALLY OR BY GROSS NEGLIGENCE;
8.3.5.7 GERMANY:
General
Provisions: For Section 3 above: The following replaces section 3.6 in its entirety:
LIMITATION TO BRING AN ACTION: You acknowledge and agree with Future
Corporation, its Affiliates, and/or its Authorized Dealers that any claims resulting from this Agreement are subject to a
statute of limitation of three (3) years, except as stated in Section 8.3.5.1
(Limited Warranty) of this Agreement;
8.3.6 HUNGARY:
LIMITATION OF
LIABILITY: FOR EACH SECTION 2.10, 5.1.4, 7.2.5, 7.3.3
AND 7.5.10 ABOVE: THE FOLLOWING IS ADDED TO THE
END OF THESE SECTIONS:
8.3.6.1
THE LIMITATION AND EXCLUSION SPECIFIED HEREIN SHALL NOT APPLY TO LIABILITY FOR
A BREACH OF CONTRACT DAMAGING LIFE, PHYSICAL WELL-BEING, OR HEALTH THAT HAS
BEEN CAUSED INTENTIONALLY, BY GROSS NEGLIGENCE, OR BY A CRIMINAL ACT;
8.3.6.2
THE PARTIES ACCEPT THE LIMITATIONS OF LIABILITY AS VALID PROVISIONS AND STATE
THAT THE SECTION 314.(2) OF THE HUNGARIAN CIVIL CODE APPLIES AS THE ACQUISITION
PRICE AS WELL AS OTHER ADVANTAGES ARISING OUT OF THE PRESENT AGREEMENT BALANCE
THIS LIMITATION OF LIABILITY;
8.3.7 IRELAND:
LIMITED
WARRANTY: FOR EACH SECTION 2.8, 2.8.1, 2.8.2, 2.8.3, 2.8.4, 5.1.3, 7.2.4, 7.3.2 AND
7.5.9 ABOVE: THE FOLLOWING IS ADDED TO THE END OF
THESE SECTIONS:
8.3.7.1
EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS AND CONDITIONS, ALL STATUTORY
CONDITIONS, INCLUDING ALL WARRANTIES IMPLIED, BUT WITHOUT PREJUDICE TO THE GENERALITY
OF THE FOREGOING, ALL WARRANTIES IMPLIED BY THE SALE OF GOODS ACT 1893 OR THE
SALE OF GOODS AND SUPPLY OF SERVICES ACT 1980 ARE HEREBY EXCLUDED;
8.3.7.2 IRELAND: General
Provisions: For Section 3 above, The following replaces section 3.6 in its entirety: LIMITATION
TO BRING AN ACTION: You acknowledge and agree with Future Corporation, its
Affiliates, and/or its Authorized Dealers that any
claims resulting from this Agreement are subject to a statute of limitation of
one (1) year, except as stated in section 8.3.7.1 (Limited Warranty) of this
Agreement;
8.3.7.3 IRELAND:
LIMITATION
OF LIABILITY: FOR EACH SECTION 2.10,
5.1.4,
7.2.5, 7.3.3 AND 7.5.10 ABOVE, THE
FOLLOWING SECTION 8.3.7.4 AND SECTIONS
8.3.7.5, 8.3.7.6, 8.3.7.7
AND
8.3.7.8 REPLACES
EACH SECTION IN ITS ENTIRETY
AS SET FORTH BELOW:
8.3.7.4 LIMITATION OF LIABILITY:
EXCEPT FOR THE EXCLUSIVE REMEDY SET FORTH ABOVE, IN NO
EVENT WILL FUTURE CORPORATION, ITS AFFILIATES, ITS SUPPLIERS AND/OR ITS
AUTHORIZED DEALERS BE LIABLE TO YOU FOR ANY LOSS, DAMAGES, CLAIMS OR COSTS
WHATSOEVER INCLUDING ANY SPECIAL, CONSEQUENTIAL, INDIRECT OR INCIDENTAL
DAMAGES, LOST TIME, LOST PROFITS OR LOST SAVINGS, ANY DAMAGES RESULTING FROM
BUSINESS INTERRUPTION, LOST DATA, OR TO BUSINESS AND/OR PERSONAL REPUTATION,
PERSONAL INJURY (INCLUDING DEATH) OR FAILURE TO MEET ANY DUTY OF CARE, OR
CLAIMS BY A THIRD PARTY ARISING FROM THIS AGREEMENT, EVEN IF FUTURE
CORPORATION, ITS AFFILIATES, ITS SUPPLIERS AND/OR AUTHORIZED DEALERS AND/OR A
FUTURE CORPORATION REPRESENTATIVE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
LOSS, DAMAGES, CLAIMS OR COSTS. NOTWITHSTANDING THE FOREGOING PARAGRAPH NOTHING
IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE FUTURE CORPORATION’S LIABILITY FOR
DEATH OR PERSONAL INJURY CAUSED BY FUTURE CORPORATION’S NEGLIGENCE OR IN
RESPECT OF FRAUD OR OF ANY STATEMENTS MADE FRAUDULENTLY BY FUTURE CORPORATION
OR ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS AND/OR ITS
AUTHORIZED DEALERS. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE
EXTENT PERMITTED BY APPLICABLE LAW IN IRELAND. FUTURE CORPORATION’S AGGREGATE
LIABILITY AND THAT OF ITS AFFILIATES, ITS SUPPLIERS AND/OR ITS AUTHORIZED
DEALERS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE
AMOUNT PAID FOR THIS LICENSE, IF ANY. THIS LIMITATION WILL APPLY EVEN IN THE
EVENT OF A FUNDAMENTAL, MATERIAL OR SERIOUS BREACH OR A BREACH OF THE
FUNDAMENTAL OR MATERIAL TERMS OF THIS AGREEMENT. FUTURE CORPORATION IS ACTING
ON BEHALF OF ITS AFFILIATES, ITS SUPPLIERS AND/OR ITS AUTHORIZED DEALERS FOR
THE PURPOSE OF DISCLAIMING, EXCLUDING AND LIMITING OBLIGATIONS, WARRANTIES AND LIABILITY
WITH RESPECT TO THIS LICENSE ONLY AND FOR NO OTHER PURPOSE OR RESPECT AND IN NO
EVENT WILL FUTURE CORPORATION BE LIABLE FOR ANY CLAIMS, DEMANDS OR ACTIONS OF
ANY NATURE BROUGHT BY ANY THIRD PARTY AGAINST YOU;
8.3.7.5 For the purposes of section 5.1.4 which is replaced in its entirety
by section 8.3.7.4 by section 8.3.7.3 above,
the following words from section 8.3.7.4: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM YOUR USE
OF, OR GETTING, OR SOURCING TECHNICAL SUPPORT”; and (ii) the following words: “SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF
ANY.”, are entirely replaced with: “SHALL BE LIMITED TO THE AMOUNT PAID FOR
TECHNICAL SUPPORT, IF ANY.”; and,
8.3.7.6 For the purposes of section 7.2.5 which is replaced in its entirety
by section 8.3.7.4 by section 8.3.7.3 above,
the following words from section 8.3.7.4: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM USE OF THE BETA SOFTWARE”; and (ii) the following words: “SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF
ANY.”, are entirely replaced with: “SHALL BE LIMITED TO THE AMOUNT PAID FOR THE
BETA SOFTWARE, IF ANY.”; and,
8.3.7.7 For the purposes of section 7.3.3 which is replaced in its entirety
by section 8.3.7.4 by section 8.3.7.3 above,
the following words from section 8.3.7.4: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM USE OF THE DEMONSTRATION SOFTWARE”; and (ii) the following
words: “SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS
LICENSE, IF ANY.”, are entirely replaced with: “SHALL BE LIMITED TO THE AMOUNT
PAID FOR THE DEMONSTRATION SOFTWARE, IF ANY.”; and,
8.3.7.8 For the purposes of section 7.5.10 which is replaced in its entirety
by section 8.3.7.4 by section 8.3.7.3 above,
the following words from section 8.3.7.4: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM YOUR USE
OF THE SDK OR FUTURE CORPORATION EXTENSIONS OR DAMAGE ARISING FROM YOUR
PARTICIPATION IN HOSTING OR USE OF THIRD PARTY PRODUCTS, HOWEVER CAUSED AND ON
ANY THEORY OF LIABILITY”; and (ii) the following words: “SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF
ANY.”, are entirely replaced with: “SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS
SDK LICENSE, IF ANY.”;
8.3.8 ITALY:
GENERAL
PROVISIONS: FOR SECTION 3 ABOVE: THE FOLLOWING IS ADDED TO THE END OF THIS SECTION:
8.3.8.1 MUTUAL OBLIGATIONS: Future Corporation, its Affiliates and/or its Authorized
Dealers and You (hereinafter, individually “Party”) shall comply with all the
obligations of the applicable provisions of law and/or regulation on personal
data protection. Each of the Parties will indemnify and keep the other Party
harmless from any damage, claim, cost or expense incurred by the latter,
directly and or indirectly, as a consequence of an infringement of the other
Party of the mentioned provisions of law and/or regulations;
8.3.9 SLOVAKIA:
LIMITATION
OF LIABILITY: FOR EACH SECTION 2.10,
5.1.4,
7.2.5, 7.3.3 AND 7.5.10 ABOVE: the following words: “THIS LIMITATION OF
LIABILITY MAY NOT BE VALID IN SOME JURISDICTIONS.”, are entirely replaced with:
“THE LIMITATIONS APPLY TO THE EXTENT THEY ARE NOT PROHIBITED UNDER SECTIONS 373
THROUGH 386 OF THE SLOVAK COMMERCIAL CODE;
8.3.9.1
SLOVAKIA: General Provisions: For Section 3 above, The
following replaces section 3.6 in its entirety: LIMITATION TO BRING AN
ACTION: You acknowledge and agree with Future Corporation, its Affiliates,
and/or its Authorized Dealers that any claims
resulting from this Agreement are subject to a statute of limitation of four
(4) years, from the date on which the cause of action arose;
8.3.10 SOUTH AFRICA, NAMIBIA, LESOTHO, SWAZILAND:
LIMITED WARRANTY: FOR EACH SECTION 2.8, 2.8.1, 2.8.2, 2.8.3, 2.8.4, 5.1.3,
7.2.4, 7.3.2 AND 7.5.9 ABOVE:
THE FOLLOWING IS ADDED TO THE
END OF THESE SECTIONS:
8.3.10.1
NOTWITHSTANDING
ANY ADVICE OR ASSISTANCE THAT FUTURE CORPORATION MAY HAVE GIVEN TO YOU PRIOR TO
THE SELECTION OF SUCH SOFTWARE;
8.3.11 UNITED KINGDOM:
LIMITED
WARRANTY: FOR EACH SECTION 2.8, 2.8.1, 2.8.2, 2.8.3, 2.8.4, 5.1.3, 7.2.4, 7.3.2 AND
7.5.9 ABOVE:
THE FOLLOWING SECTIONS 8.3.11.1,
8.3.11.2,
8.3.11.3,
8.3.11.4
AND 8.3.11.5 REPLACES THESE SECTIONS IN THEIR ENTIRETY AS SET FORTH BELOW:
8.3.11.1 LIMITED WARRANTY:
FUTURE CORPORATION WARRANTS TO THE INDIVIDUAL OR LEGAL
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 SOFTWARE’S PUBLISHED FUNCTIONALITY AND WILL BE FREE FROM
DEFECT IN MATERIALS AND WORKMANSHIP FOR ONE (1) YEAR FROM THE DATE OF PURCHASE
WHEN USED ONLY WITH THE RECOMMENDED OPERATING SYSTEM AND HARDWARE CONFIGURATION
FOR THE SOFTWARE AS SET OUT IN THE SOFTWARE’S DOCUMENTATION AND/OR AT FUTURE
CORPORATION’S INTERNET SITE;
8.3.11.2 EXCLUSIONS FROM WARRANTY: THIS LIMITED WARRANTY DOES NOT APPLY TO: BETA,
DEMONSTRATION, EVALUATION, FREE-TRIAL, PRE-RELEASE, PRODUCT SAMPLER, TRY-OUT,
SDK, OR NOT FOR RESALE VERSIONS OF THE SOFTWARE OR FUTURE CORPORATION ONLINE
SERVICES, FUTURE CORPORATION TECHNICAL SUPPORT, FUTURE CORPORATION LIVE UPDATE,
FUTURE CORPORATION INTERNET SITES, OR THE SOFTWARE’S INTERACTIVE AGENTS. THIS
WARRANTY DOES NOT COVER PROBLEMS CAUSED BY: (A) YOUR ACTS OR OMISSIONS
(FAILURES TO ACT); AND/OR (B) THE ACTS OF OTHERS (INCLUDING THIRD PARTIES);
AND/OR (C) MALICIOUS SOFTWARE (INCLUDING BUT NOT LIMITED TO MALWARE, TROJANS,
VIRUSES OR WORMS); AND/OR (D) INCORRECTLY OR IMPROPERLY CONFIGURED THIRD PARTY
SOFTWARE (INCLUDING BUT NOT LIMITED TO THE OPERATING SYSTEM, ANTIVIRUS AND/OR
ANY INTERNAL OR EXTERNAL NETWORK); AND/OR (E) EVENTS BEYOND FUTURE CORPORATION’S
REASONABLE CONTROL.
FURTHER YOU HEREBY
ACKNOWLEDGE AND AGREE THAT INSUBSTANTIAL OR MINOR VARIATION OF PERFORMANCE FROM
THE SOFTWARE’S PUBLISHED FUNCTIONALITY OR YOUR INABILITY TO CORRECTLY USE THE
SOFTWARE OR OPERATING SYSTEM (COMPUTER ILLITERACY) DOES NOT ON ITS OWN ESTABLISH
A WARRANTY RIGHT;
8.3.11.3 REMEDY FOR BREACH OF WARRANTY: FUTURE CORPORATION WILL REPAIR OR REPLACE THE SOFTWARE AT
NO CHARGE. IF FUTURE CORPORATION CANNOT REPAIR OR REPLACE IT, FUTURE
CORPORATION WILL REFUND THE AMOUNT SHOWN ON YOUR RECEIPT FOR THE SOFTWARE.
FUTURE CORPORATION WILL ALSO REPAIR OR REPLACE PATCHES, SERVICE PACKS, UPDATES,
UPGRADES AND CONVERSION SOFTWARE AT NO CHARGE. IF FUTURE CORPORATION CANNOT
REPAIR OR REPLACE THEM, IT WILL REFUND THE AMOUNT YOU PAID FOR THEM, IF ANY.
YOU MUST UNINSTALL AND WHERE APPLICABLE DEACTIVATE AND/OR DEREGISTER THE
SOFTWARE AND RETURN ANY MEDIA AND OTHER ASSOCIATED MATERIALS INCLUDING THE
HARDWARE SECURITY DEVICE (IF APPLICABLE) TO FUTURE CORPORATION WITH PROOF OF
PURCHASE TO OBTAIN A REFUND. THESE ARE YOUR ONLY REMEDIES FOR BREACH OF THE
LIMITED WARRANTY AND IS OUR SOLE OBLIGATION TO YOU, EXCEPT AS OTHERWISE
REQUIRED BY APPLICABLE STATUTORY LAW;
8.3.11.4 WARRANTY PROCEDURES: ALL WARRANTY CLAIMS MUST BE MADE, ALONG WITH PROOF OF
PURCHASE, TO THE FUTURE CORPORATION CUSTOMER SUPPORT DEPARTMENT WITHIN THE
WARRANTY PERIOD AS SET FORTH IN SECTION 8.3.11.1 ABOVE. VISIT THE FUTURE
CORPORATION CUSTOMER SUPPORT PAGES FOR MORE INFORMATION ABOUT WARRANTY CLAIMS
AT:
http://www.iifuture.com/en/support.html;
8.3.11.5
THESE WARRANTIES ARE YOUR EXCLUSIVE WARRANTIES AND REPLACE ALL OTHER WARRANTIES
OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE;
8.3.11.6 UNITED KINGDOM: LIMITATION
OF LIABILITY: FOR EACH SECTION 2.10,
5.1.4,
7.2.5, 7.3.3 AND 7.5.10 ABOVE, THE
FOLLOWING SECTION 8.3.11.7 AND SECTIONS
8.3.11.8, 8.3.11.9,
8.3.11.10, AND
8.3.11.11 REPLACES
EACH SECTION IN ITS ENTIRETY
AS SET FORTH BELOW:
8.3.11.7 LIMITATION OF LIABILITY:
EXCEPT FOR THE EXCLUSIVE REMEDY SET FORTH ABOVE, IN NO
EVENT WILL FUTURE CORPORATION, ITS AFFILIATES, ITS SUPPLIERS AND/OR ITS
AUTHORIZED DEALERS BE LIABLE TO YOU FOR ANY LOSS, DAMAGES, CLAIMS OR COSTS
WHATSOEVER INCLUDING ANY SPECIAL, CONSEQUENTIAL, INDIRECT OR INCIDENTAL
DAMAGES, LOST TIME, LOST PROFITS OR LOST SAVINGS, ANY DAMAGES RESULTING FROM
BUSINESS INTERRUPTION, LOST DATA, OR TO BUSINESS AND/OR PERSONAL REPUTATION,
PERSONAL INJURY (INCLUDING DEATH) OR FAILURE TO MEET ANY DUTY OF CARE, OR
CLAIMS BY A THIRD PARTY ARISING FROM THIS AGREEMENT, EVEN IF FUTURE
CORPORATION, ITS AFFILIATES, ITS SUPPLIERS AND/OR AUTHORIZED DEALERS AND/OR A
FUTURE CORPORATION REPRESENTATIVE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
LOSS, DAMAGES, CLAIMS OR COSTS. NOTWITHSTANDING THE FOREGOING PARAGRAPH NOTHING
IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE FUTURE CORPORATION’S LIABILITY FOR
DEATH OR PERSONAL INJURY CAUSED BY FUTURE CORPORATION’S NEGLIGENCE OR IN
RESPECT OF FRAUD OR OF ANY STATEMENTS MADE FRAUDULENTLY BY FUTURE CORPORATION
OR ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS AND/OR ITS
AUTHORIZED DEALERS OR ANY BREACH OF ITS OBLIGATIONS IMPLIED BY SECTION 12 OF THE
SALE OF GOODS ACT 1979 OR SECTION 2 OF THE SUPPLY OF GOODS AND SERVICES ACT
1982, OR ANY STATUTORY MODIFICATION OR RE-ENACTMENT OF EITHER SUCH SECTION. THE
FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY
APPLICABLE LAW IN THE UNITED KINGDOM. FUTURE CORPORATION’S AGGREGATE LIABILITY
AND THAT OF ITS AFFILIATES, ITS SUPPLIERS AND/OR ITS AUTHORIZED DEALERS UNDER
OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR
THIS LICENSE, IF ANY. THIS LIMITATION WILL APPLY EVEN IN THE EVENT OF A
FUNDAMENTAL, MATERIAL OR SERIOUS BREACH OR A BREACH OF THE FUNDAMENTAL OR
MATERIAL TERMS OF THIS AGREEMENT. FUTURE CORPORATION IS ACTING ON BEHALF OF ITS
AFFILIATES, ITS SUPPLIERS AND/OR ITS AUTHORIZED DEALERS FOR THE PURPOSE OF DISCLAIMING,
EXCLUDING AND LIMITING OBLIGATIONS, WARRANTIES AND LIABILITY WITH RESPECT TO
THIS LICENSE ONLY AND FOR NO OTHER PURPOSE OR RESPECT AND IN NO EVENT WILL
FUTURE CORPORATION BE LIABLE FOR ANY CLAIMS, DEMANDS OR ACTIONS OF ANY NATURE
BROUGHT BY ANY THIRD PARTY AGAINST YOU;
8.3.11.8 For the purposes of section 5.1.4 which is replaced in its entirety
by section 8.3.11.7 by section 8.3.11.6 above,
the following words from section 8.3.11.7: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM YOUR USE
OF, OR GETTING, OR SOURCING TECHNICAL SUPPORT”; and (ii) the following words: “SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF
ANY.”, are entirely replaced with: “SHALL BE LIMITED TO THE AMOUNT PAID FOR
TECHNICAL SUPPORT, IF ANY.”; and,
8.3.11.9 For the purposes of section 7.2.5 which is replaced in its entirety
by section 8.3.11.7 by section 8.3.11.6 above,
the following words from section 8.3.11.7: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM USE OF THE BETA SOFTWARE”; and (ii) the following words: “SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF
ANY.”, are entirely replaced with: “SHALL BE LIMITED TO THE AMOUNT PAID FOR THE
BETA SOFTWARE, IF ANY.”; and,
8.3.11.10 For the purposes of section 7.3.3 which is replaced in its entirety
by section 8.3.11.7 by section 8.3.11.6 above,
the following words from section 8.3.11.7: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM USE OF THE DEMONSTRATION SOFTWARE”; and (ii) the following
words: “SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS
LICENSE, IF ANY.”, are entirely replaced with: “SHALL BE LIMITED TO THE AMOUNT
PAID FOR THE DEMONSTRATION SOFTWARE, IF ANY.”; and,
8.3.11.11 For the purposes of section 7.5.10 which is replaced in its entirety
by section 8.3.11.7 by section 8.3.11.6 above,
the following words from section 8.3.11.7: (i) “ARISING FROM THIS AGREEMENT”, are entirely replaced with: “ARISING FROM YOUR USE
OF THE SDK OR FUTURE CORPORATION EXTENSIONS OR DAMAGE ARISING FROM YOUR
PARTICIPATION IN HOSTING OR USE OF THIRD PARTY PRODUCTS, HOWEVER CAUSED AND ON
ANY THEORY OF LIABILITY”; and (ii) the following words: “SHALL BE LIMITED TO THE AMOUNT PAID FOR THIS LICENSE, IF
ANY.”, are entirely replaced with: “SHALL BE LIMITED TO THE AMOUNT PAID FOR
THIS SDK LICENSE, IF ANY.”;
8.4 OCEANIA
8.4.1 NEW ZEALAND:
LIMITED
WARRANTY: FOR EACH SECTION 2.8, 2.8.1, 2.8.2, 2.8.3, 2.8.4, 5.1.3, 7.2.4, 7.3.2 AND
7.5.9 ABOVE:
THE FOLLOWING IS ADDED AT THE END OF THESE
SECTIONS:
The warranties specified in this section are in addition
to any rights you may have under the Consumer Guarantees Act 1993 or other
legislation which cannot be excluded or limited. The Consumer Guarantees Act
1993 will not apply in respect of any goods which Future Corporation provides,
if you require the goods for the purposes of a business as defined in that Act;
8.4.1.1 NEW ZEALAND:
LIMITATION OF LIABILITY: FOR EACH SECTION 2.10, 5.1.4, 7.2.5, 7.3.3 AND 7.5.10 ABOVE: THE
FOLLOWING IS ADDED AT THE END OF THESE SECTIONS:
Where the Software is not acquired for the purposes of a
business as defined in the Consumer Guarantees Act 1993, the limitations in
this Section are subject to the limitations in that Act.
Last Revised | All rights reserved.
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