EULA - End User License Agreement
WINPROXY LICENSE AGREEMENT
This Ositis Software, Inc. End-User License Agreement ("EULA") is a legal agreement between you (either an individual or a single entity Licensee) and Ositis Software, Inc. (Ositis or Licensor) for the Ositis Software product identified above, which includes computer Software, and may include associated media, printed materials, and "online" or electronic documentation, including Anti-Virus Software from Networks Associates, Inc. (Mcaffee), Sophos, PLC, Panda Software, S.A., Web Filtering Software from Secure Computing, Inc., and Anti-Spam Software from ActiveState, Inc. ("the SOFTWARE").
1. NOTICE. BY CLICKING THE ICON LABELED "I ACCEPT" THAT IS DISPLAYED BELOW, INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT INSTALL OR USE THE SOFTWARE; CLICK THE ICON LABELED "CANCEL," IN WHICH CASE THE INSTALLATION WILL BE CANCELED. YOU MAY, HOWEVER, RETURN IT TO YOUR PLACE OF PURCHASE FOR A FULL REFUND BY PROMPTLY RETURNING THE UNUSED SOFTWARE AND ALL ACCOMPANYING MATERIALS, ALONG WITH PROOF OF PAYMENT, TO THE AUTHORIZED DEALER FROM WHOM YOU OBTAINED THE SOFTWARE.
2. GRANT OF NONEXCLUSIVE LICENSE. This EULA grants you the following rights:
Licensor hereby grants to Licensee a nonexclusive and nontransferable license to use the Licensed Program only on the premises of Licensee. This Agreement does not grant a license or right to use the SOFTWARE on any computer or computer system other than Licensees or to use the SOFTWARE at any other location. You may install and use one copy of the SOFTWARE on a single computer. Depending on the version of the software you have licensed, you may only have the number of users for which you have paid license fess who access network resources through the SOFTWARE.
The SOFTWARE is licensed, not sold. Ositis and its licensors retain title to and ownership of the SOFTWARE and all portions of it at all times, including, but not limited to the program itself, documentation, data, and other content provided to you, and all other copies that you are authorized by this Agreement to make. Your rights to use the SOFTWARE are specified in this Agreement and Ositis retains all rights not expressly granted to you in this Agreement.
The SOFTWARE is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Nothing in this Agreement constitutes a waiver of Ositis rights under U.S. or international copyright law or any other federal or state law. All content accessed through the SOFTWARE or stored temporarily for your personal use by the SOFTWARE is the property of the applicable content owner and may be protected by applicable copyright law. This license gives you no rights to such content. Copies of this Agreement are available in online form at www.ositis.com/upgrades.
This Agreement does not give Licensee a license or right to distribute or sell the SOFTWARE or any modification of it or to use the SOFTWARE or any portion of it for assistance in the preparation for sale or distribution of any computer program. No license, either express or implied, is granted by Licensor to Licensee to use the SOFTWARE for any purpose except as specifically stated in this Agreement.
3. TERM. This Agreement is effective immediately upon your acceptance of the terms contained herein (signified by clicking the icon labeled "I accept" that is displayed below, installing, copying, or otherwise using the SOFTWARE). This Agreement and any license granted under it may be terminated by Licensor if Licensee fails to comply with any of its terms and conditions. Otherwise, the license granted to use the SOFTWARE remains in force until Licensee stops using the SOFTWARE or until Licensor terminates this Agreement or any license because of Licensees failure to comply with any of the terms and conditions of this Agreement.
4. PERMITTED USES. You are granted the following rights to the SOFTWARE:
(a) Right to Install and Use. You may install the SOFTWARE on one computer connected to one local area network. The SOFTWARE is "installed" on a computer when it is installed onto a computers hard disk or other secondary storage device. The SOFTWARE is "in use" on a computer when it is executed or loaded into the computers RAM or other primary memory. If you install the SOFTWARE on additional computers, or on more than one local area network, you must acquire additional licenses. To acquire additional licenses please call 1-888-WINPROXY or visit our web site at www.winproxy.com
(b) Right to Copy. You may copy the SOFTWARE for backup and archival purposes only, provided that the original is kept in your possession and that your installation and use of the SOFTWARE does not exceed that allowed in the "Right to Install and Use" section above.
5. PROHIBITED USES. You may not, without written permission from Ositis:
(a) Use, copy, modify, merge, sell, auction, or otherwise transfer copies of the SOFTWARE except as expressly authorized in this Agreement;
(b) Use any back-up or archival copies of the SOFTWARE (or allow someone else to use such copies) for any purpose other than to replace an original copy if it is destroyed or becomes defective;
(c) Disassemble, decompile or "unlock," reverse translate, or in any manner decode the SOFTWARE for any reason (except as expressly permitted by applicable law);
(d) Place the SOFTWARE onto a server so that it is accessible via a public network such as the Internet; or
(e) Sublicense, lease, or rent the SOFTWARE.
6. LIMITED WARRANTY. The licensed SOFTWARE is provided AS IS. Ositis warrants that for thirty (30) days from the date you acquired it from us or our authorized dealers (1) the SOFTWARE will perform substantially in accordance with the user documentation accompanying the SOFTWARE, and (2) the media on which the SOFTWARE is provided to you will be free from defects in materials and workmanship under normal use and service. Some states and jurisdictions do not allow limitations on duration of an implied warranty, so the above limitation may not apply to you. To the extent allowed by applicable law, implied warranties on the SOFTWARE PRODUCT, if any, are limited to thirty (30) days.
7. DISCLAIMER OF WARRANTY. OSITIS AND ITS SUPPLIERS DO NOT WARRANT THAT THIS SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE EXTENT ALLOWED BY LAW, WE EXPRESSLY DISCLAIM ALL EXPRESS WARRANTIES NOT STATED HERE AND ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, WITH REGARD TO THE SOFTWARE, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES.
THE SOFTWARE IS NOT FAULT-TOLERANT AND IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE OR RESALE AS ON-LINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE ("HIGH RISK ACTIVITIES") OSITIS SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES.
8. LIMITATION OF LIABILITY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IN NO EVENT SHALL OSITIS OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, ATTORNEYS AND EXPERTS FEES, AND COURT COSTS OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF OSITIS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, OSITIS ENTIRE LIABILITY UNDER ANY PROVISION OF THIS EULA SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE OR U.S.$5.00. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
9. CUSTOMER REMEDIES. Ositis and its suppliers entire liability and your exclusive remedy shall be, at Ositis option, either (a) return of the price paid, if any, or (b) repair or replacement of the SOFTWARE that does not meet Ositis Limited Warranty and which is returned to Ositis with a copy of your receipt. This Limited Warranty is void if failure of the SOFTWARE has resulted from accident, abuse, or misapplication. Any replacement SOFTWARE will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. Outside the United States, neither these remedies nor any product support services offered by Ositis are available without proof of purchase from an authorized international source. If this SOFTWARE qualifies as a "consumer product" under the Magnuson-Moss Warranty Act, any implied warranties are limited to thirty (30) days from the date you acquired the software from Ositis or from our authorized dealer, and thereafter any implied Warranties are expressly disclaimed.
10. UNITED STATES GOVERNMENT RESTRICTED RIGHTS. This section applies to all acquisitions of the SOFTWARE by or for the federal government. By accepting delivery of the SOFTWARE, the government hereby agrees that the SOFTWARE qualifies as "commercial" computer SOFTWARE as that term is used in the acquisition regulations applicable to this procurement and that the governments use and disclosure of the SOFTWARE is controlled by the terms and conditions of this Agreement to the maximum extent possible. This Agreement supersedes any contrary terms or conditions in any statement of work, contract, or other document that are not required by statute or regulation. If any provision of this Agreement is unacceptable to the government, Vendor may be contacted at Ositis SOFTWARE, 6120 Stoneridge Mall Drive, Suite 210, Pleasanton, CA 94588, (925) 225-8900. If any provision of this Agreement violates applicable federal law or does not meet the governments actual, minimum needs, the government agrees to return the unused SOFTWARE for a full refund. The following statement applies only to procurements governed by DFARS Part 227.4 (OCT 1988): The enclosed SOFTWARE is provided with Restricted Rights -- Use, duplication, or disclosure by the U.S. Government or any of its agencies or instrumentalities is subject to restrictions as set forth in subparagraph (c)(1)(ii) [or (i)] of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (OCT 1988). Contractor Manufacturer is Ositis SOFTWARE, 6120 Stoneridge Mall Drive, Suite 210, Pleasanton, CA 94588.
11. UNITED STATES EXPORT CONTROLS. You may not download, export, or re-export the Software (a) into Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria, Afghanistan, or to a national or resident of, any country to which the United States has embargoed goods, or (b) to anyone on the U.S. Treasury Departments list of specially designated nationals and Blocked Persons which can be found at http://www.treas.gov/ofac/t11sdn.pdf or the U.S. Commerce Departments Table of Deny Orders, or (c) in violation of the Export Administration Act Regulations of the Department of Commerce of the United States, as amended, and other export controls of the United States (Export Laws), which restrict the export and re-export of software media, technical data, and direct products of technical data
By downloading or using the Software, you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country or on any such list. You acknowledge that it is your sole responsibility to comply with any and all government export and other applicable laws and that Ositis has no further responsibility for such after the initial license of the software to you.
12. TERMINATION. This Agreement will remain in full force and effect until terminated. Without prejudice to any other rights, Ositis may terminate this EULA if you fail to comply with the terms and conditions of this EULA. In such event, you must destroy all copies of the SOFTWARE and all of its component parts. You may terminate this Agreement at any time by destroying all copies of the SOFTWARE in your possession or by returning all such copies to Ositis.
Within 30 days after you have discontinued the use of the SOFTWARE or within 5 days after Ositis has terminated any license because of your failure to comply with any of the terms of this Agreement, you will certify, in writing, to Ositis, that the original and all copies, in whole or in part, in any form, including partial copies and modifications, of the discontinued or terminated SOFTWARE have been transmitted to Ositis or have been destroyed. Your failure to comply with the obligations of this Section will constitute unauthorized use of the SOFTWARE, entitling Ositis to equitable relief as provided in this Agreement and other legal and equitable remedies available.
13. TECHNICAL SUPPORT. Ositis may provide you with technical support services related to the SOFTWARE ("Technical Support"). Use of Technical Support is governed by the Ositis policies and programs described in "online" documentation at www.ositis.com/upgrades, and/or in other Ositis-provided materials. With respect to technical information you provide to Ositis as part of the Technical Support Services, Ositis may use such information for its business purposes, including for product support and development. Ositis will not utilize such technical information in a form that personally identifies you.
14. UPDATES. This Agreement entitles you to download minor updates and enhancements to the SOFTWARE after you have purchased the SOFTWARE. Updates are governed by the Ositis policies and programs described in "online" documentation at www.ositis.com/upgrades.
15. UPGRADES. This Agreement entitles you to license upgrades to any new version of the SOFTWARE at the prices posted on our website at www.winproxy.com. Upgrades are governed by the Ositis policies and programs described in "online" documentation at www.ositis.com/upgrades. Prices and service subject to change without notice.
16. GENERAL. This Agreement may not be changed orally by either party. This agreement shall be governed by and construed in accordance with the laws of the State of California without reference to the choice of law provisions thereof. All aspects of all actions brought relating to the subject matter of this Agreement shall be governed by California law, without reference to the choice of law provisions thereof. Any dispute that arises under or relates to this Agreement (whether contract, tort, or both) shall be resolved in the State of California in the Superior Court of the County of Alameda or the United States District Court in San Francisco, California.
The parties hereby agree to submit to the jurisdiction of the aforementioned courts should a dispute arise under this agreement. No remedy made available under this Agreement is intended to be exclusive of any other remedy, and each and every remedy shall be cumulative and shall be in addition to every other remedy given or now or hereafter existing at law or in equity or by statute or otherwise.
Each party will bear their own costs, expenses and attorneys fees arising out of and/or connected with any disputes and all matters arising out of or connected therewith except that, in the event any action is brought by any party to enforce this Agreement, the prevailing party shall be entitled to reasonable attorneys fees and costs in addition to all other relief to which that party or those parties may be entitled. This Agreement shall be binding upon and inure to the benefit of the parties to the Action and their respective heirs, executors, administrators, trustors, trustees, beneficiaries, members, predecessors, successors, assigns, partners, partnerships, parent, subsidiary, affiliated and related entities, officers, directors, principals, agents, servants, employees, representatives, and all persons, firms, associations and/or corporations connected with them, including, without limitation, their insurers, sureties and/or attorneys. If any provision or any part of any provisions of this Agreement is for any reason held to be invalid, unenforceable or contrary to any public policy, law, statute and/or ordinance, then the remainder of this Agreement shall not be affected thereby and shall remain valid and fully enforceable.
This Agreement shall not be assigned by either party without the prior written consent of the other party. No failure of either Party to exercise or enforce any of its rights under this Agreement shall act as a waiver of subsequent breaches; and the waiver of any breach shall not act as a waiver of subsequent breaches. The Parties acknowledge that they have read this entire Agreement, and that this Agreement constitutes the entire understanding and contract between the parties and supersedes any and all prior or contemporaneous oral and written communications regarding the subject matter, all of which communications are merged herein. The section and subsection headings used herein are for reference and convenience only, and shall not enter into the interpretation hereof.
Canadian Transactions: If you acquired this SOFTWARE in Canada, you agree to the following: The parties hereto have expressly required that the present Agreement and its Exhibits be drawn up in the English language. Les parties aux presentes ont expressement exige que la presente convention et ses Annexes soient redigees en langue anglaise.
If you have any questions about this Agreement, write to us at Ositis Software, Inc., 6120 Stoneridge Mall Drive, Suite 210, Pleasanton, CA 94588 or call us at 1-888-WINPROXY
WinProxy®, Ositis®, Powering Internet Management®, and The Ultimate Internet Sharing Solution® are registered Trademarks of Ositis Software, Inc. in the United States and other countries. EShieldtm, Banishtm, AVStrippertm, and AccessNowtm are trademarks of Ositis Software, Inc. All other trademarks are the property of their respective owners.
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