SilverMark Software Products Evaluation License Agreement
NOTICE TO USER:
THIS IS A CONTRACT. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE INSTALLING THIS SOFTWARE. BY INSTALLING THIS SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH HEREIN. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL THIS SOFTWARE.
The software ("Software" which specifically means the Connection Detangler(tm), and all whole or partial copies of it, including portions merged into other programs) and documentation (together, the "Materials") are furnished to the individual or legal entity receiving the Materials ("Licensee") subject to these terms and conditions. This is the entire agreement ("Agreement", which specifically means the terms and conditions governing the use of the Materials) between the parties with respect to the materials and all other terms are rejected. THIS AGREEMENT SUPERCEDES ANY OTHER AGREEMENT PROVIDED AS PART OF THE MATERIALS. This Agreement may only be modified in writing by the Licensing Manager of SilverMark.
1. Proprietary Protection and Restrictions
The Materials are owned by SilverMark, and are copyrighted and licensed, not sold. The Materials are protected under United States intellectual property laws and applicable international laws and treaties. The Licensee may not remove or alter ownership and copyright notices embedded in or on the Materials. No title to any intellectual property in the Materials is assigned under this Agreement. The Licensee does receive title to the media on which the Materials are delivered.
2. License Grant
SilverMark grants Licensee a nonexclusive license ("License", specifically meaning permission under the terms and conditions of this Agreement) to use the Materials for a period of thirty (30) days from the date of installation ("Installation" meaning executing the procedure to begin a single evaluation period in association with one Envy(tm) user).
In addition to the rights provided under United States copyright law and except as required by local law and treaties, Licensee is granted the following rights:
4. Updates and Support
This license Agreement does not grant the Licensee rights to any improvements, modifications, enhancements, or updates to the Materials. Such updates may be requested separately from SilverMark when available. Telephone support and training, if available, shall be provided at SilverMark's standard rates, terms , and conditions then in effect. The Licensee is granted support in the form of responses to questions posed through E-mail ( "E-Mail", which specifically means electronic correspondence over the Internet) for a period of thirty (30) days from the date of installation.
5. Limited Warranty and Warranty Disclaimer
THE MATERIALS ARE BEING PROVIDED ON AN "AS IS" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND EXCEPT AS OTHERWISE SPECIFIED. Unless otherwise required by applicable law, SilverMark only warrants that the media on which the Materials are furnished and that SilverMark's intended encoding of the Software on the media will be free from material defects for a period of three (3) months from the date of download. If any valid claim of medium or intended encoding defect is made during this warrantee period, SilverMark will provide a replacement. SilverMark does not warrant uninterrupted or error-free operation of the Materials.
THESE WARRANTIES REPLACE ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON INFRINGEMENT OR ANY ANALOGUES THERETO.
These warranties give you specific legal rights, and you may also have other rights which vary from jurisdiction to jurisdiction. Some jurisdictions do not allow the exclusion or limitation of implied warranties, so the above exclusion or limitation may not apply to you. In that event, such warranties are limited in duration to the warranty period. No warranties apply after that period.
6. Limitation of Liability
The Licensee is responsible for the selection of the Software and for the use of and results obtained from the Software. Unless otherwise required by applicable law, SILVERMARK WILL NOT BE LIABLE FOR ANY SPECIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR SAVINGS), IRRESPECTIVE OF WHETHER SILVERMARK, OR ITS RESELLER, HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.AND SILVERMARK'S TOTAL LIABILITY INCLUDING BUT NOT LIMITED TO ANY POSSIBLE LIABILITY FOR INDEMNITY, DEFENSE AND HOLD HARMLESS OBLIGATIONS SHALL NOT EXCEED THE TOTAL AMOUNT PAID TO SILVERMARK BY LICENSEE UNDER THIS AGREEMENT. LICENSEE AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS SILVERMARK FROM AND AGAINST ANY AMOUNT IN EXCESS OF THIS LIMITATION AND THIS LIMITATION SHALL APPLY EVEN IN THE EVENT OF BREACH OF CONTRACT, ACTIVE OR PASSIVE NEGLIGENSE OR OTHERWISE OF SILVERMAK OR ANY CLAIM OF FAILURE OF ESSENTIAL PURPOSE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
SilverMark will not be liable for 1) loss of, or damage to, your records or data or 2) any damages claimed by you based on any third party claim.
7. Term and Termination
This License shall be valid from the date installed by the Licensee for a term of thirty (30) days, unless terminated by mutual consent, by the Licensee's election or by SilverMark upon the Licensee's breach of this License Agreement. In the event of any termination of this license Agreement, the Licensee must certify to SilverMark that all copies of the Software have been destroyed.
You agree that you may not:
(a) use the Materials simultaneously on more than one central processing unit.
(b) sublicense, distribute, disclose or transfer the Materials in whole or in part, to any third party, without the consent of SilverMark.
(c) use the Materials or any portion thereof after any expiration, termination or cancellation of this Agreement or any License granted hereunder.
(d) embed any part of the Materials in any other software application.
This Agreement is governed by the laws of the State of North Carolina and the United States of America without conflict of laws principals. All questions concerning this Agreement should be directed to: Licensing, SilverMark, Inc. 4069 Barrett Drive, Raleigh, NC 27609 (919) 870-7994. In the event of a dispute over the terms of this Agreement, the parties hereto consent that venue for the purposes of this Agreement, shall be considered the County of Wake and the State of North Carolina. In the event of a legal dispute concerning this Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees and costs of suit as may be determined by the court.
Notice of U.S. Government Users Restricted Rights
If provided to the US Government, the Materials are provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the US Government is subject to restrictions as set forth in subparagraph (a) through (d) of the Commercial Computer-Restricted Rights clause at FAR 52.227-19 when applicable, or in subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, and in similar clauses in the NASA FAR Supplement. Contractor is SilverMark, 4068 Barrett Drive, Raleigh, NC, 27609.
BY YOUR INSTALLING THIS PRODUCT, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THE FOREGOING AND THAT YOU AGREE TO BE BOUND THEREBY.