End User License Agreement (EULA)
ALL SOFTWARE PROGRAMS ("SOFTWARE") PROVIDED BY PELCO ("PELCO" OR "LICENSOR") ARE PROPRIETARY PRODUCTS OF PELCO AND ITS SUPPLIERS, AND ARE PROTECTED BY APPLICABLE COPYRIGHT LAWS. YOU ("YOU" OR "LICENSEE") MUST TREAT THE SOFTWARE LIKE ANY OTHER COPYRIGHTED MATERIAL, EXCEPT THAT YOU MAY MAKE UNLIMITED COPIES OF THE SOFTWARE AND THE PRINTED MATERIALS ("DOCUMENTATION") ACCOMPANYING THE SOFTWARE, IF ANY. PELCO IS WILLING TO LICENSE ITS SOFTWARE TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS END USER LICENSE AGREEMENT PLUS ANY ADDITIONAL LIMITATIONS ON THE LICENSE SET FORTH IN A SUPPLEMENTAL LICENSE AGREEMENT (COLLECTIVELY THE "SOFTWARE LICENSE AGREEMENT"). TO THE EXTENT OF ANY CONFLICT BETWEEN THE TERMS OF THIS END USER LICENSE AGREEMENT AND ANY SUPPLEMENTAL LICENSE AGREEMENT, THE SUPPLEMENTAL LICENSE AGREEMENT SHALL APPLY.THE SOFTWARE IS PROVIDED FOR USE SOLELY WITH PELCO PRODUCTS ("DEVICES"), AND ANY OTHER USE OF THE SOFTWARE OR DOCUMENTATION IS STRICTLY PROHIBITED AND MAY SUBJECT YOU TO LEGAL ACTION. THIS SOFTWARE LICENSE AGREEMENT IS A LEGAL CONTRACT BETWEEN YOU AND PELCO AND THIS SOFTWARE LICENSE AGREEMENT SHALL ALSO BE BINDING UPON ANY SUBSEQUENT AUTHORIZED LICENSEE. YOUR USE AND ANY SUBSEQUENT AUTHORIZED LICENSEE'S USE OF THE SOFTWARE IS SUBJECT TO THE TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE AGREEMENT.
BY INSTALLING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS SOFTWARE LICENSE AGREEMENT, AND THAT YOU UNDERSTAND AND AGREE THAT YOU ARE AUTHORIZED TO ACCEPT AND ARE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE AGREEMENT OR ARE NOT AUTHORIZED TO ACCEPT THESE TERMS AND CONDITIONS ON BEHALF OF YOUR COMPANY OR OTHER ENTITY, AND YOU DO NOT INTEND TO BE PERSONALLY BOUND, YOU ARE NOT AUTHORIZED TO USE THE SOFTWARE AND WILL NOT BE ALLOWED TO INSTALL THE SOFTWARE. IF YOU AGREE TO THE TERMS OF THIS SOFTWARE LICENSE AGREEMENT, CHECK THE "I ACCEPT THIS LICENSE AGREEMENT" BOX ON THE SOFTWARE SCREEN(S) AND YOU WILL THEN BE PERMITTED TO INSTALL AND USE THE SOFTWARE. IF YOU DO NOT AGREE WITH THE TERMS OF THIS SOFTWARE LICENSE AGREEMENT, DO NOT CHECK THE "I ACCEPT THIS LICENSE AGREEMENT" BOX ON THE SOFTWARE SCREEN(S).
The following terms of the Software License Agreement govern Customer's access and use of the Software, except to the extent: (a) there is a separate signed agreement between Customer and Licensor governing Customer's use of the Software, or
(b) the Software includes a separate "click-accept" license agreement or third party license agreement as part of the installation and/or download process. To the extent of a conflict between the provisions of the foregoing documents, the order of precedence shall be (1) the signed agreement, (2) the click-accept agreement or third party license agreement, and (3) the Software License Agreement.
TERMS AND CONDITIONS
- SOFTWARE OWNERSHIP - PELCO owns and retains all right, title and interest in and to the Software and the Documentation provided by PELCO, regardless of the media or form on or in which the Software, other copies or Documentation may exist, including copies. This Software License Agreement is not a sale of the original Software, any copy thereof or the Documentation. PELCO retains any and all rights not specifically licensed to LICENSEE pursuant to this Software License Agreement
- LICENSE GRANT - In consideration for the license grant, PELCO grants to Licensee a limited, non-exclusive right to use ("License") the Software and Documentation solely with the Device(s) for which this Software is intended to be used and only for as long as you comply with the terms and conditions of this Software License Agreement. The License specifically prohibits any other use of the Software or Documentation. By installing the Software, you agree that you are authorized to accept and to become legally bound by the terms and conditions of this Software License Agreement.
- INTELLECTUAL PROPERTY RIGHTS -The Software and the Documentation include proprietary information of PELCO and are protected by applicable copyright, trademark and patent laws and unauthorized copying of the Software and/or Documentation is unlawful. You agree that any copies of the Software and Documentation shall contain the appropriate copyright and other proprietary notices. Your use of PELCO's copyright and other proprietary notices, as well as the PELCO logo, is conditioned upon Your obtaining the prior written approval of PELCO for all such notices, markings and uses. Except as specifically stated in this License, this License does not grant You any rights to any copyrights, trademarks, trade secrets, patents or any other intellectual property rights. You may be held legally liable for any copyright, trademark or patent infringement which is caused or encouraged by your failure to abide by the terms of this Software License Agreement.
- RESTRICTIONS ON USE - LICENSEE shall NOT do any of the following (a) distribute copies of the Software or Documentation to others; (b) adapt, alter, modify, translate, reverse-engineer, decompile, disassemble, or otherwise create derivative works based on the Software; (c) adapt, alter, modify, translate, or otherwise create derivative materials based on the Documentation; (d) attempt to register, register or infringe any of PELCO's intellectual property rights in the Software or Documentation; (e) install or use the Software or Documentation other than as specifically provided for in this Software License Agreement; or (f) to the extent Internet-based services and/or support are offered with respect to the Software or Device, use such Internet-based services and/or support in a way that could harm them or impair anyone else's use of them and you may not use such Internet-based services and/or support to gain unauthorized access to any service, data, account or network by any means.
- RESTRICTED USE - The Software is not fault-tolerant and is not designed, manufactured or intended for any use or resale requiring fail-safe performance in which the failure of the Software could lead to death, serious personal injury or severe physical or environmental damage ("High Risk Activities"). This includes the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control or other situations in which a malfunction of the Software could result in foreseeable risk of injury, death or property damage. You agree NOT to use, or transfer, the Software in connection with any High Risk Activities.
- RESTRICTIONS ON ASSIGNMENT OR TRANSFER - LICENSEE shall NOT assign, pledge, encumber, sell or otherwise transfer the Software and/or Documentation to another party separate and apart from transferring both the Software and Documentation with the Device for which this Software is intended to be used and with this Software License Agreement. Prior to any such transfer, the transferee must agree that this Software License Agreement shall apply to the transfer and the transferee's use of the Software, Documentation and Device. Upon the transfer, you shall destroy all copies of the Software and Documentation in your possession. LICENSEE shall NOT rent, lease or sublicense the Software and/or Documentation to another party.
- TERMINATION - The License is effective until terminated. The License will automatically terminate, without notice to LICENSEE, if LICENSEE fails to comply with any of the terms of this Software License Agreement. Upon termination, LICENSEE shall immediately (i) return all Software, all copies thereof and all Documentation to PELCO at LICENSEE's sole expense; and (ii) destroy all installation and electronic copies of the Software and Documentation stored on a computer or in other hardware memory.
- SOFTWARE UPDATES - PELCO is under no obligation under this License to provide any patches, fixes, subsequent versions, upgrades, or support (collectively "updates") for the Software or Documentation. The Software and Documentation is subject to modification and/or change without notice to LICENSEE. Updated versions of the Software or Documentation may be created or issued by PELCO from time to time. At its sole option, PELCO may make such updates available to LICENSEE or authorized transferees of the License.
- EXPORT RESTRICTIONS - LICENSEE agrees that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively "Export Laws"). In addition, if the Software is identified as an export controlled item under the Export Laws, LICENSEE represents and warrants that LICENSEE is not a citizen of, or located within, an embargoed or otherwise restricted nation and that LICENSEE is not otherwise prohibited under the Export Laws from receiving the Software.
- U.S. GOVERNMENT RESTRICTED RIGHTS - The Software is a "Commercial Item(s)," as that term is defined at 48 C.F.R. § 2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. § 12.212 or 48 C.F.R. § 222.7202-1 through § 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. Government end users with only those rights as granted to all other end users, according to the terms and conditions contained in this license agreement. Manufacturer is Pelco Inc., 3500 Pelco Way, Clovis, California 93612-5699, USA.
- CONFIDENTIALITY - Licensee agrees that You, and each of Your employees and representatives, shall maintain the confidentiality of the Software and Documentation, and all accompanying materials.
- INDEMNIFICATION - Licensee agrees to indemnify, hold harmless, and defend PELCO from and against any claims or lawsuits, including attorneys' fees and costs, that arise out of or in connection with the Software or Documentation.
- SEVERABILITY - If any provision of this Software License Agreement is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions of this Software License Agreement nor the legality, validity or enforceability of such provision under the law of any other jurisdiction shall in any way be affected or impaired thereby. If any provision of this Software License Agreement may be construed in two or more ways, one of which would render the provision invalid or otherwise voidable or unenforceable and another of which would render the provision valid and enforceable, such provision shall have the meaning which renders it valid and enforceable.
- GOVERNING LAW, VENUE AND JURISDICTION - This Software License Agreement is governed by, and shall be construed and enforced in accordance with, the laws of the State of Illinois, without regard to principles of conflicts of laws. The venue for any legal proceeding arising out of or connected with this Software License Agreement shall be exclusively held in the State of Illinois and you hereby waive the right to challenge venue based upon forum non-conveniens or otherwise. This Software License Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
- EQUITABLE REMEDIES - Licensee acknowledges that PELCO will be irreparably damaged (and damages at law may be an inadequate remedy) if Licensee breaches any provision of this Software License Agreement and such provision is not specifically enforced. Therefore, in the event of a breach or threatened breach by Licensee of this Software License Agreement, PELCO shall be entitled, in addition to all other rights or remedies, to (a) an injunction restraining such breach, without being required to show any actual damage or to post an injunction or other bond; or (b) a decree for specific performance of the applicable provision of this Software License Agreement; or (c) both.
DISCLAIMER OF WARRANTIES
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SOFTWARE AND DOCUMENTATION ARE AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND DOCUMENTATION ARE PROVIDED "AS IS", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND PELCO HEREBY DISCLAIMS, ANY AND ALL WARRANTIES WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. PELCO DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE OR DOCUMENTATION, THAT THE DIRECTIONS CONTAINED IN THE DOCUMENTATION WILL MEET YOUR REQUIREMENTS, THAT THE USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. PELCO DISCLAIMS ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SOFTWARE. NO VERBAL OR WRITTEN ADVICE GIVEN BY PELCO OR A PELCO AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SOFTWARE IS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR DEVICE AND ANY NONPELCO PRODUCTS INTEGRATED WITH PELCO EQUIPMENT OR LOSS OF DATA THAT RESULTS FROM SUCH INTEGRATION. SOME JURISDICTIONS DO NOT ALLOW OR LIMIT THE EXCLUSION OF IMPLIED WARRANTIES, IN WHICH CASE THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. NOTWITHSTANDING ANYTHING IN THIS SOFTWARE LICENSE AGREEMENT TO THE CONTRARY, PELCO MAKES NO REPRESENTATION OR WARRANTY, NOR SHALL IT HAVE ANY RESPONSIBILITY OR LIABILITY, WITH RESPECT TO ANY THIRD PARTY SOFTWARE OR HARDWARE.
- LIMITATION OF LIABILITY- IN NO EVENT SHALL PELCO OR ANY PELCO SUPPLIER BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY ECONOMIC, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF OPPORTUNITY, LOSS OF DATA, OR OTHER PECUNIARY LOSS, ARISING OUT OF OR RELATED TO THE SOFTWARE AND/OR DOCUMENTATION, THE USE OF OR INABILITY TO USE THE SOFTWARE, THE TERMS OF THIS SOFTWARE LICENSE AGREEMENT, ANY ACT OR FAILURE TO ACT, LICENSEE'S THIRD PARTY HARDWARE OR SOFTWARE, OR THAT OF AN INTERNET SERVICE PROVIDER, INTERNET ACCESS PROVIDER, OR INTERNET BROWSER PROVIDED BY AN ONLINE SERVICE PROVIDER OR BY AN AGENT OR SUBCONTRACTOR FOR ANY OF THEM, FROM ANY BREACH OF SECURITY CAUSED BY A THIRD PARTY, FROM ANY VIRUS, WORM, TROJAN HORSE, OR OTHER SIMILAR HARMFUL COMPONENTS THAT MAY ENTER LICENSEE'S NETWORK AND/OR COMPUTER TERMINALS FROM DOWNLOADING INFORMATION, SOFTWARE, OR OTHER MATERIALS FROM THE SOFTWARE, FROM ANY LOSS OF, UNAUTHORIZED ACCESS TO OR ALTERATION OF LICENSEE'S TRANSMISSIONS OR DATA OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES, OR FOR ANY REASON ARISING IN ANY WAY OUT OF OR IN ANY WAY IN CONNECTION WITH THE SOFTWARE AND/OR DOCUMENTATION. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY REGARDLESS OF WHETHER PELCO WAS AWARE OF OR ADVISED OF THE POSSIBILITY OF DAMAGES. NOTWITHSTANDING ANY OTHER PROVISION OF THIS SOFTWARE LICENSE AGREEMENT, AND REGARDLESS OF THE CAUSE OR THE FORM OF ACTION (WHETHER BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR OTHER TORT, STRICT LIABILITY, OR OTHERWISE), PELCO'S LIABILITY FOR DAMAGES BASED ON THE SOFTWARE AND/OR DOCUMENTATION SHALL NOT EXCEED THE PRICE PAID BY LICENSEE FOR THE PELCO DEVICE PURCHASED WITH THE SOFTWARE. SUCH LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
- COMPLETE AGREEMENT - Licensee acknowledges and agrees that this Software License Agreement is the complete and exclusive statement concerning the subject matter of this Software License Agreement between PELCO and Licensee. This Software License Agreement supersedes any proposals and prior agreements, whether written or oral, relating to the subject matter of this Software License Agreement. No amendment to or modification of this Software License Agreement will be binding unless in writing and signed by an authorized representative of PELCO.