LIMITED USE SOFTWARE AND DATA LICENSE AGREEMENT
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT OPEN THE SOFTWARE ENVELOPE.
PROMPTLY RETURN, WITHIN FIFTEEN (15) DAYS THE ENTIRE UN-OPENED PACKAGE WITH ALL
OF ITS CONTENTS TO P.I.S. FOR A FULL REFUND OF LICENSE FEE.
You, as the User, assume full responsibility for the selection of the software and
its associated data and/or information to achieve his/her intended results, and
for the installation, use and results obtained from the software.
THIS DOCUMENT STATES THE TERMS AND CONDITIONS UPON WHICH PHOENIX INFORMATION SYSTEMS,
("P.I.S.") OFFERS TO LICENSE THE SOFTWARE ENCLOSED AND ITS ASSOCIATED DATA AND/OR
INFORMATION, AND HARDWARE KEY. BY USING THIS SOFTWARE, HARDWARE KEY, OR OPENING
THIS ENVELOPE, YOU ARE AGREEING TO BECOME BOUND BY THE TERMS AND CONDITIONS OF THIS
AGREEMENT. THE SOFTWARE ENCLOSED AND ITS ASSOCIATED DATA AND/OR INFORMATION, AND
HARDWARE KEY AS SUPPLIED BY P.I.S. IS LICENSED, NOT SOLD, TO YOU FOR USE ONLY UNDER
THE TERMS OF THIS LICENSE AND P.I.S. RESERVES ALL RIGHTS NOT EXPRESSLY GRANTED TO
YOU UNDER THIS AGREEMENT.
1. License: The User acknowledges that the programs, hardware key and documents
contained in the package and underlying ideas, algorithms, concepts, procedures,
processes, principals and methods of operation are confidential and contain trade
secrets, and User shall use its best efforts to maintain the confidentialities thereof.
User acknowledges that all intellectual property rights and the programs and documents
are owned by P.I.S. Without limiting the generality of the preceding sentence, the
programs, documents and user manuals are copyrighted and may not be copied except
as specifically allowed by this license for backup purposes and to load the program
on to the computer as part of executing the programs. All other copies of the programs
and related user manuals are in violation of this agreement. The copyright protection
claim also includes all forms and matters of copyrightable materials and information
not allowed by statutory or common law or hereinafter granted including, without
limitation, material generated from the software programs that are displayed on
the screen such as icons and screen displays. The programs and documents may contain
trade secrets and are subject to the protection of the Oregon Uniform Trade Secrets
Act.
The User acknowledges that this licensing agreement unless modified by P.I.S. also
applies to subsequent purchases of software and data, and any updated versions of
the program and materials including any upgrades and enhancements related thereto.
Any receipt of an updated version and the use thereof is subject to this licensing
agreement's application thereto.
User may not sublease, assign or otherwise transfer the software and documents to
any other person or business entity without the prior written consent of P.I.S.
This license allows you to: (a) Use the software and its associated data and/or
information and hardware key for your organization only on a single computer, for
which it was designed; (b) Make copies of the software and its associated data and/or
information in machine readable form, solely for backup purposes; and (c) Physically
transfer the programs from one computer to another provided that the programs and
hardware key are used on only one computer at a time.
If you have purchased a network version of this software, this license agreement
applies to the installation of the software on and use of a hardware key with a
single "file server". It may not be copied onto multiple systems.
P.I.S. may adopt from time to time mechanical or electronic methods that P.I.S.
deems necessary to protect you and to control unauthorized use or distribution of
the programs.
2. Restrictions: (a) You may not market, distribute or transfer copies of the software
and its associated data and/or information and hardware key to others outside your
organization. The software and its associated data and/or information and hardware
key contain intellectual property and in order to protect them you may not decompile,
reverse compile, reverse engineer, reverse translate, disassemble or otherwise reduce
the software or its associated data and/or information to a human readable form
or distribute them to any third party. YOU MAY NOT MODIFY, ADAPT, TRANSLATE, RENT,
SELL, GIVE, LEASE OR LOAN THE SOFTWARE OR ITS ASSOCIATED DATA AND/OR INFORMATION
OR CREATE DERIVATIVE WORKS BASED ON THE SOFTWARE, ITS ASSOCIATED DATA AND/OR INFORMATION
OR THE ACCOMPANYING WRITTEN MATERIALS. (b) The software, its associated data and/or
information and accompanying written materials are copyrighted. Unauthorized copying
is expressly forbidden. You may be held legally responsible for any copyright infringement
that is caused or encouraged by your failure to abide by the terms of this license.
(c) You understand that P.I.S. may upgrade, enhance, or revise the software and
in doing so incurs no obligation to furnish such upgrades to you. (These changes
may render the software obsolete.) Consequently, P.I.S. reserves the right to terminate
this agreement as to such prior versions of the software.
No distributor, dealer, salesperson, employee or agent of P.I.S. or any other entity
or person is authorized to expand or alter this warranty or this agreement without
the prior written consent of P.I.S.
3. Termination: This license is effective until terminated. Except for sections
4, 5 and 6, this license shall terminate automatically upon the earlier of: (a)
Breach of your obligations under the license; (b) P.I.S.'s written termination of
this license; or (c) By your nonpayment of any outstanding monies owed to P.I.S.
Upon termination you agree that you will immediately discontinue the use of and
destroy all copies of the software and its associated data and/or information and
return to P.I.S. any and all pieces of electronic media and hardware key supplied
by P.I.S.
4. Limited Warranty:
A. What is Covered. P.I.S. warrants to User that the Magnetic Media on which the
enclosed Programs are recorded are free from defects in material and workmanship
under normal use. P.I.S. does NOT warrant that the operation of the software and
its associated data and/or information will meet your requirements or that the operation
of the software and its associated data and/or information will be uninterrupted
or error-free.
B. For How Long. The warranty covering the Magnetic Media is made for sixty (60)
days from the date of the original delivery to User.
C. What P.I.S. Will Do. P.I.S. will replace any Magnetic Media that proves defective
in materials or workmanship on an exchange basis without charge. If P.I.S. is unable
to replace defective Magnetic Media within a reasonable time, P.I.S. will, as its
sole and exclusive option, either replace the Magnetic Media with a functionally
equivalent Magnetic Media without charge or refund all or part of the fees paid
for licensing the Programs contained on the Magnetic Media. These are User's sole
and exclusive remedies for any breach of warranty.
D. What P.I.S. Will Not Do. P.I.S. does not warrant that the Programs will meet
User's requirements or that the operation of the Programs will be uninterrupted
or error-free in all circumstances. The warranty does not cover any Magnetic Media
that have been subject to damage or abuse. The warranty does not cover any Programs
that have been altered or changed in any way by anyone other than P.I.S. P.I.S.
is not responsible for problems caused by changes in the operating characteristics
of computer hardware or computer operating systems, nor for problems in the interaction
of the Programs with non-P.I.S. software.
E. Return of Defective Item. The original User must return the defective Magnetic
Media, shipping prepaid, to P.I.S.
5. Disclaimer: USER AGREES THAT THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL
OTHER WARRANTIES OF P.I.S. AND P.I.S. DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED
OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, AND NON INFRINGEMENT OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION
OR ADVICE GIVEN BY P.I.S., ITS DEALERS, DISTRIBUTORS, AGENTS, EMPLOYEES, REPRESENTATIVES
OR ASSOCIATES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY
UNLESS AGREED TO IN WRITING BY P.I.S.. ANY SUCH REPRESENTATIVES WILL NOT BIND P.I.S..
USER ASSUMES ENTIRE RISK AS IT APPLIES TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE
AND ITS ASSOCIATED DATA AND/OR INFORMATION. SHOULD THE SOFTWARE AND ITS ASSOCIATED
DATA AND/OR INFORMATION PROVE DEFECTIVE, YOU (AND NOT P.I.S.) ASSUMES THE ENTIRE
COST OF ALL NECESSARY SERVICING REPAIR OR CORRECTION.
6. Limitation of Remedies and Liability: NEITHER P.I.S. NOR ANYONE ELSE WHO HAS
BEEN INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF THE PROGRAMS AND SERVICES
RELATED THERETO, OR EQUIPMENT (INCLUDING COMPUTERS AND MACHINES) AND SERVICES RELATED
THERETO, SHALL BE LIABLE TO USER OR ANY PARTY CLAIMING THROUGH USER FOR ANY DAMAGES
OR EXPENSES OF ANY TYPE, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, LOST SAVINGS,
LOST BUSINESS, LOSS OF ANTICIPATED BENEFITS OR OTHER INCIDENTAL OR CONSEQUENTIAL
DAMAGES, DIRECT OR INDIRECT, SPECIAL OR GENERAL, ARISING OUT OF THE USE OR INABILITY
TO USE SUCH PROGRAMS OR EQUIPMENT, WHETHER ARISING OUT OF CONTRACT, NEGLIGENCE,
TORT OR UNDER ANY WARRANTY OR OTHERWISE AND WHETHER CAUSED BY DEFECT, NEGLIGENCE,
BREACH OF WARRANTY, DELAY IN DELIVERY OR OTHERWISE, EVEN IF P.I.S. HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES OR FOR ANY OTHER CLAIM BY ANY OTHER PARTY. NO
OBLIGATION OR LIABILITY SHALL ARISE OR FLOW FROM P.I.S. RENDERING TECHNICAL OR OTHER
ADVICE IN CONNECTION WITH EQUIPMENT, P.I.S. PROGRAMS OR P.I.S. SERVICES, INCLUDING
BUT NOT LIMITED TO, P.I.S. INSTALLATION AND TRAINING SERVICES AND ANNUAL SUPPORT
AND MAINTENANCE SERVICES. P.I.S.'S LIABILITY FOR DAMAGES IN NO EVENT SHALL EXCEED
THE LICENSE FEE PAID FOR THE RIGHT TO USE THE PROGRAMS.
7. Phoenix Information Systems, LLC ("P.I.S.."):P.I.s.. is an Oregon Limited Liability
Company, with its principal offices at 3470 Pipebend Place NE, Suite 100, Salem,
Oregon 97301, USA. P.I.S. can be contacted by calling 1-800-922-4556 or 1-503-399-9270.
8. General: (a) This license shall be governed and interpreted, except the federal
laws which govern trademarks and copyrights, in accordance with the laws of the
State of Oregon. This agreement has been made entirely within the State of Oregon.
If any suit or action is filed by any party to enforce this license or otherwise
with respect to the subject matter of this license, venue SHALL be in the federal
or state courts in Salem, Oregon. The parties further agree that this provision
shall survive the termination of this agreement and that NO ACTION, regardless of
form arising hereunder, may be instituted by either party more than one (1) year
after the cause of action arose, or, in the case of nonpayment, more than two (2)
years from the date of the last payment, except that the above limitations shall
not apply to the enforcement of any of P.I.S.'s intellectual property rights. In
any such action, the prevailing party shall be entitled to its reasonable attorney
fees at trial or on appeal thereof, as awarded by the court. This license shall
be construed in such a fashion as to make each provision enforceable to the maximum
extent possible under law. (b) User acknowledges that User has read this agreement,
which comprises of all the terms and conditions in this agreement, understands each
and every term and condition of it, and agrees to be bound by its terms and conditions.
User agrees that this agreement is the complete and exclusive statement of the agreement
between P.I.S. and User and that this agreement supersedes all prior and contemporaneous
agreements, proposals, negotiations or discussions, oral or written, relating to
the subject matter herein. No course of dealing or usage of trade or course of performance
shall be relevant to explain or supplement any terms expressed herein. User further
agrees that no representations or statements of any kind, including but not limited
to, dealer advertising, presentations, oral or written, made by any agent or representative
of P.I.S. which are not stated herein shall be binding on User or P.I.S. Failure
or delay in enforcing any right to a provision of this agreement shall not be deemed
as a waiver of such provisions or right in respect to any subsequent breach or a
continuance of any existing breach. If any provision of this license shall be held
to be unenforceable by a court of jurisdiction, the remaining provisions will remain
in force and effect and be enforced to the maximum extent permissible. (c) P.I.S.
shall not be in default by reason of any failure of its performance under this agreement
if failure results, directly or indirectly, from, but not limited to, fire, explosion,
strike, freight embargo, act of God, or the public enemy, war, civil disturbance,
act of any government, de jure or de facto, or any agency or official thereof, labor
shortage, transportation contingencies, unusually severe weather, default of manufacturer
or supplier as a subcontractor, quarantine or restriction, epidemic or catastrophe
or other similar event beyond the control of P.I.S.
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