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 End User License Agreement |
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End User License Agreement NOTICE TO USER:
PLEASE READ THIS CONTRACT CAREFULLY. BY USING ALL OR ANY
PORTION OF THE SOFTWARE, YOU ACCEPT ALL THE TERMS AND
CONDITIONS OF THIS AGREEMENT, INCLUDING, IN PARTICULAR, THE
LIMITATIONS ON: USE CONTAINED IN SECTION 2; OWNERSHIP IN
SECTION 3; TRANSFERABILITY IN SECTION 4; WARRANTY IN SECTION
6; AND LIABILITY IN SECTION 8. YOU AGREE THAT THIS AGREEMENT
IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED
BY YOU. IF YOU DO NOT AGREE, DO NOT USE THIS SOFTWARE. IF
YOU ACQUIRED THE SOFTWARE ON TANGIBLE MEDIA (e.g. DISKETTE)
WITHOUT AN OPPORTUNITY TO REVIEW THIS LICENSE AND YOU DO NOT
ACCEPT THIS AGREEMENT, YOU MAY OBTAIN A REFUND OF THE AMOUNT
YOU ORIGINALLY PAID IF YOU: (A) DO NOT USE THE SOFTWARE AND
(B) RETURN IT, WITH PROOF OF PAYMENT, TO THE LOCATION FROM
WHICH IT WAS OBTAINED WITHIN THIRTY (30) DAYS OF THE
PURCHASE DATE. 1. DEFINITIONS.
"Software" means (a) all of the contents of the Data Files,
compressed Data Files, disk(s), CD-ROM(s), or other media
with which this Agreement is provided, including but not
limited to (i) Proactive Management or third party computer
information or software; (ii) digital images, stock
photographs, clip art, or other artistic works; (iii)
related explanatory written materials or Data Files
("Documentation"); and (iv) fonts; and (b) upgrades,
modified versions, updates, additions, and copies of the
Software, if any, licensed to you by Proactive Management.
"Software" shall not include underlying applications or
programs required to operate Data Files. "Data Files" means
files created using an application. These files contain data
or content created by Proactive Management. "Use" or "Using"
means to access, install, download, copy, or otherwise
benefit from using the functionality of the Software in
accordance with the Documentation. "Permitted Number" means
one (1) unless otherwise indicated under a valid license
(e.g. volume license) granted by Proactive Management.
"Computer" 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.
"Proactive Management" means Proactive Management
Incorporated, a Texas corporation, 909 Westminster Abby
Lane, #302, Fenton, MO 63026. 2. SOFTWARE LICENSE.
As long as you comply with the terms of this End User
License Agreement (the "Agreement"), Proactive Management
grants to you a perpetual, non-exclusive, non-transferable
license to Use the Software for the purposes described in
the Documentation. Some third party materials included in
the Software may be subject to other terms and conditions,
which are typically found in a "Read Me" file located near
such materials. 2.1. GENERAL USE.
You may install and Use a copy of the Software on your
compatible computer, up to the Permitted Number of
computers; or 2.2. SERVER USE. You
may install one copy of the Software on your computer file
server for the purpose of downloading and installing the
Software onto other computers within your internal network
up to the Permitted Number or you may install one copy of
the Software on a computer file server within your internal
network for the sole and exclusive purpose of using the
Software through commands, data or instructions (e.g.
scripts) from a Permitted Number of computers on your
internal network. No other network use is permitted,
including but not limited to, using the Software either
directly or through commands, data or instructions from or
to a computer not part of your internal network, for
internet or web hosting services, or by any user not
licensed to use this copy of the Software through a valid
license from Proactive Management; and 2.3. ARCHIVAL COPY.
You may make one archival copy of the Software, provided
your archival copy is not installed or used on any computer.
You may not transfer the rights to an archival copy unless
you transfer all rights in the Software as provided under
Section 4. 2.4. HOME USE. You,
as the primary user of the computer on which the Software is
installed, may also install the Software on one of your home
computers. However, the Software may not be used on your
home computer at the same time the Software on the primary
computer is being used. 2.5. STOCK FILES.
Unless stated otherwise in the "Read-Me" files associated
with the Stock Files, which may include specific rights and
restrictions with respect to such materials, you may
display, modify, reproduce, and distribute any of the Stock
Files included with the Software. However, you may not
distribute the Stock Files on a stand-alone basis, i.e., in
circumstances in which the Stock Files constitute the
primary value of the product being distributed. Stock Files
may not be used in the production of libelous, defamatory,
fraudulent, lewd, obscene, or pornographic material or any
material that infringes upon any third party intellectual
property rights, or in any otherwise illegal manner. You may
not claim any trademark rights in the Stock Files or
derivative works thereof. 2.6 MODIFICATIONS.
Except for normal and ordinary use, you agree not to modify,
adapt, or translate the Software. To the extent that the
Software includes Proactive Management Financial Calculator
software, you may not otherwise alter or modify the
installer program or create a new installer for any of such
software. Such software is distributed by Proactive
Management under license from Win Zip Computing Incorporated
for viewing and distributing Proactive Management Data
Files. 2.7 MATERIAL TERMS
AND CONDITIONS. You specifically agrees that each of the
terms and conditions of this Section 2 are material and that
your failure to comply with these terms and conditions shall
constitute sufficient cause for Proactive Management to
terminate this Agreement. The presence of this subsection
shall not be relevant in determining the materiality of any
other provision or breach of this Agreement by either
party. 3. INTELLECTUAL
PROPERTY RIGHTS. The Software and any copies that you are
authorized by Proactive Management to make are the
intellectual property of and are owned by Proactive
Management Incorporated and its suppliers. The structure,
organization, and code of the Software are the valuable
trade secrets and proprietary, confidential information of
Proactive Management Incorporated and its suppliers. You
shall maintain the confidentiality of this information and
not sell, license, publish, display, distribute, disclose,
or otherwise make available this information to any third
party nor use such in formation except as authorized by this
Agreement. You shall not disclose any proprietary
information concerning the Software. The Software is
protected by copyright, including without limitation by
United States Copyright Law, international treaty
provisions, and applicable laws in the country in which it
is being used. You may not copy the Software, except as set
forth in Section 2 ("Software License"). Any copies that you
are permitted to make pursuant to this Agreement must
contain the same copyright and other proprietary notices
that appear on or in the Software. You also agree not to
reverse engineer, decompile, disassemble, or otherwise
attempt to discover the source code of the Software except
to the extent you may be expressly permitted to decompile
under applicable law, it is essential to do so in order to
achieve operability of the Software with another software
program, and you have first requested Proactive Management
to provide the information necessary to achieve such
operability and Proactive Management has not made such
information available. Proactive Management has the right to
impose reasonable conditions and to request a reasonable fee
before providing such information. Any information supplied
by Proactive Management or obtained by you, as permitted
hereunder, may only be used by you for the purpose described
herein and may not be disclosed to any third party or used
to create any software which is substantially similar to the
expression of the Software. Requests for information should
be directed to the Proactive Management Customer Service
Group. Trademarks shall be used in accordance with accepted
trademark practice, including identification of trademark
owners' names. Trademarks can only be used to identify
printed output produced by the Software and such use of any
trademark does not give you any rights of ownership in that
trademark. Except as expressly stated above, this Agreement
does not grant you any intellectual property rights in the
Software. 4. TRANSFER. You
shall not assign or otherwise transfer the Software or this
Agreement to anyone, including any parent, subsidiaries,
affiliated entities, or third parties, or as part of the
sale of any portion of its business, or pursuant to any
merger, consolidation, or reorganization, without Proactive
Management's prior written consent. 5. MULTIPLE
ENVIRONMENT SOFTWARE / DUAL MEDIA SOFTWARE / MULTIPLE COPIES
/ BUNDLES / UPDATES. If the Software supports multiple
platforms, if you receive the Software on multiple media, if
you otherwise receive multiple copies of the Software, or if
you received the Software bundled with other software, the
total number of your computers on which all versions of the
Software are installed may not exceed the Permitted Number.
You may not, rent, lease, sublicense, lend, or transfer any
versions or copies of such Software you do not Use. If the
Software is an Update to a previous version of the Software,
you must possess a valid license to such previous version in
order to Use the Update. You may continue to Use the
previous version of the Software on your computer after you
receive the Update to assist you in the transition to the
Update, provided that: the Update and the previous version
are installed on the same computer; the previous version or
copies thereof are not transferred to another party or
computer unless all copies of the Update are also
transferred to such party or computer; and you acknowledge
that any obligation Proactive Management may have to support
the previous version of the Software may be ended upon
availability of the Update. 6. NO WARRANTY. The
Software is being delivered to you "AS IS" and Proactive
Management makes no warranty as to its use or performance.
PROACTIVE MANAGEMENT AND ITS SUPPLIERS DO NOT AND CANNOT
WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING
THE SOFTWARE. EXCEPT 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, PROACTIVE MANAGEMENT AND ITS
SUPPLIERS MAKE NO WARRANTIES CONDITIONS, REPRESENTATIONS, OR
TERMS (EXPRESS OR IMPLIED WHETHER BY STATUTE, COMMON LAW,
CUSTOM, USAGE OR OTHERWISE) AS TO ANY MATTER INCLUDING
WITHOUT LIMITATION NON-INFRINGEMENT OF THIRD PARTY RIGHTS,
MERCHANTABILITY, INTEGRATION, SATISFACTORY QUALITY, OR
FITNESS FOR ANY PARTICULAR PURPOSE. 7. PRE-RELEASE
PRODUCT ADDITIONAL TERMS. If the product you have received
with this license is pre-commercial release or beta Software
("Pre-release Software"), then the following Section
applies. To the extent that any provision in this Section is
in conflict with any other term or condition in this
Agreement, this Section shall supersede such other term(s)
and condition(s) with respect to the Pre-release Software,
but only to the extent necessary to resolve the conflict.
You acknowledge that the Software is a pre-release version,
does not represent final product from Proactive Management,
and may contain bugs, errors, and other problems that could
cause system or other failures and data loss. Consequently,
the Pre-release Software is provided to you "AS-IS", and
Proactive Management disclaims any warranty or liability
obligations to you of any kind. WHERE LEGALLY LIABILITY
CANNOT BE EXCLUDED FOR PRE-RELEASE SOFTWARE, BUT IT MAY BE
LIMITED, Proactive Management's LIABILITY AND THAT OF ITS
SUPPLIERS SHALL BE LIMITED TO THE SUM OF FIFTY DOLLARS (U.S.
$50) IN TOTAL. You acknowledge that Proactive Management has
not promised or guaranteed to you that Pre-release Software
will be announced or made available to anyone in the future,
that Proactive Management has no express or implied
obligation to you to announce or introduce the Pre-release
Software and that Proactive Management may not introduce a
product similar to or compatible with the Pre-release
Software. Accordingly, you acknowledge that any research or
development that you perform regarding the Pre-release
Software or any product associated with the Pre-release
Software is done entirely at your own risk. During the term
of this Agreement, if requested by Proactive Management, you
will provide feedback to Proactive Management regarding
testing and use of the Pre-release Software, including error
or bug reports. If you have been provided the Pre-release
Software pursuant to a separate written agreement, such as
the Proactive Management Incorporated Agreement for
Unreleased Products, your use of the Software is also
governed by such agreement. You agree that you may not and
certify that you will not sublicense, lease, loan, rent, or
transfer the Pre-release Software. Upon receipt of a later
unreleased version of the Pre-release Software or release by
Proactive Management of a publicly released commercial
version of the Software, whether as a stand-alone product or
as part of a larger product, you agree to return or destroy
all earlier Pre-release Software received from Proactive
Management and to abide by the terms of the End User License
Agreement for any such later versions of the Pre-release
Software. Notwithstanding anything in this Section to the
contrary, if you are located outside the United States of
America, you agree that you will return or destroy all
unreleased versions of the Pre-release Software within
thirty (30) days of the completion of your testing of the
Software when such date is earlier than the date for
Proactive Management's first commercial shipment of the
publicly released (commercial) Software. 8. LIMITATION OF
LIABILITY. IN NO EVENT WILL PROACTIVE MANAGEMENT OR ITS
SUPPLIERS BE LIABLE TO YOU FOR ANY DAMAGES, CLAIMS OR COSTS
WHATSOEVER OR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL
DAMAGES, OR ANY LOST PROFITS OR LOST SAVINGS, EVEN IF A
PROACTIVE MANAGEMENT REPRESENTATIVE HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS, OR COSTS, OR FOR
ANY CLAIM BY ANY THIRD PARTY. THE FOREGOING LIMITATIONS AND
EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW
IN YOUR JURISDICTION. PROACTIVE MANAGEMENT'S AGGREGATE
LIABILITY AND THAT OF ITS SUPPLIERS UNDER OR IN CONNECTION
WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR
THE SOFTWARE, IF ANY. Nothing contained in this Agreement
limits Proactive Management's liability to you in the event
of death or personal injury resulting from Proactive
Management's negligence or for the tort of deceit (fraud).
Proactive Management is acting on behalf of its suppliers
for the purpose of disclaiming, excluding and/or limiting
obligations, warranties, and liability as provided in this
Agreement, but in no other respects and for no other
purpose. For further information, please contact Proactive
Management's Customer Service Group. 9. EXPORT RULES. You
agree 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
referred to as the "Export Laws"). In addition, if the
Software is identified as export controlled items under the
Export Laws, you represent and warrant that you are not a
citizen of, or otherwise located within, an embargoed nation
(including without limitation Iran, Iraq, Syria, Sudan,
Libya, Cuba, North Korea, and Serbia), and that you are not
otherwise prohibited under the Export Laws from receiving
the Software. 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. 10. GOVERNING LAW.
This Agreement will be governed by and construed in
accordance with the substantive laws in force in the State
of Missouri. The courts of St. Louis County, Missouri shall
have exclusive jurisdiction over all disputes relating to
this Agreement. This Agreement will not be governed by the
conflict of law rules of any jurisdiction or the United
Nations Convention on Contracts for the International Sale
of Goods, the application of which is expressly
excluded. 11. GENERAL
PROVISIONS. If any part of this Agreement is found void and
unenforceable, it will not affect the validity of the
balance of the Agreement, which shall remain valid and
enforceable according to its terms. This Agreement shall not
prejudice the statutory rights of any party dealing as a
consumer. This Agreement may only be modified by a writing
signed by an authorized officer of Proactive Management.
Updates may be licensed to you by Proactive Management with
additional or different terms. This is the entire agreement
between Proactive Management and you relating to the
Software, and it supersedes any prior representations,
discussions, undertakings, communications, or advertising
relating to the Software. 12. FORCE MAJEURE.
Neither party shall be in default or otherwise liable for
any delay in or failure of its performance under this
Agreement if such delay or failure arises by any reason
beyond its reasonable control, including any act of God, any
acts of the common enemy, the elements, earthquakes, floods,
fires, epidemics, riots, failures or delay in transportation
or communications, or any act or failure to act by the other
party or such other party's employees, agents, or
contractors; provided, however, that lack of funds shall not
be deemed to be a reason beyond a party's reasonable
control. The parties will promptly inform and consult with
each other as to any of the above causes which in their
judgment may or could be the cause of a delay in the
performance of this Agreement. 13. COMPLIANCE WITH
LICENSES. If you are a business or organization, you agree
that upon request from Proactive Management or Proactive
Management's authorized representative, you will within
thirty (30) days fully document and certify that use of any
and all Proactive Management Software at the time of the
request is in conformity with your valid licenses from
Proactive Management. 14. NOTICES. All
notices under this Agreement are to be delivered to you by
(a) depositing the notice in the mail, (b) faxing the
notice, (c) overnight mail, or (d) e-mail. Delivery
information will be supplied by you at the time Proactive
Management assesses the fee for this Agreement. If you have any
questions regarding this Agreement or if you wish to request
any information from Proactive Management, please use the
address and contact information included with this product
to contact Proactive Management. Proactive Management
and Proactive Management Financial Calculator are either
registered trademarks or trademarks of Proactive Management
Incorporated in the United States and/or other
countries. |
