IMPORTANT! PLEASE READ CAREFULLY: This End-User License Agreement ("EULA") is a legal agreement between You and Swarmcast, Inc. ("Company"). This EULA specifies the terms under which You may use the NexDef client software, related explanatory materials and any upgrades, modified versions or updates licensed to You by Company (the "Software"). Please read it carefully before using or installing the Software. By installing, using, copying, clicking "I Agree" below, or otherwise manifesting your assent to this agreement, You agree to be bound by the terms of this EULA. If You do not agree to (or cannot comply with) all of the terms of this EULA, you have no license to install, use or copy the Software.
For the purposes of this EULA, and unless otherwise indicated, the Software is defined to include the object code for the Software and all associated printed materials, "online" or electronic documentation, and any physical media on which any of the foregoing is reproduced or distributed.
The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Software is licensed, not sold. Unless explicitly stated otherwise, any new features that augment or enhance the current Software shall be subject to the terms of this license.
Installation and Use. Subject to the terms of this EULA, Company grants You a non-exclusive, non-transferable, revocable, limited license and right to install and use the Software in object code form on Your computers running the operating system for which the Software was designed.
Copies, Modifications & Redistribution. You may install and use the Software on a single computer and make a reasonable number of archival copies for back-up purposes.
Software Upgrades. You acknowledge that the Company may from time to time issue upgraded versions of the Software, and you consent to automatic electronic upgrades of the Software to newer versions.
As between You and Company, Company retains all title to and ownership of, and all rights and interest with respect to, the Software and all copies and portions of the Software, whether or not incorporated into or with other software, including all proprietary rights. You assign to the Company all rights necessary to use, copy, modify, distribute, license and create derivative works of any feedback you provide the Company, in any way that the Company so chooses in connection with offering its products and services. In addition, you warrant that any feedback you provide is not subject to license terms that will require any product or service that incorporates your feedback be licensed by any third party.
Rental. You may not rent, lease, or lend the Software, nor may You use the Software to provide services such as timesharing, outsourcing, or hosting, nor may You use the Software to function as a service bureau or an application service provider. You may not otherwise allow others to use the Software for the benefit of any third party.
Reverse Engineering. You shall not yourself, or through any affiliate, agent, or third party decompile, disassemble, reverse engineer, or otherwise attempt to derive source code from the Software, or modify or create derivative works based on the Software or Documentation. Additionally, you shall not yourself, or through any affiliate, agent, or third party: (i) sell, lease, license, sub-license, distribute, or provide others with the Software or Documentation in whole or part; (ii) use the Software to provide processing services to third parties or otherwise use the Software on a service bureau basis; or (iii) remove any trademark, copyright or other proprietary notices, labels, or marks on or in the Software or Documentation and shall reproduce such notices, labels and marks on any copies of such the Software and Documentation you make in connection with your permitted use of the Software and Documentation. You will promptly notify the Company of any unauthorized disclosure, reproduction, or distribution of the Software or Documentation, which comes to your attention, or which you reasonably suspect. You are solely responsible for obtaining all equipment, and the compatibility thereof with the Software, and for paying all fees including, without limitation, all taxes and Internet access fees, necessary to use the Software. In addition, you may not use the Software for benchmarking or performance testing.
Support Services. Company may provide You with support services related to the Software ("Support Services"). Use of Support Services is governed by the Company policies and programs described in the documentation accompanying the Software and/or other Company-provided materials. Any supplemental software code provided to You as part of the Support Services shall be considered part of the Software and subject to the terms and conditions of this EULA. With respect to technical information You provide to Company as part of the Support Services, Company may use such information for its business purposes, including for product support and development. Company will not utilize such technical information in a form that personally identifies You.
Infringement. You agree that you will not use the Software or Service to infringe the copyrights or other intellectual property rights of others in any way. You agree that you will indemnify, defend and hold the Company harmless against all liabilities, damages, claims, fines and expenses arising out of any claim that you have infringed the copyrights or intellectual property rights of others.
Compliance with Applicable Laws. You must comply with all applicable laws regarding use of the Software.
Additional Limitations. Additionally, you shall not: (i) log or otherwise collect information about other users, including, personal data, IP addresses, e-mail addresses, time and dates of transmissions; (ii) interfere with or disrupt the service, servers, or network that this Software connects with by posting false information or data.
This EULA will terminate automatically without further action upon notice by Company to You following Your breach of this EULA. Upon such termination, you must immediately cease all use of the Software. Except for the license to install and use the object code of the Software granted in Section 1 hereof, the terms of this EULA shall survive termination. Termination is not Company's exclusive remedy, and all other remedies will be available to Company whether or not this EULA is terminated.
All right, title and interest, including, but not limited to, copyrights, in and to the Software and any copies thereof, are owned by Company or its suppliers. All title and intellectual property rights in and to the content which may be accessed through use of the Software is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This EULA grants You no rights to use such content.
You represent and warrant that you are not a national or resident of any country subject to U.S. export restrictions. You agree that You will not export or re-export, or allow the export or re-export of, the Software or any technology or information contained therein, or any direct product thereof, to any country, person, entity or end user subject to U.S. export restrictions. Restricted countries currently include, but are not necessarily limited to, Cuba, Iran, Libya, North Korea, Serbia, and Sudan. You warrant and represent that neither the U.S. Bureau of Export Administration nor any other federal agency has suspended, revoked or denied Your export privileges. You agree to comply with all applicable export laws, restrictions, and regulations of any United States or foreign agency or authority. You agree not to export or re-export, or allow the export or re-export of, the Software or any technology or information contained therein, or any direct product thereof, from the country in which you have installed and are using the Software in violation of any such laws, restrictions, or regulations.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR NEEDS. THERE IS NO WARRANTY AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE INFORMATION OR AGAINST INFRINGEMENT. COMPANY DOES NOT WARRANT THAT THE SOFTWARE WILL BE FREE FROM DEFECTS, THAT ITS USE WILL BE UNINTERRUPTED, THAT YOUR USE OF THE SOFTWARE WILL BE ERROR-FREE OR THAT YOU WILL OBTAIN SATISFACTORY RESULTS. COMPANY MAKES NO WARRANTY AS TO THE ACCURACY OF THE SOFTWARE OR THE RESULTS PRODUCED BY THE SOFTWARE. COMPANY IS NOT RESPONSIBLE, AND WILL HAVE NO LIABILITY FOR, HARDWARE, SOFTWARE, OR OTHER ITEMS OR ANY SERVICES PROVIDED BY ANY PERSON OTHER THAN COMPANY. EXCEPT FOR ANY WARRANTIES EXPRESSLY STATED IN THIS EULA, THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SOFTWARE OR AS TO THE SATISFACTORY QUALITY, PERFORMANCE, AND ACCURACY OF THE SOFTWARE REMAINS WITH YOU. This warranty gives you specific legal rights, and you may also have other rights that vary from state to state. Some states do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to you.
To the maximum extent permitted by applicable law, neither Company nor its suppliers shall be liable for any special, incidental, indirect, consequential, punitive or tort damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, corruption or loss of data, cost of procurement of substitute goods, services, or technology) relating to the Software or the Support Services, even if Company has been advised of the possibility of such damages. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to You. This Section does not limit liability for bodily injury to a person.
YOU MAY NOT ASSIGN OR TRANSFER THE LICENSE OR THIS EULA (INCLUDING ALL RIGHTS AND OBLIGATIONS GRANTED UNDER THIS EULA) WITHOUT THE PRIOR WRITTEN CONSENT OF COMPANY; ANY ATTEMPT TO DO SO SHALL BE VOID.
No failure to exercise, and no delay in exercising, on the part of either party, any privilege, any power or any rights hereunder will operate as a waiver thereof or constitute any form of estoppel.
If any provision of this EULA shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this EULA shall otherwise remain in full force and effect while most nearly adhering to the intent expressed herein.
This EULA shall be deemed to have been made in, and shall be construed pursuant to the laws of the State of Minnesota and the United States, without regard to conflicts of laws provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods.
The sole jurisdiction and venue for any dispute regarding the terms of this EULA or any action relating to the subject matter hereof shall be the federal and state courts in the County of Hennepin, State of Minnesota.
Any waivers or amendments to this EULA shall be effective only if made in writing signed by a representative of Company authorized to bind Company. Notwithstanding the foregoing, Company may unilaterally amend this EULA by posting new terms or a revised agreement on its web site. It is Your responsibility to periodically check the Company web site for amendments to this EULA.
You and Company agree that this EULA is the complete and exclusive statement of the mutual understanding of the parties and supersede and cancel all previous written and oral agreements and communications relating to the subject matter of this EULA. You acknowledge and agree that the warranty disclaimers and liability and remedy limitations in this EULA are material bargained for bases of this EULA and that You and Company have taken them into account in determining the consideration to be given under this EULA and in the decision by You and Company to enter into this EULA.
Should You have any questions concerning this EULA, or if You desire to contact Company for any reason, please contact the Company at: Swarmcast, Inc. 615 1st Ave. NE, Suite 330, Minneapolis, MN.