Esp Vision 5.02

EULA - End User License Agreement

NEW HORIZON DATASYS INC. END-USER LICENSE AGREEMENT Important - Read Carefully. Notice to User: This End User License Agreement (Software License Agreement) is a legal document between you and New Horizon DataSys Inc. (ESP+). It is important that you read this document before using the ESP+ software (Software) and any accompanying documentation, including, without limitation printed materials, online files, or electronic documentation (Documentation). By clicking the I accept and Next buttons below, or by installing, or otherwise using the Software, you agree to be bound by the terms of this Software License Agreement as well as the Exe Vaccine Privacy Policy (Privacy Policy) including, without limitation, the warranty disclaimers, limitation of liability, data use and termination provisions below, whether or not you decide to purchase the Software. You agree that this agreement is enforceable like any written agreement negotiated and signed by you. If you do not agree, you are not licensed to use the Software, and you must destroy any downloaded copies of the Software in your possession or control. Licensor: ESP+ C/O New Horizon DataSys Inc. 122 - 1085 East Kent Ave Vancouver, BC V5X 4V9 Canada 1. SOFTWARE LICENSE (a) License Grant. Upon your acceptance of this Software License Agreement New Horizon DataSys Inc. grants you a non-exclusive, non-transferable (except as provided below), limited license to install and use a copy of the Software on your compatible computer, up to the Permitted Number of computers. The permitted Number of computers shall be delineated at such time as you elect to purchase the Software. During the evaluation period, hereinafter defined, only a single user may install and use the software on one computer. (b) 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 of computers. If you have licensed ESP+ Enterprise Edition, then you may install ESP+ Server on any server computer or workstation and use it in connection with your Software. No other network use is permitted, including without limitation 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 ESP+. (c) Concurrent Use. If you have licensed a Concurrent-User version of the Software, you may install the Software on any compatible computers, up to ten (10) times the Permitted Number of users, provided that only the Permitted Number of users actually use the Software at the same time. The Permitted Number of concurrent users shall be delineated at such time as you elect to purchase the Software licenses. (d) Backup and Archival Copies. You may make one backup and one archival copy of the Software, provided your backup and archival copies are not installed or used on any computer and further provided that all such copies shall bear the original and unmodified copyright, patent and other intellectual property markings that appear on or in the Software. You may not transfer the rights to a backup or archival copy unless you transfer all rights in the Software as provided under Section 3. (e) 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 for your use. However, the Software may not be used on your home computer at the same time as the Software is being used on the primary computer. (f) Key Codes, Upgrades and Updates. Prior to your purchase and as part of the registration for the thirty (30) -day evaluation period, as applicable, you will receive an evaluation key code. You will receive a purchase key code when you elect to purchase the Software. The purchase key code will enable you to activate the purchased version of the ESP+ Software. You may not re-license, reproduce or distribute any key code except with the express written permission of New Horizon DataSys Inc. If the Software that you have licensed is an upgrade or an update, then the update replaces all or part of the Software previously licensed. The update or upgrade and the associated license keys does not constitute the granting of a second license to the Software in that you may not use the upgrade or update in addition to the Software that it is replacing. You agree that use of the upgrade of update terminates your license to use the Software or portion thereof replaced. (g) Title. Title to the Software is not transferred to you. Ownership of all copies of the Software and of copies made by you is vested in New Horizon DataSys Inc., subject to the rights of use granted to you in this Software License Agreement. As between you and New Horizon DataSys Inc. (h) Reverse Engineering. Except and to the limited extent as may be otherwise specifically provided by applicable North American law, you may not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, underlying ideas, underlying user interface techniques or algorithms of the Software by any means whatsoever, directly or indirectly, or disclose any of the foregoing, except to the extent you may be expressly permitted to decompile under applicable law in the United States and Canada, if it is essential to do so in order to achieve operability of the Software with another software program, and you have first requested New Horizon DataSys Inc., to provide the information necessary to achieve such operability and New Horizon DataSys Inc., has not made such information available. New Horizon DataSys Inc., has the right to impose reasonable conditions and to request a reasonable fee before providing such information. Any information supplied by New Horizon DataSys Inc., 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 from users in North America with respect to the above should be directed to the New Horizon DataSys Inc., Customer Support Department. (i) Other Restrictions. You may not loan, rent, lease, sublicense, distribute or otherwise transfer all or any portion of the Software to third parties except to the limited extent set forth in Section 3. You may not copy the Software except as expressly set forth above, and any copies that you are permitted to make pursuant to this Software License Agreement must contain the same copyright, patent and other intellectual property markings that appear on or in the Software. You may not modify, adapt or translate the Software. You may not, directly or indirectly, encumber or suffer to exist any lien or security interest on the Software; knowingly take any action that would cause the Software to be placed in the public domain; or use the Software in any computer environment not specified in this Software License Agreement. You will comply with applicable law and New Horizon DataSys Incs instructions regarding the use of the Software. You agree to notify your employees and agents who may have access to the Software of the restrictions contained in this Software License Agreement and to ensure their compliance with these restrictions. YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR THE ACCURACY AND ADEQUACY OF THE SOFTWARE FOR YOUR INTENDED USE AND YOU WILL INDEMNIFY AND HOLD HARMLESS NEW HORIZON DATASYS INC. FROM ANY 3RD PARTY SUIT TO THE EXTENT BASED UPON THE ACCURACY AND ADEQUACY OF THE SOFTWARE IN YOUR USE. WITHOUT LIMITATION, THE SOFTWARE IS NOT INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION, COMMUNICATION SYSTEMS OR AIR TRAFFIC CONTROL EQUIPMENT, WHERE THE FAILURE OF THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. 2. INTELLECTUAL PROPERTY RIGHTS Acknowledgement of New Horizon DataSys Incs Rights. You acknowledge that the Software and any copies that you are authorized by New Horizon DataSys Inc., to make are the intellectual property of and are owned by New Horizon DataSys Inc., and its suppliers. The structure, organization and code of the Software are the valuable trade secrets and confidential information of New Horizon DataSys Inc., and its suppliers. 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 acknowledge that New Horizon DataSys Inc., retains the ownership of all patents, copyrights, trade secrets, trademarks and other intellectual property rights pertaining to the Software, and that ESP+s ownership rights extend to any images, photographs, animations, videos, audio, music, text and applets incorporated into the Software and all accompanying printed materials. You will take no actions which adversely affect New Horizon DataSys Incs intellectual property rights in the Software. Trademarks shall be used in accordance with accepted trademark practice, including identification of trademark owners names. Trademarks may only be used to identify printed output produced by the Software, and such use of any trademark does not give you any right of ownership in that trademark. Drive Vaccine, DRIVE VACCINE, ESP+ and NEW HORIZON DATASYS INC. are trademarks of New Horizon DataSys Inc. Except as expressly stated above, this software License Agreement does not grant you any intellectual property rights in the Software. Notifications of claimed copyright infringement should be sent to New Horizon DataSys Incs copyright agent as further provided on the Exe Vaccine Web site. 3. LIMITED TRANSFER RIGHTS Notwithstanding the foregoing, you may transfer all your rights to use the Software to another person or legal entity provided that: (a) you also transfer each of this Software License Agreement, the Software and all other software or hardware bundled or pre-installed with the Software, including all copies, updates and prior versions, and all copies of font software converted into other formats, to such person or entity; (b) you retain no copies, including backups and copies stored on a computer; (c) the receiving party secures a personalized key code from New Horizon DataSys Inc; and (d) the receiving party accepts the terms and conditions of this Software License Agreement and any other terms and conditions upon which you legally purchased a license to the Software. Notwithstanding the foregoing, you may not transfer education, pre-release, or not-for-resale copies of the Software. 4. PRE-RELEASE AND EVALUATION PRODUCT ADDITIONAL TERMS If the product you have received with this license is pre-commercial release or beta Software (Pre-release Software), then this Section applies. In addition, this section applies to all evaluation and/or demonstration copies of Exe Vaccine software (Evaluation Software) and continues in effect until you purchase a license. To the extent that any provision in this section is in conflict with any other term or condition in this Software License Agreement, this section shall supersede such other term(s) and condition(s) with respect to the Pre-release and/or Evaluation Software, but only to the extent necessary to resolve the conflict. You acknowledge that the Pre-release Software is a pre-release version, does not represent final product from ESP+, and may contain bugs, errors and other problems that could cause system or other failures and data loss. CONSEQUENTLY, THE PRE-RELEASE AND/OR EVALUATION SOFTWARE IS PROVIDED TO YOU AS-IS WITH NO WARRANTIES FOR USE OR PERFORMANCE, AND NEW HORIZON DATASYS INC. DISCLAIMS ANY WARRANTY OR LIABILITY OBLIGATIONS TO YOU OF ANY KIND, WHETHER EXPRESS OR IMPLIED. WHERE LEGALLY LIABILITY CANNOT BE EXCLUDED FOR PRE-RELEASE AND/OR EVALUATION SOFTWARE, BUT IT MAY BE LIMITED, NEW HORIZON DATASYS INC.S LIABILITY AND THAT OF ITS SUPPLIERS SHALL BE LIMITED TO THE SUM OF FIFTY DOLLARS (USD $50) IN TOTAL. If the Evaluation Software has a time-out feature, then the software will cease operation after the conclusion of the designated evaluation period. Upon such expiration date, your license will expire unless otherwise extended. Access to any files created with the Evaluation Software is entirely at your risk. You acknowledge that ESP+ has not promised or guaranteed to you that Pre-release Software will be announced or made available to anyone in the future, that ESP+ has no express or implied obligation to you to announce or introduce the Pre-release Software, and that ESP+ 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 Software License Agreement, if requested by New Horizon DataSys Inc, you will provide feedback to New Horizon DataSys Inc., 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, your use of the Software is governed by such agreement. You may not sublicense, lease, loan, rent, distribute or otherwise transfer the Pre-release Software. Upon receipt of a later unreleased version of the Pre-release Software or release by ESP+ 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 ESP+ and to abide by the terms of the license agreement for any such later versions of the Pre-release Software. 5. LIMITED WARRANTY AND LIMITATION OF LIABILITY (a) Limited Warranty and Customer Remedies. New Horizon DataSys Inc., warrants to the person or entity that first purchases a license for use of the Software pursuant to the terms of this Software License Agreement that (i) the Software will perform substantially in accordance with any accompanying Documentation for a period of ninety (90) days from the date of receipt, and (ii) any support services provided by New Horizon DataSys Inc., shall be substantially as described in Section 6 of this agreement. Some states and jurisdictions do not allow limitations on duration of an implied warranty, so the above limitation may not apply to you. To the extent allowed by applicable law, implied warranties on the Software, if any, are limited to ninety (90) days. New Horizon DataSys Incs and its suppliers entire liability and your exclusive remedy shall be, at ESP+s option, either (i) return of the price paid, if any, or (ii) repair or replacement of the Software that does not meet New Horizon DataSys Incs Limited Warranty and which is returned to New Horizon DataSys Inc., with a copy of your receipt. This Limited Warranty is void if failure of the Software has resulted from accident, abuse, misapplication, abnormal use, Trojan horse, virus, or any other malicious external code. Any replacement Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. This limited warranty does not apply to Evaluation and/or Pre-release Software. (b) No Other Warranties and Disclaimer. THE FOREGOING LIMITED WARRANTY AND REMEDIES STATE THE SOLE AND EXCLUSIVE REMEDIES FOR NEW HORIZON DATASYS INC., OR ITS SUPPLIERS BREACH OF WARRANTY. NEW HORIZON DATASYS INC. AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, AND FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO YOU IN YOUR JURISDICTION, NEW HORIZON DATASYS INC. 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 OTHER MATTERS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEW HORIZON DATASYS INC. AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, INFORMATIONAL CONTENT OR ACCURACY, QUIET ENJOYMENT, TITLE AND NON-INFRINGEMENT, WITH REGARD TO THE SOFTWARE, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHERS, WHICH VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION. (c) Limitation Of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW EVEN IF A REMEDY FAILS ITS ESSENTIAL PURPOSE, IN NO EVENT SHALL NEW HORIZON DATASYS INC. OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, DIRECT, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF NEW HORIZON DATASYS INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, NEW HORIZON DATASYS INC.S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS SOFTWARE LICENSE AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE PRODUCT. Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply to you. In such states and jurisdictions, New Horizon DataSys Inc. liability shall be limited to the greatest extent permitted by law and the limitations or exclusions of warranties and liability contained herein do not prejudice applicable statutory consumer rights of person acquiring goods otherwise than in the course of business. The disclaimer and limited liability above are fundamental to this Software License Agreement between New Horizon DataSys Inc. and you. (d) Infringement Claims. New Horizon DataSys Inc. will indemnify and hold you harmless and will defend or settle any claim, suit or proceeding brought against you by a third party that is based upon a claim that the content contained in the Software infringes a copyright or violates an intellectual or proprietary right protected by United States or Canadian law (Claim), but only to the extent the Claim arises directly out of the use of the Software and subject to the limitations set forth in Section 5 of this Agreement except as otherwise expressly provided. You must notify ESP+ in writing of any Claim within ten (10) business days after you first receive notice of the Claim, and you shall provide to New Horizon DataSys Inc. at no cost with such assistance and cooperation as New Horizon DataSys Inc. may reasonably request from time to time in connection with the defense of the Claim. New Horizon DataSys Inc. shall have sole control over any Claim (including, without limitation, the selection of counsel and the right to settle on your behalf on any terms New Horizon DataSys Inc. deems desirable in the sole exercise of its discretion). You may, at your sole cost, retain separate counsel and participate in the defense or settlement negotiations. New Horizon DataSys Inc. shall pay actual damages, costs, and attorney fees awarded against you (or payable by you pursuant to a settlement agreement) in connection with a Claim to the extent such direct damages and costs are not reimbursed to you by insurance or a third party, to an aggregate maximum equal to the purchase price of the Software. If the Software or its use becomes the subject of a Claim or its use is enjoined, or if in the opinion of New Horizon DataSys Incs legal counsel the Software is likely to become the subject of a Claim, New Horizon DataSys Inc. shall attempt to resolve the Claim by using commercially reasonable efforts to modify the Software or obtain a license to continue using the Software. If in the opinion of New Horizon DataSys Incs legal counsel the Claim, the injunction or potential Claim cannot be resolved through reasonable modification or licensing, New Horizon DataSys Inc, at its own election, may terminate this Software License Agreement without penalty, and will refund to you on a pro rata basis any fees paid in advance by you to ESP+. THE FOREGOING CONSTITUTES NEW HORIZON DATASYS INC.S SOLE AND EXCLUSIVE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT. This indemnity does not apply to infringements that would not be such, except for customer-supplied elements. 8. TERM AND TERMINATION This Software License Agreement may be terminated (a) by your giving New Horizon DataSys Inc. written notice of termination; or (b) by New Horizon DataSys Inc., at its option, giving you written notice of termination if you commit a breach of this Software License Agreement and fail to cure such breach within ten (10) days after notice from New Horizon DataSys Inc. In addition the Software License Agreement governing your use of a previous version that you have upgraded or updated of the Software is terminated upon your acceptance of the terms and conditions of the Software License Agreement accompanying such upgrade or update. Upon any termination of the Software License Agreement, you must cease all use of the Software that it governs, destroy all copies then in your possession or control and take such other actions as New Horizon DataSys Inc. may reasonably request to ensure that no copies of the Software remain in your possession or control. The terms and conditions set forth in Sections 1(g), (h), (i), 2, 5(b), (c), 9, and 10 survive termination as applicable. 9. RESTRICTED RIGHTS NOTICE AND EXPORT RESTRICTIONS. The Software was developed entirely at private expense and is commercial computer software provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the U.S. Government or a U.S. Government contractor or subcontractor is subject to the restrictions set forth in this Agreement and as provided in FAR 12.211 and 12.212 (48 C.F.R. 12.211 and 12.212) or DFARS 227. 7202 (48 C.F.R. 227-7202) as applicable. Consistent with the above as applicable, Commercial Computer Software and Commercial Computer Documentation licensed to U.S. government end users only as commercial items and only with those rights as are granted to all other end users under the terms and conditions set forth in this Software License Agreement. Manufacturer is New Horizon DataSys Inc., 122 - 1085 East Kent Ave, Vancouver BC V5X 4V9 Canada. You may not use or otherwise export or re-export the Software or Documentation except as authorized by United States law and the laws of Canada. 10. GENERAL PROVISIONS If you are located outside North America and are using the Software, then this Software License Agreement will be governed by and construed in accordance with the laws of the Canada and you expressly agree that exclusive jurisdiction for any claim or dispute with New Horizon DataSys Inc. If you are located in the United States or are using the Software in the United States then this Software License Agreement will be governed by and construed in accordance with the laws of Canada, (excluding its conflict of laws principles and the U.N. Convention on Contracts for the International Sale of Goods) and you expressly agree that exclusive jurisdiction for any claim or dispute with New Horizon DataSys Inc. or relating in any way to your use of the Software resides in the federal or state courts and you further agree and expressly consent to the exercise of personal jurisdiction in the federal or state courts in connection with any such dispute or claim. This Software License Agreement contains the entire agreement and understanding of the parties with respect to the subject matter hereof, and supersedes all prior written and oral understandings of the parties with respect to the subject matter hereof. Any notice or other communication given under this Software License Agreement shall be in writing and shall have been properly given by either of us to the other if sent by certified or registered mail, return receipt requested, or by overnight courier to the address shown on ESP+s Web site for New Horizon DataSys Inc. and the address shown in New Horizon DataSys Incs records for you, or such other address as the parties may designate by notice given in the manner set forth above. This Software License Agreement will bind and inure to the benefit of the parties and our respective heirs, personal and legal representatives, affiliates, successors and permitted assigns. The failure of either of us at any time to require performance of any provision hereof shall in no manner affect such partys right at a later time to enforce the same or any other term of this Software License Agreement. This Software License Agreement may be amended only by a document in writing signed by both of us. In the event of a breach or threatened breach of this Software License Agreement by either party, the other shall have all applicable equitable as well as legal remedies. Each party is duly authorized and empowered to enter into and perform this Software License Agreement. If, for any reason, any provision of this Software License Agreement is held invalid or otherwise unenforceable, such invalidity or unenforceability shall not affect the remainder of this Software License Agreement, and this Software License Agreement shall continue in full force and effect to the fullest extent allowed by law. The parties knowingly and expressly consent to the foregoing terms and conditions.