End User License Agreement
Contents
1. the Software offered to You by ByStorm shall be considered part of the Software and subject to the terms of this SLA unless this SLA is superseded by a further SLA accompanying such replacement or modified version of or upgrade to the Software In the event that ByStorm offers a replacement or modified version of or any upgrade to the Software at no additional charge a Your continued use of the Software is conditioned on Your acceptance of such replacement or modified version of or upgrade to the Software and any accompanying superseding SLA and b in the case of the replacement or modified Software Your use of all prior versions of the Software is terminated 2 Termination Without prejudice to any other rights ByStorm may terminate this SLA if You fail to comply with the terms and conditions of this SLA ByStorm may terminate this SLA by offering You a superseding SLA for the Software or any replacement or modified version of or upgrade to the Software and conditioning Your continued use of the Software or such replacement modified or upgraded version on Your acceptance of such superseding SLA In the event that ByStorm terminates this SLA You must immediately stop using the Software and Redistributable Software and destroy all copies of the Software and all of its component parts 3 Copyright All title and copyrights in and to the Software and Redistributable Software the accompanying printed materials and any copies of the Software are own2. ENT THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE IS WITH YOU 7 LIMITATION ON CONSEQUENTIAL DAMAGES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW IN NO EVENT SHALL BYSTORM BE LIABLE FOR ANY CONSEQUENTIAL INCIDENTAL DIRECT INDIRECT SPECIAL PUNITIVE OR OTHER DAMAGES WHATSOEVER INCLUDING WITHOUT LIMITATION DAMAGES FOR ANY INJURY TO PERSON OR PROPERTY DAMAGES FOR LOSS OF PROFITS BUSINESS INTERRUPTION LOSS OF BUSINESS INFORMATION FOR LOSS OF PRIVACY FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE FOR NEGLIGENCE AND FOR ANY PECUNIARY OR OTHER LOSS WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE OR REDISTRIBUTABLE SOFTWARE WHETHER BASED ON CONTRACT TORT NEGLIGENCE STRICT LIABILITY OR OTHERWISE EVEN IF BYSTORM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES THIS EXCLUSION OF DAMAGES SHALL BE EFFECTIVE EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE Page 4 of 5 8 LIMITATION ON LIABILITY THE MAXIMUM AGGREGATE LIABILITY OF BYSTORM AND ITS AGENTS REPRESENTATIVES AND LICENSORS IN ANY CONNECTION WITH THIS AGREEMENT OR THE SOFTWARE WHETHER IN TORT INCLUDING STRICT LIABILITY AND NEGLIGENCE CONTRACT OR OTHERWISE SHALL NOT EXCEED THE LICENSE FEES PAID BY YOU TO BYSTORM UNDER THIS AGREEMENT THIS LIMITATION SHALL APPLY EVEN IN THE EVENT OF A FUNDAMENTAL BREACH OR A BREACH OF THE FUNDAMENTAL TERMS OF THIS AGREEMENT If You do not
3. SOFTWARE LICENSE AGREEMENT FOR BYSTORM SOFTWARE LLC IMPORTANT READ CAREFULLY Be sure to carefully read and understand all of the rights and restrictions described in this ByStorm Software LLC Software License Agreement SLA You will be asked to review and either accept or not accept the terms of the SLA This software will not Run as defined below on Your computer unless or until You accept the terms of this SLA Your click of the yes button is a symbol of Your signature that You accept the terms of the SLA For Your reference You may receive a copy of this SLA by contacting ByStorm at ByStorm Software LLC 6315 B FM 1488 264 Magnolia Texas 77354 or sales bystorm com This SLA is a legal agreement between You either an individual or a single entity and ByStorm Corporation for the Software accompanying this SLA which includes any accompanying media printed materials or online or electronic documentation By Running the Software You agree to be bound by the terms of this SLA If You do not agree to the terms of this SLA You may not Run the Software PART A DEFINITIONS Your possession and or use of the Software for any reason will be governed by the terms set forth in parts A and D of this document and in either part B or C whichever is applicable ByStorm means ByStorm Software LLC a Texas limited liability company 6315 B FM 1488 264 Magnolia Texas 77354 Instance means any single installation of the Micros
4. a You must maintain all copyright notices on all copies of the Software and Redistributable Software b You may not reverse engineer decompile or disassemble the Software and Redistributable Software except and only to the extent that such activity is permitted by applicable law notwithstanding this limitation c You may not rent or lease the Software d You may not assign or transfer the Software for any reason without the express written consent of ByStorm Any such attempted transfer or assignment shall be null and void e All rights not expressly granted are reserved by ByStorm 5 Limited Warranty subject to Disclaimer of Warranties in Section D For the period ending thirty 30 days from the date You acquired the Software the Warranty Period ByStorm warrants that a the media by which the Software was delivered to You is not defective and the Software is properly recorded thereon and b the Software functions substantially as described in the accompanying documentation if any During such Warranty Period You may return the Software for a full refund of any license fees paid by You subject to You completing signing and delivering to ByStorm at 6315 B FM 1488 264 Magnolia Texas 77354 a surrender of license form available at the ByStorm website which certifies that You have returned or destroyed the copies of the Software and deleted the Software from Your Computers Such remedy shall be your sole and
5. e subject to the terms of this Agreement ByStorm grants to You a non exclusive non transferable limited and restricted license to use the Software for Your own internal business purposes as described in this Section 2 You are entitled to Use the Licensed Software including user documentation provided that such access and Use of the Licensed Software is in accordance with the Single Installation Instance License granted by ByStorm If You desire access to and Use of any Maintenance releases Support resources Upgrades and Updates subsequently released you must maintain a current annual Product Maintenance contract 20 of the current list price with ByStorm Should Your Product Maintenance coverage lapse and you subsequently desire access to and or Use of any Maintenance releases Support resources Upgrades and Updates subsequently released you must purchase a new perpetual license to gain access and Use of the then current Software c Use means storing locating installing executing or displaying the Licensed Software according to the license procured by you d Single Installation License means that the license key provided shall not be used for more than one concurrent Use of the Licensed Software 2 Grant of License The Software shall be deemed to be licensed on a per Instance basis for a single installation unless otherwise provided in writing by ByStorm Subject to the terms of this License Agreement You may a
6. ed by ByStorm If this Software contains documentation which is provided only in electronic form You may print one copy of such electronic documentation You may not copy the printed materials accompanying the Software 4 U S Government End Users Notice to U S Government End Users The Software and documentation are 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 227 7202 1 through 227 7202 4 as applicable the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U S Government end users a only as Commercial Items and b with only those rights as are granted to all other end users pursuant to the terms and conditions herein Unpublished rights reserved under the copyright laws of the United States ByStorm Software LLC 6315 B FM 1488 264 Magnolia Texas 77354 5 Export Restrictions You agree that You will not export or re export the Software and Redistributable Software any part thereof or any process or service that is the direct product of the Software the foregoing collectively referred to as the Restricted Components to any country person or entity subject to U S export restrictions You specifically agree not to export or re exp
7. ense granted to You for a particular copy of the Software is indicated within an applicable purchase order accepted by ByStorm or in any other documentation employed by or on behalf of either party in connection with the subject matter of this Agreement then upon acceptance of such purchase order or other documentation by the other party such purchase order or documentation shall be determinative of the Permitted Number with respect to the Permitted Number of licenses of the Software licensed hereunder For greater certainty no terms or conditions from any such purchase order or other document other than those identifying the Products and the Permitted Number shall be of any force and effect g If this is an annual subscription license agreement You are entitled to use the software only during the one year subscription time period as described in this Section 1 a h If this is a perpetual license agreement You are entitled to use the software that is generally available at time of purchase for perpetuity as described in this Section 1 b 3 Backup and Distribution Rights a You may make one 1 additional copy of the Software in machine readable form for backup purposes only provided You include any and all ByStorm copyright notices or other designations that appear or may appear in or on the Software without alteration or removal of any such copyright or other notice on the original copy of the Software 4 Restrictions
8. exclusive remedy for a breach of the Warranty under this Agreement 6 Audit ByStorm may audit no more than once annually the number of copies of the Software in use by You and Your Internal Users Any such audit shall be conducted during regular business hours at Your offices and shall not unreasonably interfere with Your business activities If such audit shows that You are using a greater number of copies of the Software than that indicated herein or in the applicable ordering documents You shall pay the applicable fees for such additional copies within thirty 30 days of invoice with such underpaid fees being the license fees as per ByStorm s then current price list If underpaid fees are in excess of five percent 5 of the value of the fees paid under this Agreement then You shall pay such underpaid fees and ByStorm s reasonable costs of conducting the audit 7 Publication You hereby consent to written and oral disclosure by ByStorm of Your name as a user of the ByStorm software and or services in a factual listing of ByStorm customers with or without a list of the category of software licensed by You to be published within marketing and promotional materials in presentations on trade show signs and materials on its external Web site and to financial and industry analysts ByStorm will seek Your prior written authorization for use of Your name for promotional activities beyond the above mentioned which may include press re
9. f Internal Users does not exceed the Permitted Number of Internal Users f Notwithstanding the foregoing where the Permitted Number for a license granted to You for a particular copy of the Software is indicated within an applicable purchase order accepted by ByStorm or in any other documentation employed by or on behalf of either party in connection with the subject matter of this Agreement then upon acceptance of such purchase order or other documentation by the other party such purchase order or documentation shall be determinative of the Permitted Number with respect to the Permitted Number of licenses of the Software licensed hereunder For greater certainty no terms or conditions from any such purchase order or other document other than those identifying the Products and the Permitted Number shall be of any force and effect 2 Backup and Distribution Rights a You may make one 1 additional copy of the Software in machine readable form for backup purposes only provided You include any and all ByStorm copyright notices or other designations that appear or may appear in or on the Software without alteration or removal of any such copyright or other notice on the original copy of the Software The backup copy will also be bound to the designated trial period beginning at the time this SLA is accepted on the licensed CPU and will not run past the designated trial period 3 Restrictions a You must maintain all copyright
10. imited and restricted license to use the Software for Your own internal business purposes as described in this Section 2 You are entitled to Use the Licensed Software including user documentation updates and upgrades to which You are entitled during the period of Your subscription provided that such access and Use of the Licensed Software is in accordance with the Single Installation Instance License granted by ByStorm Under the Subscription License the Licensed Software is licensed only for a specified period of time Should You enter into a multi Year subscription based agreement You MUST renew your license for each of the years specified at the times specified and satisfy the payment terms specified Should You enter into a single year subscription agreement and should You desire to renew Your subscription for an additional year You must do so prior to the expiry of the current subscription period in order to continue using the Licensed Software If You do not renew the subscription license prior to expiration You agree to stop using the Licensed Software after end of the subscription period and remove the Licensed Software from your systems If Your subscription expires and You later desire to Use the software You must enter into a new subscription license agreement which will include a set up fee b Perpetual License As part of Your choosing a perpetual license and in consideration of the payment of the license fee for the Softwar
11. iness purposes Workstation means a computer workstation or personal computer running a workstation version of Microsoft Windows and that is not used as a network server PART B EVALUATION SOFTWARE PRODUCT LICENSE Software provided to you on a complementary basis for evaluation purposes regardless of how labeled is Evaluation Software Your possession and or use of Evaluation Software will be governed by the terms set forth in part B and part D of this document The Software and Redistributable 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 1 Grant of License Subject to the terms of this Agreement ByStorm grants to You a one time non exclusive non transferable limited and restricted license to use for the designated trial period the Software for Your own internal business purposes as described in this Section 2 The Software shall be deemed to be licensed on a per Instance basis unless otherwise provided in writing by ByStorm Subject to the terms of this License Agreement You may a install use access display run or otherwise interact with Run the copies of the Software on a Permitted Number of computers workstations or terminals Computer for the designated trial period The designated trial period will begin upon acceptance of this SLA The primary Internal User of the Com
12. install use access display run or otherwise interact with Run the copies of the Software on a Permitted Number of computers workstations or terminals Computer The primary Internal User of the Computer on which the Software is Run may make a second copy for his or her exclusive use on a portable computer b store or Run a copy of the Software on a Server or other storage device such as a network server used only to Run the Software on Your other Computers over an internal network however You must acquire and dedicate a license for each separate Computer on which the Software is Run from the Server or other storage device A license for the Software may not be shared or used concurrently on different Computers c with respect to a per Instance license Run the Software on any number of Instances provided that the total number of Instances on which the Software is Run does not exceed the Permitted Number d with respect to a per Workstation license Run the Software on a Server and permit access to the Software from any number of Workstations provided that the total number of Workstations on which the Software is Run does not exceed the Permitted Number e with respect to a per User license Run the Software on an unlimited number of CPUs provided that the total number of Internal Users does not exceed the Permitted Number of Internal Users f Notwithstanding the foregoing where the Permitted Number for a lic
13. leases and brochures or descriptions of the specific software and or services provided by ByStorm PART D GENERAL TERMS AND CONDITIONS APPLICABLE TO ALL SOFTWARE LICENSES Your possession and or use of the Software for any reason will be governed by the terms set forth in parts A and D of this document and in either part B or C whichever is applicable 1 Support Services a ByStorm may provide You with support services related to the Software Support Services in its discretion Use of Support Services if any is governed by the ByStorm policies and programs described in the user manual in online documentation and or other ByStorm provided materials Any supplemental software code provided to You as a part of Support Services shall be considered part of the Software and subject to the terms of this SLA With respect to technical information You provide to ByStorm as part of the Support Services ByStorm may use such information for its business purposes including for product support and development ByStorm will not utilize such technical information in a form that personally identifies You except to the extent necessary to provide You with support b ByStorm reserves the right to replace modify or upgrade the Software at any time by offering You a replacement or modified version of the Software or such upgrade and to charge for such replacement modification or upgrade Any such replacement or modified software code or upgrade to
14. notices on all copies of the Software and Redistributable Software b You may not reverse engineer decompile or disassemble the Software and Redistributable Software except and only to the extent that such activity is permitted by applicable law notwithstanding this limitation c You may not rent or lease the Software d You may not agree to this SLA or run a trial version of the Software more than once on any given computer e You may not assign or transfer the Software for any reason without the express written consent of ByStorm Any such attempted transfer or assignment shall be null and void e All rights not expressly granted are reserved by ByStorm PART C SOFTWARE PRODUCT LICENSE Your possession and or use of any other than Evaluation Software will be governed by the terms set forth in part C and part D of this document The Software and Redistributable 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 and may be licensed as a perpetual or a subscription as defined here in Part C of this SLA 1 Type of License a Subscription License As part of Your choosing a subscription license and in consideration of the payment of the one time set up fee and subscription license fee for the Software subject to the terms of this Agreement ByStorm grants to You a non exclusive non transferable l
15. oft Windows Operating System This may be on a physical computer or within a virtual machine Effective Date means unless otherwise specified in the Agreement the date upon which You acquire a license to use the Software Designated Trial Period means the period of time as stated in an applicable purchase order or other documentation that You are granted a license for the Software upon acceptance of this SLA Permitted Number means one 1 instance Internal User or Workstation except as otherwise provided in a valid authorized Order Document accepted by ByStorm or as otherwise indicated herein or in another valid license granted by ByStorm Software means the ByStorm in object code form only and any related printed or electronic documentation including all exe files created by using the Software with the exception of Redistributable Software as defined below Redistributable Software means exe files created as described in documentation intended for distribution outside of Your Company Server means a network server running a Server version of Microsoft Windows Internal Users means any Individual who is authorized by You to access and use the Software for Your own internal business purposes External User means any Individual who is not authorized by You to access and use the Software but to whom you have provided a copy of the Redistributable Software for your bus
16. ort any of the Restricted Components i to any country to which the U S has embargoed or restricted the export of goods or services which currently include but are not necessarily limited to Cuba Iran Libya North Korea Sudan and Syria or to any national of any such country wherever located who intends to transmit or transport the Restricted Components back to such country ii to any person or entity who You know or have reason to know will utilize the Restricted Components in the design development or production of nuclear chemical or biological weapons or iii to any person or entity who has been prohibited from participating in U S export transactions by any federal agency of the U S government You warrant and represent that neither the U S Commerce Department Bureau of Export Administration nor any other U S federal agency has suspended revoked or denied Your export privileges 6 Disclaimer of Warranties EXCEPT AS PROVIDED IN SECTION C PART 4 OF THIS DOCUMENT BYSTORM PROVIDES THE SOFTWARE AND REDISTRIBUTABLE SOFTWARE AS IS AND WITH ALL FAULTS AND HEREBY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS EITHER EXPRESS IMPLIED OR STATUTORY INCLUDING BUT NOT LIMITED TO ANY IF ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY OF FITNESS FOR A PARTICULAR PURPOSE OF LACK OF VIRUSES AND OF LACK OF NEGLIGENCE OR LACK OF WORKMANLIKE EFFORT ALSO THERE IS NO WARRANTY OR CONDITION OF TITLE OF QUIET ENJOYMENT OR OF NONINFRINGEM
17. puter on which the Software is Run may make a second copy for his or her exclusive use on a portable computer The second copy will also be bound to a designated trial period beginning at the time this SLA is accepted and the software is run on the portable computer b store or Run a copy of the Software on a Server or other storage device such as a network server used only to Run the Software on Your other Computers over an internal network however You must acquire and dedicate a license for each separate Computer on which the Software is Run from the Server or other storage device Each designated trial period will begin at the time this SLA is accepted on each separate computer A license for the Software may not be shared or used concurrently on different Computers c with respect to a per Instance license Run the Software for the designated trial period on any number of Instances provided that the total number of instances on which the Software is Run does not exceed the Permitted Number d with respect to a per Workstation license Run the Software on a Server and permit access to the Software from any number of Workstations for the designated trial period provided that the total number of Workstations on which the Software is Run does not exceed the Permitted Number e with respect to a per User license Run the Software on an unlimited number of Instances for the designated trial period provided that the total number o
18. uestions or if You desire to contact ByStorm for any reason please write ByStorm Sales 6315 B FM 1488 264 Magnolia Texas 77354 or sales bystorm com Page 5 of 5
19. wish to accept the Software under the terms of this SLA do not Run the Software and return Your copy of the Software to ByStorm at Software Returns ByStorm Software LLC 6315 B FM 1488 264 Magnolia Texas 77354 for a refund of any fees paid if any 9 Governing Law If You acquired the Software in the United States of America the laws of the State of Texas U S A will apply to this contract If You acquired this Software outside of the United States of America then local law may apply This Agreement will not be governed by i the principles of conflicts of law and that body of law applicable to choice of law ii the United Nations Convention on Contracts for the International Sale of Goods and or its implementing and or successor legislation and or regulations and or iii the Uniform Computer Information Transactions Act and or its implementing and or successor legislation and or regulations as applicable respectively The respective courts of Harris County Texas shall have non exclusive jurisdiction over all disputes relating to this Agreement 10 Suggestions ByStorm is always seeking your input and is open to your suggestions and ideas about what additional features and functionality you would like to have us create develop deliver If ByStorm decides to implement something suggested it is the property of ByStorm and ByStorm is under no obligation to compensate you for any such idea or suggestion 11 Questions Should You have any q
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