ThinkFlood Software License Agreement
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT (“LICENSE”) CAREFULLY BEFORE USING THINKFLOOD SOFTWARE. BY DOWNLOADING, INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT DOWNLOAD, INSTALL, COPY OR USE THE SOFTWARE. FOR SOFTWARE INCLUDED WITH YOUR PURCHASE OF HARDWARE, YOU MUST RETURN THE ENTIRE HARDWARE/SOFTWARE PACKAGE IN ORDER TO OBTAIN A REFUND. IF THE SOFTWARE WAS ACCESSED ELECTRONICALLY, CLICK “DISAGREE/DECLINE” OR ERASE THE SOFTWARE FROM YOUR COMPUTING DEVICE.
License Grant
ThinkFlood, Inc. (“ThinkFlood”) and its suppliers grant to Customer (“Customer”) a nonexclusive and nontransferable license to use the ThinkFlood software (“Software”) in object code form on hardware units owned or leased by Customer or otherwise embedded in equipment provided by ThinkFlood, solely for the purpose set forth in the applicable documentation.
Scope
The software, documentation and any fonts accompanying this License whether on disk, in read only memory, on any other media or in any other form (collectively the “Software”) are licensed, not sold, to you by ThinkFlood, Inc. (“ThinkFlood”) for use only under the terms of this License, and ThinkFlood reserves all rights not expressly granted to you. The terms of this License will govern any software upgrades provided by ThinkFlood that replace or supplement the original Software product, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern. Title and intellectual property rights in and to any content displayed by or accessed through the Software belongs to the respective content owner. Such content may be protected by copyright or other intellectual property laws and treaties, and may be subject to terms of use of the third party providing such content. This License does not grant you any rights to use such content.
Permitted License Uses and Restrictions
This License allows you to install and use one copy of the Software on all computers under your ownership or control. You may make one copy of the Software in machine-readable form for backup purposes only; provided that the backup copy must include all copyright or other proprietary notices contained on the original.
Certain components of the Software, and third party open source programs included with the Software, have been or may be made available by ThinkFlood on its open source web site (collectively the “Open-Sourced Components”). You may modify or replace only these Open-Sourced Components; provided that you otherwise comply with the terms of this License and any applicable licensing terms governing use of the Open-Sourced Components. ThinkFlood is not obligated to provide any updates, maintenance, warranty, technical or other support, or services for the resultant modified Software.
You may not copy (except as expressly permitted by this License), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Software or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Software). Any attempt to do so is a violation of the rights of ThinkFlood and its licensors of the Software. If you breach this restriction, you may be subject to prosecution and damages.
Transfer
You may not rent, lease, lend, or sublicense the Software. You may, however, make a one-time permanent transfer of all of your license rights to the Software to another party, provided that: (a) the transfer must include all of the Software, including all its component parts, original media, printed materials and this License; (b) you do not retain any copies of the Software, full or partial, including copies stored on a computer or other storage device; and (c) the party receiving the Software reads and agrees to accept the terms and conditions of this License. All components of the Software are provided as part of a bundle and may not be separated from the bundle and distributed as standalone applications. Updates: If a Software update completely replaces (full install) a previously licensed version of the Software, you may not use both versions of the Software at the same time nor may you transfer them separately.
Not for Resale Copies: Notwithstanding other sections of this License, Software labeled or otherwise provided to you on a promotional basis may only be used for demonstration, testing and evaluation purposes and may not be resold or transferred.
Consent to Use of Data
You agree that ThinkFlood and its subsidiaries may collect and use technical and related information, including but not limited to technical information about your computer, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to you (if any) related to the Software. ThinkFlood may use this information, as long as it is in a form that does not personally identify you, to improve our products or to provide services or technologies to you.
Termination
This License is effective until terminated. Your rights under this License will terminate automatically without notice from ThinkFlood if you fail to comply with any term(s) of this License. Upon the termination of this License, you shall cease all use of the Software and destroy all copies, full or partial, of the Software.
Limited Warranty on Media
ThinkFlood warrants the media on which the Software is recorded and delivered by ThinkFlood to be free from defects in materials and workmanship under normal use for a period of ninety (90) days from the date of original retail purchase. Your exclusive remedy under this Section shall be, at ThinkFlood’s option, a refund of the purchase price of the product containing the Software or replacement of the Software that is returned to ThinkFlood or a ThinkFlood authorized representative with a copy of the receipt.
THIS LIMITED WARRANTY AND ANY IMPLIED WARRANTIES ON THE MEDIA INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, OF SATISFACTORY QUALITY, AND OF FITNESS FOR A PARTICULAR PURPOSE, ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF ORIGINAL RETAIL PURCHASE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
THE LIMITED WARRANTY SET FORTH HEREIN IS THE ONLY SOFTWARE WARRANTY MADE TO YOU AND IS PROVIDED IN LIEU OF ANY OTHER WARRANTIES (IF ANY) CREATED BY ANY DOCUMENTATION OR PACKAGING. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY BY JURISDICTION.
The above warranty DOES NOT apply to any beta software, any software made available for testing or demonstration purposes or any temporary software modules. All such software products are provided AS IS without any warranty whatsoever.
Disclaimer of Warranties
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. EXCEPT FOR THE LIMITED WARRANTY ON MEDIA SET FORTH ABOVE AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED “AS IS,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND THINKFLOOD AND THINKFLOOD’S LICENSORS (COLLECTIVELY REFERRED TO AS “THINKFLOOD”) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. THINKFLOOD DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE, THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. YOU FURTHER ACKNOWLEDGE THAT THE SOFTWARE IS NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OF, OR ERRORS OR INACCURACIES IN THE CONTENT, DATA OR INFORMATION PROVIDED BY THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY THINKFLOOD OR A THINKFLOOD AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL THINKFLOOD BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF THINKFLOOD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL THINKFLOOD’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF ONE HUNDRED DOLLARS ($100.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
NOTWITHSTANDING THE FOREGOING, THINKFLOOD BEARS NO LIABILITY FOR ANY DAMAGES RESULTING FROM USE (OR ATTEMPTED USE) OF BETA SOFTWARE, ANY SOFTWARE MADE AVAILABLE FOR TESTING OR DEMONSTRATION PURPOSES OR ANY TEMPORARY SOFTWARE MODULES.
Export Control
You may not use or otherwise export or re-export the Software except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missiles, or chemical or biological weapons.
Government End Users
The Software and related documentation are “Commercial Items”, 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.
Controlling Law and Severability
This License will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, as applied to agreements entered into and to be performed entirely within Massachusetts between Massachusetts residents. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, such provision will be limited or eliminated to the minimum extent necessary and the remainder of this License shall continue in full force and effect.
No Assignment
This License is personal to you, and you may not assign all or any rights or obligations hereunder (by operation of law or otherwise) without ThinkFlood’s express written consent, at its sole discretion. Any assignment in violation of the foregoing shall be void and without effect. This License shall be binding upon, and inure to the benefit of, the successors and permitted assigns of the parties hereto.
Complete Agreement; Governing Language
This License constitutes the entire agreement between the parties with respect to the use of the Software licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this License will be binding unless in writing and signed by ThinkFlood. Any translation of this License is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this License shall govern.
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