PowerGadgets Mobile Creator Licensing
Read Carefully Before Installing the Software
By installing PowerGadgets Mobile Creator (hereinafter "the Software" or "Software"), you are accepting the following License Agreement.
LICENSE AGREEMENT.
This is a legal agreement between you (either an individual or an entity) and Software FX, Inc. ("the Licensor" or "Licensor"). By installing the software you are agreeing to be bound by the terms of this agreement.
1. GRANT OF LICENSE. Licensor grants you as an individual or entity a non-exclusive, non-transferable, worldwide license to make and use copies of the Software in the manner provided below. The software is licensed, not sold.
(a) Installation. The product is licensed on a per seat basis. Per-seat licenses are licenses that are counted by all the machines on which any of the Software portion will reside on. To use a per-seat license, every machine installing, running and/or using any portions of the software must have a licensed copy and its appropriate license.
2. RESTRICTIONS. You may not:
(a) copy the Software by any mechanism for any purpose other than to create an archival copy to the extent permitted by federal copyright law
(b) bundle or distribute the Software with any other software, plug-in or enhancement which uses or relies upon the Software without the express written consent of Licensor;
(c) embed or distribute the Software as an OLE, ActiveX or any other component of an application, server, web server, browser or container;
(d) sell or otherwise directly receive compensation for the Software unless you have express written permission from Licensor
(d) modify or permit anyone else to modify the Software in any manner;
(e) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software
(f) rent, lease, sublicense, assign or transfer your rights under this Agreement, or authorize all or any portion of the Software to be copied except as may be expressly permitted herein;
(g) use or sublicense the Software or Documentation in connection with a service bureau or like activity whereby you, without obtaining permission from Licensor, operate or use the Software or Documentation for the benefit of a third party who has not licensed a copy of the Software;
(h) release the results of any benchmark testing of the Software to any third party without the prior written consent of Licensor.
3. NO OPEN SOURCE. Your right to the Software does not include any license, right, power or authority to subject the Software in whole or in part to any of the terms of an Excluded License. An "Excluded License" means any "open source" or other license that require as a condition of use, modification and/or distribution of software subject to the Excluded License, that such software or other software combined and/or distributed with such software be
(a) disclosed or distributed in source code form;
(b) licensed for the purpose of making derivative works; or
(c) redistributable at no charge.
4. HIGH RISK ACTIVITIES. The Software is not fault tolerant and is not intended for use in high-risk activities. You may not use the Software in the design, construction, operation or maintenance of any nuclear facility or weapon of mass destruction, or for the purpose of aircraft navigation or control or any other activity in which the failure of the Software could result in loss of human life, personal injury or property damage.
5. SERVICES. There are no services provided under this agreement. You are responsible for installing the Software on your computers as permitted under this agreement.
6. FEES. Prices are available upon request and are subject to change. Please consult Licensor or its authorized resellers as to current fees before placing an order. All license fees are non-refundable and non-cancelable except as expressly provided in this agreement and do not include shipping, sales or use tax, withholding tax, excise tax, VAT or custom duties, all of which you are responsible for paying above and beyond the license fees due to Licensor or its authorized resellers.
7. ACTIVATION. During installation, an Internet connection is required on the machine where the product is being installed. Only the serial number and a unique product ID provided by the installation program is sent to our servers. Alternatively, if necessary, this information could be submitted from another computer that is connected to the Internet. The information is encrypted using the standard RSA Public/Private key methodology. For security reasons, we do not copy the private key onto the client machine; instead it resides on our servers and thus the need for an Internet connection to obtain a code to complete the install of the software. Our installation does not scan your hard drive or gather any personal information from your computer; therefore, no privacy issues should be of concern to you. Customers are still encouraged to register the product using the traditional and voluntary web site registration form. The installation process should be simple and unobtrusive for all customers. Our goal is to prevent installation of serial numbers that have been obtained from fraudulent purchases, returned products, expired programs and other suspicious means.
8. MAINTENANCE/SUPPORT. You may acquire maintenance/technical support services ("Maintenance/Support") for the Software provided that you subscribe to Licensor's Maintenance/Support programs or to an authorized Licensor partner support program. Maintenance/Support shall be based on the in-country list price and then applicable Maintenance/Support policy in effect at the time such Maintenance/Support is ordered. Maintenance/Support fees are due annually in advance and are nonrefundable and non-cancelable.
9. EVALUATION LICENSE. Notwithstanding any provision of this Agreement to the contrary, the following terms and conditions shall apply to any Software acquired by you for purposes of evaluation. Any evaluation license for the Software shall terminate sixty (60) days from the date of your initial installation of the Software. The Software may be used solely for internal noncommercial evaluation. You may not use an evaluation copy of the Software for any purpose, including production use, other than evaluation. The Software may not be transferred, is licensed to you without fee, and is provided "AS IS" without warranty of any kind. To the maximum extent permitted by applicable law, You agree to release, defend and indemnify and hold Licensor harmless from any claims and/or damages of any kind by any party or entity, arising out of Your use of the Software for evaluation. All other terms and conditions of this Agreement shall otherwise apply to the Software.
10.LIMITED WARRANTY AND LIMITATION OF LIABILITY.
(a) Limited Warranty and Customer Remedies. Software FX warrants 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. 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. Software FX's and its suppliers' entire liability and your exclusive remedy shall be, at Software FX's option, either (i) return of the price paid, if any, or (ii) repair or replacement of the Software that does not meet Software FX's Limited Warranty and which is returned to Software FX 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 SOFTWARE FX OR ITS SUPPLIER'S BREACH OF WARRANTY. SOFTWARE FX 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, SOFTWARE FX 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, SOFTWARE FX 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 SOFTWARE FX 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 SOFTWARE FX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, SOFTWARE FX'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, Software FX's 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 Software FX and you.
(d) Infringement Claims. Software FX 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 ("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 Software FX in writing of any Claim within ten (10) business days after you first receive notice of the Claim, and you shall provide to Software FX at no cost with such assistance and cooperation as Software FX may reasonably request from time to time in connection with the defense of the Claim. Software FX 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 Software FX 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. Software FX 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 Software FX's legal counsel the Software is likely to become the subject of a Claim, Software FX 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 Software FX's legal counsel the Claim, the injunction or potential Claim cannot be resolved through reasonable modification or licensing, Software FX, 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 Software FX. THE FOREGOING CONSTITUTES SOFTWARE FX'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.
11.JURISDICTION. This Agreement is governed by the laws of the State of Florida, the U.S. Copyright Act and other applicable U.S. federal laws. All disputes or legal proceedings relating to use of the SOFTWARE or this Agreement shall be brought and heard exclusively in the state or federal courts located in Palm Beach County, Florida, and by installing and/or using the SOFTWARE, you hereby irrevocably consent and submit to personal jurisdiction in such courts for all such disputes or legal proceedings.
U.S. GOVERNMENT RESTRICTED RIGHTS
The SOFTWARE and written materials are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is Software FX, Inc.
This Agreement is governed by the laws of the State of Florida, the U.S. Copyright Act and other applicable U.S. federal laws. All disputes or legal proceedings relating to use of the SOFTWARE or this Agreement shall be brought and heard exclusively in the state or federal courts located in Palm Beach County, Florida, and by installing and/or using the SOFTWARE, you hereby irrevocably consent and submit to personal jurisdiction in such courts for all such disputes or legal proceedings.
If you have any questions regarding this Agreement or if you wish to request any information about PowerGadgets, please contact Software FX customer service at sales@softwarefx.com or visit our web site at http://www.softwarefx.com for additional contact information.