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DO NOT PROCEED WITH INSTALLATION OR USE THIS SOFTWARE UNTIL YOU, THE INDIVIDUAL OR ENTITY PURCHASING AND/OR USING THIS PRODUCT HAS READ THIS SOFTWARE LICENSE AGREEMENT ("AGREEMENT"). BY CLICKING ON THE "I ACCEPT" BUTTON (OR AUTHORIZING ANY OTHER PERSON TO DO SO), OR INSTALLING OR USING ANY OF THE PRODUCTS PROVIDED BY WIREDRED SOFTWARE ("WIREDRED"), YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST CLICK ON THE "I DO NOT ACCEPT" BUTTON AND SHALL NOT HAVE ANY RIGHTS TO INSTALL, USE OR OTHERWISE BENEFIT FROM THE PRODUCTS.
WIREDRED SOFTWARE LICENSE
1. GRANT OF LICENSE. WiredRed Software and its affiliates, including but not limited to, its parent, subsidiaries, and successors and any entity merged into or with WiredRed Software ("WiredRed"), grants to you, the end user, a personal, nonexclusive, nonsublicensable, nonassignable, nontransferable (except as provided in Section 4), terminable license to use a single copy of this software program, including any updates, additional modules, or additional software provided by WiredRed itself or through an authorized distributor in connection therewith (the "Software"), solely for your own use, and solely in accordance with the terms and conditions of this license agreement. For the purchase of multiple licenses of the Software, this agreement shall apply to each distinct license purchased. The Software may be used by as many users and/or on as many workstations and servers as specified in the bill of sale or invoice.
2. COPYRIGHT AND COPIES. The Software (including any copy thereof), is owned by WiredRed or its suppliers and is protected by United States, local and international copyright and/or patent laws and international treaty provisions. The Software copy is licensed, not sold to you, and you are not an owner of any copy thereof. You may either (a) make one copy of the Software solely for backup or archival purposes, or (b) transfer the Software to a single hard disk provided you keep the original solely for backup or archival purposes. You may not otherwise copy the Software, and you may not copy the written materials accompanying the Software, unless such copies of the associated written materials are solely for your own internal use. WiredRed hereby reserves all rights not explicitly granted in this software license agreement.
3. MODIFICATIONS AND REVERSE ENGINEERING. Except as otherwise provided herein, you shall not copy, modify, reverse engineer, map, decompile, enhance, or make derivative works, translations, or compilations or portions or otherwise derive the source code, internal structure, organization or any other aspect of the Software or any part thereof or directly or indirectly aid, abet or permit others to do so. Any unauthorized modifications, derivative works, translations, or any other intellectual property, created directly or indirectly using or referring to the Software, or components thereof, or enhancements of the Software, shall belong exclusively to WiredRed and you hereby assign any and all rights in them (including without limitation moral rights) to WiredRed. You hereby agree to promptly enter into any further documentation required by WiredRed in its sole discretion to legally or commercially effect such assignment, including, without limitation, ensuring that your employees and/or contractors do the same. You hereby expressly waive any rights you may obtain inconsistent with the foregoing through application of the law of any other country or otherwise. You hereby acknowledge that you have no right whatsoever and shall have no right whatsoever, whether by the express terms of this Agreement or by any course of conduct, to use, review, or access the source code for the Software.
4. OTHER RESTRICTIONS. You may not rent or lease the Software, but you may transfer the Software and accompanying written materials on a permanent basis provided you retain no copies and the recipient agrees to the terms of this Agreement. If the Software is an update, any transfer must include the update and all prior versions. You may not modify or translate the Software. You further agree (i) not to remove any Software identification or notices of any proprietary or copyright restrictions from the Software or any support material; (ii) except for archival or backup copies, not to copy the Software, or any derivative or part thereof; develop any derivative or composite works thereof or include any portion of the Software in any other software program; (iii) not to provide use of the Software in a computer service business, rental or commercial timesharing arrangement; and (iv) not to develop methods to enable unauthorized parties to use the Software.
5. DUAL MEDIA. If the Software package (if any) contains more than one form of media, such as a 3.5" diskette and a CD-ROM, then you may use only one of the media appropriate for your computer or computer system. You may not use the other media on another computer or loan, rent, lease, or transfer them to another except as part of the permanent transfer (as provided above), of all Software and written materials.
6. LIMITED WARRANTY AND REMEDY. WiredRed warrants the physical media (e.g. diskette(s) or CD-ROM), and the physical documentation, to be free of defects in materials and workmanship for a period thirty (30) days from the original purchase date. If WiredRed receives notification within this warranty period of any such defects and such notification is determined to be correct, WiredRed will, at its sole option and discretion, either repair or replace the media or documentation, or provide you a full refund. The foregoing is your sole and exclusive remedy and states WiredRed's entire liability arising out of this warranty. Any other warranty claim, must be brought to Distributor, if any, who you agree shall be the sole party you look to for warranty claims and damages beyond the express, limited warranty set out herein. Moreover, this limited warranty is void if the damage or defect has resulted from accident, abuse, misuse or misapplication.
7. NO OTHER WARRANTIES. THE LIMITED WARRANTY ABOVE IS EXCLUSIVE AND IN LIEU OF ALL OTHER CONDITIONS AND WARRANTIES FOR THE SOFTWARE AND DOCUMENTATION. WIREDRED AND ITS SUPPLIERS MAKE NO OTHER CONDITIONS OR WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EXPRESSLY DISCLAIM ALL OTHER CONDITIONS AND WARRANTIES, INCLUDING BUT NOT LIMITED TO, IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT FOR THE SOFTWARE AND DOCUMENTATION.
8. LIMITED LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT AND UNDER NO LEGAL THEORY SHALL WIREDRED OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY COSTS OF SUBSTITUTE PRODUCTS, OR FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES OF ANY KIND ARISING OUT OF THE LICENSE OR, USE OF, OR INABILITY TO USE, ANY WIREDRED SOFTWARE OR DOCUMENTATION, EVEN IF WIREDRED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL WIREDRED'S OR ITS SUPPLIERS' LIABILITY EXCEED THE LICENSE FEE PAID BY YOU. THIS LIMITATION OF LIABILITY AND RISKS IS REFLECTED IN THE PRICE OF THE SOFTWARE LICENSE. IN ADDITION TO ANY AND ALL OTHER DISCLAIMERS UNDER THIS AGREEMENT, WIREDRED EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES AS DEFINED IN CLAUSE 12.
9. TERM. This license is effective until terminated. You may terminate it at any time by destroying the Software together with all copies, modifications and merged portions in any form. It will also terminate automatically upon your failure to comply with any term or condition of this Agreement or failure to pay in full for a license key within 30 days of the effective date of this Agreement. In the event of such termination, you agree to promptly destroy and cease all use of the Software together with all copies, modifications and merged portions in any form.
10. GOVERNING LAW. You acknowledge that WiredRed is based in the State of California, U.S.A. and requires uniformity and consistency in the laws under which it deals directly or indirectly with all of the licensees and sub-licensees of its Software, documentation and trademarks. In addition, you acknowledge that WiredRed is the proponent of this Agreement and the business transactions contemplated by this Agreement. Accordingly, this Agreement shall be governed by and interpreted only in accordance with the laws of the State of California, U.S.A., without reference to conflict of laws principles and to the maximum extent permitted under applicable law you expressly waive any rights to the application of any other law or regulation or effect thereof.
11. FORUM SELECTION AND DISPUTE RESOLUTION
(a) Except as otherwise provided below, any controversy or claim arising out of or relating to this Agreement shall be submitted to final and binding arbitration before, and in accordance with, the rules of the American Arbitration Association ("AAA") as modified herein. If the claim seeks damages of U.S. $100,000 or less, it shall be decided by a single independent arbitrator. If the claim seeks damages in excess of U.S. $100,000, it shall be decided by three independent arbitrators, one nominated by each party and one selected by the AAA, in accordance with AAA's rules and procedures. All arbitrators shall have expertise in the subject matter of the dispute. The arbitration process, including selection of the arbitrator or arbitrators, exchanges of requests for information and the arbitration hearing shall be completed within sixty (60) days following the initiation of the arbitration by either party, and the actual arbitration hearing shall be limited to one (1) day. The arbitrator(s) shall issue a written judgment within ten (10) days following the arbitration hearing. Judgment upon any arbitration award may be entered in any court having jurisdiction thereof. This provision is self executing, and in the event that either party fails to appear at any properly noticed arbitration proceeding, an award may be entered against such party notwithstanding said failure to appear. Such arbitration shall be conducted in San Diego, California. This clause shall survive the termination of this Agreement.
(b) Notwithstanding the foregoing: (1) any claim relating to the validity of the WiredRed Software, the WiredRed trademarks, or other proprietary technology or intellectual property shall not be determined by arbitration, but only by a court located in the United States District for the Southern District of California, to whose sole jurisdiction the parties hereby consent, or such other court which WiredRed, in its sole discretion as owner of the licensed intellectual property, shall select; and you expressly waive any right you may have to any other forum; and (2) you acknowledge that any breach of your obligations under this Agreement which relates to the proprietary rights, or which is otherwise not subject to remedy by monetary damages, will cause WiredRed irreparable harm, and that WiredRed accordingly will be entitled to injunctive and other equitable relief in addition to all other remedies provided by this Agreement or available at law, in any court of competent jurisdiction.
12. HIGH RISK ACTIVITIES. The Software is not fault-tolerant and is not designed or intended for use in hazardous environment or in any environment requiring fail-safe performance, including without limitation, in the operation of nuclear facilities, rescue or emergency facilities, aircraft navigation or communication systems, air traffic control, weapons systems, direct life-support machines, or any other application in which the failure of the Software could lead directly to death, personal injury, or severe physical or property damage (collectively, "High Risk Activities").
13. MISCELLANEOUS. This is the entire Agreement between you and WiredRed, and supersedes any prior agreement, or representations of, WiredRed, or Distributor if any, whether written or oral, relating to the subject matter of this Agreement. The parties disclaim the application of the United Nations Convention on the International Sale of Goods. You may not export or re-export the Software of documentation without the appropriate United States or foreign government licenses. If any provision of this Agreement is ruled invalid, such invalidity shall not affect the validity of the remaining portions of this Agreement.
