Virtronics Software End User License Agreement
IMPORTANT: This software end user license agreement ('EULA') is a legal agreement between you and Virtronics. Please read it carefully before completing the installation process and using the Software. It provides a license to use the Software and contains liability disclaimers. By installing and using the Software, you are confirming your acceptance of the software and agreeing to become bound by the terms of this agreement. If you do not agree with the terms of this EULA, do not install or use the Software. This EULA shall apply only to the Software supplied by Virtronics herewith regardless of whether other software is referred to or described herein. The terms also apply to any Virtronics Software updates, supplements, Internet-based services, and support services for this software, unless other terms accompany those items. If so, those terms apply.
1. Definitions
1.1 'Virtronics ' means Virtronics Software Corporation and its licensors, if any.
1.2 'Add-on' means a separate component which works in conjunction with Virtronics products to provide additional or enhanced functionality. Add-ons include, but are not limited to, plug-ins, macros, extensions and libraries.
1.3 'Software' means only the licensed Virtronics software program(s), Add-ons, and third party software programs supplied by Virtronics and corresponding documentation, online or electronic documentation, and, if any, associated media and printed materials.
2. License Grants
The licenses granted in this section are subject to the terms and conditions set forth in this EULA.
2.1 Upon your acceptance of this Agreement Virtronics grants you a non-exclusive, non-transferable (except as provided below), limited license to install and use the Software on compatible devices. You may install and use the Software as permitted by the license type purchased described in this end user license agreement. The license type purchased is specified in the product receipt or invoice.
2.2 License Types
2.2.1 Pro License: Under the terms of a pro License, the Software is licensed for use on ten computers or computing devices at a time.
2.3 Additional Licensing Requirements
2.3.1 Virtualization Technology: The Software may be installed within a virtual (or otherwise emulated) hardware system so long as the use of the Software meets the terms of the license type and these virtual machines are run on hardware owned or leased by you.. Virtualization technology may not be used to circumvent other licensing terms and restrictions.
2.3.2 Non-Human Devices: Non-human devices that utilize the Software without interaction are counted as users. Each device that runs the Software must be properly licensed to use the Software with one of the license types described herein. Examples of non-human devices include, but are not limited to, virtual PCs, build servers, unattended PCs for batch jobs, etc.
2.4 Backups: Regardless of which version of the Software you have acquired, you may make one archival (backup) copy of the Software.
2.5 Prior Versions: Prior Versions of the Software may be installed on the same computer with a properly licensed current version of Software. A Prior Version may be used by a properly licensed user in place of the current version of the software. The prior version is not an additional license of the Software; it may be used only as a substitute for the current version.
2.6 You agree that Virtronics may audit your use of the Software for compliance with these terms at any time, upon reasonable notice. In the event that such audit reveals any use of the Software by you other than in full compliance with the terms of this Agreement, you shall reimburse Virtronics for all reasonable expenses related to such audit in addition to any other liabilities you may incur as a result of such non-compliance.
3. License Restrictions
Except to the extent contrary to applicable law:
3.1 The Software is licensed as a single product. The Software and its constituent parts, such as any provided Add-ons or other files, may not be reverse engineered, decompiled, disassembled or separated for use on more than one computer, nor placed for distribution, sale, or resale as individual creations by you.
3.2 The provision of source code, if included with the Software, does not constitute transfer of any legal rights to such code, and resale or distribution of all or any portion of all source code and intellectual property will be prosecuted to the fullest extent of all applicable local, federal and international laws. All Virtronics Software and other files remain Virtronics 's exclusive property. If source code or modifiable files are provided, regardless of any modifications that you make, you may not redistribute them unless Virtronics has expressly designated these as re-distributable. Under no circumstances may Add-ons owned and distributed by Virtronics be copied or distributed.
3.3 Other than as expressly set forth in Section 2, you may not make or distribute copies of the Software, or electronically transfer the Software from one computer to another or over a network.
3.4 You may not alter, merge, adapt or translate the Software, or decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form.
3.5 Unless otherwise provided herein, you may not rent, lease, or sublicense the Software. Unless otherwise expressly authorized in a separate written agreement between, and executed by, you and Virtronics , you may not use, or permit the use of, the Software on a timeshare or service bureau basis. In addition, unless otherwise expressly authorized in a separate written agreement between, and executed by, you and Virtronics , you may not host, on a subscription basis or otherwise, the Software to permit a third party to use the Software for any reason.
3.6 Other than as expressly set forth in Section 2 hereof, you may not modify the Software or create derivative works based upon the Software.
3.7 Education Versions may not be used for, or distributed to any party for, any commercial purpose.
3.8 Unless otherwise provided herein, you shall not (A) in the aggregate, install or use more than one copy of the Trial Version of the Software, (B) download the Trial Version of the Software under more than one username, (C) alter the contents of a hard drive or computer system to enable the use of the Trial Version of the Software for an aggregate period in excess of the trial period for one license to such Trial Version, (D) disclose the results of software performance benchmarks obtained using the Trial Version to any third party without Virtronics 's prior written consent, (E) use the Trial Version for any application deployment or ultimate production purpose, or (F) use the Trial Version of the Software for a purpose other than the sole purpose of determining whether to purchase a license to the Software; provided, however, notwithstanding the foregoing, you are strictly prohibited from installing or using the Trial Version of the Software for any commercial training purpose.
3.9 You may not use the Software to create any product that directly or indirectly competes with the Software.
4. Upgrades and Bundles
If this copy of the Software is an upgrade from an earlier version of the Software, it is provided to you on a license exchange basis. You agree by your installation and use of such copy of the Software to voluntarily terminate your earlier EULA and that you will not transfer the earlier version of the Software to another person or entity unless such transfer is pursuant to Section 5.
5. 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 instance of this Agreement, the Software and all other software or hardware bundled or pre-installed with the Software, including all copies, updates and prior versions 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 license from Virtronics ; and (d) the receiving party accepts the terms and conditions of this Agreement and any other terms and conditions upon which you legally purchased a license to the Software. Notwithstanding the foregoing, you may not transfer trial, education, pre-release, or not-for-resale copies of the Software.
6. Support Services
Virtronics may provide you with support services related to the Software. Use of any such support services is governed by Virtronics policies and programs described in online documentation and/or other Virtronics -provided materials.
As part of these support services, Virtronics may make available bug lists, planned feature lists, and other supplemental informational materials. Virtronics MAKES NO WARRANTY OF ANY KIND FOR THESE MATERIALS AND ASSUMES NO LIABILITY WHATSOEVER FOR DAMAGES RESULTING FROM ANY USE OF THESE MATERIALS. FURTHERMORE, YOU MAY NOT USE ANY MATERIALS PROVIDED IN THIS WAY TO SUPPORT ANY CLAIM MADE AGAINST VIRTRONICS .
Any supplemental software code or related materials that Virtronics provides to you as part of the support services, in periodic updates to the Software or otherwise, is to be considered part of the Software and is subject to the terms and conditions of this EULA.
With respect to any technical information you provide to Virtronics as part of the support services, Virtronics may use such information for its business purposes without restriction, including for product support and development.
Freeware licenses are not eligible for product support services. Freeware users may access support materials and discussion groups via the Virtronics website at www.Virtronics .com.
7. Ownership
The foregoing grants of rights give you limited license to use the Software. Except as expressly provided in this Agreement, Virtronics and its suppliers retain all right, title and interest, including all copyright and intellectual property rights, in and to, the Software (as an independent work and as an underlying work serving as a basis for any improvements, modifications, derivative works, and applications you may develop), and all copies thereof. All rights not specifically granted in this EULA, including Federal and International Copyrights, are reserved by Virtronics and its suppliers.
8. Limited Warranty and Disclaimer
8.1 Except with respect to the Sample Code, the Trial Version, and Not For Resale Version of the Software, Virtronics warrants that, for a period of thirty (30) days from the date of delivery (as evidenced by a copy of your receipt): when used with a recommended hardware configuration, the Software will perform in substantial conformance with the documentation supplied with the Software.
8.2 VIRTRONICS PROVIDES NO REMEDIES OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, FOR THE SAMPLE CODE, THE TRIAL VERSION, THE NOT FOR RESALE VERSION, THE FREEWARE VERSION OR ANY PRE-RELEASE VERSIONS OF THE SOFTWARE. THE SAMPLE CODE, THE TRIAL VERSION, THE NOT FOR RESALE VERSION AND ANY PRE-RELEASE VERSIONS OF THE SOFTWARE ARE PROVIDED 'AS IS'.
8.3 EXCEPT AS SET FORTH IN THE FOREGOING LIMITED WARRANTY WITH RESPECT TO SOFTWARE OTHER THAN THE SAMPLE CODE AND THE TRIAL VERSION, NOT FOR RESALE VERSION AND ANY PRE-RELEASE VERSIONS, VIRTRONICS AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALSO, THERE IS NO WARRANTY OF NON-INFRINGEMENT AND TITLE OR QUIET ENJOYMENT. VIRTRONICS DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. NO RIGHTS OR REMEDIES REFERRED TO IN ARTICLE 2A OF THE UCC WILL BE CONFERRED ON YOU UNLESS EXPRESSLY GRANTED HEREIN. THE SOFTWARE IS NOT DESIGNED, INTENDED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION, THE DESIGN, CONSTRUCTION, MAINTENANCE OR OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS. VIRTRONICS SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES.
8.4 IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SOFTWARE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO THIRTY (30) DAYS FROM THE DATE OF DELIVERY.
8.5 NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY VIRTRONICS , ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN.
8.6 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
9. Exclusive Remedy
Your exclusive remedy under the preceding is to return the Software to the place you acquired it, with a copy of your receipt and a description of the problem. Provided that any non-compliance with the above warranty is reported in writing to Virtronics no more than thirty (30) days following delivery to you, Virtronics will use reasonable commercial efforts to supply you with a replacement copy of the Software that substantially conforms to the documentation, provide a replacement for defective media, or refund to you your purchase price for the Software, at its option. Virtronics shall have no responsibility if the Software has been altered in any way, if the media has been damaged by misuse, accident, abuse, modification or misapplication, or if the failure arises out of use of the Software with other than a recommended hardware configuration. Any such misuse, accident, abuse, modification or misapplication of the Software will void the warranty above. THIS REMEDY IS THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO YOU FOR BREACH OF EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SOFTWARE AND RELATED DOCUMENTATION.
10. LIMITATION OF LIABILITY
10.1 NEITHER VIRTRONICS NOR ITS SUPPLIERS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SOFTWARE AND BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF VIRTRONICS OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
10.2 VIRTRONICS 'S TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE AMOUNT PAID BY YOU FOR THE SOFTWARE THAT CAUSED SUCH DAMAGE.
10.3 SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION.
10.4 THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO THE WARRANTIES AND DISCLAIMERS ABOVE AND ALL OTHER ASPECTS OF THIS EULA.
11. Basis of Bargain
The Limited Warranty and Disclaimer, Exclusive Remedies and Limitation of Liability set forth above are fundamental elements of the basis of the agreement between Virtronics and you. Virtronics would not be able to provide the Software on an economic basis without such limitations. Such Limited Warranty and Disclaimer, Exclusive Remedies and Limitation of Liability inure to the benefit of Virtronics 's licensors.

12. Marketing
You agree to be identified as a customer of Virtronics and agree that Virtronics may refer to you by name, trade name and trademark, if applicable, and may briefly describe your business in Virtronics 's marketing materials and web site. You hereby grant Virtronics a license to use your name and any of your trade names and trademarks solely in connection with the rights granted to Virtronics pursuant to this marketing section.
13. Intellectual Property Rights
If the licensed right of use for the Software is purchased by you with an intent to reverse engineer, decompile, or illegally transfer any intellectual property, trade secrets, including any exposed methods or source code where provided, no right of use shall exist, and any products created as a result shall be judged illegal by definition of all applicable law. Any sale or resale of intellectual property or created derivatives so obtained will be prosecuted to the fullest extent of all local, federal and international law.
14. General
14.1 This EULA contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written. You agree that any varying or additional terms contained in any purchase order or other written notification or document issued by you in relation to the Software licensed hereunder shall be of no effect. The failure or delay of Virtronics to exercise any of its rights under this EULA or upon any breach of this EULA shall not be deemed a waiver of those rights or of the breach.
14.2 No Virtronics dealer, agent or employee is authorized to make any amendment to this EULA.
14.3 If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law that provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect.
14.4 A waiver by either party of any term or condition of this EULA or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof.