THIS SOFTWARE LICENSE AGREEMENT (“LICENSE AGREEMENT” OR “AGREEMENT”) GOVERNS YOUR USE OF OUR SOFTWARE AND LIMITS YOUR REMEDIES IN THE EVENT OF A DISPUTE. THIS AGREEMENT ALSO CONTAINS AN ARBITRATION PROVISION, SEE SECTION 15, BELOW, WHICH LIMITS YOUR ABILITY TO SEEK RELIEF IN A COURT OF LAW. ACCORDINGLY, PLEASE READ THIS AGREEMENT CAREFULLY. YOU AGREE, BY PURCHASING AND USING ELECTROBIM, TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, RETURN OR DISABLE (BY CONTACTING DESIGN MASTER SOFTWARE) ELECTROBIM IMMEDIATELY.
1. Parties. The parties to this Agreement (“Parties”) are: (i) Design Master Software, Inc., a North Carolina corporation, and its owners, officers, directors, employees, agents, attorneys and anyone acting on its behalf (collectively, “Design Master”); and (ii) The person or entity purchasing the Design Master Software, including all owners, officers, directors, employees, agents, attorneys and anyone acting on its behalf (collectively, “You” or “Your”).
2. Overview. The Design Master Software and accompanying documentation that are the subject of this License, including any and all modifications, upgrades, enhancements, derivative works, and other alterations by any person or entity (collectively, the “Software”), whether delivered to You via disk, the Internet, or any other media, have been licensed by Design Master to You subject to the terms and conditions of this License Agreement. All rights not expressly granted to You by this Agreement are reserved by Design Master, or by other rights holders, as applicable. Ownership of the Software remains with Design Master or other licensors; Your rights are limited to those granted by this License Agreement.
3. Grant of Non-Transferable License. By this License Agreement, Design Master Software, Inc grants you the non-exclusive, non-transferable right to install the Software subject to the restrictions listed below. Your license is either an Annual License, a Permanent License, or a Demonstration license. Your license is also either a Single-User License or a Floating License. The type of license is detailed in a separate Purchase Agreement. If you did not purchase the Software, then the license is a Demonstration license. Further, You agree to allow Design Master to monitor and enforce this license by means of software installed with your original software purchase or via a software update or patch to be provided at a later date. This grant of license is non-transferable: You may not sell, assign, rent, lease, lend, redistribute, sublicense or otherwise transfer any rights to the Software or this Agreement without the express written permission of Design Master. THIS LICENSE IS NULL AND VOID, AND YOU MAY NOT INSTALL OR USE THE SOFTWARE, IF DOING SO WOULD VIOLATE THE LAWS OF THE JURISDICTION IN WHICH YOU RESIDE OR ANY STATE OR FEDERAL LAWS PROHIBITING YOUR USE OF THE SOFTWARE, INCLUDING UNITED STATES EXPORT LAWS.
a. Annual License. Design Master Software, Inc grants you the non-exclusive, non-transferable right to install the Software for one year after the purchase date. The computers you can install the Software on are determined by whether you have a Single-User or Floating license. The purchase date shall be detailed in a separate Purchase Agreement.
b. Permanent License. Design Master Software, Inc grants you the non-exclusive, non-transferable right to install the Software permanently. The computers you can install the Software on are determined by whether you have a Single-User or Floating license.
c. Single-User License. Design Master Software, Inc grants you the non-exclusive, non-transferable right for a single person to install and use the Software on as many computers as You want. Each person who uses the Software, regardless of what computer they use it on or how often they use the Software, must have a Single-User license. The number of Single-User licenses shall be detailed in a separate Purchase Agreement.
d. Floating License. Design Master Software, Inc grants you the non-exclusive, non-transferable right to install the Software on as many computers on a network as you want. All computers on the network must be able to connect to the floating license server over the internet. The number of people who use the Software on the network shall not exceed the number of Floating licenses you have purchased. The Software may be installed on employee’s laptops or home computers, provided that the laptop or home computer are either connected to the internet most of the time or are not the primary computer used by an individual for production work. The number of Floating licenses shall be detailed in a separate Purchase Agreement.
e. Demonstration License. Design Master Software, Inc grants you the non-exclusive, non-transferable right to install the Software on your computers for demonstration and evaluation purposes only. You may not use the Software for any other purpose. You may not publish drawings, schedules, reports, or projects using the Software.
4. No Reverse Engineering. Except as expressly permitted by this Agreement, You may not copy, decompile, reverse engineer, disassemble, modify, or otherwise attempt to discover the source code, underlying ideas, or algorithms of the Software or any subsequent version thereof or any part thereof, or create derivative works of the Software. Nothing in this Agreement grants You or any other person any rights with respect to the source code of the Software.
5. Upgrades. When You purchased the Software, You may have been given the opportunity to receive, at no additional charge, any upgrades released during the first year or other time period following Your purchase. If so, this is detailed in Your Purchase Agreement. Nothing in this License Agreement grants You any separate or additional right to receive any upgrades, modifications or other enhancements to the Software at any time. Design Master reserves the right to modify or discontinue the Software or any planned upgrades at any time without prior notice to or consent by You.
6. Data Collection. We collect usage data when you use the software. We engage third-party providers to collect usage data. Usage data includes metrics and information regarding your use and interaction with the software.
7. Reservation of Rights. Your rights in and to the Software are solely as set forth in this License Agreement, and do not include any rights of ownership. You agree that all right, title, and interest to and in the Software not expressly conveyed to You in this Agreement (including, but not limited to, ideas, know-how, copyright, patent, trade secret and other intellectual property rights) is vested in Design Master or other third parties identified by Design Master. You agree that the structure, organization and code embodied in the Software are the valuable and confidential trade secrets of Design Master and are protected by intellectual property laws and treaties. You agree to take all reasonable measures to protect Design Master’s intellectual property rights and to abide by all applicable laws. You further agree not to remove, alter, or destroy any proprietary, trademark, or copyright markings or notices placed upon or contained within the Software or any related materials.
8. Limited Warranty on Files. Design Master warrants the files constituting the Software, and their accompanying media, as applicable, to be free from defects in materials and workmanship under normal use for a period of thirty (30) days from the date of original purchase. Your sole and exclusive remedy under this Section is replacement of the Software upon presentation of the defective Software and confirmation of purchase. IN NO EVENT WILL DESIGN MASTER BE LIABLE FOR ANY SPECIAL OR CONSEQUENTIAL DAMAGES UNDER THIS SECTION, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFIT OR BUSINESS INTERRUPTION. THIS LIMITED WARRANTY AND ANY IMPLIED WARRANTIES ON THE SOFTWARE 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 THIRTY (30) DAYS FROM THE DATE OF ORIGINAL RETAIL PURCHASE. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY BY JURISDICTION, INCLUDING THE RIGHT TO IGNORE LIMITATIONS ON WARRANTY DURATION.
9. DISCLAIMER. THIS SOFTWARE IS PROVIDED TO YOU FOR USE AT YOUR OWN RISK. YOU EXPRESSLY ACKNOWLEDGE THIS RISK AND AGREE THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFECT LIES WITH YOU. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 7, ABOVE, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED "AS IS,” WITH ALL DEFECTS AND WITHOUT WARRANTY OF ANY KIND, AND DESIGN MASTER HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. DESIGN MASTER 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. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY DESIGN MASTER 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, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
10. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL DESIGN MASTER 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 DESIGN MASTER 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 Design Master’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 You have remitted to Design Master.
11. Indemnification. You agree that You shall, at Your expense and without cost to Design Master, defend any action instituted against Design Master, and pay any award or damages assessed against Design Master resulting from a claim, whether or not filed in a Court of law or presented to an arbitrator, and including any attorneys’ fees incurred by Design Master in defending against such a claim, that the use of any of Your products, software or services, either alone or in combination with the Software, (i) infringes or misappropriates any copyright, trade secret, patent, or any other proprietary right; (ii) violates any applicable law, statute, or regulation; (iii) violates any applicable third party privacy, publicity, intellectual property, or other proprietary right; or (iv) causes damages claimed by third parties. In consideration for Your duty of defense and indemnification, Design Master agrees to provide You: (i) prompt notice in writing of such claim, (ii) the right to solely control and direct the investigation, preparation, defense, and settlement of the claim; and (iii) reasonable cooperation with respect to information solely in the possession of Design Master.
12. Oversight of License Use. You agree that Design Master may monitor the installation and usage of the Software over the internet to verify you are in compliance with your license.
13. Support. This License Agreement does not provide for any product support by Design Master. Your entitlement to such support, if any, must be established by a separate agreement, which may include Your Purchase Agreement.
14. Effective Date; Termination; Effect of Termination. This License Agreement is effective upon the date You purchased the Software, and remains effective for one year for annual licenses and remains effective permanently for permanent licenses, or until the date detailed in a separate Purchase Agreement. If, at the end of your one year subscription, You are using an annual license and You wish to continue using the Software, You will be required to renew your subscription to the Software. Your rights under this License will terminate automatically without Notice if You fail to comply with any term(s) of this Agreement. Upon the termination of this Agreement, You agree to cease all use of the Software and destroy all full or partial copies, wherever located, within Your control.
15. Arbitration. Any and all disputes arising under or related to this License Agreement or Your purchase or use of the Software shall be submitted to and resolved by binding arbitration in Wake County, North Carolina, pursuant to the rules then in effect of the American Arbitration Association. You agree that a single Arbitrator shall decide each dispute, and that the Arbitrator shall have the reasonable right to follow such rules of evidence, procedure and discovery as the Arbitrator deems just and equitable. You further agree that nothing in this Section 15 shall preclude any party to this Agreement from seeking emergency injunctive relief.
16. Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina, without regard to rules or laws concerning choice of law. The parties to this Agreement agree that jurisdiction to enforce this Agreement, including the Arbitration Provision, Section 15, shall lie exclusively with the state and federal courts located in Wake County, North Carolina.
17. Notice. Any notices provided for or contemplated by this Agreement shall be delivered to Design Master or to You at the addresses provided on Your Purchase Agreement. Notice shall be deemed received three (3) days after deposit, first class postage prepaid, in the United States mail. The address for Notice may be changed upon Notice.
18. Complete Agreement; Governing Language; Severability. 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 the party against whom such modification or amendment is sought to be enforced. If any provision of this Agreement is found to be invalid or unenforceable, such provision shall be severed from the Agreement and the remainder of this Agreement shall be interpreted so as best to reasonably effect the intent of the parties.
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS LICENSE AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS.
