EULA - End User License Agreement
Notice to User
This End-User License Agreement (hereinafter referred to as "Agreement") is a legal CONTRACT between YOU, YOUR EMPLOYEES, AGENTS, AND CONTRACTORS, AND ANY OTHER ENTITY ON WHOSE BEHALF YOU ACCEPT THIS AGREEMENT (hereinafter referred to as "You") and Rack-Soft, LLC (hereinafter referred to as "Rack-Soft"), which covers Your use of the Rack-Soft software products (hereinafter referred to as "Software") that accompanies this Agreement and related software components, which may include associated media, printed materials, and "online" or electronic documentation (hereinafter referred to as "Related Material").
READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE DOWNLOADING THE SOFTWARE OR OBTAINING A LICENSE KEY TO THE SOFTWARE OR USING THE SOFTWARE.
THE SOFTWARE IS COPYRIGHTED AND IT IS LICENSED TO YOU UNDER THIS AGREEMENT, NOT SOLD TO YOU. BY DOWNLOADING THE SOFTWARE OR OBTAINING A LICENSE KEY TO THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU ACCEPT AND AGREE TO BE BOUND BY ITS TERMS. IF YOU ARE NOT WILLING TO BE BOUND BY THE TERMS OF THIS AGREEMENT, YOU SHOULD NOT INSTALL AND SHOULD REFRAIN FROM ACCESSING OR USING THE SOFTWARE. THIS AGREEMENT REPRESENTS THE ENTIRE AGREEMENT BETWEEN YOU AND Rack-Soft CONCERNING THE SOFTWARE, AND THIS AGREEMENT SUPERSEDES AND REPLACES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING YOU MAY HAVE HAD WITH Rack-Soft RELATING TO THE SOFTWARE.
1.1 Rack-Soft hereby grants to You, and You accept, a limited, nonexclusive license to use the Software in machine-readable, object code form only, and the Related Materials, only as authorized in this Agreement. For purposes of this Agreement, the Software includes any updates, enhancements, modifications, revisions, or additions to the Software made by Rack-Soft and made available to end-users through Rack-Soft's Website. Notwithstanding the foregoing, Rack-Soft shall be under no obligation to provide any updates, enhancements, modifications, revisions, or additions to the Software. For purposes of this Agreement, the Related Materials include without limitation, operating instructions, user manuals, and performance information, in whatever form.
1.2 You may use one copy of the Software activated by a License Key on a single server (virtual or physical) owned, leased, or otherwise controlled by You, at a single time. If You have multiple License Keys for the Software, You may make and use as many copies of the Software as You have License Keys. For purposes of this Agreement, "use" of the software means loading the Software into the temporary or permanent memory of a computer. Installation of the Software on a network server solely for distribution to other computers is not "use" of the Software, and is permitted, as long as You have a License Key for each server (virtual or physical) to which the Software is distributed. The Software may not be used on or distributed to a greater number of computers than You have License Keys. If You will use or distribute the Software to multiple users, You must ensure that the number of users does not exceed the number of License Keys You have obtained, or You will be in breach of this Agreement.
1.3 You may not reverse engineer, decompile, disassemble, or otherwise translate the Software or any License Keys You have obtained. You may not modify or adapt the Software or any License Keys that You have obtained in any way. You may make one copy of the Software, the Related Materials, and any License Key that You have obtained, solely for backup or archival purposes. Any such copies of the Software, Related Materials, or License Keys shall include any copyright or other proprietary notices that were included on such materials when You first received them. Except as authorized in this Section, no copies of the Software, Related Materials, or License Keys, or any portions thereof, may be made by You or any person under Your authority or control.
1.4 You will not sublicense, lease, rent, or lend Your rights in the Software, Related Materials, or License Keys, as granted by this Agreement, with any third party. However, You may permanently assign Your rights in the Software, Related Materials, and License Keys, provided that the party to whom You wish to assign such rights accepts the terms of this Agreement prior to the assignment. Any attempted assignment of Your rights under this Agreement to a party who has not first accepted the terms of this Agreement will be invalid.
2. EVALUATION LICENSE
2.1 The Software is not free software. The Evaluation License Key grants You the nonexclusive and nontransferable right to install and use the copy of the Software on one server only, for evaluation purposes, without charge for a time period determined by Rack-Soft which ranges from 10 (ten) to 20 (twenty) days (hereinafter referred to as "Evaluation Period"). You are allowed to download the free trial version only once. You are also bound to the obligations provided by Section 1 above.
2.2 Unregistered and unauthorized use of the Software after the expiration of the Evaluation Period represents a violation of Rack-Soft copyright as well as a violation of US, Romanian, and international copyright laws.
2.3 During the Evaluation Period You are hereby licensed, without charge, to use for evaluation purposes only the Evaluation Version of the Software; it is expressly excluded and forbidden any other type of use, including but not limited to administrative, commercial or productive support for Your and/or third party's business activities.
2.4 There is no charge for any of the above. You are specifically prohibited from charging, requesting donations or otherwise asking or receiving economical benefits for any such copies, however made, and from distributing the Software and/or other Related Materials with other products (commercial or otherwise) without prior Rack-Soft's written permission.
2.5 Upon expiration of the Evaluation Period You are obliged to uninstall and destroy all Software's copies. It is strictly forbidden to partially or totally, temporary or definitively, reproduce or retain Software's copies, as well as to use for any purposes, to distribute or to conduct any other activity concerning Software's copies upon expiration of the Evaluation Period. Failure to comply with obligations herein provided represents a violation of copyrights and copyright laws and shall be subject of civil, administrative and/or criminal consequences, procedures and/or punishments.
3. INTELLECTUAL PROPERTY AND CONFIDENTIALITY
3.1 This Software copy is licensed, not sold. You acknowledge that the Software and the Related Materials are proprietary to Rack-Soft, and the Software and Related Materials are protected under US and Romanian copyright law and international treaties. You further acknowledge and agree that, as between You and Rack-Soft, Rack-Soft owns and shall continue to own all right, title, and interest in and to the Software and Related Materials, including associated intellectual property rights under copyright, trade secret, patent, or trademark laws. This Agreement does not grant You any ownership interest in or to the Software or the Related Materials, but only a limited right of use that is revocable in accordance with the terms of this Agreement. Rack-Soft has the right to gather information regarding the use of the Software including but not limited to IP address, MAC address, and admin email address to guarantee the proper use of the Software as granted by this Agreement.
3.2 Rack-Soft reserves the right to gather data on key usage including License Key numbers, server IP addresses, domain counts, and other information deemed relevant, to ensure that our products are being used in accordance with the terms of this Agreement. Rack-Soft expressly prohibits simultaneous multiple installations of our licensed products and domain count overrides without prior written approval. Any unauthorized use shall be considered by Rack-Soft to be a violation of the Agreement. Rack-Soft reserves the right to remedy violations immediately upon discovery, by charging the then current list price of unauthorized keys to the credit card used to make the original, authorized purchase, or by any other means necessary.
3.3 "Rack-Soft Trademarks" means all names, marks, brands, logos, designs, trade dress, slogans, and other designations Rack-Soft uses in connection with its products and services. You may not remove or alter any Rack-Soft Trademarks, or co-brand Your own products or material with Rack-Soft Trademarks, without Rack-Soft's prior written consent. You acknowledge Rack-Soft's rights in Rack-Soft Trademarks and agree that any use of Rack-Soft Trademarks by You shall inure to Rack-Soft's sole benefit. You agree not to incorporate any Rack-Soft Trademarks into Your trademarks, service marks, company names, Internet addresses, domain names, or any other similar designations, for use on or in connection with computer or Internet-related products, services or technologies.
3.4 You shall permit only authorized users, who possess rightfully obtained License Keys, to use the Software or to view the Related Materials. Except as expressly authorized by this Agreement, You shall not make available the Software, Related Materials, or any License Key to any third party. You will use Your best efforts to cooperate with and assist Rack-Soft in identifying and preventing any unauthorized use, copying, or disclosure of the Software, Related Materials, or any portion thereof.
4. SUPPORT SERVICES AND UPDATES
4.1 After You purchase a License Key of the Software, for 1 (one) year from the date of purchase Rack-Soft will provide You with support according to Standard Support program and You will be able to get free updates of the Software.
4.2 After the first year from the purchase date, You will be able to receive from Rack-Soft Standard Support services related to the Software and free updates of the Software if You pay an annual fee representing 30% of the price of the Software license. If you fail to renew the license during the renewal interval (30 days before the expire date and 7 days after the expire date) in order to receive updates and free support you must purchase a license reinstatement package. The price of this package is 65% of the price of the Software license.
4.3 Use of any such support services is governed by the Rack-Soft polices and programs described in the Related Materials and/or other online documentation. Any supplemental software code or related materials that Rack-Soft provides You as part of the support services are to be considered part of the Software and are subject to the terms and conditions of this Agreement. With respect to any technical information You provide to Rack-Soft as part of the support services, Rack-Soft may use such information for its business purposes without restriction, including for product support and development. Rack-Soft will not use such technical information in a form that personally identifies You.
5. LICENSE FEES
5.1 The Software will be available to You for use upon Your receipt of one or more License Keys. You must accept this Agreement and pay the license fees using the procedure set forth on Rack-Soft's Website. The license fees paid by You are paid in consideration of the license granted under this Agreement and they give You the right to obtain one or more License Keys.
5.2 There shall be no refund or adjustment for amounts paid by You to Rack-Soft for License Key(s) delivered to You.
6. TERM AND TERMINATION
6.1This Agreement is effective upon Your acceptance of the Agreement, or upon Your downloading, accessing, and using the Software, even if You have not expressly accepted this Agreement. This Agreement shall continue in effect until terminated. You may terminate this License Agreement at any time by: (i) providing written notice of Your decision to terminate the Agreement to Rack-Soft and (ii) either returning the Software, Related Materials, all copies thereof, and all License Keys that You have obtained to Rack-Soft or destroying all such materials and providing written verification of such destruction to Rack-Soft.
6.2 Your rights under this Agreement shall terminate immediately should You breach any of the provisions of this Agreement or take any action in derogation of Rack-Soft's rights to the Software or Related Materials. Upon termination of this Agreement, You shall immediately discontinue all use of the Software and, unless otherwise instructed by Rack-Soft, within 30 (thirty) days after such termination, You shall return to Rack-Soft all Related Materials, including any and all copies thereof made by You, and You will remove all software from computers and certify to Rack-Soft in a writing signed by Your authorized representative that all such Software has been destroyed.
6.3 There shall be no refund or adjustment for amounts paid by You to Rack-Soft for Software(s) destroyed in accordance with this Section 6. The provisions of this Agreement which by their nature extend beyond the termination date of the Agreement will survive and remain in effect and enforceable until all obligations are fully satisfied.
7.1 You will, at your own expense, indemnify and hold Rack-Soft, and its subsidiaries and affiliates, and all officers, directors, and employees thereof, harmless from and against any and all claims, actions, liabilities, losses, damages, judgment, grants, costs, and expenses, including reasonable attorneys' fees (collectively, "Claims"), arising out of any use of the Software by You, any party related to You, or any party acting upon Your authorization in a manner that is not expressly authorized by this Agreement.
8. LIMITED WARRANTY
8.1 THE SOFTWARE AND RELATED MATERIALS ARE LICENSED "AS IS" AND Rack-Soft DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE EXTENT AUTHORIZED BY LAW. WITHOUT LIMITATION OF THE FOREGOING, Rack-Soft EXPRESSLY DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. YOU ASSUME RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE RESULTS OBTAINED FROM YOUR USE OF THE SOFTWARE.
8.2 Good data processing procedure dictates that any software should be thoroughly tested with non-critical data before relying on it. EXCEPT FOR THIS LIMITED WARRANTY EXPRESSED IN THIS SECTION, YOU HEREBY AGREE TO BEAR THE ENTIRE RISK AS TO THE QUALITY AND THE PERFORMANCE OF THE SOFTWARE.
8.3 Rack-Soft will use reasonable commercial efforts to provide solutions for any reported malfunctions. Rack-Soft hereby represents and warrants that to the best of its knowledge, Rack-Soft has all right, title, ownership interest, and marketing rights necessary to provide the Software to You. Rack-Soft warrants that, with the exception of the Evaluation License Key and those devices used to ensure that the Software is used in accordance with the terms of this Agreement, there are no "time bombs", hidden codes, or other non-disclosed features that exist which may result in access by or permit any party the ability to interfere with, terminate or otherwise harm the Software or Your other systems or ability to operate. This warranty is valid only for the original User and shall be void, if in the sole opinion of Rack-Soft the media containing the Software or Related Materials has been subjected to abnormal or improper use, transport, storage or handling, or if the Software or Related Materials have been altered or modified.
8.4 NO Rack-Soft PARTNER, DISTRIBUTOR, OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS WARRANTY.
8.5 No warranty refers to the Evaluation Period.
9. LIMITATION OF LIABILITY
9.1 THIS LIMITATION OF LIABILITY IS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IN NO EVENT SHALL Rack-Soft BE LIABLE FOR ANY COSTS OF SUBSTITUTE SOFTWARE, OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION), OR SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE OR THE FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF Rack-Soft HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, Rack-Soft'S ENTIRE LIABILITY ARISING OUT OF OR IN RELATION TO THIS AGREEMENT AND THE SOFTWARE PROVIDED HEREUNDER SHALL BE LIMITED TO THE AMOUNT OF LICENSE FEES PAID TO Rack-Soft BY YOU UNDER THIS AGREEMENT. THE PARTIES ACKNOWLEDGE THAT THIS IS A REASONABLE ALLOCATION OF RISK.
9.2 YOU AGREE TO HOLD Rack-Soft HARMLESS FROM AND YOU AGREE NOT TO SUE Rack-Soft FOR ANY CLAIMS BASED ON USING THE SOFTWARE, WHETHER IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE) OR OTHERWISE. Some jurisdictions do not allow the exclusion or limitation of direct, incidental or consequential damages, so portions of the above limitation or exclusion may not apply to You.
10. GENERAL TERMS
10.1 This Agreement represents the entire agreement between You and Rack-Soft concerning the Software, and this Agreement supersedes and replaces any prior proposal, representation, or understanding You may have had with Rack-Soft relating to the Software.
10.2 Neither this Agreement nor any of the terms of this Agreement may be amended unless such amendment is set forth in writing and acknowledged by both parties.
10.3 If any term or provision of this Agreement is declared void or unenforceable in a particular situation, by any judicial or administrative authority, the parties agree that such provision will be replaced with a new provision that accomplishes the original business purpose, and the other provisions of this Agreement will remain in full force and effect
10.4 Romanian law governs any action related to this Agreement. Choice of law rules of any jurisdiction and the United Nations Convention on Contracts for the International Sale of Goods will not apply to any dispute under the Agreement. To the maximum extent permitted by law, You hereby consent to the jurisdiction and venue of the courts located within Bucharest, Romania and waive any objections to the jurisdiction or venue of such courts.
10.5 Neither this Agreement, nor any terms and conditions contained herein, shall be construed as creating a partnership, joint venture or agency relationship, or as granting a franchise.
10.6 The Section headings of this Agreement shall not affect the meaning or interpretation of this Agreement, have no legal or contractual effect, and are included only to facilitate its reading.
10.7 Sections 1, 3, 7, 8, 9, and 10 of this Agreement, and all Articles thereof, shall survive the termination of this Agreement, regardless of the cause for termination, and shall remain valid and binding indefinitely.