License Agreement - Mirabilis Design

End User License Agreement

MIRABILIS DESIGN

NOTICE TO USER: PLEASE READ THIS CONTRACT CAREFULLY. BY USING ALL OR ANY PORTION OF THE SOFTWARE YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING, IN PARTICULAR THE LIMITATIONS ON: USE CONTAINED IN SECTION 2; TRANSFERABILITY IN SECTION 4; WARRANTY IN SECTION 6 AND 7; LIABILITY IN SECTION 8; AND SPECIFIC EXCEPTIONS IN SECTION 14. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE, DO NOT USE THIS SOFTWARE. IF YOU ACQUIRED THE SOFTWARE ON TANGIBLE MEDIA (e.g. CD) WITHOUT AN OPPORTUNITY TO REVIEW THIS LICENSE AND YOU DO NOT ACCEPT THIS AGREEMENT, YOU MAY OBTAIN A REFUND OF THE AMOUNT YOU ORIGINALLY PAID IF YOU: (A) DO NOT USE THE SOFTWARE AND (B) RETURN IT, WITH PROOF OF PAYMENT, TO THE LOCATION FROM WHICH IT WAS OBTAINED WITHIN THIRTY (30) DAYS OF THE PURCHASE DATE.

1. Definitions. “Software” means (a) all of the contents of the files, disk(s), CD-ROM(s) or other media with which this Agreement is provided, including but not limited to (i) Mirabilis Design or third party computer information or software; (ii) digital images, stock photographs, clip art, sounds or other artistic works (“Stock Files”); (iii) related explanatory written materials or files (“Documentation”); and (iv) fonts; and (b) upgrades, modified versions, updates, additions, and copies of the Software, if any, licensed to you by Mirabilis Design (collectively, “Updates”). “Use”, “Used” or “Using” means to access, install, download, copy or otherwise benefit from using the functionality of the Software in accordance with the Documentation. “Permitted Number” means the number of users indicated under a valid license granted by Mirabilis Design. “Computer” means one central processing unit (CPU) that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions. “Mirabilis Design” means Mirabilis Design Incorporated, a California corporation, 1159 Sonora Ct, Suite 116, Sunnyvale, California 94086.

2. Software License. As long as you comply with the terms of this End User License Agreement (the “Agreement”), Mirabilis Design grants to you a non-exclusive license to Use the Software for the purposes described in the Documentation, as further set forth below. Some third party materials included in the Software may be subject to other terms and conditions, which are typically found in a “Read Me” file located near such materials.
2.1. General Use. You may install and Use a copy of the Software on your compatible Computer, up to the Permitted Number of Computers.; or
2.2. Server Use. You may install one copy of the Software on your Computer file server for the purpose of downloading and installing the Software onto other Computers within your internal network up to the Permitted Number or you may install one copy of the Software on a Computer file server within your internal network for the sole and exclusive purpose of using the Software through commands, data or instructions (e.g. scripts) from another Computer on your internal network, provided that the concurrent number of users that are permitted to access or Use the Software on such Computer file server, does not exceed the Permitted Number. No other network use is permitted, including but not limited to, using the Software either directly or through commands, data or instructions from or to a Computer not part of your internal network, for internet or web hosting services or by any user not licensed to Use this copy of the Software through a valid license from Mirabilis Design; and
2.3. Backup Copy. You may make one backup copy of the Software, provided your backup copy is not installed or Used on any computer. You may not transfer the rights to a backup copy unless you transfer all rights in the Software as provided in the Transfer section in this Agreement.

3. Intellectual Property Rights. The Software and any copies that you are authorized by Mirabilis Design to make are the intellectual property of and are owned by Mirabilis Design Incorporated and its suppliers. The structure, organization and code of the Software are the valuable trade secrets and confidential information of Mirabilis Design Incorporated and its suppliers. The Software is protected by copyright, including without limitation by United States Copyright Law, international treaty provisions and applicable laws in the country in which it is being Used. You may not copy the Software, except as set forth in Section 2 (“Software License”). Any copies that you are permitted to make pursuant to this Agreement must contain the same copyright and other proprietary notices that appear on or in the Software. You agree not to modify, adapt or translate the Software. You also agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software except to the extent you may be expressly permitted to decompile under applicable law, it is essential to do so in order to achieve operability of the Software with another software program, and you have first requested Mirabilis Design to provide the information necessary to achieve such operability and Mirabilis Design has not made such information available. Mirabilis Design has the right to impose reasonable conditions and to request a reasonable fee before providing such information. Any information supplied by Mirabilis Design or obtained by you, as permitted hereunder, may only be used by you for the purpose described herein and may not be disclosed to any third party or used to create any software which is substantially similar to the expression of the Software. Requests for information should be directed to the Mirabilis Design Customer Support Department. Trademarks shall be used in accordance with accepted trademark practice, including identification of trademarks owners’ names. Trademarks can only be used to identify printed output produced by the Software and such use of any trademark does not give you any rights of ownership in that trademark. Except as expressly stated herein, this Agreement does not grant you any intellectual property rights in the Software and all rights not expressly granted are reserved by Mirabilis Design.

4. Transfer. You may not, rent, lease, sell, sublicense, un-bundle and/or repackage for distribution or resale, or authorize all or any portion of the Software to be copied onto another users computer except as may be expressly permitted herein. You may, however, transfer all your rights to Use the Software to another person or legal entity provided that: (a) you also transfer (i) this Agreement, (ii) the license file(s), Software and all other software or hardware bundled, packaged or pre-installed with the Software, including all copies, Updates and prior versions; (b) you retain no copies, including backups and copies stored on a computer; and (c) 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 education, pre-release, or not for resale copies of the Software.

5. Updates. You may not, rent, lease, sell, sublicense, lend or transfer any versions or copies of such Software you do not Use. If the Software is an Update to a previous version of the Software, you must possess a valid license to such previous version in order to Use the Update. You may continue to Use the previous version of the Software on your computer after you receive the Update to assist you in the transition to the Update, provided that: (a) the Update and the previous version are installed on the same computer; (b) the previous version or copies thereof are not transferred to another party or Computer unless all copies of the Update are also transferred to such party or Computer; and (c) you acknowledge that any obligation Mirabilis Design may have to support the previous version of the Software may be ended upon availability of the Update.

6. LIMITED WARRANTY. Except as may be otherwise provided in Section 14, Mirabilis Design warrants to the person or entity that first purchases a license for the Software for use pursuant to the terms of this license, that the Software will perform substantially in accordance with the Documentation for the ninety (90) day period following receipt of the Software when used on the recommended operating system and hardware configuration. Non-substantial variations of performance from the Documentation does not establish a warranty right. THIS LIMITED WARRANTY DOES NOT APPLY TO PATCHES, PRE-RELEASE (BETA), TRYOUT, EVALUATION, PRODUCT SAMPLER, OR NOT FOR RESALE (NFR) COPIES OF SOFTWARE (See Section 14). To make a warranty claim, you must return the Software to the location where you obtained it along with proof of purchase within such ninety (90) day period. If the Software does not perform substantially in accordance with the Documentation, the entire liability of Mirabilis Design and your exclusive remedy shall be limited to either, at Mirabilis Design’s option, the replacement of the Software or the refund of the license fee you paid for the Software. THE LIMITED WARRANTY SET FORTH IN THIS SECTION GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE ADDITIONAL RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. For further warranty information, please see the jurisdiction specific information at the end of this Agreement, if any, or contact Mirabilis Design’s Customer Support Department.

7. DISCLAIMER. THE FOREGOING LIMITED WARRANTY STATES THE SOLE AND EXCLUSIVE REMEDIES FOR MIRABILIS DESIGN’S OR ITS SUPPLIER’S BREACH OF WARRANTY. MIRABILIS DESIGN 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 TO WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO YOU IN YOUR JURISDICTION, MIRABILIS DESIGN 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, INCLUDING BUT NOT LIMITED TO NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, SATISFACTORY QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE. The provisions of section 7 and section 8 shall survive the termination of this Agreement, howsoever caused, but this shall not imply or create any continued right to Use the Software after termination of this Agreement.

8. LIMITATION OF LIABILITY. IN NO EVENT WILL MIRABILIS DESIGN OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY DAMAGES, CLAIMS OR COSTS WHATSOEVER OR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL DAMAGES, OR ANY LOST PROFITS OR LOST SAVINGS, EVEN IF AN MIRABILIS DESIGN REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS OR FOR ANY CLAIM BY ANY THIRD PARTY. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. MIRABILIS DESIGN’S AGGREGATE LIABILITY AND THAT OF ITS SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THE SOFTWARE, IF ANY. Nothing contained in this Agreement limits Mirabilis Design’s liability to you in the event of death or personal injury resulting from Mirabilis Design’s negligence or for the tort of deceit (fraud). Mirabilis Design is acting on behalf of its suppliers for the purpose of disclaiming, excluding and/or limiting obligations, warranties and liability as provided in this Agreement, but in no other respects and for no other purpose. For further information, please see the jurisdiction specific information at the end of this Agreement, if any, or contact Mirabilis Design’s Customer Support Department.

9. Export Rules. You agree that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the “Export Laws”). In addition, if the Software is identified as export controlled items under the Export Laws, you represent and warrant that you are not a citizen, or otherwise located within, an embargoed nation (including without limitation Iran, Iraq, Syria, Sudan, Libya, Cuba, North Korea, and Serbia) and that you are not otherwise prohibited under the Export Laws from receiving the Software. All rights to Use the Software are granted on condition that such rights are forfeited if you fail to comply with the terms of this Agreement.

10. Governing Law. This Agreement will be governed by and construed in accordance with the substantive laws in force in: (a) the State of California. The courts of Santa Clara County, California shall have exclusive jurisdiction over all disputes relating to this Agreement. This Agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

11. General Provisions. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. This Agreement shall not prejudice the statutory rights of any party dealing as a consumer. For example, for consumers in New Zealand who obtain the Software for personal, domestic or household use (not business purposes), this license is subject to the Consumer Guarantees Act. This Agreement may only be modified by a writing signed by an authorized officer of Mirabilis Design. Updates may be licensed to you by Mirabilis Design with additional or different terms. The English version of this Agreement shall be the version used when interpreting or construing this Agreement. This is the entire agreement between Mirabilis Design and you relating to the Software and it supersedes any prior representations, discussions, undertakings, communications or advertising relating to the Software.

12. Notice to U.S. Government End Users. The Software and Documentation are “Commercial Item(s),” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States. Mirabilis Design Systems Incorporated, 345 Park Avenue, San Jose, CA 95110-2704, USA.

U.S. Government Licensing of Mirabilis Design Technology. You agree that when licensing Mirabilis Design Software for acquisition by the U.S. Government, or any contractor therefore, you will license consistent with the policies set forth in 48 C.F.R. §12.212 (for civilian agencies) and 48 C.F.R. §§227-7202-1 and 227-7202-4 (for the Department of Defense). For U.S. Government End Users, Mirabilis Design agrees to comply with all applicable equal opportunity laws including, if appropriate, the provisions of Executive Order 11246, as amended, Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974 (38 USC 4212), and Section 503 of the Rehabilitation Act of 1973, as amended, and the regulations at 41 CFR Parts 60-1 through 60-60, 60-250, and 60-741. The affirmative action clause and regulations contained in the preceding sentence shall be incorporated by reference in this Agreement.

13. Compliance with Licenses. If you are a business or organization, you agree that upon request from Mirabilis Design or Mirabilis Design’s authorized representative, you will within thirty (30) days fully document and certify that use of any and all Mirabilis Design Software at the time of the request is in conformity with your valid licenses from Mirabilis Design.

14. SPECIFIC EXCEPTIONS.
14.1 Pre-release Product Additional Terms. If the product you have received with this license is pre-commercial release or beta Software (“Pre-release Software”), then the following Section applies. To the extent that any provision in this Section is in conflict with any other term or condition in this Agreement, this Section shall supercede such other term(s) and condition(s) with respect to the Pre-release Software, but only to the extent necessary to resolve the conflict. You acknowledge that the Software is a pre-release version, does not represent final product from Mirabilis Design, and may contain bugs, errors and other problems that could cause system or other failures and data loss. Consequently, the Pre-release Software is provided to you “AS-IS”, and Mirabilis Design disclaims any warranty or liability obligations to you of any kind. WHERE LEGALLY LIABILITY CANNOT BE EXCLUDED FOR PRE-RELEASE SOFTWARE, BUT IT MAY BE LIMITED, MIRABILIS DESIGN’S LIABILITY AND THAT OF ITS SUPPLIERS SHALL BE LIMITED TO THE SUM OF FIFTY DOLLARS (U.S. $50) IN TOTAL. You acknowledge that Mirabilis Design has not promised or guaranteed to you that Pre-release Software will be announced or made available to anyone in the future, that Mirabilis Design has no express or implied obligation to you to announce or introduce the Pre-release Software and that Mirabilis Design may not introduce a product similar to or compatible with the Pre-release Software. Accordingly, you acknowledge that any research or development that you perform regarding the Pre-release Software or any product associated with the Pre-release Software is done entirely at your own risk. During the term of this Agreement, if requested by Mirabilis Design, you will provide feedback to Mirabilis Design regarding testing and use of the Pre-release Software, including error or bug reports. If you have been provided the Pre-release Software pursuant to a separate written agreement, such as the Mirabilis Design Systems Incorporated Serial Agreement for Unreleased Products, your use of the Software is also governed by such agreement. You agree that you may not and certify that you will not sublicense, lease, loan, rent, or transfer the Pre-release Software. Upon receipt of a later unreleased version of the Pre-release Software or release by Mirabilis Design of a publicly released commercial version of the Software, whether as a stand-alone product or as part of a larger product, you agree to return or destroy all earlier Pre-release Software received from Mirabilis Design and to abide by the terms of the End User License Agreement for any such later versions of the Pre-release Software. Notwithstanding anything in this Section to the contrary, if you are located outside the United States of America, you agree that you will return or destroy all unreleased versions of the Pre-release Software within thirty (30) days of the completion of your testing of the Software when such date is earlier than the date for Mirabilis Design’s first commercial shipment of the publicly released (commercial) Software.
14.2 Tryout, Product Sampler, NFR, Additional Terms. If the product you have received with this license is a tryout, product sampler, or NFR copy of the Software (“Tryout Software”), then the following Section applies until such time that you purchase a license to the full retail version of such product. To the extent that any provision in this Section is in conflict with any other term or condition in this Agreement, this Section shall supercede such other term(s) and condition(s) with respect to the Tryout Software, but only to the extent necessary to resolve the conflict. YOU ACKNOWLEDGE THAT THE TRYOUT SOFTWARE CONTAINS LIMITED FUNCTIONALITY AND/OR FUNCTIONS FOR A LIMITED PERIOD OF TIME. MIRABILIS DESIGN IS LICENSING THE SOFTWARE ON AN “AS IS” BASIS, SOLELY AS A DEMONSTRATION MODEL. If the Tryout Software is a timeout version, then the program will terminate operations after a designated period of time (e.g. 15. 30. or 45 days) following installation (the “Time Out Date”), which is specified in the Software. Upon such Time Out Date, the license hereunder shall be terminated, unless extended by Mirabilis Design upon your purchase of a full retail license from Mirabilis Design. You acknowledge that such Tryout Software shall cease operation upon the Time Out Date and accordingly, access to any files or output created with such Tryout Software or any product associated with the Tryout Software is done entirely at your own risk. MIRABILIS DESIGN DISCLAIMS ANY WARRANTY OR LIABILITY OBLIGATIONS TO YOU OF ANY KIND, INCLUDING. WHERE LEGALLY LIABILITY CANNOT BE EXCLUDED FOR PRE-RELEASE SOFTWARE, BUT IT MAY BE LIMITED, MIRABILIS DESIGN’S LIABILITY AND THAT OF ITS SUPPLIERS SHALL BE LIMITED TO THE SUM OF FIFTY DOLLARS (U.S. $50) IN TOTAL.
14.3 Educational Software Product Conditions. If the Software accompanying this Agreement is Educational Software Product (Software manufactured for distribution to Mirabilis Design’s educational channel), you are not entitled to Use the Software unless you qualify in your jurisdiction as an Educational End User. Please contact your Mirabilis Design Sales Department to learn if you qualify.

If you have any questions regarding this Agreement or if you wish to request any information from Mirabilis Design please use the address and contact information included with this product to contact the Mirabilis Design office serving your jurisdiction.

Mirabilis Design and VisualSim are either registered copyrights or copyrights of Mirabilis Design Inc. in the United States and/or other countries. Windows and Windows NT are either registered trademarks or trademarks of Microsoft Corporation in the United States and/or other countries. Mac and Macintosh are trademarks of Apple Computer, Inc., registered in the United States and other countries. Solaris and Java are registered trademarks of Sun Microsystems, registered in the United States and other countries. All other trademarks are the property of their respective owners.