IMPORTANT: This software end user license agreement (“EULA”) is a legal agreement between you and Caristix. You must read, agree with and accept all of the terms of this EULA before completing the installation process and using the Software. This EULA provides a license to use the Software and contains warranty information, remedy information and limitation of liability disclaimers at sections 9, 10 and 11, that you should read carefully before accepting the terms of this EULA. By installing and using the Software, you are confirming your acceptance of the Software and agreeing to become bound by all the terms of this EULA. We also strongly recommend that, as you read this EULA, you also access and read the information contained in the other pages and websites referred to in this EULA, as they may contain further terms and conditions that apply to you as a licensee of the Software. 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 Caristix herewith regardless of whether other software is referred to or described herein. The terms also apply to any Caristix updates, supplements, Internet-based services, and support services for the Software, unless other terms accompany those items. If so, those terms apply.
Caristix may amend this EULA at any time by posting the amended terms on its website. Except as stated below, all amended terms shall automatically be effective thirty (30) days after they are initially posted on Caristix’s website. In addition, Caristix will notify you via email of the amendment to the terms of this EULA.
1.1 “Add-on” means a separate component which works in conjunction with Caristix products to provide additional or enhanced functionality. Add-ons include, but are not limited to, plug-ins, macros, extensions and libraries.
1.2 “Caristix” means Solutions Caristix inc. and its licensors, if any.
1.3 “Software” means any software program licensed pursuant to this EULA. Software includes the documentation and the Software source code.
1.4 “Software source code” means the version of the Software program in human-readable form.
2 License Grants
The licenses granted in this section are subject to the terms and conditions set forth in this EULA.
2.1 General License
Upon your acceptance of this EULA, Caristix grants you a non-exclusive, non-transferable (except as provided below), time-limited license (as specified on the product invoice) to install and use the Software on compatible devices. You may install and use the Software as permitted by the license type purchased as described below. The license type purchased is specified in the product invoice.
2.2 License Types
2.2.1 Named User License: Under the terms of a Named User License, one individual is specifically named in the Software registration and is licensed to use the Software on one device at a time. The Named User may install and use one copy of the Software, or any prior version legally licensed for the same operating system, on a single computer. You must acquire and dedicate a license for each separate user that accesses the Software. A Named User License for the Software may not be shared or used at the same time on different devices.
2.2.2 Trial License: Under the terms of a Trial License, you may install and use the Software on a single computer only. A Trial License may not be shared, installed nor used at the same time on different computers. A Trial License may be used only to review, demonstrate and evaluate the Software for a limited time period or limited number of uses. This Trial License of the Software may have limited features and will cease operating after a predetermined amount of time or number of uses based on an internal mechanism within the Trial version.
2.2.3 Server License: Under the terms of a Server License, you may install and use the Software on a single device. A Server License may not be installed nor running at the same time on different devices. The Server Software may be accessed by multiple licensed clients.
2.2.4 Education License: Under the terms of an Education License, the Software may only be used by a student or a faculty/staff member for educational purposes while actively studying or teaching at an educational institution and for no other purpose. An Educational License may not be shared or used at the same time on different devices. Educational Licenses may not be used for commercial, professional, or for-profit purposes.
2.2.5 Not For Resale (NFR) License: Under the terms of a Not For Resale License the Software may be installed by the licensed user for the purpose of reviewing or evaluating the Software only. Not for Resale Licenses may not be used for commercial, professional, or for-profit purposes.
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 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.
Regardless of which version of the Software you have acquired, you may make one archival (backup) copy of the Software. The archival copy may not be used or installed as long as another copy of the Software is installed on any computer.
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.
You accept and agree that Caristix 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 the purchased license and of this EULA, you shall reimburse Caristix for all reasonable expenses related to such audit in addition to any other liabilities you may incur as a result of such non-compliance.
3.0 License Restrictions
Except to the extent contrary to applicable law:
3.1 Separation of Components: 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 Software Source Code Legal Rights: The provision of Software 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 the Software source code and intellectual property will be prosecuted to the fullest extent of all applicable local, federal and international laws. All Caristix Software and other files remain Caristix’s exclusive property. If the Software source code or modifiable files are provided, regardless of any modifications that you make, you may not redistribute them unless Caristix has expressly designated these as re-distributable. Under no circumstances may Add-ons owned and distributed by Caristix be copied or distributed.
3.3 General Restrictions
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.
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. You may not rent, lease, or sublicense the Software, unless otherwise expressly authorized in a separate written agreement between and executed by you and Caristix, 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 Caristix, you may not host, on a subscription basis or otherwise, the Software to permit a third party to use the Software for any reason.
You may not modify the Software or create derivative works based upon the Software.
You may not use the Software to create any product that directly or indirectly competes with the Software.
3.4 Trial License Restrictions: Unless otherwise provided herein, you shall not (A) in the aggregate, install or use more than one copy of the Software via the Trial License, (B) download the Software via the Trial License under more than one username, (C) alter the contents of a hard drive or computer system to enable the use of the Software via the Trial License for an aggregate period in excess of the trial period for one license to such Trial License, (D) disclose the results of software performance benchmarks obtained using the Software via the Trial License to any third party without Caristix’s prior written consent, (F) use the Software via the Trial License 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 Software via the Trial License for any commercial training purpose.
3.5 Named User License Restrictions: You may not permit a person other than a person authorized by you (with each such authorization designated to a unique individual (an “Authorized Person”) and with the aggregate number of such Authorized Persons not exceeding the number permitted within the scope of the license to the Software purchased by you) to access the Software to create, modify, store, convert, manage, or display any information.
3.6 Remedies: In the event that you fail to comply with this EULA, Caristix may terminate the license and you must destroy all copies of the Software (with all other rights of both parties and all other provisions of this EULA surviving any such termination).
4 Upgrades and Bundles
If the copy of the Software you are purchasing 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 Caristix; 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 or Not For Resale licenses of the Software.
6 Support Services
Caristix may provide you with support services related to the Software. Use of any such support services is governed by Caristix policies and programs described in online documentation and/or other Caristix-provided materials.
As part of these support services, Caristix may make available bug lists, planned feature lists, and other supplemental informational materials. CARISTIX 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 CARISTIX.
Any supplemental software code or related materials that Caristix 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 of this EULA.
With respect to any technical information you provide to Caristix as part of the support services, you accept and agree that Caristix may use such information for its business purposes without restriction, including for product support and development.
7 Software Activation, Updates And License Metering
7.1 License Metering: You accept and agree that Caristix may use license metering to help you avoid any unintentional violation of this Agreement. The license metering mechanism may use your internal network and Internet connection for license tracking between installed versions of the Software.
7.2 Software Activation: You accept and agree that Caristix’s Software may use your internal network and Internet connection for the purpose of transmitting license-related data at the time of installation, registration or update to a Caristix-operated license server and validating the authenticity of the license-related data in order to protect Caristix against unlicensed or illegal use of the Software and to improve customer service. Activation is based on the exchange of license related data between your computer and a Caristix-operated license server. You agree that Caristix may use these measures and you agree to follow any applicable requirements.
7.3 Update Notification Service: Caristix may provide a free update notification service with the Software. An update notification service may use your internal network and Internet connection for the purpose of transmitting license-related data to a Caristix-operated update notification server at appropriate intervals and determine if there is any update available for the Software and notify you of its availability.
The foregoing grants of rights give you limited license to use the Software. Except as expressly provided in this Agreement, Caristix, its licensors 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 Canadian and International Copyrights, are reserved by Caristix and its suppliers.
9 Limited Warranty and Disclaimer
9.1 Software Performance
Except with respect to the Trial and Not For Resale versions of the Software, Caristix 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.
9.2 Remedies and Warranties for Trial License and Not For Resale Version: CARISTIX PROVIDES NO REMEDIES OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, FOR THE TRIAL OR THE NOT FOR RESALE VERSIONS OF THE SOFTWARE. YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE TRIAL AND THE NOT FOR RESALE VERSIONS OF THE SOFTWARE ARE PROVIDED “AS IS” AND THAT YOUR USE OF THE TRIAL AND THE NOT FOR RESALE VERSIONS OF THE SOFTWARE IS AT YOUR SOLE RISK. ALSO, CARISTIX PROVIDES NO WARRANTIES THAT YOUR USE OF THE TRIAL AND THE NOT FOR RESALE VERSIONS OF THE SOFTWARE WILL BE UNINTERRUPTED, AND THAT ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE TRIAL AND THE NOT FOR RESALE VERSIONS OF THE SOFTWARE WILL BE ACCURATE OR RELIABLE.
9.3 General Remedies and Warranties: EXCEPT AS SET FORTH IN THE FOREGOING LIMITED WARRANTY WITH RESPECT TO SOFTWARE OTHER THAN THE TRIAL AND THE NOT FOR RESALE VERSION, CARISTIX 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. CARISTIX DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. 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. CARISTIX SPECIFIC DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES.
9.4 General Warranties Provisions
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.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CARISTIX, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN.
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.
10 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 Caristix no more than thirty (30) days following delivery to you, Caristix 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. Caristix 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. YOU SPECIFICALLY WAIVE THE APPLICATION OF THE PROVISIONS OF SECTION 2125 OF THE CIVIL CODE OF QUEBEC.
11 Limitation of liability
11.1 NEITHER CARISTIX NOR ITS SUPPLIERS, SUBSIDIARIES, AFFILIATES AND ITS LICENSORS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, 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, PRODUCT LIABILITY OR OTHERWISE, EVEN IF CARISTIX 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.
11.2 CARISTIX’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.
11.3 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.
11.4 THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO THE WARRANTIES AND DISCLAIMERS ABOVE AND ALL OTHER ASPECTS OF THIS EULA. THOSE LIMITATIONS ON LIABILITY SHALL ALSO APPLY WHETHER OR NOT CARISTIX HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
12 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 Caristix and you. Caristix 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 Caristix’s licensors.
13 U.S. Government Restricted Rights Legend
The Software and all provided files, regardless of state of compilation, are provided with RESTRICTED RIGHTS. Without limiting the foregoing, use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in this EULA and as provided in subparagraph (c) (1) (ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c) (1) and (2) of the Commercial Computer SOFTWARE Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer: Solutions Caristix inc., 1400 St-Jean-Baptiste avenue, Suite 204, Québec, QC, G2E 5B7, Canada.
14 (Outside of the USA) Consumer End Users Only
The limitations or exclusions of warranties and liability contained in this EULA do not affect or prejudice the statutory rights of a consumer, i.e., a person acquiring goods otherwise than in the course of a business.
The limitations or exclusions of warranties, remedies or liability contained in this EULA shall apply to you only to the extent such limitations or exclusions are permitted under the laws of the jurisdiction where you are located.
15 Third Party Software
The Software may contain third party software which requires notices and/or additional terms and conditions. Such required third party software notices and/ or additional terms and conditions are located at http://www.caristix.com/thirdparty/ and are made a part of and incorporated by reference into this EULA. By accepting this EULA, you are also accepting the additional terms and conditions, if any, set forth therein.
You agree to be identified as a customer of Caristix and agree that Caristix may refer to you by name, trade name and trademark, if applicable, and may briefly describe your business in Caristix’s marketing materials and web site. You hereby grant Caristix a perpetual, irrevocable, worldwide, royalty-free and non-exclusive license to use your name and any of your trade names and trademarks solely in connection with the rights granted to Caristix pursuant to this marketing section.
17 Intellectual Property Rights
17.1 Illegal use of the Software:
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 Software 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.
17.2 Infringement: You accept and agree to inform Caristix promptly in writing of any actual or suspected infringement of the Software by a third party or by someone from your organization.
18.1 Governing laws: This EULA shall be governed by the internal laws of the Province of Quebec, Canada., without giving effect to principles of conflict of laws. You hereby consent to the exclusive jurisdiction and venue of the state courts sitting in the Province of Quebec, Canada, to resolve any disputes arising under this EULA. In each case this EULA shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods.
18.2 International Treaties: If this Software was acquired outside the United States, then you agree and ascend to the adherence to all applicable international treaties regarding copyright and intellectual property rights which shall also apply. In addition, you agree that any local laws to the benefit and protection of Caristix’s ownership of, and interest in, its intellectual property and rights of recovery for damages thereto will also apply.
18.3 Complete Agreement: This EULA and all other documentation mentioned in 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 Caristix 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.
18.4 Independence of the parties: No Caristix dealer, agent or employee is authorized to make any amendment to this EULA.
18.5 Severability: 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.
18.6 Waiver: 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.
18.7 Trademarks: Caristix and other trademarks contained in the Software are trademarks or registered trademarks of Solutions Caristix inc. in Canada and the United States and/or other countries. Third party trademarks, trade names, product names and logos may be the trademarks or registered trademarks of their respective owners. You may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Software. This EULA does not authorize you to use Caristix’s or its licensors’ names or any of their respective trademarks.
18.8 Language: It is the express wish of the parties that this document and any related documents be drawn up and executed in English. Les parties aux présentes ont expressément demandé que ce document et tous les documents s’y rattachant soient rédigés et signés en anglais.
Should you have any questions concerning this EULA, or if you desire to contact Caristix for any reason, please contact us directly in Canada phone: +1 (418) 872-4000 or 877-872-0027, or write to: Solutions Caristix Inc., 1400 St-Jean-Baptiste avenue, Suite 204, Québec, QC, G2E 5B7, Canada or email: firstname.lastname@example.org.