License Agreement
END-USER LICENSE AGREEMENT FOR TOPOGUN 3 AND TOPOGUN 3 LICENSE SERVER, HEREIN REFERRED TO AS THE "SOFTWARE"
Copyright 2009-2023 by SC PIXELMACHINE SRL herein referred to as the "Developer".
IMPORTANT - READ CAREFULLY: This License Agreement for Software ("Agreement") is a legal agreement between you (either an individual or a single entity, referred to in this Agreement as "Recipient") and Developer for software product(s) identified above ("Software"). The Software includes computer software, the associated media, any printed materials, and any "online" or electronic documentation. YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE. IF YOU DO NOT AGREE, DO NOT INSTALL, COPY, OR USE THE SOFTWARE. Developer may, in its sole discretion, also provide further releases of the Software or related information to Recipient hereunder, in which case such further releases and related information shall also be covered hereunder as "Software."
SOFTWARE PRODUCT LICENSE: The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Software is licensed, not sold.
1. GRANT OF LICENSE
This Agreement grants Recipient the following rights provided that Recipient complies with all terms and conditions of this Agreement:
1.1 Developer grants to Recipient a limited, non-sublicensable, non-exclusive, nontransferable license to install and use copies of the executable code of the Software in accordance with the applicable documentation included with the Software, within the scope of the license parameters. Developer’s license grant is conditioned on Recipient’s continuous compliance with all license limitations and restrictions described in this Agreement. If Recipient violates any of these limitations or restrictions, the license grant will automatically and immediately expire. The license descriptions in this Section 1 define the scope of rights that Developer grants to Recipient. Any usage of the Software outside the scope of the applicable license grant constitutes an infringement of Developer’s intellectual property rights as well as a material breach of this Agreement.
1.2 Additional licensing information is required.
Each licensed copy of the Software requires additional licensing information provided by the Developer after the Software purchase. This license information will guarantee that only valid licensed copies are used in the conditions specified at 1.2. There are three (3) license types, as described in the next subsections.
1.2.1 Demo License
After installation, Software uses a Demo license. The Software is in a trial mode when a Demo license is used, and Software must strictly be used for evaluation and cannot be used commercially. Developer hereby gives Recipient a non-exclusive license to use the Software. For evaluation purposes only, the license is granted and the Software has a limited number of features. For a full version of the Software, which allows unlimited feature use and access, Recipient must pay a license fee (either for a Standalone license, or for a Floating license).
1.2.2 Standalone License
Installation, access, transfers and continued use of the Software using a Standalone license require license activation. Recipient must register the unique hardware identification number for one computer (referred to in this Agreement as "Recipient Computer") with Developer before activation data is issued to Recipient. Developer shall use Recipient identification number in conformance with its applicable privacy policy, which is available on Developer’s website or on request. Once activated, the Standalone license allows Recipient to run one instance of the Software at a time, only on the Recipient’s computer. The license is bound to the Recipient computer and cannot be moved to another one by using the same activation data.
The activation security mechanisms may disable the Software if Recipient tries to transfer it to another computer, if Recipient modifies the Recipient Computer hardware configuration from the moment of Software installation, if Recipient uses the Software past an applicable evaluation period or limited term, if Recipient reinstall or install a clean copy of the operating system, or if Recipient undertakes certain other actions that may offset the security mode. More information is contained in the applicable Software documentation or available from Developer on request.
1.2.3 Floating License
A Floating license has an additional property, herein referred to as "Capacity". When Recipient purchases a Floating license, he must specify the Capacity the license must have and pay the corresponding price.
Before using a Floating license, Recipient must download and install TopoGun License Server (herein referred as the "Server"), from Developer's website. Also, Recipient must install the Software on each computer within the local area network Recipient wants to use the Software onto. Each computer within the local area network the Software is installed onto is herein referred as "Client Computer". The local area network the Server and the Software are installed within is unique, and herein referred to as the "LAN". Recipient is not allowed to use the same Floating license within more than one local area network. The same Floating license should not be used on more than one Server instances.
The Floating license is hosted/used by the Server and therefore it should be installed on the Server. The Server dynamically grants the right to open Software instances to the Client Computers within the LAN. The maximum number of Client Computers that can run a Software instance at a time equals the Floating license Capacity value. When a new Software instance is started, if the Software is set to use the Floating license installed on the Server, the Software connects to the Server and requests the permission to use the Floating license. If the number of Client Computers running a Software instance that use the Floating license is less than the Capacity value, the Server allows the Software to use the Floating license. If the number of Client Computers running a Software instance that use the Floating license equals the Capacity value, then the Server denies the request, therefore the Software starts on the Client Computer by using the default Demo license.
If the number of Client Computers running Software equals the Capacity value, no other instances of Software can be launched, until some of the Client Computers within the LAN that use the Floating license close the Software instances they are running.
Installation, access, transfers and continued use of the Software and Server using a Floating license require license activation. Recipient must register the unique hardware identification number for the computer they installed the Server onto (referred to in this Agreement as "Recipient Computer") with Developer before activation file data is issued to Recipient. Developer shall use Recipient identification number in conformance with its applicable privacy policy, which is available on Developer’s website or on request. Once activated, the Floating license allows Recipient to run one instance of the Server at a time, only on the Recipient Computer. The license is bound to the Recipient Computer and cannot be moved to another one.
Developer, in its sole discretion, may allow the Recipient to transfer the Floating license to another computer than the Recipient Computer. The activation security mechanisms may disable the Server if Recipient tries to transfer it to another computer, if Recipient modifies Recipient Computer hardware configuration from the moment of Server installation, if Recipient uses the Server past an applicable evaluation period or limited term, if Recipient reinstall or install a clean copy of his operating system, or if Recipient undertakes certain other actions that may offset the security mode. More information is contained in the applicable Software documentation or available from Developer on request.
1.2.4 Beta Version
The Software is in a testing mode when a Beta version is used and it can be used commercially. Developer hereby gives Recipient a non-exclusive license to use the Software. To use the Software in Beta version out of the Demo mode license, the Recipient needs to purchase a TopoGun 2 or TopoGun 3 license and use the serial number and registration email address to activate the Software.
If a new Software Beta version is available, the old version doesn't work anymore and the Recipient needs to download the newest version in order to use the Software.
1.3 All other rights are reserved to Developer. Recipient shall not rent, lease, sell, sublicense, assign, or otherwise transfer any portion of the Software. Recipient may not reverse engineer, decompile or disassemble any portion of the Software, except and only to the extent that this limitation is expressly prohibited by applicable law notwithstanding this limitation.
1.4 In the event Developer, in its sole discretion, elects to provide deliveries of the Software to more than one individual employed by Recipient (if Recipient is not a single individual), each such recipient shall be entitled to exercise the rights granted in this Agreement, and shall be bound by the terms and conditions herein.
1.5 If the Software is an Education Version: "Education Version" means a version of the Software, so identified, for use only by students and faculty of educational institutions. Education Versions may not be used for, or distributed to any party for, any commercial purpose.
2. BUG REPORTING AND FEEDBACK
2.1 Recipient may from time to time provide suggestions, comments regarding usability, bug reports, test reports or other feedback (collectively, "Feedback") to Developer with respect to the Software. All Feedback is and shall be given entirely voluntarily.
2.2 Recipient agrees that: (i) Developer may freely use, disclose, reproduce, license, distribute and otherwise commercialize the Feedback in any of the Developer products, technologies, services, specifications or other documentation (collectively, "Developer Offerings"), (ii) Recipient also grants third parties, without charge, only those patent rights necessary to enable their products, technologies or services to use or interface with any specific parts of a Developer Offering that incorporate the Feedback; and (iii) Recipient will not give Developer Feedback subject to license terms that seek to require any Developer Offering that incorporates or is derived from any Feedback, or other Developer intellectual property, to be licensed to or otherwise shared with any third party.
3. TERM OF AGREEMENT
This Agreement is effective upon your opening and/or installing the Software package, or its initial use if downloaded. You may terminate this Agreement at any time by uninstalling and/or returning the Software and all copies thereof and extracts therefrom to Developer.
4. SOFTWARE MAINTENANCE/UPDATES
Developer is not obligated to provide maintenance, technical support or updates to Recipient for the Software provided to Recipient pursuant to this Agreement. However, Developer may, in its sole discretion, provide further pre-release versions, technical support, updates and/or supplements of the Software and/or related information ("Updates") to Recipient hereunder, in which case such Updates shall also be deemed to be included in the "Software" and therefore governed by this Agreement, unless other terms of use are provided by Developer with such Updates. In no event shall Developer be obligated to provide Recipient a copy of the commercial release version of the Software in connection with Recipient's participation in the evaluation program. Developer is not obligated to make the Software commercially available. Developer may decide, in its sole discretion, if the Updates are provided as free of charge or if a fee should be paid in order to have access to them.
5. INTELLECTUAL PROPERTY RIGHTS
All title and intellectual property rights in and to the Software (including but not limited to any images, photographs, animations, video, audio, music, text, scripts and source code incorporated into the Software), and any copies of the Software that Recipient is expressly permitted to make herein, are owned by Developer or its suppliers. All title and intellectual property rights in and to the content which may be accessed through use of the Software are the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This Agreement grants Recipient no rights to use such content. If the Software contains documentation which is provided only in electronic form, Recipient may print one copy of such electronic documentation. Recipient may not copy the printed materials accompanying the Software. All rights not expressly granted are reserved by Developer.
6. DISCLAIMER OF WARRANTIES
The Software is deemed accepted by Recipient. To the maximum extent permitted by applicable law, Developer and its suppliers provide the Software, and support services (if any) as is and with all faults, and Developer and its suppliers hereby disclaim all other warranties and conditions, whether express, implied or statutory, including, but not limited to, any (if any) implied warranties, duties or conditions of merchantability, of fitness for a particular purpose, of reliability or availability, of accuracy or completeness of responses, of results, of workmanlike effort, of lack of viruses, and of lack of negligence, all with regard to the Software, and the provision of or failure to provide support or other services, information, software, and related content through the Software or otherwise arising out of the use of the Software. Also, there is no warranty or condition of title, quiet enjoyment, quiet possession, correspondence to description or non-infringement with regard to the Software. The entire risk as to the quality, or arising out of the use or performance of the Software and any support services, remains with Recipient.
7. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES
To the maximum extent permitted by applicable law, in no event shall Developer or its suppliers be liable for any special, incidental, punitive, indirect, or consequential damages whatsoever (including, but not limited to, damages for loss of profits or confidential or other information, for business interruption, for personal injury, for loss of privacy, for failure to meet any duty including of good faith or of reasonable care, for negligence, and for any other pecuniary or other loss whatsoever) arising out of or in any way related to the use of or inability to use the Software, the provision of or failure to provide support or other services, information, software, and related content through the Software or otherwise arising out of the use of the Software, or otherwise under or in connection with any provision of this agreement, even in the event of the fault, tort (including negligence), misrepresentation, strict liability, breach of contract or breach of warranty of Developer or any supplier, and even if Developer or any supplier has been advised of the possibility of such damages. Because some states/jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to Recipient.
8. LIMITATION OF LIABILITY AND REMEDIES
Notwithstanding any damages that Recipient might incur for any reason whatsoever (including, without limitation, all damages referenced herein and all direct or general damages in contract or anything else), the entire liability of Developer and any of its suppliers under any provision of this Agreement and Recipient's exclusive remedy hereunder shall be limited to the greater of the actual damages Recipient incur in reasonable reliance on the Software up to the amount actually paid by Recipient for the Software. The foregoing limitations, exclusions and disclaimers shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
9. GOVERNING LAW/JURISDICTION/ATTORNEYS' FEES
This Agreement shall be construed and controlled by the laws of the state of Romania, and Recipient consents to exclusive jurisdiction and venue in the law courts sitting in Bucharest, Romania. Recipient waives all defenses of lack of personal jurisdiction and forum non conveniens. Process may be served on either party in the manner authorized by applicable law or court rule. If either party employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees, costs and other expenses.
10. ENTIRE AGREEMENT SEVERABILITY
This Agreement constitutes the complete and exclusive agreement between Developer and Recipient with respect to the subject matter hereof, and supersedes all prior or contemporaneous oral or written communications, proposals, representations, understandings, or agreements not specifically incorporated herein. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect.