IMPORTANT--READ CAREFULLY: THIS LICENSE IS A LEGAL DOCUMENT setting forth the terms under which OptaSoft LLC. ("Licensor") and its licensors and suppliers (collectively referred to as "Third Party Suppliers") are willing to license to you software which is owned by Licensor and/or its Third Party Suppliers, who are intended third party beneficiaries under this License.
1. ACCEPTANCE. You have acquired Licensor-manufactured Software, some of which is licensed by Licensor from Third Party Suppliers. Licensor is willing to license to you such included software ("Software"), together with any associated media, printed materials, and "online" or electronic documentation supplied, only if you accept all of the terms contained in this License.
Please read this Agreement carefully before unpacking, downloading, installing or using the Software or the Device. By downloading or installing the Software, or unpacking or using the Software, you agree to be bound by the terms of this License. If you do not agree to these terms, do not use or copy the software. Instead, promptly contact licensor for information on return of all unused accompanying materials for a refund. Any use of the software, will constitute your agreement to this license (or ratification of any previous consent).
2. GRANT. Licensor grants to you a non-exclusive right, during the term of this License, to install and/or use the Software, in object code only, solely in conjunction with your Windows Operating Systems. You have the right to use this Software by loading it onto a computer containing the capability of transferring the Software (in whole or in part) to the Computer's Hard Drive. You must not permit any computers or other electronic devices (each a "Client") to connect to the Hard Drive that contains the Software. You may store all Software service files on a Network Drive to utilize the services of the Software solely for file and print services, and remote access (including connection sharing and telephony services). You are prohibited from establishing any indirect connections made through "multiplexing" or other software or hardware which pools or aggregates connections. You may use the Software in a single user fashion as many times as necessary.
3. COPYRIGHT. The Software and all related documentation are protected under the laws and treaties of copyright and intellectual property. All title and copyrights in and to the Software (including but not limited to any images, photographs, animations, video, audio, music, text and "applets" incorporated into the Software) and any copies of the Software are owned and retained by Licensor and/or its Third Party Suppliers. You may copy and use the Software and related documentation only as expressly permitted in this License. You must reproduce and maintain all proprietary marks, legends, and copyright notices that appear in or on the Software and related materials, or any portion thereof, on any copies of the Software or related materials that you make or use. Third Party Suppliers named in such copyright notices shall each have the right to enforce provisions of this License.
4. RESTRICTIONS. You may not use copy, modify, translate or transfer the Software, or any modification thereof, in whole or in part, except as expressly provided for in this License. You may not sell, rent, lend or lease the Software. You may not decompile, reverse engineer, disassemble or otherwise decode or alter the Software, or attempt to do any of the same, except and only to the extent that applicable law notwithstanding this limitation expressly permits such activity.
5. SOFTWARE TRANSFER. You may permanently transfer to another party ownership of the Device and equipment, including all of your rights under this License to use the Software, provided you retain no copies, you transfer the entire product (including the Device and Software, all component parts, the media and printed materials, any upgrades, these license terms, and, if applicable, the Certificate(s) of Authority), and the recipient accepts and agrees to the terms and conditions of this License. You may not otherwise sublicense, assign or transfer the Software or ownership of the Device and equipment. If the Software is an upgrade, any transfer must also include all previous versions of the Software.
6. OTHER LICENSES. Your Device package may include software contained on a CD-ROM disc labeled "Commercial Building Inspector® Software. You may install and use the component(s) of the Software in accordance with the terms of the end user license agreement provided with such component(s) on a single computer with which you use the Software.
7. TERMINATION. This License will terminate automatically if you fail to comply with any of its terms or conditions, including any attempt to modify the Software. Upon termination for any reason, you agree to promptly destroy all copies of the Software and related material or return all such copies to Licensor.
8. DISCLAIMER OF WARRANTY. The Software is provided "AS IS" with all faults and no warranties of any kind, whether express, implied or statutory. The entire risk as to satisfactory quality, performance, accuracy and efforts (including lack of negligence) is with you. Licensor specifically disclaims all warranties, representations, or conditions, including, but not limited to, any implied warranty or condition of merchantability, non-infringement, and correspondence to description or fitness for a particular purpose. Licensor does not warrant that the functions contained in the software will meet your requirements or that the operation will be uninterrupted or error free. Also there is no warranty against interference with your enjoyment of the software. Any warranties that you have received from licensor associated with the device do not originate from, and are not binding on, licensor's third party suppliers. Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you.
The Licensor service ("Pay Per Use", "Pay Per Transaction") is provided on an "AS IS", "as available" basis without warranties of any kind, either express or implied, including, but not limited to, warranties of merchantability, fitness for a particular purpose or non-infringement. Licensor expressly disclaims any representation or warranty that the Licensor service will be error-free, timely, secure or uninterrupted. No oral advice or written information given by Licensor, its employees, licensors or agents will create a warranty; nor may you rely on any such information or advice. Under no circumstances, including negligence, will Licensor, or its affiliates be liable for any direct, indirect, incidental, special or consequential damages that result from the use of or inability to use the Licensor service, including but not limited to reliance on any information obtained on the Licensor service; or that result from mistakes, omissions, interruptions, deletion of files or e-mail, loss of or damage to data, errors, defects, viruses, delays in operation, or transmission, or any failure of performance, whether or not limited to acts of god, communication failure, theft, destruction or unauthorized access to Licensor records, programs or services. You hereby acknowledge that this provision will apply whether or not Licensor is given notice of the possibility of such damages and that this provision will apply to all services available from Licensor and its affiliates. Under no circumstances, under the terms of this agreement, shall damages include loss of business, or loss of profits whether based on breach of agreement, breach of warranty, tort, product liability or otherwise, nor shall Licensor‘s liability to you exceed the amount paid by you to Licensor during the three (3) month period prior to when the action arose. The terms of this section shall survive the termination of this agreement.
8.1 Licensee Warranty Licensee represents and warrants to Licensor that:
a) Licensee has the legal personality or authority, as the case may be, to enter into an Agreement with Licensor and perform its obligations under this Agreement;
8.2 Licensor Warranty. Licensor warrants that:
b) Licensee shall use Licensor services and products for lawful purposes;
c) Licensee shall not violate any existing law, rules or regulations of any country where the Licensor web service is used. Neither shall Licensee violate the intellectual property rights of any person, corporation or legal entity;
a) Licensor has the legal personality and authority to enter into this Agreement and perform its obligations under this Agreement; and,
b) Licensor will perform the services required under this Agreement.
9. SOFTWARE SUPPORT & MAINTENANCE SERVICE
9.1. Renewal & Payment
If you have a valid perpetual license, you must renew your OptaSoft Software Support and Maintenance agreements. An annual OptaSoft Software Support and Maintenance agreement is always payable upfront and provided for a minimum of twelve months following an End of Service.
If you have not renewed your OptaSoft Software Support and Maintenance by the Maintenance Expiration Date, support will be automatically renewed for 90 days as an Emergency Coverage.
If OptaSoft doesn't receive a Termination Notice from you during the Emergency Coverage period, your account is systematically terminated and your Account will be in default. If you fail to pay any amount owed under the 90 days Emergency Coverage, OptaSoft may require you to pay the total outstanding balance on your Account plus a reinstatement fee immediately. OptaSoft do not have to notify you or demand payment in order to take this action.
You may cancel your Software Support and Maintenance agreement prior to the end of your term by providing written notice, at least 60 days prior to the Maintenance Expiration Date to OptaSoft. OptaSoft will provide 180 days written notice for any superseded versions of the product, or if the products are licensed for use on an operating system or hardware that is no longer supported by the developer or manufacturer.
If OptaSoft is unable to correct a reported error or non-conformity, as classified in the Support Guidelines for a production emergency or serious problem, within 30 days following notice from you, you may terminate your OptaSoft Software Support and Maintenance agreement and receive a pro-rata refund of the fees for the balance of the existing maintenance term.
If you have not renewed your OptaSoft Software Support and Maintenance by the Maintenance Expiration Date, support will be systematically terminated. If you wish to obtain coverage for any licenses at a later date, you may reinstate a Software Support and Maintenance plan by contacting OptaSoft. But, keep in mind, a reinstatement fee, calculated as a multiple of the fee (typically three times), will be assessed to continue service.
9.4. Continued Software Support
Continued Support for the Release is provided for a minimum of twelve months following an End of Service Announcement. An End of Service Announcement will be provided for a release that is moving to Continued Support, which includes email support.
OptaSoft generally assists you with products in Continued Support, but in most cases our diagnosis and correction will be applied to the latest shipping release. This same policy applies for non-certified environments (operating systems on which we have not tested our products).
10. RETIRED SOFTWARE VERSION. Releases will be retired as updated releases are issued, generally following the Continued Support period. When a release is in retirement, support issues may be investigated, at the sole discretion of Product Management, in an attempt to provide solutions or workarounds. OptaSoft is under no obligation to provide support for a retired release unless the specific customer’s contract expressly states otherwise.
11. LIMITATION OF LIABILITY. In no event shall licensor or any third party supplier be liable for any direct, consequential, incidental, indirect, or special damages, including without limitation cost of cover, lost profits, or losses resulting from business interruption or loss of data, regardless of the form of action or legal theory under which the liability may be asserted, even if advised of the possibility or likelihood of such damages. Some jurisdictions do not allow the limitation of liability for consequential or incidental damages, so the above limitation may not apply to you.
In no event shall licensor services liability under this agreement for any direct damages of any kind will not exceed an amount equal to the amount paid by licensee to Licensor through the date licensor’s services liability to licensee accrues. In no event shall licensor be liable for incidental or consequential damages or lost profits.
12. REMEDIES. Notwithstanding any damages that you might incur for any reason whatsoever (including, without limitation, all damages referenced above and all direct or general damages), the entire liability of licensor and any third party suppliers under any provision of this agreement, and your exclusive remedy for all of the foregoing, shall be limited to the greater of the amount actually paid by you for the software or device or US. $5.00. In no event, however, shall licensor's or any third party supplier's liability arising from or in connection with the use or performance of the software exceed US. $250.00. The foregoing limitations, exclusions and disclaimers shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
13. ADDITIONAL SOFTWARE. Any Software provided to you by Licensor or its Third Party Suppliers, which updates or supplements the original Software, is governed by this License unless alternative terms are provided with such update or supplements.
14. RECOVERY MEDIA. If Software is provided by Licensor on separate media and labeled "Recovery Media" or similarly, you may use the Recovery Media solely to restore or reinstall the Software originally installed on the Device.
15. LICENSE TRANSFERS. Upon prior written notice to OptaSoft, the following license transfers are permitted under this Agreement, at no cost per one calendar year, unless the license type specifically prohibits such a transfer:
a) An Authorized User may transfer Program Licenses within its own entity.
Nothing in this section (13) shall be deemed to relieve an Agency or the transferee entity of the obligation to use a Program in accordance with the terms and conditions of this Agreement, including without limitation, limiting usage of a Program to the quantity and license type for which such Program is licensed.
b) If the transferee is subject to government reorganization or otherwise mandated by its governing body to convey any of its specific functions to another Authorized User, the Program Licenses used to support the conveyed functions may be transferred to the entity acquiring the transferred functions. The transferor must discontinue its use of the transferred Program.
c) If the transferee merges with another Authorized User, Program Licenses may be used by the merged entity.
d) License Transfer: You are permitted a one-time license transfer per one calendar year of Prior Licensed Software and associated Technical Support to another Agency.
e) The transfer must occur within 1 year of the effective date of this Agreement.
f) If the Technical Support has expired, the Technical Support must be reinstated and the back support paid before the transfer;
g) The transferred programs and support must comprise all the program licenses and technical support on the order under which those programs and the technical support were originally purchased;
h) You cannot charge any fees for the transferred programs or the transfer;
i) You must provide Licensor with written notice prior to the time of the transfer detailing the Programs and Technical Support transferred and signed by the you and transferee.
16. ENTIRE AGREEMENT. You agree that this License is the complete and exclusive statement of agreement between you and Licensor, and that it supersedes any prior proposal or agreement, oral or written, and any other communication relating to the Software, other than payment terms. No vendor, provider, OEM, sales representative, or other person is authorized to modify this License or to make any warranty, representation or promise that is different from those set forth in this License.
17. GOVERNING LAW. This License shall be governed by and interpreted in accordance with the laws of the State of Louisiana of the United States of America.
18. SUPPORT AND FAULT TOLERANCE. The Software may contain support for other programs. Such technology is not fault tolerant and is not designed, manufactured, or intended for use or resale as online control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the technology could lead directly to death, personal injury, or severe physical or environmental damage. OptaSoft, LLC requires this disclaimer. The software is not fault tolerant. Licensor has determined how to use the software in the device, and licensor's third party suppliers have relied upon licensor to conduct sufficient testing to determine that the software is suitable for such use.
19. EXPORT RESTRICTIONS. You acknowledge that the Software is of U.S. origin. You agree to comply with all applicable international and national laws that apply to the Software, including the U.S. Export Administration Regulations, as well as end-user, end-use and country destination restrictions issued by U.S. and other governments.
20. U.S. GOVERNMENT RESTRICTED RIGHTS. The Software and documentation are provided with Restricted Rights. Use, duplication, or disclosure by the U.S. Government is subject to restrictions set forth in FAR, 48 CFR 52.227-14 and -19 or DFAR, 48 CFR 252.227-7013, -7014 and -7015, as applicable.
21. PAY PER USE (PAY PER TRANSACTION) DESCRIPTION OF SERVICE. This Terms of Service Agreement will strongly establish and explain the terms and conditions on which Licensor provides Pay Per Transaction (a Transaction is defined as a single proper Transaction ID processed via optasoft.com) service to Licensee. It is important that this document be thoroughly reviewed if Licensee agrees to these terms and conditions, and is willing to be bound by them.
21.1 This Agreement explains the important terms and conditions under which Licensor shall operate and provide Pay Per Transaction service.
21.2 This Agreement also declares your consequent obligations as our Licensee in relation to the Pay Per Transaction service you purchased.
21.3 Any attempt to amend terms and conditions enclosed in this Agreement and question the said points after the effective date through conflicts or misrepresentation in any other document shall be of no force and void the effects.
21.4 By availing of the Pay Per Transaction service of Licensor, and by agreeing to this agreement, you as our Licensee, acknowledge that you have read, understood, and agree to be bound by all terms and conditions mentioned in this Agreement, as well as any additional rules or policies that may be established by optasoft.com from time to time. This Agreement, and those that may from time to time be added or modified herein, constitutes the exclusive agreement between the Licensee and Licensor concerning your use of the Pay Per Transaction service and shall supersede and govern all prior proposals or agreements made by any of our representatives.
21.5 In order to use the Services, you must obtain access to the Internet / World Wide Web, either directly or through devices that access Web-based content, and pay any service fees associated with such access. In addition, you must provide all equipment necessary to make such connection to the Internet / World Wide Web, including a computer and modem or other access device.
21.6 You must open an account with Licensor in order to use the Pay-Per-Transaction service.
22. LICENSEE OBLIGATIONS
22.1 If you provide any information that is untrue, inaccurate, incomplete or not current, or we have reasonable grounds to suspect that such information is untrue, inaccurate, incomplete or not current, Licensor has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof).
22.2 Under no circumstances will Licensor be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed or otherwise transmitted via the Pay Per Transaction Service.
22.3 Restrictions. The Licensee is expected to recognize the practice of good and ethical Internet practices. The Licensee shall comply with the rules appropriate to any of the product or service provided by Licensor.
23. ACCESS TO THE SERVICE
23.1 Once you open an account with Licensor to use the Pay Per Transaction service you will be given instructions on accessing the service.
23. FEES, PAYMENTS, GUARANTEES AND TERMS
23.1 For the latest Pay Per Transaction fees please visit http://optasoft.com/rates.
23.2 Late Payments. Should Licensee fail to pay any fees on the date due. Licensor shall have the right to make use of any or all of the following:
a.) Assess and collect charges for the delay in an amount constituting five percent (5%) per month of which amount shall not exceed the ceiling provided by law, when available
23.3 Continuous Payment. The suspension or termination of Licensor services, or of the Agreement, shall not absolve the Licensee from paying any outstanding fees, interests and penalties. Licensee shall be responsible for any costs for the collection of such fees. Costs herein contemplated shall include, among other expenses rightfully due to Licensor, attorney's fees, expenses of litigation, and payment of damages.
b.) Suspend or terminate any access to any or all of the services of Licensor
c.) Terminate the herein Agreement without incurring any liability whatsoever arising from the discontinuance of services due to late payments.
23.4 Refunds and guarantees. All payments made to Licensor for the use of the Pay Per Transaction service are non-refundable.
25. SUSPENSION AND / OR TERMINATION
25.1 Termination by Licensor. Licensor shall have the right, upon written notice to Licensee, to terminate this Agreement, sue and / or make Licensee liable for breach, if:
a) Licensee fails to comply with its payment obligations under this Agreement;
b) Licensee materially breaches any term or condition this Agreement;
c) Licensee terminates or suspends its business activities, becomes insolvent, or becomes subject to any bankruptcy or insolvency proceeding, or assigns the project to creditors, or becomes subject to direct control of a trustee, receiver or similar authority;
26. ASSIGNMENT. This Agreement may not be assigned by either party without the prior written consent of the other party.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by its duly authorized representatives as of the day and the year first above written.