End User Liscence Agreement
This End User License Agreement (“Software License Agreement”) is a legal document between you and Durkee & Associates (“Durkee & Associates”). It is important that you read this document before using the Durkee & Associates-provided software (“Software”) and any accompanying documentation, including, without limitation printed materials, ‘online’ files, or electronic documentation (“Documentation”). By clicking the “I Agree” and “Next” buttons below, or by installing, or otherwise using the Software, you agree to be bound by the terms of this Software License Agreement including, without limitation, the warranty disclaimers, limitation of liability, data use and termination provisions below. You agree that this agreement is enforceable like any written agreement negotiated and signed by you. If you do not agree, you are not licensed to use the Software, and you must destroy any downloaded copies of the Software in your possession or control. Please go to our Web site at http://www.contributrac.com/eula to download and print a copy of this Software License Agreement for your files.
1. SOFTWARE LICENSE
(a) License Grant. Upon your acceptance of this Software License Agreement Durkee & Associates grants you a non-exclusive, non-transferable (except as provided below), limited license to install and use a copy of the Software on your compatible computer. In addition to the rights granted herein, Durkee & Associates grants you a non-exclusive, non-transferable, limited license to compile into executable form the complete generated code comprised of the combination of the Restricted Source Code and the Unrestricted Source Code, and to use, copy, distribute or license that executable. You may not distribute or redistribute, sublicense, sell, or transfer to a third party the Software. Durkee & Associates reserves all other rights in and to the Software. Reverse engineering of the Software is strictly prohibited as further detailed therein.
(b) Concurrent Use. You may install the Software on any compatible computers, provided that only (10) users actually use the Software at the same time.
(c) Backup and Archival Copies. You may make one backup and one archival copy of the Software, provided your backup and archival copies are not installed or used on any computer and further provided that all such copies shall bear the original and unmodified copyright, patent and other intellectual property markings that appear on or in the Software. You may not transfer the rights to a backup or archival copy unless you transfer all rights in the Software as provided under Section 3.
(d) Home Use. You, as the primary user of the computer on which the Software is installed, may also install the Software on one of your home computers for your use. However, the Software may not be used on your home computer at the same time as the Software is being used on the primary computer.
(e) Key Codes, Upgrades and Updates. You will receive a key code when you elect to use the Software. The key code will enable you to activate the Software on initial use. You may not re-license, reproduce or distribute any key code except with the express written permission of Durkee & Associates. If the Software that you have licensed is an upgrade or an update, then the update replaces all or part of the Software previously licensed. The update or upgrade and the associated license keys does not constitute the granting of a second license to the Software in that you may not use the upgrade or update in addition to the Software that it is replacing. You agree that use of the upgrade of update terminates your license to use the Software or portion thereof replaced.
(f) Title. Title to the Software is not transferred to you. Ownership of all copies of the Software and of copies made by you is vested in Durkee & Associates, subject to the rights of use granted to you in this Software License Agreement. As between you and Durkee & Associates, documents, files that are authored or created by you via your utilization of the Software, in accordance with its Documentation and the terms of this Software License Agreement, are your property.
(g) Reverse Engineering. Except and to the limited extent as may be otherwise specifically provided by applicable law in the European Union, you may not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, underlying ideas, underlying user interface techniques or algorithms of the Software by any means whatsoever, directly or indirectly, or disclose any of the foregoing, except to the extent you may be expressly permitted to decompile under applicable law in the European Union, if it is essential to do so in order to achieve operability of the Software with another software program, and you have first requested Durkee & Associates to provide the information necessary to achieve such operability and Durkee & Associates has not made such information available. Durkee & Associates has the right to impose reasonable conditions and to request a reasonable fee before providing such information. Any information supplied by Durkee & Associates 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 from users in the European Union with respect to the above should be directed to the Durkee & Associates Customer Support Department.
(h) Other Restrictions.You may not loan, rent, lease, sublicense, distribute or otherwise transfer all or any portion of the Software to third parties except to the limited extent set forth in Section 3 or otherwise expressly provided. You may not copy the Software except as expressly set forth above, and any copies that you are permitted to make pursuant to this Software License Agreement must contain the same copyright, patent and other intellectual property markings that appear on or in the Software. You may not modify, adapt or translate the Software. You may not, directly or indirectly, encumber or suffer to exist any lien or security interest on the Software; knowingly take any action that would cause the Software to be placed in the public domain; or use the Software in any computer environment not specified in this Software License Agreement. You will comply with applicable law and Durkee & Associates’ instructions regarding the use of the Software. You agree to notify your employees and agents who may have access to the Software of the restrictions contained in this Software License Agreement and to ensure their compliance with these restrictions. YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR THE ACCURACY AND ADEQUACY OF THE SOFTWARE FOR YOUR INTENDED USE AND YOU WILL INDEMNIFY AND HOLD HARMLESS DURKEE & ASSOCIATES FROM ANY 3RD PARTY SUIT TO THE EXTENT BASED UPON THE ACCURACY AND ADEQUACY OF THE SOFTWARE IN YOUR USE. WITHOUT LIMITATION.
2. INTELLECTUAL PROPERTY RIGHTS
Acknowledgement of Durkee & Associates' Rights. You acknowledge that the Software and any copies that you are authorized by Durkee & Associates to make are the intellectual property of and are owned by Durkee & Associates and its suppliers. The structure, organization and code of the Software are the valuable trade secrets and confidential information of Durkee & Associates 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 acknowledge that Durkee & Associates retains the ownership of all patents, copyrights, trade secrets, trademarks and other intellectual property rights pertaining to the Software, and that Durkee & Associates’ ownership rights extend to any images, photographs, animations, videos, audio, music, text and “applets” incorporated into the Software and all accompanying printed materials. You will take no actions which adversely affect Durkee & Associates’ intellectual property rights in the Software. Trademarks shall be used in accordance with accepted trademark practice, including identification of trademark owners’ names. Trademarks may only be used to identify printed output produced by the Software, and such use of any trademark does not give you any right of ownership in that trademark. ContribuTrac, ETribute, and Durkee & Associates are trademarks of Durkee & Associates. Unicode and the Unicode Logo are trademarks of Unicode, Inc. Windows, Windows 95, Windows 98, Windows NT, Windows 2000 and Windows XP are trademarks of Microsoft. W3C, CSS, DOM, MathML, RDF, XHTML, XML and XSL are trademarks (registered in numerous countries) of the World Wide Web Consortium (W3C); marks of the W3C are registered and held by its host institutions, MIT, INRIA and Keio. Except as expressly stated above, this Software License Agreement does not grant you any intellectual property rights in the Software. Notifications of claimed copyright infringement should be sent to Durkee & Associates’ copyright agent as further provided on the Durkee & Associates Web Site.
3. TRANSFER RIGHTS
The Software is non-transferable.
4. LIMITED WARRANTY AND LIMITATION OF LIABILITY
(b) No Other Warranties and Disclaimer. THE FOREGOING LIMITED WARRANTY AND REMEDIES STATE THE SOLE AND EXCLUSIVE REMEDIES FOR DURKEE & ASSOCIATES OR ITS SUPPLIER’S BREACH OF WARRANTY. DURKEE & ASSOCIATES AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE. EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO YOU IN YOUR JURISDICTION, DURKEE & ASSOCIATES 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. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DURKEE & ASSOCIATES AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, INFORMATIONAL CONTENT OR ACCURACY, QUIET ENJOYMENT, TITLE AND NON-INFRINGEMENT, WITH REGARD TO THE SOFTWARE, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHERS, WHICH VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION.
(c) Limitation Of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW EVEN IF A REMEDY FAILS ITS ESSENTIAL PURPOSE, IN NO EVENT SHALL DURKEE & ASSOCIATES OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, DIRECT, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF DURKEE & ASSOCIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, DURKEE & ASSOCIATES’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS SOFTWARE LICENSE AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE PRODUCT. Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply to you. In such states and jurisdictions, Durkee & Associates’ liability shall be limited to the greatest extent permitted by law and the limitations or exclusions of warranties and liability contained herein do not prejudice applicable statutory consumer rights of person acquiring goods otherwise than in the course of business. The disclaimer and limited liability above are fundamental to this Software License Agreement between Durkee & Associates and you.
6. SUPPORT AND MAINTENANCE
If Durkee & Associates, in its discretion, requests written verification of an error or malfunction discovered by you or requests supporting example files that exhibit the Software problem, you shall promptly provide such verification or files, by email, telecopy, or overnight mail, setting forth in reasonable detail the respects in which the Software fails to perform. You shall use reasonable efforts to cooperate in diagnosis or study of errors. Durkee & Associates may include error corrections in maintenance releases, updates, or new major releases of the Software. Durkee & Associates is not obligated to fix errors that are immaterial. Immaterial errors are those that do not significantly impact use of the Software. Whether or not you have purchased the Support & Maintenance Package, technical support only covers issues or questions resulting directly out of the operation of the Software and Durkee & Associates will not provide you with generic consultation, assistance, or advice under any circumstances.
Updating Software may require the updating of software not covered by this Software License Agreement before installation. Updates of the operating system and application software not specifically covered by this Software License Agreement are your responsibility and will not be provided by Durkee & Associates under this Software License Agreement. Durkee & Associates’ obligations under this Section 6 are contingent upon your proper use of the Software and your compliance with the terms and conditions of this Software License Agreement at all times. Durkee & Associates shall be under no obligation to provide the above technical support if, in Durkee & Associates’ opinion, the Software has failed due to the following conditions: (i) damage caused by the relocation of the software to another location or CPU; (ii) alterations, modifications or attempts to change the Software without Durkee & Associates’ written approval; (iii) causes external to the Software, such as natural disasters, the failure or fluctuation of electrical power, or computer equipment failure; (iv) your failure to maintain the Software at Durkee & Associates’ specified release level; or (v) use of the Software with other software without Durkee & Associates’ prior written approval. It will be your sole responsibility to: (i) comply with all Durkee & Associates-specified operating and troubleshooting procedures and then notify Durkee & Associates immediately of Software malfunction and provide Durkee & Associates with complete information thereof; (ii) provide for the security of your confidential information; (iii) establish and maintain backup systems and procedures necessary to reconstruct lost or altered files, data or programs.
7. SOFTWARE ACTIVATION, UPDATES AND LICENSE METERING
(a) License Metering. Durkee & Associates has a built-in key code metering module that helps you to avoid any unintentional violation of this Software License Agreement. Durkee & Associates may use your internal network for license metering between installed versions of the Software.
(b) Software Activation. Durkee & Associates’ 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 Durkee & Associates-operated license server and validating the authenticity of the license-related data in order to protect Durkee & Associates 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 the Durkee & Associates license server. You agree that Durkee & Associates may use these measures and you agree to follow any applicable requirements.
(c) Data Updates. Durkee & Associates provides data updates, which is free of charge. Durkee & Associates may use your internal network and Internet connection for the purpose of transmitting license-related data to a Durkee & Associates-operated server to validate your license at appropriate intervals to determine if there is any update available for you.
(d) Use of Data. By your acceptance of the terms of this Software License Agreement or use of the Software, you authorize the collection, use and disclosure of information collected by Durkee & Associates for the purposes provided for in this Software License Agreement. European users understand and consent to the processing of personal information in the United States for the purposes described herein. Durkee & Associates has the right in its sole discretion to amend this provision of the Software License Agreement at any time. You are encouraged to review the terms of the Privacy Policy as posted on the Durkee & Associates Web site from time to time.
8. TERM AND TERMINATION
This Software License Agreement may be terminated (a) by your giving Durkee & Associates written notice of termination; or (b) by Durkee & Associates, at its option, giving you written notice of termination if you commit a breach of this Software License Agreement and fail to cure such breach within ten (10) days after notice from Durkee & Associates. In addition the Software License Agreement governing your use of a previous version that you have upgraded or updated of the Software is terminated upon your acceptance of the terms and conditions of the Software License Agreement accompanying such upgrade or update. Upon any termination of the Software License Agreement, you must cease all use of the Software that it governs, destroy all copies then in your possession or control and take such other actions as Durkee & Associates may reasonably request to ensure that no copies of the Software remain in your possession or control. The terms and conditions set forth in Sections 1(f), (g), (h), 2, 5(b), (c), 9, and 10 survive termination as applicable.
9. RESTRICTED RIGHTS NOTICE AND EXPORT RESTRICTIONS.
The Software was developed entirely at private expense and is commercial computer software provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the U.S. Government or a U.S. Government contractor or subcontractor is subject to the restrictions set forth in this Agreement and as provided in FAR 12.211 and 12.212 (48 C.F.R. §12.211 and 12.212) or DFARS 227. 7202 (48 C.F.R. §227-7202) as applicable. Consistent with the above as applicable, Commercial Computer Software and Commercial Computer Documentation licensed to U.S. government end users only as commercial items and only with those rights as are granted to all other end users under the terms and conditions set forth in this Software License Agreement. You may not use or otherwise export or re-export the Software or Documentation except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the Software or Documentation may not be exported or re-exported (i) into (or to a national or resident of) any U.S. embargoed country or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders. By using the Software, you represent and warrant that you are not located in, under control of, or a national or resident of any such country or on any such list.
10. GENERAL PROVISIONS
If you are located in the European Union and are using the Software in the European Union and not in the United States, then this Software License Agreement will be governed by and construed in accordance with the laws of the Republic of Austria (excluding its conflict of laws principles and the U.N. Convention on Contracts for the International Sale of Goods) and you expressly agree that exclusive jurisdiction for any claim or dispute with Durkee & Associates or relating in any way to your use of the Software resides in the Handelsgericht, Wien (Commercial Court, Vienna) and you further agree and expressly consent to the exercise of personal jurisdiction in the Handelsgericht, Wien (Commercial Court, Vienna) in connection with any such dispute or claim.
If you are located in the United States or are using the Software in the United States then this Software License Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, USA (excluding its conflict of laws principles and the U.N. Convention on Contracts for the International Sale of Goods) and you expressly agree that exclusive jurisdiction for any claim or dispute with Durkee & Associates or relating in any way to your use of the Software resides in the federal or state courts of Massachusetts and you further agree and expressly consent to the exercise of personal jurisdiction in the federal or state courts of Massachusetts in connection with any such dispute or claim.
If you are located outside of the European Union or the United States and are not using the Software in the United States, then this Software License Agreement will be governed by and construed in accordance with the laws of the Republic of Austria (excluding its conflict of laws principles and the U.N. Convention on Contracts for the International Sale of Goods) and you expressly agree that exclusive jurisdiction for any claim or dispute with Durkee & Associates or relating in any way to your use of the Software resides in the Handelsgericht, Wien (Commercial Court, Vienna) and you further agree and expressly consent to the exercise of personal jurisdiction in the Handelsgericht Wien (Commercial Court, Vienna) in connection with any such dispute or claim. This Software License 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.
This Software License Agreement contains the entire agreement and understanding of the parties with respect to the subject matter hereof, and supersedes all prior written and oral understandings of the parties with respect to the subject matter hereof. Any notice or other communication given under this Software License Agreement shall be in writing and shall have been properly given by either of us to the other if sent by certified or registered mail, return receipt requested, or by overnight courier to the address shown on Durkee & Associates’ Web site for Durkee & Associates and the address shown in Durkee & Associates’ records for you, or such other address as the parties may designate by notice given in the manner set forth above. This Software License Agreement will bind and inure to the benefit of the parties and our respective heirs, personal and legal representatives, affiliates, successors and permitted assigns. The failure of either of us at any time to require performance of any provision hereof shall in no manner affect such party’s right at a later time to enforce the same or any other term of this Software License Agreement. This Software License Agreement may be amended only by a document in writing signed by both of us. In the event of a breach or threatened breach of this Software License Agreement by either party, the other shall have all applicable equitable as well as legal remedies. Each party is duly authorized and empowered to enter into and perform this Software License Agreement. If, for any reason, any provision of this Software License Agreement is held invalid or otherwise unenforceable, such invalidity or unenforceability shall not affect the remainder of this Software License Agreement, and this Software License Agreement shall continue in full force and effect to the fullest extent allowed by law. The parties knowingly and expressly consent to the foregoing terms and conditions.
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