Freeware License Agreement
(Revised October 25, 2007)
PLEASE READ THIS AGREEMENT (THE “AGREEMENT”) CAREFULLY BEFORE UPGRADING, COPYING, INSTALLING, OR USING SOFTWARE FROM TERABYTE INC. (“TERABYTE”).
WHEREAS, Terabyte is a vendor of software products, and
WHEREAS, the individual or entity using this product (“User”) desires to obtain the rights to use this product,
NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, and for good and valuable consideration, Terabyte and User agree that the foregoing recitals are true and correct, and agree as follows.
- The Software
Computer software products owned by TeraByte, and computer software products owned by suppliers of TeraByte, distributed by TeraByte under agreement with the owners of such software, which software products have been offered by TeraByte as Freeware, i.e. available for use without payment of licensing fees.
- Media Fees
Such fees as may be charged by TeraByte to User, or by User to third parties, to compensate for the cost of the media used to transfer the Software.
The right for User to use the Software pursuant to the terms and conditions defined herein. The absence of a license fee shall in no way be an indication of a willingness or desire on the part of TeraByte to place the Software in the public domain. TeraByte intends to retain, and does retain, all intellectual property and ownership rights in the Software.
- Shrinkwrap Agreement
The unsigned agreement distributed with the Software defining the standard terms and conditions under which the Software is distributed and license granted.
II. Acceptance Of Terms
- This agreement shall be accepted by User upon User’s performance of any of the following acts:
- Installation, copying, or use of the Software on one or more of User’s computers;
- Distribution of the Software to any party other than Terabyte;
- Retention of installable version of the Software for more than fifteen (15) days; or
- Any other act not consistent with non-acceptance of the terms and conditions recited herein.
- If User does not accept the terms and conditions recited herein, User shall delete, return, and/or discard any files, data, or materials associated with the Software.
- If User has a License Agreement executed by an authorized representative of TeraByte (and “Executed Agreement”) containing one or more terms and conditions which are inconsistent with the terms and conditions contained in the shrinkwrap license, then to the extent necessary, the terms and conditions of the Executed Agreement shall supersede those of the shrinkwrap license.
III. Scope of Use
- User may use the Software on an unlimited number of computers.
- User may only use the Software in accordance with its intended use as documented by TeraByte and distributed along with the Software.
- The Software may not be used to support any third party product, nor create any tools or executable scripts for use with any third party product, without the express written consent of an authorized representative of TeraByte.
- User may not modify the Software, any accompanying documentation, or any file utilized in the delivery or distribution of the Software or any accompanying documentation, without the express written consent of an authorized representative of TeraByte.
- User may not reverse engineer, decompile, nor take any other steps consistent with an attempt to reveal any confidential, trade secret, or other non-public information associated with the Software. Further, User may not assist any other party attempting to reverse engineer, decompile, nor take any other steps consistent with an attempt to reveal any confidential, trade secret, or other non-public information associated with the Software. Should User become aware of any activity in violation of this term, whether or not under User’s control or authorization, User will inform TeraByte of such activity and assist TeraByte in terminating such activity and protecting its threatened rights.
- User may not sell, rent, lease, or otherwise charge for the distribution, installation, copying, or storage of the Software, nor of any tools, scripts or other software developed with the Software, other than a media fee as defined herein.
- User may not sell, rent, lease, distribute, or use the Software, nor cause the Software to be sold, rented, leased, distributed, or used, where such sale, rental, lease, distribution, or use is prohibited by any statute or governmental agency of the United States or other international, national, or local entity having jurisdiction at the point of sale, rental, lease, distribution, or use, nor may User sell, rent, lease, distribute, or use the Software where User is aware that such sale, rental, lease, distribution, or use is likely to result directly or indirectly in a sale, rental, lease, distribution, or use prohibited by any statute or governmental agency of the United States or other international, national, or local entity having jurisdiction at the point of initial or subsequent sale, rental, lease, distribution, or use.
IV. TERM AND TERMINATION
The terms and conditions of this Agreement shall remain effective until this Agreement is terminated. Termination may be affected as follows:
- Termination by User. User may terminate this Agreement at any time by destroying all copies of the Software, as indicated below.
- Termination by TeraByte.
- TeraByte may terminate this Agreement at any point upon notice to User if user, in TeraByte’s sole discretion, is in breach of any of the terms and conditions contained herein, and fails to remedy such breach within a reasonable period, but in no event more than ten (10) days, following receipt of such notice.
- TeraByte may terminate this Agreement at any point upon notice to User if TeraByte ceases to offer Freeware licenses, or changes the terms and conditions under which such licenses are offered, and User is unwilling to accept the revised terms and conditions.
- TeraByte may terminate this Agreement at any point should User’s normal business operations be disrupted or discontinued for more than thirty (30) days due to User’s insolvency, bankruptcy, receivership, or business termination.
Upon termination of this Agreement, User shall return, delete, or destroy all copies of the Software, or any portion of the Software, remaining in User’s possession or under User’s control, including all distribution media containing distributable copies of all or any portion of the software.
V. OWNERSHIP AND CONFIDENTIAL INFORMATION
TeraByte or its licensors own the Software under copyright, trade secret and all other laws that may apply. All product names, designs, and logos associated with the Software are trademarks of TeraByte. The source code of the Software and all information regarding the design, structure or internal operation of the Software are valuable trade secrets of TeraByte or third parties with which TeraByte has licensing arrangements (“Confidential Information”), provided however, that “Confidential Information” shall not include information which otherwise would be Confidential Information to the extent that such information was publicly known or otherwise known to User previously to the time of disclosure, which subsequently became known through no act or omission by User, or which otherwise became known to User other than through disclosure by TeraByte without violation of any party’s obligations to TeraByte. User shall not sell, transfer, publish, disclose, display or otherwise permit access to any Confidential Information by any third party, nor use any of the Confidential Information, except strictly as part of the Software in the form originally distributed by TeraByte.
VI. Disclaimer of Warranty
The software and related documentation are provided “as is”, without warranty of any kind. TeraByte, Inc. disclaims all warranties, express or implied, including, but not limited to, the implied warranties of design, merchantability, fitness for a particular purpose. TeraByte, Inc. does not warrant that the functions contained in the software or documentation will meet User’s requirements, or that the operation of the software will be error-free, complete, or that defects in the software or documentation will be corrected.
VII. Limitation of Liability
Under no circumstances shall TeraByte, Inc., nor any other person or entity involved in the creation, production, or delivery of the Software be liable for any lost revenue or profits or any incidental, indirect, special, punitive, or consequential damages that result from the use or inability to use the Software or related products or documentation, even if TeraByte, Inc. has been advised of the possibility of such damages. Some states do not allow the limitation or exclusion of liability for incidental or consequential damages so the above limitation or exclusion may not apply. In no event shall TeraByte, Inc.’s total liability to User for all damages, losses, and causes of action, whether in contract, tort or otherwise, exceed the amount paid for the software, including media fees.
VIII. HIGH RISK ACTIVITIES
The Software is not fault-tolerant and is not designed, manufactured or intended for use on equipment or software running in hazardous environments requiring fail-safe performance, including but not limited to the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Software could contribute to death, personal injury, or severe physical or environmental damage (“High Risk Activities”). TERABYTE AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS OF THE SOFTWARE FOR HIGH RISK ACTIVITIES. TERABYTE DOES NOT AUTHORIZE USE OF THE SOFTWARE FOR ANY HIGH RISK ACTIVITY. USER AGREES TO DEFEND AND INDEMNIFY TERABYTE, AND HOLD TERABYTE HARMLESS, FROM AND AGAINST ANY AND ALL CLAIMS, ACTIONS, LOSSES, COSTS JUDGMENTS AND DAMAGES OF ANY KIND IN CONNECTION WITH USE IN RELATION TO ANY HIGH RISK ACTIVITY OF ANY COPY OF THE SOFTWARE RELATING TO THIS LICENSE.
IX. GENERAL TERMS
- ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between User and TeraByte in regard to the subject matter herein, and supersedes all previous and contemporaneous agreements, proposals and communications, written or oral between the parties. No amendment of this Agreement shall be effective unless in writing and signed by duly authorized representatives of both parties.
- NON-WAIVER. Waiver by TeraByte of any violation of any provision of this License shall not be deemed to waive any further or future violation of the same or any other provision.
- LAW AND JURISDICTION. This License and any dispute relating to the Software or to this License shall be governed by the laws of the United States and the laws of the State of Nevada, without regard to U.S. or Nevada choice of law rules. User agrees and consents that jurisdiction and proper venue for all claims, actions and proceedings of any kind relating to TeraByte or the matters in this License shall be exclusively in courts located in Las Vegas, Nevada. If a court with the necessary subject matter jurisdiction over a given matter cannot be found in Las Vegas, then jurisdiction for that matter shall be exclusively in a court with the proper jurisdiction as close to Las Vegas as possible, and within Nevada if possible.
- SEVERABILITY. If any part or provision of this License is held to be unenforceable for any purpose, including but not limited to public policy grounds, then both parties agree that the remainder of the License shall be fully enforceable as if the unenforceable part or provision never existed.
- NON-ASSIGNMENT. User may not assign this License without the prior written consent of TeraByte, except, where User is a commercial entity, as part of a sale of all or substantially all of the assets of User’s business.
- NO THIRD PARTY BENEFICIARIES. There are no third party beneficiaries of any promises, obligations or representations made by TeraByte herein.
- HEIRS AND ASSIGNS. This Agreement shall be binding on and shall inure to the benefit of the heirs, executors, administrators, successors and assigns of the parties hereto, but nothing in this paragraph shall be construed as a consent by TeraByte to any assignment of this agreement except as provided hereinabove.
- SURVIVAL. The provisions of paragraphs II.C, III.B, III.C-H, V, VI, VII, VIII, and IX.A-C of this Agreement shall survive any termination or expiration of this Agreement.