END USER LICENSE AGREEMENT
IMPORTANT
— READ CAREFULLY: This is a legal agreement between YOU (an
individual or single entity (“you[r]”) and GSF
Corporation. (“GSF”) pertaining to the GSF® and Macula® Software you are about to install,
copy, access or otherwise use, including any documentation which
may be provided therewith (singularly and collectively, the
“Software”). GSF licenses the Software to you only upon the express condition that
you accept all of terms and conditions contained in this
software license agreement (the
“Agreement”). You should carefully read the following terms and conditions before
using the Software. By opening the sealed package, installing,
copying, accessing, or otherwise using the Software, you accept
these terms and conditions and understand that they will be
legally binding on you. If you do not agree to these terms, then
GSF is unwilling to license the Software to you. If you do not
agree with them, or do not want them binding on you, you must
not install, copy, access, or otherwise use the Software, and
you may return the Software for a full refund (less any shipping
fees) within thirty (30) days of your license purchase date (the
“Product Return Period”). After the Product Return Period, any and all license fees paid to GSF
will be non-refundable. This agreement may be accessed at any
time by selecting
“About” in the Help Menu of the Software.
IMPORTANT WARNING: AS WITH MOST SOFTWARE PROGRAMS, IT IS CRITICAL FOR YOU
TO REGULARLY BACK UP YOUR DATA. DATA BACK UP IS SOLELY YOUR
RESPONSIBILITY. IN NO EVENT SHALL GSF BE LIABLE FOR ANY LOSS OF
DATA.
1.
Grant of License. The Software is protected by copyright
laws, international copyright treaties, and other intellectual
property laws and treaties. The Software is licensed, not sold, as
follows: GSF hereby grants and you accept a non-exclusive,
non-transferable, limited license, subject to each provision of this
Agreement, to download, install, activate, and use machine-readable
object code versions of the Software on the number of computers
expressly authorized in writing by GSF or its authorized reseller
(the
“License”). The License granted to you is solely for your personal or business use
and does not extend to any third party. All rights not expressly
granted to you are hereby reserved by GSF.
1.1.
Additional License Restrictions. Except as
specifically permitted by this Agreement, Licensee shall not:
1.1.1.
Copy (except as permitted by applicable law
or as provided in this Agreement), sell, modify, translate,
transfer, reverse engineer, decompile or disassemble the Software;
1.1.2.
Remove any Software proprietary notice,
label or mark, whether in machine language or human-readable form;
1.1.3.
Transmit or distribute the Software to any
person outside Licensee’s internal business organization(s) (for the sake of clarity, in no event
may this Agreement, including the License granted to you, be
transferred to any third party without GSF’s express prior written
consent);
1.1.4.
Create any derivative work that is based on
or incorporates the Software;
1.1.5.
Install, use, or operate the Software in
connection with: (a) any Application Service Provider (“ASP”), cloud-based, or similar service, other than pursuant to a License for
GSF Macula with Wilson Cloud edition. (For the sake of clarity, only
GSF Macula with Wilson Cloud edition may be used with any commercial
cloud services, and all GSF without Wilson Cloud editions may not be
used with cloud services.); (b) any service bureau by which any
third party can access the Software or by which information produced
by the Software is sold or accessible to any third party; (c) any
virtual machine, including through use of VMWare, Virtual PC,
Windows Terminal Services, RDP, RDS, Citrix, the Internet, or by
using any similar technology whether now known or later created
(singularly and collectively,
“virtual machine”); or (d) any of the foregoing Sections 1.1.5(a) through (c) above,
inclusive, whether through use of any technology now known or later
devised; or
1.1.6.
License, sublicense, assign, delegate, or
otherwise transfer the License or any right or obligation related to it
for any reason without GSF’s prior written consent. Any attempt to
license, sublicense, assign, delegate or transfer this license, by
contract, statute, corporate merger of any sort, regulation or court
order without GSF’s prior written consent shall be void.
Upon expiration or termination of this Agreement for any reason, this
License shall terminate and any user accessing the Software shall
immediately cease to use or have access and support for it. If you
breach any provision of this Agreement, including by making any
unauthorized copy of the Software or by failing to comply with any
prohibition set forth in this Agreement, the License shall immediately
terminate automatically.
1.2.
Update Policy. Any Software license purchased, whether for
a Previous Version or a New Version, will not include, and you shall not
be entitled to, any free Software updates.
1.3.
Maintenance. As used herein,
“Maintenance” means the maintenance services described in this section. No Maintenance
or other support is provided for any free license. For GSF Macula
Maintenance is provided under TrueBlue Care support package. For all
other products, you will receive Maintenance for a period of one (1)
year from your Software license purchase date (the
“Initial Maintenance Term” or
“IMT”). When the IMT expires, and provided that you pay GSF to renew the
Maintenance, you will receive continued Maintenance for the extended
period set forth in the invoice GSF provides to you. During the period
in which you already are receiving Maintenance pursuant to this
Agreement (whether during the IMT or any Maintenance renewal term: an
“Existing
Service Term”), you will receive Maintenance for any additional Software module(s)
and/or workstation(s) you add during an Existing Service Term, but shall
not be entitled to an extension of the then-current Existing Service
Term as a result of adding any such new Software Module(s) and/or
workstation(s). For each GSF Macula Software license you purchase
Maintenance includes: one (1) session, for no longer than one (1) hour,
of online/telephone support and training pertaining to
installation/setup questions and integration issues relating to the
Software. Unless GSF advises you otherwise, Maintenance will be provided
twelve (12) hours a day, between the hours of 9:00 a.m. and 6:00 p.m.
UTC+08 Time Zone, Monday through Friday excluding statutory holidays in
the Malaysia. During the Existing Service Term, you also will be given
the opportunity to receive available security updates and bug fixes. If
you do not avail yourself to any such security update or bug fix during
the Existing Service Term, you will not be entitled to any such
improvement thereafter. Notwithstanding the foregoing, Microsoft® Corporation no longer supports the Windows® XP operating
system, including via security updates, bug fixes, and other technical
support. GSF consequently cannot provide Maintenance, including any
technical support, bug fixes, or security updates for any GSF products
running on any computer running on the Windows® XP operating system, or on any operating system discontinued or
otherwise no longer supported by its manufacturer. Please note GSF
products may not work properly or securely if used on any such no longer
operating system.
2.
Title and Copyright.
It is hereby
understood and agreed that as between GSF and you, GSF is the owner of
all rights, title and interest, including the copyright and all other
intellectual property rights, to the Software, including in all formats
and regardless how delivered to you (whether on media or if distributed
electronically) and all subsequent copies thereof, regardless of the
media or form in which the Software or copies thereof may exist. Except
as expressly provided herein, you do not acquire any rights to the
Software through the purchase of licenses to the Software or otherwise.
Unauthorized copying of the Software or failure to comply with the above
restrictions will result in automatic termination of this Agreement.
Unauthorized copying or distribution of the Software constitutes
copyright infringement and may be punishable in a federal criminal
action by a fine of up to U.S. $250,000 and imprisonment up to five (5)
years. In addition, federal civil remedies for copyright infringement
allow for the recovery of actual damages based on the number of copies
produced or statutory damages of up to U.S. $150,000 for willful
copyright infringement.
3.
Term.
This Agreement shall continue for as long
as you use the Software licensed herein or until terminated by GSF,
whichever occurs first. Without prejudice to any other rights, this
Agreement will terminate if you fail to pay GSF any amount due or if you
fail to comply with any of its terms or conditions. You agree, upon
termination, to immediately destroy all copies of all Software.
4.
No Warranties.
This Software is furnished
“As Is” and with all
faults. GSF, its suppliers, resellers, technical support / Maintenance
providers, and distributors (singularly and collectively, the
“Disclaiming
Parties”) do not make, and you do not receive, any warranties, either express,
implied, statutory, or in any communication with you. To the maximum
extent permitted by applicable law, the Disclaiming Parties disclaim all
other warranties and conditions, either express or implied, including
implied warranties or conditions of merchantability, fitness for a
particular purpose, title, non-infringement, any warranty against data
loss, computer virus, loss of hardware or software functionality, or any
other harmful effects, or any warranty that operation of the software
will be uninterrupted or error-free. For the sake of clarity, the
Disclaiming Parties do not make, and you do not receive, any
representation or warranty as to the stability or functionality of any
Software feature. The Disclaiming Parties hereby notify you that the
Software and/or any related data may be or become unstable, corrupted,
or otherwise nonfunctional, including by any corrupted record, missing
record, operating system instability, virus, operating system
misconfiguration, hardware failure, hardware conflict, software
conflict, user data misconfiguration, and/or data loss.
You expressly assume the entire risk and cost associated with the
Software, including risk resulting from Maintenance services (whether
performed in whole, in part, or not at all), or from any virus,
downloaded material, harmful component, or through any Internet use of
the Software or any site or server through which the Software is
available. You are solely responsible for any damage that results from
or is associated with use of the Software. The Disclaiming Parties shall
not be liable in any manner whatsoever for the results obtained through
use of the Software.
Persons using the Software are responsible for the supervision,
management, and control of the Software, including determination of the
appropriate uses for the Software and the selection of the Software and
other programs to achieve intended results. Persons using the Software
are responsible for testing the reliability and accuracy of the Software’s output.
If the Software was purchased in the United
States, the above exclusions may not apply to you since some states do
not allow the exclusion of implied warranties. You may also have other
rights, which vary from state to state. The entire risk arising out of
use or performance of the Software remains with you.
5.
Limitation of Liability.
The limitation of
liability is to the maximum extent permitted by applicable law. In no
event shall the Disclaiming Parties be liable for any damages, whether
arising in contract, tort, or otherwise and including any special,
incidental, indirect, consequential, punitive, or exemplary damages
whatsoever (including damages for loss of business profits, business
interruption, loss or corruption of business information or other data,
cost of cover, or any other pecuniary loss) arising out of the use or
inability to use the Software or the failure to provide full or adequate
support / Maintenance services, even if GSF has been advised of the
possibility of such damages. You hereby acknowledge that the license
fee amount reflects this allocation of risk, and in any case the entire
liability of the Disclaiming Parties under any provision of this
Agreement shall be limited to the amount actually paid by you for the
Software. Because some states do not allow the exclusion or
limitation of liability, the above limitation may not apply to you.
5.1.
Surveillance Liability Disclaimer.
The Disclaiming Parties: (i) do not make, and you do not receive, any
representation or warranty as to any applicable law or regulation that
may pertain to use of the Software by you for video and/or audio
surveillance, recording, or any similar purpose(singularly and
collectively,
“Surveillance”), and (ii) . hereby notify you of your obligation to comply with any and
all local, state, federal, and international laws concerning
surveillance. You hereby acknowledge that under no circumstance shall
the Disclaiming Parties be liable for any unlawful use of the Software
by you, whether in connection with Surveillance or otherwise, and you
hereby assume any and all risks and liabilities for any such illegal
use.
6.
Audits.
You hereby agree that GSF has the right to
require an audit (electronic or otherwise) of the Software, including
the installation, use, and access thereof. As part of any such audit,
GSF or its authorized representative will have the right, on fifteen
(15) calendar days’ prior notice to you, to inspect your records, systems and facilities,
including computer, server, and device identifications (MAC addresses
and otherwise), serial numbers, and related information, to verify that
the use of any and all of the Software is in conformance with this
Agreement. You shall provide full cooperation to enable any such audit.
If GSF determines that your use is not in conformity with this
Agreement, you shall immediately obtain and pay for valid licenses to
bring your use into compliance with this Agreement and pay the
reasonable costs of the audit. In addition to such payment rights, GSF
reserves the right to seek any other remedies available at law or in
equity, whether under this Agreement or otherwise. Note: if the
Software is installed on any computer containing classified information
that requires security clearance from any government to access, the
audit rights described in this Section 6 shall not apply to any such
computer, provided, however, that the foregoing exclusion shall not
apply to any restricted country, person, or entity described in Section
7 below.
7.
Indemnification.
If the Software is modified, installed, or
used in violation of any provision of this Agreement or any warning,
instruction, or recommendation by GSF or any of its resellers,
distributors, licensors, and sub-licensees, you hereby agree to defend,
indemnify and hold GSF, its officers, employees, resellers,
distributors, licensors, and sub-licensees, harmless from and against
any and all claims, losses, harm, costs, liabilities, damages, and
expenses (including but not limited to arbitration and court costs,
reasonable attorney's and expert witness fees and related expenses)
(collectively,
“Losses”) related to any third party claim, action, suit, or proceeding (a
“Third Party Claim”) resulting therefrom. You hereby agree that GSF will direct the defense
of, or to otherwise handle, any and all such Third Party Claims or
actions at your expense, and that you will provide all information and
assistance reasonably necessary to defend or handle same. In such cases,
GSF will not enter into any settlement of, or admit any liability with
respect to, the Third Party Claim or action without your express prior
written consent. Notwithstanding the foregoing, you may, at your sole
option and expense, participate in the defense of the Third Party Claim
or action with additional counsel of your own choosing. Failure to
comply with this section will not relieve you of your indemnification
obligations, unless such failure results in material prejudice to your
defense of a Third Party Claim.
8.
Equitable Relief.
You acknowledge that monetary damages would
not be an adequate remedy for the breach of certain provisions of this
Agreement, including, but not limited to, those pertaining to the
protection of GSF’s proprietary rights, including its copyrights,
trademarks, patent, and trade secret rights. Accordingly, if you breach
or threaten to breach any of your obligations, GSF shall be entitled,
without showing or proving any actual damage sustained, to a stipulated
temporary restraining order, and shall thereafter be entitled to apply
for a preliminary injunction, permanent injunction, and/or order
compelling specific performance, to prevent the breach of your
obligations under this Agreement. Nothing in this Agreement shall be
interpreted as prohibiting GSF from pursuing or obtaining any other
remedies otherwise available to it for such actual or threatened breach,
including recovery of damages.
9.
Privacy and Data Collection. GSF hereby
provides notice to you that it collects personal and non-personal
information from you for purposes including: (i) improving the Software;
(ii) delivering requested Software to you; (iii) providing Maintenance;
(iv) contacting you; (v) sending your transaction information, including
confirmations, invoices, notices, and alerts; (vi) informing you about
promotions, events, and news related to the Software; (vii) keeping
internal records; (viii) investigating, deterring, and protecting
against fraudulent, unauthorized, or illegal activity; and/or (ix)
contacting you for market research purposes. GSF also collects certain
technical information including: (i) licensed workstation locations and
identifiers; (ii) operating system language settings; (iii) GSF Macula
Software version number; (iv) information on hardware connected with
licensed workstations (such as camera vendor / models); (v) IP addresses
of licensed workstations; (vi) unique product license identifiers
included in GSF Macula Software license (“Product ID”); (vi) unique identifiers used to install GSF Macula Software (“Product Key”); and (viii) MAC addresses and/or hard disk drive serial numbers of
licensed workstations. You hereby acknowledge that GSF, in its sole
discretion, may change its data collection and use policies and
practices from time to time without notice to you.
10.
Arbitration.
Except as specifically provided in Section
9 above, any controversy, claim, or dispute that cannot be resolved by
the Parties that arises out of or in connection with, or in relation to
the interpretation, performance, breach, or alleged breach of, this
Agreement, shall be submitted by either Party for the matter to be
resolved exclusively by binding arbitration to be held exclusively in
Copiague, New York by and pursuant to the rules of a mutually agreeable
private judging service that employs retired judges of the State of New
York or of U.S. Federal District Courts (“Private Judging Service” or
“PJS”), or, if such PJS is unavailable, does not have arbitrators with the
qualifications described in Section 11.2 below, or cannot be agreed upon
by the Parties within ten (10) days of the Written Demand (see Section
11.1 below), then arbitration shall be conducted by and pursuant to the
then-current rules of the Judicial Arbitration and Mediation Services (
“JAMS”), provided, however, that if the total dispute amount at issue,
including counter claims, is less than $250,000, then JAMS Streamlined
Arbitration Rules shall be used, and the procedures set forth below. If
there is any inconsistency between the rules of the arbitration service
and the procedures set forth below, the procedures set forth below shall
control.
10.1.
Arbitration Invocation. If a Party seeks
to invoke arbitration pursuant to this Agreement, it shall transmit a
written demand for arbitration to the other Party pursuant to the
mechanism for giving notice specified in this Agreement (the
“Written
Demand”). The Written Demand shall set forth in reasonable detail the nature and
subject of the dispute and the relief requested.
10.2.
Selection of Arbitrators. The arbitration
shall be conducted by one (1) arbitrator who is an independent and
disinterested party with respect to the underlying dispute, the Parties,
and the outcome of the arbitration, and who has at least: (a) ten (10)
years’ experience
working or adjudicating in the area of software licensing agreements;
and (b) ten (10) years’ experience in court proceedings as a judge, and (c) ten (10)
arbitrations completed with the arbitrator having served as the
adjudicator.
10.3.
Discovery. Unless the Parties otherwise agree in
writing, the only pre-hearing discovery shall be to conduct a
pre-hearing conference, to attempt to identify and reasonably narrow the
issues, establish procedural matters, obtain stipulations, and to
arrange for the exchange of information, including (a) reasonably
limited production of relevant and non-privileged documents, and (b) the
identification of witnesses to be called at the hearing, which
identification shall give the witness’ name, general qualifications, and position, and a brief statement as to
the general scope of the testimony to be given by the witness. The
arbitrator shall decide any disputes and shall control the process
concerning these pre-hearing discovery matters. Pursuant to the rules of
the arbitration service, the Parties may subpoena witnesses and
documents for presentation at the hearing.
10.4.
Case Management. Prompt resolution of any dispute is
important to the Parties, who expressly agree that arbitration shall be
conducted in a reasonably efficient, expedient, and just manner. The
arbitrator accordingly shall assume case management initiative and
control over the arbitration process, including scheduling of events,
pre-hearing discovery and activities, and the conduct of the hearing.
10.5.
Arbitrator’s Decision. The arbitrator shall: (a) follow and
apply applicable law; (b) grant such legal or equitable remedies and
relief that the arbitrator deems just and equitable, but only to the
extent that such remedies or relief could be granted by a state or
federal court with jurisdiction over the matter; (c) not grant any
punitive, exemplary, consequential, or incidental damages; (d) not grant
any damages that exceed the limitation of liability amount set forth in
Section 5 above; (e) inform the Parties in writing of arbitrator’s decision no later than ninety (90) days
after the Written Demand, and such decision shall include a written
statement of reasons and support; (f) not act in derogation of the clear
intent of the Parties as expressed in this Agreement; and (g) be bound
by each applicable provision pertaining to arbitration and the Parties’ reasonable
expectations set forth in this Agreement. The decision of the arbitrator
shall be final and shall be entered in any court of competent
jurisdiction. The arbitration award shall be enforceable in accordance
with the United Nations Convention on the Recognition and Enforcement of
Foreign Arbitral Awards, (New York, 10 June, 1958).
10.6.
Expenses. The arbitrator shall determine each Party’s culpability regarding the underlying dispute and each Party’s respective efforts to resolve the matter amicably prior to it being
arbitrated, and the arbitrator shall determine the percentage, if any,
that each Party shall be required to pay for the expenses of the
arbitration, including the arbitrator’s fees, and for any payment to reimburse the other Party for its
reasonable attorney’s and expert witness fees and costs in addition to any other relief to
which it is entitled pursuant to the arbitration.
10.7.
Confidentiality. The Parties shall keep confidential the
fact of the arbitration, the dispute being arbitrated, and the decision
of the arbitrator, except that the Parties may make such disclosures to
their respective persons who have a need to know, such as directors,
trustees, management employees, witnesses, experts, investors,
accountants, attorneys, lenders, insurers, and others who may be
directly affected, and pursuant to any applicable securities laws.
Notwithstanding the foregoing, if a Party is expressly asked by a third
party about the dispute or the arbitration, the Party may disclose and
acknowledge in general and limited terms that the dispute has been
resolved pursuant to arbitration.
11.
Governing Law/Jurisdiction.
This Agreement shall be exclusively interpreted, construed, and enforced
in all respects in accordance with the laws of the State of New York
(U.S.A.) without reference to its choice of law rules. The Parties
hereby agree that venue for any and all disputes concerning this
Agreement, or action on any obligation hereunder, will be exclusively
brought in an appropriate state court in Suffolk County, New York or in
the United States District Court for the Eastern District of New York in
Central Islip, New York (U.S.A.), and the Parties irrevocably consent to
the jurisdiction of such courts for any such dispute or action.
Notwithstanding the foregoing, no action brought by either Party against
the other for breach of this Agreement shall be limited to breach of
contract remedies and either Party may bring any additional cause(s) of
action that would otherwise be available to it, including copyright
infringement pursuant to Title 17 of the United States Code. You hereby
expressly and specifically waive any objection you may have, pursuant to
the Eleventh Amendment to the United States Constitution or otherwise,
to the jurisdiction of, or any award that could be granted by, the
United States Federal Courts.
12.
Interpretation.
The defined terms used in this Agreement
shall have the meanings ascribed to them.
“Including” shall be deemed to mean
“including, but not limited to,” regardless whether such term is initially capitalized and
notwithstanding any conflicting provision of this Agreement. Headings,
the title of this Agreement and/or of its defined terms and the terms
used to reference each Party as used in this Agreement are for reference
purposes only and in no way define, limit, construe, or describe the
scope or extent of such section or in any way affect this Agreement nor
shall they be used to explain or aid in the interpretation,
construction, or meaning of this Agreement. The variable use of words in
their singular and plural also shall not be construed to alter their
substantive meaning or to affect this Agreement in any way. This
Agreement shall be construed within its fair meaning and no inference
shall be drawn against the drafting Party in interpreting this
Agreement.
13.
Waiver / Severability. No delay,
omission, or failure to exercise any right or remedy provided for in
this Agreement shall be deemed to be a waiver thereof or an acquiescence
to the event giving rise to such remedy, but every such right or remedy
may be exercised, from time to time, as may be deemed expedient by the
party exercising such right or remedy. If any provision of this
Agreement is determined by an arbitrator or a court of competent
jurisdiction to be prohibited or unenforceable, the parties shall have
ten (10) business days to renegotiate each such provision in good faith.
If the parties are unable to do so, then such provision shall be deemed
narrowed to the broadest term permitted and shall be enforced as so
narrowed. If any such provision is nevertheless deemed by such
arbitrator or court to be unlawful, void, or unenforceable, then this
Agreement, including all of the remaining terms, will remain in full
force and effect as if such invalid or unenforceable term had never been
included.
14.
Merger / Entire agreement.
This Agreement
sets forth the entire agreement and understanding of you and GSF
relating to the subject matter herein and merges and supersedes all
prior agreements, writings, commitments, discussions and understandings
between them. No modification of or amendment to this Agreement, nor any
waiver of any rights under this Agreement, shall be effective unless in
writing signed by GSF.
YOU HEREBY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT,
AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. |
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