PLEASE READ THIS SOFTWARE LICENSE AGREEMENT CAREFULLY BEFORE INSTALLING OR USING THE SOFTWARE.
BY OPENING OR ACCESSING THE EVOLVE SOFTWARE, OR USING ANY EQUIPMENT THAT CONTAINS THIS SOFTWARE PRODUCT, YOU ARE CONSENTING TO BE BOUND BY THIS AGREEMENT.
LICENSE GRANT: Trusted Data Solutions LLC, including its subsidiaries and affiliates (“TDS”) grant to the End User End User Customer a nonexclusive and nontransferable license to use Evolve™ software (“Software”) in object code form: (i) installed in a single location on a hard disk or other storage device of up to the number of computers owned or leased by End User Customer for which End User Customer has paid a license fee (“Permitted Number of Computers” and/or “Data License Limit” and/or “Number of Items”, and/or “Number of Accounts”); or (ii) provided the Software is configured for network use, installed on a single file server for use on a single local area network for either (but not both) of the following purposes: (a) permanent installation onto a hard disk or other storage device of up to the Permitted Number of Computers; or (b) use of the Software over such network, provided the number of computers connected to the server does not exceed the Permitted Number of Computers. End User Customer may only use the programs contained in the Software (i) for which End User Customer has paid a license fee and (ii) for which End User Customer has received a product license key (“PLK”). End User Customer grants to TDS or its independent accountants the right to examine its books, records and accounts during End User Customer’s normal business hours to verify compliance with the above provisions. In the event such audit discloses that the any or all of the following has been exceeded: Permitted Number of Computers, the Data License Limit, the Number of Items, Number of Accounts, the End User Customer shall promptly pay to TDS the appropriate licensee fee for the additional computers or users. At TDS ‘s option, TDS may terminate this license for failure to pay the required license fee.
End User Customer may make one (1) archival copy of the Software provided End User Customer affixes to such copy all copyright, confidentiality, and proprietary notices that appear on the original.
EXCEPT AS EXPRESSLY AUTHORIZED ABOVE, END USER CUSTOMER SHALL NOT: COPY, IN WHOLE OR IN PART, SOFTWARE OR DOCUMENTATION; MODIFY THE SOFTWARE; REVERSE COMPILE OR REVERSE ASSEMBLE ALL OR ANY PORTION OF THE SOFTWARE; OR RENT, LEASE, DISTRIBUTE, SELL, OR CREATE DERIVATIVE WORKS OF THE SOFTWARE.
End User Customer agrees that aspects of the licensed materials, including the specific design and structure of individual programs, constitute trade secrets and/or copyrighted material of TDS. End User Customer agrees not to disclose, provide, or otherwise make available such trade secrets or copyrighted material in any form to any third party without the prior written consent of TDS. End User Customer agrees to implement reasonable security measures to protect such trade secrets and copyrighted material. Title to Software and documentation shall remain solely with TDS.
LIMITED WARRANTY: TDS warrants that for a period of ninety (90) days from the date of shipment from TDS: (i) the media on which the Software is furnished will be free of defects in materials and workmanship under normal use; and (ii) the Software substantially conforms to its published specifications. Except for the foregoing, the Software is provided AS IS. This limited warranty extends only to End User Customer as the original licensee. End User Customer’s exclusive remedy and the entire liability of TDS and its suppliers under this limited warranty will be, at TDS or its service center’s option, repair, replacement, or refund of the Software if reported (or, upon request, returned) to the party supplying the Software to End User Customer.
In no event does TDS warrant that the Software is error free or that End User Customer will be able to operate the Software without problems or interruptions.
This warranty does not apply if the software (a) has been altered, except by TDS, (b) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by TDS, (c) has been subjected to abnormal physical or electrical stress, misuse, negligence, or accident, or (d) is used in ultra-hazardous activities.
DISCLAIMER. EXCEPT AS SPECIFIED IN THIS WARRANTY, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW.
IN NO EVENT WILL TDS OR ITS SUPPLIERS BE LIABLE FOR ANY LOST REVENUE, PROFIT, OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE EVEN IF TDS OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
In no event shall TDS or its suppliers’ liability to End User Customer, whether in contract, tort (including negligence), or otherwise, exceed the price paid by End User Customer. The foregoing limitations shall apply even if the above-stated warranty fails of its essential purpose.
SOME STATES DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES.
The above warranty DOES NOT apply to any beta software, any software made available for testing or demonstration purposes, any temporary software modules or any software for which TDS does not receive a license fee. All such software products are provided AS IS without any warranty whatsoever.
This License is effective until terminated. End User Customer may terminate this License at any time by destroying all copies of Software including any documentation. This License will terminate immediately without notice from TDS if End User Customer fails to comply with any provision of this License. Upon termination, End User Customer must destroy all copies of Software.
Software, including technical data, is subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. End User Customer agrees to comply strictly with all such regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export, or import Software.
This License shall be governed by and construed in accordance with the laws of the State of California, United States of America, as if performed wholly within the state and without giving effect to the principles of conflict of law. If any portion hereof is found to be void or unenforceable, the remaining provisions of this License shall remain in full force and effect. This License constitutes the entire License between the parties with respect to the use of the Software. Restricted Rights – TDS ‘s software is provided to non-DOD agencies with RESTRICTED RIGHTS and its supporting documentation is provided with LIMITED RIGHTS. Use, duplication, or disclosure by the Government is subject to the restrictions as set forth in subparagraph “C” of the Commercial Computer Software – Restricted Rights clause at FAR 52.227-19. In the event the sale is to a DOD agency, the government’s rights in software, supporting documentation, and technical data are governed by the restrictions in the Technical Data Commercial Items clause at DFARS 252.227-7015 and DFARS 227.7202. Manufacturer is TDS, Inc., 15 W 26TH ST, FL 6, NEW YORK, NY, 10010-1027 (212) 279-7600.