THIS SOFTWARE END USER LICENSE AGREEMENT (“EULA”) IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR, IF PURCHASED OR ACQUIRED BY OR FOR AN ENTITY, THE ENTITY) AND COMPUTER STUFF LLC, A CALIFORNIA LIMITED LIABILITY COMPANY. IT PROVIDES A LICENSE TO USE THIS SOFTWARE AND CONTAINS WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE YOU ARE INDICATING YOUR ASSENT TO THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING TERMS, DO NOT DOWNLOAD OR INSTALL THE SOFTWARE, DISCONTINUE ITS USE IMMEDIATELY AND DESTROY ALL COPIES IN YOUR POSSESSION.
a) “Licensor” means Computer Stuff LLC, a California limited liability company, or its assignee.
b) “Software” means the executable code of Tasklist for Microsoft Outlook, additional tools, libraries, source files, header files, data files, any updates or error corrections provided by Licensor, any user manuals, guides, printed materials, on-line or electronic documentation.
c) “License Key” means a serial number issued to you by Licensor to activate and use the Software.
d) “Named User” is an individual authorized by You to use the Software through the assignment of a single user ID, regardless of whether or not the individual is using the Software at any given time. A non-human operated device is counted as a User in addition to all individuals authorized to use the Software, if such device can access the Software.
e) “Maintenance Plan” is a time-limited right to technical support and Software updates and upgrades. Technical support only covers issues or questions resulting directly out of the operation of the Software. Licensor will not provide you with generic consultation, assistance, or advice under any other circumstances.
2. LICENSE GRANTS
2.2 This Software is licensed, not sold. Licensor grants you a limited, non-exclusive, non-transferable license to:
a) use the Software on a Named User basis, meaning specific individuals are authorized to access the Software and the total number of named users may not exceed the total number licensed by You.
b) copy the Software in machine-readable form solely for archival and backup purposes.
2.3 The Named User of the Software may install and use the Software on up to three computers (including operating systems and Virtual Machine Environments).
3. LICENSE RESTRICTIONS
3.1 You shall undertake any necessary steps to protect the Software against unauthorized use.
3.2 You may not alter, merge, modify, adapt or translate the Software, or decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form.
3.3 You may not sell, rent, lease, sublicense, transfer, resell for profit or otherwise distribute the Software or any part thereof.
3.4 You may not modify the Software or create derivative works based upon the Software.
3.5 You may not remove or obscure any copyright and trademark notices relating to the Software.
4. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
4.1 This Agreement gives you limited rights to use the Software. Licensor retains all rights, title and interest in and to the Software and all copies thereof, including copyrights, patents, trade secret rights, trademarks and other intellectual property rights. All rights not specifically granted in this Agreement, including International Copyrights, are reserved by Licensor. The structure, organization and code of the Software are valuable trade secrets and confidential information of Licensor.
5. LIMITATION OF LIABILITY
5.1 Licensor shall not be liable for incidental, consequential or indirect damages of any kind. Licensor’s cumulative liability to You or any other party for any loss or damages resulting from any claims, demands, or actions arising out of or relating to this Agreement or the use of the Software shall not exceed the license fee, if any, paid to Licensor for use of the Software during the twelve (12) months preceding the date of the event giving rise to the claim, or the sum of One Hundred Dollars ($100), whichever is greater.
6. PATENT AND COPYRIGHT INDEMNITY
6.1 In the event the Software is found to infringe the proprietary rights of a third party, Licensor will have the option, at its expense, to
a) modify the Software to cause it to become non-infringing;
b) substitute the Software with other Software reasonably suitable to You, or
c) terminate the license for the infringing Software and refund any license fees paid for the Software.
6.2 Licensor will have no liability for any claim of infringement based on
a) code contained within the Software which was not created by Licensor;
b) use of a superseded or altered release of the Software, if such infringement would have been avoided by the use of a current, unaltered release of the Software that Licensor provides to You, or
c) the combination, operation, or use of any Software furnished under this Agreement with programs or data not furnished by Licensor if such infringement would have been avoided by the use of the Software without such programs or data.
7. LIMITED WARRANTIES
7.1 THE SOFTWARE IS PROVIDED “AS IS”. LICENSOR MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITATION, YOU ASSUME SOLE RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS AND FOR THE INSTALLATION, USE AND RESULTS OBTAINED FROM THE SOFTWARE. LICENSOR MAKES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES. IN PARTICULAR, THE SOFTWARE IS NOT DESIGNED FOR USE IN ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE. LICENSOR EXPRESSLY DISCLAIMS ANY WARRANTY OF FITNESS FOR MISSION CRITICAL OR HIGH-RISK ACTIVITIES.
7.2 Licensor cannot guarantee that the Software will work at all times. If you change your operating system or your version of Microsoft Outlook, the software may not work any more.
7.3 Licensor reserves the right at any time to cease the support of the Software and to alter prospectively the prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the Software.
8.1 Licensor may offer support through its web site. However, your license does not entitle you to any support.
9. MISSION-CRITICAL ACTIVITIES
9.1 The Software is not fault-tolerant and is not designed, manufactured or intended for use or for purposes requiring fail-safe performance, in which the failure of the Software could lead to economic loss or personal injury. Licensor specifically disclaims any express or implied warranty of fitness for any such activities.
10.1 If any provision hereof shall be held illegal, invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid and enforceable, and the legality, validity and enforceability of all other provisions of this Agreement shall not be affected.
11. GOVERNING LAW
11.1 This Agreement is to be governed by and construed in accordance with the internal laws of the State of California. Subject to the provisions of Section 12, any suit or claim arising from this Agreement shall be brought and maintained in the courts of the State of California or the United States located in San Francisco, California, and You hereby submit to the personal jurisdiction of such courts. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
12. DISPUTE RESOLUTION
12.1 ARBITRATION OF DISPUTES. ANY CLAIM OR DISPUTE BETWEEN YOU AND COMPUTER STUFF, LLC, OR ANY OF ITS MEMBERS, MANAGERS, EMPLOYEES, CONTRACTORS OR AGENTS IN ANY WAY RELATED TO OR CONCERNING THIS AGREEMENT, OR THE PROVISION OF SERVICES OR PRODUCTS TO YOU, SHALL BE SUBMITTED TO FINAL, BINDING ARBITRATION BEFORE THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN SAN FRANCISCO, CALIFORNIA. THIS AGREEMENT TO ARBITRATE ALSO REQUIRES YOU TO ARBITRATE CLAIMS AGAINST OTHER PARTIES RELATING TO SERVICES OR PRODUCTS PROVIDED OR BILLED TO YOU, INCLUDING SUPPLIERS OF SERVICES AND PRODUCTS AND OUR PARTNERS AND RETAIL DEALERS, IF YOU ALSO ASSERT CLAIMS AGAINST US IN THE SAME PROCEEDING.
12.2 FEDERAL ARBITRATION LAW APPLIES. YOU AND WE ACKNOWLEDGE THAT THE AGREEMENT AFFECTS INTERSTATE COMMERCE AND THAT THE FEDERAL ARBITRATION ACT AND FEDERAL ARBITRATION LAW APPLY TO ARBITRATIONS UNDER THIS AGREEMENT.
12.3 OPPORTUNITY TO RESOLVE DISPUTES. BEFORE INSTITUTING ARBITRATION OR ANY LEGAL ACTION AGAINST US, YOU AGREE TO PROVIDE US WITH AN OPPORTUNITY TO RESOLVE YOUR CLAIM BY SENDING A WRITTEN DESCRIPTION OF YOUR CLAIM TO US AT: COMPUTER STUFF, LLC, 318 ORCHID DRIVE, SAN RAFAEL, CA 94903, AND NEGOTIATING WITH US IN GOOD FAITH REGARDING YOUR CLAIM. IF WE ARE NOT ABLE TO RESOLVE YOUR CLAIM WITHIN THIRTY (30) DAYS OF RECEIPT OF YOUR NOTICE, THEN YOU OR WE, INSTEAD OF SUING IN COURT, MAY INITIATE ARBITRATION PROCEEDINGS WITH THE AAA.
12.4 ARBITRATION RULES. ARBITRATION WILL BE CONDUCTED UNDER THE AAA’S CONSUMER ARBITRATION RULES, WHICH ARE AVAILABLE BY CALLING THE AAA AT 800-778-7879 OR VISITING ITS WEB SITE AT https://www.adr.org/sites/default/files/Consumer_Rules_Web_0.pdf.
12.5 ARBITRATION FEES. THE AAA HAS A FEE SCHEDULE FOR ARBITRATIONS. YOU WILL PAY YOUR SHARE OF THE ARBITRATOR’S FEES AND ADMINISTRATIVE EXPENSES EXCEPT THAT YOUR SHARE OF THE ARBITRATOR’S FEES AND ADMINISTRATIVE EXPENSES WILL NOT EXCEED THE AMOUNT YOU WOULD HAVE HAD TO PAY TO FILE A CIVIL COURT COMPLAINT FOR YOUR CLAIM. YOU AND WE AGREE TO PAY OUR OWN OTHER FEES, COSTS, AND EXPENSES, INCLUDING THOSE FOR ANY ATTORNEYS, EXPERTS, AND WITNESSES.
12.6 LIMITATIONS ON AWARD. AN ARBITRATOR MAY ONLY AWARD AS MUCH AND THE TYPE OF RELIEF AS A COURT WITH JURISDICTION IN THE PLACE OF ARBITRATION THAT IS CONSISTENT WITH LAW AND THIS AGREEMENT. AN ARBITRATOR MAY ISSUE INJUNCTIVE OR DECLARATORY RELIEF BUT ONLY APPLYING TO YOU AND US AND NOT TO ANY OTHER CUSTOMER OR THIRD PARTY.
12.7 EXCEPTION. AS A LIMITED EXCEPTION TO THE AGREEMENT TO ARBITRATE, YOU AND WE AGREE THAT YOU MAY MAKE CLAIMS TO SMALL CLAIMS COURT, IF YOUR CLAIMS QUALIFY FOR HEARING BY SUCH COURT.
12.8 NO CLASS ACTIONS. YOU AGREE THAT YOU MUST ASSERT ANY CLAIM AGAINST COMPUTER STUFF, LLC INDIVIDUALLY, AND THAT YOUR CLAIMS MAY NOT BE COMBINED WITH ANYONE ELSE’S CLAIMS IN A CLASS ACTION OR ANY OTHER KIND OF JOINT OR REPRESENTATIVE ACTION, WHETHER BEFORE A COURT OR AN ARBITRATOR. IF A COURT OR ARBITRATOR DETERMINES THAT YOUR WAIVER OF ANY ABILITY TO PARTICIPATE IN CLASS OR REPRESENTATIVE ACTIONS IS UNENFORCEABLE, THE ARBITRATION AGREEMENT SET FORTH ABOVE WILL NOT APPLY, AND YOU AND WE AGREE THAT SUCH CLAIMS WILL BE RESOLVED BY A COURT OF APPROPRIATE JURISDICTION, OTHER THAN A SMALL CLAIMS COURT.
12. 9 LIMITED TIME FOR BRINGING CLAIMS. BOTH YOU AND WE AGREE THAT NO SUIT, ARBITRATION OR OTHER LEGAL PROCEEDING CONNECTED WITH THIS AGREEMENT OR YOUR USE OF THE IBEAT PRODUCT OR SERVICE MAY BE BROUGHT MORE THAN ONE YEAR AFTER THE INCIDENT GIVING RISE TO THE CLAIM HAS OCCURRED.
12.10 NO JURY TRIAL. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE AND YOU WAIVE OUR RIGHTS TO A JURY TRIAL, AND AGREE THAT ANY CLAIM ARISING OUT OF OR CONNECTED WITH YOUR USE OF THE iBEAT DEVICE OR SERVICE TO WHICH THE ARBITRATION PROVISIONS OF THIS AGREEMENT ARE FOR ANY REASON HELD NOT TO APPLY, WILL BE DETERMINED BY A JUDGE OF THE APPROPRIATE COURT.
13. TERM AND TERMINATION
13.1 Your license to use the Software continues until terminated. This license will terminate automatically if you fail to comply with any term hereof. No notice shall be required from Licensor to effect such termination. You may also terminate this Agreement at any time by notifying Licensor in writing of termination. On termination, you must destroy all copies of the Software. Your obligation to pay accrued charges and fees shall survive any termination of this Agreement.
14.1 Neither this Agreement nor any rights granted hereunder may be sold, leased, assigned, or otherwise transferred, in whole or in part, by you, whether voluntary or by operation of law. Any such attempted assignment shall be void and of no effect without the prior written consent of Licensor. Licensor may assign this Agreement without your consent.
15. ENTIRE AGREEMENT
15.1 This Agreement contains the entire agreement between Licensor and You related to the software and supersedes all prior agreements and understandings, whether oral or written. It may be amended only by a writing executed by both parties.