Tolteq GROUP, LLC
END USER LICENSE AGREEMENT
NOTICE TO END USER: CAREFULLY READ THE FOLLOWING LEGAL AGREEMENT. USE OF THE TOLTEQ GROUP, LLC (“Tolteq”) SOFTWARE, FIRMWARE (INCLUDING BOOT ROM CODE) AND ANY ACCOMPANYING WRITTEN OR ELECTRONIC DOCUMENTATION (COLLECTIVELY, THE “SOFTWARE”) PROVIDED OR ASSOCIATED WITH THIS END USER LICENSE AGREEMENT (THIS “AGREEMENT”) CONSTITUTES YOUR UNEQUIVOCAL ACCEPTANCE OF THE TERMS OF THIS AGREEMENT. ADDITIONALLY, IF YOU ARE ACCESSING THE SOFTWARE ELECTRONICALLY, SIGNIFY YOUR AGREEMENT TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY CLICKING THE “AGREE/ACCEPT” BUTTON. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE AS PROVIDED FOR IN THIS AGREEMENT, DO NOT USE THE SOFTWARE AND CLICK “DISAGREE/DECLINE” BUTTON.
1. General. The Software is licensed, not sold to you by Tolteq for use only under the terms of this Agreement. Tolteq reserves all rights not expressly granted to you. The rights granted herein are limited to Tolteq’s and its licensors’ intellectual property rights in the Software and do not include any other patents or intellectual property rights. The terms of this Agreement will govern any Software upgrades, versions and supplements that Tolteq may distribute, unless a separate license agreement is provided with such upgrade, version or supplement.
2. Tolteq License Grant and Restrictions. Subject to the terms and conditions of this Agreement, Tolteq grants to you, and you as licensee (“Licensee”) accept, a non-transferable, non-exclusive, royalty-free license to use the Software solely in connection with or related to Licensee’s use of any Tolteq manufactured hardware devices (“Intended Use”). Additionally, Licensee is limited to installing the Software and associated updates on only one unique computer. Additional installations of such Software and updates are strictly prohibited.
Licensee acknowledges that it has no rights to distribute or otherwise disclose, display, publicly perform or transfer the Software to any third party via any means (including without limitation by electronic, magnetic, wireless, tape relay or other means, or via loan, lease or sublicense of any nature), or to modify or create derivative works of the Software. Licensee shall have no rights to use the Software in a computer service business, service bureau arrangement, network, time-sharing set-up, or any manner other than the Intended Use. All rights not granted to Licensee in the Software shall remain with and are expressly reserved by Tolteq.
3. Intellectual Property Rights. Licensee acknowledges that no title to the intellectual property in the Software is transferred to Licensee under this Agreement. Licensee further acknowledges that title and full ownership rights to the Software and all intellectual property rights will remain the exclusive property of Tolteq and/or its third party licensors, and Licensee will not acquire any rights to the Software except as expressly set forth above. Licensee agrees not to remove any trademark, copyright or other proprietary notices on or in any portion of the Software as delivered, and to reproduce such notices on and in all authorized copies.
4. Licensee License Grant. Licensee grants to Tolteq a non-transferable, non-exclusive, royalty-free license to use to collect, store, reproduce, aggregate, adapt, modify, publish and distribute any Licensee data that is generated, stored and/or transmitted to Tolteq by the Software and/or any Tolteq manufactured hardware device when the Software connects to the Internet or the Tolteq manufactured hardware device is returned to Tolteq for servicing.
5. Prohibited Acts; Termination. Licensee agrees that Licensee will not attempt, and Licensee will use its best efforts to prevent its employees and contractors from attempting, to reverse compile, modify, translate, or disassemble the Software in whole or in part. To the extent that the prohibition set forth in this Section 5 violates applicable law, Licensee will provide Tolteq with 90 days written notice of its intent to act in contravention of the terms of this Section 5. Tolteq reserves the right to terminate this Agreement if Licensee defaults on or otherwise violates any term of this Agreement; upon such a violation, Licensee shall return all copies of the Software, retaining no electronic or physical copies of the Software, and Licensee shall indemnify and hold Tolteq entirely harmless from and against any damages, costs, liabilities or other expenses of any kind that Tolteq may incur as a result of Licensee’s breach of the terms of this Agreement.
6. No Warranty. Tolteq and Licensee agree that the Software is provided “AS IS” and that Tolteq makes no warranty as to the Software or its performance. The Software may not be fully functional. Licensee assumes the entire risk as to the quality and performance of the Software. Additionally, Tolteq DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, RELATED TO THE SOFTWARE, ITS USE OR ANY INABILITY TO USE IT AND THE RESULTS OF ITS USE. Tolteq DOES NOT WARRANT THAT USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE SOFTWARE WILL MEET ANY OR ALL OF LICENSEE’S NEEDS
7. No Liability for Consequential Damages. IN NO EVENT SHALL Tolteq BE LIABLE TO LICENSEE FOR ANY CONSEQUENTIAL, PUNITIVE, EXEMPLARY, SPECIAL, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND INCLUDING WITHOUT LIMITATION LOSS OF DATA, COST OF PROCUREMENT OF REPLACEMENT GOODS AND SERVICES, COVER, OR RELIANCE DAMAGES, ARISING OUT OF THE DELIVERY, USE OR PERFORMANCE OF THE SOFTWARE, EVEN IF Tolteq HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES AGREE THAT THE PROVISIONS OF THIS SECTION SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDIES HEREUNDER.
8. Export. Licensee agrees that Licensee will not export or re-export the Software without the appropriate United States or foreign government licenses and authorizations.
9. Severability. If any term or provision of this Agreement should be declared invalid by a court of competent jurisdiction, then the remaining terms and provisions shall be unimpaired, and the invalid term or provision shall be replaced by such valid term or provision as comes closest to the intention underlying the invalid term or provision.
10. Governing Law; Venue. This Agreement will be governed by the laws of the State of Texas, without regard to the provisions on conflicts and choice of law. The application of the U.N. Convention on the International Sale of Goods is expressly disclaimed. Licensee and Tolteq acknowledge and agree that this Agreement and the transactions contemplated by this and any other agreement between the parties is performable in Williamson County, Texas. The courts located in the state of Texas, counties of Travis or Williamson, shall have exclusive jurisdiction of all matters relating to or arising out of this Agreement, and Licensee hereby consents to the personal jurisdiction of such courts and waives any right to claim that any such court is an inconvenient forum.
11. Assignment. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns, provided, however, Licensee shall not assign this Agreement or any other duty, obligation or right arising hereunder without the prior written approval of Tolteq.
12. Third Party Beneficiaries. Licensee acknowledges that certain portions of the Software may have been licensed to Tolteq by third parties, and Licensee further acknowledges and agrees that such third parties are beneficiaries of the terms of this Agreement, and shall have the right to enforce the terms of this Agreement.
13. Entire Agreement. This is the entire agreement between Licensee and Tolteq which supersedes any prior or contemporaneous agreement, whether written or oral, relating to the subject matter of this Agreement. No subsequent alteration, waiver, amendment, change or addition to this Agreement (“Amendment”) will be binding and valid unless in writing and signed by an authorized representative of Tolteq and Licensee, and then such Amendment shall be effective only in the specific instance and for the specific purpose stated.
Should Licensee have any questions concerning this Agreement, or if Licensee desires to contact Tolteq for any reason, all communications should be directed to:
Tolteq Group, LLC
PO Box 4207
Cedar Park, TX 78630
tel: (512) 331-4241