IMPORTANT: READ CAREFULLY
This End User License Agreement (this "EULA") contains the terms and conditions that govern Your use of GrapeCity, Inc. ("GC") Wyn Enterprise SOFTWARE enclosed or otherwise accompanied herewith (individually and collectively, the "SOFTWARE") (as defined below) and imposes material limitations on Your License. You should read this EULA carefully and treat it as valuable property.
This EULA is a Legally Binding Agreement between You and GC. By signifying Your acceptance of the terms of this EULA, You intend to be, and hereby are, legally bound to this EULA to the same extent as if GC and You physically signed this EULA. By installing, copying, or otherwise using the SOFTWARE, You agree to be bound by all the terms and conditions of this EULA. You may use your standard form of purchase order or similar document in ordering the SOFTWARE; provided, however, that all use of the SOFTWARE shall be subject solely to the terms and conditions of this EULA. You and GC understand and agree that the terms and conditions of this EULA shall control over any additional or different terms contained in any purchase order, confirmation, invoice or similar document, even if accepted in writing by both You and GC. If You are acting as an agent of a company or another legal person, such as an officer or other employee acting for Your employer, then "You" and "Your" mean Your principal, the entity or other legal person for whom You are acting. However, importantly, even if You are acting as an agent for another, You may still be personally liable for violation of federal and State laws, such as copyright infringement.
If You do not agree to all of such terms and conditions, You may not install or use the SOFTWARE. If You do not agree with any of the terms herewith and, for whatever reason, installation has begun or has been completed, You should cancel installation or un-install the SOFTWARE, as the case may be. Furthermore, You should promptly return the SOFTWARE to the place of business from which You obtained it in accordance with any return policies of such place of business.
The following terms have the respective meanings as used in this EULA:
The following section applies to all individual software product types and versions referenced herein.
General Grant. Subject to the terms and conditions of this EULA, You are hereby granted a limited, non-exclusive right to install and use the SOFTWARE in a manner consistent with its documentation and the license purchased by You. Subject to the terms and conditions of this EULA, you are licensed to use the SOFTWARE on a Network Server Basis.
License to Develop. You are licensed to install the SOFTWARE onto one (1) Network Server and use the SOFTWARE to create and deploy Web-based Applications on one (1) Network Server. You are licensed to either: (a) copy the SOFTWARE solely for backup or archival purposes; or (b) install the SOFTWARE on a single Network Server, provided you keep the original solely for backup or archival purposes.
License to Deploy. In order for You to be licensed to create or deploy Web-based Applications in more than one Network Server, you must purchase one (1) additional SOFTWARE license for each additional Network Server.
Limitations. You are not licensed to directly or indirectly: (i) sell, lease, redistribute or transfer any of the Licensed SOFTWARE and Documentation; (ii) modify, translate, reverse engineer (except to the limited extent permitted by law), decompile, disassemble, create derivative works based on, sublicense, or distribute any of the Licensed SOFTWARE and/or Documentation; (iii) rent or lease any rights in or to any of the Licensed SOFTWARE and/or Documentation in any form to any person; (iv) use any Licensed SOFTWARE and/or Documentation for the benefit of any third parties in any way; (v) remove, alter or obscure any proprietary or copyright notice, labels, or marks on or within the Licensed SOFTWARE and/or Documentation or any copies thereof; or (vi) disable or circumvent any access control or related security measure, process or procedure established with respect to the Licensed SOFTWARE and/or Documentation or any other part thereof. You are solely responsible for all use made of the SOFTWARE, any downloads, installations and other usage of the SOFTWARE and Documentation as well as for the compliance with the terms of this Agreement.
LICENSE PROHIBITED USE. Subject to the terms and conditions of this EULA, You are hereby expressly prohibited from the use of the SOFTWARE in the following manner:
You may not distribute, bundle, wrap or subclass the SOFTWARE as Developed Software which, when used in a "design-time" development environment, exposes the programmatic interface of the SOFTWARE.
You may not enter into any outsourcing agreements or by any other means allow a third party to either install or execute the SOFTWARE on any computer outside of Your business or on any networks without GC's prior written consent.
In all cases, (a) You may not use GC's name, logo, or trademarks to market Your Developed Software without the express written consent of GC; (b) You must include the following GC copyright notice in Your Developed Software documentation and/or in the "About Box" of Your Developed Software, and wherever the copyright/rights notice is located in the Developed Software ("Portions Copyright © GrapeCity, Inc. 1987-2019. All Rights Reserved."); (c) You agree to indemnify, hold harmless, and defend GC, its suppliers and resellers, from and against any claims or lawsuits, including attorney's fees that may arise from the use or distribution of Your Developed Software; (d) You may use the SOFTWARE only to create Developed Software that is significantly different than the SOFTWARE.
You agree that GC may audit Your use of the SOFTWARE for compliance with these terms at any time, upon reasonable notice. In the event that such audit reveals any use of the SOFTWARE other than in full compliance with the terms of this EULA, You shall reimburse GC for all reasonable expenses related to such audit in addition to any other liabilities You may incur as a result of such non-compliance.
Specific Product Limitations. The SOFTWARE is comprised of one (1) Wyn Enterprise Solutions Server Module and multiple Workers and Plug-Ins. The SOFTWARE covers the usage of all components included in the installation of the SOFTWARE including Plug-Ins, for which an additional fee may be required. Subject to the terms and conditions set forth in this EULA, the SOFTWARE is licensed as a Network Server License; in which case, You are licensed to install the SOFTWARE onto one (1) Network Server, so long as the Wyn Enterprise Solutions Server module is installed onto one (1) Network Server and the Worker(s) installed onto additional Network Servers.
You may also use the SOFTWARE to create and deploy Web-based Applications in accordance with the terms referenced herein. You are licensed to embed the SOFTWARE in your web application, subject to the condition that Your end users' license agreement protect GC's intellectual property rights on terms that are no less protective than those referenced herein.
Evaluation and/or Trial License. If you are using an "evaluation or trial license" or similar version, specifically designated as such by GC on its website or otherwise, then the Licenses are limited as follows:
You are licensed to use the SOFTWARE for a period of thirty (30) days counted from the day of installation ("Evaluation Period").
Upon completion of the Evaluation Period, You shall either (i) delete the SOFTWARE from the computer containing the installation, or (ii) obtain a paid license of the SOFTWARE from GC or any of its resellers or distributors; and;
Any Software developed with the Evaluation License may not be distributed or used for any commercial purpose.
SERIAL KEY. Notwithstanding anything in this EULA to the contrary, along with Your license, You will be issued a unique Serial Key for the activation of the SOFTWARE. The Serial Key is subject to the restrictions set forth in this EULA and may not be disclosed or distributed either with Your Developed Software or in any other way. The disclosure or distribution of the Serial Key constitutes a breach of this EULA, the effect of which shall be the immediate termination and revocation of all the rights granted herein.
PRODUCT ACTIVATION. Product activation is based on the exchange of information between Your computer and GC. None of this information contains personally identifiable information nor can they be used to identify any personal information about You or any information You store in Your computer.
You may need to activate the Licensed SOFTWARE through the use of the Internet, email or telephone; toll charges may apply. You may need to re-activate the Licensed SOFTWARE if You modify Your computer or server hardware or if You have installed it on a different computer or server; in some cases, the number of activations allowed may be limited and You will have to contact GC for clearance. .
YOU ACKNOWLEDGE AND UNDERSTAND THAT THERE ARE TECHNOLOGICAL MEASURES IN THE SOFTWARE THAT ARE DESIGNED TO ENSURE YOU DO NOT EXCEED YOUR LIMITED NUMBER OF ACTIVATIONS AND/OR INSTALLATIONS AUTHORIZED FOR YOUR PAID LICENSE IN EFFORT TO PREVENT UNLICENSED OR ILLEGAL USE OF THE SOFTWARE. NONE OF THIS INFORMATION CONTAINS PERSONALLY IDENTIFIABLE INFORMATION NOR CAN IT BE USED TO IDENTIFY ANY PERSONAL INFORMATION ABOUT YOU OR ANY INFORMATION YOU STORE IN YOUR COMPUTER. YOU AGREE THAT GC MAY USE SUCH MEASURES AND YOU AGREE TO FOLLOW ANY REQUIREMENTS REGARDING SUCH TECHNOLOGICAL MEASURES. YOU ACKNOWLEDGE AND AGREE THAT THE SOFTWARE WILL CEASE TO FUNCTION UNLESS AND UNTIL YOU ACTIVATE THE APPLICABLE SOFTWARE SERIAL NUMBER.
You agree to pay all fees required to obtain a License to use the SOFTWARE. Unless otherwise agreed in writing, You shall promptly pay all fees required for Your License. GC reserves the right to terminate this EULA and Your License, upon Your failure to pay all fees required. If additional licenses are required for the use of the SOFTWARE, You agree to pay the additional fees required.
You acknowledge that the rights granted to You under this EULA are conditional on Your timely payment of the License Fee payable to GC (or it's Reseller) in connection with the Agreement.
You agree to pay to GC: (a) the License Fee as notified by GC (or its Reseller) at the time of the initial purchase of the License; and (b) the License Fee as notified by GC (or its reseller) on or about the applicable Renewal Date; in each case together with any/all applicable taxes or other duties or levies.
In the case of Trial Licenses, the fact that no License Fee may be payable shall not be construed as a waiver by GC of any right or remedy available to it in relation to any breach by You of this EULA or the Agreement, or of any other right or remedy arising under applicable law, all of which are expressly reserved.
The return option to GC is only available to the original purchaser of the unused SOFTWARE. To return the SOFTWARE directly to GC, You must first request to return the SOFTWARE within thirty (30) days from the date of purchase. Secondly, you must receive a Return Authorization Number from GC and return to GC the SOFTWARE purchased.
To return the SOFTWARE to your reseller/distributor, You must comply with the return policies of Your reseller/distributor as You agreed at the point of purchase. If the place of business from which You purchased the SOFTWARE does not honor a full refund for a period of thirty (30) days from the date of purchase, You may then return the SOFTWARE directly to GC for a refund provided that such returns is authorized within the same thirty (30) day time period.
Copyright. You agree that all right, title, and interest in and to the SOFTWARE (including, but not limited to, any images, photographs, animations, video, audio, music, text, and "applets" incorporated into the SOFTWARE), and any copies of the SOFTWARE, and any copyrights and other intellectual properties therein or related thereto are owned exclusively by GC, except to the limited extent that GC may be the rightful license holder of certain third-party technologies incorporated into the SOFTWARE. The SOFTWARE is protected by copyright laws and international treaty provisions. The SOFTWARE is licensed to You, not sold to You. GC reserves all rights not otherwise expressly and specifically granted to You in this EULA.
Backups. You may make a copy of the SOFTWARE solely for backup or archival purposes. Notwithstanding the foregoing, You may not copy the printed Documentation.
General Limitations. You may not reverse engineer, decompile, or disassemble the SOFTWARE or any of its constituents, except and only to the extent that applicable law expressly permits such activity notwithstanding this limitation.
SOFTWARE Transfers. You may not rent or lease the SOFTWARE. You may permanently transfer all of Your rights under the EULA, provided that You retain no copies, that You transfer all the SOFTWARE (including all component parts, the media and printed materials, any updates, upgrades, this EULA and, if applicable, the Certificate of Authenticity), and that the transferee agrees to be bound by the terms of this EULA. If the SOFTWARE is an update or upgrade, any transfer must include all prior versions of the SOFTWARE.
You acknowledge that the SOFTWARE is of U.S. origin. You acknowledge that the license and distribution of the SOFTWARE is subject to the export control laws and regulations of the United States of America, and any amendments thereof, which restrict exports and re-exports of the SOFTWARE, technical data, and direct products of technical data, including services and Developed Software. You agree that You will not export or re-export the SOFTWARE or any Developed Software, or any information, documentation and/or printed materials related thereto, directly or indirectly, without first obtaining permission to do so as required from the United States of America Department of Commerce's Bureau of Industry and Security ("BIS"), or other appropriate governmental agencies, to any countries, end-users, or for any end-uses that are restricted by U.S. export laws and regulations, and any amendments thereof, which include, but are not limited to: Restricted Countries, Restricted End-Users, and Restricted End-Uses, as defined by BIS.
These restrictions change from time to time. You represent and warrant that neither BIS nor any other United States federal agency has suspended, revoked or denied Your export privileges. GC acknowledges that it shall use reasonable efforts to supply You with all reasonably necessary information regarding the SOFTWARE and its business to enable You to fully comply with the provisions of this Section. If You have any questions regarding Your obligations under United States of America export regulations, You should contact the Bureau of Industry and Security, United States Department of Commerce, Exporter Counseling Division, Washington DC. U.S.A. (202) 482-4811,http://www.bis.doc.gov.
U.S. Government Restricted Rights. The SOFTWARE and Documentation are provided with RESTRICTED RIGHTS. You will comply with any requirements of the Government to obtain such RESTRICTED RIGHTS protection, including without limitation, the placement of any restrictive legends on the SOFTWARE, and any license agreement used in connection with the distribution of the SOFTWARE. Manufacturer is GrapeCity, Inc., 201 South Highland Avenue, 3rd Floor, Pittsburgh, Pennsylvania 15206 USA. For solicitations issued by the Government on or after December 1, 1995 and the Department of Defense on or after September 29, 1995, the only rights provided in the SOFTWARE and Documentation provided herein shall be those contained in this EULA. Under no circumstances shall GC be obligated to comply with any Governmental requirements regarding the submission of or the request for exemption from submission of cost or pricing data or cost accounting requirements. For any distribution of the SOFTWARE that would require compliance by GC with the Government's requirements relating to cost or pricing data or cost accounting requirements, You must obtain an appropriate waiver or exemption from such requirements for the benefit of GC from the appropriate Government authority before the distribution and/or license of the SOFTWARE to the Government.
GC HEREBY REPRESENTS THAT THE SOFTWARE LICENSED HEREWITH IS ONLY INTENDED TO RUN AND OPERATE IN ACCORDANCE WITH ITS DOCUMENTATION. THIS LIMITED WARRANTY SHALL BE NULL AND VOID IF FAILURE OF THE SOFTWARE TO PERFORM SUBSTANTIALLY AS DESCRIBED IN ITS DOCUMENTATION HAS RESULTED FROM AN ACCIDENT, OR THE ABUSE OR MISAPPLCATION OF THE SOFTWARE.
Data Backup. You understand that data can be inadvertently lost, corrupted or breached, and agree that you are wholly responsible for the backup of any and all data, software, information or other files stored on your device, including all disks and drives, or other associated devices (collectively, "Your Data"). To the maximum extent permitted by law, GC is not responsible or liable for any disclosure, loss or corruption of Your Data. YOU BEAR SOLE RESPONSIBILITY AND ALL LIABILITY FOR ANY LOSS INCURRED DUE TO FAILURE OF THE SOFTWARE PRODUCT TO MEET YOUR REQUIREMENTS. GC WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE FOR THE LOSS OF DATA ON ANY COMPUTER OR INFORMATION STORAGE DEVICE
GC's entire liability and Your exclusive remedy under this EULA shall be, at GC's sole option, either (a) return of the price paid for the SOFTWARE; (b) repair the SOFTWARE through updates distributed online or otherwise in GC's discretion; or (c) replace the SOFTWARE with SOFTWARE that substantially performs as described in the Documentation, provided that You return the SOFTWARE in the same manner as provided in Section I.2 for return of the SOFTWARE for non-acceptance of this EULA. Any media for any repaired or replacement SOFTWARE will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. THESE REMEDIES ARE NOT AVAILABLE OUTSIDE OF THE UNITED STATES OF AMERICA. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL GC BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFIT, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OS YOUR DATA, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF GC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IN CERTAIN CASES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
ENTIRE AGREEMENT. This EULA (including any addendum to this EULA included with the SOFTWARE) is the final, complete and exclusive statement of the entire agreement between You and GC relating to the SOFTWARE. This EULA supersedes any prior and contemporaneous proposals, purchase orders, advertisements, and all other communications in relation to the subject matter of this EULA, whether oral or written. No terms or conditions, other than those contained herein, and no other understanding or agreement which in any way modifies these terms and conditions, shall be binding upon the parties unless entered into in writing executed between the parties, or by other non-oral manner of agreement whereby the parties objectively and definitively act in a manner to be bound (such as by continuing with an installation of the SOFTWARE, etc.). Employees, agents and other representatives of GC are not permitted to orally modify this EULA.
TERMINATION. Without prejudice to any other rights it may have, GC may terminate this EULA and the Licenses if You fail to comply with the terms and conditions contained herein. In such an event, You must destroy all copies of the SOFTWARE and all of its component parts.
STATUTE OF LIMITATIONS. You agree that any action in relation to an alleged breach of this EULA shall be commenced within one year of the date of the breach, without regard to the date the breach is discovered. Any action not brought within that one-year time period shall be barred, without regard to any other limitations period set forth by law or statute.
YOU INDEMNIFY GC. You agree to indemnify, hold harmless, and defend GC and its suppliers and resellers from and against any and all claims or lawsuits, including attorney's fees, which arise out of or result from Your distribution of Your Developed Software, Your Developed Web Server Software or from Your breach of any of the terms and conditions of this EULA.
INTERPRETATION OF THIS EULA. If for any reason a court of competent jurisdiction finds any provision of this EULA, or any portion thereof, to be unenforceable, that provision of this EULA will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this EULA will continue in full force and effect. Formatives of defined terms shall have the same meaning of the defined term. Failure by either party to enforce any provision of this EULA will not be deemed a waiver of future enforcement of that or any other provision. Except as otherwise required or superseded by law, this EULA is governed by the laws of the Commonwealth of Pennsylvania, without regard to its conflict of laws principles. The parties consent to the personal jurisdiction and venue of the Commonwealth of Pennsylvania, in the County of Allegheny, and agree that any legal proceedings arising out of this EULA shall be conducted solely in such State. If the SOFTWARE was acquired outside the United States, then local law may apply. However, the application of the U.N. Convention of Contracts for the International Sale of Goods is expressly excluded. The original version of this EULA is the English language version. Any discrepancy or conflict that may arise between the English version of this EULA and those written in any other language shall be resolved and interpreted with reference to the English version, which will always control.