End User License Agreement (EULA) for Eye&Telescope 3.0
OCULUM-VERLAG (THE "PUBLISHER") IS WILLING TO LICENSE EYE & TELESCOPE ASTRONOMY SOFTWARE (THE "SOFTWARE") ONLY ON THE CONDITION THAT THE USER OF THE PRODUCT (THE "LICENSEE") ACCEPTS ALL OF THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (THE "AGREEMENT"). BY OPENING, INSTALLING, USING, ACCESSING OR MANIPULATING THE PRODUCT, LICENSEE ACKNOWLEDGES THAT LICENSEE HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY IT. IF LICENSEE DOES NOT AGREE TO ANY OF THE TERMS BELOW, THE PUBLISHER IS UNWILLING TO LICENSE THE PRODUCT TO LICENSEE, AND LICENSEE SHOULD RETURN THIS AGREEMENT AND THIS PRODUCT PROMPTLY.
1. LICENSE AND RESTRICTIONS.
(a) License. Licensee is permitted to install and use the Software in machine-readable form solely for Licensee’s personal, noncommercial use. Licensee may copy the Software only for backup purposes, provided that, Licensee reproduces all copyright and other proprietary notices that are on the original copy of the Software.
(b) Restrictions. Except as expressly provided in this Agreement, Licensee may not (i) use, copy, display, perform, modify or create derivative works of the Product in whole or in part, or merge the Product with any third party products; (ii) translate, reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of or the internal communications protocols used by the Product; (iii) rent, lease, loan, sublicense, distribute, transfer, use as a service bureau or otherwise allow third parties to access the Product; (iv) use the Product to provide third-party access to telescopes on a time-shared basis; (v) remove any proprietary or intellectual property notices, labels, or marks on the Product; or (vi) otherwise use the Product or copy the Software except as expressly permitted under Section 1(a). Licensee shall be responsible for obtaining all hardware and software products necessary for the operation of the Product.
2. OWNERSHIP. The Publisher and its respective licensors shall retain all right, title, and interest to or residing in all Products subject to this Agreement, including without limitation all existing and future worldwide patents, patent applications, trademarks, trade names, services marks, inventions, copyrights, know-how, trade secrets and other proprietary rights. The Product is licensed, not sold, to Licensee, and the Publisher reserves all rights not expressly granted to Licensee.
3. TERM AND TERMINATION. The Agreement becomes effective when Licensee agrees to the terms and conditions of this Agreement by opening, installing, using, accessing or manipulating the Product, and will terminate immediately if Licensee materially breaches any term or condition of this Agreement. Licensee agrees upon termination to promptly return to the Publisher all Products and any copies thereof. The provisions of Sections "Ownership", "Warranty Disclaimer", "Limitation of Liability", and "General" shall survive the expiration or termination of this Agreement.
4. WARRANTY DISCLAIMER. THE PRODUCT IS PROVIDED "AS IS" AND THE PUBLISHER AND ITS LICENSORS DISCLAIM ANY AND ALL WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, FOR ANY PRODUCT PROVIDED UNDER THIS AGREEMENT. FURTHER, THE PUBLISHER DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATION REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE PRODUCT IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY THE PUBLISHER, ITS EMPLOYEES, DISTRIBUTORS, DEALERS, OR AGENTS SHALL INCREASE THE SCOPE OF THE ABOVE WARRANTIES OR CREATE ANY NEW WARRANTIES.
5. LIMITATION OF LIABILITY. IN NO EVENT WILL THE PUBLISHER, ITS LICENSORS, EMPLOYEES, OR AGENTS BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY LOST DATA, LOST PROFITS, INTERRUPTION OF BUSINESS OR OTHER SPECIAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY, OR INCIDENTAL DAMAGES ARISING FROM THE USE OR INABILITY TO USE THE PRODUCT OR OTHERWISE RELATING TO THIS AGREEMENT, REGARDLESS IF THE PUBLISHER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE PUBLISHER’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE PRODUCT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE TOTAL AMOUNT RECEIVED BY THE PUBLISHER FROM LICENSEE AS CONSIDERATION FOR THE LICENSES GRANTED UNDER THE TERMS OF THIS AGREEMENT. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDIES PROVIDED UNDER THIS AGREEMENT.
6. EXPORT LAWS. The Product and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. Licensee agrees to strictly comply with all such laws and regulations and acknowledges that Licensee has the responsibility to obtain such licenses to export, re-export or import as may be required.
7. U. S. GOVERNMENT LICENSEES. The Product is a "commercial item" as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government Licensees acquire the Product with only those rights set forth therein.
8. GENERAL. This Agreement shall be governed by the laws of the Federal Republic of Germany, and the parties hereby consent to jurisdiction and venue in the courts sitting in Erlangen, Germany. In any such dispute, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and expenses from the other party. Licensee may not assign or transfer its rights or obligations arising under this Agreement to any third party, and any such attempted assignment or transfer shall be void and without effect. This Agreement may not be modified except upon mutual written agreement of both parties. The waiver by either party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach. If any provision of this Agreement is deemed unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. This Agreement sets forth the entire understanding of the parties and supersedes any and all prior oral and written agreements or understandings between the parties regarding the subject matter of this Agreement. Nothing contained in any purchase order, order acknowledgement form, order confirmation form, task order, invoice, delivery order, or similar documents submitted by Licensee to the Publisher or the Publisher’s distributors shall in any way modify or add to the terms and conditions contained in this Agreement.
THE SOFTWARE IS PROTECTED BY COPYRIGHT. UNAUTHORIZED REPRODUCTION OR DISTRIBUTION IS SUBJECT TO CIVIL AND CRIMINAL PENALTIES.
Oculum-Verlag GmbH Spardorfer Straße 67 D-91054 Erlangen Germany http://www.oculum.de