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Tokay Software End User License Agreement - Terms and Conditions


1. Grant of License. Tokay Software hereby grants to You a limited, perpetual, non-exclusive, non-transferable (except as set forth in Section 4(b) below) license to Use the Software on the terms and conditions set forth in this End User License Agreement ("Agreement").
2. Introduction.
(a) Tokay Software is willing to grant to You a license of the scope described herein to Use the Software (comprised of the Program and the Documentation) only upon the conditions that You or someone acting on Your behalf and at Your direction has:
(1) placed an order with Tokay Software for either an initial license or an upgrade (such as for more users, additional modules, etc.), or a support plan for future maintenance releases ("Maintenance Software") and/or for Water Purveyor support, and Tokay Software has accepted such order and Enabled Use of the Software; and
(2) accepted all of the terms and conditions of this Agreement either before or during installation of the Program.
(b) YOU WILL INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT AND ALL OF ITS TERMS AND CONDITIONS BY DOING ONE OR MORE OF THE FOLLOWING OR ALLOWING OR AUTHORIZING A THIRD PARTY TO DO IT FOR YOU:
(1) CLICKING "I AGREE" OR A SIMILAR AFFIRMATION, AS APPLICABLE, THAT APPEARS DURING INSTALLATION OF THE PROGRAM, OR
(2) USING THE PROGRAM.
(c) IF YOU DO NOT AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT (IN ITS ENTIRETY AND WITHOUT CHANGE TO OR ADDITION TO ITS TERMS AND CONDITIONS), THEN YOU DO NOT HAVE A LICENSE TO USE THE SOFTWARE.
3. Definitions. As used herein, the following terms have the following meanings:
(a) "Affiliate" means any entity that controls You, that You control or that is under common control with You where "control" means the ownership, directly or indirectly, of equity securities or other ownership interests which represent more than 50% of the voting power of such affiliate.
(b) "Documentation" means the Program specifications that are set forth in the help files of the Program and any release-related notes, guides or manuals Tokay Software publishes specific to the current version of the Program.
(c) "Enabled Use" means Tokay Software's having fulfilled the applicable software delivery process (whether by shipping tangible goods including recorded media containing the Software, enabling downloading of the Software, delivering activation codes for the Software, or otherwise), thereby enabling Use of the Software.
(d) "Error” means a reproducible failure of the Licensed Software to perform in substantial conformity with the Licensed Software specifications set forth in the corresponding User's Manual, help files or other printed documentation.
(e) "Maintenance Software" means Software that Tokay Software delivers because You have purchased a subscription to a support plan,
(f) "Program" means the computer program, a part of which includes the install routine that when executed causes this Agreement to be displayed.
(g) "Tokay Software" means the Tokay Software company that publishes the Software.
(h) "Software" means collectively, the Program and the Documentation, and any part thereof.
(i) "Supplemental License Terms" means the additional terms and restrictions that are specific to the Program licensed by You under this Agreement.
(j) "Use" means to install and execute the Program, provided that:
(1) You install the Program only on a computer system that You own or only on a computer system not owned by You if You will be the only party with access to the installed Program, and
(2) You execute the Program (i) for its intended purpose solely in connection with the management of the organization that You and Your Affiliates conduct, and (ii) solely to the extent of any and all applicable limitations (whether as to specific modules or other parts of the Program, or number of production or backup server computers) set forth in this Agreement and the Supplemental License Terms; and
(3) You may make only a reasonable number of backup copies of the Program solely for the purpose of reinstalling the Program, if reinstallation becomes necessary; and
(4) You may make one copy of the Program for Use in a testing environment solely for testing purposes; and,
(5) You may make and install one copy of the Program at a disaster recovery site for Your Use only for so long as a disaster or other emergency prevents You from Using the Program at Your original installation site. (k) "You" or "Your" means or refers to the organization or person that Tokay Software has registered as the licensee for the Software.
4. Limits of License. The license contained in this Agreement does not include the right to perform, and You agree to refrain from performing, any of the following:
(a) Except as expressly set forth in section 3(j) above, making any copy of the Software, except as an essential step in Your licensed Use thereof.
(b) Distributing any copy of the Software (whether by renting, leasing, lending, sublicensing, time-sharing, or otherwise), except that, if Tokay Software consents in writing, which consent will not be unreasonably denied, You may transfer the Software to a purchasing party after the close of a sale of either Your entire organization, or all, or substantially all, of the assets of Your organization, provided that the purchasing party reads and accepts (in writing to Tokay Software) the terms and conditions of this Agreement, the purchasing party agrees to other reasonable transfer requirements, and You do not retain a copy of the Software.
(c) Using the Software for personal, family, household, or other non-business purposes;
(d) Altering, modifying, translating, decompiling, disassembling or reverse-engineering the Software or creating any derivative work based upon the Software;
(e) Removing or obscuring any copyright or trademark notices from the Software.
(f) Using the Software in excess of (i) the limitations set forth in this Agreement and Supplemental License Terms, and (ii) the number and types of users, seats or licenses You purchase or rightfully acquire.
5. Additional Restrictions.
(a) Any report-writing software contained within the Program may be subject to a restriction such that its use may be limited to accessing only the data that is created by, or used by, the Program;
(b) You may not Use, export, re-export or otherwise transfer the Software in violation of any domestic or foreign laws or regulations in effect from time to time in the jurisdiction in which You are a resident or in which the Software is Used. You represent and warrant that You are not located in, under the control of, a national or resident of, any restricted country or of any entity or person designated as restricted.
6. U.S. Government Restricted Rights. The Software is provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the U.S. Government is subject to restrictions as set forth in paragraphs (a) – (d) of the Commercial Computer Software - Restricted Rights clause at 48 CFR 52.227-19, or Section 227.7202 of the DFARS. The Manufacturer is the Tokay Software company identified above, having a place of business at 1 Edgell Road, Framingham, Massachusetts 10701.
7. Limited Warranty and Disclaimers.
(a) Tokay Software warrants that, during the one hundred and eighty (180) day period (the "Warranty Period") that commences on the date that Tokay Software Enabled Use of the Software (whether for an initial license, an upgrade or a maintenance release under a support plan), the Program, when properly Used, shall perform substantially in accordance with the Documentation. Tokay Software does not warrant or represent that Your Use of the Program will be uninterrupted or error-free. If You report to Tokay Software in writing within the Warranty Period any non-conformity between the Documentation and the Program, and if Tokay Software is able to replicate and verify that such non-conformity exists, Tokay Software shall make commercially reasonable efforts to correct such non-conformity and, if successful, shall supply You with such correction at no additional cost to You. If such efforts are unsuccessful and the non-conformity is material: (1) Except for Maintenance Software, You may terminate this Agreement, discontinue Use of, and return all copies You have of the Software, and Tokay Software will ensure that You receive a refund of the license fee You paid and credit for any license fee You owe for the Software; and (2) For Maintenance Software, You may terminate Your support plan, discontinue Use of, and return all copies You have of the Maintenance Software, and Tokay Software will ensure that You receive a refund of, or credit for, the service fee You incurred for the purchase of your most recent support plan. The foregoing states Your SOLE AND EXCLUSIVE REMEDY for any breach of this warranty.
(b) With respect to any media by which You may have received Your installation copy of the Program, Tokay Software warrants that the media is free from defects in materials and workmanship under normal use for the Warranty Period. YOUR SOLE AND EXCLUSIVE REMEDY under this warranty is limited to replacement of defective media.
(c) OTHER THAN THE EXPRESS, LIMITED WARRANTIES STATED ABOVE IN THIS SECTION, TOKAY SOFTWARE AND ITS SUPPLIERS EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS AND GUARANTEES OF ANY KIND OR NATURE WHATSOEVER, WHETHER EXPRESS, IMPLIED AND STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY WARRANTIES, CONDITIONS OR GUARANTEES (1) OF MERCHANTABILITY, (11) OF FITNESS FOR A PARTICULAR PURPOSE, (III) OF NON-INFRINGEMENT OF PROPRIETARY OR INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY, AND (IV) ARISING FROM CUSTOM OR TRADE USE OR BY ANY COURSE OF DEALING OR COURSE OF PERFORMANCE. YOU UNDERSTAND AND AGREE THAT: (1) THE WATER PURVEYOR OF A MANAGEMENT COMPUTER PROGRAM DECREASES AS TECHNOLOGY EVOLVES AND THE BUSINESS ENVIRONMENT CHANGES, (2) YOU ARE FREE TO DECIDE, AND ARE RESPONSIBLE FOR DECIDING, WHEN TO UPGRADE YOUR SOFTWARE, AND (3) TOKAY SOFTWARE DISCLAIMS ANY RESPONSIBILITY TO DELIVER LATER-RELEASED SOFTWARE OR OTHERWISE RENDER ANY WATER PURVEYOR SUPPORT SERVICES EXCEPT AS MAY BE SPECIFIED IN A SEPARATE WATER PURVEYOR MAINTENANCE AND SUPPORT AGREEMENT.
(d) Other Limitations. Tokay Software will have no responsibility under these limited warranties for any Software or media that has been modified, lost, stolen or damaged by accident, abuse or misapplication. No employee, agent or representative of Tokay Software or any other third party, is authorized to make any warranty with respect to the Software, except those expressly stated in this Agreement, and You may not rely on any such unauthorized warranty.
8. Exclusions of and Limitation of Liability.
(a) You acknowledge Your understanding that software is inherently complex and may not be free from errors, and that You have been advised to verify the work produced by the Program. Neither Tokay Software nor its suppliers shall be liable for any special, indirect, incidental, consequential or punitive damages resulting from any defect in the Software or media, even if Tokay Software has been advised of the possibility of such damages. This means Tokay Software is not responsible or liable for damages or costs incurred as a result of loss of time, loss of data, loss of anticipated profits, lost opportunity cost or loss of use of the Software, nor for damages or costs incurred in connection with obtaining substitute software, claims made against You by others or similar costs. IN NO EVENT SHALL TOKAY SOFTWARE'S LIABILITY TO YOU ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE LICENSE FEE ACTUALLY PAID BY YOU TO PURCHASE THE LICENSE FOR THE SOFTWARE. You acknowledge and agree that this Agreement allocates risk between You and Tokay Software as authorized by applicable law, and that the pricing of Tokay Software's products reflects this allocation of risk and the exclusions and limitations of liability contained in this Agreement. If any remedy hereunder is determined to have failed of its essential purpose, all limitations of liability and exclusion of damages set forth in this Agreement shall remain in full force and effect.
(b) You acknowledge that unless You and Tokay Software agree in writing for Tokay Software to provide software implementation services to implement the Program at your place of business, You are responsible for engaging a qualified party to provide implementation services for You on terms You negotiate. You also acknowledge that You are responsible for independently investigating the skills and qualifications of such party to ensure that they provide You with the level of skill and service Your organization requires. You agree that Tokay Software shall have no liability whatsoever for any failure associated with such implementation services, even if the party You engage is an authorized or certified Distributor, consultant, or installer of Tokay Software products.
9. Indemnification.
(a) If You receive notice of any claim that Your use of any part of the Software infringes any third party's intellectual property right in a patent, copyright, or trade secret, Tokay Software shall defend, and shall indemnify and hold You harmless by paying any resulting costs and damages finally awarded by a court with respect to any such claim provided that You:
(1) Notify Tokay Software in writing promptly upon becoming aware of the claim,
(2) At Tokay Software's request and expense, give Tokay Software such information and assistance as is reasonable under the circumstances, and
(3) Give Tokay Software the right to settle the claim in Tokay Software's sole discretion and at Tokay Software's expense.
(b) This indemnification does not extend to any claim based upon any alleged infringement arising from the combination of the Software with other elements not under Tokay Software's sole control, or arising from any part of the Software that You or a third-party modify, or that incorporates specifications, designs or formulas that You provide. If You are prevented from Using the Software because of an actual or claimed infringement, then at Tokay Software's option, Tokay Software shall promptly either obtain for You the right to continue Using the affected part of the Software, replace or modify the affected part of the Software so that it becomes non-infringing, or if none of the foregoing alternatives are possible after Tokay Software exercises commercially reasonable efforts, You may terminate this Agreement and any support plan, and Tokay Software shall ensure that You receive a refund of, or credit for:
(1) the service fee You incurred for the purchase of Your most recent support plan; and
(2) a pro rata portion of the license fees You incurred for the purchase of Your initial license and all upgrades, which pro rata portion will be determined on the basis of the remaining period of a useful life of (5) five years, where the five year useful life begins on the date of Your purchase of Your initial license.
(c) THIS SECTION 9 SETS OUT TOKAY SOFTWARE'S ENTIRE FINANCIAL LIABILITY FOR ANY INTELLECTUAL PROPERTY CLAIMS OR ACTUAL INFRINGEMENTS RELATING TO THE SOFTWARE.
(d) To the fullest extent permitted by law, Water Purveyor, agrees to indemnify and hold harmless Vendor, its officers, agents, servants and employees against any and all liability, judgments, costs, expenses, attorney’s fees and other loss, and against all claims or actions based upon or arising out of or resulting from 1) Water Purveyor’s misuse or negligent or grossly negligent use of the Software, or 2) Water Purveyor’s breach of any of the material terms and conditions of this Agreement, or 3) damage or injury (including death) to persons or property caused by or sustained by any backflow incident as the term “Backflow” is defined here by the U.S. Environmental Protection Agency Office of Ground Water & Drinking Water: “The flow of water or other liquids, mixtures or substances, under positive or reduced pressure in the distribution pipes of a potable water supply from any source other than its intended source.”
10. Jurisdictional Rights. This Agreement gives You specific legal rights, and You may also have other rights, which vary from jurisdiction to jurisdiction. Some jurisdictions do not allow the exclusion or limitation of implied warranties or of liability for incidental or consequential damages, so some or all of those sections of the Agreement may not apply to You.
11. Term. This Agreement is effective from the date You accept it and continues in effect until terminated. You may terminate this Agreement at any time, at which point Your license hereunder will terminate. This Agreement and the license granted herein will terminate automatically and without notice if You fail to comply with any term or condition of this Agreement. You agree upon termination to return the original Software to Tokay Software and to destroy all other Software copies in Your possession. Any provision in this Agreement which when reasonably read is intended to survive the termination of this Agreement shall survive, including without limitation, the disclaimer of warranties and limitations of liability.
12. Entire Agreement and Severability. This Agreement (including the Supplemental License Terms which are incorporated by reference and made a part hereof) represents the complete and exclusive understanding between You and Tokay Software regarding the Software, and supersedes any prior purchase order, confirmation, advertising, representation, or other communication. This Agreement may not be modified except by a written agreement signed by an authorized Tokay Software representative. If any provision of this Agreement is found to be void, invalid, or unenforceable, it shall be severed from and shall not affect the remainder of this Agreement, which shall remain valid and enforceable. Any such severed provision shall be replaced with a similar provision, which conforms to applicable law and embodies as closely as possible the original intent of the parties.
13. Dispute Resolution, Waiver of Collective or Class Action, Choice of Law, Statute of Limitations and Language. Any cause of action or claim arising out of or relating to this Agreement or the breach thereof, including without limitation, the validity, enforceability or scope of this Agreement, shall be settled by binding arbitration pursuant to this section 10 and the applicable rules of the National Arbitration Forum in effect at the time the claim is filed. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. In addition, You agree that any cause of action or claim will be arbitrated individually and that You will not consolidate or seek class treatment for any claims, unless previously agreed to in writing by You and Tokay Software. This Agreement shall be governed by the laws of (i) the State of Massachusetts if primary Use of the Software occurs in any jurisdiction other than Canada, or (ii) the Province of Ontario if primary Use of the Software occurs in Canada, without regard to the conflict of laws provisions thereof or to the United Nations 1980 conventions on the International Sale of Goods. The parties have expressly requested and required that this Agreement and all other related documents be drawn up in the English language. Les Parties conviennent et exigent express6ment que ce Contrat et tour les documents en anglais. ANY CLAIM OR CAUSE OF ACTION, REGARDLESS OF FORM, MUST BE BROUGHT NO MORE THAN ONE (1) YEAR AFTER IT AROSE, OTHERWISE THE CLAIM OR CAUSE OF ACTION SHALL BE BARRED, EXCEPT THAT THE FOREGOING LIMITATION AND THE ARBITRATION PROVISION SHALL NOT APPLY TO THE ENFORCEMENT BY TOKAY SOFTWARE OF ANY OF ITS INTELLECTUAL PROPERTY RIGHTS. THIS PROVISION SHALL SURVIVE TERMINATION OF THIS AGREEMENT.