Important – Read carefully: This software End-User License Agreement (“EULA”) is a legal agreement between you (either an individual person or a single legal entity, who will be referred to in this EULA as “you”) and Microworks. It provides a license to use the Software and contains warranty information and liability disclaimers. By installing and/or using the Software, you are confirming your acceptance of the Software and agreeing to become bound by the terms of this agreement. If you do not agree to be bound by these terms, you are not licensed to use the Software and you must destroy all copies of the Software in your possession or control.
1. DEFINITIONS
(a) “Microworks” means Microworks POS Solutions, Inc.
(b) “Software” means only the Microworks software program(s) and corresponding documentation, associated media, printed materials, and online or electronic documentation.
2. SOFTWARE LICENSE
(a) License Grant. Upon your acceptance of this EULA, Microworks grants you a personal non-exclusive, non-transferable (except as provided below), limited license to install and use a copy of the Software on your compatible computer, up to the Permitted Number of computers. The Permitted Number of computers shall be delineated at such time as you elect to purchase the Software.
(b) Backup and Archival Copies. You may make one backup and one archival copy of the Software, provided your backup and archival copies are not installed or used on any computer and further provided that all such copies shall bear the original and unmodified copyright, patent and other intellectual property markings that appear on or in the Software.
(c) Software Keylok. Upon acceptance of this EULA and purchase of the Software, you will receive a Software Keylok that will enable you to activate or operate the Software. You may not relicense, reproduce or distribute any Software Keylok except with the express written permission of Microworks.
(d) Title. This EULA gives you a limited license to use the Software. Microworks and its suppliers retain all right, title and interest, including all copyright and intellectual property rights, in and to, the Software and all copies thereof. All rights not specifically granted in this EULA are reserved by Microworks.
(e) Reverse Engineering. You may not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, underlying ideas, underlying user interface techniques or algorithms of the Software by any means whatsoever, directly or indirectly, or disclose any of the foregoing, except to the extent you may be expressly permitted to decompile under applicable law, it is essential to do so in order to achieve operability of the Software with another software program, and you have first requested Microworks to provide the information necessary to achieve such operability and Microworks has not made such information available. Microworks has the right to impose reasonable conditions and to request a reasonable fee before providing such information. Any information supplied by Microworks or obtained by you, as permitted hereunder, may only be used by you for the purpose described herein and may not be disclosed to any third party or used to create any software which is substantially similar to the expression of the Software.
(f) Additional Restrictions. You may not loan, rent, lease, sublicense, distribute or otherwise transfer all or any portion of the Software to third parties. You may not copy, distribute, or make derivative works of the Software except as expressly set forth above, and any copies that you are permitted to make pursuant to this EULA must contain the same copyright, patent and other intellectual property markings that appear on or in the Software. You may not modify, adapt or translate the Software. You may not, directly or indirectly, encumber or suffer to exist any lien or security interest on the Software; knowingly take any action that would cause the Software to be placed in the public domain; or use the Software in any computer environment not specified in this EULA. You will comply with applicable law and Microworks’ instructions regarding the use of the Software. You agree to notify your employees and agents who may have access to the Software of the restrictions contained in this EULA and to ensure their compliance with these restrictions. You may not alter or modify the Software or create a new installer for the Software.
3. INTELLECTUAL PROPERTY RIGHTS
You acknowledge that the Software and any copies that you are authorized by Microworks to make or posses are the intellectual property of and are owned by Microworks and its suppliers. The structure, organization and code of the Software are the valuable trade secrets and confidential information of Microworks and its suppliers. The Software is protected by copyright, including without limitation by United States Copyright Law, international treaty provisions and applicable laws in the country in which it is being used. You acknowledge that Microworks retains the ownership of all patents, copyrights, trade secrets, trademarks and other intellectual property rights pertaining to the software, and that Microworks’ ownership rights extend to any images, photographs, animations, videos, audio, music, text and “applets” incorporated into the Software and all accompanying printed materials. You will take no actions that adversely affect Microworks’ intellectual property rights in the Software. Trademarks shall be used in accordance with accepted trademark practice, including identification of trademark owners’ names. Trademarks may only be used to identify printed output produced by the software, and such use of any trademark does not give you any right of ownership in that trademark. PrISM, PrISM POS, PrISM Onetouch, PrISM for Windows®, and Microworks are trademarks of Microworks POS Solutions, Inc. Windows, Windows 98, Windows NT, Windows 2000, Windows XP, and Outlook are trademarks of Microsoft. Except as expressly stated above, this EULA does not grant you any intellectual property rights in the Software.
4. WARRANTY DISCLAIMER
TO THE MAXIMUM EXTENT PERMITTED BY LAW, MICROWORKS AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE; MERCHANTABILITY; SATISFACTORY QUALITY, INFORMATIONAL CONTENT, OR ACCURACY, TITLE, AND NON- INFRINGEMENT. MICROWORKS DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SOFTWARE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO 30 DAYS FROM THE DATE OF INSTALLATION OR USE. ANY SUPPLEMENTS OR UPDATES TO THE SOFTWARE, INCLUDING WITHOUT LIMITATION, ANY (IF ANY) SERVICE PACKS OR HOT FIXES PROVIDED TO YOU ARE NOT COVERED BY ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE. YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR THE ACCURACY AND ADEQUACY OF THE SOFTWARE FOR YOUR INTENDED USE AND YOU WILL INDEMNIFY AND HOLD HARMLESS MICROWORKS FROM ANY 3RD PARTY SUIT TO THE EXTENT BASED UPON THE ACCURACY AND ADEQUACY OF THE SOFTWARE IN YOUR USE.
Microworks may include error corrections in maintenance releases, updates, or new major releases of the Software. Microworks is not obligated to fix errors that are immaterial. Immaterial errors are those that do not significantly impact use of the Software.
5. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MICROWORKS OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, DIRECT, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, OR ANY PROVISION OF THIS END USER LICENSE AGREEMENT, EVEN IF MICROWORKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WHERE LEGALLY, LIABILITY CANNOT BE EXCLUDED, BUT MAY BE LIMITED, MICROWORKS’ LIABILITY AND THAT OF ITS SUPPLIERS SHALL NOT EXCEED THE AMOUNT OF THE ORIGINAL PURCHASE. THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO THE WARRANTIES AND DISCLAIMERS ABOVE AND ALL OTHER ASPECTS OF THIS END USER LICENSE AGREEMENT.
6. TERM AND TERMINATION
Without prejudice to any other rights or remedies of Microworks, this EULA may be terminated (a) by you giving Microworks written notice of termination; or (b) by Microworks, at its option, giving you written notice of termination or (c) Microworks giving you written notice of termination if you fail to comply with the terms and conditions of the EULA. Upon any termination of this EULA, you must cease all use of the Software, licensed hereunder, destroy all copies in your possession or control and take such other actions as Microworks may reasonably request to ensure that no copies of the Software remain in your possession or control.
7. GENERAL
This EULA (including any addendum or amendment to this EULA which is included with the Software) is the entire agreement between You and Microworks relating to the Software and the support services (if any) and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software or any other subject matter covered by this EULA. The failure or delay of Microworks to exercise any of its rights under this EULA or upon any breach of this EULA shall not be deemed a waiver of those rights or of the breach. To the extent the terms of any Microworks policies or programs for support services conflict with the terms of this EULA, the terms of this EULA shall control.
You agree that any action at law or equity instituted against either party to this EULA shall be commenced only in the state court located in Rochester, New York or the United States District Court for the Western District of New York, in Rochester, New York.
No Microworks dealer, agent or employee is authorized to make any amendment to this EULA, whether oral or written.
All questions concerning this EULA shall be directed to: Microworks POS Solutions, Inc., 2112 Empire Blvd. Suite 2A, Webster, NY 14580.