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FactoryWidgets End-User License Agreement
APEX Software Development LLC License Agreement
PLEASE READ THIS AGREEMENT CAREFULLY. BY INSTALLING OR OTHERWISE USING THE APEX SOFTWARE, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH THESE TERMS, DO NOT DOWNLOAD, INSTALL OR USE THE APEX SOFTWARE. THE APEX SOFTWARE MAY NOT BE SOLD, TRANSFERRED, OR FURTHER DISTRIBUTED EXCEPT AS AUTHORIZED APEX SOFTWARE DEVELOPMENT LLC.
This APEX Software License Agreement (this “Agreement”) is a legal agreement between you (an entity or a person) and APEX Software Development LLC (“APEX”). The software product identified in the title of this Agreement, media (if any), and accompanying documentation (collectively, the “Software”) is protected by the copyright laws and other laws and treaties of the United States (“U.S.”) and other countries and is subject to the terms of this Agreement. If you do not agree with the terms of this Agreement, do not download, install, or otherwise use the Software and, if applicable, return the entire unused package to APEX with your invoice and proof of payment for a full refund. The Software is licensed to you, not sold.
The Software may include or be bundled with other software programs licensed under different terms and/or licensed by a vendor other than APEX. Use of any software programs accompanied by a separate license agreement is governed by that separate license agreement. Any third party software that may be provided with the Software is included for use at your option. APEX is not responsible for any third party’s software and shall have no liability for your use of third party software.
1. Grant of License. Subject to the terms and conditions of this Agreement, APEX grants to you a non-exclusive and non-transferable license, without right to sublicense (the “License”), to install, use, execute, and display one copy of the WidgetServer component of the Software on a single computer at a single location. The FactoryWidget® components of the Software can be installed on a single or multiple computers, provided the total number of FactoryWidgets® installed does not exceed the total number of FactoryWidget® licenses purchased. For purposes of this Agreement, a “Computer” is defined as a single physical computer or a single instance of a virtual PC, virtual server, whether it be implemented using Microsoft Virtual PC, Virtual Server, Hypervisor, VMWare, or other virtual computing software applications that enable multiple isolated operating system instances to be run on a single hardware platform.
1.2 Multiple Computers. If you plan to run the WidgetServer component of the Software on multiple computers (whether virtual or physical) or servers (whether virtual or physical) a license is required for each instance of the computer or where the WidgetServer component Software will be installed. If you also plan to install the WidgetServer component Software in the host operating system of the computer where the virtual machines are running, a license will also be required for the host operating system. The FactoryWidget® components of the Software can be installed on a single or multiple computers, provided the total number of FactoryWidgets® installed does not exceed the total number of FactoryWidget® licenses purchased.
1.3 Demonstration Mode. If you are running the Software in a demonstration, unlicensed mode, you may not automate the stopping and starting of the Software in demo mode or use any other method to attempt to circumvent the demonstration mode timeout period.
1.4 Additional Uses. In order to authorize additional uses of the FactoryWidget® software you must purchase additional FactoryWidget® licenses. A user may not access the Software unless it has a valid license.
1.5 Dual-Media Software. You may receive the Software in more than one medium. Regardless of the type or size of medium you receive, you may use only one medium that is appropriate for the Computer. You may not use or install the other medium on another computer. You may not loan, rent, lease, or otherwise transfer the other medium to another user, except as part of the permanent transfer (as provided above) of the Software.
2. License Restrictions. APEX reserves all rights not expressly granted to you under this Agreement. You may not (a) reverse engineer, decompile, or disassemble the Software, except and only to the extent it is expressly permitted by applicable law; (b) modify, alter, rent, timeshare, or lease the Software or sublicense any of your rights under this Agreement; or (c) transfer the Software or your license rights under this Agreement, in whole or in part.
3. Third Party Licenses. With respect to any portion of the Software licensed by APEX from third parties, you shall be bound by the terms and conditions of the license received by APEX from such third parties.
4. Support and Upgrades. APEX’s initial free warranty and technical support period is 90 days from the purchase date of the Software. Technical support is provided by Software Toolbox, Inc., which provides unlimited e-mail technical support for all Software whether a demo or registered license in the first 90 days after purchase. Software Toolbox Inc. will provide a total of up to four hours per month of free phone technical support during the initial 90 days to the licensed and registered user provided the applicable license fees for use of the Software have been paid. Software Toolbox Inc. will provide unlimited email technical support and up to four hours per month of free phone technical support beyond the initial 90 day warranty period provided. No onsite support is provided. Upgrades are not included with the initial purchase of the Software. Additional technical support, beyond that described herein, plus Software upgrades, is available at an extra cost. Terms of that support are covered under separate agreement.
5. Client Access Licenses. Many software and database vendors require users to purchase licenses that allow them to connect to, and access data from, their products. These are sometimes known as Client Access Licenses (CALs). Customers who use FactoryWidgets® to access such data sources, must have the appropriate CALs, as required and available from that software or database vendor.
6. Ownership. No title to or ownership in the Software is transferred to you. APEX retains ownership of all Software and copies thereof and you acknowledge that all right, title, and interest in and to the Software and any and all trademarks, trade names, copyrights, patents, and other intellectual property rights used or embodied in or in connection with the Software are and shall at all times remain the sole and exclusive property of APEX.
7. Return Policy The original licensee of the Software can return it within thirty (30) days of purchase. Please contact us for a Return Material Authorization Number. Returns after 30 days of purchase may require a restocking fee. Any extensions of this return period must be pre-approved by Software Toolbox technical support and documented in writing, where e-mail is considered to be in writing. No returns are accepted without a Return Material Authorization Number.
8. Warranty; Liability.
8.1 Limited Warranty. For thirty (30) days from your date of purchase, APEX warrants that (a) any media on which the Software is delivered is free from physical defects; and (b) the Software will substantially conform to the documentation accompanying the Software. If the defective items are returned to APEX, or if you report the nonconformity to APEX, within thirty (30) days from the date of purchase APEX will, at its sole discretion, either resolve the nonconformity or refund the purchase price you paid for the Software. Any misuse or unauthorized modification of the Software voids this warranty. THE SOFTWARE IS ONLY COMPATIBLE WITH CERTAIN COMPUTERS AND OPERATING SYSTEMS. THE SOFTWARE IS NOT WARRANTED FOR NON-COMPATIBLE SYSTEMS. Contact APEX for information about compatibility.
8.2 Non-APEX Products. The Software may include or be bundled with hardware or other software programs licensed or sold by a vendor other than APEX (“Bundled Services”). Without limiting the disclaimer of warranties and limitations on liability set forth in this Agreement, you recognize and agree that (a) APEX shall have no liability for the quality or performance such Bundled Services, (b) APEX shall not be deemed to have made any representation or warranty concerning Bundled Services or the provider of Bundled Services, (c) APEX shall use commercially reasonable efforts to enforce its rights under any written agreement it may have with the provider of such Bundled Services; provided, that APEX shall have no liability whatsoever for the failure of a provider of Bundled Services to perform its obligations with respect thereto, and (d) whenever possible, APEX shall pass through or assign to you any third party service level agreement or warranty which APEX receives in connection with any Bundled Services.
8.3 Warranty Disclaimer. EXCEPT AS OTHERWISE RESTRICTED BY LAW, APEX DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES INCLUDING ANY WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. APEX MAKES NO WARRANTY, REPRESENTATION OR PROMISE NOT EXPRESSLY SET FORTH IN THIS LIMITED WARRANTY. APEX DOES NOT WARRANT THAT THE SOFTWARE WILL SATISFY YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED. Some jurisdictions do not allow certain disclaimers and limitations of warranties, so portions of the above limitations may not apply to you. This limited warranty gives you specific rights and you may also have other rights which vary from state to state.
8.4 LIMITATION OF LIABILITY. NEITHER APEX NOR ANY OF ITS LICENSORS, SUBSIDIARIES, DISTRIBUTORS, OR EMPLOYEES WILL IN ANY CASE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, TORT, ECONOMIC, OR PUNITIVE DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, BUSINESS, DATA, GOODWILL, OR ANTICIPATED SAVINGS, EVEN IF ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. IN NO EVENT WILL APEX’S AGGREGATE LIABILITY FOR DIRECT DAMAGES TO PROPERTY OR PERSON (WHETHER IN ONE INSTANCE OR A SERIES OF INSTANCES) EXCEED THE AMOUNT PAID BY YOU FOR THE SOFTWARE OUT OF WHICH SUCH CLAIM AROSE. In those jurisdictions that do not allow the exclusion or limitation of damages, APEX’s liability shall be limited or excluded to the maximum extent allowed within those jurisdictions.
9. Confidentiality.
9.1 Confidential Information. You hereby acknowledge that you may have access to information that is confidential to APEX (“Confidential Information”). Confidential Information shall include the Software, including all related source and object codes, any documentation included with the Software, the terms and pricing under this Agreement, and trade secrets and intellectual property relating to APEX and the Software. Confidential Information also includes information relating to APEX’s business or financial affairs, such as financial results, business methods, pricing, competitor and product information, and all other information designated as confidential by the disclosing party. Confidential Information shall not include any information that (a) becomes part of the public domain through no act or omission of the other party; (b) is lawfully acquired by the other party from a third party without any breach of the third party’s obligations to the disclosing party; or (c) is disclosed by the disclosing party to a third party without any obligation of confidentiality by the third party. You agree to maintain the confidentiality of the Confidential Information and to protect as a trade secret any portion of APEX’s Confidential Information by preventing any unauthorized copying, use, distribution, installation, or transfer of possession of such information. You agree to maintain at least the same procedures regarding APEX’s Confidential Information that you maintain with respect to your own confidential information. Without limiting the generality of the foregoing, you shall not permit anyone to remove any proprietary or other legend or restrictive notice contained or included in any material provided by APEX.
9.2 Injunctive Relief. You acknowledge that any use or disclosure of APEX’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause APEX irreparable damage for which remedies other than injunctive relief may be inadequate, and you agree that APEX shall be entitled to seek from a court of competent jurisdiction injunctive or other equitable relief to restrain such use or disclosure in addition to other appropriate remedies.
9.3 Survival. The terms and provisions of this Section 9 shall survive any termination of this Agreement for any reason.
10. U.S. Government Restricted Rights. If you are licensing the Software on behalf of any unit or agency of the United States Government, the following applies: The Software is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraphs (a) through (d) of the Commercial Computer-Restricted Rights clause at 48 CFR 52.227-19, or in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, as applicable, and in similar clauses in the NASA FAR Supplement. Contractor/ Manufacturer is APEX Software Development LLC, 1770 State St. Suite 261, Boise, ID 83702, USA. Tel: +1 (208) 344-5535.
11. Indemnification. You shall defend, indemnify, and hold APEX, its officers, directors, and employees, Software Toolbox, Inc, and APEX’s distributors harmless from and against any and all claims, damages, losses, costs, or other expenses (including reasonable attorneys’ fees) that arise directly or indirectly out of your willful misconduct or unpermitted use of the Software.
12. General Terms.
12.1 Term. This Agreement becomes effective on the date you legally acquire the Software and will automatically terminate if you breach any of its terms. Upon termination of this Agreement, you must destroy the original and all copies of the Software or return them to APEX and delete the Software from your systems.
12.2 Export. You agree that you do not intend to and will not, directly or indirectly, export or transmit the Software or related documentation and technical data to any country to which such export or transmission is restricted by any applicable U.S. regulation or statue, without the prior written consent, if required, of the Bureau of Export Administration of the U.S. Department of Commerce, or such other governmental entity as may have jurisdiction over such export or transmission. You represent and warrant that you are not located in, under the control of, or a national or resident of any such country.
12.3 Governing Law. This Agreement shall be construed in accordance with the laws of the State of Idaho (without reference to choice of law principals) and the United States of America.
12.4 Entire Agreement. This Agreement sets forth the entire understanding and agreement between you and APEX and may be amended only in a writing signed by both parties. NO VENDOR, DISTRIBUTOR, DEALER, RETAILER, RESELLER, SALES PERSON, OR EMPLOYEE IS AUTHORIZED TO MODIFY THIS AGREEMENT OR TO MAKE ANY REPRESENTATION OR PROMISE THAT IS DIFFERENT FROM, OR IN ADDITION TO, THE TERMS OF THIS AGREEMENT.
12.5 Waiver. No waiver of any right under this Agreement will be effective unless in writing, signed by a duly authorized representative of the party to be bound. No waiver of any past or present right arising from any breach or failure to perform will be deemed to be a waiver of any future right arising under this Agreement.
12.6 Severability. If any provision in this Agreement is found to be invalid or unenforceable, that provision will be construed, limited, modified, or, if necessary, severed, to the extent necessary, to eliminate its invalidity or unenforceability, and the other provisions of this Agreement will remain unaffected.
12.7 Assignment and Successors in Interest. Neither this Agreement nor any rights granted hereunder to you may be assigned or delegated by you, without the written consent of APEX. Without derogating from the aforesaid, this Agreement shall inure to the benefit of and be binding upon the successors or assignees of the parties (unless the assignment thereof is prohibited hereunder).
13. Trademarks.
FactoryWidgets® and FactoryWidget® are trademarks of APEX Software Development LLC.
Microsoft® is a registered trademark, Windows® is a trademark of Microsoft Corporation. Software Toolbox is a registered trademark of Software Toolbox Inc. All other trademarks are the property of their respective owners.
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