IMPORTANT: Read the text of this End User Software License Agreement (EULA) carefully. The grant of the right to use the Software is made solely on condition that the Licensee agrees to the terms and conditions of this EULA. If the Licensee does not agree to the terms and conditions of this EULA, it is not authorised to use the Software. By making an agreement with the authorized distributor of Designs for Vision, Inc.(“DVI”) according to which the Product incorporating the Software is delivered by DVI (the “Agreement”) to the Licensee or using the Product, the Licensee indicates its acceptance of and is bound by the terms and conditions of this EULA. The terms and conditions of this EULA shall be an integral part of the Agreement.
1.PURPOSE OF THE AGREEMENT The following terms and conditions set forth the terms and conditions under which DVI grants to the Licensee the right to use the Software. The terms and conditions of this EULA may be supplemented or amended only by a written agreement between DVI and the Licensee. Each such written agreement modifies this EULA only to the extent express written provisions depart from the terms and conditions specified herein. All other terms and conditions shall apply as set forth herein. Notwithstanding the aforesaid, any up-grades or updates to the Software may be subject to amended or separate end user license terms and conditions. By using such updated or upgraded version of the Software the Licensee agrees to comply with the amended EULA
2.DEFINITIONS For the purposes of this EULA the below definitions(and where the context so admits the singular shall include the plural and vice versa) shall govern the following:
“EULA” shall mean the terms and conditions of this End User Software License Agreement.
“Licensee” shall mean the entity which or person who makes, or intends to make, use of the Products as legal owner having purchased the Products.
“Product” shall mean the Camera equipment manufactured by DVI and incorporating the Software.
“Software” shall mean the software incorporated in the Product and being subject to this EULA.
3.SCOPE OF LICENSE DVI hereby grants the Licensee a non-transferable and non-exclusive license to use the Software exclusively in connection with the Product and in strict compliance with the terms and conditions of this EULA. The license does not extend any rights to the Licensee in respect of the source code of the Software. The Licensee shall not use, rent, lease or sell the Software independently or make it available apart from the Product. The Licensee shall not have the right to install the Software in the Products by itself. The Licensee acknowledges and agrees that the Software shall be installed in the Products by DVI. The Licensee may not copy, publish, translate, modify, adapt, decompile, disassemble or reverse engineer or otherwise attempt to discover the source code or the structural framework of the Software, or any portion thereof, except and only to the extent that such activity is expressly permitted by the mandatory provisions of the applicable law in lieu of this limitation. The Licensee agrees not to remove any logos, trademarks and symbols used by DVI to identify its Software on the Product.
4.OWNERSHIP Title to the Software and all patents, copyrights, design rights, trade secrets, trademark (whether registered or unregistered) and other intellectual property rights in or related to the Software are and will remain the exclusive property of DVI and its licensors, whether or not specifically recognized or perfected under the laws of the country where the Software is located. The Licensee will not take any action that jeopardizes such proprietary rights or acquire any right in the Software, except the limited use rights specified in this EULA. DVI (and its licensors) will own all rights in any copy, translation, modification, adaptation or derivation of the Software, including any improvement or development thereof.
5. The Licensee accepts and agrees that the enforcement and protection, including the decision of whether or not to prosecute infringements or maintain registrations of DVI’s intellectual property rights in the Software will be in the sole discretion and control of DVI, and any and all recoveries resulting from such actions will be retained by DVI. The Licensee shall execute such documents and provide such additional co-operation to DVI, at DVI’s expense, as DVI reasonably may request in order to perfect, evidence, protect or secure such intellectual property rights and to conduct such prosecution, registration or defence.
6.CONFIDENTIALITY The Licensee acknowledges that the Software incorporates confidential and proprietary information developed or acquired by DVI. The Licensee will take all reasonable precautions necessary to safeguard the confidentiality of the Software. The Licensee will not allow the removal or defacement of any confidentiality or proprietary notice placed on items of Software. “Confidential Information” means each component of the Software, whether in object code or source code form, any statement of work, the functional specifications agreed upon in the Agreement, functional descriptions, diagrams, graphs, models, trade secrets, sketches, technical data, research, development information, business or financial information, plans, strategies, forecasts, forecast assumptions, business practices, marketing information and materials, customer names, proprietary ideas, concepts, know-how, methodologies, other, whether marked confidential or not, and all other information of DVI, its affiliated companies or third parties to whom DVI has a duty of confidentiality, or any other information or material otherwise coming to the knowledge of the Licensee in connection with the Agreement. The Licensee will not disclose, in whole or in part, any Confidential Information to any person. The Licensee will have no confidentiality obligation with respect to any portion of the information that (i) the Licensee independently knew or developed before receiving any of the Confidential Information (as proven by the written records of the Licensee); (ii) the Licensee lawfully obtained from a third party under no obligation of confidentiality; or (iii) became available to the public other than as a result of an act or omission of the Licensee or any of its employees, agents or consultants.
7.LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTIES DVI may not be held liable for defects or dysfunction of the Software and/or the Product due to (i) lack of qualification and competence on the part of the persons using it, and/or (ii) changes made by the Licensee, a third party other than DVI or not previously certified in writing by DVI, and/or (iii) software and/or equipment not supplied and installed by DVI. DVI SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL LOSSES OR DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA OR LOST PROFITS) PERTAINING IN ANY WAY TO THE SOFTWARE, OR TO ANY OF DVI’S OBLIGATIONS UNDER THIS EULA, EVEN IF DVI HAS BEEN MADE AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES. EXCEPT TO THE EXTENT ANY LIABILITY OF DVI IS NOT CAPABLE OF BEING EXCLUDED AT LAW, NOTWITHSTANDING ANY DAMAGES THE LICENSEE MAY INCUR FOR ANY REASON WHAT-SOEVER, THE ENTIRE LIABILITY OF DVI AND THE LICENSEE’S EXCLUSIVE REMEDY HERE-UNDER SHALL BE LIMITED TO THE ACTUAL DAMAGES INCURRED BY THE LICENSEE IN REASONABLE REALIANCE ON THE SOFTWARE UP TO THE AMOUNT ACTUALLY PAID BY THE LICENSEE FOR THE PRODUCT INCORPORATING THE SOFTWARE. THE LICENSEE ACCEPTS AND AGREES THAT ANY USE OF THE SOFTWARE BY THE LICENSEE IS AT ITS OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED “AS IS” AND DVI HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY (IF ANY) IMPLIED WARRANTIES OF MERCHANTABILITY, OF NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, OF RELIABILITY, OF ACCURACY OR COMPLETENESS OF RESPONSES, OF RE-SULTS, AND OF LACK OF NEGLIGENCE OR LACK OF WORKMANLIKE EFFORT, ALL WITH REGARD TO THE SOFTWARE. THE DISCLAIMER OF WARRANTIES DOES NOT LIMIT THE RIGHTS OF A CONSUMER PROVIDED BY THE MANDATORY PROVISIONS OF APPLICABLE LAW.
8.TERM AND TERMINATION This Licence shall commence on the date on which Licensee purchases the Product. The Licensee’s right to use the Software will terminate automatically if the Licensee ceases to own, possess or operate the Products. The rights granted to the Licensee under the EULA may be terminated by DVI upon a material violation by the Licensee of any terms or conditions contained herein which is not remedied by the Licensee within a reasonable period specified by DVI in a written notice drawing attention to the violation and requiring it to be remedied. Termination by DVI shall be made by written notice that is delivered to the Licensee not less than 30 days prior to the effective date of termination specified in the notice. Said notice of termination shall be without effect if the Licensee cures all breaches that gave rise to termination prior to the effective date of termination. Upon termination by DVI, all rights granted in respect of the Software to the Licensee under this EULA will immediately cease, the Licensee shall make no further use of the Software and the Software shall be uninstalled from the Product. The Licensee shall return to DVI all Confidential Information relating to the Software in its possession. Termination shall be without prejudice to any accrued rights and liabilities of the parties at the date of termination.
9.APPLICABLE LAW AND DISPUTE RESOLUTION This EULA is governed by and construed in accordance with the laws of State of New York, USA excluding its choice of laws provisions. The application of United Nations Convention on Contracts for the International Sale of Goods done at Vienna is expressly excluded. Any controversy or claim arising out of or relating to the terms and conditions of this EULA shall be primarily settled by negotiations. Any disputes arising from or relating to the terms and conditions of EULA shall be finally settled in arbitration in New York, New York, USA in accordance with the Arbitration Rules of the American Arbitration Association. The arbitration tribunal shall consist of one (1) arbitrator appointed by the Association. The arbitration proceeding shall be conducted in English. Notwithstanding the aforesaid, under the laws of the country where the Licensee is located, the Licensee may have additional rights and remedies on the basis of the mandatory provisions of the local consumer protection legislation. This Agreement does not affect on such rights and remedies.
If you have any questions about this EULA, please contact us.
Designs for Vision, Inc.
4000 Veterans Memorial Hwy.
Bohemia, NY 11716-1024