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End User License Agreement/Terms of Use
This License Agreement ("Agreement") is made and effective the date signed below
by and between Helios Tech ("Provider") and client/user ("Licensee"). Provider has
developed and licenses its software program, system, and database marketed under
the name Helios ("System"). Licensee desires to utilize a copy of the System. Now,
therefore, in consideration of the mutual promises set forth herein, Provider and
Licensee agree as follows:
1. License.
Provider hereby grants to Licensee a non-exclusive, non-transferable, limited
license to use the System in the United States of America as set forth in this Agreement.
The System is offered to you, Licensee, conditioned on your acceptance without modification
of the terms, conditions, and notices contained herein. Licensee's use of the System
constitutes agreement to all such terms, conditions, and notices. Provider reserves
the right to change the terms, conditions, and notices under which the System is
offered, including but not limited to the charges associated with the use of the
System. The most up to date terms are available on our website at http://www.heliosedu.com/EULA/LicenseTerms.aspx.
Please check back on this site for the latest terms.
2. Restrictions.
Licensee shall not modify, copy, duplicate, reproduce, disassemble, decompile,
license or sublicense the System, or transfer or convey the System or any right
in the System to anyone else without the prior written consent of Provider. Licensee
may make one copy of the System for backup or archival purposes.
3. Fee.
In consideration for the grant of the license and the use of the System,
Licensee agrees to pay Provider, per its regular list price, a license fee and/or
the annual support and maintenance fee for each successive twelve-month use of the
System and any updates.
4. No Unlawful Use.
As a condition of Licensee's use of the System, Licensee warrants to Provider
that it will not use the System for any purpose that is unlawful or prohibited by
these terms, conditions, and notices. Licensee may not use the System in any manner
which could damage, disable, overburden, or impair the System or interfere with
any other party's use and enjoyment of the System. Licensee may not obtain or attempt
to obtain any materials or information through any means not intentionally made
available or provided for through the System.
5. Appropriate Use.
Licensee agrees to use the System with the appropriate computer equipment in the
specified manner. In the event of any defect or alleged defect, Licensee shall promptly
notify Provider and may return the System to Provider at Licensee's expense in the
first 90 days from the date of initial purchase. Provider shall not be liable for
any breach of the System if the System is modified by anyone or if it is used improperly
or on an operating environment not approved by Provider. In the event of any defect
in the media upon which the System is provided arising within 90 days of the date
of delivery of the System, Provider shall provide Licensee a new copy of the System
upon return of the original media to Provider.
6. System Installation and Maintenance.
A. Installation. If the System is to be installed on Licensee’s hardware,
Licensee agrees to make available the equipment and manpower needed to complete
the installation and maintain the equipment and network on which the System will
be run as well as take steps to maintain adequate backups, security, and confidentiality
of the data contained therein. If the System is hosted with the Provider, Provider
may use a third party hosting service provider and may charge an additional fee
to the Licensee. Notwithstanding the foregoing option, all other terms and conditions
in this Agreement shall remain unchanged.
B. Annual maintenance. Licensee may receive maintenance and support
for successive twelve (12) month periods or individual training sessions for a fee
per Provider's regular list price. If there is lapse in Licensee's payment of license
or maintenance fees, Provider reserves the right to charge Licensee its maintenance
fees for the period of the lapse in maintenance. Provider may elect to discontinue
maintenance at any time upon notice to Licensee, and refund of any then unearned
maintenance fees.
7. Payment.
Payment of the license fee shall be made upon delivery of the System. Payment
of any other amount owed by Licensee to Provider pursuant to this Agreement shall
be paid within thirty (30) days following invoice from Provider. In the event any
overdue amount owed by Licensee is not paid following ten (10) days written notice
from Provider, then in addition to any other amount due, Provider may impose and
Licensee shall pay a late payment charge at the rate of one percent (1%) per month
on any overdue amount.
8. Taxes.
In addition to all other amounts due hereunder, Licensee shall also pay to Provider,
or reimburse Provider as appropriate, all amounts due for property tax on the System
and for sales, use, excise taxes or other taxes which are measured directly by payments
made by Licensee to Provider. In no event shall Licensee be obligated to pay any
tax paid on the income of Provider or paid for Provider's privilege of doing business.
9. Warranty Disclaimer.
PROVIDER AND/OR ITS SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY,
RELIABILITY, AVAILABILITY, TIMELINESS, AND ACCURACY OF THE INFORMATION, SOFTWARE,
PRODUCTS, SERVICES AND RELATED GRAPHICS CONTAINED IN THE SYSTEM FOR ANY PURPOSE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SUCH INFORMATION, SYSTEM,
PRODUCTS, SERVICES AND RELATED GRAPHICS ARE PROVIDED "AS IS" WITHOUT WARRANTY OR
CONDITION OF ANY KIND. PROVIDER AND/OR ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES
AND CONDITIONS, EXPRESS OR IMPLIED, WITH REGARD TO THIS SYSTEM, INFORMATION, SOFTWARE,
PRODUCTS, SERVICES AND RELATED GRAPHICS, INCLUDING BUT NOT LIMITED TO, ALL IMPLIED
WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE
AND NON-INFRINGEMENT.
10. Liability Disclaimer.
THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH
THE SYSTEM MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY
ADDED TO THE INFORMATION HEREIN. PROVIDER AND/OR ITS SUPPLIERS MAY MAKE IMPROVEMENTS
AND/OR CHANGES IN THE SYSTEM AT ANY TIME. ADVICE RECEIVED VIA THE SYSTEM SHOULD
NOT BE RELIED UPON FOR PERSONAL, MEDICAL, LEGAL OR FINANCIAL DECISIONS AND LICENSEE
SHOULD CONSULT AN APPROPRIATE PROFESSIONAL FOR SPECIFIC ADVICE TAILORED TO LICENSEE'S
SITUATION.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PROVIDER AND/OR
ITS SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL,
CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES
FOR LOSS OF USE, DATA OR PROFITS, MISUSE OR INACCURACY OF DATA, ARISING OUT OF OR
IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE SYSTEM, WITH THE DELAY OR
INABILITY TO USE THE SYSTEM OR RELATED SERVICES, THE PROVISION OF OR FAILURE TO
PROVIDE SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED
GRAPHICS OBTAINED THROUGH THE SYSTEM, OR OTHERWISE ARISING OUT OF THE USE OF THE
SYSTEM, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE,
EVEN IF PROVIDER OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF
DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION
OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT
APPLY TO LICENSEE. IF LICENSEE IS DISSATISFIED WITH ANY PORTION OF THE SYSTEM, OR
WITH ANY OF THESE TERMS OF USE, LICENSEE'S SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE
USING THE SYSTEM.
Although Provider will implement procedures for backup of Licensee's data when Provider
and/or its suppliers are hosting such data, Provider shall not be held liable for
loss or corruption of data, as above, caused due to interruptions or other defects
in backup. Furthermore, Provider shall not be responsible for backup of Licensee's
data on a regular basis. It is advised that Licensee may adopt its own procedures
for backup of its data if it requires regular or frequent backups.
In no event shall Provider's liability hereunder exceed the amount of license fees
paid by Licensee during the twelve months prior to Licensee’s action, regardless
of whether Licensee's claim is based on contract, tort, strict liability, product
liability or otherwise. No action, regardless of form, may be brought by Licensee
more than two years after the date the cause of action arose.
11. Confidentiality.
The System and related system, database and manuals are proprietary, Confidential
Information of Provider. Licensee shall not disclose, publish or otherwise reveal
or make unauthorized copies, except for backup, any of the Confidential Information
defined above to any other party whatsoever except with the specific prior written
authorization of Provider, except where provided in the Public Information clause
of this Agreement. Licensee agrees not to use any Confidential Information as a
basis upon which to develop or have a third party develop a competing or similar
product. The provisions of this paragraph shall survive the revocation or termination
of the License granted herein.
12. Public Information.
Provider may ask Licensee to fill out feedback and survey forms relating to the
System and its use and may use this information, statements, and opinions of Licensee
or its employees in its public announcements or materials. Licensee agrees to hold
its own employees as well as Provider and its employees harmless for such use of
names, titles, statements and opinions of Licensee/Licensee’s employees regarding
the System.
13. Links to Third Party Sites.
The System may contain links to other Web Sites ("Linked Sites"). The Linked Sites
are not under the control of Provider and Provider is not responsible for the contents
of any Linked Site, including without limitation any link contained in a Linked
Site, or any changes or updates to a Linked Site. Provider is not responsible for
webcasting or any other form of transmission received from any Linked Site. Provider
is providing these links to Licensee only as a convenience, and the inclusion of
any link does not imply endorsement by Provider of the site or any association with
its operators.
14. Data Submitted into System.
Provider does not claim ownership of the data (excluding feedback and suggestions)
that Licensee posts or uploads, inputs or submits to the System or its associated
services (collectively "Submissions"). However, by posting, uploading, inputting,
providing or submitting Submission Licensee grants Provider, its affiliated companies
and necessary sublicensees permission to use the Submissions in connection with
the operation of their Internet businesses including, without limitation, the rights
to: copy, backup, transmit, reproduce, edit, translate and reformat the Submissions.
By posting, uploading, inputting, providing or submitting the Submissions, Licensee
warrants and represents that it owns or otherwise controls all of the rights to
the Submission as described in this section including, without limitation, all the
rights necessary to provide, post, upload, input or submit the Submissions.
15. Termination/Access Restriction.
Provider reserves the right, in its sole discretion, to terminate Licensee's access
to the System and the related services or any portion thereof at any time, without
notice.
16. No Agency Relationship.
Licensee agrees that no joint venture, partnership, employment, or agency relationship
exists between Licensee and Provider as a result of this agreement or use of the
System. Provider's performance of this agreement is subject to existing laws and
legal process, and nothing contained in this agreement is in derogation of Provider's
right to comply with governmental, court and law enforcement requests or requirements
relating to Licensee's use of the System or information provided to or gathered
by Provider with respect to such use.
17. Governing Law.
This Agreement shall be construed and enforced in accordance with the laws
of the state of California. In case of legal action, the prevailing party shall
be entitled to reasonable attorney’s fees in addition to any other relief to which
the party may be entitled.
18. Miscellaneous.
A. Notice. Any notice required by this Agreement or given in connection
with it, shall be in writing and shall be given by appropriate means.
B. No Assignment. Neither this Agreement nor any interest in this
Agreement may be assigned by Licensee without the prior express written approval
of Provider.
C. Final Agreement. This Agreement terminates and supersedes all
prior understandings or agreements on the subject matter hereof. This Agreement
may be modified only by a further writing that is duly executed by both parties.
D. Severability. If any term of this Agreement is held by a court
of competent jurisdiction to be invalid or unenforceable, then this Agreement, including
all of the remaining terms, will remain in full force and effect as if such invalid
or unenforceable term had never been included.
E. No Implied Waiver. Either party's failure to insist in any one
or more instances for strict performance by the other party of any of the terms
of this Agreement shall not be construed as a waiver of any continuing or subsequent
failure to perform or delay in performance of any term hereof.
F. Headings. Headings used in this Agreement are provided for convenience
only and shall not be used to construe meaning or intent.
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