EXPONAM Software License Agreement
PLEASE READ THIS AGREEMENT CAREFULLY. BY COPYING, INSTALLING, OR USING ALL OR ANY PORTION OF THIS SOFTWARE, YOU (HEREINAFTER “CUSTOMER”) ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE PROVISIONS ON LICENSE RESTRICTIONS IN SECTION 4, LIMITED WARRANTY IN SECTIONS 5 AND 6, LIMITATION OF LIABILITY IN SECTION 7, AND SPECIFIC PROVISIONS AND EXCEPTIONS IN SECTION 15. CUSTOMER AGREES THAT THIS AGREEMENT IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY CUSTOMER. THIS AGREEMENT IS ENFORCEABLE AGAINST CUSTOMER. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, CUSTOMER MAY NOT USE THE SOFTWARE.
Customer may have another written agreement directly with Exponam (e.g., a volume license agreement) that supplements or supersedes all or portions of this agreement. The Software is LICENSED, NOT SOLD, only in accordance with the terms of this agreement. Use of some Exponam and some non-Exponam materials and services included in or accessed through the Software may be subject to additional terms and conditions.
The Software may cause Customer’s Computer to AUTOMATICALLY CONNECT TO THE INTERNET. The Software may also require licensing or registration. Additional information on activation, Internet connectivity, and privacy is available in Sections 13 and 14.
1. Definitions.
1.1 “Exponam” means Exponam, LLC, a New Hampshire Limited Liability Corporation, 155 Fleet Street, Portsmouth NH 03801.
1.2 “Exponam Products(s)” means the Exponam.Connect Excel Add-in suite of products and the Exponam .BIG file and suite of products.
1.3 “Compatible Computer” means a Computer with the recommended operating system and hardware configuration as stated in the Documentation.
1.4 “Computer” means a virtual or physical device that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions, including without limitation desktop computers, laptops, tablets, mobile devices, telecommunication devices, Internet-connected devices, and hardware products capable of operating a wide variety of productivity, entertainment, or other software applications.
1.5 “Customer” means you and any legal entity that obtained the Software and on whose behalf it is used; for example, and as applicable, your employer.
1.6 “Internal Network” means a private, proprietary network resource accessible only by employees and individual contractors (i.e., temporary employees) of a specific corporation or similar business entity. Internal Network does not include portions of the Internet or any other network community open to the public, such as membership or subscription driven groups, associations, and similar organizations.
1.7 “Output File” means an output file Customer creates with the Software.
1.8 “Permitted Number” means one (1) unless otherwise indicated under a valid license (e.g., volume license) granted by Exponam.
1.9 “Software” means (a) all of the information with which this agreement is provided, including but not limited to: (i) all software files and other computer information; (ii) any proprietary scripting logic
embedded within exported file formats; (iii) sample and stock photographs, images, sounds, clip art and other artistic works bundled with Exponam software; (iv) related explanatory written materials and files (“Documentation”); and (b) any modified versions and copies of, and upgrades, updates, and additions to, such information, provided to Customer by Exponam at any time, to the extent not provided under separate terms (collectively, “Updates”).
2. Software License
2.1 License Grant. Subject to Customer’s continuous compliance with this Agreement and payment of the applicable license fees, Exponam grants Customer a non-exclusive and limited license to install and use the Software (a) in the territory or region where Customer obtains the Software from Exponam or Exponam’s authorized reseller or as otherwise stated in the Documentation (“Territory”), (b) during the term of such license (“License Term”), (c) within the scope of the License Type and on the Permitted Number of Customer’s Compatible Computers as specified in the Documentation, and (d) in a manner consistent with the terms of this Agreement and applicable Documentation. Unless otherwise defined in this Agreement, in the applicable Documentation, or at the time of purchase, License Term shall be perpetual. Upon the expiration or termination of the License Term, some or all of the Software may cease to operate without prior notice. Upon expiration or termination of the License Term, Customer may not use the Software unless Customer has renewed the license.
2.2 License Types.
2.2.1 Unpaid, Restricted Use. The Software, or portions of the Software, that are provided paid license may only be installed and used on any number of Compatible Computers as part of an organizational deployment plan during the License Term for demonstration, evaluation, and training purposes, and only if any Output Files or other materials produced through such use are used only for internal, non-commercial, and non-production purposes. THE UNPAID, RESTRICTED-USE SOFTWARE IS PROVIDED “AS-IS”. ACCESS TO AND USE OF ANY OUTPUT FILES CREATED WITH SUCH UNPAID SOFTWARE IS ENTIRELY AT CUSTOMER’S OWN RISK.
2.2.2 Evaluation Software. The Software, or portions of the Software, that are provided with a license designated for “evaluation purposes” or other similar designation may only be installed and used on Permitted Number of Compatible Computers during the License Term for demonstration, evaluation, and training purposes only, and only if any Output Files or other materials produced through such use are used only for internal, non-commercial, and non-production purposes. THE EVALUATION SOFTWARE IS PROVIDED “AS IS”. ACCESS TO AND USE OF ANY OUTPUT FILES CREATED WITH SUCH EVALUATION SOFTWARE IS ENTIRELY AT CUSTOMER’S OWN RISK.
2.2.3 Individual or Enterprise License Software. For the Software available on a subscription-basis (“Subscription Edition”), Customer may install and use the Subscription Edition only on the Permitted Number of Compatible Computer during the License Term. Subject to the Permitted Number of Computers for the Subscription Edition, Exponam may allow Customer to install and use the most recent prior version of the Subscription Edition and the current version of the Subscription Edition on the same Computer during the License Term. Customer agrees that Exponam may change the type of Software (such as specific components, versions, platforms, languages, etc.) included in the Subscription Edition at any time and shall not be liable to Customer whatsoever for such change. Ongoing access to a Subscription Edition requires: (a) a
current license be updated on user system, (b) Exponam or its authorized reseller’s receipt of recurring subscription payments, and (c) Customer’s agreement to subscription terms and other additional terms and conditions that are available at the time of purchase. If Exponam does not receive the recurring subscription payment or cannot validate the license periodically, then the Software may revert to Unpaid, Restricted Use Software without additional notice until Exponam receives the payment or validates the license.
2.3 Portable or Home Computer Use. The primary user of the Computer on which the Software is installed under Section 2.1 (“Primary User”) may install a second copy of the Software for his or her exclusive use on either a portable Computer or a Computer located at his or her home, provided that the Software on the portable or home Computer is not used at the same time as the Software on the primary Computer.
2.4 Distribution from a Server. As permitted by the Documentation, Customer may copy an image of the Software onto a Computer file server within Customer’s Internal Network (“Server”) for the purpose of downloading and installing the Software onto Computers within the same Internal Network for use only as permitted by this Section 2.
2.5 Server Use.
2.5.1 As permitted in a separate purchasing document or Documentation and subject to license restrictions stated in this Agreement, Customer may install the Software on a Server only for the purpose of allowing an individual from a Computer within the same Internal Network (“Network User”) to access and use the Software. The Network User who has access to such Software on the Server is referred to as “Server Software User”. The total number of Server Software Users (not the concurrent number of users) may not exceed the Permitted Number. By way of example, if Customer has purchased 10 licenses of Software (Permitted Number is 10) and Customer elects to install the Software on a Server, then Customer can only allow up to 10 Server Software Users the access to the Software (even though Customer may have more than 10 Network Users or fewer than 10 concurrent users of the Software).
2.5.2 Unless otherwise stated in a separate Customer agreement: For clarification and without limitation, the foregoing does not permit Customer to install or access (either directly or through commands, data, or instructions) the Software: (a) from or to a Computer not part of Customer’s Internal Network; (b) for enabling web hosted workgroups or web hosted services available to the public; (c) by any individual or entity to use, download, copy, or otherwise benefit from the functionality of the Software unless licensed to do so by Exponam; (d) as a component of a system, workflow or service accessible by more than the Permitted Number of users; or (e) for operations not initiated by an individual user (e.g., automated server processing).
2.6 Documentation Copies. Customer may make copies of the Documentation for its own internal use in connection with use of the Software in accordance with this agreement, but no more than the amount reasonably necessary.
3. Intellectual Property Ownership.
The Software and any authorized copies that Customer makes are the intellectual property of and are owned by Exponam LLC. The structure, organization, and source code of the Software are the valuable trade secrets and confidential information of Exponam LLC and its suppliers. The Software is protected by law, including but not limited to the copyright laws of the United States and other countries, and by
international treaty provisions. Except as expressly stated herein, this agreement does not grant Customer any intellectual property rights in the Software. All rights not expressly granted are reserved by Exponam LLC and its suppliers.
4. Restrictions and Requirements.
4.1 Proprietary Notices. Any permitted copy of the Software (including without limitation Documentation) that Customer makes must contain the same copyright and other proprietary notices that appear on or in the Software.
4.2 Use Obligations. Customer agrees that it will not use the Software other than as permitted by this agreement and that it will not use the Software in a manner inconsistent with its design or Documentation.
4.3 No Modifications. Except as expressly permitted, Customer may not modify, port, adapt, or translate the Software.
4.4 No Reverse Engineering. Customer will not reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Software.
4.5 No Unbundling. The Software may include various applications and components, may support multiple platforms and languages, and may be provided to Customer on multiple media or in multiple copies. Nonetheless, the Software is designed and provided to Customer as a single product to be used as a single product on Computers as permitted herein. Unless otherwise permitted in the Documentation, Customer is not required to install all component parts of the Software, but Customer may not unbundle the component parts of the Software for use on different Computers.
4.6 No Transfer. CUSTOMER WILL NOT RENT, LEASE, SELL, SUBLICENSE, ASSIGN, OR TRANSFER ITS RIGHTS IN THE SOFTWARE (INCLUDING WITHOUT LIMITATION, SOFTWARE OBTAINED THROUGH A WEB DOWNLOAD), OR AUTHORIZE ANY PORTION OF THE SOFTWARE TO BE COPIED ONTO ANOTHER INDIVIDUAL OR LEGAL ENTITY’S COMPUTER EXCEPT AS MAY BE EXPRESSLY PERMITTED HEREIN.
4.7 No Service Bureau. Customer will not use or offer the Software on a service bureau basis.
5. Limited Warranty.
Except as otherwise stated in a separate agreement between Exponam and a Software licensee, Exponam warrants to the individual or entity that first purchases a license for the Software for use pursuant to the terms of this agreement that the Software will perform substantially in accordance with the corresponding user manual for the Software for the shorter period of (a) the ninety (90) day period or (b) License Term following receipt of the Software (“Warranty Period”) when used on the Compatible Computer. Non-substantial variation of performance from the user manual does not establish a warranty right. This limited warranty does not apply to the following, which are made available AS-IS and without warranty from Exponam: (i) patches; (ii) Pre-release Software, trial, starter, evaluation, product sampler, Evaluation Software, and not-for-resale copies of the Software; and (iii) any software made available by Exponam for free via web download from an Exponam website. All warranty claims must be made, along with proof of purchase, to the Exponam Customer Support Department within such Warranty Period. The entire liability of Exponam and its affiliates related to such warranty claim and Customer’s sole and exclusive remedy under any warranty will be limited to either, at Exponam’s option, support of the Software based on the warranty claim, replacement of the Software, or, if support or replacement is not practicable at Exponam’s determination, refund of the license fee
Customer paid for the Software (if any). THE LIMITED WARRANTY SET FORTH IN THIS SECTION GIVES CUSTOMER SPECIFIC LEGAL RIGHTS. CUSTOMER MAY HAVE ADDITIONAL RIGHTS UNDER LAW WHICH MAY VARY FROM JURISDICTION TO JURISDICTION. EXPONAM DOES NOT SEEK TO LIMIT CUSTOMER’S WARRANTY RIGHTS TO ANY EXTENT NOT PERMITTED BY LAW.
6. Disclaimer.
THE LIMITED WARRANTY IN SECTION 5 AND ANY STATUTORY WARRANTY AND REMEDY THAT CANNOT BE EXCLUDED OR LIMITED UNDER LAW ARE THE ONLY WARRANTIES AND EXCLUSIVE REMEDIES APPLICABLE TO THE SOFTWARE. OTHER THAN THOSE OFFERED AND STATUTORY WARRANTIES AND REMEDIES, EXPONAM, ITS AFFILIATES, SUPPLIERS, AND CERTIFICATE AUTHORITIES (DEFINED BELOW) DISCLAIM ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE, OR OTHERWISE AS TO ANY MATTER, INCLUDING BUT NOT LIMITED TO PERFORMANCE, SECURITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, MERCHANTABILITY, QUIET ENJOYMENT, SATISFACTORY QUALITY, AND FITNESS FOR ANY PARTICULAR PURPOSE. OTHER THAN SUCH OFFERED AND STATUTORY WARRANTIES AND REMEDIES, THE SOFTWARE AND ACCESS TO ANY WEBSITES, EXPONAM OR THIRD PARTY ONLINE SERVICES, AND CERTIFICATE AUTHORITY SERVICES ARE PROVIDED AS-IS AND WITH ALL FAULTS. THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME JURISDICTIONS. CUSTOMER MAY HAVE ADDITIONAL WARRANTY RIGHTS UNDER LAW WHICH MAY NOT BE WAIVED OR DISCLAIMED. EXPONAM DOES NOT SEEK TO LIMIT CUSTOMER’S WARRANTY RIGHTS TO ANY EXTENT NOT PERMITTED BY LAW. The provisions of Sections6 and Section 7 will survive the termination of this agreement, howsoever caused, but this will not imply or create any continued right to use the Software after termination of this agreement.
7. Limitation of Liability.
EXCEPT FOR THE EXCLUSIVE REMEDY OFFERED BY EXPONAM ABOVE AND ANY REMEDIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER LAW, EXPONAM, ITS AFFILIATES, SUPPLIERS, AND CERTIFICATE AUTHORITIES WILL NOT BE LIABLE TO CUSTOMER FOR ANY LOSS, DAMAGES, CLAIMS, OR COSTS WHATSOEVER INCLUDING ANY CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES, ANY LOST PROFITS OR LOST SAVINGS, ANY DAMAGES RESULTING FROM BUSINESS INTERRUPTION, PERSONAL INJURY OR FAILURE TO MEET ANY DUTY OF CARE, OR CLAIMS BY A THIRD PARTY, EVEN IF AN EXPONAM REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS, OR COSTS. IN ANY EVENT, EXPONAM’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES, SUPPLIERS, AND CERTIFICATE AUTHORITIES UNDER OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT PAID FOR THE SOFTWARE, IF ANY. THIS LIMITATION WILL APPLY EVEN IN THE EVENT OF A FUNDAMENTAL OR MATERIAL BREACH OR A BREACH OF THE FUNDAMENTAL OR MATERIAL TERMS OF THIS AGREEMENT. Nothing contained in this agreement limits Exponam’s liability to Customer in the event of death or personal injury resulting from Exponam’s negligence or for the tort of deceit (fraud). Exponam is acting on behalf of its affiliates, suppliers, and Certificate Authorities for the purpose of disclaiming, excluding and limiting obligations, warranties, and liability, but in no other respects and for no other purpose.
THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN CUSTOMER’S JURISDICTION. THIS LIMITATION OF LIABILITY MAY NOT BE VALID IN SOME JURISDICTIONS. CUSTOMER MAY HAVE RIGHTS THAT CANNOT BE WAIVED UNDER CONSUMER
PROTECTION AND OTHER LAWS. EXPONAM DOES NOT SEEK TO LIMIT ITS WARRANTY OR REMEDIES TO ANY EXTENT NOT PERMITTED BY LAW. SEE SECTION 16 FOR JURISDICTION-SPECIFIC STATEMENTS.
8. Export Rules.
Customer acknowledges that the Software is subject to the U.S. Export Administration Regulations (the “EAR”) and that Customer will comply with the EAR. Customer will not export or re-export the Software, directly or indirectly, to: (a) any countries that are subject to U.S. export restrictions (including, but not limited to, Cuba, Iran, North Korea, Sudan, and Syria), (b) any end user whom Customer knows or has reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons, or rocket systems, space launch vehicles, and sounding rockets, or unmanned air vehicle systems, or (c) any end user who has been prohibited from participating in the U.S. export transactions by any federal agency of the U.S. government. In addition, Customer is responsible for complying with any local laws in Customer’s jurisdiction which may impact its right to import, export or use the Software. If Exponam has knowledge that a violation has occurred, Exponam may be prohibited from providing maintenance and support for the Software.
9. Governing Law.
If Customer is a consumer who uses the Software for only personal non-business purposes, then this agreement will be governed by the laws of the jurisdiction which Customer purchased the license to use the Software. If Customer is not such a consumer, this agreement will be governed by and construed in accordance with the substantive laws in force in: (a) the State of New York, if a license to the Software is obtained when Customer is in the United States, Canada, or Mexico; (b) Japan, if a license to the Software is obtained when Customer is in Japan; (c) Singapore, if a license to the Software is obtained when Customer is in a member state of the Association of Southeast Asian Nations, Mainland China, Hong Kong S.A.R., Macau S.A.R., Taiwan, or the Republic of Korea; or (d) England and Wales, if a license to the Software is obtained when Customer is in any jurisdiction not described above. When Singapore law applies, any dispute arising out of or in connection with this agreement, including any question regarding its existence, validity, or termination, shall be referred to and finally resolved by arbitration in Singapore in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC”) for the time being in force, which rules are deemed to be incorporated by reference into this section. There shall be one arbitrator, selected jointly by the parties. If the arbitrator is not selected within thirty (30) days of the written demand by a party to submit to arbitration, the Chairman of the SIAC shall make the selection. The language of the arbitration shall be English. Notwithstanding any provision in this agreement, Exponam or Customer may request any judicial, administrative, or other authority to order any provisional or conservatory measure, including injunctive relief, specific performance, or other equitable relief, prior to the institution of legal or arbitration proceedings, or during the proceedings, for the preservation of its rights and interests or to enforce specific terms that are suitable for provisional remedies. This agreement will not be governed by the following, the application of which is hereby expressly excluded: (x) the conflict of law rules of any jurisdiction, (y) the United Nations Convention on Contracts for the International Sale of Goods, and (z) the Uniform Computer Information Transactions Act, as enacted in any jurisdiction.
10. General Provisions.
If any part of this agreement is found void and unenforceable, it will not affect the validity of the balance of this agreement, which will remain valid and enforceable according to its terms. This
agreement may only be modified in writing, signed by an authorized officer of Exponam. The English version of this agreement will be the version used when interpreting or construing this agreement. This is the entire agreement between Exponam and Customer relating to the Software and it supersedes any prior representations, discussions, undertakings, communications, or advertising relating to the Software.
11. Notice to U.S. Government End Users.
11.1 U.S. Government Licensing of Exponam Technology. Customer agrees that when licensing Exponam Software for acquisition by the U.S. Government, or any contractor therefore, Customer will license consistent with the policies set forth in 48 C.F.R. Section 12.212 (for civilian agencies) and 48 C.F.R. Sections 227.7202-1 and 227.7202-4 (for the Department of Defense). For U.S. Government End Users, Exponam agrees to comply with all applicable equal opportunity laws including, if appropriate, the provisions of Executive Order 11246, as amended, Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974 (38 USC 4212), and Section 503 of the Rehabilitation Act of 1973, as amended, and the regulations at 41 CFR Parts 60-1 through 60-60, 60-250, and 60-741. The affirmative action clause and regulations contained in the preceding sentence will be incorporated by reference into this agreement.
11.2 Commercial Items. For U.S. Government End Users, Software is a “Commercial Item(s),” as that term is defined at 48 C.F.R. Section 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. Section 12.212 or 48 C.F.R. Section 227.7202, as applicable. Consistent with 48 C.F.R. Section 12.212 or 48 C.F.R. Sections 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
12. Compliance with Licenses.
If Customer is a business, company, or organization, Customer agrees that, in addition to any license compliance checking performed by the Software, Exponam or its authorized representative have the right, no more than once every twelve (12) months, upon seven (7) business days’ prior notice to Customer, to inspect Customer’s records, systems, and facilities to verify that its use of any and all Exponam software or service is in conformity with its valid licenses from Exponam. For example, Exponam has the right to those of Customer’s records useful to determine whether installations of the Software have been serialized, and Customer shall provide such records to Exponam promptly upon request by Exponam. Additionally, Customer shall provide Exponam with all records and information requested by Exponam in order to verify that its use of any and all Exponam software is in conformity with its valid licenses from Exponam within thirty (30) days of Exponam’s request.
13. Internet Connectivity and Privacy.
13.1 Automatic Connections to the Internet. The Software may cause Customer’s Computer, without notice, to automatically connect to the Internet and to communicate with an Exponam website or Exponam domain for purposes such as providing Customer with additional information, features, or functionality.
13.2 Use of Online Services. The Software may cause Customer’s Computer, without additional notice and on an intermittent or regular basis, to automatically connect to the Internet to facilitate Customer’s access to data and content that is provided by Customer Firm or third parties as further described in Section 15.4 (Online Services). In addition, the Software may, without additional notice, automatically connect to the Internet to update downloadable data from these online services so as to provide immediate availability of said data.
13.3 Whenever the Software makes an Internet connection and communicates with an Exponam website, whether automatically or due to explicit user request, the Privacy Policy shall apply. Exponam Privacy Policy allows tracking of website visits and it addresses in detail the topic of tracking and use of cookies, web beacons, and similar devices.
13.4 Updating. The Software may cause Customer’s Computer, without additional notice, to automatically connect to the Internet (intermittently or on a regular basis) to (a) check for Updates that are available for download to and installation on the Computer and (b) notify Exponam of the results of installation attempts.
14. Peer-to-Peer Communications.
The Software may use Customer’s connection to a local area network, without additional notice, to automatically connect to other Exponam software and, in doing so, may indicate on the local area network that it is available for communication with other Exponam software. These connections may transmit the IP Address of Customer’s connection to the local network.
15. Specific Provisions and Exceptions.
This section sets forth specific provisions related to certain products and components of the Software as well as limited exceptions to the above terms and conditions. To the extent that any provision in this section is in conflict with any other term or condition in this agreement, the terms stated in this section will supersede such other term or condition.
15.1 No Prejudice; European Economic Area Provisions; Australia Mandatory Notice.
15.2 This agreement will not prejudice the statutory rights of any party, including those dealing as consumers. For example, for consumers in New Zealand who obtain the Software for personal, domestic, or household use (not business purposes), this agreement is subject to the Consumer Guarantees Act.
15.3 If Customer obtained the Software in the European Economic Area (EEA), Customer usually resides in the EEA and Customer is a consumer (that is its use of the Software is for personal, non-business related purposes), then Section 6 (Limited Warranty) does not apply to Customer’s purchase and use of the Software. Instead, Exponam warrants for a period of 2 years from purchase that the Software provides the functionalities set forth in the applicable user manual (the “agreed upon functionalities”) when used on the Compatible Computer. Non-substantial variation from the agreed upon functionalities will not establish any warranty rights. THIS WARRANTY DOES NOT APPLY TO SOFTWARE THAT CUSTOMER USES ON A PRE-RELEASE, TRYOUT, STARTER, OR PRODUCT SAMPLER BASIS, OR TO FONT SOFTWARE, OR TO THE EXTENT THE SOFTWARE FAILS TO PERFORM BECAUSE IT HAS BEEN ALTERED BY CUSTOMER. To make a warranty claim, Customer must notify the Exponam Customer Support Department during this 2 year period, providing details of proof of purchase of the Software. Exponam will verify with Customer whether there is a defect in the Software or advise Customer that the error arises
because Customer has not installed the Software correctly (in which case, Exponam shall assist Customer). If there is a defect in the Software, Customer may request from Exponam either a refund or a repaired or replacement copy of the Software. Requests must be accompanied by proof of purchase. In the event Customer’s warranty details are substantiated, Exponam will meet Customer’s request for repaired or replacement Software, unless it is not reasonable for Exponam to do so, in which case Exponam will provide Customer with a refund. For warranty assistance, please contact the Exponam Customer Support Department.
Please note that the provisions of Section 7 (Limitation of Liability) will continue to apply to any damages claims Customer makes in respect of its use of the Software. Nonetheless, Exponam shall be liable for direct losses that are reasonably foreseeable in the event of a breach by Exponam of this agreement. Customer is advised to take all reasonable measures to avoid and reduce damages, in particular by making back-up copies of the Software and its computer data.
This agreement, and in particular this Section, is intended to describe Customer’s rights (including its statutory rights) in the event there should be problems with its use of the Software. If Customer’s statutory rights are greater than this description, its statutory rights shall apply.
15.4 Nothing included in this agreement shall limit any non-waivable right to decompile the Software that Customer may enjoy under applicable law. For example, if Customer is located in the European Union (EU), Customer may have the right upon certain conditions specified in the applicable law to decompile the Software if it is necessary to do so in order to achieve interoperability of the Software with another software program, and Customer has first asked Exponam in writing to provide the information necessary to achieve such operability and Exponam has not made such information available. In addition, such decompilation may only be performed by Customer or someone else entitled to use a copy of the Software on Customer’s behalf. Exponam has the right to impose reasonable conditions before providing such information. Any information supplied by Exponam or obtained by Customer, as permitted hereunder, may only be used by Customer for the purpose described herein and may not be disclosed to any third party or used to create any software that is substantially similar to the expression of the Software or used for any other act that infringes the copyright of Exponam or its licensors.
15.5 If Customer obtains the Software in Australia, then the following provision shall apply, notwithstanding anything stated to the contrary in this Agreement:
NOTICE TO CONSUMERS IN AUSTRALIA:
Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure. Our software products also come with a 90-day limited warranty given by Exponam as set out in the Agreement. If your products do not provide the general features and functions described in the User Documentation in the 90-day period after delivery to you, please contact Exponam Customer Support with details of your product, license, and proof of purchase.
The benefits under this warranty are in addition to other rights and remedies that you may have at law.
15.6 Apple. If the Software is downloaded from the Apple iTunes Application Store (“App”), then Customer acknowledges and agrees to the following additional terms: (a) Apple has no liability for the App and its content; (b) Customer’s use of the App is limited to a non-transferable license to use the App on any iPhone™, iPad™ or iPod Touch™ that Customer owns or controls as allowed by the Application Store Terms of Service; (c) Apple has no obligation whatsoever to furnish any maintenance and support services for the App; (d) to the extent permitted by applicable law, Apple has no warranty obligation to the App and Exponam will be responsible for any claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty set forth in this Agreement; (e) Apple is not liable for any claims relating to the App or Customer’s possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal requirement; and (iii) consumer protection claims; (f) Apple is not liable for any third-party claims that the App infringes a third party’s intellectual property rights; and (g) Apple and its subsidiaries are third party beneficiaries of this Agreement with respect to any such App, and that Apple will have the right to enforce the Agreement against Customer as a third party beneficiary.
If you have any questions regarding this agreement or if you wish to request any information from Exponam, please use the address and contact information included with this product to contact Exponam.
The name of this Software, Exponam, Exponam.Connect, Exponam .BIG files, Exponam Explorer, Exponam Builder, and all related titles and logos are either registered trademarks or trademarks of Exponam, LLC in the United States and/or other countries. All other trademarks are the property of their respective owners.