END-USER LICENSE AGREEMENT FOR PAX TECHNOLOGY SOFTWARE V 1.5
IMPORTANT – READ CAREFULLY:
This End-User License Agreement (“EULA”) is a legal agreement between you (either an individual or a legal entity) and PAX Technology, Inc. for the PAX Technology product accompanying this EULA, which includes computer software and may include associated media, printed materials, online or electronic documentation, and Internet-based services (“SOFTWARE”). An amendment or addendum to this EULA may accompany the SOFTWARE and, in such case, such amendment or addendum shall be an integral part of this EULA. YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA, BY DOWNLOADING, INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE. IF YOU DO NOT AGREE TO ANY TERM OR CONDITION IN THIS EULA, DO NOT DOWNLOAD, INSTALL, COPY, OR USE THE SOFTWARE.
1. SOFTWARE PROTECTION AND LICENSE ONLY.
PAX Technology’s SOFTWARE is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The SOFTWARE is licensed to you for use only in accordance with the terms and conditions of this EULA, and not sold in any sense whatsoever. PAX Technology and its suppliers shall retain title and all ownership rights to the SOFTWARE, and this EULA shall not be construed in any manner as transferring any rights of ownership or license to the SOFTWARE or to any feature or information contained therein, except the limited rights to use as specifically stated in clauses 2 and 3 hereunder.
2. GRANT OF LICENSE.
PAX Technology hereby grants you (“Licensee”) a limited, nonexclusive, non-transferrable, non-sublicensable, royalty-free license to make copies of the SOFTWARE as needed for the Purpose, install the SOFTWARE on the CPUs of the computers owned by Licensee and stationed on Licensee’s premises, and use the SOFTWARE solely for the purpose of evaluating or operating the payment processing devices supplied by PAX Technology (the “Purpose”).
(a) Limitations on Modification, Reverse Engineering, Decompilation, and Disassembly. Licensee may not modify, reverse engineer, decompile, or disassemble the SOFTWARE, except and only to the extent that such activity is mandatorily required by applicable law notwithstanding this limitation.
(b) No Rights to Transfer, Sublicense or Rental. License may not transfer, sublicense, rent, lease or lend the SOFTWARE, or providing commercial hosting services in connection with the SOFTWARE. Where the computers installed with the SOFTWARE is transferred, rented, leased or lent or passed for possession by any person other than Licensee, Licensee must completely delete the SOFTWARE from such computers prior to such transfer, rental, lease, lending or passing for possession.
(c) Termination. Without prejudice to any other rights, PAX Technology may terminate this EULA if Licensee fails to comply with any terms or conditions of this EULA. In such event, Licensee must destroy all copies of the SOFTWARE and all of its component parts upon receipt of a notice of termination by PAX Technology and provide a certificate of destruction to such effect to PAX Technology forthwith.
(d) Reservation of Rights. Licensee agrees that the SOFTWARE is owned by PAX Technology and/or its suppliers and all rights not expressly granted herein are reserved by PAX Technology and/or its suppliers, as applicable, and undertakes not to challenge or assist any person to challenge such rights in any manner.
4. PRODUCT UPDATES AND MAINTENANCE.
Licensee understands and agrees that PAX Technology may provide updates or maintenance to the SOFTWARE from time to time but PAX Technology shall have no obligation to provide any updates or maintenance to Licensee in relation to the SOFTWARE licensed to use under this EULA. In case that PAX Technology provides any update or maintenance to the SOFTWARE, this EULA shall automatically apply to such update or maintenance, unless PAX Technology provides other terms along with such update or maintenance.
5. FURTHER USE RESTRICTION.
Licensee acknowledges that the SOFTWARE licensed to use hereunder can only be used for reseller and/or end merchant evaluation, and use of the payment processing devices supplied by PAX Technology. Use of the SOFTWARE for any other purposes such as Competitor Evaluation, Reverse Engineering, Decompilation, and Disassembly is a violation of this EULA and Licensee agrees that such use constitutes a blatant and flagrant violation and fundamental breach of this EULA and will be subject to any and all remedies and/or penalties available to PAX Technology and/or its supplier(s) under the applicable law.
(a) Licensee understands that the SOFTWARE contains confidential, proprietary or trade secret information (together “Confidential Information”) of PAX Technology and/or its suppliers and shall be maintained in strictest confidentiality. Licensee agrees that the confidentiality obligations, including without limitation the following, are an essential part of this EULA and any unauthorized disclosure by Licensee constitutes a fundamental breach to this EULA:
(i) not use the Confidential Information disclosed by PAX Technology for any purposes other than the Purpose;
(ii) protect PAX Technology ‘s Confidential Information in the same manner and with the same degree of care, but not less than a reasonable degree of care, against unauthorized use, dissemination, publication or disclosure, as Licensee uses or protects its own confidential or proprietary information of a like nature;
(iii) limit the use, circulation of and access to PAX Technology’s Confidential Information to Licensee’s directors, officers and employees who have a need to know in connection with the Purpose, are under binding obligations of confidentiality no less restrictive than those of this EULA, and have been notified that such information is Confidential Information for the Purpose, and Licensee shall be held liable if such persons do not adhere to such requirements;
(iv) not copy any of PAX Technology’s Confidential Information except as reasonably required for the Purpose;
(v) reproduce PAX Technology’s proprietary rights notices on any such authorized copies, in the same manner in which such notices were set forth in or on the original;
(vi) not reverse engineer, disassemble or decompile any prototype, software or other tangible object that embody PAX Technology’s Confidential Information; and,
(vii) notify PAX Technology in writing immediately upon the occurrence of any unauthorized release, disclosure or other breach or upon presence of threat of such occurrence.
(b) Licensee understands and agrees that disclosure or use of the SOFTWARE except as authorized above will result in irreparable harm to PAX Technology and/or its suppliers and that monetary damages may be inadequate to compensate PAX Technology and/or its suppliers for such breach. Accordingly, Licensee agrees that PAX Technology will, in addition to any other remedies available to it at law or in equity, be entitled to injunctive relief to enforce the terms of this EULA.
All title, copyrights and other intellectual property rights in and to the SOFTWARE (including but not limited to any images, photographs, animations, video, audio, music, text, and applets incorporated into the SOFTWARE), the accompanying printed materials, and any copies of the SOFTWARE are owned by PAX Technology and/or its suppliers. The SOFTWARE is protected by copyright laws, other intellectual property laws and international treaty provisions. Therefore, Licensee must treat the SOFTWARE like any other copyrighted material except that Licensee may install the SOFTWARE on authorized computers provided Licensee keep the original solely for backup or archival purposes only. License may not copy any printed materials accompanying the SOFTWARE without express authorization in this EULA or prior written permission of PAX Technology.
8. S. GOVERNMENT LICENSE RIGHTS.
All Software provided to the U.S. Government pursuant to solicitations issued on or after December 1, 1995, is provided with the commercial license rights and restrictions described elsewhere herein. All Software provided to the U.S. Government pursuant to solicitations issued prior to December 1, 1995, is provided with “Restricted Rights” as provided for in FAR, 48 CFR 52.227 -14 (JUNE 1987) or DFAR, 48 CFR 252.227-7013 (OCT 1988), as applicable.
9. EXPORT RESTRICTIONS.
Licensee acknowledges that the SOFTWARE licensed for use hereunder are subject to the export control laws and regulations of the U.S.A., and any amendments thereof. Licensee confirms that with respect to the SOFTWARE, Licensee will not export or re-export them, directly or indirectly, either to (i) any countries that are subject to U.S.A export restrictions (currently including, but not necessarily limited to, Cuba, the Federal Republic of Yugoslavia (Serbia and Montenegro), Iran, Iraq, Libya, North Korea, South Africa (military and police entities), Syria, and Vietnam); (ii) any end user who Licensee knows or has reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons; or (iii) any end user who has been prohibited from participating in the U.S.A. export transactions by any federal agency of the U.S.A. government. Licensee further acknowledges that the SOFTWARE may include technical data subject to export and re-export restrictions imposed by the laws of the U.S.A.
10. TERM AND TERMINATION.
(a) This EULA and the license granted hereunder shall remain in effect until terminated as set forth herein (the “Term”).
(b) Licensee may terminate this EULA by ceasing to use and destroying all copies of the SOFTWARE.
(c) PAX Technology may terminate this EULA, effective upon written notice to Licensee, if Licensee, materially breaches this EULA and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after PAX Technology provides written notice thereof.
(d) PAX Technology may terminate this EULA, effective immediately, if Licensee files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.
11. DISCLAIMER OF WARRANTY.
THE SOFTWARE IS PROVIDED “AS IS” AND “WITH ALL FAULTS”, WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW, PAX TECHNOLOGY FURTHER DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR BY ESTOPPEL, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CORRESPONDENCE TO DESCRIPTION OR SAMPLE, NO DEFECT IN WORKMANSHIP OR MATERIAL, LACK OF VIRUSES, AND LACK OF NEGLIGENCE. ALSO, THERE IS NO WARRANTY TO TITLE, QUIET ENJOYMENT, QUIET POSSESSION, AND NON-INFRINGEMENT WITH REGARD TO THE SOFTWARE. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE AND DOCUMENTATION REMAINS WITH LICENSEE. NO ACTIVITY, SERVICE, ADVERTISING, PACKAGING, STATEMENT OR COMMUNICATION BY PAX TECHNOLOGY OR ITS SUPPLIER(S)IN RELATION TO THE SOFTWARE, EVEN IF PRESENTED IN A FORM OF PRODUCT WARRANTY, WHETHER PRIOR TO, ON OR POST THE DATE OF THIS EULA, SHALL BE INTERPRETED AS AN ANNULMENT, IMPAIRMENT OR MODIFICATION TO THIS DISCLAIMER.
12. EXCLUSION OF CLAIMS/REMEDIES.
TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW, IN NO EVENT SHALL PAX TECHNOLOGY AND/OR ITS SUPPLIER(S) BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATON, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF PAX TECHNOLOGY AND/OR ANY OF ITS SUPPLIERS, AND EVEN IF PAX TECHNOLOGY AND/OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU UNDERSTAND AND AGREE THAT YOU HAVE WAIVED ALL RIGHTS TO ALL REMEDIES, WHETHER IN LAW OR IN EQUITY, EXCEPT IN CASE OF A FUNDAMENTAL BREACH BY PAX TECHNOLOGY AND/OR ANY OF ITS SUPPLIERS, YOU HAVE THE EXCLUSIVE AND SOLE REMEDY TO REQUEST FOR A NEW COPY OF THE SOFTWARE, WHICH PAX TECHNOLOGY HAS THE SOLE DISCRETION TO DETERMINE WHETHER TO SATISFY.
13. GOVERNING LAW AND DISPUTE SETTLEMENT.
This EULA shall be governed by and construed in accordance with the laws of the State of Florida. In case of any dispute arising out of or in connection with this EULA, you have consented to the exclusive jurisdiction of the federal and state courts sitting in the county covering, Jacksonville, Florida, U.S.A. You agree that PAX shall be entitled to recover all reasonable attorney’s fees if PAX prevails in any case or dispute arising out of or in connection with this EULA.
This EULA (including any of its addendums or amendments) constitutes the entire agreement between you and PAX Technology relating to the SOFTWARE and the support or maintenance services therein (if any) and shall replace and 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. To the extent the terms of any PAX Technology policies or programs for support services conflict with the terms of this EULA, the terms of this EULA shall control. If any provision of this EULA is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. This EULA may be modified in PAX’s absolute and sole discretion. You are responsible for checking periodically for any change of this EULA. No delay in enforcing a right or remedy under this EULA shall be deemed to be a waiver. You cannot transfer or assign this EULA or any right or obligation herein to any person without prior written consent from PAX Technology.
Should you have any questions concerning this EULA, or if you desire to contact PAX Technology for any reason, please write to: PAX Technology, Inc., 9838 Old Baymeadows Road #309, Jacksonville, FL 32256.
I have read, understand and agree to all terms and conditions of this EULA, and acknowledge receipt of a copy of this EULA. I confirm that I am a duly authorized representative of the company named above or I am an employee who has received explicit permission from said company, and I agree to operate under the terms of this EULA.