TBF SOFTWARE AGREEMENT (the “Agreement”)
IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, DO NOT INSTALL THE SOFTWARE AND RETURN THE ENTIRE PACKAGE WITHIN 30 DAYS OF YOUR RECEIPT FOR A FULL REFUND.
- USE You (an entity or a person) may use this software product (the "Software") on a non-exclusive basis in the quantity purchased, either on a standalone computer or on a network, if you meet the following conditions. The Software and authorised quantity will be identified in the TBF Software Agreement Certificate accompanying the Software. In addition you may make one (1) archival copy of the Software.
a) For All Products
Standalone Computer Use
You must acquire one copy of the Software for each computer on which the Software will be installed. The primary user of the computer may also use the Software on a home and/or laptop computer, provided the Software is used on only one computer at a time.
Shared Network Use
You may use the Software on a network provided you have purchased Software equal to the maximum number of copies in use at any time. The Software is "in use" on a computer when it is resident in memory (i.e. RAM) or when executable and other files are installed on the hard drive or other storage device. Software which is stored on a server and not resident in memory on that machine is not considered "in use."
(b) Upgrades and Trade-ups
If the Software is an upgrade or a trade-up, you are authorized to use the Software only if you are an authorized user of a qualifying product as determined by TBF and provided you (i) either delete the qualifying product or install the new product on the same computer or network as the qualifying product and (ii) do not transfer the qualifying product to any other person.
- RESTRICTIONS Except as expressly authorized by this Agreement or the Release Notes (“Release Notes”), you may not alter, merge, modify or adapt the Software in any way including reverse engineering, disassembling or decompiling. You may not loan, rent, lease or license the Software or any copy. However, you may transfer the Software on a permanent basis provided you transfer the Software, this Agreement and all documentation and media and you do not retain any copies. Any transfer of the Software must include the most recent update and all prior versions.
This Section does not affect your rights under any legislation implementing the E.C. Council Directive on the Legal Protection of Computer Programs.
- INTELLECTUAL PROPERTY RIGHTS All intellectual property rights in the Software and user documentation are owned by TBF and are protected by applicable intellectual property laws (including patent, trademark and copyright laws), and international treaty provisions. TBF retains all rights not expressly granted.
- LIMITED WARRANTY For thirty (30) days from your date of purchase, TBF warrants that (i) the Software will substantially conform to the applicable user documentation and (ii) that the magnetic media on which the Software is distributed and the user documentation (if any) are free from defects in materials and workmanship. TBF will, at its option, refund the amount you paid for the Software or provide you with corrected items at no charge provided that the defective item(s) is returned to TBF within thirty (30) days from the date of purchase. Any misuse or unauthorized modification of the Software will void this limited warranty.
Except as specifically provided herein, TBF makes no warranty, representation, promise or guarantee, either express or implied, statutory or otherwise, with respect to the Software, user documentation or related technical support, including their quality, performance, merchantability or fitness for a particular purpose.
The warranty and remedies set forth herein are exclusive and in lieu of all others, oral or written, express or implied. This warranty gives you specific legal rights, and you may also have other rights which vary from jurisdiction to jurisdiction.
- LIMITATION OF LIABILITY
Because software is inherently complex and may not be completely free of errors, it is your responsibility to verify your work and to make backup copies, and TBF will not be responsible for your failure to do so. In no event will TBF be liable for indirect, special, incidental, tort, economic, cover or consequential damages arising out of the use of or inability to use TBF products or services, including, without limitation, damages or costs relating to the loss of profits, business, goodwill, data or computer programs, even if advised of the possibility of such damages. In no case shall TBF's liability for money damages exceed the amount paid by you for the Software out of which such claim arose. The foregoing limitations shall not apply to claims relating to death or personal injury. Some states, provinces or other jurisdictions do not allow the exclusion or limitation of implied warranties or limitation of liability for incidental or consequential damages, so the above exclusion or limitation may not apply to you. However, in appropriate jurisdictions, TBF limits its liability, according to the terms of this Agreement, to the fullest extent permissible at law.
- PROPRIETARY RIGHTS INDEMNITY
TBF shall indemnify and hold you harmless from and against and defend any claim, suit or proceeding, and shall pay any settlement amounts or damages awarded by a court of final jurisdiction, arising out of claims by third parties that the Software infringes any EC copyright, patent or trademark, provided that you promptly notify TBF in writing of any such claim, suit or proceeding, permit TBF to control the defence or settlement thereof and cooperate in the defence or settlement thereof. You shall have the option to be represented by counsel at your own expense. If as a result of any such claim, your right to use the Software is revoked by a court of competent jurisdiction, TBF, at its expense, shall provide you with either (i) the right to continue using the Software, (ii) a replacement or modified product with substantially the same functionality as the Software, or (iii) a refund in exchange for termination of your right to use the Software; provided that TBF, at its sole discretion, shall determine which of the foregoing shall apply. If a refund is provided, the amount shall be the original purchase price of the Software (or, if the Software was delivered to you pursuant to a maintenance agreement, the fee paid during the year of such delivery) amortized on a straight-line basis over a four-year period from the date of delivery. TBF's obligations under this section shall not apply to claims of infringement based upon (i) use of other than the latest unmodified release of the Software made available by TBF to you if such infringement would have been avoided by the use of such release of the Software, (ii) combination, operation or use of the Software with any non-TBF programs or data if such infringement would not have occurred without such combination, operation or use, or (iii) use of the Software after receiving written notice from TBF that the Software may infringe an EC patent, copyright or trademark of a third party. TBF's obligations under this section constitute your sole and exclusive remedy for a claim, suit or proceeding for an intellectual property infringement.
No TBF dealer, distributor, agent or employee is authorized to make any modification or addition to this Agreement.
The Software contains cryptographic functions which are subject to special export licensing requirements. It is your responsibility to comply with all such regulations and any other laws or regulations applicable in any relevant jurisdiction. This Agreement will be governed by the laws of the country in which the Software was purchased.
Should you have any questions concerning this Agreement or TBF's software use policies, please call or write to your local TBF sales office.