END USER LICENSE AGREEMENT
FOR WINWURX SOFTWARE
PLEASE READ THIS END USER LICENSE AGREEMENT (“EULA”) CAREFULLY. BY CLICKING “I AGREE” OR TAKING ANY STEP TO DOWNLOAD, SET-UP, INSTALL OR USE ALL OR ANY PORTION OF THIS PRODUCT (INCLUDING, BUT NOT LIMITED TO, THE SOFTWARE, MOBILE APPLICATION, WEB PORTAL AND ASSOCIATED FILES (THE “SOFTWARE”), HARDWARE (“HARDWARE”), OR OTHER MEDIA) (COLLECTIVELY, THE “PRODUCT”) YOU AND YOUR COMPANY ACCEPT ALL THE TERMS AND CONDITIONS OF THIS EULA. THE TERM “SOFTWARE” EXCLUDES CERTAIN OPEN SOURCE SOFTWARE PROGRAMS AND COMPONENTS AGGREGATED WITH THE SOFTWARE. IF YOU ACQUIRE THE PRODUCT FOR YOUR COMPANY’S USE, YOU REPRESENT THAT YOU ARE AN AUTHORIZED REPRESENTATIVE WHO HAS THE AUTHORITY TO LEGALLY BIND YOUR COMPANY TO THIS EULA. IF YOU DO NOT AGREE, DO NOT CLICK “I AGREE” AND DO NOT ACCESS, DOWNLOAD, SET-UP, INSTALL OR USE THE SOFTWARE.
1. Ownership. Winwurx Inc. (“Winwurx”) and its suppliers own all right, title, and interest in and to the Software, in all forms utilized by all hardware and devices, including all intellectual property rights therein. The Software is licensed, not sold. The structure, organization, and code of the Software are the valuable trade secrets and confidential information of Winwurx and its suppliers. The Software is protected by copyright and other intellectual property laws and treaties, including, without limitation, the copyright laws of the United States and other countries.
2. Product License. Subject to your compliance with the terms of this EULA, Winwurx grants you a personal, non-exclusive, non-transferable, limited license to access this Software VIA one (1) device and only for the purposes described in the associated documentation. Use of some third party software or other media provided with the Product may be subject to terms and conditions of a separate license agreement; this license agreement may be contained in a “Read Me” file located on the other media that may accompany that Product. Except as expressly stated herein, this EULA does not grant you any intellectual property rights in the Product. Winwurx and its suppliers reserve all rights not expressly granted to you. There are no implied rights.
2.1 Software. You may not alter or modify the Software or create a new installer for the Software. The Software is licensed and distributed by Winwurx for use with its storage products only, and may not be used with a non-Winwurx storage product.
3. Restrictions. You are not entitled to do any of the following:
a) Create derivative works based on the Product or any part or component thereof, including, but not limited to, the Software;
b) Reproduce the Software, in whole or in part;
c) Except as expressly authorized by Section 10 below, sell, assign, license, disclose, or otherwise transfer or make available the Software, in whole or in part, to any third party;
d) Alter, translate, decompile, or attempt to reverse engineer the Software or any part of component thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this contractual prohibition;
e) Use the Software to provide services to third parties; or
f) Remove or alter any proprietary notices or marks on the Software
4. Updates. If you receive an update or an upgrade to, or a new version of, any Software (“Update”) you must possess a valid license to the previous version in order to use the Update. All Updates provided to you shall be subject to the terms and conditions of this EULA. If you receive an Update, you may continue to use the previous version(s) of the Software in your possession, custody or control. Winwurx shall have no obligation support the previous versions of the Software upon availability of an Update. Winwurx has no obligation to provide support, maintenance, Updates, or modifications under this EULA.
5. No Warranty.
6. Exclusion of incidental, consequential, and certain other damages. To the maximum extent permitted by applicable law, in no event shall Winwurx or its suppliers 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 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 product or any part or component thereof or related service, or otherwise under or in connection with any provision of the EULA, even in the event of the fault, tort (including negligence), misrepresentation, strict liability, breach of contract, or breach of warranty of Winwurx or its suppliers, and even if Winwurx or its supplier has been advised of the possibility of such damages and notwithstanding any failure of the essential purpose of this agreement or any remedy.
7. Limitation of liability. Notwithstanding any damages that you might incur for any reason whatsoever, the entire liability of Winwurx and any of its suppliers under any provision of this EULA and your exclusive remedy hereunder shall be limited to, and in no event will Winwurx or its suppliers total cumulative damages exceed, the fees paid by you to Winwurx for the product.
8. Indemnification. By accepting the EULA, you agree to indemnify and otherwise hold harmless Winwurx, its officers, employee, agents, subsidiaries, affiliates, and other partners from any direct, indirect, incidental, special, consequential or exemplary damages arising out of, relating to, or resulting from your use of the Product or any other matter relating to the Product.
9. International Trade Compliance. The PRODUCT and any related technical data made available for download under this EULA is subject to the customs and export control laws and regulations of the United States (“U.S.”) and may also be subject to the customs and export laws and regulations of the country in which the download is contemplated. Further, under U.S. law, the Software PRODUCT and any related technical data made available for download under this EULA may not be sold, leased or otherwise transferred to restricted countries, or used by a restricted end-user (as determined on any one of the U.S. government restricted parties lists, found at http://www.bis.doc.gov/complianceandenforcement/liststocheck.htm or an end-user engaged in activities related to weapons of mass destruction including, without limitation, activities related to designing, developing, producing or using nuclear weapons, materials, or facilities, missiles or supporting missile projects, or chemical or biological weapons. You acknowledge that you are not a citizen, national, or resident of, and are not under control of the government of Cuba, Iran, North Korea, Sudan or Syria; are not otherwise a restricted end-user as defined by U.S. export control laws; and are not engaged in proliferation activities. Further, you acknowledge that you will not download or otherwise export or re-export the Software or any related technical data directly or indirectly to the above-mentioned countries or to citizens, nationals, or residents of those countries, or to any other restricted end-user or for any restricted end-use.
10. General. This EULA between you and Winwurx is governed by and construed in accordance with the laws of the State of North Carolina without regard to conflict of laws principles. The EULA constitutes the entire agreement between Winwurx and you relating to the Product and governs your use of the Product, superseding any prior agreement between you and Winwurx relating to the subject matter hereof. If any provision of this EULA is held by a court of competent jurisdiction to be contrary to law, such provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of the EULA will remain in force and effect. The Product and any related technical data are provided with restricted rights. Use, duplication, or disclosure by the U.S. Government is subject to the restrictions as set forth in subparagraph (c)(1)(iii) of DFARS 252.227-7013 (The Rights in Technical Data and Computer Product) or subparagraphs (c)(1) and (2) of 48 CFR 52.227-19 (Commercial Computer Product – Restricted Rights), as applicable. The manufacturer is Winwurx. You may not transfer or assign this EULA or any rights under this EULA, except that you may make a one-time, permanent transfer of this EULA and the Software to another end user, provided that (i) you do not retain any copies of the PRODUCT, the Hardware, the media and printed materials, Upgrades (if any), and this EULA, and (ii) prior to the transfer, the end user receiving this EULA and the Software agrees to all the EULA terms. Any attempted assignment in violation of this Section is void. Winwurx, the Winwurx logo, and other Winwurx names and logos are the trademarks of Winwurx.
11.Disclaimer.
11.1 Message and data rates may apply for downloading and accessing this content. You shall be responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for access to and use of the Services and all charges related thereto.
11.2 You expressly agree that use of this application via the internet or wireless services is at your sole risk.
11.3 Neither Winwurx Inc. nor any of the respective employees, agents, third party content providers or licensors warrant that the service will be uninterrupted or error free; nor do they make any warranty as to the results that may be obtained from use of the service, or from the information contained therein, or as to the accuracy or reliability of any information or service provided through the Service.
11.4 The Service is provided on an "as is" basis without warranties of any kind, either express or implied, including but not limit to, warranties of title or implied warranties of merchantability or fitness for a particular purpose, other than those warranties which are implied by and incapable of exclusion, restriction or modification under applicable law. Additionally there are no warranties as to the results obtained from the use of the Service.
11.5 This disclaimer of liability applies to any damages or injury caused by any failure or performance, error, omission, inaccuracy, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction or unauthorized access to, alteration of, or use of the Service, whether for breach of contract, tortious behavior , including, without limitation, strict liability, negligence, or under any other cause of action, to the fullest extent permissible by law. You specifically acknowledge that Winwurx is not liable for the defamatory, offensive or illegal conduct of other users or third-parties over which it has no control or for any disclosure of any type of information transmitted through the use of the Service.
11.6 Winwurx, Inc. and the third party content providers are not liable for damages, losses and causes of action whether in contract, tort (including, without limitation, strict liability) for accessing the Service. Winwurx Inc. also assumes no responsibility, and shall not be liable for, any damages to, or viruses that may infect, your computer equipment or other property on account of your access to, use of, or browsing in the Service or your downloading of any materials, data, text, images, video or audio from the Service.