DAVe Software End User License Agreement
Rev. date: 11/01/17
NOTICE TO USER: PLEASE READ THIS BINDING AGREEMENT CAREFULLY. It is a contract between CDS Creative Data Solutions LLC (“CDS” or “we” or “us” or “our”) and you.
BY DOWNLOADING, INSTALLING, OR USING ALL OR ANY PORTION OF THE DAVe SOFTWARE, YOU ACCEPT AND AGREE TO ALL THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (“Agreement” or “EULA”), WHICH INCLUDE LIMITATIONS ON USE IN SECTION 2, LIMITATIONS ON TRANSFERABILITY IN SECTION 6, WARRANTY LIMITATIONS IN SECTIONS 8 AND 9, WARRANTY DISCLAIMERS AND LIMITATIONS ON LIABILITY IN SECTIONS 10 AND 11, AND EXCLUSIVE DISPUTE RESOLUTION PROVISIONS IN SECTION 13.
WE RESERVE THE RIGHT TO MODIFY THIS EULA IN OUR SOLE DISCRETION. THE VERSION OF THE EULA IN EFFECT AT THE TIME YOU DOWNLOADED OR INSTALLED THE DAVe SOFTWARE WILL GOVERN YOUR USE OF IT, UNLESS WE MODIFY THE EULA. WE WILL SEND NOTICE IF WE MODIFY THE EULA IN THE MANNER DESCRIBED BELOW. YOUR CONTINUED USE OF THE DAVe SOFTWARE AFTER WE ISSUE NOTICE OF A MODIFICATION TO THE EULA WILL CONSTITUTE YOUR ACCEPTANCE OF THE CHANGES AND THE REVISED EULA. IF YOU CANNOT OR DO NOT AGREE TO ALL TERMS OF THIS AGREEMENT OR A SUBSEQUENT VERSION OF IT, DO NOT USE THE DAVe SOFTWARE.
NOTIFICATION OF MODIFICATIONS TO THIS EULA
We may make modifications to this EULA from time to time. When we decide to do so, we will post the revised EULA on our website (at http://createdatasol.com/dave-eula) and in the EULA file packaged with the DAVe software download/installer, and we will email notice to you at the email address you provided when you registered to obtain the DAVe software. If you object to any modification we make to the EULA, you may terminate this Agreement and cease use of the DAVe software. Please note, though, that your use of the DAVe software after notice of modifications to the EULA will constitute your acceptance of the modified EULA.
“CDS” means CDS Creative Data Solutions LLC, a Missouri limited liability company with offices in Ballwin, Missouri.
“Software” means the DAVe software, along with all of the contents of the files and/or other material and/or media with which this Agreement is provided, including but not limited to (a) CDS and third-party computer information, applications, data and databases, and libraries; (b) related explanatory written materials or files (“Documentation”); and (c) updates, upgrades, modified versions, and additions, if any, that are provided to you by CDS (collectively, “Updates”).
“Use” (and its formatives, like “Using”) means to access, download, install, copy, or otherwise benefit from using the Software or any functionality of it. You may only Use the Software in conformity with the Documentation.
- SOFTWARE LICENSE.
Subject to your compliance with the terms and conditions of this Agreement, CDS grants to you a limited, non-exclusive, fee-bearing license to Use the Software and the Documentation for the purposes described in the Documentation.
2.1. Individual Use. You may install and Use one (1) copy of the Software on your compatible personal computer. You are authorized to Use that copy of the Software for the benefit of one (1) computer user, unless you have purchased a server license from CDS.
2.2. Server Use. You may install and Use one (1) copy of the Software on your compatible computer file server for the purpose of installing the Software on compatible personal computers within your internal computer network up to the number of copies or concurrent users for which you have purchased licenses from CDS. No other server or network use is permitted without negotiation and purchase of a separate volume or server license.
2.3. Backup Copy. You may make one (1) backup copy of the Software, provided your backup copy is not installed or Used on any computer. You may not transfer the rights to a backup copy unless you transfer all rights in the Software as provided under Section 6.
2.4. Restrictions. You may not rent, lease, sublicense, lend, or transfer any versions or copies of the Software, including any you do not Use. The licenses expressly granted in this Agreement are the only licenses granted by CDS to you. There are no implied licenses in under or in connection with this Agreement.
- INFORMATION WE COLLECT FROM YOU AND YOUR COMPUTER.
We may offer paid support pursuant to a separate agreement with you. This EULA does not include user/customer support.
We may offer or provide Updates to the Software from time to time. We will notify you if and when Updates are available or will be provided. Some Updates, particularly those that involve a significant evolution of the Software or that offer new features, may require additional payment.
- INTELLECTUAL PROPERTY RIGHTS.
The Software and Documentation and any copies that you make of them (whether authorized or not) are the property of CDS and, where applicable, its suppliers. The Software and Documentation are the valuable trade secrets and confidential information of CDS and its suppliers.
The Software is protected by copyright, including without limitation by United States copyright law, international treaty provisions, and applicable laws in the country in which it is being used.
Third-party code may be aggregated or distributed with CDS’s proprietary and copyrighted code. The copyright notices and license terms for such third-party code are detailed in the dave-license.txt file packaged with the DAVe software download/installer and also located at http://createdatasol.com/dave-license.
You may not copy the Software or Documentation, except to the extent set forth in Section 2. Any copies that you are permitted to make pursuant to this Agreement must contain the same copyright and other proprietary notices that appear on or in the Software and Documentation, as applicable. You agree not to modify, adapt, or translate the Software. You also agree not to reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Software, except (i) to the extent you may be expressly permitted to decompile under applicable law; (ii) where it is essential to do so in order to achieve operability of the Software with another software program; and (iii) after you have first requested CDS to provide the information necessary to achieve such operability and CDS has not made such information available. CDS may impose reasonable conditions and request a reasonable fee before providing such information. Any information supplied by CDS or obtained by you, as permitted hereunder, may only be used by you 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. Requests for information should be directed email@example.com. Except as expressly set forth herein, this Agreement does not grant you any intellectual property rights in the Software or Documentation.
You may not rent, lease, sublicense, or authorize all or any portion of the Software or Documentation to be copied onto another user’s computer except as may be expressly permitted herein. You may, however, transfer all your rights to Use the Software to another person or legal entity provided that: (a) you also transfer each of this Agreement, the Software and all copies, Updates, and prior versions to such person or entity; (b) you retain no copies, including backups and copies stored on a computer; and (c) the receiving party accepts the terms and conditions of this Agreement. Notwithstanding the foregoing, you may not transfer educational, pre-release, or not-for-resale copies of the Software.
- USE ONLY AS LICENSED.
As set forth in Section 2, above, the Software may only be used as licensed.
- LIMITED WARRANTY.
You hereby acknowledge that your Use of the Software may not be uninterrupted and cannot be guaranteed error-free, and you further acknowledge that the existence of any such errors will not constitute a breach of this Agreement by CDS. In particular, CDS does not guarantee that the Software will operate in conformity with the Documentation at all times.
9.1. The particular operating systems upon which the Software has been designed to execute will be published by CDS from time to time (“Compatible OS”). You agree that you will not execute or install the Software on any operating system other than a Compatible OS. You acknowledge and agree that the Software may not execute correctly and may interfere with other software if executed on an operating system that is not a Compatible OS.
9.2. In the event that any terms, conditions, representations, or warranties are implied by statute, common law, or equity (“Prescribed Terms”) into this Agreement and those Prescribed Terms cannot be lawfully excluded, the Prescribed Terms will apply to this Agreement, save that the liability of CDS for breach of any Prescribed Terms will be limited, to the extent permitted by law, at the option and sole discretion of CDS, to any one or more of the following: (a) replacement of the Software to which the breach relates or the supply of equivalent Software; (b) repair of the Software; (c) payment of the cost of replacing the Software or of acquiring equivalent Software; or (d) payment of the cost of having the Software repaired.
9.3. If the liability of CDS for breach of any Prescribed Terms is capable of exclusion, it is hereby excluded to the fullest extent permitted by law.
9.4. Except as may be required by Prescribed Terms that are not capable of exclusion or limitation, or as expressly set forth herein: (a) CDS makes no warranties in relation to the Software or Documentation, including warranties as to the performance or fitness for purpose of the Software or Documentation, which are provided as-is; (b) you will not under any circumstances have any cause of action against, or right to claim or recover from, CDS for or in respect of any loss, damage, or injury (including without limitation any loss of profit, indirect or consequential loss, damage or injury) arising from the supply or Use of the Software or any breach of these terms; and (c) subject to paragraph (b) above, the maximum liability of CDS to you in respect of any breach of this Agreement or otherwise in respect of your Use of the Software will be the amount you have paid CDS for the Software, and if you have not paid CDS any amount for the Software, the maximum liability will be USD $0 (zero dollars).
9.5. You acknowledge that this is the sole agreement between you and CDS, and you have exercised your independent judgment in acquiring the Software and have not relied upon any representations made by CDS that have not been stated expressly in this Agreement or upon any descriptions or illustrations or specifications contained in any document, including the Documentation or publicity material provided by CDS.
9.6. Please see the jurisdiction-specific information in the GOVERNING LAW section (Section 13) of this Agreement as it may pertain to warranty claims.
9.7. Please see the instructions, procedures, and policies to make a warranty claim in the REFUND POLICY section (Section 17) of this Agreement. Your exclusive remedy shall be limited at CDS’s option to either the replacement of the Software or the refund of the license fee you paid for the Software.
THE FOREGOING LIMITED WARRANTY STATES THE SOLE AND EXCLUSIVE REMEDIES FOR CDS’S OR ITS SUPPLIERS’ BREACH OF WARRANTY. CDS AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE OR DOCUMENTATION. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, AND FOR ANY WARRANTY, CONDITION, REPRESENTATION, OR TERM TO THE EXTENT TO WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO YOU IN YOUR JURISDICTION, CDS AND ITS SUPPLIERS MAKE NO WARRANTIES, CONDITIONS, REPRESENTATIONS OR TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE, OR OTHERWISE AS TO ANY OTHER MATTERS, INCLUDING BUT NOT LIMITED TO NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, SATISFACTORY QUALITY, OR FITNESS FOR ANY PARTICULAR PURPOSE.
- LIMITATION OF LIABILITY.
IN NO EVENT WILL CDS OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY DAMAGES, CLAIMS OR COSTS WHATSOEVER, OR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL DAMAGES, OR ANY LOST PROFITS OR LOST SAVINGS, EVEN IF A CDS REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS OR FOR ANY CLAIM BY ANY THIRD PARTY. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. CDS’S AGGREGATE LIABILITY AND THAT OF ITS SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THE SOFTWARE, IF ANY. Nothing contained in this Agreement limits CDS’s liability to you in the event of death or personal injury resulting from CDS’s gross negligence or intentional misconduct. CDS may act on behalf of its suppliers for the purpose of disclaiming, excluding and/or limiting obligations, warranties and liability as provided in this Agreement, but in no other respects and for no other purpose.
- EXPORT RULES.
You agree that the Software will not be shipped, transferred, or exported to any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the “Export Laws”). In addition, if the Software is identified as an export controlled item under the Export Laws, you represent and warrant that you are not a citizen, or otherwise located within, an embargoed nation (including without limitation Iran, Iraq, Syria, Sudan, Libya, Cuba, North Korea, and Serbia) and that you are not otherwise prohibited under the Export Laws from receiving the Software. All rights to use the Software are granted on condition that such rights are forfeited if you fail to comply with the terms of this Agreement.
- GOVERNING LAW AND DISPUTE RESOLUTION.
This Agreement will be governed by and construed in accordance with the substantive laws in force in the State of New York. This Agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. All disputes arising from or related to your use of the Software or Documentation shall be resolved through binding, confidential arbitration, which is the sole and exclusive remedy for any dispute. Such arbitration shall be conducted in accordance with the American Arbitration Association Commercial Arbitration Rules. (The arbitration need not be conducted, however, by or under the auspices of the American Arbitration Association if the parties mutually agree to another arbitrator.) There shall be one arbitrator selected by mutual agreement of the parties or otherwise according to such rules. Any dispute as to whether a specific issue is covered by this EULA or is subject to arbitration will be determined by the arbitrator. The arbitration shall be conducted in the complaining party’s home jurisdiction unless the amount demanded exceeds $10,000 and/or injunctive or declaratory relief is sought, in which case the arbitration shall occur in New York County, New York. The arbitrator will determine whether substantive motions or discovery will be permitted and will determine the scope of such matters, provided that the arbitrator will authorize the discovery and enter the prehearing orders necessary to ensure a fair, private hearing. Arbitration awards may be confirmed by any court of competent jurisdiction.
- GENERAL PROVISIONS.
If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. This Agreement may only be modified by a writing signed by an authorized officer of CDS. Updates may be licensed to you by CDS with additional or different terms. This is the entire agreement between CDS and you relating to the Software and Documentation, and it supersedes any prior representations, discussions, undertakings, communications, or advertising relating to the Software.
- NOTICE TO U.S. GOVERNMENT END USERS.
The Software and Documentation are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §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. For U.S. Government End Users, CDS 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 shall be incorporated by reference in this Agreement.
- COMPLIANCE WITH LICENSES.
If you are a business or organization, you agree that upon request from CDS or CDS’s authorized representative, you will within thirty (30) days fully document and certify that all Use of the Software and Documentation at the time of the request is in conformity with this Agreement.
- REFUND POLICY.
CDS does not provide refunds, but you may terminate this Agreement by uninstalling the Software and destroying all copies of the Software and Documentation in your possession or control. Obligations that by their context are intended to survive termination of this Agreement will survive such termination.
- UNINSTALL INSTRUCTIONS.
If you wish to uninstall the Software, follow the uninstall steps for your computer operating system.