END-USER LICENSE AGREEMENT AND LIMITED WARRANTY
IMPORTANT: Please read this Agreement before using this Topaz product. By using this product, such as by loading software provided by Topaz, you are accepting the terms of this Agreement between you (“Licensee”) and Topaz Systems, Inc. (“Topaz”). If you do not agree to the terms of this Agreement, do not use the Topaz product.
1. Limited Use License:
This product includes with it a license to use certain intellectual property rights including (i) certain patented inventions, (ii) certain copyrighted work, (iii) certain software, including software which may be provided by Topaz (and Topaz’s suppliers) with the product, and (iv) related documentation. This license includes the right to install pDoc Pro software. This license is not a sale and except for the license granted by this Agreement, Topaz and its suppliers retain all right, title and interest in the patents, software and documents and any copies thereof. The license, including the right to use full pDoc Pro software, is by authorization from Topaz. The rights granted are with regard to intellectual property owned exclusively by Topaz and its suppliers and is protected by the United States Patent and Copyright laws and international treaties. If you are redistributing any Topaz software, a copy of this Agreement must be included.
2. GOVERNING LAW, JURISDICTION, AND FORUM:
This Agreement is governed by the laws of the State of California. Any dispute arising out of this Agreement must be decided in the State or Federal Courts for the County of Ventura, California.
3. YOU MAY:
(a) Use the rights granted to each individual end-user on bona-fide iOS devices and/or bona-fide Topaz signature pads designed for use with iOS devices.
(b) Make one copy of the Topaz software in machine-readable form for backup purposes, if the copy includes all copyright notices and other proprietary legends that are on the original copy of the Topaz software.
The Software contains copyrighted material, trade secrets, and other proprietary information, and in order to protect them you may not reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form except to the extent that it is unallowable to prohibit such acts under applicable law. You may not modify, network, rent, lease, loan, sell, distribute, or create derivative works based upon the Software or Documents in whole or in part. You may not electronically transfer the Software from one computer to another over a network. In addition, you may not remove, obscure, or alter any proprietary rights or notices affixed or contained in the Software or Documents. All rights not expressly granted are reserved by Topaz and/or its suppliers. You may not use the licensed rights with products that have not been authorized for use with the software. You may not remove, obscure, or alter any proprietary rights or notices affixed or contained in the Topaz software or documents. You may not sub-license the Software or rights to any 3rd-party who may be a direct competitor of Topaz or its suppliers. (If you are considering supplying Topaz software to another company other than an end-user, or have any question about this, contact Topaz first.)
5. EXPORT LAW ASSURANCES:
You agree and certify that neither the Topaz software nor any of the other technical data received from Topaz or its suppliers, nor the direct product thereof, will be exported outside of the United States except as permitted by the laws and regulations of the United States. The software and documents may contain restricted rights. Use, duplication, or disclosure by the U.S. Government may be subject to restrictions as set forth in sub-paragraph (c)(1(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraph (c)(1) and (2) of the Commercial Computer Software – Restricted Rights at 48 CFR 52.227-19 and successors thereof, as applicable.
6. LIMITED WARRANTY:
With regard to Topaz software and documents, Topaz warrants to the original buyer only, that the media upon which the Topaz software is recorded is free from defects in workmanship and material under normal use and service for a period of 30 days. Other than this warranty, you expressly acknowledge and agree that use of the Software is at your sole risk. The Software and Documents are provided ‘AS-IS’.
7. EXCLUSIVE REMEDY:
Topaz’s entire liability and your exclusive remedy shall be, at Topaz’s option, either (a) the repair or replacement of the software or (b) the refund of the price that was paid for the software package. The defective software, along with proof of payment, must be returned to Topaz within the terms of the warranty as set forth in this Agreement.
8. LIMITATIONS ON DAMAGES:
In no event, including negligence, shall Topaz be liable for damages whatsoever, (including without limitation, damages for loss of profits, business interruption, loss of information, or other pecuniary loss) arising out of the use of or inability to use the software even if Topaz or its suppliers, if any, have been aware of the possibility of such damages. In no event will Topaz’s liability for any reason exceed the actual price paid for the license to use the specific program.
This License is effective until terminated. You may terminate this License at any time by notifying Topaz and destroying the Topaz software and all copies. If you fail to comply with any provision of this License, this License will terminate immediately without notice from Topaz and other legal remedies will become available to Topaz or its suppliers. Upon termination, you must destroy all copies of the Topaz software.
10. NO OTHER WARRANTIES:
With respect to the software, media, and written material, TOPAZ AND ITS SUPPLIERS, IF ANY, DISCLAIM ALL WARRANTIES, OTHER THAN THE ABOVE TOPAZ WARRANTY, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE. TOPAZ DOES NOT WARRANT THE SOFTWARE WILL MEET REQUIREMENTS OR THAT THE OPERATIONS OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ANY DEFECTS IN THE SOFTWARE WILL BE CORRECTED. FURTHERMORE, NEITHER TOPAZ NOR ITS SUPPLIERS WARRANT OR MAKE ANY REPRESENTATIONS IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN ADVICE GIVEN BY TOPAZ, ITS SUPPLIERS, OR ANY TOPAZ AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTY DESCRIBED HEREIN. Should the Software prove defective, you (and not Topaz, its suppliers or any Topaz Authorized Representative) assume the entire cost of all necessary servicing, repair, or correction. Some states may not allow the exclusion of implied warranties, so the above exclusion may not apply to you.
Topaz software and hardware products may be protected under one or more of US patents: 5,120,908; 5,122,623; 6,307,955, 4,573,196, 4,531,231, 4,561,105, 4,718,102, 5,933,514 5,544,255, 5,647,017, 5,818,955, 6,064,751, 6,091,835 and 5,644,655, Australia Patent No. 688,589, and New Zealand Patent No. 292439.
12. GOVERNING LAW AND 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. You agree that the Topaz software will not be shipped, transferred, or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations. This agreement shall automatically terminate upon failure of you to comply with its terms. This agreement may only be modified in writing signed by an officer of Topaz Systems, Inc. This agreement will not be governed by the United Nations convention on contracts for the International sale of goods, the application of which is expressly excluded.