PLEASE CAREFULLY READ THIS LICENSE AGREEMENT (the “License Agreement”)
BEFORE INSTALLING THE SOFTWARE. BY INSTALLING THE SOFTWARE AND
CLICKING YOUR ACCEPTANCE OF THESE TERMS, THE PERSON OR BUSINESS
ENTITY RECORDING SUCH ACCEPTANCE (“YOU” or “LICENSEE) AGREES TO THE
TERMS OF THIS LICENSE AGREEMENT. IF YOU DO NOT AGREE WITH THE TERMS
OF THIS LICENSE AGREEMENT, YOU MAY OBTAIN A FULL REFUND OF YOUR
LICENSE PURCHASE PRICE BY RETURNING THE SOFTWARE, DOCUMENTATION
AND ALL PACKAGING AND RELATED MATERIALS, TOGETHER WITH YOUR DATED
PROOF OF LICENSE PURCHASE, WITHIN FIVE DAYS AFTER YOUR DATE OF
PURCHASE TO THE PARTY FROM WHOM YOU PURCHASED THIS LICENSE FOR
THE SOFTWARE.
LICENSE AGREEMENT
1 License. Subject to the terms and conditions of this License Agreement,
Gravic, Inc. ("Gravic") grants to you, and you accept, a limited, nonexclusive, non-transferable (except as expressly provided under Permitted
Uses below), revocable (in the event of your breach of this License
Agreement) license (“License”) of one licensed copy of the Remarktm brand
software, in machine-readable, object code form only, including any updates,
upgrades or supplements made available to you by Gravic ("Software") and
related materials ("Documentation"), whether provided physically or
electronically, subject to the limitations set forth in this Agreement. This
License continues for the license period set forth in the LCF (as defined below)
or until any violation by you of any of these License Agreement terms and
conditions, whichever sooner, in which event Gravic shall have the right to
immediately terminate this License Agreement and remotely suspend your
use of the Software. In the event of any termination of the License for cause
by Gravic, no refunds or credits will be given by Gravic, and you will not be
entitled to any Software updates, fixes or patches, and all warranties and
obligations of Gravic contained in this License Agreement will be null and
void. While you own any hardware on which the Software and Documentation
may be delivered to you, as well as any information or data you upload to the
Software (“Customer Information”), Gravic retains exclusive copyright, title
and ownership to and the right to periodically modify the Software and
Documentation, all trademarks and service marks associated therewith, and
all, regardless of the author, as well as enhancements, modifications and
derivative works thereto, and all rights not expressly granted in this License
Agreement. You agree to take all reasonable actions to protect the
confidentiality and Gravic's ownership of the Software and Documentation,
even after termination of this License. If you have licensed the Software and
Documentation on a multiple license basis, you will be provided by Gravic (or
its reseller) with a License Credential Form (“LCF”), stating serial number,
authentication code and maintenance expiration date, with delivery of the
Software and Documentation. You may install up to the number of copies of
the Software set forth on the LCF and this License Agreement shall apply
independently to each licensed copy of the Software and Documentation. If a
multiple license basis is not expressly provided on a LCF, this License
Agreement shall apply to only one licensed copy of the Software and
Documentation and that license shall be perpetual as long as you fully comply
with this License Agreement. The LCF also specifies the term of your License
as perpetual or one-year (renewal annually). Payment of all applicable
License and Services fees shall be due within 30 days of the date of invoice.
In the event you license the Software on an annual basis and do not renew
and pay the applicable renewal fee by the one-year expiration date, the
Software will cease operation and you release Gravic from any and all claims
and damages arising or resulting from such cessation.
2 Permitted Uses. You may:
▪ Use each licensed copy of the Software on a single personal computer at a
single location.
▪ Use the Software and Documentation for only your own internal business
needs.
▪ Make one backup copy of the Software (for your own protection) that
includes Gravic's copyright notice.
▪ Allow any one employee at any one time to use each licensed copy of the
Software and Documentation in your business.
▪ Transfer all licensed copies of the Software and Documentation (including
all updates and all disks) to another individual employee of your company
for use exclusively within the country in which the Software and
Documentation were originally licensed, provided you retain no copies and
the other party registers in advance with Gravic as a user subject to the
terms of this License Agreement.
3 Prohibitions. You may not:
▪ Modify, adapt or alter the Software or Documentation, or use or virtualize
any of their features separately.
▪ Reverse engineer, disassemble, decompile, create derivative works, work
around any technical restrictions or limitations in the Software, or merge
into another software product the Software or Documentation.
▪ Translate the Software or Documentation into another language or format.
▪ Operate each licensed copy of the Software at any one time on more than
one computer, allow use at any one time by more than one individual, or
install the Software on a server or other device which is accessible or
useable by multiple individuals.
▪ Make the Software or Documentation available to anyone other than an
employee as provided under Permitted Uses.
▪ Copy the Software or Documentation except to make one backup copy as
permitted above.
▪ License, sublicense, sell, transfer, distribute, publish, disclose, publicly
display, rent, lease, lend, electronically transfer or communicate, use in a
network, timesharing, Internet, hosting or service bureau arrangement, or
otherwise make available or grant rights in the Software or
Documentation.
▪ Remove, alter or obstruct Gravic's copyright notices or trademarks on the
Software and Documentation.
▪ Transfer the Software or Documentation outside the country in which the
Software and Documentation were originally licensed, or in violation of
this License Agreement or applicable laws or otherwise distribute or the
Software or Documentation with any third parties.
▪ Use any trade secrets or proprietary information of Gravic contained in the
Software or Documentation, except for the Permitted Uses set forth
above.
4 Services. Subject to available resources, Gravic will use commercially
reasonable efforts to provide maintenance and support services (“Services”)
without charge during the initial period of this License as specified on your
LCF, and thereafter upon request and payment of any applicable fees by
Licensee. All Services will be provided in accordance with Gravic’s standard
policies and procedures, located at
www.remarksoftware.com/support/policy.html.
5 Limited Warranty. For a period of 30 days after your purchase of this License,
Gravic warrants that the Software and Documentation will be free in all
material respects from physical defects under normal use, and that the
Software will perform in substantial conformity with the Documentation under
normal use. For a period of 30 days after performance of Services, Gravic
warrants that such Services have been performed in a professional manner.
Gravic does not warrant that the Software, Documentation or Services will
meet your needs or will be uninterrupted, error-free or that any error or nonconformity can be remedied. The Software is not fault-tolerant and is not
designed, manufactured or intended for use with on-line control equipment or
in hazardous environments requiring fail-safe performance, such as in the
operation of nuclear facilities, aircraft navigation or communication systems,
air traffic control, life support machines, or weapons systems, in which the
failure of the Software could lead directly to death, personal injury, or severe
physical or environmental damage ("High Risk Activities"). EXCEPT FOR THE
EXPRESS LIMITED WARRANTY SET FORTH ABOVE AND TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE, SERVICES AND
DOCUMENTATION ARE PROVIDED “AS IS” AND GRAVIC MAKES NO OTHER
WARRANTIES, GUARANTEES OR CONDITIONS, ORAL OR WRITTEN, EXPRESS
OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF NONINFRINGEMENT AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE (WHICH ARE EXPRESSLY
DISCLAIMED), CONCERNING THE SOFTWARE, DOCUMENTATION OR
SERVICES. ANY IMPLIED WARRANTIES THAT BY LAW CANNOT BE
DISCLAIMED SHALL BE LIMITED TO A PERIOD OF 30 DAYS AFTER PURCHASE
OF THIS LICENSE OR AFTER PERFORMANCE OF SERVICES, AS APPLICABLE.
THIS LIMITED WARRANTY IS VOID IN THE EVENT OF ANY VIOLATION BY YOU
OF THIS LICENSE AGREEMENT, YOUR FAILURE TO FOLLOW INSTRUCTIONS,
OR YOUR ACCIDENT, ABUSE OR MISUSE OF THE SOFTWARE. GRAVIC IS NOT
RESPONSIBLE FOR EVENTS BEYOND ITS REASONABLE CONTROL. Upon
request by Licensee, Gravic may provide Licensee with hardware and software
manufactured or developed by entities other than Gravic. Gravic makes no
representations or warranties with respect to such third party products and
will have no liability with respect to such products, but Gravic will assign to
Licensee any warranties made by the respective manufacturer or developer to
the end-user of such products.
6 Remedies; Limitations of Liability. In the event of any failure of the limited
warranty as provided above within the applicable warranty period, Licensee’s
sole remedy shall be for Gravic, without charge, to replace any Software or
Documentation having a material physical defect, use commercially
reasonable efforts to correct any substantial non-conformity of the Software
with the Documentation, use commercially reasonable efforts to re-perform
any deficient Services, or at Gravic's option, refund the purchase price for the
license of the Software and Documentation or for the Services, as applicable.
To receive the benefit of these warranties for the Software and
Documentation, you must submit dated proof of purchase and the defective
items to Gravic with a description of the defect, and you must register your
product with Gravic. THE ABOVE REMEDIES ARE EXCLUSIVE. IN NO EVENT
SHALL GRAVIC BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, (INCLUDING WITHOUT
LIMITATION CLAIMS FOR LOSS OF DATA, USE OR REVENUES), WHETHER
ACTION IS BASED ON TORT, CONTRACT, STRICT LIABILITY, OR ANY OTHER
THEORY, EVEN IF GRAVIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. IN NO EVENT SHALL GRAVIC'S AGGREGATE LIABILITY EXCEED
THE LICENSE PURCHASE PRICE FOR THIS COPY OF THE SOFTWARE AND
DOCUMENTATION OR THE PURCHASE PRICE FOR THE SERVICES, AS
APPLICABLE. In the event you breach any provisions of this License
Agreement, Gravic may terminate this License Agreement, you will
immediately discontinue all use of and return to Gravic all copies of the
Software and Documentation, and you will reimburse Gravic for all of its
reasonable costs of investigation and enforcement.
7 Other Rights. This License Agreement gives you specific legal rights, and you
may have other rights that vary from state to state. Some states do not allow
the exclusion or limitation of duration of implied warranties or the exclusion of
liability for incidental or consequential damages, so some of the above
exclusions and limitations may not apply to you. In any such event, Gravic’s
maximum liability shall not exceed the price you paid for the applicable
License or Services.
8 Registration. To receive the benefit of Gravic's warranty and user
announcement programs, you must register your product with Gravic to
confirm your agreement with the terms of this License Agreement.
9 U.S. Government Entities. if you are a U.S. Government entity, then your
use, duplication or disclosure of the Software and Documentation is subject to
the following restricted rights clause. The Software and Documentation are
“Commercial Items,” as that term is defined in 48 C.F.R Section 2.101,
consisting of “commercial computer Licensed Software” and “computer
software documentation,” as such terms are used in 48 C.F.R Section
252.227-7014(a)(1) and 48 C.F.R Section 252.227-7014(a)(5), respectively,
and used in 48 C.F.R. Section 12.212 and 48 C.F.R. Section 227.7202, as
applicable, and all as amended from time to time. Consistent with 48 C.F.R
Section 12.212 and 48 C.F.R. Section 227.7202-1 through 227.7202-4, and
other relevant sections of the Code of Federal Regulations, as applicable, and
all as amended from time to time, all U.S. Government entities license the
Software and Documentation (a) only as Commercial Items, and (b) with only
the rights explicitly set forth in this License Agreement and the LCF, if
applicable.
10 Governing Law. This License Agreement is governed by the laws of the
Commonwealth of Pennsylvania, and you consent to the exclusive jurisdiction
of the federal and state courts located in Philadelphia, Pennsylvania regarding
any matters related to or arising from this License Agreement, the License,
Software, Documentation or Services, provided Gravic may enforce its
intellectual property rights in any applicable jurisdiction. This License
Agreement will be construed and enforced without regard to the United
Nations Convention on the International Sale of Goods or the Uniform
Computer Information Transaction Act.
11 Export Law. The Software and Documentation is subject to United States
export control jurisdiction, and may not be shipped, transferred, re-exported
to any country or recipient, or used for any purpose prohibited by any
applicable international and national laws that apply to the Software and
Documentation, including the U.S. Export Administration Regulations as well
as end-user, end-use, and destination restrictions issued by the United States
and other governments. You will not export or re-export Software and
Documentation without first obtaining the appropriate U.S. or foreign
government export licenses.
12 Customer Information. You are solely responsible for all Customer
Information and ensuring that you have the right to utilize it in connection
with your use of the Software and/or Services. You agree to comply with all
applicable laws and regulations including, but not limited to, laws pertaining
to the collection and use of personally-identifiable information to the extent
any is contained in the Customer Information, which includes ensuring that
you have obtained all necessary consents and authorizations necessary for
the Customer Information to be processed in connection with this License
Agreement. Licensee shall defend, indemnify, and hold harmless Gravic and
its officers, directors and shareholders from any and all losses, damages,
fines, settlements and claims resulting from Licensee’s provision or use of the
Customer Information and Licensee’s use of any outputs of the Software.
13 Privacy. You acknowledge that each copy of the Software has a unique digital
fingerprint which may provide Gravic information regarding the version of the
Software being used, the computer on which the Software is installed, usage
of the Software and other digital data. Some or all of these features can be
switched off in the user interface. By agreeing to this License Agreement and
using the Software you agree that Gravic may collect, use and disclose such
data. Gravic’s access to and use of such data is governed by Gravic’s Data
Collection and Use Policy located at http://remarksoftware.com/datacollection-policy. The Software may also check for available updates and
upgrades, and either automatically download and install them or notify you of
their availability.
14 Artificial Intelligence. Gravic may elect to embed certain third-party artificial
intelligence tools (“AI Tools”) within the Software to assist you in answering
queries related to your use of the Software. You acknowledge that in order for
such queries to be answered the information you submit will be provided by
Gravic to our third-party artificial intelligence licensors (the “AI Providers”) for
processing. You hereby consent to such processing and storage of any data
you submit to the AI Tools by Gravic and the AI Providers and agree to not
submit any personally identifiable information in connection with such
queries. The information and responses provided by the AI Tools are provided
only for your convenience and Gravic hereby disclaims any and all
representations, warranties or other guarantees with respect to your usage of
the AI Tools or any of the responses generated by such AI Tools as
incorporated into Gravic’s products or services. Gravic and/or the AI Providers
may utilize any inputs you provide for purposes of generating responses and
to improve the responses generated by the AI Tools. You may not utilize the
AI tools (i) for purposes of reverse engineering such AI Tools or to discover
any of the underlying components or algorithms utilizes by such tools (ii) for
the creation of information used to train or develop any artificial intelligence
models or tools; (iii) to make decisions or take actions without appropriate
human oversight that may have a consequential impact on any individual’s
legal position, financial position, life opportunities, employment opportunities,
or human rights, or may result in physical or psychological harm to an
individual; (iv) to impersonate any person or entity, including to gain
information or privileges; or (v) in any way that violates applicable law.
Licensee shall defend, indemnify, and hold harmless Gravic and its officers,
directors and shareholders from any and all losses, damages, fines,
settlements and claims resulting from Licensee’s violation of any of the
requirements of this paragraph. If you have questions about any outputs
generated by the AI Tools please contact us at remark@gravic.com.
15 GDPR Compliance. By agreeing to this End User License Agreement, you are
expressly authorizing Gravic to use and store your name, email address,
digital fingerprint, and other personal information as required for Gravic to
service your account and to protect its software. Licensees covered by the
General Data Protection Regulation of the European Union (GDPR) or its
analogs in Switzerland or the United Kingdom can request that Gravic correct,
provide copies of, or remove your personal information from its systems.
Doing so may terminate your ability to use the Software and will end Gravic’s
obligation to provide further customer or support services to you. No refund
will be provided in such situations. For questions on GDPR or to be removed
from our records please email GDPR@gravic.com and provide the details
needed to address your concern.
16 Entire Agreement. This License Agreement, and the terms contained in the
web links specifically listed in this License Agreement, constitute the complete
agreement between you and Gravic regarding the License, Software,
Documentation and Services. To the extent you submit a purchase order in
connection with your purchase of the License or any Services, any additional
or conflicting terms contained in such purchase order are hereby deemed null
and void and shall have no effect on the terms of this License Agreement.
Terms contained in the specified links may be updated and supplemented
periodically by Gravic, such changes will become effective ten (10) business
days after posting by Gravic, and you should review such links periodically for
any changes. No other information, whether provided in writing or orally,
supplied by Gravic or its dealers, resellers, distributors or representatives,
may be relied upon, and any such information is not a part of our agreement
regarding the License, Software, Documentation and Services. This License
Agreement can be modified, supplemented or amended only by a written
instrument signed by you and Gravic. If any provision of this License
Agreement is unenforceable or unlawful, the remaining provisions shall
continue to be valid and enforceable. No failure or delay in exercising any
right shall operate as a waiver of such right.
Should you have any questions concerning this License Agreement, or if you wish
to contact Gravic for any reason, please write: Gravic, Inc., 17 General Warren
Boulevard, Malvern, PA 19355 USA or email Gravic at remark@gravic.com.
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