Gaumard ADVANCED ZACK S230.200, User Manual

Page: 33 / 37

End User License Agreement | 33
S230.200 ADVANCED ZACK™
| USER GUIDE
or a third party, will remain at all times solely and exclusively owned by Gaumard. Nothing in this EULA or the Purchase Order will be construed to
grant End User any rights of any kind with respect to the Gaumard Software, except as expressly set forth in this EULA.
2.3 Reverse Engineering and Other Restrictions. End User will not, and will not allow any third party to, tamper with, modify, decompile, disassemble,
derive the source code of, reverse engineer, or attempt to obtain the internal design of the Gaumard Software or Gaumard Products for any purpose
whatsoever (collectively, “Restricted Acts”). If applicable law permits End User to take any of the Restricted Acts notwithstanding the previous
prohibition, and End User wishes to take any Restricted Act notwithstanding the previous prohibition, End User will first provide Gaumard with thirty
(30) days prior written notice. Gaumard may terminate this EULA at any time during such notice period without liability arising from such termination.
The parties agree that all information needed for interoperability is available from Gaumard in accordance with applicable government directives.
2.4 Updates. From time to time Gaumard may develop new versions or updates for the Gaumard Software that may be made available to the End
User as agreed under the terms of the Gaumard Sales Terms and Conditions, Gaumard Purchase Order documents, Gaumard Warranty documents,
or Gaumard Cares Service Plan documents. Unless otherwise agreed to by Gaumard, End User sHAL®l be responsible for installing the provided new
versions or updates for the Gaumard Software.
2.5 Proprietary Notices. End User agrees to maintain and reproduce on all copies of the Gaumard Software, any names, logos, copyright notices,
trademarks, other proprietary markings, and legends that appear on the Gaumard Software.
2.6 Control of Duplication. End User will not, nor will it allow any third party to, circumvent the protection controlling the duplication or use of the
Gaumard Software, for example and without limitation, any software lock controlling the number of copies End User may make of the Gaumard
Software.
2.7 No Source Code. End User acknowledges and agrees that its rights under this EULA do not include rights to source code. In its exercise of the
rights granted under this EULA, End User agrees not to take any action that would result in any requirement to disclose or make available to other
parties the Gaumard Software in source code format.
2.8 Certification. Upon thirty (30) days written notice to End User from Gaumard, End User sHAL®l certify End User’s compliance with the restrictions
and obligations in this EULA. Such requests will not occur more frequently than once per calendar year. If End User has used the Gaumard Software
in violation of this EULA, End User sHAL®l, in addition to any other remedies Gaumard may have, pay Gaumard additional fees for the excess use
according to Gaumard’s then-current price list and policies, plus a late payment charge of one percent (1.0%) per month (or the highest amount
allowed by applicable law, if lower) for each month of excess use from the date of initial excess use.
2.9 Privacy and Recordings. End User will comply with all applicable laws, rules and regulations related to privacy, publicity and data protection
related to use of the Gaumard Products. End User sHAL®l not use the Gaumard Software to record or collect personal data from any person in
violation of End User’s policies or privacy statements. End User sHAL®l receive express consent from all persons recorded by the Gaumard Software
sufficient for End User’s use, storage, and distribution of such recordings.
3. Term and Termination
3.1 Term. This EULA commences on the Effective Date and continues perpetually, unless terminated earlier in accordance with the terms hereof.
3.2 Termination for Cause. This EULA is automatically terminated by Gaumard if the other party materially breaches this EULA, the Gaumard Sales
Terms and Conditions, the Purchase Order, or the Gaumard Cares Service Plan Agreement. In addition, Gaumard may terminate this EULA if (a) End
User becomes insolvent or makes an assignment for the benefit of End User’s creditors; or (b) a receiver is appointed or a petition in bankruptcy is
filed with respect to End User and such petition is not dismissed within thirty (30) days.
3.3 Effect of Termination. Upon the termination of this EULA for any reason, all licenses granted in Section 2 above will immediately cease and
terminate. Upon termination, End User will immediately cease using the Gaumard Software.
3.4 Survival. Sections 3 through 6 will survive the termination of this EULA.
4. Confidential Information; Trademarks.
4.1 Confidential Information. End User acknowledges and agrees that the Gaumard Software is confidential information and contains trade secrets of
Gaumard. End User agrees to (i) hold the Gaumard Software in the strictest confidence, (ii) not disclose the Gaumard Software to any third party for
any purpose, and (iii) use at least the same security measures as End User to protect its own confidential and trade secret information but no less than
reasonable measures to protect the confidentiality of the Gaumard Software. End User agrees and acknowledges that any breach of the provisions
regarding ownership or confidentiality contained in this Agreement sHAL®l cause Gaumard irreparable harm and Gaumard may obtain injunctive
relief without the requirement to post a bond as well as seek all other remedies available to Gaumard in law and in equity in the event of breach or
threatened breach of such provisions.
4.2 Trademarks. End User may not use Gaumard’s trademarks, logos, service marks, or names in press releases, web sites, marketing, or other forms
of public materials without the prior written consent of Gaumard. All use of the Gaumard trademarks and all goodwill associated with them will inure
solely to the benefit of Gaumard.
5. Disclaimer; Limitation of Liability; Infringement Indemnification
5.1 Warranty and Disclaimer. For a period of twelve (12) months from the Effective Date, Gaumard will (a) provide all updates to the Software that
are made available generally, and (2) use reasonable efforts to fix or provide a workaround for any Gaumard Software defect or bug which prevents
operation in substantial conformity with the Gaumard Documentation. Other than the above, the Gaumard Software is provided “as- is,” with no
express or implied warranties of any kind, including the warranties of merchantability, fitness for a particular purpose, or non-infringement.
5.2 Limitation of Liability. THE TOTAL LIABILITY, IF ANY, OF GAUMARD TO END USER OR ANY THIRD PARTY FOR ALL DAMAGES BASED ON ALL
CLAIMS, WHETHER ARISING FROM BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, INDEMNITY, STRICT LIABILITY, TORT, OR
OTHERWISE, ARISING FROM THE GAUMARD PRODUCTS IS LIMITED TO ONE HUNDRED DOLLARS. IN NO EVENT WILL GAUMARD BE LIABLE TO
END USER OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO,
LOSS OF REVENUES, LOSS OF PROFITS, OR LOSS OF DATA, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5.3 Infringement Indemnification. Gaumard will, as further described below, indemnify, defend, and hold End User harmless, at its expense, against
any claim or suit brought by a third party against End User alleging that any Gaumard Software furnished under this EULA infringes the United States
patent, trademark, copyright or other intellectual property right of a third party. Gaumard will pay all settlements entered into or damages finally
awarded, including attorneys’ fees and costs, based on any such claim or suit; provided that End User gives Gaumard prompt written notice of such
claim and gives Gaumard information, reasonable assistance ,and sole authority to defend or settle the claim. In defense or settlement of the claim,
Gaumard may obtain for End User the right to continue using the Gaumard Software, replace or modify the Gaumard Software so that it becomes
non-infringing, or, if such remedies are not reasonably available, grant End User a refund for the associated Gaumard Products (depreciated over
three years) and accept their return. Gaumard will not have any liability if the alleged infringement is based upon (a) the use or sale of the Gaumard
Software in combination with other products or devices not furnished by or approved by Gaumard; (b) the use of the Gaumard Software in a manner
for which they were not designed as described by the Gaumard Documentation; (c) any modification of the Gaumard Software not performed by or
authorized by Gaumard;
(d) any use of Gaumard Software by End User after End User learns of such allegation of infringement; or (e) any failure by End User to utilize a
non-infringing version of the Gaumard Software made available by Gaumard along with notice that such update is non-infringing. The obligations
set forth in this Section 5.3 are Gaumard’s sole obligations, and End User’s sole and exclusive remedy, for the Gaumard Software infringing third party
intellectual property rights.