PLEASE READ THIS AGREEMENT
1. DEFINITION OF TERMS
(a) Freeware: As the name implies, freeware is free of any obligation to the end user. You can download the program and use it indefinitely at no charge. You are also free to distribute it to anyone you want, provided the distribution is an unmodified version of what you downloaded from our Web Site.
(b) Shareware: This is built on the concept of “try it before you buy it.” A version of the software that is missing features or cannot be used more than a certain number of times or days is distributed freely.
2. GENERAL
The Software downloaded from this site is owned by Fusion Information Technology and is protected by U.S. copyright laws and other laws and by international treaties.
3. LICENSE GRANTS
Upon your acceptance of this Software License Agreement Fusion I.T. grants you a non-exclusive, non-transferable, limited license to install and use a copy of the Software on your compatible computer, up to the Permitted Number of computers. The Permitted Number of computers shall be delineated at such time as you elect to purchase the Software. During the evaluation period, hereinafter defined, only a single user may install and use the software on one computer. If you have licensed the Software as part of a suite of Fusion I.T. software products (collectively, the “Suite”) and have not installed each product individually, then the Software License Agreement governs your use of all of the
software included in the Suite.
(a) Freeware version:
Fusion Information Technology grants you a license to use the FREEWARE version of their software for as long as you like. You may freely distribute these software to anyone you may like.
(b) Shareware version:
Fusion Information Technology grants you a license to use the SHAREWARE version of their software for a period of THIRTY DAYS. After which you must obtain a serial number or stop using the product and delete all the related material from your machine.
(c) Single User license:
Each registered copy of a software may be used at a single workstation, subject to the following conditions:
* A separate registered copy of the software must be obtained for each workstation on which it will be used, even if such use is only temporary. This is not a “concurrent use” license.
(d) Site License:
A site license allows any user within your company to use a software on any workstation that they prefer, subject to the following conditions:
Other Restrictions:
You may not loan, rent, lease, sublicense, distribute or otherwise transfer all or any portion of the Software to third parties. You may not copy the Software except as expressly set forth above, and any copies that you are permitted to make pursuant to this Software License Agreement must contain the same copyright, patent and other intellectual property markings that appear on or in the Software. You may not modify, adapt or translate the Software. You may not, directly or indirectly, encumber or suffer to exist any lien or security interest on the Software; knowingly take any action that would cause the Software to be placed in the public domain; or use the Software in any computer environment not specified in this Software License Agreement. You will comply with applicable law and Fusion I.T. instructions regarding the use of the Software. You agree to notify your employees and agents who may have access to the Software of the restrictions contained in this Software License Agreement and to ensure their compliance with these restrictions.
You agree that you are solely responsible for the accuracy and adequacy of the software for your intended use and you will indemnify and HOLD harmless Fusion I.T. from any 3rd party suit to the extent based upon the accuracy and adequacy of the software in your use. Without limitation, The Software is not intended for use in the operation of nuclear facilities, aircraft navigation, communication systems or air traffic control equipment, where the failure of the Software could lead to death, personal injury or severe physical or environmental damage.
4. LIMITED TRANSFER RIGHTS
Notwithstanding the foregoing, you may transfer all your rights to use the Software to another person or legal entity provided that: (a) you also transfer each of this Software License Agreement, the Software and all other software or hardware bundled or pre-installed with the Software, including all copies, updates and prior versions, and all copies of font software converted into other formats, to such person or entity; (b) you retain no copies, including backups and copies stored on a computer; (c) the receiving party secures a personalized key code from Fusion I.T.; and (d) the receiving party accepts the terms and conditions of this Software License Agreement and any other terms and conditions upon which you legally purchased a license to the Software. Notwithstanding the foregoing, you may not transfer education, pre-release, or not-for-resale copies of the Software.
5. LIMITED WARRANTY AND LIMITATION OF LIABILITY
(a) Limited Warranty and Customer Remedies. Fusion I.T. warrants to the person or entity that first purchases a license for use of the Software pursuant to the terms of this Software License Agreement that (i) the Software will perform substantially in accordance with any accompanying Documentation for a period of ninety (90) days from the date of receipt, and (ii) any support services provided by Fusion I.T. shall be substantially as described in Section 6 of this agreement. Some states and jurisdictions do not allow limitations on duration of an implied warranty, so the above limitation may not apply to you. To the extent allowed by applicable law, implied warranties on the Software, if any, are limited to ninety (90) days. Fusion I.T. and its suppliers\u2019 entire liability and your exclusive remedy shall be, at Fusion I.T. option, either (i) return of the price paid, if any, or (ii) repair or replacement of the Software that does not meet Fusion I.T. Limited Warranty and which is returned to Fusion I.T. with a copy of your receipt. This Limited Warranty is void if failure of the Software has resulted from accident, abuse, misapplication, abnormal use, Trojan horse, virus, or any other malicious external code. Any replacement Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. This limited warranty does not apply to Evaluation and/or Pre-release Software.
(b) No Other Warranties and Disclaimer. THE FOREGOING LIMITED WARRANTY AND REMEDIES STATE THE SOLE AND EXCLUSIVE REMEDIES FOR Fusion I.T. OR ITS SUPPLIER BREACH OF WARRANTY. Fusion I.T. AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, AND FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO YOU IN YOUR JURISDICTION, Fusion I.T. 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. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Fusion I.T. AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, INFORMATIONAL CONTENT OR ACCURACY, QUIET ENJOYMENT, TITLE AND NON-INFRINGEMENT, WITH REGARD TO THE SOFTWARE, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHERS, WHICH VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION.
(c) Limitation Of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW EVEN IF A REMEDY FAILS ITS ESSENTIAL PURPOSE, IN NO EVENT SHALL Fusion I.T. OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, DIRECT, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF Fusion I.T. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, Fusion I.T. ENTIRE LIABILITY UNDER ANY PROVISION OF THIS SOFTWARE LICENSE AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE PRODUCT. Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply to you. In such states and jurisdictions, Fusion I.T. liability shall be limited to the greatest extent permitted by law and the limitations or exclusions of warranties and liability contained herein do not prejudice applicable statutory consumer rights of person acquiring goods otherwise than in the course of business. The disclaimer and limited liability above are fundamental to this Software License Agreement between Fusion I.T. and you.
(d) Infringement Claims. Fusion I.T. will indemnify and hold you harmless and will defend or settle any claim, suit or proceeding brought against you by a third party that is based upon a claim that the content contained in the Software infringes a copyright or violates an intellectual or proprietary right protected by United States or European Union law (“Claim”), but only to the extent the Claim arises directly out of the use of the Software and subject to the limitations set forth in Section 5 of this Agreement except as otherwise expressly provided. You must notify Fusion I.T. in writing of any Claim within ten (10) business days after you first receive notice of the Claim, and you shall provide to Fusion I.T. at no cost with such assistance and cooperation as Fusion I.T. may reasonably request from time to time in connection with the defense of the Claim. Fusion I.T. shall have sole control over any Claim (including, without limitation, the selection of counsel and the right to settle on your behalf on any terms Fusion I.T. deems desirable in the sole exercise of its discretion). You may, at your sole cost, retain separate counsel and participate in the defense or settlement negotiations. Fusion I.T. shall pay actual damages, costs, and attorney fees awarded against you (or payable by you pursuant to a settlement agreement) in connection with a Claim to the extent such direct damages and costs are not reimbursed to you by insurance or a third party, to an aggregate maximum equal to the purchase price of the Software. If the Software or its use becomes the subject of a Claim or its use is enjoined, or if in the opinion of Fusion I.T. legal counsel the Software is likely to become the subject of a Claim, Fusion I.T. shall attempt to resolve the Claim by using commercially reasonable efforts to modify the Software or obtain a license to continue using
the Software. If in the opinion of Fusion I.T. legal counsel the Claim, the injunction or potential Claim cannot be resolved through reasonable modification or licensing, Fusion I.T., at its own election, may terminate this Software License Agreement without penalty, and will refund to you on a pro rata basis any fees paid in advance by you to Fusion I.T.. THE FOREGOING CONSTITUTES Fusion I.T.’ SOLE AND EXCLUSIVE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT. This indemnity does not apply to infringements that would not be such, except for customer-supplied elements.
6. SUPPORT AND MAINTENANCE
Fusion I.T. offers multiple optional “Support & Maintenance Package(s)” (“SMP”) for the version of Software product edition that you have licensed, which you may elect to purchase in addition to your Software license. The Support
Period, hereinafter defined, covered by such SMP shall be delineated at such time as you elect to purchase a SMP. Your rights with respect to support and maintenance as well as your upgrade eligibility depend on your decision to purchase SMP and the level of SMP that you have purchased:
(a) If you have not purchased SMP, you will receive the Software AS IS and will not receive any maintenance releases or updates. However, Fusion I.T., at its option and in its sole discretion on a case by case basis, may decide
to offer maintenance releases to you as a courtesy, but these maintenance releases will not include any new features in excess of the feature set at the time of your purchase of the Software. In addition, Fusion I.T. will provide free
technical support to you for thirty (30) days after the date of your purchase (the “Support Period” for the purposes of this paragraph a), and Fusion I.T., in its sole discretion on a case by case basis, may also provide free courtesy
technical support during your thirty (30)-day evaluation period. Technical support is provided via a Web-based support form and via email. There is no guaranteed response time.
(b) If you have purchased SMP, then solely for the duration of its delineated Support Period, you are eligible to receive the version of the Software edition that you have licensed and all maintenance releases and updates for that edition that are released during your Support Period. For the duration of your SMP Support Period, you will also be eligible to receive upgrades to the comparable edition of the next version of the Software that succeeds the Software edition that you have licensed for applicable upgrades released during your Support Period. The specific upgrade edition that you are eligible to receive based on your Support Period is further detailed in the SMP that you have purchased. Software that is introduced as separate product is not included in SMP. Maintenance releases, updates and upgrades may or may not include additional features. In addition, Fusion I.T. will provide Priority Technical Support to you for the duration of the Support Period. Priority Technical Support is provided via a Web-based support form only, and Fusion I.T. will make commercially reasonable efforts to respond via e-mail to all requests within forty-eight (48) hours during Fusion I.T. business hours (MO-FR, 9am EST 5pm EST, Canadian holidays excluded) and to make reasonable efforts to provide work-arounds to errors reported in the Software.
During the Support Period you may also report any Software problem or error to Fusion I.T.. If Fusion I.T. determines that a reported reproducible material error in the Software exists and significantly impairs the usability and utility of the Software, Fusion I.T. agrees to use reasonable commercial efforts to correct or provide a usable work-around solution in an upcoming maintenance release or update, which is made available at certain times at Fusion I.T. sole discretion.
If Fusion I.T., in its discretion, requests written verification of an error or malfunction discovered by you or requests supporting example files that exhibit the Software problem, you shall promptly provide such verification or files, by email, telecopy, or overnight mail, setting forth in reasonable detail the respects in which the Software fails to perform. You shall use reasonable efforts to cooperate in diagnosis or study of errors. Fusion I.T. may include error corrections in maintenance releases, updates, or new major releases of the Software. Fusion I.T. is not obligated to fix errors that are immaterial. Immaterial errors are those that do not significantly impact use of the Software.
Whether or not you have purchased the Support & Maintenance Package, technical support only covers issues or questions resulting directly out of the operation of the Software and Fusion I.T. will not provide you with generic consultation, assistance, or advice under any circumstances.
Updating Software may require the updating of software not covered by this Software License Agreement before installation. Updates of the operating system and application software not specifically covered by this Software License Agreement are your responsibility and will not be provided by Fusion I.T. under this Software License Agreement. Fusion I.T. obligations under this Section 6 are contingent upon your proper use of the Software and your compliance with the terms and conditions of this Software License Agreement at all times. Fusion I.T. shall be under no obligation to provide the above technical support if, in Fusion I.T. opinion, the Software has failed due to the following conditions: (i) damage caused by the relocation of the software to another location or CPU; (ii) alterations, modifications or attempts to change the Software without Fusion I.T. written approval; (iii) causes external to the
Software, such as natural disasters, the failure or fluctuation of electrical power, or computer equipment failure; (iv) your failure to maintain the Software at Fusion I.T. specified release level; or (v) use of the Software with other software without Fusion I.T. prior written approval. It will be your sole responsibility to: (i) comply with all Fusion I.T.-specified operating and troubleshooting procedures and then notify Fusion I.T. immediately of Software malfunction and provide Fusion I.T. with complete information thereof; (ii) provide for the security of your confidential information; (iii) establish and maintain backup systems and procedures necessary to reconstruct lost or altered files, data or programs.
