SOFTWARE END USER LICENSE AGREEMENT (EULA)
OTM Jargon (Power User and Professional editions)
NOTICE TO USER:
This Software Agreement is a contract between you and Avalletta, LLC. ("Avalletta"), which covers your use of the Avalletta Software product that accompanies this Software Agreement and related software components, which may include associated media, printed materials, and "online" or electronic documentation. All such software and materials are referred to herein as the "Software." If you do not agree to the Terms (as defined here) of this Software Agreement, then do not install, download, copy, login or otherwise use the Software. By explicitly accepting this Software Agreement, however, or by installing, copying, downloading, accessing, or otherwise using the Software, you are acknowledging and agreeing to be bound by the following terms.
BY ACCESSING, DOWNLOADING AND/OR USING ANY SOFTWARE PROVIDED TO YOU BY OR ON BEHALF OF AVALLETTA, YOU ACKNOWLEDGE AND AGREE THAT YOU: (A) HAVE READ THIS EULA; (2) UNDERSTAND IT AND THE TERMS AND CONDITIONS SET FORTH HEREIN; (3) ARE BOUND BY SUCH TERMS AND CONDITIONS OF THIS LIMITED END-USER LICENSE AGREEMENT; AND (4) MAY RECEIVE, WITHOUT FURTHER NOTICE OR PROMPTING, UPDATED VERSIONS OF THE SOFTWARE. IF YOU DO NOT AGREE TO ANY OF THE FOREGOING, YOU UNDERSTAND AND AGREE THAT YOU DO NOT HAVE A LICENSE TO, AND YOU WILL NOT USE, ANY OF THE SOFTWARE.
AVALLETTA LICENSES THIS SOFTWARE PRODUCT TO YOU SUBJECT TO THE TERMS CONTAINED IN THIS END USER LICENSE AGREEMENT (THIS "AGREEMENT" or "EULA"). READ THE TERMS AND CONDITIONS ("TERMS") OF THIS AGREEMENT CAREFULLY BEFORE INSTALLING, COPYING, OR USING THIS COMPUTER SOFTWARE ITS INTERNAL FEATURES AND MODULES, AND THE ACCOMPANYING DOCUMENTATION (THE "SOFTWARE").
THE SOFTWARE IS COPYRIGHTED AND IT IS LICENSED TO YOU UNDER THIS EULA, NOT SOLD TO YOU. BY INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU ARE NOT WILLING TO BE BOUND BY THE TERMS OF THIS EULA, DO NOT INSTALL, COPY, ACCESS, OR USE THE SOFTWARE.
THIS EULA IS A LEGAL AGREEMENT CONCERNING THE SOFTWARE BETWEEN YOU, AS EITHER AN INDIVIDUAL OR A SINGLE BUSINESS ENTITY AND AVALLETTA. THIS AGREEMENT SUPERSEDES AND REPLACES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING YOU MAY HAVE HAD WITH AVALLETTA RELATING TO THE SOFTWARE.
Assent to Be Bound
By clicking the "I accept the terms..." checkbox on the download page, by executing a written copy of this Agreement, or by installing, copying or otherwise using this Software, you agree to be bound by the terms of this Agreement. If you do not agree with any term or condition, do not download, order, open, install or use the Software or product package. Contact Avalletta to arrange the return of the Software and accompanying materials to Avalletta at no charge to you.
(a) "Software" shall mean all published versions of Avalletta's OTM Jargon software, in object form only, excluding any Open Source Software provided with such software, and the media and Documentation provided by Avalletta to Licensee and for which Licensee is granted a use license pursuant to this Agreement.
(b) "Documentation" shall mean the printed or online written reference material furnished to Licensee in conjunction with the Software, including, without limitation, instructions, testing guidelines, and end user guides.
(c) "Intellectual Property Rights" shall mean all intellectual property rights, including, without limitation, patent, copyright, trademark, design, layout, scripts and trade secrets.
(d) "Open Source Software" means various open source software components provided with the Software that are licensed to you under the terms of the applicable license agreements included with such open source software components or other materials for the Software.
(e) "Updates" shall mean a modification, error correction, bug fix, new release, or other update to or for the Software.
2. YOUR RELATIONSHIP WITH AVALLETTA (a) Your use of Avalletta's Software (referred to in this document and excluding any services provided to you by Avalletta under a separate written agreement) is subject to the terms of a legal agreement between you and Avalletta. (b) Unless otherwise agreed in writing with Avalletta, your agreement with Avalletta will always include, at a minimum, the terms and conditions set out in this document. These are referred to below as the "Terms".
3. ACCEPTING THE TERMS
(a) In order to use the Software, you must first agree to the Terms. You may not use the Software if you do not accept the Terms.
(b) You can accept the Terms by:
(i) clicking to accept or agree to the Terms, where this option is made available to you by Avalletta in the user interface for the Software; or (ii) by actually using the Software. In this case, you understand and agree that Avalletta will treat your use of the Software as acceptance of the Terms from that point onwards.
(c) You may not use the Software and may not accept the Terms if (1) you are not of legal age to form a binding contract with Avalletta, (2) you are a person barred from using the Software under the laws of the United States or other countries including the country in which you are resident or from which you use the Software.
4. LICENSE GRANT, USE AND OWNERSHIP
(a) Limited License. Subject to the Terms, Avalletta grants to Licensee a non-exclusive, non-transferable license (without the right to sublicense) (i) to use the Software in accordance with the Documentation, (ii) to use the Software in accordance with the Documentation solely for purposes of testing and evaluation when "BETA," and (iii) to use the Documentation provided with the Software in support of Licensee’s authorized use of the Software.
(b) Evaluation Feedback.
ANY SOFTWARE LICENSED HEREUNDER WHICH INCLUDES ONE OR MORE OF THE TERMS "BETA" or "PREVIEW" or "LEGACY" ("BETA") IS BELIEVED TO CONTAIN DEFECTS AND A PRIMARY PURPOSE OF GRANTING ACCESS TO BETA SOFTWARE THROUGH THIS LICENSE IS TO OBTAIN FEEDBACK ON SOFTWARE PERFORMANCE AND THE IDENTIFICATION OF DEFECTS. LICENSEE IS ADVISED TO SAFEGUARD IMPORTANT DATA, TO USE CAUTION AND NOT TO RELY IN ANY WAY ON THE CORRECT FUNCTIONING OR PERFORMANCE OF THE SOFTWARE AND/OR ACCOMPANYING MATERIALS WHEN "BETA" IS PRESENT IN THE TITLE OR VISIBLE IN THE SOFTWARE. If You are licensing the Software for evaluation purposes, Your use of the Software is only permitted in a non-production environment and for the period limited by the License. Notwithstanding any other provision in this EULA, an Evaluation License of the Software is provided “AS-IS” without indemnification, support or warranty of any kind, expressed or implied. The purpose of such a limited license is the testing and evaluation of the Software and Documentation. In furtherance of this purpose, Licensee shall provide feedback to Avalletta concerning the functionality and performance of the Software from time to time as reasonably requested by Avalletta, including, without limitation, identifying potential errors and improvements. Such feedback will be in a manner convenient to Licensee and will be subject to reasonable availability of Licensee’s personnel. Feedback and other information which is provided by Licensee to Avalletta in connection with the Software or this Agreement may be used by Avalletta to improve or enhance its products and, accordingly, Avalletta shall have a non-exclusive, perpetual, irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify, and otherwise exploit such feedback and information without restriction, warning or announcement.
(c) Restrictions. Licensee shall not copy or use the Software (including the Documentation) except as expressly permitted in this Agreement. The Software is free to the Licensee for use during the term of the BETA Agreement or during a Trial period as outlined in Section 5, herein. Avalletta reserves the right to charge a fee for the Software at its sole discretion. Licensee will not, and will not permit any third party to, sublicense, rent, copy, modify, create derivative works of, translate, reverse engineer, decompile, disassemble, or otherwise reduce to human perceivable form any portion of the Software or accompanying Documentation. In no event shall Licensee use the Software for Licensee’s product development or any other commercial purpose. The Software and all performance data and test results, including without limitation, benchmark test results, user activity, usage patterns, and clicks (collectively "Performance Data"), relating to the Software are the Confidential Information of Avalletta, and will be treated in accordance with the terms of Section 4 of this Agreement. Accordingly, Licensee shall not publish or disclose to any third party any Performance Data relating to the Software.
(d) Ownership. Avalletta shall own and retain all right, title and interest in and to the Intellectual Property Rights in the Software and any derivative works thereof, subject only to the limited license expressly set forth in Section 3(a) hereof. Licensee does not acquire any other rights, express or implied, in the Software. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO AVALLETTA.
(e) No Support Services. Avalletta is under no obligation to support the Software in any way or to provide any Updates to Licensee. In the event Avalletta, in its sole discretion, supplies any Update to Licensee, such Update shall be deemed Software hereunder and shall be subject to the terms and conditions of this Agreement.
(f) Open Source Software. The terms and conditions of this Agreement shall not apply to any Open Source Software accompanying the Software. Any such Open Source Software is provided under the terms of the open source license agreement or copyright notice accompanying such Open Source Software or in the open source licenses file accompanying the Software.
5. PROVISION OF SERVICES BY AVALLETTA
(a) Avalletta uses an iterative design and development process to ensure that its software meets the needs of its users. You acknowledge and agree that the form and nature of the Software which Avalletta provides may change from time to time without prior notice to you.
(b) As part of this continuing innovation, you acknowledge and agree that Avalletta may stop (permanently or temporarily) providing the Software (or any features within the Software) to you or to users generally at Avalletta's sole discretion, without prior notice to you. You may stop using the Software at any time. (c) You acknowledge and agree that if Avalletta disables access to your account, you may be prevented from accessing the Software, your account details or any files or other content which is contained in your account.
6. TERM AND TERMINATION
Licensee’s rights with respect to the Software will terminate upon the earlier of (a) the initial commercial release by Avalletta of a generally available version of the Software or (b) automatic expiration of the Software based on the system date. Either party may terminate this Agreement at any time for any reason or no reason by providing the other party advance written notice thereof. Upon any expiration or termination of this Agreement, the rights and licenses granted to Licensee under this Agreement shall immediately terminate, and Licensee shall immediately cease using, and will return to Avalletta (or, at Avalletta's request, destroy), the Software, Documentation, and all other tangible items in Licensee’s possession or control that are proprietary to or contain Confidential Information. The rights and obligations of the parties set forth in Sections 4(b) 4(c), 4(d), 4(e), 4(f), 5, 6, 7, 8 and 9 shall survive termination or expiration of this Agreement for any reason.
“Confidential Information" shall mean all trade secrets, know-how, inventions, techniques, processes, algorithms, software programs, hardware, schematics, and software source documents relating to the Software, and other information provided by Avalletta, whether disclosed orally, in writing, or by examination or inspection, other than information which Licensee can demonstrate (i) was already known to Licensee, other than under an obligation of confidentiality, at the time of disclosure; (ii) was generally available in the public domain at the time of disclosure to Licensee; (iii) became generally available in the public domain after disclosure other than through any act or omission of Licensee; (iv) was subsequently lawfully disclosed to Licensee by a third party without any obligation of confidentiality; or (v) was independently developed by Licensee without use of or reference to any information or materials disclosed by Avalletta or its suppliers. Confidential Information shall include without limitation the Software, Documentation, Performance Data, and any Updates. Licensee shall not use any Confidential Information for any purpose other than as expressly authorized under this Agreement. In no event shall Licensee use the Software or any Confidential Information to develop, manufacture, market, sell, or distribute any product or service. Licensee shall limit dissemination of Confidential Information to its employees who have a need to know such Confidential Information for purposes expressly authorized under this Agreement. In no event shall Licensee disclose any Confidential Information to any third party. Without limiting the foregoing, Licensee shall use at least the same degree of care that it uses to prevent the disclosure of its own confidential information of like importance, but in no event less than reasonable care, to prevent the disclosure of Confidential Information.
8. LIMITATION OF LIABILITY
Provision of any Software under this Agreement is experimental and shall not create any obligation for Avalletta to continue to develop, productize, support, repair, offer for sale or in any other way continue to provide or develop the Software either to Licensee or to any other party.
IT IS UNDERSTOOD THAT THE SOFTWARE WHEN MARKED "BETA" or "TRIAL" or "FREE" IS PROVIDED WITHOUT CHARGE FOR LIMITED EVALUATION PURPOSES. TO THE MAXIMUM EXTENT MANDATED BY LAW, IN NO EVENT WILL AVALLETTA AND ITS LICENSORS BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOSS OF DATA, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE PRECEDING LIMITATION MAY NOT APPLY TO YOU. AVALLETTA’S AND ITS LICENSORS’ LIABILITY UNDER THIS EULA WILL NOT, IN ANY EVENT, REGARDLESS OF WHETHER THE CLAIM IS BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EXCEED THE GREATER OF THE LICENSE FEES YOU PAID FOR THE SOFTWARE GIVING RISE TO THE CLAIM OR $1. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER AVALLETTA OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
9. WARRANTY DISCLAIMER
IT IS UNDERSTOOD THAT THE SOFTWARE, DOCUMENTATION, AND ANY UPDATES MAY CONTAIN ERRORS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AVALLETTA AND ITS SUPPLIERS MAKE NO EXPRESS WARRANTIES UNDER THIS EULA, AND DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE. AVALLETTA AND ITS LICENSORS DO NOT WARRANT THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED OR THAT IT WILL BE FREE FROM DEFECTS OR THAT IT WILL MEET YOUR REQUIREMENTS. THE SOFTWARE, THE DOCUMENTATION, AND ANY UPDATES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. AVALLETTA AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. Licensee acknowledges that Avalletta has not publicly announced the availability of the Software when marked "BETA," that Avalletta has not promised or guaranteed to Licensee that such Software will be announced or made available to anyone in the future, that Avalletta has no express or implied obligation to Licensee to announce or introduce a production or commercial version of the Software when marked "BETA," and that Avalletta may not introduce a product similar or compatible with the Software or features marked as "BETA." Accordingly, Licensee acknowledges that any research or development that it performs regarding the Software or any product associated with the Software is done entirely at Recipient’s own risk. Specifically, the Software may contain features, functionality or modules that will not be included in a production version of the Software, if released, or that will be marketed separately for additional fees.
10. DATA COLLECTION AND STORAGE
Avalletta has the right to store and evaluate all Performance and Usage Data in connection with the use of the Software.
11. GENERATED CONTENT DISCLAIMER
The content and generated content of the Software, such as narration, text, graphics, images, animations, files and other material contained in or generated by the Software ("Content") are for informational purposes only. Avalletta does not recommend using any Content for production data processing or commercial or production purposes without first testing in an equivalent non-production environment. Avalletta does not recommend or endorse any specific products, services, processes, or other information that may be mentioned in the Software.
12. OTHER CONTENT
(a) The Software may include hyperlinks to other web sites or content or resources. Avalletta may have no control over any web sites or resources which are provided by companies or persons other than Avalletta.
(b) You acknowledge and agree that Avalletta is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources.
(c) You acknowledge and agree that Avalletta is not liable for any loss or damage which may be incurred by you as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.
13. OTHER PROVISIONS
(a) Governing Law. This Agreement, and all disputes arising out of or related thereto, shall be governed by and construed under the laws of the Commonwealth of Kentucky without reference to conflict of laws principles. All such disputes shall be subject to the exclusive jurisdiction of the state and federal courts located in Kentucky, and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts.
(b) Assignment. Licensee shall not assign this Agreement or any rights or obligations hereunder, directly or indirectly, by operation of law, merger, acquisition of stock or assets, or otherwise, without the prior written consent of Avalletta. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
(c) Export Regulations. Licensee understands that Avalletta is subject to regulation by the U.S. government and its agencies, which prohibit export or diversion of certain technical products and information to certain countries and individuals. Licensee warrants that it will comply in all respects with all export and re-export restrictions applicable to the technology and documentation provided hereunder.
(d) Modification. This is the entire agreement between the parties relating to the subject matter hereof and all other terms are rejected. No waiver or modification of this Agreement shall be valid unless published here by Avalletta or provided to us in writing and signed by each party. The waiver of a breach of any term hereof shall in no way be construed as a waiver of any term or other breach hereof. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law the remaining provisions of this Agreement shall remain in full force and effect.
(e) Entire Agreement
You agree that this agreement is the complete agreement for the programs and licenses, and this agreement supersedes all prior or contemporaneous agreements or representations. If any term of this agreement is found to be invalid or unenforceable, the remaining provisions will remain effective. Avalletta reserves the right, at any time and from time to time, in its sole and absolute discretion, with or without notice to you, to change the terms of this EULA. The most current version of this EULA will supersede all previous versions. Your use of any software after changes are made to the EULA means that you agree to be bound by such changes. As such, you should review this EULA regularly.
14. CONTACT INFORMATION If you have any questions about this Software Agreement, or if you want to contact Avalletta for any reason, please direct all correspondence to: Avalletta, LLC., 2333 Alexandria Dr, Lexington KY 40504, United States of America or email firstname.lastname@example.org.
OTM Jargon, Column Jargon, The OTM Advantage, and Avalletta are trademarks of Avalletta, LLC. All other trademarks and trade names are the property of their respective holders. Last Updated: April 4, 2019Previously: December 11, 2016
The Software may contain derived code or original code from the following sources: Sven Groot, FocusedWolf, and Microsoft. These specific lines of code or sub-modules in the Software may be protected under additional copyright, trademark, patent or other laws and may also covered by additional licensing terms. None of these sources are associated with Avalletta in any way nor have any endorsed the Software. These components may not still be used in the current release, but please consider the following as credit or reference or nod of appreciation or inclusion-of-notice to the sources below, in no particular order:
Copyright 2004-2015 The Apache Software Foundation. This product includes software developed at The Apache Software Foundation (http://www.apache.org/). Full details are available in the Licensing directory and NOTICE files.
CodeProject Articles: http://www.codeproject.com
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