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MMK Technologies End User License Agreement
This MMK Technologies End User License Agreement ("EULA") is a legal agreement between you and MMK Technologies, LLC. ("MMK Technologies") for the licensing of software products from MMK Technologies.
BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE (AS DEFINED BELOW), YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE WITH THE TERMS OF THIS EULA, DO NOT INSTALL OR USE THE SOFTWARE. PROMPTLY RETURN THE SOFTWARE IN AN UNDAMAGED CONDITION TO YOUR SUPPLIER WITHIN 30 DAYS OF YOUR FIRST RECEIPT OF THE SOFTWARE, AND YOUR LICENSE FEE WILL BE REFUNDED.
1. SOFTWARE AND DOCUMENTATION. "Software" means the computer programs accompanying or provided under this EULA, together with the associated media and corresponding Documentation. "Documentation" means the end user manual and other documentation (LLCluding print and online), if any, provided to you with the Software.
2. LICENSE GRANT. Provided you comply with all terms and conditions of this EULA, MMK Technologies grants you a non-exclusive, non-transferable license to use the Software in accordance with the License Type licensed by you. The Software is licensed solely for internal use within your organization; any other use, LLCluding for third parties or for commercial purposes, is expressly prohibited. A "Fulfillment Confirmation" in the form of a product or package label or a confirmation e-mail will be sent to you and will identify the Software licensed to you under this EULA and the License Type. This license is perpetual unless expressly stated otherwise in this EULA or in the Fulfillment Confirmation. Software designated as "for clients" may not be used on a Server. "Server" means a computing device whose primary function is to provide services to another computing device (e.g., domain services, printing services, email services, terminal services, application services, web hosting, etc.).
3. COPIES. You may make copies of the Software provided that any such copy: (i) is created as an essential step in the utilization of the Software as licensed under this EULA, or (ii) is only for archival purposes to back-up the Software. All trademark, copyright and proprietary rights notices must be faithfully reproduced and LLCluded by you on such copies. You may not make any other copies of the Software.
4. OTHER RESTRICTIONS. MMK Technologies reserves all rights not expressly granted to you. Without limiting the generality of the foregoing, you shall not: (i) disassemble, de-compile, reverse engineer, or otherwise attempt to reconstruct or discover the source of this Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation, or (ii) modify or create derivative works based upon the Software, or (iii) commercially distribute, sublicense, resell or otherwise transfer this Software, or (iv) rent, lease, lend, or use the Software for commercial timesharing or bureau use, or (v) or allow a third party to copy, access or use the Software; or (vi) disclose the results of any benchmark test of the Software to a third party without the prior written approval of MMK Technologies.
5. OWNERSHIP. All title and intellectual property in and to the Software (LLCluding all copies of the Software made by you) are owned by MMK Technologies and its licensor(s), if any. The Software is protected by copyright law and international treaty provisions. The Software is licensed to you, not sold.
6. EVALUATION LICENSE. This Section applies to you if the Software is licensed to you for evaluation or demonstration purposes. You are permitted to use the Software for evaluation or demonstration purposes only. The Software may contain an automatic disabling mechanism. Your right to use the Software is limited in accordance with the terms under which you received the Software. If no period of use is specified, then your right to use the Software shall terminate thirty (30) days from receipt of the Software, at which time you must return or destroy the Software.
7. ACTIVATION KEY. The use of the Software may require an "activation key" from MMK Technologies or its authorized reseller. The activation key may be a printable digital key, a non-printable file, or any other mechanism used by MMK Technologies for license activation purposes. You agree that you will not attempt to "hack," "crack" or otherwise override this activation key.
8. UPDATES. Except as otherwise expressly provided herein, this EULA will govern any Software updates and upgrades that may be provided to you in accordance with MMK Technologies' then-current maintenance and support policies (LLCluding MMK Technologies' Annual Upgrade Protection program or "AUP" program), unless such updates and upgrades are provided under separate license agreement. You may use such updates or upgrades only in conjunction with your then-existing Software. The Software and all updates and upgrades are licensed as a single product and such updates and upgrades may not be separated from the Software to exceed the scope of your original license. Any other software that may be provided with the Software that is associated with a separate end-user license agreement is licensed to you under the terms of that separate license agreement.
9. LIMITED WARRANTY. If (a) the Software does not substantially conform to its specifications in the Documentation, the physical media accompanying the Software is defective, or if you are dissatisfied with the Software for any reason, and (b) if the Software (LLCluding all accompanying media, Documentation, packaging and materials) is returned by you within thirty (30) days of first receipt, then your license fee for the Software will be refunded to you. Upon return, this EULA shall terminate and you must immediately cease all use of the Software and remove and erase all copies of any Software from all computers and storage media and devices within your possession or control. At MMK Technologies' request, you will certify in writing to MMK Technologies that you have complied with this Section. In the event that the Software is licensed to you for evaluation or demonstration purposes, there shall be no refund because such licenses are free. In the event you purchase a license to the Software during or after an evaluation license for such Software, then MMK Technologies shall have no obligation to refund any license fees paid by you for the license to the Software (i.e., the 30 day evaluation period is your thirty day limited warranty period). THIS LIMITED WARRANTY SHALL NOT APPLY TO SOFTWARE UPDATES AND UPGRADES; ALL UPDATES AND UPGRADES ARE LICENSED "AS IS," WITHOUT WARRANTY OF ANY KIND.
10. NO OTHER WARRANTIES. EXCEPT AS EXPRESSLY WARRANTED ABOVE IN SECTION 9, THE SOFTWARE IS PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, LLCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ANY EXPRESS WARRANTY MADE OUTSIDE OF THIS EULA IS EXCLUDED AND SUPERCEDED. MMK Technologies DOES NOT WARRANT THAT THE SOFTWARE WILL SATISFY YOUR REQUIREMENTS OR THAT IT IS WITHOUT DEFECT OR ERROR OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR FREE. Some jurisdictions do not allow certain disclaimers and limitation of warranties, so some of these may not apply to you.
11. NON-MMK Technologies PRODUCTS. MMK Technologies DOES NOT WARRANT NON-MMK Technologies PRODUCTS. ANY SUCH PRODUCTS ARE PROVIDED ON AN "AS-IS" BASIS. ANY WARRANTY SERVICE FOR NON-MMK Technologies PRODUCTS WILL BE PROVIDED BY THE PRODUCT MANUFACTURER IN ACCORDANCE WITH ANY APPLICABLE MANUFACTURER'S WARRANTY.
12. EXCLUSION OF CERTAIN DAMAGES. MMK Technologies SHALL NOT IN ANY CASE BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, LLCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND, LLCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE, BUSINESS, OR DATA OR COSTS OF COVER, REGARDLESS OF THE FORM OF ACTION AND EVEN IF MMK Technologies HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. Some jurisdictions do not allow certain exclusions or limitations of liability, so some of these may not apply to you.
13. LIMITATION OF LIABILITY. THE AGGREGATE LIABILITY OF MMK Technologies ARISING FROM OR RELATING TO THIS EULA OR USE OF THE SOFTWARE (REGARDLESS OF THE FORM OF ACTION OR CLAIM, WHETHER CONTRACT, WARRANTY, TORT AND/OR OTHERWISE) SHALL NOT EXCEED THE AMOUNT OF ALL LICENSE FEES PAID BY YOU FOR THE SOFTWARE LICENSE(S) GRANTED HEREUNDER.
14. SOLE REMEDY AND ALLOCATION OF RISK. YOUR SOLE AND EXCLUSIVE REMEDY AND MMK Technologies' SOLE AND EXCLUSIVE LIABILITY ARE SET FORTH IN THIS EULA. This EULA defines a mutually agreed-upon allocation of risk.
15. NOTICE. THE SOFTWARE IS NOT INTENDED OR LICENSED FOR USE IN ANY HAZARDOUS OR HIGH RISK ACTIVITY.
16. NO SUPPORT. Except as expressly required by applicable law, nothing in this EULA entitles you to any support, maintenance or new versions of the Software. You may contact MMK Technologies to determine the availability of support, maintenance and new versions of the Software, and the fees, terms and conditions that would apply.
17. TAXES. In the event that any withholding, sales or use taxes or other taxes or government fees, assessments or charges are payable because of this EULA, or any license of the Software, or because of any payment by you, then you shall pay such taxes, fees, assessments and charges in addition to all other payments.
18. GOVERNING LAW AND ATTORNEYS' FEES. This EULA shall be governed by the laws of the state of Florida and the United States of America without giving effect to conflict or choice of law prLLCiples, and any litigation between the parties arising under this EULA shall be conducted exclusively in Florida state courts or the federal district courts within Florida. The parties agree to exclude application of the "United Nations Convention on Contracts for the International Sale of Goods" to this EULA. If you acquired the Software in a country outside the United States then that country's local laws may apply. In any action or suit to enforce any right or remedy under this EULA or to interpret any provision of this EULA, the prevailing party will be entitled to recover its costs, LLCluding reasonable attorneys' fees.
19. SEVERABILITY. If any provision in this EULA is invalid or unenforceable or contrary to applicable law, such provision shall be construed, limited, or altered, as necessary, to eliminate the invalidity or unenforceability or the conflict with applicable law, and all other provisions of this EULA shall remain in effect.
20. TERM AND TERMINATION. This EULA is effective until terminated. You may terminate this EULA by uninstalling and returning the Software to MMK Technologies along with all Documentation and original media. The licenses granted herein shall automatically terminate without notice if you fail to comply with any material provision of this EULA. In such event, you must immediately uninstall and return the Software, LLCluding all Documentation and original media, to MMK Technologies. This shall not limit or affect any remedy available to MMK Technologies for your breach of this EULA.
21. U.S. GOVERNMENT END USERS. The Software is provided with Restricted Rights. Use, duplication, or disclosure by the United States Government is subject to restrictions applicable to commercial computer software as set forth in the Federal Acquisition Regulations (FAR) §52.227-14 (Jun 1987) Alternate III (June 1987), FAR § 52.227-19 (June 1987), or DFARS § 252.227-7013 (b)(3) (Nov 1995) or applicable successor provisions. Manufacturer is MMK Technologies, LLC., 4708 18th St West Bradenton, Florida 34207.
22. EXPORT LAWS. Regardless of any disclosure made by you to MMK Technologies regarding an ultimate destination of the Software, you shall not export, re-export or disclose (directly or indirectly) any Software, or any portion thereof, to any country in violation of U.S. export laws or regulations or any other law, regulation or government order. It is your responsibility to comply with the United States government requirements as they may be amended from time to time.
23. CONSTRUCTION. No rule of strict construction shall apply against or in favor of either party in the construction and interpretation of this EULA,.
24. ASSIGNMENT. You may not assign, sublicense or transfer this EULA, the Software, or any rights or obligations hereunder without prior written consent of MMK Technologies. Any such attempted assignment, sublicense, or transfer will be null and void. MMK Technologies may terminate this EULA in the event of any such attempted assignment, sublicense, or transfer.
25. ENTIRE AGREEMENT. This EULA sets forth the entire understanding and agreement between the parties relating to its subject matter and may be amended only in a writing signed by both parties. ANY TERMS AND CONDITIONS OF ANY PURCHASE ORDER OR OTHER DOCUMENT SUBMITTED BY YOU IN CONNECTION WITH THE SOFTWARE THAT IS IN ADDITION TO, DIFFERENT FROM OR LLCONSISTENT WITH THE TERMS AND CONDITIONS OF THIS EULA ARE NOT BINDING ON MMK Technologies AND ARE INEFFECTIVE. NO VENDOR, DISTRIBUTOR, DEALER, RETAILER, SALES PERSON OR OTHER PERSON IS AUTHORIZED BY MMK Technologies TO MODIFY THIS EULA OR TO MAKE ANY WARRANTY, REPRESENTATION OR PROMISE WHICH IS DIFFERENT THAN, OR IN ADDITION TO, THE WARRANTIES, REPRESENTATIONS OR PROMISES EXPRESSLY SET FORTH IN THIS EULA.
Copyright (c) 1998 - 2004 MMK Technologies, LLC. All rights reserved.
LICENSE TYPES
The License Type purchased by you determines the license rights granted to you under this EULA. The License Type will be specified in the Fulfillment Confirmation provided to you.
Evaluation License - An Evaluation License is a limited license that provides you an opportunity to try the Software before buying a full license. A temporary activation key will be issued to you for this license specifying the number of licensed nodes or concurrent users, and the evaluation period. The Software may only be used for evaluation purposes and not for commercial use. The Software is licensed to you only for the specified evaluation period, which will begin on the date that the Software is first downloaded by or delivered to you. If no period of use is specified, then your right to use the Software shall terminate thirty (30) days from receipt of the Software, at which time you must return or destroy the Software.
Not for Resale Demonstration ("NFR") License - An NFR License is a special, limited evaluation license that is provided to, and solely for use by, authorized MMK Technologies channel and OEM partners to assist in demonstrating the Software to prospective customers. MMK Technologies reserves the right to terminate this license at any time and at its sole discretion. Additionally, in the event the partner relationship with MMK Technologies expires or is terminated, or the partner no longer uses the license as intended, the NFR License will immediately terminate.
Node License -- Under the terms of a Node License, you may use the Software to manage an aggregate number of Nodes within your organization not to exceed the sum of your licensed nodal count. A "Node" is any asset under management by the Software. An asset is: (a) a physical device such as a computer, PDA, or server, (b) a virtual device, such as an operating environment that may be running concurrently with another operating environment on a single physical device (e.g., VMware*, Virtual PC*, Virtual Server*), or (c) an object stored by the Software in a database, such object representing a physical or virtual asset for which data is being tracked or managed by the Software (e.g., printer, copier, etc.). .
Concurrent User License -- Under the terms of a Concurrent User License, you may distribute and install internally within your organization an unrestricted number of copies of the Software, provided the number of users accessing or using the Software simultaneously does not exceed your licensed user count. Individuals solely using the "My Helpdesk Console" or any "self-help" functionality in the Software shall not count against your licensed user count.
Connector License -- Under the terms of a Connector License, you may distribute and install internally within your organization an unrestricted number of copies of the Software.
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