END-USER LICENSE AGREEMENT FOR MENTALIX SOFTWARE
IMPORTANT — PLEASE REVIEW THE FOLLOWING TERMS AND CONDITIONS CAREFULLY. This Mentalix End-User License Agreement (‘EULA’) is a legally binding contract between you and Mentalix, Inc. (“MENTALIX”) for the MENTALIX software product identified above, which product includes computer software and may include associated media, printed materials, and “online” or electronic documentation (“SOFTWARE PRODUCT”). By downloading, installing, copying, or otherwise using the SOFTWARE PRODUCT, you acknowledge that you have read and understand this EULA and agree to be bound by its terms and conditions.
FOR ELECTRONIC MEDIA PURCHASERS: BY OPENING THE SEALED MEDIA PACKAGE, YOU INDICATE YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS EULA. IN THE EVENT THAT YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU SHOULD PROMPTLY RETURN THE PACKAGE UNOPENED TO THE AUTHORIZED DEALER FROM WHOM YOU OBTAINED THIS SOFTWARE PRODUCT, WITH PROOF OF PAYMENT, FOR A REFUND.
FOR ONLINE PURCHASERS: YOU WILL NOT BE PERMITTED TO ACCESS AND DOWNLOAD MENTALIX SOFTWARE PRODUCT WITHOUT FIRST READING AND ACCEPTING THE TERMS AND CONDITIONS OF THIS EULA.
1. Notification of Copyright. All title and copyright in and to the SOFTWARE PRODUCT is owned by MENTALIX and/or its licensors and is protected by United States copyright laws and international treaty provisions. MENTALIX retains all ownership rights in the SOFTWARE PRODUCT. The copyright notice must be reproduced and included on any copy that is expressly permitted under this EULA.
2. Grant of License.
A. Use. MENTALIX grants to you the right to use the number of copies of the SOFTWARE PRODUCT as specified on your contract or invoice (and for which you have paid the applicable license fees). When you purchase the SOFTWARE PRODUCT, you will be supplied with component license keys. You must purchase and install the appropriate component license keys on each computer system where SOFTWARE PRODUCT will be used. The component license keys and associated serial numbers are attached to this EULA or otherwise included with SOFTWARE PRODUCT at the time of purchase. You agree to only install and use the SOFTWARE PRODUCT in conjunction with the component license keys. Further, you agree to only install and use a specific component license key on a single computer system. Each component license key is only licensed for use by a single user at any given time. You agree to take any reasonable steps to prevent any use of the SOFTWARE PRODUCT that has not been specifically authorized by this EULA. Unless otherwise expressly provided in writing by MENTALIX, this SOFTWARE PRODUCT is not licensed for use on a server or in a network environment. You are not permitted to install or use the SOFTWARE PRODUCT on a server or a network environment in any manner that will allow more than one user or client to access or use the SOFTWARE PRODUCT.
B. Evaluation Software. If the SOFTWARE PRODUCT is labeled “Evaluation” or “Evaluation Copy,” then, notwithstanding other sections of this EULA, you may not use the SOFTWARE PRODUCT for commercial purposes. If you have been provided the SOFTWARE PRODUCT for evaluation purposes only, MENTALIX grants to you the right to use the SOFTWARE PRODUCT on the same terms and conditions as stated above but only for the length of time so authorized by MENTALIX for your evaluation. This license and your right to use the SOFTWARE PRODUCT thereafter is terminated, unless you obtain a separate license from MENTALIX and you pay to MENTALIX the applicable license fee.
C. Definition of “Use.” A copy of the SOFTWARE PRODUCT is “in use” in a computer when it is loaded into the temporary memory (i.e., RAM) or is installed into the permanent memory (e.g., hard disk, CD-ROM, or other storage device) of that computer.
D. Additional Rights. MENTALIX further grants to you the right to: (a) make one copy of the SOFTWARE PRODUCT in an electronic media solely for backup or archival purposes, or (b) transfer the SOFTWARE PRODUCT in an electronic media to a single hard disk; provided, that you keep the originals solely for backup or archival purposes. You may not copy any printed materials that are included with the SOFTWARE PRODUCT. Copyright laws prohibit the making of additional copies of the SOFTWARE PRODUCT for any other reason.
3. Other Restrictions. Except as otherwise expressly permitted in this Agreement, or in another MENTALIX agreement to which you are a party, you may not: (i) modify or create any derivative works of the SOFTWARE PRODUCT or documentation, including translation or localization; (ii) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the SOFTWARE PRODUCT (except to the extent applicable laws specifically prohibit such restriction); (iii) redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer rights to the SOFTWARE PRODUCT; (iv) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the SOFTWARE PRODUCT; (v) publish any results of benchmark tests run on the SOFTWARE PRODUCT to a third party without MENTALIX’s prior written consent; or (vi) outsource, host or otherwise use the SOFTWARE PRODUCT in a service bureau environment or such other arrangement where you process data or information for others. In jurisdictions where a right to reverse engineer is provided by law unless information is available about the product in order to achieve interoperability, functional compatibility or similar objectives, you agree to submit a detailed written proposal to MENTALIX concerning your need for such information before engaging in reverse engineering and MENTALIX may, in its sole discretion, propose to you certain terms and conditions under which it is willing to make such information available. You further grant to MENTALIX or its agent the right to audit your use of the SOFTWARE PRODUCT pursuant to this Agreement. If the distribution media for the SOFTWARE PRODUCT contains multiple MENTALIX software products, your use of any MENTALIX software products other than the SOFTWARE PRODUCT for which you have purchased a license is prohibited. You agree not to use this SOFTWARE PRODUCT to send unsolicited, commercial e-mail.
4. Updates/Upgrades. If the SOFTWARE PRODUCT is labeled or otherwise identified by MENTALIX as an “update” or “upgrade,” you must be properly licensed to use a product identified by MENTALIX as being eligible for the update/upgrade in order to use the SOFTWARE PRODUCT. A SOFTWARE PRODUCT labeled or otherwise identified by MENTALIX as an “update” or “upgrade” replaces and/or supplements the product that formed the basis for your eligibility for such update/upgrade. You may use the resulting updated/upgraded product only in accordance with the terms of this EULA. If the SOFTWARE PRODUCT is an update/upgrade of a component of a package of software programs that you licensed as a single product, the SOFTWARE PRODUCT may be used and transferred only as part of that single product package and may not be separated for use on more than one computer.
5. Termination. This license and your right to use the SOFTWARE PRODUCT (i) automatically terminate if you fail to comply with any provision of this EULA, and (ii) terminate upon expiration of the length of time so designated for your evaluation of the SOFTWARE PRODUCT if you are an Evaluation User. Upon termination, you must destroy the SOFTWARE PRODUCT and any copies that you have made. MENTALIX retains all rights not expressly granted, and nothing in this EULA constitutes a waiver of MENTALIX’s rights under copyright laws or any other federal or state law or treaty.
6. LIMITED WARRANTY. MENTALIX warrants that the SOFTWARE PRODUCT will substantially conform, as to all material operational features, to MENTALIX’s applicable standard written specifications, provided that it is used on the computer hardware and with the operating system for which it is designed, and will be free from error that substantially adversely affects performance for a period of ninety (90) days from the date of purchase. This limited warranty shall not apply to any SOFTWARE PRODUCT that MENTALIX determines has been subject to misuse, neglect, improper installation, repair, alteration, or damage by you. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, MENTALIX MAKES NO WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SOFTWARE PRODUCT INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT. If by law there are any implied warranties, they are likewise limited to ninety (90) days from the date of purchase. You assume responsibility for the selection of the SOFTWARE PRODUCT and hardware to achieve your intended results; and for the installation, use and results obtained from the SOFTWARE PRODUCT. MENTALIX makes no warranty as to any license keys, if any, issued in connection with the license of the SOFTWARE PRODUCT. Should the distribution media contain information and/or technology that either are owned by third parties or in the public domain, MENTALIX makes no warranties or representations as to such information and/or technology and further disclaims any and all liability for any losses or damages that may result from your use thereof.
7. Customer Remedies. MENTALIX’s entire liability and your exclusive remedy shall be, at MENTALIX’s option, one of the following: (a) attempt to correct or help you around significant errors with efforts that MENTALIX believes to be suitable to redress the error; (b) repair or replace the SOFTWARE PRODUCT that does not meet MENTALIX’s Limited Warranty with functionally equivalent software; or (c) refund the license fee and terminate this EULA. Your remedy is conditioned upon your return of the SOFTWARE PRODUCT to MENTALIX with a copy of your proof of purchase within ninety (90) days of the original purchase. Any replacement SOFTWARE PRODUCT will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer.
8. LIMITATION OF DAMAGES. IN NO EVENT WILL MENTALIX BE LIABLE TO YOU FOR DIRECT OR INDIRECT DAMAGES, INCLUDING ANY LOSS OF PROFITS, LOST SAVINGS, LOSS OF DATA, OR OTHER SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF YOUR USE OF OR INABILITY TO USE THE SOFTWARE PRODUCT, EVEN IF MENTALIX OR AN AUTHORIZED MENTALIX REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND EVEN IF THE REMEDIES PROVIDED IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. IN NO EVENT WILL MENTALIX’S LIABILITY EXCEED THE AMOUNT OF THE LICENSE FEE. MENTALIX WILL NOT BE LIABLE FOR ANY CLAIM BY A THIRD PARTY. BECAUSE SOME STATES AND COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATIONS OF CONSEQUENTIAL OR INCIDENTAL DAMAGES OR IMPLIED WARRANTIES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THE WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY DEPENDING ON THE STATE OR COUNTRY.
9. Governing Law. This EULA is governed by the laws of the State of Texas, U.S.A., and the United States, including patent and copyright laws. This EULA will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If any provision of this EULA is held to be illegal, invalid, or unenforceable then that provision shall be fully severable from this EULA and shall not affect the legality, validity or enforceability of the remaining provisions of this EULA.
10. Export Restrictions. You agree to comply with all applicable export control laws and with any regulations issued from time to time by the United States Department of Commerce and similar agencies of other countries concerning exporting, importing, and re-exporting software. You further agree that the SOFTWARE PRODUCT will not be acquired, shipped, transferred or exported, directly or indirectly, into any country or used in any manner prohibited by the United States Export Administration Act and the regulations thereunder, or will be used for any purpose prohibited thereby.
11. International Users. This EULA has been written in the English language. You waive any rights that you may have under the laws of your country for this EULA to be written in the language of that country. The remedies and limited warranty offered by MENTALIX are not available without proof of purchase from an authorized United States or international source.
12. U.S. Government Restricted Rights. The SOFTWARE PRODUCT is provided with RESTRICTED AND LIMITED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (b) (3) of the Rights in Technical Data and Computer Software clause as DFARS 252.227-7013 or subparagraphs (c) (1) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable, and any amendments thereto. Contractor/manufacturer is Mentalix, Inc., 1255 W. 15th Street, Suite 370, Plano, Texas, U.S.A. 75075.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS EULA, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS; YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN US RELATING TO THE SUBJECT MATTER OF THIS EULA. THIS AGREEMENT SHALL PREVAIL NOTWITHSTANDING ANY DIFFERENT, CONFLICTING, OR ADDITIONAL TERMS AND CONDITIONS WHICH MAY APPEAR IN ANY PURCHASE ORDER OR DOCUMENT SUBMITTED BY LICENSEE.
IMPORTANT: If you are downloading Mentalix software, you must use your browser’s “back” key to return to your completed request form after reading this license agreement. Otherwise, your request form responses will be erased.
May 28, 2010