Reflow End User License Agreement
This is a legally binding agreement between you (either an individual or a single entity), referred to herein as “YOU” and GBO DIGITAL, LLP, referred to herein as “NiagaraMods.” This software entitled Reflow and materials included in it are referred to herein as the “SOFTWARE”. Installing, opening or using all or any portion of this software indicates your acceptance of all the terms and conditions of this End-User License Agreement referred to herein as “EULA” and this agreement is equivalent to a written agreement signed by you. By selecting the box “I AGREE” or performing a similar electronic function, you are providing your acceptance of the terms of this agreement. This agreement is enforceable against you and any legal entity that obtained the software and on whose behalf it is used. If you do not agree to the terms of this agreement, please do not use this software.
IT IS ILLEGAL AND STRICTLY PROHIBITED TO DISTRIBUTE, PUBLISH, OFFER FOR SALE, LICENSE OR SUBLICENSE, GIVE OR DISCLOSE TO ANY OTHER PARTY, THIS SOFTWARE IN HARD COPY, DIGITAL FORM OR ANY OTHER MEDIUM WHETHER EXISTING OR NOT YET EXISTING, EXCEPT AS SPECIFICALLY PERMITTED BELOW.
The use of this software is governed by the terms and conditions set forth herein. Please read them carefully. This EULA is applicable to all of the materials included in the Software, its documentation, and to the Software in its whole part. You are deemed to have read, understood and accepted the terms of this EULA when you install or use the Software.
LIMITED LICENSE. You are granted a limited, non-exclusive license to install the Software on 1 individual computer for your own use. The license granted herein shall remain in effect perpetually, but shall terminate upon your use of the Software beyond the scope licensed herein or upon your violation of any term or condition hereof. All protections with which NiagaraMods is provided under this EULA shall survive the termination of your license to use the Software.
PROPRIETARY RIGHTS. NiagaraMods and its suppliers retain all title, ownership, and intellectual property rights in the Software, including but not limited to all supporting documentation, files, marketing material, images, multimedia and applets. The Software is protected by copyright and other intellectual property laws and by international treaties. The Software may include security measures designed to control access and prevent unauthorized copying and use. You agree not to interfere with any such security components. NiagaraMods permits you to download, install, use, or otherwise benefit from the functionality or intellectual property of the Software only in accordance with the terms of this EULA. Use of third-party material included in the Software may be subject to the terms and conditions typically found in the party's own license agreement.
CONFIDENTIALITY. Each party agrees that it shall not disclose to any third party any information concerning the customers, trade secrets, methods, processes or procedures or any other confidential, financial or business information of the other party which it learns during the course of its performance of this EULA, without the prior written consent of such other party. This obligation shall survive the cancellation or other termination of this EULA. The Software contains trade secrets and proprietary know-how that belong to NiagaraMods and it is being made available to you in strict confidence. ANY USE OR DISCLOSURE OF THE SOFTWARE, OR OF ITS ALGORITHMS, PROTOCOLS OR INTERFACES, OTHER THAN IN STRICT ACCORDANCE WITH THIS EULA, MAY BE ACTIONABLE AS A VIOLATION OF NIAGARAMODS’ TRADE SECRET RIGHTS.
NON-TRANSFER OF RIGHTS. You may not rent, lease, sell, sublicense, assign or transfer your rights in the software, or authorize any portion of the software to be copied onto another individual or legal entity's computer.
ALLOWED USAGE. Upon fulfilling your obligations towards properly installing and registering the Software or obtaining a valid Software license key, you are permitted to do only the following:
(a) Install and configure the Software on a single Niagara station running on a licensed Niagara platform (including a JACE device or Web Supervisor) provided that configuration is within the limitations set forth in the license that was purchased, or the free trial limitations if no license was purchased.
(b) Provide access to the Software to Niagara end-users, including your customers.
(c) Display or post online as a part of your website or online property screen shots, videos, live demos of the Software for marketing or business development purposes.
DISTRIBUTION. You may not unpack or remove images, compiled source code, documents, or other files or documentation and distribute them in any way except as prescribed by the Allowed Usage defined in section 5. Only distribution of the full and complete unaltered software application is allowed provided that NiagaraMods has given you prior written authorization (through your participation in any of NiagaraMods’ partner programs) and that all trademarks, ownership and copyright notices remain in the Software.
RESTRICTIONS. You may not: (i) modify or create any derivative works of the Software or documentation, including customization, any modifications or enhancements, translation or localization without NiagaraMods' express written consent; (ii) reverse engineer, decompile, disassemble, make or otherwise attempt to derive the source code of the Software, or the underlying ideas or algorithms of the Software; (iii) attempt to gain unauthorized access to the Software, NiagaraMods’ servers or any other service, account, computer system or network associated with the Software or with NiagaraMods, it's affiliates, agents, partners and customers; (iv) remove or alter any trademark, logo, copyright or other proprietary notices or symbols in the Software; (v) block, disable, or otherwise affect any advertising, banner window, tab, link to websites and services, or other features that are part of the Software; (vi) incorporate, integrate or otherwise include the Software or any portion thereof into any software, program or product; (vii) provide false information when registering the Software; (viii) digitally transmit or make available the Software or its content through local networks, intranets, extranets, FTP, online discussion boards, forums, list-serve, peer-to-peer networks or technologies, newsgroups, bulletin boards, or any other mode of shared communication system, or place the Software onto a server so that it is accessible via a pubic network such as the Internet; (ix) use the Software in any way that violates this EULA or any law; or (x) authorize or assist any third party to do any of the things described in this section.
PUBLICITY. You shall not refer to the existence of this EULA in any press release, website, advertising or any publicly distributed or accessible material, without the prior written consent of NiagaraMods.
ADDITIONAL FEATURES & CONTENT. Certain portions of the Software may be locked or unavailable in the free version. In order to upgrade the Software or use additional content and features you must (i) install the free version, (ii) provide valid registration information and (iii) pay a fee to obtain a valid Software license key. All Software license key holders are subject to the terms and conditions of this EULA.
SOFTWARE LICENSE KEY. Certain features or content of the Software may require the purchase of a Software license key. You agree not to attempt to, and not to, control, disable, modify or remove any component of the Software license key protection system. You also agree not to access, attempt to access, copy, share or distribute the license key for any purpose.
SOFTWARE UPDATES. NiagaraMods reserves the right to release software updates, modifications, and/or patches that provide additional functionality or address issues such as security, interoperability, and performance. Your use of the updates shall be governed by this EULA unless you are asked to agree to a new EULA at the time of download or installation.
LIMITATION OF LIABILITY. EXCEPT AS REQUIRED BY LAW, IN NO EVENT WILL NIAGARAMODS AND ITS EMPLOYEES, DIRECTORS, LICENSORS, CONTRIBUTORS AND AGENTS BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING LOSS OF USE, DATA, OR PROFITS, BUSINESS INTERRUPTION, OR COSTS OF PROCURING SUBSTITUTE PRE-RELEASE SOFTWARE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SOFTWARE, WHETHER SUCH LIABILITY ARISES FROM CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT NIAGARAMODS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY REMEDY IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. WITHOUT LIMITING THE FOREGOING, NIAGARAMODS WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY BUSINESS INTERRUPTION OR LOSS OF DATA ARISING FROM THE AUTOMATIC TERMINATION OF THE LICENSE RIGHTS GRANTED HEREIN AND ANY ASSOCIATED CESSATION OF THE SOFTWARE FUNCTIONS OR ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME FOR ANY REASON OR ANY DELETION, CORRUPTION OR DAMAGE OF DATA ON OR THROUGH THE SOFTWARE. NIAGARAMODS’ TOTAL CUMULATIVE LIABILITY TO YOU, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED ONE HUNDRED DOLLARS ($100.00). BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
DISCLAIMER OF WARRANTY. YOU ACCEPT THE SOFTWARE “AS IS” AND WITH ALL FAULTS (IF ANY). NIAGARAMODS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NIAGARAMODS MAKES NO WARRANTY OR REPRESENTATIONS WHATSOEVER REGARDING THE CONTENT OF THE SOFTWARE AND YOUR USE OF THE SOFTWARE, OR THE SUITABILITY OF THE SOFTWARE TO MEET YOUR SPECIFIC NEEDS.
NiagaraMods makes no warranties with respect to the Software as described above and as such, there should be no reason for you to bring any grievance against NiagaraMods. However, if you do bring any action, claim, suit, threat or demand against NiagaraMods, and you do not substantially prevail, you shall pay NiagaraMods’ entire attorney fees and costs attached to such action. In the same token, if NiagaraMods is forced to take legal action to enforce this EULA or any of its rights described herein or under any state or federal law, you will pay NiagaraMods’ attorney fees and costs.
VIOLATIONS OF THIS EULA. NiagaraMods reserves all rights not specifically granted to you above. NiagaraMods will have the right to proceed against you in the event that you infringe against NiagaraMods’ rights. Any use not within the precise scope of the license set forth herein will be considered an infringement. You acknowledge and agree that NiagaraMods’ damages in the event of your violation of this EULA will be substantial and that NiagaraMods will suffer irreparable harm in such event. As such, NiagaraMods shall have the right to obtain equitable remedies, including but not limited to recovery of damages, obtaining injunctions, recovering statutory damages, recovering attorney fees, and any other available legal remedy.
TERMINATION. NiagaraMods shall have the sole and exclusive right to immediately terminate this EULA and suspend your license to use the Software should you fail to perform any obligation required under this EULA, engage in activity that NiagaraMods deems harmful to its well-being, or if you become bankrupt or insolvent. This EULA takes effect upon your installation of the Software and remains effective until terminated. Upon termination of this EULA by NiagaraMods, you shall return to NiagaraMods the original and all copies of the Software including partial copies and modifications.
WAIVER & SEVERABILITY. NiagaraMods’ waiver of any breach of this EULA shall not constitute an amendment to this EULA or NiagaraMods’ waiver of subsequent breaches. If any part of this EULA is found void and unenforceable, it will not affect the validity of the balance of this EULA, which will remain valid and enforceable according to its terms.
GOVERNMENT END USER RIGHTS. You acknowledge that all Software and Confidential Information were developed entirely at private expense and that no part of the Software or Confidential Information was first produced in the performance of a Government contract. You agree that the Pre-Release Software and any derivatives thereof are "commercial items" as defined in 48 C.F.R. § 2.101, and if you are a U.S. Government agency or instrumentality or if you are providing all or any part of the Pre-Release Software or any derivatives thereof to the U.S. Government, such use, duplication, reproduction, release, modification, disclosure or transfer of this commercial product and data, is restricted in accordance with 48 C.F.R. § 12.211, 48 C.F.R. § 12.212, 48 C.F.R. § 227.7102-2, and 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. § 12.211, 48 C.F.R. § 12.212, 48 C.F.R. § 227.7102-1 through 48 C.F.R. § 227.7102-3, and 48 C.F.R. §§ 227.7202-1 through 227.7202-4, as applicable, the Software is licensed to U.S. Government end users (i) only as Commercial Items and (ii) with only those rights as are granted to all other users pursuant to this Agreement and any related agreement(s), as applicable. Accordingly, you will have no rights in the Software except as expressly agreed to in writing by you and NiagaraMods.
ELECTRONIC NOTICES. You consent that NiagaraMods may provide you with information and notices regarding the Software and NiagaraMods via the email address you designate when installing the Software or thereafter. NiagaraMods may provide notices to you via (i) email if you have provided NiagaraMods with a valid email address, or (ii) by posting the notice on the NiagaraMods website or the Software download site which NiagaraMods owns and operates. You may withdraw your consent for electronic notices.
AMENDMENTS. NiagaraMods reserves the right to unilaterally amend all offers, pricing terms or other matters pertaining to the Software, NiagaraMods’ website or this EULA. No course of dealing or trade usage shall be deemed to amend the terms of this EULA.
CHOICE OF LAW AND DISPUTES. For other than the U.S. Government as a party, this Agreement shall be governed by and construed in accordance with the laws of the State of Ohio, as if performed wholly within the state and without giving effect to the principles of conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Ohio, and the parties hereby consent to personal jurisdiction and venue therein.
COMPLETE AGREEMENT. This is the entire EULA between NiagaraMods and you relating to the Software and it supersedes any prior representations, discussions, undertakings, warranties, communications or advertising relating to the Software.
NiagaraMods and Reflow, are either the registered trademarks or trademarks of GBO Digital, LLP in the United States of America and/or other countries.