Terms and Conditions
END USER LICENSE AGREEMENT
IMPORTANT READ CAREFULLY: This is a legal agreement (“agreement”) between you (an individual or a single entity) (“you” or “licensee”) and Synergy Homeopathic, (“Synergy”) pertaining to ReferenceWorks, MacRepertory or other software, any accompanying documentation that may be provided with such software, and any service provided through or in connection with such software (singularly or collectively, the (“software”) you are about to download, install, copy, access or otherwise use. Synergy licenses the software to you only upon the express condition that you accept all of this agreement terms and conditions. You therefore should carefully read this agreement before downloading or installing the software. By downloading, installing, copying, accessing or otherwise using the software, you accept this agreement terms and conditions and understand that they will be legally binding on you. If you do not agree to the terms, then Synergy is unwilling to license the software to you. If you do not agree with the terms, or do not want them binding on you, you must not download, install, access, or copy the software and you may return the software from the authorized reseller from whom you bought it for a full refund within thirty (30) days of the date shown on your receipt for such purchase.
License Grant. The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Software is licensed, not sold, as follows: Synergy hereby grants to Licensee a single, perpetual, nonexclusive, nontransferable limited license (the “License”) to use a machine-readable object code version of the Software. No copies of the Software or any portion thereof shall be made, except this Agreement permits You to install the Software on no more than two (2) computers that you own, provided that the Software is only used on one (1) computer at any one time (i.e. simultaneous use is prohibited). This License terminates immediately upon any breach by You of its terms.
License Restrictions: The License granted shall not extend to any third party. Except as specifically permitted pursuant to this Agreement, Licensee shall not: (i) allow any third party to use the Software for any direct or indirect fee; (ii) copy (except as permitted by applicable law or as provided in this Agreement), sell, modify, translate, transfer, reverse engineer, decompile or disassemble the Software, provided, however, that if You require information necessary to create an independent program which is interoperable with the Software, upon written notification of such requirement Synergy will make the necessary information available to You upon You entering into obligations to keep the information confidential and payment of Synergy costs of providing such information; (iii) remove any Software proprietary notice, label or mark, whether in machine language or human readable form; (iv) transmit or distribute the Software to any person outside Licensee internal business organizations; (v) create any derivative work that is based on or incorporates the Software; (vi) use the Software to provide any service bureau by which any third party can access the Software, or by which information produced by the Software is sold or given to any third party through use of any technology now known or later devised; (vii) sublicense, assign, delegate or otherwise transfer the License or any right or obligation related to it for any reason without Synergy prior written consent (any attempt to sublicense, assign, delegate or transfer this license, by contract, statute, corporate merger of any sort, regulation or court order without Synergy prior written consent shall be void); (viii) export the Software outside of the country in which it was purchased without Synergy express prior written consent; or (ix) install and operate the Software at any location not specifically licensed for such installation whether through physical transfer of a copy, electronic access through a wide area network of any description, or by any other means now known or hereinafter devised. Upon termination of this Agreement for any reason, this License shall terminate and any user accessing the Software shall immediately cease to use or have access and support for it. Unauthorized copying of the Software or failure to comply with any prohibition set forth in this Agreement shall result in this Agreement ís automatic termination. Unauthorized copying or distribution of the Software constitutes copyright infringement and may be punishable in a federal criminal action by fines and imprisonment. In addition, federal civil remedies for copyright infringement allow for the recovery of actual damages based on the number of copies produced or statutory damages of up to U.S. $150,000 for willful copyright infringement.
Title and Copyright: It is hereby understood and agreed that as between Synergy and You, Synergy owns all rights, title and interest, including the copyright, to the Software, as recorded on the media on which the Software is furnished to You and any subsequent copy, whether using any technology now known or hereafter devised. Except as expressly provided herein, You do not acquire any rights to the Software through this Agreement.
NO WARRANTIES: THE SOFTWARE IS FURNISHED “AS IS” AND WITH ALL FAULTS. Synergy, ITS RESELLERS, DISTRIBUTORS, AND SUBLICENSEES, MAKE, AND YOU RECEIVE, NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR IN ANY COMMUNICATION WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Synergy, ITS RESELLERS, DISTRIBUTORS, AND SUBLICENSEES DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, OR ANY WARRANTY THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. LICENSEE EXPRESSLY ASSUMES ALL RISK RESULTING FROM SUPPORT SERVICES (WHETHER PERFORMED IN WHOLE, IN PART OR NOT AT ALL), OR FROM ANY VIRUS, DOWNLOADED MATERIAL, HARMFUL COMPONENT, OR THROUGH ANY INTERNET USE RESULTING FROM OR RELATING TO LICENSEEíS USE OF THE SOFTWARE OR ANY SITE OR SERVER THROUGH WHICH THE SOFTWARE IS AVAILABLE. LICENSEE SHALL BE SOLELY RESPONSIBLE FOR THE ACCURACY AND TRANSMISSION OF ALL DATA ENTERED, ANY DAMAGE THAT RESULTS FROM OR IS ASSOCIATED WITH USE OF THE SOFTWARE.
LIMITATION OF LIABILITY: THE LIMITATION OF LIABILITY IS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IN NO EVENT SHALL Synergy, ITS RESELLERS, DISTRIBUTORS, LICENSORS AND SUBLICENSEES, BE LIABLE FOR ANY DAMAGES, WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE AND INCLUDING, WITHOUT LIMIT, ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OR CORRUPTION OF BUSINESS INFORMATION OR OTHER DATA, COST OF COVER, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR THE FAILURE TO PROVIDE FULL OR ADEQUATE SUPPORT SERVICES, EVEN IF Synergy HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ACKNOWLEDGE THAT THE LICENSE FEE AMOUNT REFLECTS THIS ALLOCATION OF RISK. IN ANY CASE, THE ENTIRE LIABILITY OF Synergy, ITS RESELLERS, DISTRIBUTORS, LICENSORS OR SUBLICENSEES, UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE OR FIVE U.S. DOLLARS ($5). BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Medical: Licensee acknowledges that the software is not intended to be a “Medical Device” as defined in the Federal Food, Drug and Cosmetic Act. Licensee further acknowledges that the Food and Drug Administration has not approved the medical effectiveness of the Software. As acknowledged by Licensee in Sections 4 and 5 of this Agreement, Synergy MAKES NO REPRESENTATION ABOUT ANY MEDICAL EFFECTIVENESS OF THE SOFTWARE AND EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY RELATING THERETO.
Governing Law/Jurisdiction: This Agreement shall be governed by and construed under the laws of the State of California without reference to principles of conflicts of laws. All disputes hereunder shall be resolved exclusively in the appropriate state court in the City and County of San Francisco, California or federal court for the Northern District of California, U.S.A. You consent to exclusive jurisdiction in such venue and expressly waive any objection to same. If You are now or are later deemed to be a state entity, You hereby expressly and specifically waives any objection You may have, pursuant to the Eleventh Amendment to the United States Constitution or otherwise, to the jurisdiction of, or any award that could be granted by, the United States Federal Courts.
Assignment: Licensee may not assign this Agreement without Synergy prior written consent.
U.S. Government Matters: You shall not to export or re-export the Software, any part thereof, or any process or service that is the direct product of the Software (collectively referred to as the “Restricted Components”), to any country, person or entity subject to U.S. export restrictions. You specifically agree not to export or re-export any of the Restricted Components (i) to any country to which the U.S. has embargoed or restricted the export of goods or services, which currently include, but are not necessarily limited to the Balkans, Burma, Cuba, Iran, Iraq, Liberia, Libya, North Korea, Sudan, Syria, and Zimbabwe, or to any national of any such country, wherever located, who intends to transmit or transport the products back to such country; (ii) to any entity You know or have reason to know will utilize the Restricted Components in the design, development or production of nuclear, chemical or biological weapons; or (iii) to any entity You know or have reason to know has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government. All Software is a “commercial item” as that term is defined in 48 C.F.R. 2.101 (October 2004), consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 (October 2004). All Software also consists of “commercial computer software”,”computer databases”, “computer programs”, and “computer software documentation” as such terms are defined in DFARS 252.227-7014(a) (June 1995). Consistent with 48 C.F.R. 12.212, 48 C.F.R. 27.405(b) (October 2004), 48 C.F.R. 227.7202-3 (October 2004), and DFARS 227.7202-3 (October 1998), all U.S. Government users acquire the Software with only those rights as set forth herein.
Indemnification: If the Software is modified (including without limit any change to the Software initialization file[s]), installed or used in violation of any Agreement prohibition or any warning, instructions, or recommendation by Synergy, or any of its resellers, distributors, licensors, and sublicensees, You hereby agree to, and You therefore shall, defend and indemnify and hold Synergy, its resellers, distributors, licensors, and sublicensees, harmless from and against all claims of any kind for any expense, injury, loss, or damage arising out of, connected with, or resulting therefrom.
Equitable Relief: You acknowledge that, at the time this Agreement is entered, it would be impossible or inadequate to measure and calculate all of the damages of Synergy, its resellers, distributors, licensors, and sublicensees, for the breach of certain provisions of this Agreement and that it would require a court of competent jurisdiction to ascertain such damages. Accordingly, if you breach or threaten to breach any of your obligations, other than payment when due, Synergy, its resellers, distributors, licensors, and sublicensees shall each be entitled, separately or jointly, without showing or proving any actual damage sustained, to a stipulated temporary restraining order, and shall thereafter be entitled to apply for a preliminary injunction, permanent injunction, and/or order compelling specific performance, to prevent the breach of your obligations under this Agreement. Nothing in this Agreement shall be interpreted as prohibiting Synergy, or any of its resellers, distributors, licensors, or sublicensees from pursuing or obtaining any other remedies as otherwise available to it for such actual or threatened breach, including recovery of damages.
General: This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter herein and merges and supersedes all prior agreements, writings, commitments, discussions and understandings between them. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by Synergy. If any Agreement term is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included. This Agreement shall be construed within its fair meaning and no inference shall be drawn against the drafting party in interpreting this Agreement.
YOU HEREBY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT AND CONTRACTUALLY BIND LICENSEE, AND HEREBY DO AGREE TO THIS AGREEMENT TERMS AND CONDITIONS.