This End-User License Agreement (“EULA”) is a legal agreement between Licensee (either an individual or a single entity) and Business Forecast Systems, Inc. (“BFS”) for the BFS software that accompanies this EULA.
If You do not agree with the terms of this EULA, BFS does not grant any license to the Software and You should not download, install or use the Software. In such event that You do not agree with the terms of this EULA and have already installed or downloaded the Software, You must remove the Software from your Computer, destroy all copies and notify BFS in writing that You have done so. If You do not comply with these removal and notification requirements within thirty days (30) of your invoice date, You will not be entitled to a refund of any license fees You paid.
A. “Authorized User” means the Licensee in the case where the Licensee is an individual. In the case where the Licensee is an entity, “Authorized User” means (i) an employee of the Licensee, but only while such employee is acting within the scope of such employee’s employment by Licensee; and (ii) the primary user of the Computer on which the Software is installed.
B. “BFS” means Business Forecast Systems, Inc., 465 Waverley Oaks Road, Suite 318, Waltham, Massachusetts 02452 USA, the author and owner of the copyright of this computer program product.
C. “Computer” means the single computer, workstation, terminal or other digital electronic device on which You use this program.
D. “Licensee” and “You” means an individual or single entity exercising rights under and complying with all the terms of this EULA. In the remainder of this EULA, the Licensee is referred to as “You.”
E. “License Document” means an invoice, invoice attachment, order confirmation, quote, or other document issued by BFS and executed or accepted by You, including electronically, describing Software ordered and/or subscriptions renewed, the current subscription period and the renewal fees which will apply at the end of the current subscription period.
F. “Software” means the set of computer software programs in this package, regardless of the form in which You subsequently use it.
G. “Subscription Period” means the period initially set forth on the Order (and any subsequent renewals thereof) during which You are permitted to install, use and operate the Software.
BFS retains title, ownership, and all rights and interests in and to the Software, documentation and all other materials supplied by BFS. BFS does not sell the Software or any copies thereof, but only grants limited licenses to use the Software in accordance with the terms of this EULA.
3. GRANT OF LICENSE
Upon acceptance of this EULA, BFS grants You a non-transferable, non-exclusive, limited right to use this copy of the Software during the Subscription Period. You may use the Software and the associated documentation only in connection with one Computer. You may physically move the Software from one Computer to another, provided that the Software is used on only one Computer at a time. You may not move the Software electronically from one Computer to another over a network. This license is granted for use by an individual Authorized User, and, in no event shall there be more than one Authorized User on the Computer where the Software is installed; e.g., there shall be no common sharing of a “Forecast Pro computer.” Each Authorized User must have a separate license to use the Software on his or her Computer.
4. LICENSE RESTRICTIONS
You acknowledge that the Software and its structure, organization, and source code constitute valuable trade secrets of BFS. You shall not, nor shall permit, assist or encourage any third party to:
a) copy, modify, adapt, alter, translate, reverse engineer, decompile, disassemble, or attempt to derive the source code for the Software;
b) merge the Software with other software and/or create derivative works from the Software;
c) sublicense, distribute, publish, sell, lease, rent, loan, or otherwise transfer or allow access to the Software to any third party;
d) use the Software in the operation of a service bureau;
e) defeat, disable or circumvent any security measures BFS may use to prevent unauthorized use or copying of the Software.
5. TRANSFER OR REPRODUCTION
You may not transfer or reproduce the Software with the exception of making a maximum of two (2) copies of the Software to be used for backup purposes only.
If a third party claims that the Software or its use infringes its patent, copyright, or trade secret, or any similar intellectual property right, BFS will defend You against that claim at BFS’s expense, indemnify and hold You harmless, and pay all damages that a court finally awards plus reasonable attorney’s fees, provided that You promptly notify BFS in writing of the claim, and allow BFS to control, and cooperate with BFS in, the defense or any related settlement negotiations. If such a claim is made or appears possible, You agree to permit BFS, at BFS’s option, to (1) procure for You the right to continue using the Software; (2) replace or modify same so that it becomes non-infringing; or, (3) refund to You all amounts received hereunder if neither (1) nor (2) are possible. However, BFS has no obligation for any claim based on Your modification of the Software or its use in combination with any product not provided by BFS, provided that such claim solely and necessarily is based on such combination and such claim would be avoided if the Software were used independently. THIS PARAGRAPH STATES BFS’S ENTIRE OBLIGATION TO YOU WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.
7. LIMITED WARRANTY
THE SOFTWARE, THE DOCUMENTATION, AND ANY OTHER MATERIALS THAT MAY BE PROVIDED BY BFS ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND. BFS HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES WITH REGARD TO THE SOFTWARE, THE DOCUMENTATION, AND ANY OTHER MATERIALS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR COURSE OF PERFORMANCE. BFS EXPLICITLY DOES NOT WARRANT THAT THE SOFTWARE WILL MEET ALL OF YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE ERROR-FREE. YOU ACKNOWLEDGE THAT YOU HAVE RELIED ON NO WARRANTIES AND NO WARRANTIES ARE MADE HEREIN BY BFS.
8. LIMITATION OF LIABILITY
BFS SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT MAY BE RELATED TO THE FURNISHING, PERFORMANCE, OR USE OF THE SOFTWARE, INCLUDING WITHOUT LIMITATION ANY INDIRECT, SPECIAL, INCIDENTAL, ECONOMIC, LOST PROFIT, OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND WHATSOEVER EVEN IF BFS HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. IN NO EVENT SHALL BFS’S LIABILITY UNDER THIS EULA EXCEED THE AMOUNT PAID FOR THE SOFTWARE LICENSE, IF ANY.
9. TRIAL LICENSES
The Software may be licensed on a trial basis. Your rights to use the Software on a trial basis are limited to the trial period as indicated in Your download instructions or email from a BFS representative. After expiration of Your trial period, the trial Software will stop functioning and Your licensing rights will end.
10. TERM AND TERMINATION
A. Term of Agreement. The term of this Agreement will commence when You first download, accept delivery, install or use the Software and shall continue for the duration of the Subscription Period unless terminated earlier as set forth herein.
B. Termination of Agreement for Breach. This Agreement may be terminated for cause by either party in the event of any material breach by the other party which breach remains uncured thirty (30) days after the provision of written notice thereof.
C. Renewal of Subscription Period. At the end of the initial Subscription Period, or any Subscription Period thereafter (as defined below), the Subscription Period will automatically renew for successive terms of one year each, unless and until either party gives notice of termination to the other party at least 60 days prior to expiration of the then-current Subscription Period. Except for cases where the parties have agreed to specific renewal pricing in writing signed by an authorized representative of each party, the pricing for the automatic renewal will be the renewal fees listed in the most current License Document.
D. Suspension of License for Non-Payment. If any amount owed by You under this Agreement is thirty (30) or more days overdue BFS reserves the right, without limiting its other rights and remedies, to suspend Your license to use the Software until such amounts are paid in full. Suspension of license does not relieve Your obligation to pay the balance owed in full, including any interest charged.
E. Effects of Termination. Upon termination of this EULA, You must destroy all copies, full or partial, of the Software. You agree that upon termination of this EULA for any reason, BFS may take actions so that Software no longer operates.
11. GENERAL TERMS AND CONDITIONS
A. You represent and warrant that You have the right, power and authority to enter into this EULA, and acknowledge that You have read this EULA, understand it, and agree to be bound by its terms and conditions. This EULA supersedes all prior agreements, oral or written communications, proposals, representations, and warranties and prevails over any conflicting or additional terms of any quote, order, acknowledgment, or other communication between the parties relating to its subject matter during the term of this EULA. No modification of this EULA will be binding, unless made in writing and signed by an authorized representative of each party.
B. This Agreement is personal to You and may not be assigned or transferred for any reason whatsoever without BFS’s prior written consent and any action or conduct in violation of the foregoing will be void and without effect. Notwithstanding the foregoing, either party may assign this Agreement, without prior written consent, in its entirety, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of either party’s assets. BFS expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder.
C. The Software is subject to United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the Software. These laws include restrictions on destinations, end users, and end use.
D. In the event that any portion of this EULA is held unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of this EULA shall remain in full force and effect.
E. This EULA will be governed by and construed and enforced according to the laws of the Commonwealth of Massachusetts, USA excluding its conflict of law provisions.