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This End-User License Agreement for the remote360® Dashboard Software (“EULA”) is between you and MC Machinery Systems, Inc. (“MC Machinery”). This EULA is a legal document that contains the terms and conditions under which limited use of certain Software (as defined herein) that operates with the remote360® system is licensed to you. PLEASE READ THIS EULA CAREFULLY.
THE USE, DOWNLOAD OR ACCESS (COLLECTIVELY, “USE”) OF THIS SOFTWARE BY YOU INDICATES YOUR EXPRESS CONSENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA. If you do not wish to be bound by the terms and conditions set forth in this EULA, immediately cease use of the Software and uninstall the Software from any and all Device(s) (as such term is defined below) onto which the Software has been downloaded or installed.
In order to use the Software, you are required to have a compatible Device (as such term is defined herein), Internet access, and the following minimum specifications:
Connection Speed Requirements:
1. LICENSE GRANT: “Software” means all software programs, applications and/or associated files provided by MC Machinery in connection with the use of the remote360® system, all modified versions of and upgrades or improvements to such software programs, applications and associated files, all subsequent versions of such software programs, applications and associated files and all copies of such software programs, applications and associated files. Subject to the terms and conditions of this EULA, MC Machinery grants to you a limited, nonexclusive, nontransferable and revocable license (without the right to sublicense) to use the Software solely on a Device(s) that you own or control and exclusively for use in conjunction with the remote360® system. “Device(s)” means any computer, notebook computer, mini-laptop or any other applicable device that you own or control. The terms of this EULA will govern any upgrade provided by MC Machinery that replaces and/or supplements the original Software, unless any such upgrade is accompanied by a separate end user license agreement in which case the terms of that end user license agreement will govern.
2. PROHIBITIONS: You agree not to, and you will not permit others to, (a) license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the Software or make the Software available to any third-party, (b) copy or use the Software for any purpose other than as permitted herein, (c) use any portion of the Software on any Device other than a Device that you own or control, (d) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software, or (e) modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Software. You may use the Software only for internal purposes and you may not use the Software to provide services to any third party or provide services as a service bureau.
3. AUTOMATIC SOFTWARE UPDATES: MC Machinery may, from time to time, develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Software and related services (“Updates”). Such Updates may be automatically installed on your Device(s) without providing any additional notice or receiving any additional consent from you. If you do not want such Updates, you must stop using the Software. If you do not cease using the Software, you will have been deemed to consent to receiving these Updates and they will be implemented onto your Device(s) automatically.
5. OPEN SOURCE LICENSES: Certain items of software included with the Software may be subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of this EULA. Instead, each item of Open Source Software is licensed under the terms of the end user license that accompanies such Open Source Software. Nothing in this EULA limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software.
6. INTELLECTUAL PROPERTY: This Software is protected by various intellectual property laws and treaties. All applicable intellectual property rights in and to the Software (including, but not limited to, any images, photographs, animations, video, audio, music, text, layouts, format and other graphic representations/presentations incorporated into the Software) and any copies of the Software, are owned by MC Machinery, its parents, affiliates, related companies and/or its suppliers. No rights in and to any such intellectual property are granted, conveyed or transferred to you; and the grant of any license hereunder shall not be deemed to have granted, conveyed or transferred any such intellectual property rights to you. By using the Software, you disclaim any such grant, conveyance or transfer of any such intellectual property rights to you. Your sole and exclusive right shall be to use the Software in accordance with the terms and conditions set forth in this EULA.
7. TERM: This EULA and the license granted hereunder are effective on the date you first download or use the Software and shall continue for as long as you use the Software (or the Software remains on any Device owned or used by you), unless this EULA is terminated under this section. MC Machinery reserves the right to terminate this EULA at any time if you fail to comply with any term(s) or condition(s) hereof. You may terminate this EULA effective immediately by terminating use of the Software and permanently deleting the Software from all Device(s) onto which the Software was loaded and/or used. Upon termination of this EULA, the license granted hereunder will terminate and you must immediately cease all use of the Software, but the terms of Sections 2 through 15 will remain in effect, following any such termination.
8. EXCLUSION OF WARRANTIES: THE SOFTWARE, AND ANY RELATED INFORMATION, GOODS OR SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH NO WARRANTY OR REPRESENTATION OF ANY KIND OR NATURE WHATSOEVER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MC MACHINERY FOR ITSELF AND ON BEHALF OF ITS PARENTS, AFFILIATES, ASSOCIATES, RESELLERS DEALERS, AGENTS AND SUPPLIERS HEREBY DISCLAIM ALL OTHER WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES, SECURITY, PERFORMANCE, LACK OF NEGLIGENCE, WORKMANLIKE EFFORT, QUIET ENJOYMENT, THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED OR ERROR-FREE, AND/OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED.
Based on your applicable Internet service plan, you or your company may be charged by the Internet service provider for access to Internet connection services for the duration of the connection while accessing the remote360® system or any other applicable third-party charges that may arise. In no event will MC Machinery be responsible for any such direct or indirect charges, surcharges and/or overages that may arise from such use.
MC Machinery will take all reasonable commercial efforts to ensure that the Software is available to you at all times. However, because the Software is utilized via the Internet and through third-party Internet service providers, the quality and availability of the Software may be affected by the factors outside the reasonable control of MC Machinery. MC Machinery, its parent and affiliated companies hereby disclaim any liability or responsibility whatsoever for the unavailability of the Software and/or any difficulty or inability to download or access content from the remote360® system and/or any other communication system failure which may result in the Software being or becoming unavailable.
The entire risk of the use, results and performance of the Software is borne by you. Should the Software or related information, goods or services be defective, misused, unsuitable, inoperable, inaccurate or cause or give rise to any harm or liability whatsoever, you (and not MC Machinery or its parents, affiliates, associates, resellers, dealers or agents and suppliers) assume the entire liability for cost of repair, correction or any payment or other remedy whatsoever. Furthermore, no warranty or guarantee is made regarding the use or results of the Software or any related information, goods or services in terms of correctness, accuracy, reliability, timeliness or otherwise. You use and rely on the Software at your own risk. If any deficiencies are noted in the Software, you shall immediately cease all use of the Software and not rely upon the same in the conduct of your business or otherwise. Your sole and exclusive remedy relative to any defects or deficiencies in the Software shall be as set forth in Paragraph 10 hereof.
9. EXCLUSION OF DAMAGES: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MC MACHINERY, ITS PARENTS, AFFILIATES, ASSOCIATES, RESELLERS, DEALERS, AGENTS OR SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, PERSONAL INJURY OR PROPERTY DAMAGE, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, NEGLIGENCE, AND ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER), ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF MC MACHINERY OR SUCH OTHER ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. LIMITATION OF LIABILITY: IN NO EVENT SHALL MC MACHINERY’S TOTAL AGGREGATE LIABILITY OR THAT OF ITS PARENTS, AFFILIATES, ASSOCIATES, RESELLERS, DEALERS, AGENTS OR SUPPLIERS EXCEED THE LESSER AMOUNT OF ONE HUNDRED DOLLARS ($100.00) OR THE PRICE YOU PAID FOR THE SOFTWARE.
The warranties and remedies set forth herein are exclusive, and in lieu of all other remedies, oral or written, express or implied. Some jurisdictions do not allow exclusion or limitation of implied warranties or of liability for incidental damages, so the foregoing limitations or exclusions may not apply to you. This warranty gives you specific legal rights which may vary from jurisdiction to jurisdiction.
11. U.S. GOVERNMENT RESTRICTED RIGHTS: All Software provided to the U.S. Government is provided with the commercial license rights and restrictions described elsewhere herein. In the event that the prime contract with the U.S. Government does not allow and cannot be modified to allow the delivery of Software and Software documentation with those rights, then all Software provided to the U.S. Government is provided with “Restricted Rights” as provided for in FAR, 48 CFR 52.227-14 or DFAR 48 CFR 52.227-7013, as applicable. The reseller is responsible for ensuring software is marked with the “Restricted Rights Notice” or “Restricted Rights Legend,” as required. All rights not expressly granted are reserved.
12. EXPORT RESTRICTIONS: The Software and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree to strictly comply with all such laws and regulations and acknowledge that you have the responsibility to obtain authorization to export, re-export, or import the Software and related technology, as may be required. You will indemnify and hold MC Machinery harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorney’s fees) arising from or relating to any breach by you of your obligations under this section.
13. SEVERABILITY: In the event any provision of this EULA is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law (otherwise, such provision shall be severable) and the remaining provisions will continue in full force and effect.
14. GOVERNING LAW AND JURISDICTION: This EULA is governed by the laws of the State of Illinois, without regard to its conflicts of laws principles. Any action arising out of or relating to this EULA shall be brought exclusively in the appropriate state or federal court in Chicago, Illinois, and the parties irrevocably consent to the exclusive jurisdiction of such courts and venue in Chicago, Illinois and waive any objections to the same. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
15. MISCELLANEOUS: This EULA sets forth the entire agreement between MC Machinery and you with respect to the Software and your use thereof. No provision of this EULA may be waived, modified or superseded except by a written instrument signed by both parties. You may not assign this EULA to any third party without the express, written consent of MC Machinery. This EULA was drafted in English and the parties agree that the English-language version of this EULA governs in the event of any conflict or inconsistency between the English-language version and any translations thereof. All suppliers of MC Machinery shall be direct and intended third-party beneficiaries of this EULA, including without limitation the disclaimers of warranties and limitations on liability set forth herein. No failure or delay in exercising any right or remedy shall operate as a waiver of any such (or any other) right or remedy. This EULA shall bind and inure to the benefit of the parties and their successors and permitted assigns. In the event of any legal proceeding between the parties arising out of or related to this Agreement, the prevailing party shall be entitled to recover, in addition to any other relief awarded or granted, its costs and expenses (including reasonable attorneys’ and expert witness’ fees) incurred in any such proceedings.