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END-USER LICENSE AGREEMENT
This Software Agreement ("Agreement") is between You (either an individual or
an entity), the End User, and Qoitech AB. ("Qoitech"). The Agreement authorizes
You to use the Software specified in Clause 1 below, which may be stored on a
CD-ROM, sent to You by electronic mail, or downloaded from Qoitech's Web pages
or Servers or from other sources under the terms and conditions set forth
below. This is an agreement on end-user rights and not an agreement for sale.
Except as provided elsewhere in this Agreement, Qoitech and/or its licensors
continues to own the copy of the Software and the physical media contained in
the sales package and any other copy that You are authorized to make pursuant
to this Agreement. Read this Agreement carefully before installing,
downloading, or using the Software. By clicking on the "I Accept" button while
installing, downloading, and/or using the Software, You agree to the terms and
conditions of this Agreement. If You do not agree to all of the terms and
conditions of this Agreement, promptly click the "Decline" or "I Do Not Accept"
button, cancel the installation or downloading, or destroy or return the
Software and accompanying documentation to Qoitech. YOU AGREE THAT YOUR USE OF
THE SOFTWARE ACKNOWLEDGES THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND
AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
1. SOFTWARE.
As used in this Agreement, the term "Software" means, collectively: (i) all the
contents of the disk(s), CD-ROM(s), electronic mail and its file attachments,
or other media with which this Agreement is provided, including the object code
form of the software delivered via a CD- ROM, electronic mail, or Web page (ii)
digital images, stock photographs, clip art, or other artistic works ("Stock
Files") (iii) related explanatory written materials and any other possible
documentation related thereto ("Documentation"); (iv) fonts, and (v) upgrades,
modified versions, updates, additions, and copies of the Software (collectively
"Updates"), if any, licensed to You by Qoitech under this Agreement.
2. END USER RIGHTS AND USE.
Qoitech grants You non-exclusive, non-transferable end-user rights to install
the Software on the local hard disk(s) or other permanent storage media of one
computer and use the Software on a single computer or terminal at a time.
Except as provided by any Open Source License Terms, You may use the Software
only for the sole purpose of power consumption analysis. You acknowledge that
certain software components of the Software ("Open Source Components") may be
covered by so-called "Open Source License Terms". As used herein, Open Source
License Terms means any software licenses approved as open source licenses by
the Open Source Initiative or any substantially similar licenses, including
without limitation any license that, as a condition of use, modification, or
distribution of the software licensed under such license or other software
incorporated into, derived from or distributed with such software, requires
that the distributor: (a) make the software available in source code format;
(b) grant permission for creation of derivative works; or (c) grant a royalty
free license thereto or under any associated intellectual property rights. To
the extent required by the licenses covering Open Source Components, the terms
of such licenses will apply in lieu of the terms of this Agreement. To the
extent the terms of the licenses applicable to Open Source Components prohibit
any of the restrictions in this Agreement with respect to such Open Source
Component, such restrictions will not apply to such Open Source Component.To
the extent the terms of the licenses applicable to Open Source Components
require Qoitech to provide source code for such Open Source Component to You,
Qoitech shall do so upon Your request. To the extent the terms of the licenses
applicable to Open Source Components require Qoitech to make an offer to
provide source code for such Open Source Component to You, this provision
constitutes such offer. You shall not otherwise cause any portion of the
Software to become subject to any license obligation under any Open Source
License Terms. For clarity, in the event that all or any portion of the
Software provided hereunder does not reference, or otherwise indicate, such
Open Source License Terms, this Agreement shall control. Please see the license
information in eula.txt as distributed together with the software to review the
complete list of Open Source Components, Copyright holders, and applicable Open
Source License Terms. Qoitech offers to provide source code of software
licensed under the GPL or LGPL or some other open source licenses allowing
source code distribution to you on a CD-ROM for a charge covering the cost of
performing such distribution, such as the cost of media, shipping and handling,
upon written request to Qoitech AB, Mobilvägen 4, SE-223 62 Lund, Sweden. This
offer is valid for a period of three (3) years from the date of the
distribution of this product by Qoitech. As an alternative to the above
"written request", you can download the same source code from
http://source.qoitech.com. Qoitech collects anonymous usage data to help us
make this product better. Once sent to Qoitech, the data is stored in
aggregated form and made available to Qoitech employees. The Software collects
information from devices connected via debug interfaces such as serial ports
that will be stored as data files on your local media. Qoitech takes no
responsibility for security or privacy related to any such data files. Except
as expressly set forth in this Agreement, this Agreement does not grant you any
intellectual property rights in the Software, and you cannot use the Software
except as specified herein.
3. LIMITATIONS ON END USER RIGHTS.
Unless a Third Party License provides otherwise as to a particular portion of
the Software, You may not copy, distribute, or make derivative works of the
Software except as follows: (a) You may not use, modify, translate, reproduce,
or transfer the right to use the Software or copy the Software except as
expressly provided in this Agreement. (b) You may not resell, sublicense, rent,
lease, or lend the Software. (c) You may not reverse engineer, reverse compile,
disassemble, or otherwise attempt to discover the source code of the Software
(except to the extent that this restriction is expressly prohibited by law) or
create derivative works based on the Software. (d) Unless stated otherwise in
the Documentation, You shall not display, modify, reproduce, or distribute any
of the Stock Files included with the Software. In the event that the
Documentation allows You to display the Stock Files, You shall not distribute
the Stock Files on a stand-alone basis, i.e., in circumstances in which the
Stock Files constitute the primary value of the product being distributed. You
should review the "Readme" files associated with the Stock Files that You use
to ascertain what rights You have with respect to such materials. Stock Files
may not be used in the production of libelous, defamatory, fraudulent,
infringing, lewd, obscene, or pornographic material or in any otherwise illegal
manner. You may not register or claim any rights in the Stock Files or
derivative works thereof. (e) You agree that You shall only use the Software in
a manner that complies with all applicable laws, including, but not limited to,
applicable restrictions concerning copyright and other intellectual property
rights. Likewise, You shall not develop any application or other software using
the SDK that infringes any copyright, trademark, trade secret, trade dress,
patent or other intellectual property right of any person or defames any person
or violates their rights of publicity or privacy. Where a Third Party License
provides additional rights to copy, distribute, or make derivative works of a
particular portion of the Software, those additional rights apply only to such
portion, and to no other.
4. COPYRIGHT.
The Software and all rights, without limitation including proprietary rights
therein, are owned by Qoitech and/or its licensors and affiliates and are
protected by international treaty provisions and all other applicable national
laws of the country in which it is being used. The structure, organization, and
code of the Software are the valuable trade secrets and confidential
information of Qoitech and/or its licensors and affiliates. You must not copy
the Software, except as set forth in clause 3 (Limitations On End-User Rights).
Any copies which You are permitted to make pursuant to this Agreement must
contain the same copyright and other proprietary notices that appear on the
Software.
5. MULTIPLE ENVIRONMENT SOFTWARE / MULTIPLE LANGUAGE SOFTWARE / DUAL MEDIA SOFTWARE / MULTIPLE COPIES / UPDATES.
If the Software supports multiple platforms or languages, if You receive the
Software on multiple media, or if You otherwise receive multiple copies of the
Software, the number of computers on which all versions of the Software are
installed shall be one computer. You may not rent, lease, sublicense, lend, or
transfer versions or copies of the Software You do not use. If the Software is
an Update to a previous version of the Software, You must possess valid
end-user rights to such a previous version in order to use the Update, and You
may use the previous version for ninety (90) days after You receive the Update
in order to assist You in the transition to the Update. After such time You no
longer have a right to use the previous version, except for the sole purpose of
enabling You to install the Update. The foregoing limitations in this clause 5
may not apply to portions of the Software covered by Open Source License Terms.
6. COMMENCEMENT, TERM & TERMINATION.
This Agreement is effective from the first date You download the Software. This
Agreement will automatically expire on the date of expiry stated in the
application or after 1 year, whichever comes first. You may terminate this
Agreement at any time by permanently deleting, destroying, and returning, at
Your own costs, the Software, all backup copies, and all related materials
provided by Qoitech. This Agreement can be terminated in writing by Qoitech, at
any time, without prior notice. Notwithstanding the above, this Agreement will
terminate, and the license granted to you by this Agreement will be revoked,
immediately, without any notice from Qoitech if you fail to comply with any
provision of this Agreement. Upon termination, you must destroy the Software.
In such an event, You must immediately delete, destroy, or return at Your own
cost, the Software, all backup copies, and all related material to Qoitech.
7. YOU ACKNOWLEDGE THAT THE SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW NEITHER QOITECH, ITS LICENSORS OR AFFILIATES, NOR THE COPYRIGHT HOLDERS MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR THAT THE SOFTWARE WILL NOT INFRINGE ANY THIRD PARTY PATENTS, COPYRIGHTS, TRADEMARKS, OR OTHER RIGHTS. THERE IS NO WARRANTY BY QOITECH OR BY ANY OTHER PARTY THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR THE SELECTION OF THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS AND FOR THE INSTALLATION, USE, AND RESULTS OBTAINED FROM IT.
8. NO OTHER OBLIGATIONS.
This Agreement creates no obligations on the part of Qoitech other than as
specifically set forth herein.
9. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL QOITECH,
ITS EMPLOYEES OR LICENSORS OR AFFILIATES BE LIABLE FOR ANY LOST PROFITS,
REVENUE, SALES, DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES,
PROPERTY DAMAGE, PERSONAL INJURY, INTERRUPTION OF BUSINESS, LOSS OF BUSINESS
INFORMATION, OR FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, ECONOMIC, COVER,
PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND WHETHER ARISING
UNDER CONTRACT, TORT, NEGLIGENCE, OR OTHER THEORY OF LIABILITY ARISING OUT OF
THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF QOITECH OR ITS LICENSORS
OR AFFILIATES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME
COUNTRIES/STATES/ JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF LIABILITY, BUT
MAY ALLOW LIABILITY TO BE LIMITED, IN SUCH CASES, QOITECH, ITS EMPLOYEES OR
LICENSORS OR AFFILIATES' LIABILITY SHALL BE LIMITED TO U.S. $50. Nothing
contained in this Agreement shall prejudice the statutory rights of any party
dealing as a consumer. Nothing contained in this Agreement limits Qoitech's
liability to You in the event of death or personal injury resulting from
Qoitech's negligence. Qoitech is acting on behalf of its employees and
licensors or affiliates for the purpose of disclaiming, excluding, and/or
restricting obligations, warranties, and liability as provided in this clause
9, but in no other respects and for no other purpose.
10. TECHNICAL SUPPORT.
Qoitech has no obligation to furnish You with technical support unless
separately agreed in writing between You and Qoitech.
11. EXPORT CONTROL.
The Software, including technical data, may include cryptographic software
subject to export controls under the U.S. Export Administration Regulations
("EAR") and may be subject to import or export controls in other countries.
Software may not be downloaded, or otherwise exported or re-exported (i) into,
or to a national or resident of, Cuba, Iran, Iraq, Iran, North Korea, Libya,
Sudan, Syria, or any country to which the U.S. has embargoed goods; or (ii) to
anyone on the U.S. Treasury Department's list of Specially Designated Nations
or the U.S. Commerce Department's Table of Denial Orders. The EAR prohibits the
use of the Software and technical data by a Government End User, as defined
hereafter, without a license from the U.S. government. A Government End User is
defined in Part 772 of the EAR as "any foreign central, regional, or local
government department, agency, or other entity performing governmental
functions; including governmental research institutions, governmental
corporations, or their separate business units (as defined in part 772 of the
EAR) which are engaged in the manufacture or distribution of items or services
controlled on the Wassenaar Munitions List, and international governmental
organizations. This term does not include: utilities (telecommunications
companies and Internet service providers; banks and financial institutions;
transportation; broadcast or entertainment; educational organizations; civil
health and medical organizations; retail or wholesale firms; and manufacturing
or industrial entities not engaged in the manufacture or distribution of items
or services controlled on the Wassenaar Munitions List.)" You agree to strictly
comply with all applicable import and export regulations and acknowledge that
You have the responsibility to obtain licenses to export, re-export, transfer,
or import the Software. You further represent that You are not a Government End
User as defined above, and You will not transfer the Software to any Government
End User without a license.
12.INDEMNIFICATION.
To the maximum extent permitted by law, you agree to defend, indemnify and hold
harmless Qoitech, its affiliates and their respective directors, officers,
employees and agents from and against any and all claims, actions, suits or
proceedings, as well as any and all losses, liabilities, damages, costs and
expenses (including reasonable attorney’s fees) arising out of or accruing from
(a) your use of the Software, and (b) any non-compliance by you with this
License Agreement.
13. NOTICES.
All notices and return of the Software and Documentation should be delivered
to: Qoitech AB. Mobilvägen 4, SE-223 62 Lund, Sweden
14. APPLICABLE LAW & GENERAL PROVISIONS.
This Agreement is governed by the laws of Japan. All disputes arising from or
relating to this Agreement shall be finally settled under the Rules of
Arbitration of the International Chamber of Commerce by one arbitrator
appointed in accordance with the said Rules. The arbitration procedure shall
take place in Tokyo, Japan and in the English language. If any part of this
Agreement is found void and unenforceable, it will not affect the validity of
the balance of the Agreement, which shall remain valid and enforceable
according to its terms. This Agreement may only be modified by a writing signed
by an authorized officer of Qoitech, although Qoitech may vary the terms of
this Agreement. This is the entire agreement between Qoitech and You relating
to the Software, and it supersedes any prior representations, discussions,
undertakings, end-user agreements, communications, or advertising relating to
the Software. I/We acknowledge that I/We have read the above terms and
conditions and by indicating our acceptance of the same agree to be bound by
them.
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