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1. Agreement Controls the Relationship
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1.1 This Software License and Service Agreement ("Agreement") sets forth the terms and conditions, obligations, responsibilities, liabilities and remedies as between (a) you and (b) EAP Expert Software ("Software") and the Representatives (defined in Section 7.2) in regards to your use of the "Software", being EAP Expert, and any related services, materials, and documentation.
1.2 By using the Software, you confirm that you (a) have read and understood this Agreement, (b) accept and agree to be bound by its terms and conditions, (c) acknowledge that this Agreement sets forth your exclusive remedies in respect of any claims you may have related to the Software and (d) understand that this Agreement fully sets out the obligations and limitations of liability of EAP Expert Software, its licensors and the Representatives to you, notwithstanding any other prior or contemporaneous writing (including any related packaging or advertisements), promise, understanding, or oral representations made by any party, including EAP Expert Software.
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2. Rejection of Agreement
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2.1 If you purchased a license for the Software but do not agree with or consent to be bound by the terms of this Agreement, you must (a) immediately discontinue all use of the Software (b) immediately delete from your computer the Software, and destroy any and all copies made by you (or with your permission) of any portion of the Software; and (c) within ten (10) days, return all items provided to you as part of the Software plus "Proof of Purchase" to EAP Expert Software. "Proof of Purchase" is documentation evidencing the date and amount you paid for your Software (e.g. dated receipt, shipping invoice).
2.2 If you comply with the terms of Section 2.1, you shall receive a full refund of any monies you paid for the Software, less an administrative fee at EAP Expert Software's sole discretion.
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3. Support
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3.1 EAP Expert Software may make available to you updates and error corrections (collectively, "updates") to the Software. As determined by EAP Expert Software in its sole discretion, updates may be provided (a) electronically via the world-wide-web and/or (b) via media (e.g. CD-ROM). You may be charged an additional fee if EAP Expert Software makes updates available (y) both electronically and via media and you chose media or (z) in different media forms and you chose the form which is identified as having an additional fee. It is your obligation to install all updates when such have been made available to you by EAP Expert Software (or it’s Representatives). It is your sole responsibility to establish and maintain adequate access to the world-wide-web in order to receive the Software and to maintain in good working order the computer on which you will access the Software.
3.2 If you decide not to enter a technical support agreement with EAP Expert Software, then at its sole discretion, EAP Expert Software may provide technical support for the Software via e-mail correspondence, for a period of thirty (30) days from the date of purchase. After this period, EAP Expert Software is under no obligation to offer any technical support for the Software. Please contact EAP Expert Software to enquire about our technical support service(s).
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4. License Grants
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4.1 Named-User License: When you (i) purchase a license for the use of EAP Expert, for a named user, you are granted a non-exclusive, limited License for one (1) individual to access the Software on any computer. You are permitted to make one (1) backup copy of the applicable Software as an archival copy. You may also use your backup copy to replace the applicable Software in the event the Software loaded on the licensed computer is lost or is damaged and rendered unusable, however, your use of the replacement copy of the Software will be subject to the terms and conditions set forth in this Agreement.
4.2 Additional Named-User Licenses: If you need to install EAP Expert for more than one (1) named user, then you must determine and purchase the appropriate number of user licenses for the additional users. For example, if you need to install the software for a total of five (5) named users, you must purchase five (5) named-user software licenses.
4.3 Trial-User License: If you have received a trial-user version of the Software, you are granted a limited non-exclusive License to use the Software so that one (Named-User) individual may access the Software on any computer. You may print one (1) copy of any online user documentation in relation to the Software however; you cannot make multiple copies of any online user documentation or printed materials that accompany the Software (if any). Your trial-user License is only valid for approximately thirty (30) days following the installation of the Software, or as otherwise may be specified on the packaging or as identified when you requested the trial-user version of the Software. You understand that upon the expiration of your trial user License, you must purchase a license for the Software to continue to use the Software and, in the absence of which, you may not be able to use/access the Software or any data you entered into the Software.
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5. License Restrictions
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5.1 The Software and the Services contain EAP Expert Software trade secrets. You may not disclose such trade secrets or decompile, reverse engineer, disassemble, or otherwise reduce the Software to human-perceivable form except to the extent that such right cannot be excluded by mandatory applicable law.
5.2 You may not modify, adapt, translate, rent, sublicense, assign (except as permitted under Section 5.4), lend, resell for profit, distribute, or network any portion of the Software, Services, disk(s), or related materials, or create derivative works based thereon or any part thereof.
5.3 The Software and materials provided to you in connection therewith, are protected by English copyright law and other copyright laws and international treaties. Unless expressly permitted under your applicable License grant in Section 4.1, 4.2, 4.3 or 4.4 any of the following actions by you, among others, would be considered violations of this Agreement:
(a) Distributing copies of the Software to entities or persons that have not purchased a License to the Software from EAP Expert Software;
(b) Permitting others to access the Software for their own purpose;
(c) Enabling others to use your Software registration or access codes, passwords, installation key codes (as may be provided by EAP Expert Software), or serial number(s) (if any);
(d) Making additional copies or duplicating any aspect of the Software by any means, including electronic transmission;
(e) Copying any portion of the printed materials, if any, accompanying the Software, or printing multiple copies of any user documentation; or
(f) Installing the Software on computers used by individuals who do not have License grants under this Agreement.
5.4 Subject to EAP Expert Software’s approval, you may only transfer/assign your right(s) in and to Software (as applicable) to a third party, or sell the computer on which the Software is installed to a third party, provided that, within fifteen (15) days of the transfer/assignment to that third party, (a) you notify EAP Expert Software of the transfer/assignment and complete any transfer forms required by EAP Expert Software and (b) the third party enters into the most current version of the Agreement for the Software (as applicable) as provided by EAP Expert Software. If you transfer/assign your rights to the Software to any third party, you may not keep a copy of the Software or any related materials/documentation for yourself.
5.5 Deactivation Code and Reduced Functionality Mode: EAP Expert Software may embed a deactivation code in the Software which, upon cancellation or termination of this Agreement or your failure to pay fees owed by you (if any) under this Agreement, will be enabled to automatically bar your access to the Services. You may still be able to access historical data for reporting purposes (and all data you entered into the Software.)
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6. Limited Warranty
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6.1 EAP Expert Software warrants that all CD-Rom disk(s), diskettes or other media (collectively, "disk(s)") provided to you as part of the Software, when under normal use, shall be free from defects in material and workmanship for sixty (60) days from the date of shipment of the disk(s) to you ("Warranty Period"). For disk(s) that do not operate as warranted, EAP Expert Software shall, at its option, repair/replace the disk(s) at no additional cost to you provided that you send EAP Expert Software a replacement request, the defective disk(s), and Proof of Purchase for the Software prior to the expiration of the Warranty Period.
6.2 If you identify a defect after the Warranty Period, EAP Expert Software may make a replacement disk(s) available if you send to EAP Expert Software: your replacement request, the defective disk(s), and a cheque made payable to "EAP Expert Software Limited" in the applicable amount plus applicable tax. You can obtain the cost for replacement disks by contacting EAP Expert Software. For all orders shipped within CANADA, please add all applicable sales tax as well as tax on shipping and handling based on your shipping address. Any request for the replacement of defective disk(s) (with the items identified in this Section 6.2) must be sent to EAP Expert Software.
6.3 THIS SECTION SETS FORTH EAP EXPERT’S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDIES IN THE EVENT OF YOUR DISSATISFACTION WITH THE SOFTWARE, SERVICES, DEFECTIVE DISKS, MATERIALS AND/OR TECHNICAL SUPPORT PROVIDED AS PART OF OR IN CONNECTION WITH THE SOFTWARE.
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7. Disclaimers of Warranties
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7.1 Except as expressly provided in this Agreement and to the maximum extent permitted by applicable laws, the Software, the Services and any related documentation, other materials and services are provided "as-is" and EAP Expert Software does not warrant (i) that they are error free, uninterrupted, up-to-date, accurate, secure or free from bugs, viruses or other contaminants or programs limitations, or (ii) access to the Internet or any other service or content (including third party services or content (if any)) to which you may connect through the Software. You accept the entire risk as to the quality and performance of the Software and Services.
7.2 To the maximum extent permitted by applicable laws, EAP Expert Software and its subsidiaries, affiliates, licensors, participating financial institutions, third party content or service providers, distributors, dealers or suppliers ("Representatives") disclaim all other representations (unless fraudulent), warranties, terms and conditions, whether express or implied by statute, collaterally, by the parties’ course of dealings, or otherwise, regarding the Software, Services, disk(s), related documentation and other materials, and any services or content, including any third party services and content to which you may connect or access through the Software, including but not limited to any implied warranties, terms or conditions as to their fitness for a particular purpose, satisfactory quality, merchantable quality, or non-infringement.
7.3 To the maximum extent permitted by applicable laws, no oral or written information or advice given by EAP Expert Software and/or its Representatives and their employees and/or agents shall increase the scope of any representation, warranty, condition and/or term of this Agreement, or create any new representations, warranties, conditions and/or terms in connection with the Software, Services, or any related service or material.
7.4 EAP Expert Software makes no representations or warranties regarding any third party content, even if accessed through the Software by means of a link or otherwise, including without limitation any representations or warranties regarding the ownership or functionality of such content.
7.5 Some jurisdictions may not allow the exclusion of implied representations, warranties, terms and conditions, so the above exclusions may not apply to you. In that event, to the extent your jurisdiction permits limitations on duration of implied warranties, terms or conditions are limited in duration to thirty (30) days from the date of purchasing your license to the Software, or the shortest period permitted by applicable law, if longer. This warranty gives you specific legal rights, and you may have other rights as well, which vary according to jurisdiction.
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8. Limitation of Liability and Damages
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8.1 Nothing in this Agreement shall limit or exclude EAP Expert Software’s liability under Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982, for fraudulent misstatement, or for death or personal injury caused by its negligence.
8.2 The entire and sole liability of EAP Expert Software and its Representatives for any reason shall be limited to the greater of (i) the amount you paid for the Software or (ii) the minimum amount permitted by applicable laws.
8.3 To the maximum extent permitted by applicable laws, EAP Expert Software and its Representatives are not liable for any loss of profit, loss of business, business interruption, loss of data or investment, or the like, or for any indirect, special, incidental or consequential damages and whether based on breach of contract, breach of warranty, tort (including negligence), product liability or otherwise, even if EAP Expert Software or its Representatives have been advised of the possibility of such damaged, and even if a remedy set forth herein is found to have failed of its essential purpose.
8.4 These limitations of damages set forth above are fundamental elements of the basis of the bargain between EAP Expert Software and you. EAP Expert Software would not be able to have provided the Software without such limitations.
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9. Notice and Returns
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9.1 Notification by EAP Expert Software to You: From time to time, EAP Expert Software may modify any term or condition of this Agreement. EAP Expert Software also may terminate this Agreement as set forth in Section 10. Notifications from EAP Expert Software of such modifications or termination of this Agreement, or other notifications concerning the Software, will be, in EAP Expert Software’s discretion, made via online at www.EAP Expertsoftware.co.uk, e-mail, post and/or telephone. Unless stated otherwise in this Agreement, the effective date of a modification to this Agreement shall be as specified in the applicable notification but, in no event, shall it be less than sixty (60) days from the date the notice was first made accessible to you via online, e-mail, post and/or telephone. You agree that it is your sole responsibility to routinely visit this web page for such notifications and to ascertain how any modifications of this Agreement may impact your use of the Services. The most current version of this Agreement will be accessible online at www.EAP Expertsoftware.co.uk/co05_license.txt. If you do not accept the modifications to the Agreement or an applicable price change, you may discontinue all use of the Software. Your continued use of the Software will constitute acceptance of the modifications or price change.
9.2 You agree that EAP Expert Software may use your contact and/or activation information (if any) that you provided to EAP Expert Software, to provide you with notices regarding this Agreement, the Software. You consent to receive communications from EAP Expert Software in any form of media and you agree that all agreements, notices, disclosures and other communications that EAP Expert Software provides to you satisfy any legal requirements that such communications be in writing. To ensure that you receive notices timely, you agree that it is your sole responsibility to promptly notify EAP Expert Software of any change to your contact and/or registration information. In the event you choose not to receive any communications from EAP Expert Software please contact us directly to inform us.
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10. Termination
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This Agreement may be terminated by EAP Expert Software immediately and without notice if you fail to comply with any term or condition of this Agreement. EAP Expert Software may also terminate this Agreement and your rights to the Software at any time by providing you with no less than ninety (90) days notice in the manner set forth in Section 9.1. Upon termination, you must immediately return to EAP Expert Software the Software and all other materials provided to you under this Agreement, as well as destroy any complete and partial copies of the Software, including all backup copies and all other materials provided as part of the Software.
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11. General Provisions
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In the event of a conflict between this Agreement and the software License agreement included in the manual you receive in connection with the initial shipment of Software to you, the terms and conditions of this Agreement shall control. This Agreement does not limit any rights that EAP Expert Software may have under trade secret, copyright, patent, trademark or other laws. Your breach of this Agreement may subject you to civil and criminal liability. The Representatives are not authorized to make modifications to this Agreement, or to make any additional representations, commitments, or warranties binding on EAP Expert Software, unless such are in writing and signed by an officer of EAP Expert Software. Accordingly, such additional statements by Representatives are not binding on EAP Expert Software and you should not rely upon such statements. If any provision of this Agreement is invalid or unenforceable under applicable law, then that provision will be deemed, to the extent necessary, amended or omitted, and the remaining provisions will continue in full force and effect. The validity and performance of this Agreement shall be governed by the laws of Ontario (without reference to choice of law principles), and you agree to submit to the non-exclusive jurisdiction of the Canadian courts with respect to any dispute arising under this Agreement. Notwithstanding the foregoing, copyright and trademark matters related to this Agreement, the Software are covered by the laws of the Canadian and international treaties. This Agreement shall be construed as to its fair meaning and not strictly for or against either party.
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12. Export Restrictions
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You acknowledge and agree that the Software is subject to restrictions and controls imposed by applicable export laws including, but not limited to, the United States Export Administration Act and Export Administration Regulations (collectively, the "Acts") and may be subject to the export laws of other countries. You agree and certify that neither the Software nor any part or direct product thereof is being or will be acquired, shipped, transferred or exported, directly or indirectly, outside the United Kingdom, the United States and/or the country in which the Software was provided to you by EAP Expert Software or an authorized distributor/reseller of the Software, or is being or will be used for any purpose prohibited by the Acts; provided, however, that any person may travel to countries not prohibited by the Acts for a period of three (3) months with the Software when it is installed on their personal computer and not otherwise used or transferred in violation of the Acts.
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13. Privacy Policy
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EAP Expert Software gathers certain end user information and personal data from its customers. EAP Expert Software adheres to all applicable laws governing the protection of any individual personal data provided to it in connection with the use of EAP Expert Software products/services.
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14. Trademarks
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EAP Expert Software, the EAP Expert Software Logo and EAP Expert are trademarks or service marks of EAP Expert Software ltd. or one of its subsidiaries. Any other product names, marks, symbols, trade names, company names and/or logos which appear within this product are the property of their respective owners and appear through the courtesy of such owners. Such marks are protected by Canadian laws on trademark and unfair competition and may also be registered in CANADA and/or in the U.S. Patent and Trademark Office.
Copyright ©2008 EAP Expert Software Limited. All rights reserved.