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Terms and Conditions
AFL Telecommunications LLC AFL Vibrec SOFTWARE END USER LICENSE AGREEMENT IMPORTANT: THIS SOFTWARE END USER LICENSE AGREEMENT (“EULA”) IS A LEGAL AGREEMENT BETWEEN THE LICENSEE AND AFL TELECOMMUNICATIONS LLC. READ IT CAREFULLY BEFORE COMPLETING THE INSTALLATION PROCESS AND USING THE SOFTWARE. IT PROVIDES A LICENSE TO USE THE SOFTWARE AND CONTAINS WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. BY INSTALLING AND USING THE SOFTWARE, THE LICENSEE IS CONFIRMING THEIR ACCEPTANCE OF THIS AGREEMENT. IF THE LICENSEE DOES NOT AGREE TO BE BOUND BY THESE TERMS, THEN SELECT THE “CANCEL” BUTTON AND DO NOT INSTALL THE SOFTWARE. 1. Definitions (a) “AFL” means AFL Telecommunications LLC. (b) “Software” means the AFL Vibrec™ software program supplied herewith, which may also include documentation, associated media, printed materials, and online and electronic documentation. 2. License(s) and Use (a) Subject to each of the terms and conditions of this Agreement, AFL hereby grants the Licensee a limited, revocable, non-transferable and non-exclusive license, without right of sublicense, to access and use the Software, solely under the terms and conditions set forth herein. (b) This EULA allows the Licensee to use the Software in accordance with the one of the following as purchased by the Licensee: (i) Single User License: Install and use the Software on a single computer to be used by a single person. The Software may not be shared or used concurrently on different computers. (ii) LAN User License: This license permits a maximum of six users. Install the Software on a local area network, in a primary location where the users conduct every day business. (iii) Site License: This license permits use with no maximum user limit. Install the Software in a single physical location, such as a headquarters building, where many users conduct everyday business. (iv) Client Server License: This license permits use with no maximum user limit. Install the Software as a hardware/software host centrally located to serve multiple locations. Under all licenses, Licensee may make one copy of the Software in machine-readable form solely for backup purposes. Licensee must reproduce on any such copy all copyright notices and any other proprietary legends on the original copy of the Software. 3. License Restrictions (a) Other than as set forth in Section 2, the Licensee may not make or distribute copies of the Software or electronically transfer the Software from one computer to another or over a network. (b) The Licensee may not de-compile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form. (c) The Licensee may not sell, rent, lease, or sublicense the Software. (d) The Licensee may permanently transfer all their rights under this EULA only as part of a transfer, provided the Licensee retains no copies, transfers all of the Software (including all component parts, the media and printed materials, any upgrades, this EULA, and the serial numbers), and the recipient agrees to the terms of the EULA. If the Software is an upgrade, any transfer must include all prior versions of the Software. AFL must approve any transfer to another Licensee in writing. (e) The Licensee may not modify the Software or create derivative works based on the Software. (f) The Licensee may not export the Software into any country prohibited by the United States Export Administration Act and the regulations thereunder. (g) In the event that the Licensee fails to comply with this EULA, AFL may terminate the license and the Licensee must destroy all copies of the Software. 4. Upgrades (a) AFL reserves the right to modify the Software without notice. (b) If this copy of the Software is an upgrade from an earlier version of the Software, it is provided to the Licensee on a license exchange basis. The Licensee agrees by the installation and use of this copy of the Software to voluntarily terminate the Licensee’s earlier EULA and that Licensee will not continue to use the earlier version of the Software or transfer it to another person or entity unless such transfer is pursuant to Section 3. 5. Ownership The foregoing license gives the Licensee limited-license to use the Software. AFL and its suppliers retain all rights, title and interest, including all copyrights, trademarks, and other intellectual property, in and to the Software (including any upgrades, revisions, and derivative works) and all copies thereof. All rights not specifically granted in the EULA are reserved by AFL and/or its suppliers. 6. DISCLAIMER OF WARRANTIES (a) THE SOFTWARE IS SUPPLIED “AS-IS” AND “AS-AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND, AND LICENSEE RECEIVES NO WARRANTY. AFL EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW. (b) (USA ONLY) Some states do not allow the exclusion of implied warranties, so the above exclusion may not apply to the Licensee. However, in such cases the exclusions and limitations set forth in this section shall be applied to the greatest extent enforceable under applicable law. 7. LIMITATION OF LIABILITY (a) NEITHER AFL NOR ITS SUPPLIERS SHALL BE LIABLE TO THE LICENSEE OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS, INTERRUPTION OF THE LIKE), ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR THIS EULA BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF AFL OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. (b) (USA ONLY) Some states do not allow the limitation or exclusion of liability or incidental or consequential damages, and the above limitation or exclusion may not apply to the Licensee and the Licensee may also have other legal rights that vary from state to state. However, in such cases the exclusions and limitations set forth in this section shall be applied to the greatest extent enforceable under applicable law. 8. Basis of Bargain AFL’s disclaimer of warranties and limitation or exclusion of liability form the basis of the bargain for and are fundamental to this EULA between AFL and Licensee. Without this disclaimer and limitation or exclusion of liability, AFL could not offer the Software to Licensee. 9. (Outside of the USA) Consumer End Users Only The limitations or exclusions of warranties and liability contained in this EULA do not affect or prejudice the statutory rights of a consumer, i.e. a person acquiring goods otherwise than in the course of business. 10. Remedies. Licensee acknowledges that in the event of a breach or threatened breach of the terms of this Agreement by Licensee, AFL’s remedy at law would be inadequate and AFL shall be entitled to an injunction prohibiting such breach in addition to any other right or remedy at law or in equity. Licensee shall pay AFL’s costs and attorneys’ fees expended in protecting its rights herein. 11. No Assignment. Except as provided in Section 3(d), Licensee shall not sell, assign, sub-license, encumber or otherwise transfer this Agreement, the Software, or any portion of the foregoing without the prior express written consent of AFL. A change in control of Licensee shall be deemed an assignment. This Agreement shall inure to the benefit of and be binding on the permitted successors and assigns of the parties. 12. General Provisions All notices required under this Agreement shall be in writing. The internal laws of the State of South Carolina shall govern this EULA, without giving effect to principles of conflict of laws. Each provision of this Agreement is severable from all the others. The EULA contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written. No modification shall be made to this Agreement unless expressed in a writing signed by the parties. All questions concerning this EULA shall be directed to: AFL Telecommunication LLC, 170 Ridgeview Center Drive, Duncan SC 29334, Attention: ACA, Vibrec Support.
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