1. Agreement. This is a legal agreement between you as the end user and Bretford Manufacturing, Inc. (“Bretford”) and its affiliates regarding your use of the PowerSync+ application software and all data or content that is stored, accessed or utilized by or through the PowerSync+ software (collectively the “Software”). By installing or using the Software, you agree to be bound by the terms of this End User License Agreement (this “EULA”). If you do not agree to the terms of the EULA, you are not entitled to use the Software and must uninstall the Software from all of your devices.
2. License. Subject to the terms and conditions of this EULA, Bretford grants you a nonexclusive, non-transferable license (without right of sublicense) to install and use the Software on your mobile devices, and to maintain one backup copy of the Software on your personal computer, solely in machine executable object code form and solely for your internal use.
3. Restrictions. The Software and any related documentation are proprietary and are protected by intellectual property laws, including United States copyright law and international treaty provisions. You may use the Software only in connection with Bretford products purchased by you. You may not copy, modify, adapt, translate into any language, distribute, or create derivative works based on the Software without the prior written consent of Bretford. You may not rent, lease, or lend the Software to any person or entity. Any attempted sublicense, transfer, or assignment in violation of this EULA is void. You acknowledge that the Software contains proprietary trade secrets of Bretford. You agree not to decompile, disassemble, reverse engineer, or attempt to reconstruct, identify, or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Software by any means whatsoever, except to the extent the foregoing restriction is prohibited by applicable law.
4. Ownership. The Software is licensed, and not sold to you under this EULA. You have no ownership rights in the Software or any related documentation. Bretford and its affiliates retain all right, title, and interest in and to the Software (including any changes, modification, or corrections thereto) and any related documentation.
5. Suggestions. If you elect to provide or make available to Bretford any suggestions, comments, ideas, improvements, or other feedback or materials related to the Software or any Bretford product (collectively, “Suggestions”), Bretford will be free to use, disclose, reproduce, modify, license, transfer and otherwise utilize and distribute your Suggestions in any manner. You will be entitled to no compensation or credit for, nor gain any right, title or interest in or to, any Bretford changes to the Software.
6. Storage. The Software may provide functionality through which you are able to store information using the Software on your devices or hosted on third-party servers. Bretford will have no liability whatsoever to you or any third party for any failure of the Software to properly store or access any such information, or the failure of any third-party to properly store or protect such information.
8. Disclaimer of Warranty. THE SOFTWARE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND “WITH ALL FAULTS” AND THE ENTIRE RISK AS TO THE QUALITY, ACCURACY, EFFORT AND PERFORMANCE OF THE SOFTWARE IS WITH YOU. SHOULD THE SOFTWARE PROVE DEFECTIVE, BRETFORD DOES NOT HAVE ANY LIABILITY FOR THE SERVICING AND/OR REPAIR OF YOUR DEVICE OR THE SOFTWARE. BRETFORD HEREBY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SOFTWARE, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR USE OR PURPOSE. BRETFORD AND ITS SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS IN THE SOFTWARE OR NONCONFORMITY TO ITS DOCUMENTATION CAN OR WILL BE CORRECTED. YOU ARE ALSO SOLELY RESPONSIBLE FOR THE INTERNET SERVICES YOU USE TO ACCESS THE SOFTWARE. YOU ACKNOWLEDGE THAT THE PROVISIONS OF THIS SECTION ARE A MATERIAL INDUCEMENT AND CONSIDERATION TO BRETFORD TO GRANT THE LICENSE CONTAINED IN THIS EULA AND TO PROVIDE YOU WITH ACCESS TO THE SOFTWARE.
9. Limitation of Liability and Release. BRETFORD AND ITS AFFILIATES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES WHATSOEVER, TO THE FULLEST EXTENT PERMITTED BY LAW (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTIONS, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS EULA, YOUR USE OF OR INABILITY TO USE THE SOFTWARE, OR YOUR USE OF OR RELIANCE ON ANY DATA YOU MAY ACCESS IN CONNECTION WITH YOUR USE OF THE SOFTWARE, EVEN IF BRETFORD OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BY USING THE SOFTWARE, YOU AGREE THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE, INCLUDING, BUT NOT LIMITED TO, DEATH OR PHYSICAL INJURY, THAT YOU MAY SUSTAIN WHILE USING THE SOFTWARE, AND THAT BY USING THE SOFTWARE, YOU AGREE TO RELEASE, DISCHARGE, AND HOLD HARMLESS BRETFORD, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AND REPRESENTATIVES, OF ANY AND ALL LIABILITY FOR SUCH LOSS, DAMAGE OR DEATH ARISING FROM OR IN CONNECTION WITH USING THE SOFTWARE.
10. Exclusions. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent that Bretford may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of Bretford’s liability shall be the minimum permitted under such applicable.
11. Termination. This EULA is effective until it is terminated by either party. You may terminate this EULA at any time by destroying all copies of the Software and related documentation in your possession or under your control. This EULA will automatically terminate if you violate any of the terms of this EULA. Upon termination of this EULA, all license rights granted to you shall immediately terminate. However, all other provisions of this EULA shall survive such termination.
12. Export. You may not use or otherwise export or re-export the Software except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law.
13. Commercial Items. The Software and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
14. Miscellaneous. This EULA is the entire agreement between you and Bretford with respect to, and supersedes any previous oral or written communications or documents (including, if you are obtaining an update, any agreement that may have been included with an earlier version of the Software) concerning, the subject matter of this EULA. In no event shall any additional or inconsistent term in any purchase order or similar document submitted by you modify the terms of this Illinois (notwithstanding your place of residency). You agree that any dispute arising from or relating to this EULA shall be brought exclusively in a court of competent jurisdiction, federal or state, located within the State of Illinois, County of Cook, and in no other jurisdiction, and you hereby consent to personal jurisdiction and venue in, and agree to service of process issued or authorized by, any such court. This EULA will not be governed by the U.N. Convention on Contracts for the International Sale of Goods. If any provision of this EULA is found to be invalid or unenforceable, it will be enforced to the extent permissible and the remainder of this EULA will remain in full force and effect. Failure by Bretford to prosecute any right with respect to a default hereunder will not constitute a waiver by Bretford of the right to enforce rights with respect to the same or any other breach. Bretford reserves the right to change this Agreement at any time by publishing the revised Agreement on the Bretford Website. The revised Agreement shall become effective within thirty (30) days of such publication, unless you expressly accept the revised Agreement earlier by clicking on the accept button. Your express acceptance or your continued use of the Software after expiry of the notice period of thirty (30) days shall constitute your acceptance to be bound by the terms and conditions of the revised Agreement. You can find the latest version of this Agreement at powersyncplus.com.
15. End User Terms Required by Apple. You acknowledge and agree that (i) this EULA is concluded between you and Bretford, and not Apple, Inc. (“Apple”); (ii) Bretford, and not Apple, is solely responsible for the Software; (iii) Apple has no responsibility whatsoever to furnish any maintenance and support services with respect to the Software; (iv) in the event of any failure of the Software to conform to any applicable warranty, you may notify Apple and Apple will refund the purchase price you paid for the Software; (v) to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Software; (vi) Apple is not responsible for any claims that you have arising out of your use of the Software; (vii) Apple will have no responsibility whatsoever for the investigation, defense, settlement or discharge of any third-party claim that the Software infringes that third party partner’s intellectual property rights; and (viii) Apple and its subsidiaries are third party beneficiaries of this EULA and, upon your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third party beneficiary.
Last Updated: June 25, 2019
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