SCAN2FX END USER LICENSE AGREEMENT(EULA)


END USER LICENSE AGREEMENT ISSUED BY SCAN2FX


YOU SHOULD CAREFULLY READ THE FOLLOWING END USER LICENSE AND WARRANTY AGREEMENT BEFORE PURCHASING, DOWNLOADING OR INSTALLING THIS SOFTWARE PROGRAM OR USING THE RELATED ONLINE SERVICE. IF YOU DO NOT AGREE WITH THE TERMS OF THIS LICENSE AGREEMENT, YOU MAY NOT PURCHASE, DOWNLOAD OR INSTALL THE SOFTWARE.

This software program, any printed materials, any on-line or electronic documentation, and any and all copies and derivative works of such software program and materials (the “Program”) are the copyrighted work of SCAN2FX, and its holding company (“SCAN2FX”). All use of the Program is governed by the terms of this End User License Agreement (“License Agreement”). The Program is solely for use by end users according to the terms of the License Agreement. Any use, reproduction or redistribution of the Program not in accordance with the terms of the License Agreement is expressly prohibited.

1. Limited Use License. SCAN2FX, hereby grants, and by installing the Program you thereby accept, a limited, non-exclusive license and right to install and use one (1) copy of the Program for your use on either a home or portable computer subject to the terms of this License Agreement. You may not network the Program or otherwise install it or use it on more than one computer at a time. The Program is licensed, not sold. Your license confers no title or ownership in the Program.

2. Ownership. All right, title, interest and ownership rights in the Program and any copyright, design right, database right, patents and any rights to inventions, know-how, trade and business names, trade secrets and trade marks (whether registered or unregistered) and any applications thereof and other intellectual property rights (“Intellectual Property Rights”), in or connected with and to the Program and any and all copies thereof (including but not limited to any titles, computer code, methods of operation any related documentation incorporated into the Program) are owned by, belong to and vest in SCAN2FX or its licensors. The Program is protected by the copyright laws of all countries on the Earth, international copyright treaties and conventions and other laws. All rights are asserted and reserved. The Program may contain certain licensed materials and SCAN2FX licensors may act to protect their rights in the event of any violation of this License Agreement. All trademarks are the property of their respective owners.

3. Responsibilities of End User. Subject to the grant of license herein above, you may not, in whole or in part, copy, photocopy, reproduce, translate, reverse engineer, derive source code from, modify, adapt, merge, translate, disassemble, decompile, or create derivative works based on or of the Program, or remove any proprietary notices or labels on the Program without the prior consent, in writing, of SCAN2FX.
Where applicable law provides otherwise (all and any modification, adaptations or improvements shall belong to, vest in and be the exclusive property of SCAN2FX on creation in any event); The Program is licensed to you as a single product. Its component parts may not be separated for use on more than one computer.
You are entitled to use the Program for your own personal non-commercial use as described in this License Agreement, but you are not entitled to, and shall not authorize any End User or other third party to:
  • sell, distribute or otherwise transfer copies or reproductions of the Program to other parties in any way, nor to rent, lease or license the Program to others without the prior written consent of SCAN2FX; or exploit the Program or any of its parts for any commercial purpose including, but not limited to, use at a cyber or internet cafe or any other location-based site. SCAN2FX may offer a separate site license agreement to permit you to make the Program available for commercial use; contact SCAN2FX for details;
  • use, copy, transfer or distribute the Program or part of it other than as permitted by this License Agreement;
  • use, assign, rent, loan, charge or otherwise deal in the Program or any part or interest therein or under this License Agreement except as expressly provided herein; use the Program for any illegal or immoral purposes; without further license, use the Program, or permit the use of the Program, on more than one computer at the same time;
  • use the Program, or permit use of the Program, in a network, multi-user arrangement or remote access arrangement, including any online use, except as otherwise explicitly provided by SCAN2FX and subject to acceptance of the terms and conditions of use; remove, disable or circumvent any proprietary notices, labels or copy protection software contained on or within the Program;
  • export or re-export the Program or any copy or adaptation in violation of any applicable laws or regulations;
  • create data or executable programs which mimic data or functionality in the Program;
  • use the SCAN2FX Programs or SCAN2FX Software to develop own, similar, derivative or competing products, concepts or ideas
  • copy any portion thereof, including, but not limited to, functionality, user experience, user interface, technology for own products, concepts or ideas;
  • otherwise use, copy, transfer or distribute the Program or part of it except as expressly permitted by this License Agreement or in any manner which is inconsistent with this License Agreement.

  • You must back-up to another secure location, on a regular basis, any data files concerning your use of the Program as SCAN2FX has no liability for lost or corrupted data.

    4. Node-Locked Subscription Service. Each subscription is tied to a single computer once the license key purchased is used to authenticate the subscription. The subscription cannot be transferred to another computer for the duration subscription term, and major modifications to the computer may grant the license invalid. In such case, a new subscription will need to be purchased for a full service term.

    5.1. Fees and Payment. Customer shall pay to SCAN2FX fees in the amount and at the times specified. All Fees shall be payable in the designated currency and, except as otherwise agreed by the parties, are due immediately. All Fees paid are nonrefundable except as may be expressly provided herein. SCAN2FX reserves the right to change fee structures at any time. Renewals of licenses will be charged at the then current rate structure. SCAN2FX provides multiple Modules or Programs. Purchasing one Program or Module does not grant you a license to other Programs or Modules.

    5.2. Taxes. All Fees hereunder do not include, and Customer shall be responsibly for, any national, federal, regional, state and local excise, withholding, sales, use or similar taxes, or any tariffs, customs or duties that may be applicable under this Agreement (excluding taxes based on SCAN2FX’s income), unless Customer supplies SCAN2FX with a valid tax exemption certificate related thereto. If SCAN2FX has the legal obligation to collect such taxes or fees, SCAN2FX shall provide appropriate documentation related to such obligation to Customer and the appropriate amount shall be paid or reimbursed by Customer.

    6. Termination. This License Agreement is effective until terminated or upon expiration of your license. Your License is limited for use during the timeframe purchased or during any free trial period. You may terminate the License Agreement at any time by deleting and removing the Program from your home or portable computer and destroying your copy of the Program in your possession. This License will terminate automatically if you fail to pay fees, or fail to abide by any of the terms and conditions. SCAN2FX may additionally, at its discretion, give notice to terminate this License Agreement in the event that it becomes aware that you are failing to comply with the terms and conditions contained herein. In such event, you must immediately destroy and erase the Program and all and any copies in your possession or control and stored on any media whatsoever and on SCAN2FX’s request certify that you have done so. All End User obligations in Clauses 2, 3, 5-21 of this License Agreement will survive Termination or Expiration.

    7. Limited WARRANTY; WARRANTY DISCLAIMER. SCAN2FX Warranty. SCAN2FX warrants to Customer that the SCAN2FX Program will conform in all material respects with SCAN2FX ‘s documentation and specifications related to such SCAN2FX Programs (“Program Warranty”). In the event of a breach of the Program Warranty, Customer shall provide written notice thereof to SCAN2FX, and SCAN2FX, at its option, may (i) correct, within a reasonable period of time, any documented and reproducible non-conformance in the SCAN2FX Program; or (ii) if, in SCAN2FX judgment, subpart (i) above is not feasible using commercially reasonable efforts, refund the Fees paid for the non-conforming SCAN2FX Program and terminate this Agreement with respect to such SCAN2FX Program. The Program Warranty does not cover non-conformance due to: (a) modification, configuration or support of the SCAN2FX Program performed by any party other than SCAN2FX or its designated agents, (b) use of the SCAN2FX Program with equipment that does not meet SCAN2FX’s minimum standards for such SCAN2FX Programs, (c) Customer’s or any End User’s use of software other than the SCAN2FX Program, (d) use of the SCAN2FX Program or SCAN2FX Software other than in accordance with this Agreement or the EULA, or (e) Customer’s or any End User’s failure to provide accurate or legible information or other acts of negligence or willful misconduct. THIS SECTION 7 SETS FORTH SCAN2FX’s ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE WARRANTY. DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SCAN2FX PROGRAM AND SCAN2FX SOFTWARE ARE PROVIDED BY SCAN2FX HEREUNDER WITHOUT WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE AND NON-INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SCAN2FX DOES NOT GUARANTEE THAT THE SCAN2FX SERVICES OR SCAN2FX SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS, BE ERROR-FREE OR ACCURATE, OR OPERATE WITHOUT INTERRUPTION. WITHOUT LIMITING THE FOREGOING, CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT THE USE OF THE SCAN2FX PROGRAMS PROVIDED HEREUNDER DOES NOT GUARANTEE CUSTOMER’S COMPLIANCE WITH ANY REGULATIONS, LAWS, STATUTES OR RULES AND CUSTOMER IS SOLELY RESPONSIBLE FOR ITS COMPLIANCE WITH SUCH LEGAL REQUIREMENTS AND FOR OBTAINING LEGAL COUNSEL AND ADVICE IN CONNECTION THEREWITH.

    8. INDEMNIFICATION. SCAN2FX, AT ITS OWN EXPENSE (INCLUDING PAYMENT OF ATTORNEYS FEES, EXPERT FEES AND COURT COSTS), SHALL DEFEND CUSTOMER FROM ANY AND ALL THIRD PARTY CLAIMS THAT THE SCAN2FX PROGRAM OR SCAN2FX SOFTWARE INFRINGES OR MISAPPROPRIATES ANY INTELLECTUAL PROPERTY RIGHTS OF SUCH THIRD PARTY IN THE UNITED STATES AND SHALL INDEMNIFY CUSTOMER FROM ANY AMOUNTS ASSESSED AGAINST CUSTOMER IN A RESULTING JUDGMENT OR AMOUNTS TO SETTLE SUCH CLAIMS, PROVIDED THAT CUSTOMER (I) GIVES SCAN2FX PROMPT WRITTEN NOTICE OF ANY SUCH CLAIM, (II) PERMITS SCAN2FX TO CONTROL AND DIRECT THE DEFENSE OR SETTLEMENT OF ANY SUCH CLAIM, AND (III) PROVIDES SCAN2FX ALL REASONABLE ASSISTANCE (AT SCAN2FX’S EXPENSE) IN CONNECTION WITH THE DEFENSE OR SETTLEMENT OF ANY SUCH CLAIM. Options. If the SCAN2FX Program or SCAN2FX Software are, or in SCAN2FX’s opinion are likely to be, infringing or misappropriating third party Intellectual Property, SCAN2FX, at its expense and in its sole discretion, may: (i) procure the right to allow Customer to continue to use the SCAN2FX Program or SCAN2FX Software; or (ii) modify or replace the SCAN2FX Program or SCAN2FX Software or infringing portions thereof to become non-infringing. If neither (i) nor (ii) is commercially feasible, SCAN2FX shall have the right to terminate Customer’s rights to use the affected portion of the SCAN2FX Program or SCAN2FX Software and refund any pre-paid Fees corresponding to such portion of SCAN2FX Program or SCAN2FX Software. Exclusions. Notwithstanding the foregoing, SCAN2FX shall have no obligations under this Section 6 to the extent any infringement claim is based upon or arising out of (i) any modification or alteration to the SCAN2FX Program or SCAN2FX Software not made by SCAN2FX, (ii) any combination or use of the SCAN2FX Programs or SCAN2FX Software with products or services not supplied by SCAN2FX or approved in writing by SCAN2FX in advance of such combination, (iii) Customer’s continuance of allegedly infringing activity after being notified thereof, or after being informed of modifications that would have avoided the alleged infringement, (iv) SCAN2FX’s compliance with the specifications or requirements of Customer, and/or (v) use of the SCAN2FX Program or SCAN2FX Software not in accordance with the applicable SCAN2FX documentation or the terms of this Agreement or the EULA. Customer shall indemnify, defend and hold harmless SCAN2FX from all damages, settlements, attorneys’ fees and expenses related to claims of infringement or misappropriation excluded under this Section 6.3.

    Sole Remedy. THE FOREGOING REMEDIES CONSTITUTE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, AND SCAN2FX’S ENTIRE LIABILITY, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF THIRD PARTY INTELLECTUAL PROPERTY.

    9. LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO A BREACH OF CONFIDENTIALITY OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES OR COSTS HOWSOEVER ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT WILL THE AGGREGATE LIABILITY OF SCAN2FX UNDER THIS AGREEMENT (UNDER ANY THEORY OF LIABILITY) EXCEED FEES RECEIVED BY OR OWED TO SCAN2FX FROM CUSTOMER in the twelve (12) month period prior to the claim giving rise to liability REGARDLESS OF WHETHER SCAN2FX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE.

    10. Proprietary Rights. Ownership. Except for the licenses expressly granted by SCAN2FX to Customer under this Agreement or a EULA, (i) SCAN2FX reserves all rights, title and interest in and to the SCAN2FX Programs and SCAN2FX Software and all Intellectual Property rights therein and (ii) no right, title, ownership, interest or license in or to the SCAN2FX Program or SCAN2FX Software or any Intellectual Property rights therein, whether by implication, estoppel or otherwise, is granted, assigned or transferred to Customer under or in connection with this Agreement. The SCAN2FX Software is licensed and not sold to Customer and its End Users. All rights not granted under this Agreement or pursuant to a EULA are expressly reserved by SCAN2FX. Use of Data and Feedback. Customer agrees that SCAN2FX may collect and use technical information and feedback received from Customer relating to the SCAN2FX Programs to support and improve its products and services. SCAN2FX may disclose this information to others in conformity with SCAN2FX’s privacy policies, but not in a form that personally identifies Customer or any End Users. SCAN2FX shall have the right to collect and use data generated by and through Customer’s and its End Users’ access to and use of SCAN2FX Program and SCAN2FX Software and residing on SCAN2FX’s servers in aggregate, non-personally identifiable form for any purpose. SCAN2FX may also contact Customer via email or phone for support, marketing, sales and other purposes.

    11. Equitable Remedies. You hereby agree that SCAN2FX would be irreparably damaged if the terms of this License Agreement were not specifically enforced, and therefore you agree that SCAN2FX shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this License Agreement, in addition to such other remedies as SCAN2FX may otherwise have available to it under applicable laws.

    12. Amendment, Alteration Or Modification. This License Agreement may be amended, altered or modified only by an instrument in writing specifying such amendment, alteration or modification, which is executed by both parties. In the event that any provision of this License Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be enforced to the maximum extent permissible and the remaining portions of this License Agreement shall remain in full force and effect.

    13. Compliance with Laws; Export Control. Customer shall use the SCAN2FX Programs and SCAN2FX Software in compliance with all applicable laws, statutes, rules and regulations. Customer acknowledges that the SCAN2FX Programs, SCAN2FX Software or other technical information provided hereunder may be subject to United States or other governments’ export laws, rules and regulations, and any use or transfer of that technical information or products made using such technical information must be permitted or authorized under those laws, rules or regulations.

    14. Notice. Any and all notices or other information to be given by one of the parties to the other shall be deemed sufficiently given when forwarded by email to the other party. Such notices shall be deemed to have been received on the first business day following the day of receipt confirmation by SCAN2FX. The address of either party may be changed at any time by giving ten (10) business days prior written notice to the other party in accordance with the foregoing.

    15. Publicity. During the term: (i) Customer consents to SCAN2FX’s use of Customer’s name and the general description of Customer’s relationship with SCAN2FX in press releases and other marketing materials; and (ii) SCAN2FX may publicize the use of the SCAN2FX Programs by Customer by including Customer’s name and logo in SCAN2FX’s customer lists and on SCAN2FX’s website.

    16. Relationship of the Parties. Neither the making of this Agreement nor the performance of its provisions shall be construed to constitute either of the parties hereto an agent, employee, partner, joint venturer, or legal representative of the other.

    17. Severability; Waiver. Should any term of this Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms hereof, which shall continue in full force and effect. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.

    18. Assignment. SCAN2FX may re-assign all of its rights and obligations under this Agreement at any time. All terms and provisions of this Agreement are binding upon and inure to the benefit of the parties and their successors. End User may not re-assign its rights and obligations.

    19. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, excluding rules governing conflict of law and choice of law. The federal and state courts within New York City, New York, USA, shall have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement. Each party hereto expressly consents to the personal jurisdiction of, and venue in, such courts.

    20. Force Majeure. Neither party will be deemed in default of this Agreement to the extent that performance of their obligations (other than payment) or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, shortages of materials or supplies or any other cause beyond the reasonable control of such party, provided that such party gives the other party prompt written notice thereof, and uses its best efforts to cure the delay.

    21. Entire Agreement. This Agreement and the Exhibits attached hereto sets forth the entire agreement of the parties with respect to the subject matter contained herein, and no oral or written statement or representations not contained in this Agreement shall have any force or effect. This Agreement may be amended only upon the written consent of both parties. This Agreement supersedes any conflicting terms in any purchase order or acknowledgment, or in any license agreement included with or incorporated in the SCAN2FX Programs. This Agreement may be executed (by original or facsimile) by the parties in any number of counterparts, each of which shall be deemed one and the same agreement, and shall become effective when one or more counterparts have been signed by each party and delivered to the other party.


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