MTP Utilities End User License Agreement
The following terms and conditions apply to MTP Utilities diagnostic software. For commercial software license terms, please contact us.
END USER LICENSE AGREEMENT for MTP UTILITIES
THIS SOFTWARE CONTAINS TECHNOLOGIES COVERED BY UNITED STATES PATENT NUMBERS 7158479, 7313627, 7404003, 7630315, and 8014289.
THIS END USER LICENSE AGREEMENT ("EULA") IS A LEGAL AGREEMENT BETWEEN AN INDIVIDUAL OR COMPANY ("You") AND DATA EXPEDITION, INC. ("DEI") FOR THE SOFTWARE PRODUCT NAMED ABOVE, INCLUDING ALL FILES, DOCUMENTATION, AND OTHER ACCOMPANYING MATERIALS. BY DOWNLOADING, INSTALLING, OR USING THE SOFTWARE PRODUCT IDENTIFIED ABOVE, OR ITS ACCOMPANYING DOCUMENTATION AND SUPPORT MATERIALS (COLLECTIVELY, "Software"), YOU ARE CONSENTING TO BE BOUND BY AND BECOME A PARTY TO THIS AGREEMENT AS THE "Licensee". IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE, AND YOU DO NOT BECOME A LICENSEE UNDER THIS AGREEMENT. ANY PROVISION HEREIN WHICH IS SUPERSEDED BY A SUBSEQUENT LICENSE CONTRACT WITH DEI SHALL BE DECLARED VOID.
THIS LICENSE IS FOR THE SOLE PURPOSE OF EVALUATION OF THE SOFTWARE FOR LICENSING ON A FOR-FEE BASIS. THIS LICENSE WILL TERMINATE 21 DAYS FROM THE DATE YOU DOWNLOAD THE SOFTWARE, OR WHENEVER THE SOFTWARE EXPIRES, WHICHEVER IS SOONER. DEI MAY EXTEND THE EVALUATION PERIOD AT THEIR DISCRETION.
1. GRANT OF LICENSE. Subject to the terms and conditions contained herein, DEI hereby grants You, a non-transferable, non-exclusive, non-sublicensable license to install and use the Software for evaluation purposes only. For the avoidance of doubt, the following are considered examples of non-evaluation uses of the Software: (1) use for financial gain, commercial or otherwise; (2) use in connection with the provision of professional service for which You or your employer are compensated (including paid system administration); (3) bundling or integrating the Software with any hardware product or another software product for commercial purposes; (4) any other activity commonly accepted as commercial in nature.
2. RESTRICTIONS. DEI and/or its licensors reserve all rights not expressly granted to You herein. This license is not a sale of the Software or any copy of the Software. The Software contains valuable trade secrets of DEI and its licensors. All worldwide ownership of and all rights, titles and interests in and to the Software, and all copies and portions of the Software, including without limitation, all intellectual property rights therein and thereto, are and will remain exclusively with DEI. The Software is protected, among other ways, by the patent and copyright laws of the United States and international patent and copyright treaties. You may not:
(i) modify or create any derivative works of the Product or documentation, including customization, translation or localization;
(ii) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Software;
(iii) copy, redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer rights to the Product;
(iv) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Product;
(v) modify or attempt to modify any licensing terms or restrictions enforced by the software.
3. MAINTENANCE, SUPPORT AND UPDATES. DEI is under no obligation to maintain or support or update the Software in any way, or to provide updates or error corrections.
4. NO WARRANTY. DEI EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, AND ANY WARRANTY THAT MAY ARISE BY REASON OF TRADE USAGE, CUSTOM, OR COURSE OF DEALING. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THE AGREEMENT. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU, AND YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE.
5. LIMITED LIABILITY. THE ENTIRE RISK AS TO RESULTS AND PERFORMANCE OF THE SOFTWARE IS ASSUMED BY YOU. UNDER NO CIRCUMSTANCES WILL DEI OR ITS LICENSORS BE LIABLE FOR ANY DIRECT OR SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER, WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, ARISING OUT OF OR IN ANY WAY RELATED TO THE SOFTWARE OR THIS AGREEMENT, EVEN IF DEI OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR IF SUCH DAMAGE COULD HAVE BEEN REASONABLY FORESEEN, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY EXCLUSIVE REMEDY PROVIDED IN THIS AGREEMENT. SUCH LIMITATION ON DAMAGES INCLUDES, BUT IS NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOSS OF DATA OR SOFTWARE, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION OR IMPAIRMENT OF OTHER GOODS. IN NO EVENT WILL DEI OR ITS LICENSORS BE LIABLE FOR THE COSTS OF PROCUREMENT OF SUBSTITUTE SOFTWARE OR SERVICES. IN ADDITION, IN NO EVENT WILL THE TOTAL LIABILITY OF DEI IN CONNECTION WITH THIS AGREEMENT OR THE SOFTWARE EXCEED THE ACTUAL AMOUNT PAID TO DEI, IF ANY, FOR THE SOFTWARE GIVING RISE TO THE CLAIM. YOU ACKNOWLEDGE THAT THIS SOFTWARE IS NOT DESIGNED OR LICENSED FOR USE IN ON-LINE EQUIPMENT IN HAZARDOUS ENVIRONMENTS SUCH AS OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR CONTROL, OR LIFE-CRITICAL APPLICATIONS. DEI EXPRESSLY DISCLAIMS ANY LIABILITY RESULTING FROM USE OF THE SOFTWARE IN ANY SUCH ON-LINE EQUIPMENT IN HAZARDOUS ENVIRONMENTS AND ACCEPTS NO LIABILITY IN RESPECT OF ANY ACTIONS OR CLAIMS BASED ON THE USE OF THE SOFTWARE IN ANY SUCH ON-LINE EQUIPMENT IN HAZARDOUS ENVIRONMENTS BY YOU. FOR PURPOSES OF THIS PARAGRAPH, THE TERM "LIFE-CRITICAL APPLICATION" MEANS AN APPLICATION IN WHICH THE FUNCTIONING OR MALFUNCTIONING OF THE SOFTWARE MAY RESULT DIRECTLY OR INDIRECTLY IN PHYSICAL INJURY OR LOSS OF HUMAN LIFE.
6. TERMINATION. This Agreement will terminate immediately and automatically without notice if You breach any provision in this Agreement. This Agreement will automatically expire 21 days from the date You accepted it, or earlier if the Software is programmed to cease function on a specific date, and such in fact occurs prior to the aforementioned time limit. Upon termination You will remove all copies of the Software or any part of the Software from any and all computer storage devices and destroy the Software. At DEI's request, You or your authorized signatory, will certify in writing to DEI that all complete and partial copies of the Software have been destroyed and that none remain in your possession or under your control. The provisions of this Agreement, except for the license grant, will survive termination. In the event that this Agreement is superseded by a full license contract with DEI, Your obligations under this section will cease.
7. U.S. GOVERNMENT USE. If You are part of an agency, department, or other entity of the United States Government ("Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of the Software is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Software is a "commercial item", "commercial computer software", and "commercial computer software documentation". In accordance with such provisions, any use of the Software by the Government shall be governed solely by the terms of this Agreement. Use, duplication, or disclosure by the U.S. Government is subject to restrictions set forth in this agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable. Manufacturer is Data Expedition, Inc., 710 Asp Ave. Suite 202, Norman, OK 73069.
8. GOVERNING LAW. This Agreement is governed by the laws of the State of Oklahoma, USA, without regard to conflict of laws rules and principles. Unless otherwise agreed in writing, all disputes relating to this Agreement are subject to the exclusive jurisdiction of the courts of Oklahoma and you expressly consent to the exercise of personal jurisdiction in the courts of Oklahoma in connection with any such dispute including any claim involving DEI or its affiliates, subsidiaries, employees, contractors, officers and directors. Application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
9. MISCELLANEOUS. If any provision hereof shall be held illegal, invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid and enforceable, and the legality, validity and enforceability of all other provisions of this Agreement shall not be affected thereby. No delay or failure by either party to exercise or enforce at any time any right or provision hereof shall be considered a waiver thereof or of such party's right thereafter to exercise or enforce each and every right and provision of this Agreement. This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. You may not assign this Agreement in whole or in part, without DEI's prior written consent. Any attempt to assign this Agreement without such consent will be null and void. This Agreement is the complete and exclusive statement between You and DEI relating to the subject matter hereof and supersedes all prior oral and written and all contemporaneous oral negotiations, commitments and understandings of the parties, if any. In the case of any conflict between the terms of this Agreement and the provisions of any purchase order for the Software, the terms of this Agreement shall control.
10. LICENSEE OUTSIDE THE U.S. If Licensee is located outside the U.S., then the provisions of this Section shall apply. (i) LES PARTIES AUX PRESENTES CONFIRMENT LEUR VOLONTE QUE CETTE CONVENTION DE MEME QUE TOUS LES DOCUMENTS Y COMPRIS TOUT AVIS QUI S'Y RATTACHE, SOIENT REDIGES EN LANGUE ANGLAISE. (translation: "The parties confirm that this Agreement and all related documentation is and will be in the English language."); (ii) Licensee is responsible for complying with any local laws in its jurisdiction which might impact its right to import, export or use the Product, and Licensee represents that it has complied with any regulations or registration procedures required by applicable law to make this license enforceable.
11. PATENT, COPYRIGHT AND TRADEMARK. This software contains technologies covered by United States patent numbers 7158479, 7313627, 7404003, 7630315, and 8014289. DEI owns all rights, title, interests, copyrights, and trade secret rights in and to DEI software, and any copies thereof. DEI software and documentation is protected by patent and copyright laws and international treaty provisions. You must treat all Confidential Information like any other patented or copyrighted material. "MTP", "ExpeDat", and "SyncDat" are trademarks of Data Expedition, Inc. "Data Expedition, Inc.", "DEI", "Multipurpose Transaction Protocol" and the pith helmet logo are trademarks of Data Expedition, Inc. and are registered with the USPTO.