IMPORTANT - READ THE TERMS OF THIS AGREEMENT ("LICENSE AGREEMENT") CAREFULLY BEFORE INSTALLING THIS SOFTWARE. BY INSTALLING OR USING THIS SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS LICENSE AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU AGREE TO BE BOUND UNCONDITIONALLY BY ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT, PROMPTLY EXIT THIS INSTALLATION PROGRAM WITHOUT INSTALLING THE SOFTWARE.
1. Grant of License for Registered Users
Subject to the terms and conditions of this License Agreement, Turning Technologies, LLC grants to you, and you accept, a limited, non-exclusive, non-transferable license to use the program with which this license is distributed in machine-readable object code (the "Software"), including any documentation files accompanying the Software ("Documentation") on any number of personal computers for its intended purpose(s), and to make one backup copy of the Software installation CD, provided that: (i) the Software is NOT modified; (ii) all copyright notices are maintained on the Software; and (iii) you agree to be bound by the terms of this License Agreement. The Software and Documentation shall be used only by you, only for your own personal or internal organizational use and not in the provision of a service or for the benefit of any other person or entity unless an additional "Rental Use" license has been obtained from and executed by Turning Technologies, LLC.
You have no ownership rights in the Software. Rather, you have a license to use the Software in accordance with the terms of this License Agreement so long as this License Agreement remains in full force and effect. Ownership of the Software, Documentation and all intellectual property rights therein shall remain at all times with Turning Technologies, LLC. Any other use of the Software by any person, business, corporation, government organization or any other entity is strictly forbidden and is a violation of this License Agreement.
3. Copyright; Trade Secrets
The Software and Documentation contain material that is protected by United States copyright law and trade secret law, and by international treaty provisions. All rights not granted to you herein are expressly reserved by Turning Technologies, LLC. You may not remove any proprietary notice of Turning Technologies, LLC from any copy of the Software or Documentation.
You may not reverse engineer, decompile, translate, adapt, or disassemble the Software, nor shall you attempt to create the source code from the object code for the Software. You may transfer the Software to other computers you own as long as you only use it on one computer at a time while gathering audience keypad responses.
You acknowledge that the Software contains proprietary trade secrets of Turning Technologies, LLC and you hereby agree to maintain the confidentiality of the Software using at least as great a degree of care as you use to maintain the confidentiality of your own most confidential information, but in no case less than a reasonable degree of care. You agree to reasonably communicate the terms and conditions of this License Agreement to those persons employed or supervised by you who come into contact with the Software, and to use best efforts to ensure their compliance with such terms and conditions, including, without limitation, not knowingly permitting such persons to use any portion of the Software for the purpose of deriving the source code of the Software or defeating the Key.
6. Limited Warranty
TURNING TECHNOLOGIES, LLC WARRANTS THAT THE SOFTWARE WILL OPERATE SUBSTANTIALLY IN ACCORDANCE WITH THE DOCUMENTATION FOR A PERIOD EQUAL TO THE LENGTH OF TIME SPECIFIED ON YOUR ORDER FORM, INVOICE OR OTHER SIMILAR DOCUMENT, AND IN THE EVENT THAT A PERIOD OF TIME IS NOT SO SPECIFIED, FOR SUCH PERIOD OF TIME COMMENCING UPON THE DATE OF DELIVERY OF THE SOFTWARE AND ENDING TWELVE (12) MONTHS THEREAFTER. SHOULD THE SOFTWARE NOT SO OPERATE, YOUR EXCLUSIVE REMEDY, AND TURNING TECHNOLOGIES, LLC'S SOLE OBLIGATION UNDER THIS LIMITED WARRANTY, SHALL BE, AT TURNING TECHNOLOGIES, LLC'S SOLE DISCRETION, CORRECTION OF THE DEFECT OR REFUND OF THE PURCHASE PRICE ACTUALLY PAID BY YOU FOR THE SOFTWARE; PROVIDED, HOWEVER, THAT THIS LIMITED WARRANTY SHALL NOT APPLY IF THE SOFTWARE HAS BEEN MODIFIED OR MISUSED. ANY USE BY YOU OF THE SOFTWARE IS AT YOUR OWN RISK. THIS LIMITED WARRANTY IS THE ONLY WARRANTY PROVIDED BY TURNING TECHNOLOGIES, LLC REGARDING THE SOFTWARE. EXCEPT FOR THE LIMITED WARRANTY ABOVE, THE SOFTWARE IS PROVIDED "AS IS." TO THE MAXIMUM EXTENT PERMITTED BY LAW, TURNING TECHNOLOGIES, LLC DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. TURNING TECHNOLOGIES, LLC DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET ANY REQUIREMENTS OR NEEDS YOU MAY HAVE, OR THAT THE SOFTWARE WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED FASHION, OR THAT ANY DEFECTS OR ERRORS IN THE SOFTWARE WILL BE CORRECTED, OR THAT THE SOFTWARE IS COMPATIBLE WITH ANY PARTICULAR PLATFORM. SOME JURISDICTIONS DO NOT ALLOW THE WAIVER OR EXCLUSION OF IMPLIED WARRANTIES SO THEY MAY NOT APPLY TO YOU.
7. Limitation of Liability
IN NO EVENT WILL TURNING TECHNOLOGIES, LLC BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, OR FOR ANY CLAIM BY ANY OTHER PARTY, EVEN IF TURNING TECHNOLOGIES, LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TURNING TECHNOLOGIES, LLC'S AGGREGATE LIABIL1TY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION OR OTHERWISE SHALL NOT EXCEED THE AMOUNT OF THE LICENSE FEE PAID BY YOU FOR THE SOFTWARE AND DOCUMENTATION. BECAUSE SOME STATES/COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
8. Export Restrictions
IN ADDITION TO THE LAWS, REGULATIONS, GUIDELINES, ORDERS, AND OTHER RESTRICTIONS ON THE EXPORT FROM THE UNITED STATES OF AMERICA OF THE SOFTWARE OR INFORMATION AS SET FORTH IN PARAGRAPH 9 OF THIS AGREEMENT, YOU SHALL NOT EXPORT THE SOFTWARE, DOCUMENTATION, OR INFORMATION ABOUT THE SOFTWARE AND DOCUMENTATION WITHOUT THE PRIOR WRITTEN CONSENT OF TURNING TECHNOLOGIES, LLC.
9. Export Control
You may not use or otherwise export or re-export any Turning products except as authorized by United States law and the laws of the jurisdiction in which the Turning product was obtained. Specifically, but without limitation, Turning products may not be exported or re-exported: (i) to any United States embargoed countries currently in effect or as amended or modified from time to time; (ii) to anyone on the United States Treasury Department's list of Specially Designated Nationals; (iii) to anyone on the United States Department of Commerce Denied Person's List or Entity List; or (iv) to any other person or entity prohibited by United States law. By using Turning products, You affirmatively represent and warrant that You are not located in and/or are not a person or entity referenced in aforementioned prohibitions (i)-(iv). You also affirmatively agree that You will not use Turning products for any purposes prohibited by United States law. Turning products, including but not limited to software, may be subject to United States export control laws such as the United States Export Administration Regulations, and may also be subject to export or import regulations in foreign countries. By downloading Turning software or using Turning products, You affirmatively represent and warrant that You will take any and all necessary actions in order to remain in strict compliance with United States export regulations. You further acknowledge and affirmatively agree that You have the responsibility to obtain any and all necessary licenses to export, re-export, or import Turning products and/or software.
This License Agreement shall remain in effect until it is terminated. You may terminate this License Agreement at any time by destroying or returning to Turning Technologies, LLC all copies of the Software and Documentation in your possession or under your control. Turning Technologies, LLC may terminate this License Agreement at any time for any reason, including, but not limited to, if Turning Technologies, LLC finds that you have violated any of the terms of this License Agreement or any other agreement with Turning Technologies, LLC. Upon notification of termination, you agree to destroy or return to Turning Technologies, LLC all copies of the Software and Documentation and to certify in writing that all known copies, including backup copies, have been destroyed. All provisions relating to confidentiality, proprietary and intellectual property rights, and non-disclosure shall survive the termination of this Software License Agreement.
Turning Technologies, LLC will defend or settle, at its option and expense, any action brought against you alleging that the Software infringes or misappropriates any third party intellectual property rights. Turning Technologies, LLC will pay any costs incurred by you that are attributable to the infringement action. You understand and agree that as conditions to Turning Technologies, LLC's obligations under this section you must (i) notify Turning Technologies, LLC promptly in writing of the action; (ii) provide to Turning Technologies, LLC all reasonable information and assistance to defend or settle the action; and (iii) grant Turning Technologies, LLC sole authority and control of the defense or settlement of the action. If an infringement claim is made, Turning Technologies, LLC may, at its option and expense (i) replace or modify Software so that it becomes non-infringing; (ii) procure for you the right to continue using Software; or (iii) require the return of the Software and refund to you any license fees paid, less a reasonable amount for use. Turning Technologies, LLC has no liability to you if the infringement claim is based upon the combination of the Software with any product not furnished by Turning Technologies, LLC, or modification of the Software other than by Turning Technologies, LLC. THIS SECTION IS SUBJECT TO SECTION 7 ABOVE AND SETS FORTH YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION RELATING TO THE SOFTWARE.
You acknowledge that your failure to comply with any of the provisions of this License Agreement relating to confidentiality, proprietary and intellectual property rights, and non-disclosure will irreparably harm Turning Technologies, LLC and its affiliates, and that Turning Technologies, LLC and its affiliates will not have an adequate remedy at law. Therefore, you acknowledge and agree that Turning Technologies, LLC and its affiliates will be entitled to injunctive relief in addition to any and all other remedies it may have, at law or in equity.
13. Governing Law; Jurisdiction
You may not assign this License Agreement or any rights or obligations hereunder without obtaining the prior written consent of Turning Technologies, LLC. This License Agreement shall be governed by the laws of the State of Ohio, without giving effect to principles of conflict of laws. Any dispute between the parties connected with this Agreement shall be submitted to the sole jurisdiction of the courts of the State of Ohio, County of Cuyahoga, or, if it has or can acquire jurisdiction, in the United States District Court for the Northern District of Ohio. Each of the parties consent to the jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein. Process in any action or proceeding referred to in the preceding sentence may be served on any party anywhere in the world.
This License Agreement contains the complete agreement between Turning Technologies, LLC and you with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written. You agree that any varying or additional terms contained in any purchase order or other written document issued by you in relation to the Software shall be of no effect. The failure or delay of Turning Technologies, LLC to exercise any of its rights under this License Agreement shall not be deemed a waiver of those rights. If any provision of this License Agreement shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible and the remaining provisions of this License Agreement will remain in full force and effect.