END-USER LICENSE AGREEMENT FOR SOLATECH, INC. SOFTWARE
IMPORTANT. PLEASE READ THIS LICENSE AGREEMENT BEFORE LOADING THE SOFTWARE ONTO YOUR COMPUTER.
This End-User License Agreement (“EULA”) is a legal agreement between you (a single entity) and Solatech, Inc. for the Solatech Software accompanied by this EULA, which Software includes computer software, associated media, any printed material or documentation accompanied by this EULA, and any on-line or electronic documentation or demonstration packets, if any. If you have entered into an agreement with Solatech, Inc., this EULA supplements and is a part of your agreement and is incorporated into your agreement. If you have not yet entered into any agreement or contract with Solatech, Inc., this EULA is a binding, independent legal agreement between you and Solatech, Inc. By clicking “I agree,” installing, copying, modifying, registering, or otherwise using the Solatech Software, you agree to be bound by the terms of this EULA. If you do not accept the terms of this EULA, please promptly click “I do not agree,” uninstall and remove the Solatech Software from your system, your computers, and/or your network, and return the un-used Solatech Software and the entire package to Solatech, Inc.
The following definitions apply to terms as they appear in this EULA:
(a) “EULA” means this End-User License Agreement.
(b) “Software” means the Solatech computer software accompanied by this EULA, which Software includes the computer software, associated media, any printed material or documentation accompanied by this EULA, any 3rd party software and any on-line or electronic documentation or demonstration packets, if any.
(c) “Solatech” means Solatech, Inc.
(d) “You” means you, a single entity.
Solatech is the sole owner and proprietor of the Software in that it is (a) the sole owner of the whole of the Software as well as portions of Software code created or owned by Solatech and (b) the authorized licensee of component(s) of Software code neither created nor owned by Solatech. The Software is protected by the copyright laws of the United States of America, as well as international treaties protecting copyrights, as well as other intellectual property laws and treaties. While Solatech continues to own the Software, you will have certain rights to use the Software after your acceptance of this license.
This EULA grants you the following rights:
(a) You may use only one copy of the Software on a single computer; unless, upon a written agreement with Solatech, you have paid additional licensing fees for additional licenses and in which case, you may use no more than the number of copies of the Software equal to the number of licenses for which you have paid, and each such copy shall be used on a different and single computer.
(b) You may make one copy of the Software for archival purposes, or copy the Software onto the hard disk of your computer as a single copy and retain the original for archival purposes. In the event that you make such a copy, you must ensure that the proprietary, copyright, trademark or other such notices contained in or placed on the Software are affixed to any such copy in the same location and manner as it appears in or on the Software.
(c) You may use the Software on a network, provided that and only if you have a licensed copy of the Software for each computer that can access the Software over that network. A single license of the Software may not be shared or used concurrently on different computers.
(d) You may only use the Software for commercial purposes, and not for personal or household use.
(e) Continued compliance with a specified support agreement with Solatech is a requirement and condition for use of the Software and non-termination of this EULA.
(f) You do not have the right to allow people not directly employed by your business or enterprise to access the Software.
DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS:
(a) You may not copy the documentation which accompanies the Software.
(b) You may not sublicense, rent, or lease the Software, in part or in whole, or host the Software on your computer for others to use.
(c) You may not reverse engineer, decompile, disassemble, modify, adapt, integrate, translate, make any attempt to discovery the source code of the Software, or create derivative works or improvements from or on the Software.
(d) The Software=s license is a single product. It may not be separated into its individual parts for use on any other computer, unless so agreed in writing by you and Solatech.
(e) You agree that Solatech owns, on a paid-up, royalty-free and license-free basis, and may use as Solatech sees fit, any and all data uploaded from the Software to an internet site owned, operated, or used by Solatech.
(f) You may not transfer the Software to any third party without the prior written consent of Solatech.
(g) You may not use a previous version or copy of the Software after you have received a replacement or an upgraded version as a replacement of the Software. All copies of any prior version must be destroyed.
(h) Software installation, setup and maintenance is your sole responsibility. Solatech shall have no obligation or responsibility for software installation, setup or maintenance.
(I) You agree and grant Solatech the right to enter your premises and to access electronically at any time your computer system as installed in order to verify your compliance with this EULA.
(j) All rights not expressly granted are reserved by Solatech. This EULA does not grant you any rights in connection with any trademarks or service marks of Solatech.
(k) Solatech may freely sublicense or transfer it’s obligations and rights under this EULA and any other contract or relationship between you and Solatech.
(k) The Software may include copy protection or sunset technology to prevent the unauthorized copying or use of the Software. You agree that you will not circumvent the copy protection technology in the Software.
(l) This EULA does not require Solatech to provide to you any support services related to the Software. Any services provided by Solatech may be described in the governing services agreement. Any supplemental software code, updates, modifications, or upgrades provided to you, whether as part of any support services or otherwise, are considered part of the Software and subject to the terms and conditions of this EULA. You acknowledge and agree that Solatech may use for its business purposes, including product support and development, any technical information you provide to Solatech as part of any support services or warranty claim.
(m) Without prejudice to any other rights, Solatech may immediately terminate without notice this EULA if you fail to comply with any terms or conditions of this EULA. In such event, you must remove from your computer(s) and system(s) all copies of the Software, in whole and in part.
(n) You agree that due to the custom nature of the software product, there are no returns or credits without written approval from Solatech
(o) You agree that you will not use the Software for any non-commercial purposes. You agree that you will not use the Software for personal or household purposes.
(p) You represent that you are authorized on behalf of your business or enterprise to enter into this EULA.
Any upgrades to the Software are full replacements of the Software and do not under any circumstances grant any additional license or licenses. The original copy must be destroyed or returned to Solatech. The upgraded Software is subject to all terms and conditions of this agreement.
INTELLECTUAL PROPERTY RIGHTS:
The Software, including but not limited to any and all source code, object code, software product, images, audio files, photographs, animations, macros, applets, video, music, text, the accompanying printed materials, and documentation, is copyrighted with all rights reserved. You agree that Solatech, or third parties where appropriate, owns all rights to and in the Software, including without limitation all copyrights, proprietary rights, trademarks, service marks, patent rights and trade secrets, as well as any and all such things for any modifications, derivatives, or improvements of the Software, or any part thereof, which you or others may make, whether authorized or not.
Solatech Inc. warrants the Software conforms to the documentation provided for a period of 90 days from date of delivery to you. Warranty claims must be made within the warranty period and no later than seven (7) days after the observance of the claimed defect. Warranty claims must be accompanied by evidence of the defect satisfactory to Solatech and the software. Prior to so returning the Software, you must obtain a Return Merchandise Authorization (RMA) number and shipping instructions from Solatech, and you must ship the Software with freight and insurance prepaid. The limited warranty is limited to the Software product and does not extend to manufacturer specific data provided by either you, a customer, or Solatech. Solatech is not responsible for any delays beyond its control.
If an implied warranty or condition is created by your state/jurisdiction and federal or state/provincial law prohibits disclaimer of it, you also have such an implied warranty or condition, BUT ONLY AS TO DEFECTS DISCOVERED DURING THE PERIOD OF THIS LIMITED WARRANTY (THIRTY DAYS). AS TO ANY DEFECTS DISCOVERED AFTER THE NINETY (90) DAY PERIOD, THERE IS NO WARRANTY OR CONDITION OF ANY KIND. Some states/jurisdictions do not allow limitations on how long an implied warranty or condition lasts, so the above limitation may not apply to you. Any supplements or updates to the Software Product, including without limitation, any (if any) service packs or hot fixes provided to you after the expiration of the ninety (90) day Limited Warranty period are not covered by this ninety (90) day limited warranty. A separate warranty may be provided with the upgrade.
This Limited Warranty is void if the defect or failure of the Software has resulted from accident, abuse, misapplication, abnormal use or a virus, or if you have breached the terms of this EULA.
THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE.
YOUR EXCLUSIVE REMEDY:
Solatech=s sole obligation and entire liability shall be, at Solatech=s option from time to time exercised subject to applicable law, to repair or replace the Software, so long as you return the original Software. You will receive the remedy elected by Solatech without charge, except that you are responsible for any expenses you may incur (e.g. cost of shipping Software to Solatech). Any replaced parts shall become the property of Solatech. Any replaced Software will be warranted with the same limited warranty set forth above for the longer of the amount of time left in the original warranty period or thirty (30) days. To exercise your remedy, contact Solatech at the address listed below.
DISCLAIMER OF WARRANTIES:
Solatech does not warrant any specific level of system availability or uptime.
THE LIMITED WARRANTY SET FORTH ABOVE IS THE ONLY EXPRESS WARRANTY MADE TO YOU AND IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED. EXCEPT AS SET FORTH ABOVE, SOLATECH PROVIDES THE SOFTWARE AS IS AND WITH ALL FAULTS. SOLATECH HEREBY DISCLAIMS, AND DOES NOT MAKE, ANY AND ALL OTHER EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY OR COMPLETENESS OF RESPONSES, OF RESULTS, OF WORKMANLIKE EFFORT, OF LACK OF VIRUSES, OF LACK OF NEGLIGENCE AND OF NON-INFRINGEMENT. WITH RESPECT TO THE SOFTWARE, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT.
EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES:
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SOLATECH BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, FOR LOSS OF DATA, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF SOLATECH, AND EVEN IF SOLATECH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
LIMITATION OF LIABILITY AND REMEDIES:
NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE AND ALL DIRECT OR GENERAL DAMAGES), THE ENTIRE LIABILITY OF SOLATECH WHETHER UNDER ANY PROVISION OF THIS EULA, OR FROM ANY OTHER SOURCE OF LIABILITY, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, AND YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING (EXCEPT FOR ANY REMEDY OF REPAIR OR REPLACEMENT ELECTED BY SOLATECH WITH RESPECT TO ANY BREACH OF THE LIMITED WARRANTY), SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID, WITHIN THE ONE (1) CALENDAR YEAR PRECEDING THE TIME YOU MAKE A CLAIM TO SOLATECH OF SUCH DAMAGES, BY YOU TO SOLATECH FOR THE SOFTWARE THAT CAUSED THE DAMAGES OR THAT IS THE SUBJECT MATTER OF OR DIRECTLY RELATED TO THE CAUSE OF ACTION. IN NO EVENT WILL SOLATECH BE LIABLE FOR ANY DAMAGES CAUSED, IN PART OR IN WHOLE, BY YOUR FAILURE TO PERFORM YOUR OBLIGATIONS, OR FOR ANY LOSS OF DATA, PROFITS, SAVINGS, OR ANY OTHER CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR FOR ANY CLAIMS BY YOU BASED UPON A THIRD-PARTY CLAIM.
SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY OR MAY NOT APPLY TO YOU. THE PROVISIONS IN THIS PARAGRAPH WILL APPLY REGARDLESS OF WHETHER YOU ACCEPT THE SOFTWARE.
This EULA is incorporated into the license agreement written on the package in which the Software is delivered, and the license agreement stated on the package is incorporated into this EULA. In the event of any conflict between the terms of the license agreement and this EULA, the terms of this EULA shall prevail and govern.
This EULA is incorporated into the agreement you have reached with Solatech for the Software, and in the event of any conflict between the terms of such agreement and this EULA, the terms of this EULA shall prevail and govern.
You acknowledge that the Software is of U.S. origin. You agree to comply with all applicable international and national laws that apply to the Software, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by the U.S. and other governments.
This EULA shall be governed by the laws of the State of North Carolina. You hereby submit and consent to the jurisdiction of the State of North Carolina, and to the courts thereof, for the enforcement of the terms and conditions herein. You further agree that the venue shall rest in the courts located in Guilford County, North Carolina for purposes of any such enforcement. You waive any and all rights to object on any basis (including, without limitation, inconvenience of forum) to jurisdiction within the state of North Carolina or venue within Guilford County, North Carolina. This EULA may only be modified by a writing signed by you and Solatech. Only the owner of Solatech is authorized by Solatech to agree to a modification of this EULA binding upon Solatech.
In the event of a dispute concerning this EULA, the Software, your obligations or rights, Solatech’s obligations or rights, or anything else about your relationship with Solatech, such a dispute shall be settled by binding arbitration in JAMS in Guilford County, North Carolina. JAMS will provide the parties with a list of seven names of potential arbitrators. Within seven days of service on the parties of the list, each party may strike two names and shall rank the remaining names in order of preference. The remaining candidate with the lowest composite number shall be the arbitrator. The arbitration shall be administered by JAMS pursuant to its Simplified Arbitration Rules unless good cause exists for using other procedures. The prevailing party shall be entitled to recover its attorneys’ fees and costs, including consultants’ and experts’ fees. Any court that has jurisdiction may enforce any resolution. In rendering the award, the arbitrator must be neutral, independent, disinterested, and impartial, and he or she must abide by and apply the substantive law of the State of North Carolina (except where that law conflicts with this clause), except that the Federal Arbitration Act will govern the interpretation and enforcement of this arbitration provision. In discovery, each side may take no more than 20 hours of depositions. Within 45 days of the initiation of the arbitration, the parties shall reach agreement upon, and thereafter shall follow, procedures that assure that the arbitration will be concluded and the award rendered within no more than 10 days following the hearing. Notwithstanding any provision to the contrary, the hearing shall be no longer than 3 days and shall be held within 60 days of the appointment of the Arbitrator.
Each party has the right before or, if the arbitrator cannot hear the matter within an acceptable period, during the arbitration, to seek and obtain from the appropriate court provisional remedies such as attachment, preliminary injunction, replevin, etc., to avoid irreparable harm, maintain the status quo or preserve the subject matter of the arbitration. THE ARBITRATOR SHALL NOT AWARD ANY PARTY PUNITIVE, EXEMPLARY, MULTIPLIED OR CONSEQUENTIAL DAMAGES, AND EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT TO SEEK SUCH DAMAGES. NO PARTY MAY SEEK OR OBTAIN PREJUDGMENT INTEREST OR ATTORNEYS’ FEES OR COSTS.
Should you have any questions concerning this EULA, or if you desire to contact Solatech for any reason, please write to:
Post Office Box 5738,
High Point, NC 27262.