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End User License Agreement
IMPORTANT - PLEASE READ CAREFULLY
BY CLICKING ON THE "SUBMIT", "DOWNLOAD", "I ACCEPT" OR SUCH SIMILAR BUTTON OR LINK AS MAY BE
DESIGNATED FOR PURPOSES OF INITIATING THE DOWNLOAD OF THE SOFTWARE PRODUCT AND/OR SERVICES
(COLLECTIVELY, "THE SOFTWARE") OR BY USING THE SOFTWARE, THE END USER ("YOU") AGREES
TO BE LEGALLY BOUND BY THE COMBINED "TERMS OF SERVICE", "END USER LICENSE AGREEMENT", "PRIVACY
POLICY" AND "SPAM POLICY" (COLLECTIVELY, "THE AGREEMENT").
THE SOFTWARE INCLUDES A SUITE OF FEATURES. ALL OF THE FEATURES INCLUDED IN THE SOFTWARE
AND ARE GOVERNED BY THIS AGREEMENT.
1. LICENSE GRANT
Subject to the terms and conditions of this Agreement, HYTechFX ("HYTechFX") and its
parent and subsidiary companies (collectively "Licensor", "we", "us" or
"our") grant you a non-exclusive, revocable, limited license, to (a) download and
install the most current generally available version of the Software, and (b) use the
Software you download and install solely for your personal, non-commercial purposes.
2. LICENSE CONDITIONS
You may not rent, sell, lease, sublicense, distribute, assign, copy (other than a single
copy for your own backup purposes), or in any way transfer the Software or use the Software
for the benefit of any third party through any outsourcing or time-sharing arrangement or
through the operation of any service bureau. You may not modify, reverse-engineer, decompile,
disassemble, or otherwise discover the Software, or attempt to do so for any reason. Further,
you may not access, create or modify the source code of the Software in any way. You do not
have the right to and may not create derivative works of the Software. All modifications or
enhancements to the Software remain the sole property of Licensor. You understand that we,
in our sole discretion, may modify or discontinue or suspend your right to access any of our
services or use the Software at any time, and we may at any time suspend or terminate any
license hereunder and disable the Software or any of its component features.
We reserve the right to add additional features or functions to the existing Software. When
installed on your computer, the Software periodically communicates with our servers. We may
require the updating of the Software on your computer when we release a new version of the
Software, or when we make new features available. This update may occur automatically or
through other means and may occur all at once or over multiple sessions. You understand that
we may require your review and acceptance of our then-current "AGREEMENT" before you will be
permitted a limited license for any subsequent versions of the Software. You acknowledge and
agree that we have no obligation to make available to you any subsequent versions of the
Software.
3. OWNERSHIP
You acknowledge and agree that the Software is licensed, not sold to you by Licensor. You
acknowledge that the Software, including all code, content, protocols, software, and documentation
provided to you by Licensor in conjunction with the Software or our services are Licensor's
property or the property of Licensor's licensors, and are protected by Unites States, Canadian
and international copyright, trademarks, patents and other proprietary rights and laws relating
to Intellectual Property Rights. "Intellectual Property Rights" means, collectively, rights
under patent, trademark, copyright and trade secret laws, and any other intellectual property or
proprietary rights recognized in any country or jurisdiction worldwide, including, without
limitation, moral or similar rights. You may not delete, alter, or remove any copyright,
trademark, or other proprietary rights notice we have placed on the Software. All rights not
expressly granted hereunder are expressly reserved to Licensor and its licensors.
4. PRIVACY
THE SOFTWARE DOES NOT CONTAIN ANY SPYWARE, ADWARE OR MALWARE.
The Software does not collect any personal information about you (such as your name or other personal
information). Further, the Software does not: (a) collect or report back to us any information about
sites you visit on the Internet; (b) collect or "screen-scrape" any information that you provide
to any other web sites; (c) serve pop-ups when you are on other websites; or (d) collect or report
back to Licensor any data regarding your computer keystrokes or other data unrelated to the services
the Software provides.
5. CONTENT AND INFRINGEMENT
You understand that all content, including, without limitation all data, links, articles, search
results, graphic or video messages and all information, text, software, music, sound, graphics
or other materials ("Content") made available or accessible through the Software or our services,
whether publicly available or privately transmitted, is the sole responsibility of the entity from
whom it originated.
You understand and agree that by using the Software, such as by clicking through to a third-party
website by following, you may be exposed to Content that may be offensive, indecent or objectionable
in your community. You agree to accept all risks associated with the use of any Content, including
any reliance on the accuracy or completeness of such Content. Under no circumstances will Licensor
be liable in any way for any Content created by or originating with entities other than Licensor,
including, but not limited to, any errors or omissions in any such Content, or for loss or damage
of any kind incurred as a result of the transmission or posting of such Content by means of the
Software.
We are not responsible for any Content such as audio, video, text or any other, files owned by
users of the Software. The Software is exposed to various security issues, by accepting this
Agreement, you acknowledge and accept that the Software, and any information you download or
offer to share by means of the Software, may be exposed to unauthorized access, interception,
corruption, damage or misuse, and should be regarded as insecure. You accept all responsibility
for such security risks and any damage resulting therefrom.
In addition, all Content made available or accessed through the Software is the property of
the applicable Content owner and may be protected by applicable laws including without limitation
those relating to Intellectual Property Rights. This Agreement gives you no rights to such Content.
Licensor respects and expects its users to respect the rights of copyright holders. On notice,
Licensor will act appropriately to remove Content under our control that infringes the copyright
rights of others. Licensor reserves the right to disable the access to the Software and our
services by anyone who uses them to repeatedly infringe the Intellectual Property Rights of others.
6. YOUR OBLIGATIONS
You represent and warrant that you are either the owner or an authorized user of the computer
where the Software is installed. You agree not to use the Software or any other services provided
by Licensor to conduct any business or activity or solicit the performance of any activity, which
is prohibited by law, or any contractual provision by which you are bound.
If Licensor has reasonable grounds to suspect that you breach THE "AGREEMENT", Licensor
has the right to suspend or terminate your use of the Software or our services, and pursue any
appropriate legal remedies. You agree that we shall have the right to use the information you
provide to us for the purposes described in this Agreement and in furtherance of your use of our
services. You may use our services only for lawful purposes. The services described herein are
subject to, and you agree that you shall at all times comply with, all local, state, national,
and international laws, statutes, rules, regulations, ordinances and the like applicable to use
of the Licensor services and Software.
7. DISCLAIMER OF WARRANTY
YOUR ACCESS AND USE OF THE SOFTWARE AND SERVICES AND ANY CONTENT AVAILABLE THROUGH OUR SOFTWARE,
SERVICES OR ON OUR WEBSITES AT YOUR SOLE RISK.
WE PROVIDE THE SOFTWARE AND THE CONTENT ON AN "AS IS," AND "AS AVAILABLE" BASIS WITHOUT WARRANTY
OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, CUSTOM, TRADE, QUIET
ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT, SYSTEM INTEGRATION OR NON-INFRINGEMENT.
WE MAKE NO REPRESENTATIONS OR WARRANTIES CONCERNING THE SERVICES PROVIDED BY THIRD PARTIES
ACCESSIBLE ON OR THROUGH OUR SOFTWARE OR OUR SERVICES. ANY MATERIAL DOWNLOADED OR OTHERWISE
OBTAINED THROUGH THE USE OF THE SOFTWARE IS DONE AT YOUR SOLE RISK AND YOU WILL BE SOLELY
RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE
DOWNLOAD OF ANY SUCH MATERIAL.
NEITHER WE NOR OUR DIRECTORS, OFFICERS, EMPLOYEES, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS,
CONTRACTORS, THIRD PARTY VENDORS, FACILITIES, INFORMATION PROVIDERS, LICENSORS, NOR ANY EXCHANGES,
CLEARING ORGANIZATIONS OR OTHER SUPPLIERS PROVIDING DATA, INFORMATION, OR SERVICES (EACH A "PROVIDER")
MAKE ANY REPRESENTATION OR WARRANTY: (A) AS TO THE TIMELINESS, SEQUENCE, ACCURACY, COMPLETENESS,
RELIABILITY OR CONTENT OF THE SOFTWARE OR LICENSOR'S SERVICES OR ANY INFORMATION, SERVICE OR
TRANSACTION PROVIDED THEREBY, (B) THAT THE SOFTWARE OR LICENSOR'S SERVICES WILL BE AVAILABLE OR WILL
OPERATE IN AN UNINTERRUPTED OR ERROR-FREE MANNER, (C) THAT ERRORS OR DEFECTS RELATED TO THE SOFTWARE
OR THE SERVICES WILL BE CORRECTED, OR (D) THAT WE WILL RECOGNIZE ANY OCCURRENCE OF IDENTITY THEFT.
WE ALSO DO NOT WARRANT THAT THE SOFTWARE OR THE SERVICES OR THE INFORMATION AVAILABLE THROUGH THE
SERVICES, IS APPROPRIATE, ACCURATE OR AVAILABLE FOR USE IN ANY PARTICULAR JURISDICTION.
HYTechFX MAKES NO GUARANTEES AS TO THE SITES AND INFORMATION LOCATED WORLDWIDE THROUGHOUT THE
INTERNET WHICH YOU MAY ACCESS AS A RESULT OF THE USE OF THE SOFTWARE, INCLUDING AS TO: (I) THE
ACCURACY, CURRENCY, CONTENT, OR QUALITY OF ANY SUCH SITES AND INFORMATION, OR (II) WHETHER ANY
SEARCH USING THE SOFTWARE MAY LOCATE UNINTENDED AND OBJECTIONABLE CONTENT.
PLEASE NOTE THAT NO ADVICE OR INFORMATION, OBTAINED BY YOU FROM HYTechFX PERSONNEL OR THROUGH
THE SOFTWARE SHALL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED FOR IN THE "AGREEMENT".
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES. IN SUCH JURISDICTIONS,
THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU INSOFAR AS THEY RELATE TO IMPLIED WARRANTIES.
THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THE "AGREEMENT".
8. LIMITATION OF LIABILITY
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR THEIR
EMPLOYEES, DISTRIBUTORS, SUPPLIERS, MERCHANT PARTNERS, ADVERTISERS, DIRECTORS OR AGENTS (EACH A
"PROTECTED PARTY, COLLECTIVELY "PROTECTED PARTIES") BE LIABLE FOR ANY DIRECT,
INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY LOSS OR DAMAGES, INCLUDING
BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY, GOODWILL, OR
OTHER INTANGIBLE LOSSES (EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES)
OR OTHER RELIEF ARISING OUT OF, OR RELATED TO, THIS AGREEMENT OR TO: (i) YOUR USE OR THE INABILITY
TO USE THE SOFTWARE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM
ANY GOODS, DATA, INFORMATION, SERVICES OR SOFTWARE PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR
TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SOFTWARE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION
OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SOFTWARE; OR
(v) ANY OTHER MATTER RELATING TO THE SOFTWARE. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR
ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED
TO, NEGLIGENCE), OR OTHERWISE EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THIS SITE.
SOLELY TO THE EXTENT THE FOREGOING LIMITATION OF LIABILITY IS, FOR ANY REASON, HELD TO BE
INAPPLICABLE OR UNENFORCEABLE IN WHOLE OR IN PART, THEN THE PROTECTED PARTIES' AGGREGATE LIABILITY,
FOR ANY REASON AND FOR ANY CAUSE OF ACTION AND ANY THEORY OF LIABILITY, ARISING OUT OF OR RELATED
TO THE SOFTWARE, THE SERVICES OR THIS AGREEMENT SHALL BE LIMITED TO THE LESSER OF DAMAGES ACTUALLY
INCURRED OR THE AVERAGE REVENUE RECEIVED BY LICENSOR PER YOUR USE OF THE SOFTWARE PER MONTH AS
CALCULATED BY LICENSOR BASED ON THE USE OF THE SOFTWARE (AND NOT OTHER PRODUCTS OR SERVICES OFFERED
BY LICENSOR) MULTIPLIED BY THE NUMBER OF COMPLETE MONTHS YOU HAVE BEEN A SOFTWARE USER. THE
PROTECTED PARTIES ASSUME NO LIABILITY HEREUNDER FOR, AND SHALL HAVE NO OBLIGATION TO DEFEND YOU OR
TO PAY COSTS, DAMAGES OR ATTORNEYS' FEES FOR, ANY CLAIM BASED UPON: (A) ANY METHOD OR PROCESS IN
WHICH THE SOFTWARE MAY BE USED BY YOU; (B) ANY RESULTS OF USING THE SOFTWARE; (C) ANY USE OF OTHER
THAN A CURRENT UNALTERED RELEASE OF THE SOFTWARE; OR (D) THE COMBINATION, OPERATION OR USE OF THE
SOFTWARE WITH THIRD PARTY PROGRAMS OR DATA.
BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY
FOR DAMAGES, IN SUCH STATES OR JURISDICTIONS, THE PROTECTED PARTIES LIABILITY SHALL BE LIMITED
TO THE EXTENT PERMITTED BY LAW.
9. INDEMNIFICATION
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS HYTechFX, ITS PARENTS, AFFILIATES AND SUBSIDIARY
COMPANIES, OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS AND AGENTS FROM ANY AND ALL THIRD PARTY CLAIMS,
LIABILITY, DAMAGES AND/OR COSTS (INCLUDING, BUT NOT LIMITED TO, ATTORNEYS FEES) ARISING FROM YOUR USE
OF OUR SERVICES, YOUR VIOLATION OF THE TERMS OF SERVICE OR YOUR INFRINGEMENT, OR INFRINGEMENT BY ANY
OTHER USER OF YOUR ACCOUNT, OF ANY INTELLECTUAL PROPERTY OR OTHER RIGHT OF ANY PERSON OR ENTITY. YOU
AGREE TO IMMEDIATELY NOTIFY HYTechFX OF ANY UNAUTHORIZED USE OF YOUR ACCOUNT OR ANY OTHER BREACH OF
SECURITY KNOWN TO YOU.
10. EXPORT CONTROLS
The Software and the underlying information and technology may not be downloaded or otherwise
exported or re-exported (a) into (or to a national or resident of) any country to which the U.S.
has currently embargoed goods; or (b) to anyone on the U.S. Treasury Department's list of Specially
Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading or
using the Software, you agree to the foregoing and you represent and warrant that you are not
located in, under the control of, or a national or resident of any such country or on any such
list, and that you will otherwise comply with all applicable export control laws.
11. NOTICE TO GOVERNMENT END USERS
Any Software, software and documentation hereunder downloaded or otherwise installed for or on
behalf of the United States of America, its agencies and/or instrumentalities ("U.S. Government"),
is provided with Restricted Rights as "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. Pursuant to Federal
Acquisition Regulation 12.212 (48 C.F.R. 12.212), the U.S. Government shall have only those rights
specified in the license contained herein. The U.S. Government shall not be entitled to (i) technical
information that is not customarily provided to the public or to (ii) use, modify, reproduce, release,
perform, display, or disclose commercial computer software or commercial computer software
documentation except as specified herein. Use, duplication, or disclosure by the U.S. Government is
subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and
Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial
Computer Software - Restricted Rights at 48 C.F.R. 52.227-19, as applicable.
12. APPLICABLE LAW
The substantive laws of the Province of Ontario of Canada, without regard to conflict of laws
principles, shall govern all matters relating to or arising from this Agreement, and the use
(or inability to use) any or all of the services or the Software. Subject to the dispute
resolution procedures set forth below, you hereby submit to the exclusive jurisdiction and venue
of the appropriate State and Federal courts located in Ontario, Canada, with respect to all
matters arising out of or relating to this Agreement. The United Nations Convention on
Contracts for the International Sale of Goods does not apply to this Agreement. You agree
that regardless of any statute or law to the contrary, any claim or cause of action arising
out of or related to use of the Licensor service, the Software, or this Agreement must be
filed within one (1) year after such claim or cause of action arose or be forever barred.
13. ARBITRATION
Any claim or controversy arising out of or related to this Agreement, or the products or
services we provide or distribute shall be settled by individual binding arbitration in
accordance with the rules of the panel of Canadian Arbitrators then effective. Any such
claim or controversy shall be arbitrated on an individual basis and shall not be consolidated
with a claim of any other party. Further, in any such dispute, under no circumstances will
you be permitted to obtain awards for, and you hereby waive all rights to claim punitive,
incidental or consequential damages, and you further waive all rights to have damages multiplied
or increased. This shall not preclude Licensor from seeking any injunctive relief for protection
of our Intellectual Property Rights. The arbitration shall take place in Ontario, Canada or such
other location as the parties may mutually agree. The arbitrator(s) shall issue a reasoned award,
and any judgment on the award rendered by the arbitrator(s) may be entered in any court of
competent jurisdiction. The arbitrator(s) will each be a natural person who has never been
employed (either as an employee or as an independent consultant) by either of the parties, or
any parent, subsidiary or affiliate thereof, and will be generally familiar with the business
of the parties. The arbitrator(s) may upon request exclude from use in the arbitration proceeding
any evidence not made available to the other party pursuant to a proper discovery request. The
cost of the arbitration will be borne equally by the parties. The parties, their representatives,
other participants, the arbitrator(s) and the administrator(s) of the arbitration will hold in
confidence the existence, content and outcome of the arbitration. The parties understand that:
(i) arbitration is final and binding on the parties; (ii) the parties are waiving their right
to seek remedies in court, including the right to a jury trial; (iii) pre-arbitration discovery
is generally more limited than and different from court procedures; and (iv) any party's right
to appeal or to seek modification of rulings by the arbitrators is strictly limited.
14. SUCCESSOR AGREEMENTS
The terms of this Agreement may change from time to time. You should check back at this address
(http://www.hytechfx.com/api/eula) regularly to determine if any
material changes have been made. We will prominently post material changes on the Website at
least 14 days prior to the effective date of the change and will also attempt to provide you
with an on-line notice informing you when such material changes have been made to this Agreement,
which notice shall contain an active link that you can use to view a web page containing or
linking to the revised Agreement.
You agree that your continued use of the Software or our services after the effective date of
any change will constitute your affirmative consent to this revised Agreement. If you do not
accept such revisions, you must remove the Software from your computer and cease all access to
and use of our services hereunder.
15. OTHER AGREEMENTS
If you have executed another license agreement with us with respect to the Software, then
notwithstanding any other term in this Agreement the terms of that license agreement shall
control your use of the Software.
16. GENERAL
The "AGREEMENT", as modified from time to time as described above, sets forth the entire
understanding and agreement between the parties. Without limiting any other remedy available
to us, we may suspend or terminate this Agreement and your access to the Software or our services
under this Agreement if we have reason to believe that you have failed to comply with your
obligations under this Agreement. Upon termination, cancellation, suspension or expiration of
this Agreement for any reason and by either party, you agree to cease all use of the Software
and our services. You shall not thereby be entitled to any refund or credit. No delay or
failure to enforce any provision of this Agreement will constitute a waiver of such provision
by Licensor or act as estoppel against later enforcement. You may not assign any of your rights
or delegate any of your obligations under this Agreement without the prior written consent of
Licensor. Licensor shall not be deemed to be in breach of this Agreement due to any delay or
failure of performance or interruption in the availability of its services resulting directly
or indirectly from any act of nature or other cause beyond the reasonable control of Licensor.
If any provision of this Agreement is found by a court of competent jurisdiction to be invalid,
the parties nevertheless agree that the court should endeavor to give effect to the parties'
intentions as reflected in such provision, and that the other provisions of this Agreement
remain in full force and effect. Sections 2-4, 7-14 and 17 of this Agreement will survive
any cancellation or termination of this Agreement.
The Software and the services are not intended for use by or availability to persons under the
"Age Of Majority" (or age 18). IF YOU ARE UNDER THE AGE OF MAJORITY (OR AGE 18), YOU MAY NOT DOWNLOAD,
INSTALL OR USE THE SOFTWARE AND YOU MAY NOT ACCESS LICENSOR SERVICES OR WEBSITES.
The section titles in this EULA are for convenience only and have no legal or
contractual impact or effect.
17. CUSTOMER CONCERNS
If you have any questions about this Agreement or the Software, feel free to contact us at:
Effective Date: June 1, 2007
HYTechFX © All rights reserved.
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