End User License Agreement
End User License Agreement
80339 Muenchen, State of Bavaria
IMPORTANT: THIS END USER LICENSE AGREEMENT ("EULA") CONTAINS A MANDATORY AND BINDING ARBITRATION PROVISION IN WHICH YOU AND ACATO AGREE TO RESOLVE ANY DISPUTES BETWEEN THE PARTIES BY BINDING ARBITRATION. PLEASE SEE SECTION TITLED "GOVERNING LAW; DISPUTE RESOLUTION" BELOW. THIS EULA IS A LEGAL AGREEMENT BETWEEN YOU AND ACATO. CAREFULLY READ THIS EULA. USE OF ANY ACATO AND THIRD PARTY SOFTWARE (OTHER THAN SOFTWARE PROVIDED BY MICROSOFT CORPORATION) OR ANY RELATED DOCUMENTATION PREINSTALLED ON, OR SHIPPED WITH, AN ACATO PRODUCT OR OTHERWISE MADE AVAILABLE TO YOU BY ACATO IN WHATEVER FORM OR MEDIA (COLLECTIVELY, "SOFTWARE"), WILL CONSTITUTE YOUR ACCEPTANCE OF THESE TERMS. IF SEPARATE TERMS ARE PROVIDED BY THE SOFTWARE SUPPLIER, THE TERMS OF THIS EULA THAT ARE NOT INCONSISTENT WITH THOSE SEPARATE TERMS WILL CONTINUE TO BE APPLICABLE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE SEPARATE TERMS PROVIDED BY THE SOFTWARE SUPPLIER, ACATO DOES NOT ACCEPT THE RETURN OF COMPONENT PARTS, OR BUNDLED SOFTWARE, WHICH HAVE BEEN REMOVED FROM THE TAIS HARDWARE PRODUCT. PRO-RATA REFUNDS ON INDIVIDUAL PC COMPONENTS, OR BUNDLED SOFTWARE, INCLUDING THE OPERATING SYSTEM, WILL NOT BE GRANTED. IF YOU DO NOT ACCEPT THE TERMS OF THIS EULA, PLEASE DO NOT INSTALL, COPY OR USE THE SOFTWARE. IF YOU WISH TO RETURN A COMPLETE HARDWARE PRODUCT SYSTEM (HARDWARE AND SOFTWARE), CONTACT THE ENTITY WHERE YOU PURCHASED THE PRODUCT, AND COMPLY WITH THE ENTITY'S STANDARD RETURN POLICIES AND PROCEDURES.
- License Grant. The Software is licensed, not sold. ACATO grants to you a personal, non-transferable and non-exclusive right to use the copy of the Software provided with this EULA. With respect to non-ACATO Software, ACATO is only passing through license rights which may be granted by the owner of licensor of the Software and ACATO does not separately license these rights to you. Each copy of the software is owned by ACATO and/or its suppliers. You agree you will not copy the Software except as necessary to use it on a single hardware product system at one location. You agree that you may not copy the written materials accompanying the Software. Modifying, translating, renting, copying, distributing, transferring or assigning all or part of the Software, or any rights granted hereunder, to any other persons and removing any proprietary notices, labels or marks from the Software is strictly prohibited. Furthermore, you hereby agree not to create derivative works based on the Software. You may permanently transfer all of your rights under this EULA, provided you retain no copies, you transfer all copies of the Software, and the recipient agrees to the terms of this EULA. If the Software is an upgrade, any transfer must include all prior versions of the Software and all copies thereof.
- Copyright. You acknowledge that no title to the copyright or any other intellectual property rights in the Software is transferred to you. You further acknowledge that title and full ownership rights to the Software and all copies thereof will remain the exclusive property of ACATO and/or its suppliers, and you will not by this EULA acquire any rights to the Software or any copies thereof, except the license expressly set forth above. All copies of the Software will contain the same proprietary notices as contained in or on the Software.
- Use of Software with Copyrighted Materials; Indemnity.
Any materials (including but not limited to any and all works of authorship) used or stored on this hardware product or copied on or by this hardware product may be owned by third parties and covered by one or more U.S. or foreign copyrights or other intellectual property rights. Using, storing, copying, modifying, distributing, performing, or displaying such materials on this hardware product, or by or with this hardware product, or transmitting, sharing, or otherwise sending copies of such materials to other hardware products or other persons, may violate the copyrights or other intellectual property rights of such third parties and may subject you to civil and/or criminal liability.
You shall indemnify and hold ACATO harmless from any and all damages, liabilities, costs, and expenses, including reasonable attorneys' fees and amounts paid in settlement of third party or government claims, incurred by ACATO as a result of claims alleging the violation of any third party copyrights or other intellectual property rights based upon (a) using, storing, copying, modifying, distributing, performing, or displaying any third party materials on this hardware product, or by or with hardware product, or transmitting, sharing, or otherwise sending copies of such materials to other hardware products or other persons, or (b) your noncompliance with this EULA.
The Software is not designed or recommended for any "critical applications." "Critical applications" means life support systems, medical applications, connections to implanted medical devices, commercial transportation, nuclear facilities or systems or any other applications where product failure could lead to injury to persons or loss of life or catastrophic property damage. ACCORDINGLY, SHOULD YOU DECIDE TO USE THIS SOFTWARE FOR ANY CRITICAL APPLICATION TAIS DISCLAIMS ANY AND ALL LIABILITY ARISING OUT OF THE USE OF THE SOFTWARE IN ANY CRITICAL APPLICATION. IF YOU USE THE SOFTWARE IN A CRITICAL APPLICATION, YOU, AND NOT ACATO, ASSUME FULL RESPONSIBILITY FOR SUCH USE. Further you shall indemnify and hold ACATO harmless from any and all damages, liabilities, costs, and expenses, including reasonable attorneys' fees and amounts paid in settlement of third party or government claims, incurred by ACATO as a result of or in any way arising from such use.
Update Service (AUS) and Defence Monitor Utilities (ADM)
By automatically bringing you the latest Software updates and alerts, ACATO GmbH is the easiest way to keep your product running smoothly. AUS allows your hardware product to automatically search for Software updates/alerts from ACATO that are specific to your hardware or programs. On initial Internet connection and periodically thereafter, your hardware product automatically sends ACATO limited system information (e.g., the Model, Part Number, Serial Number, OS version, IP address, initial date of hardware boot, etc.). Periodically, the hardware scans ACATO servers for updates/alerts based on your system information. A notice window gives the option to apply or decline the update. However, if an update is determined by ACATO to be security or safety related, ACATO may, for your protection and/or the protection of your hardware, allow the installation of such update to start automatically. ACATO logs updates/alerts offered and installed on your hardware as part of ACATO's quality assurance program. AUS can be uninstalled using the "Uninstall a program" utility in the Control Panel. Thereafter, the hardware will not communicate with ACATO and notices of updates and automatic updates will cease. Please be advised, once AUS has been uninstalled or disabled you will no longer be notified of updates or alerts, and future performance may be affected.
ACATO Defence Monitor (ADM) proactively monitors certain system functions and periodically logs system, component and usage information to the hard drive of the hardware. On initial Internet connection and periodically thereafter, it automatically sends ACATO the logged information using ADM (unless disabled) to monitor the system operation, warn of critical system conditions or aid system diagnostics for service. No personally identifiable information is transmitted. Uninstalling ADM will stop transmission of logged information to Toshiba but your ADM will continue logging and storing the information locally on the hard drive until ADM is uninstalled or disabled.
ACATO may use the information for technical support services, quality assurance and business analysis, and may share it with ACATO's World Wide Support organization or other third parties or affiliated ACATO companies engaged by Toshiba for the purposes of rendering such services.
Limitations on Reverse Engineering, Decompilation and Disassembly.
You may not reverse engineer, decompile, or disassemble the Software, except and only to the extent that such activity constitutes a fair use under applicable copyright law, or has a legitimate business purposes of accessing information that is not protected by any intellectual property rights, or is otherwise permitted by applicable law notwithstanding this limitation.
- Disclaimer of Warranty and Limited Warranty.
THE HARDWARE PRODUCT LIMITED WARRANTY IS SET FORTH IN THE ACATO STANDARD LIMITED WARRANTY ACCOMPANYING THE HARDWARE PRODUCT. ACATO'S SOLE OBLIGATIONS WITH RESPECT TO ACATO SOFTWARE IS SET FORTH IN THIS EULA. UNLESS OTHERWISE STATED IN WRITING, ALL ACATO AND NON-ACATO SOFTWARE ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND BY ACATO. UNLESS NON-ACATO SOFTWARE MANUFACTURERS, SUPPLIERS OR PUBLISHERS EXPRESSLY OFFER THEIR OWN WARRANTIES IN WRITING IN CONNECTION WITH YOUR USE OF THEIR NON-ACATO SOFTWARE, SUCH NON-ACATO SOFTWARE IS PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTY OFANY KIND BY THE MANUFACTURER, SUPPLIER, OR PUBLISHER OF SUCH NON-ACATO SOFTWARE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ACATO AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES WITH REGARD TO THE SOFTWARE, EITHER EXPRESS -IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF NONINFRINGEMENT OF THIRD PARTY RIGHTS, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS WITH YOU. NEITHER ACATO NOR ITS SUPPLIERS WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ACATO OR AN ACATO AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
- Limitation of Liability. ACATO' AND/OR ITS SUPPLIERS' ENTIRE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY UNDER THIS EULA SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU SEPARATELY FOR THE SOFTWARE OR U.S. $10.00 WHICHEVER IS LESS. IN NO EVENT SHALL TAIS OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL OR INDIRECT DAMAGES FOR PERSONAL INJURY, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION/DATA, FOR LOSS OF PRIVACY ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE PRODUCT OR OTHERWISE IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IF ACATO OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF THE REMEDY FAILS OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL TAIS OR ITS SUPPLIERS BE LIABLE FOR ANY CLAIM BY A THIRD PARTY. SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SUCH LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS LIMITED WARRANTY GIVES YOU SPECIFIC RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION.
- Export Laws. This EULA involves products and/or technical data that may be controlled under the laws and regulations of the United States and other countries, including but not limited to the United States Export Administration Regulations, or any other applicable law, regulation or order ("Export Laws"). You shall comply with all Export Laws to assure that the Software is not exported, directly or indirectly, in contravention of the Export laws.
- Governing Law; Dispute Resolution.
This EULA will be governed by the laws of the State of Bavaria, Germany, excluding its conflict of law provisions.
Dispute Resolution. ACATO endeavors to resolve customer disputes in a fair and professional manner. In the unlikely event that ACATO is unable to resolve a dispute, You and ACATO agree to resolve any Claims between us only by BINDING ARBITRATION except as otherwise provided in the "Exceptions" paragraph below. For the purposes of this Dispute Resolution Section, references to "ACATO" mean ACATO, GmbH, its parents, subsidiaries and affiliates, and each of their officers, directors, employees, agents, beneficiaries, predecessors in interest, successors, assigns and suppliers, references to "You" include all those in privity with You, including Your family members, beneficiaries, and assigns, and references to "Claim" shall include any dispute, claim or controversy arising from or relating to: (1) any product or service governed by this EULA, including advertising for the product or service, whether based in contract, tort, statute, regulation, ordinance, fraud, misrepresentation or any other legal or equitable theory; (2) this EULA; and (3) the subject of any purported class action litigation in which you are not a member of a certified class.
ARBITRATION MEANS THAT YOU AND ACATO ARE EACH WAIVING THE RIGHT TO A JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. The arbitration will be conducted under the Streamlined Arbitration Rules of EU ODR that are in effect at the time the arbitration is initiated (referred to as the "ODR Rules") and under the rules set forth in this section. The ODR Rules are available online at jamsadr.com/rules-streamlined-arbitration. If there is a conflict between the ODR Rules and the rules set forth in this section, the rules set forth in this section will govern. This Dispute Resolution agreement evidences a transaction in interstate commerce and, thus, the Federal Arbitration Act governs the interpretation and enforcement of this provision. The arbitrator is bound by the terms of this Dispute Resolution Section (see for details visit EU Online Displute Resolution website at www.ec.europa.eu/consumers/odr).Arbitrator's Decision. (1) All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are for the court to decide. (2) Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. (3) The arbitrator's decision is final and binding on all parties and may be enforced in any federal or state court that has jurisdiction. (4) The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. (5) YOU AND ACATO AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ACATO' INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both You and ACATO agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. Accordingly, You and ACATO agree that the ODR Class Action Procedures do not apply to this arbitration. If this specific provision (5) is found to be unenforceable, then the entirety of this Dispute Resolution agreement shall be null and void.
Exceptions. Notwithstanding the foregoing, either party may bring an individual action in small claims court. The arbitration provision above also does not preclude You from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against ACATO on Your behalf.
- Germany's Restricted Rights. The Software is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the German Government, its agencies and/or instrumentalities is subject to restrictions of this Agreement pursuant to BGB as applicable. Without limiting the foregoing, use, duplication, or disclosure by the German Government, its agencies and/or instrumentalities is subject to restrictions as set forth in German Law. UN Purchasing and contract law is ruled out.
- Severability. If any provision of this EULA shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired.
- No Waiver. No waiver of any breach of any provision of this EULA shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. To the extent the terms of any ACATO policies or programs for support services conflict with the terms of this EULA, the terms of this EULA shall control.
Copyright © 2016ACATO GmbH. All Rights Reserved.
Date: 16 June 2016