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Winternals Software LP LICENSE AGREEMENT READ THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT CAREFULLY, THEN CLICK "Y ES" OR "NO." THE COMPUTER SOFTWARE, AND THE ACCOMPANYING USER DOCUMENTATION (COL LECTIVELY, THE "PROGRAM") ARE COPYRIGHTED AND LICENSED (NOT SOLD). BY CLICKING " YES", YOU ARE ACCEPTING AND AGREEING TO THE TERMS OF THIS LICENSE AGREEMENT. THI S LICENSE AGREEMENT REPRESENTS THE ENTIRE AGREEMENT CONCERNING THE PROGRAM BETWE EN YOU AND WINTERNALS SOFTWARE LP, A TEXAS LIMITED PARTNERSHIP ("LICENSOR"), AND IT SUPERSEDES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING BETWEEN THE PARTIES, OTHER THAN ANY WRITTEN AGREEMENT EXECUTED BY BOTH OF THE PARTIES, WHICH SHALL SUPERCEDE THIS LICENSE AGREEMENT. 1. License Grant. Licensor hereby grants to you, and you accept, a nonexclusive license to use the Program only as authorized in this License Agreement. You agr ee that you will not assign, sublicense, transfer, pledge, lease, rent, or share your rights under this License Agreement. You agree that you may not reverse as semble, decompile, disassemble, modify, translate, make any attempt to discover the source code of, or create derivative works of, the Program. Your rights to u se the Program depend on which Program you licensed. See the Special Terms below . THE PROGRAM IS NOT INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, AI RCRAFT NAVIGATION, COMMUNICATIONS SYSTEMS, OR AIR TRAFFIC CONTROL EQUIPMENT IN W HICH CASE THE FAILURE OF THE PROGRAM COULD LEAD TO DEATH, PERSONAL INJURY, OR SE VERE PHYSICAL OR ENVIRONMENTAL DAMAGE. 2. Licensor's Rights. You acknowledge and agree that the Program and all portion s thereof are proprietary products of Licensor protected under U.S. and foreign copyright laws. You further acknowledge and agree that all rights, title, and in terest in and to the Program, including associated intellectual property rights, are and shall remain with Licensor. This License Agreement does not convey to y ou an interest in or to the Program, but only a limited right of use, revocable in accordance with the terms of this License Agreement. 3. License Fees. The license fees paid by you are paid in consideration of the l icenses granted under this License Agreement. Such fees are not refundable in th e event that the license granted herein is terminated as provided for herein. 4. Term. This License Agreement is effective upon your opening of this package a nd shall continue until terminated. You may terminate this License Agreement at any time by returning the Program and all copies thereof and extracts there from to Licensor. Licensor may terminate this License Agreement, and this License Ag reement shall be deemed automatically terminated, upon the breach by you of any term hereof. Upon such termination by Licensor, you agree to return to Licensor the Program and all copies and portions thereof and extracts there from. 5. Limited Warranty. Licensor warrants, for your benefit alone, for a period of ninety (90) days from the date of your purchase of the Program pursuant to this License Agreement (referred to as the "Warranty Period") that the Program CD-ROM on which the Program is delivered are free from defects in material and workman ship. If during the Warranty Period, a defect in the Program CD-ROM appears, you may return the Program to Licensor for replacement. LICENSOR DOES NOT WARRANT T HAT THE PROGRAM WILL MEET YOUR REQUIREMENTS OR THAT OPERATION OF THE PROGRAM WIL L BE UNINTERRUPTED OR THAT THE PROGRAM WILL BE ERROR FREE OR THAT DEFECTS IN THE PROGRAM WILL BE CORRECTED. FURTHERMORE, LICENSOR DOES NOT WARRANT OR MAKE ANY R EPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PROGRAM IN TER MS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFOR MATION OR ADVICE GIVEN BY LICENSOR OR ANY AUTHORIZED REPRESENTATIVE OR DEALER OF LICENSOR SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRAN TY PROVIDED FOR HEREIN. You agree that the foregoing constitutes your sole and e xclusive remedy for breach by Licensor of any warranties made under this Agreeme
nt. EXCEPT FOR THE WARRANTIES SET FORTH ABOVE, THE PROGRAM, AND THE SOFTWARE CON TAINED THEREIN, ARE LICENSED "AS IS," AND LICENSOR DISCLAIMS ANY AND ALL OTHER W ARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. THIS WARRANTY GIVES YOU SPECIFIC LEGAL R IGHTS, AND YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE. 6. Limitation of Liability. Licensor's cumulative liability to you or any other party for any loss or damages resulting from any claims, demands, or actions ari sing out of or relating to this Agreement and/or the Program, whether arising in contract, tort or otherwise, shall not exceed the license fee paid to Licensor for the use of the Program. In no event shall Licensor be liable for any indirec t, incidental, consequential, special, or exemplary damages or lost profits, los t business or lost data, even if Licensor has been advised of the possibility of such damages. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION M AY NOT APPLY TO YOU. 7. Trademarks. "Winternals Recovery Manager", "Administrator's Pak," "Defrag Man ager," "Disk Commander," "ERD Commander 2003," "Filemon," "FileRestore," "Monito ring Tools," "NTFSDOS Professional Edition," "Regmon," "Remote Recover," "TCPVie w Professional Edition," and "Winternals" are trademarks of Licensor. "Windows," "Windows NT," and/or other Microsoft products are trademarks of Microsoft Corpo ration. No right, license, or interest to such trademarks is granted hereunder, and you agree that no such right, license, or interest shall be asserted by you with respect to such trademarks. 8. Governing Law. The License Agreement shall be construed and governed in accor dance with the laws of the State of Texas. 9. Costs of Litigation. If any action is brought by either party to this License Agreement against the other party regarding the subject matter hereof, the prev ailing party shall be entitled to recover, in addition to any other relief grant ed, reasonable attorney fees and expenses of litigation. 10. Compliance with Laws. You agree to comply with all applicable federal, state and municipal statutes, ordinances, rules and regulations, including without li mitation the rules and regulations under the U.S Export Administration Act and t he U.S. Foreign Corrupt Trade Practices Act, as the same may be amended from tim e to time. Without in any way limiting the foregoing, (a) you shall not export o r otherwise remove any portion of the Program from the United States, either dir ectly or indirectly, without the consent of Licensor and without first obtaining any licenses or approvals as may be required from the U.S. Department of Commer ce and any other applicable agency or department of the United States Government , and (b) you shall not export or reexport the Program or any portion thereof (i ) into (or to a national or resident of) any U.S. embargoed country or (ii) to a nyone on the U.S. Treasury Department's list of Specially Designated Nationals o r the U.S. Department of Commerce's Table of Denial Orders. By using the Program , you represent and warrant that you are not located in, under control of, or a national or resident of any such country on any such list. 11. Government Use. With respect to any Program or portion thereof provided or t o be provided hereunder that may be delivered to United States Government or any governmental agency or political subdivision of the United States Government (t he "Government"), THE LICENSED SOFTWARE AND DOCUMENTATION ARE PROVIDED WITH REST RICTED RIGHTS. The Program is classified as "restricted computer software" as de fined in clause 52.227-19 of the Federal Acquisition Regulations (the "FAR"). Th e Government's rights to the Program are as provided in clause 52.227-19 of the FAR and as provided for in this License Agreement. For purposes of this Section 11, the contractor and manufacturer is Winternals Software, LP, 3101 Bee Caves R
oad, Suite 150, Austin, Texas, 78746. 12. Special Terms. The following terms set forth your rights with respect to use of the applicable Program(s): a. If you are licensed by seat to use Disk Commander, ERD Commander 2003, NTFSDO S Professional Edition, and/or Remote Recover, unless otherwise indicated on you r invoice you may make one bootable copy per 100 licensed seats or one bootable copy if licensed for less than 100 seats. b. If you are licensed to use Defrag Manager and/or FileRestore, the products ar e licensed by seat and you may make one (1) copy of each such Program. c. If you are licensed to use Recovery Manager, the product is licensed by seat and by concurrent user, and you may make one (1) copy of each such Program. d. If you are licensed by subscription, the user(s) designated on your product a ctivation key are permitted to use the specified version of the Program during t he subscription term, subject to payment of the applicable license fees and your compliance with the terms and conditions of this License Agreement. You may mak e one copy of such Program for each user designated on your product activation k ey. e. With respect to all Programs, in addition to the foregoing, upon loading the Program into each User's computer you may retain the Program CD-ROM for backup p urposes. You may also make one copy of the Program on a second set of CD-ROMs, d iskettes or hard disk for the purpose of backup in the event the Program CD-ROM is damaged or destroyed. Any such copies of the Program, or portions thereof, sh all include Licensor's copyright and other proprietary notices. Except as author ized under this paragraph, no copies of the Program or any portions thereof may be made by you or any person under your authority or control. f. With respect to all Programs, you will restrict and control use of the produc t to enforce the terms of this License Agreement to allow only the designated us ers to use the product. Licensor may, upon reasonable notice, audit your use of the Program for compliance with the terms of this License Agreement, and in the event that such audit reveals any use of the Program by you other than in full c ompliance with the terms of this Agreement, the License Agreement shall be termi nated and you shall reimburse Licensor for all reasonable expenses related to su ch audit in addition to any other liabilities that you may incur as a result of such non-compliance. g. A "seat" means a single machine. The number of seats for which you are licens ed shall be as designated on the applicable License Certificate and invoice for the Program(s). If the number of seats is not so designated, the number of seats shall be deemed to be one (1). The exception to this is with regard to Defrag M anager, which shall be deemed as licensed for ten (10) seats unless otherwise de signated on the applicable License Certificate when purchased. The minimum purch ase of Defrag Manager authorizes licensing for ten (10) seats. With respect to R ecovery Manager and Defrag Manager, a licensed seat may not be transferred from one system to another for the purpose of circumventing licensed node limits. h. A "subscription" means the license duration, if any, indicated on your invoic e. i. PROFESSIONAL SERVICES RESTRICTION. Unless your invoice indicates that you hav e a service provider subscription, this License Agreement prohibits use of these Programs in conjunction with services to repair, recover, or access systems not belonging to or leased by the Licensee's organization.
j. With respect to ERD Commander 2003 and Winternals Recovery Manager, those por tions of the product licensed from Microsoft Corporation are provided as-is; Mic rosoft liability for any portion of the product is hereby disclaimed; all custom er support for the product will be provided solely by Licensor and its designate d representatives; you are prohibited from using the products as a general-purpo se operating system; ERD Commander 2003 and the Winternals Recovery Manager Boot Client are designed to reboot automatically upon 24 hours of continuous use. 13. Controlling Terms. In the event of a conflict between this License Agreement and the terms of any License Agreement contained in Program, the terms of this License Agreement shall control. - - - Rev. #20030610B
nt. EXCEPT FOR THE WARRANTIES SET FORTH ABOVE, THE PROGRAM, AND THE SOFTWARE CON TAINED THEREIN, ARE LICENSED "AS IS," AND LICENSOR DISCLAIMS ANY AND ALL OTHER W ARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. THIS WARRANTY GIVES YOU SPECIFIC LEGAL R IGHTS, AND YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE. 6. Limitation of Liability. Licensor's cumulative liability to you or any other party for any loss or damages resulting from any claims, demands, or actions ari sing out of or relating to this Agreement and/or the Program, whether arising in contract, tort or otherwise, shall not exceed the license fee paid to Licensor for the use of the Program. In no event shall Licensor be liable for any indirec t, incidental, consequential, special, or exemplary damages or lost profits, los t business or lost data, even if Licensor has been advised of the possibility of such damages. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION M AY NOT APPLY TO YOU. 7. Trademarks. "Winternals Recovery Manager", "Administrator's Pak," "Defrag Man ager," "Disk Commander," "ERD Commander 2003," "Filemon," "FileRestore," "Monito ring Tools," "NTFSDOS Professional Edition," "Regmon," "Remote Recover," "TCPVie w Professional Edition," and "Winternals" are trademarks of Licensor. "Windows," "Windows NT," and/or other Microsoft products are trademarks of Microsoft Corpo ration. No right, license, or interest to such trademarks is granted hereunder, and you agree that no such right, license, or interest shall be asserted by you with respect to such trademarks. 8. Governing Law. The License Agreement shall be construed and governed in accor dance with the laws of the State of Texas. 9. Costs of Litigation. If any action is brought by either party to this License Agreement against the other party regarding the subject matter hereof, the prev ailing party shall be entitled to recover, in addition to any other relief grant ed, reasonable attorney fees and expenses of litigation. 10. Compliance with Laws. You agree to comply with all applicable federal, state and municipal statutes, ordinances, rules and regulations, including without li mitation the rules and regulations under the U.S Export Administration Act and t he U.S. Foreign Corrupt Trade Practices Act, as the same may be amended from tim e to time. Without in any way limiting the foregoing, (a) you shall not export o r otherwise remove any portion of the Program from the United States, either dir ectly or indirectly, without the consent of Licensor and without first obtaining any licenses or approvals as may be required from the U.S. Department of Commer ce and any other applicable agency or department of the United States Government , and (b) you shall not export or reexport the Program or any portion thereof (i ) into (or to a national or resident of) any U.S. embargoed country or (ii) to a nyone on the U.S. Treasury Department's list of Specially Designated Nationals o r the U.S. Department of Commerce's Table of Denial Orders. By using the Program , you represent and warrant that you are not located in, under control of, or a national or resident of any such country on any such list. 11. Government Use. With respect to any Program or portion thereof provided or t o be provided hereunder that may be delivered to United States Government or any governmental agency or political subdivision of the United States Government (t he "Government"), THE LICENSED SOFTWARE AND DOCUMENTATION ARE PROVIDED WITH REST RICTED RIGHTS. The Program is classified as "restricted computer software" as de fined in clause 52.227-19 of the Federal Acquisition Regulations (the "FAR"). Th e Government's rights to the Program are as provided in clause 52.227-19 of the FAR and as provided for in this License Agreement. For purposes of this Section 11, the contractor and manufacturer is Winternals Software, LP, 3101 Bee Caves R
oad, Suite 150, Austin, Texas, 78746. 12. Special Terms. The following terms set forth your rights with respect to use of the applicable Program(s): a. If you are licensed by seat to use Disk Commander, ERD Commander 2003, NTFSDO S Professional Edition, and/or Remote Recover, unless otherwise indicated on you r invoice you may make one bootable copy per 100 licensed seats or one bootable copy if licensed for less than 100 seats. b. If you are licensed to use Defrag Manager and/or FileRestore, the products ar e licensed by seat and you may make one (1) copy of each such Program. c. If you are licensed to use Recovery Manager, the product is licensed by seat and by concurrent user, and you may make one (1) copy of each such Program. d. If you are licensed by subscription, the user(s) designated on your product a ctivation key are permitted to use the specified version of the Program during t he subscription term, subject to payment of the applicable license fees and your compliance with the terms and conditions of this License Agreement. You may mak e one copy of such Program for each user designated on your product activation k ey. e. With respect to all Programs, in addition to the foregoing, upon loading the Program into each User's computer you may retain the Program CD-ROM for backup p urposes. You may also make one copy of the Program on a second set of CD-ROMs, d iskettes or hard disk for the purpose of backup in the event the Program CD-ROM is damaged or destroyed. Any such copies of the Program, or portions thereof, sh all include Licensor's copyright and other proprietary notices. Except as author ized under this paragraph, no copies of the Program or any portions thereof may be made by you or any person under your authority or control. f. With respect to all Programs, you will restrict and control use of the produc t to enforce the terms of this License Agreement to allow only the designated us ers to use the product. Licensor may, upon reasonable notice, audit your use of the Program for compliance with the terms of this License Agreement, and in the event that such audit reveals any use of the Program by you other than in full c ompliance with the terms of this Agreement, the License Agreement shall be termi nated and you shall reimburse Licensor for all reasonable expenses related to su ch audit in addition to any other liabilities that you may incur as a result of such non-compliance. g. A "seat" means a single machine. The number of seats for which you are licens ed shall be as designated on the applicable License Certificate and invoice for the Program(s). If the number of seats is not so designated, the number of seats shall be deemed to be one (1). The exception to this is with regard to Defrag M anager, which shall be deemed as licensed for ten (10) seats unless otherwise de signated on the applicable License Certificate when purchased. The minimum purch ase of Defrag Manager authorizes licensing for ten (10) seats. With respect to R ecovery Manager and Defrag Manager, a licensed seat may not be transferred from one system to another for the purpose of circumventing licensed node limits. h. A "subscription" means the license duration, if any, indicated on your invoic e. i. PROFESSIONAL SERVICES RESTRICTION. Unless your invoice indicates that you hav e a service provider subscription, this License Agreement prohibits use of these Programs in conjunction with services to repair, recover, or access systems not belonging to or leased by the Licensee's organization.
j. With respect to ERD Commander 2003 and Winternals Recovery Manager, those por tions of the product licensed from Microsoft Corporation are provided as-is; Mic rosoft liability for any portion of the product is hereby disclaimed; all custom er support for the product will be provided solely by Licensor and its designate d representatives; you are prohibited from using the products as a general-purpo se operating system; ERD Commander 2003 and the Winternals Recovery Manager Boot Client are designed to reboot automatically upon 24 hours of continuous use. 13. Controlling Terms. In the event of a conflict between this License Agreement and the terms of any License Agreement contained in Program, the terms of this License Agreement shall control. - - - Rev. #20030610B
