Server and Desktop Use Only
THIS SOFTWARE END USER LICENSE AGREEMENT ("EULA") IS A LEGAL AGREEMENT BETWEEN HES AND YOU AS AN INDIVIDUAL AND/OR, IF PURCHASED OR OTHERWISE ACQUIRED BY OR FOR AN ENTITY, AN ENTITY. PLEASE READ IT CAREFULLY BEFORE COMPLETING THE INSTALLATION PROCESS AND USING THE SOFTWARE. IT PROVIDES A LICENSE TO USE THE SOFTWARE AND CONTAINS WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. BY SELECTING TO INSTALL AND USING THE SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE SOFTWARE AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, THEN DO NOT INSTALL THE SOFTWARE.
1. Definitions
"HES" means High End Systems, Inc. and its licensors, if any.
"Software" means only the software program(s) and third party software programs, in each case, supplied by HES herewith, and corresponding documentation, associated media, printed materials, and online or electronic documentation, and all updates or upgrades of the above that are provided to you.
2. License Grants
The Software is licensed not sold to you by HES. The rights granted herein are limited to HES and its licensor’s intellectual property rights in the Software and do not include any other patents or intellectual property rights. You own the media on which the software is recorded but HES retains ownership of the software itself.
You agree that HES may audit your use of the Software for compliance with these terms at any time, upon reasonable notice. In the event that such audit reveals any use of the Software by you other than in full compliance with the terms of this Agreement, you shall reimburse HES for all reasonable expenses related to such audit in addition to any other liabilities you may incur as a result of such non-compliance.
Your license rights under this EULA are non-exclusive.
3. Permitted License Uses and Restrictions
You may install and use the Software on a single computer that has a Windows operating system provided, however, that, notwithstanding anything contrary contained herein, you may not use the Software on any non-PC product or any embedded or device versions of the above operating systems, including, but not limited to, mobile devices, internet appliances, set top boxes (STB), handhelds, PDAs, phones, web pads, tablets, game consoles, TVs, DVDs, gaming machines, home automation systems, kiosks or any other consumer electronics devices or mobile / cable / satellite / television or closed system based service. A license for the Software may not be shared, installed or used concurrently on different computers.
Other than in its ordinary intended use, you may not make or distribute copies of the Software, or electronically transfer or make available for electronic transfer the Software from one computer to another or over a network.
For downloaded Software only, you may make one extra copy of the Software for backup archival purposes only provided that the backup copy includes all notices including copyright or other proprietary notices and protections including license notices at installation.
Other than in its ordinary intended use, you may not alter, merge, modify, adapt or translate the Software, or decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form.
Certain components of the Software may have been or may be made available by HES on its Open Source web site: www.highend.com/open-source/ (“Open-Sourced Components”) You may freely modify or replace only these Open-Sourced Components provided that the resultant modified software is limited by the other restrictions in this Agreement. HES is not obligated to provide any maintenance, technical or other support for any Software incorporating any modified Open-Sourced Components.
In the event that equipment using the software is sold, rented or leased, the restrictions of this section must be imposed on any purchaser, renter, leasee or sublicensee.
You may not modify the Software; create derivative works based upon the Software, and/or reverse compile the software or make any efforts or use the result of efforts to circumvent the copy protection devices (hardware and/or software) used with the Software.
You may not export the Software into any country prohibited by the United States Export Administration Act and the regulations thereunder.
In the event that you fail to comply with this EULA, HES may terminate the license and you must destroy all copies of the Software (with all other rights of both parties and all other provisions of this EULA surviving any such termination).
You shall not use the Software to develop any software or other technology having the same primary function as the Software, including but not limited to using the Software in any development or test procedure that seeks to develop like software or other technology, or to determine if such software or other technology performs in a similar manner as the Software.
4. Ownership
The foregoing license gives you limited license to use the Software. HES and its suppliers retain all right, title and interest, including all copyright and intellectual property rights, in and to, the Software and all copies thereof. All rights not specifically granted in this EULA, including Federal and International Copyrights, are reserved by HES and its suppliers.
5. Warranty Disclaimer
HES warrants that the media on which the Software is recorded and delivered by HES is a true and correct copy of the master Software and is so warranted for a period of Ninety (90) days from purchase. Your exclusive remedy under this section is replacement media upon return of the media with a copy of the purchase receipt.
THE SOFTWARE IS PROVIDED TO YOU FREE OF CHARGE, AND ON AN "AS-IS" BASIS. HES HAS NO OBLIGATION TO PROVIDE TECHNICAL SUPPORT, WARRANTIES OR REMEDIES FOR THE SOFTWARE. You expressly acknowledge and agree that use of the Software is at your sole risk and that the entire risk as to satisfactory quality, performance, accuracy and effort is with you.
AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALSO, THERE IS NO WARRANTY OF NON-INFRINGEMENT AND TITLE OR QUIET ENJOYMENT. HES DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. NO RIGHTS OR REMEDIES REFERRED TO IN ARTICLE 2A OF THE UCC WILL BE CONFERRED ON YOU UNLESS EXPRESSLY GRANTED HEREIN. THE SOFTWARE IS NOT DESIGNED, INTENDED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION, THE DESIGN, CONSTRUCTION, MAINTENANCE OR OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS. HES SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES.
IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SOFTWARE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY HES, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN.
(USA only) SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
SHALL HAVE NO RESPONSIBILITY IF THE SOFTWARE HAS BEEN ALTERED IN ANY WAY, OR FOR ANY FAILURE THAT ARISES OUT OF USE OF THE SOFTWARE WITH OTHER THAN A RECOMMENDED HARDWARE CONFIGURATION, PLATFORM OR OPERATING SYSTEM.
6. Limitation of Liability
NEITHER HES NOR ITS SUPPLIERS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SOFTWARE AND BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF HES OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
HES'S TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE GREATER OF $50 OR THE AMOUNT PAID BY YOU FOR THE SOFTWARE THAT CAUSED SUCH DAMAGE.
(USA only) SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO ALL ASPECTS OF THIS EULA.
7. Basis of Bargain
The Warranty Disclaimer and Limited Liability set forth above are fundamental elements of the basis of the agreement between HES and you. HES would not be able to provide the Software on an economic basis without such limitations. Such Warranty Disclaimer and Limited Liability inure to the benefit of 's licensors.
8. U.S. GOVERNMENT RESTRICTED RIGHTS LEGEND
This Software and the documentation are provided with "RESTRICTED RIGHTS" applicable to private and public licenses alike. Without limiting the foregoing, use, duplication, or disclosure by the US Government is subject to restrictions as set forth in this EULA and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013 (c)(1)(ii)(OCT 1988), FAR 12.212(a)(1995), FAR 52.227-19, or FAR 52.227-14, as applicable. Manufacturer: High End Systems, Inc., 2105 Gracy Farms Lane, Austin, Texas 78758 USA.
9. (Outside of the USA) Professional/Consumer End Users Only
This software is intended for use by professional end-users with specialized knowledge. The limitations or exclusions of warranties and liability contained in this EULA do not affect or prejudice the statutory rights of a consumer, i.e., a person acquiring goods otherwise than in the course of a business. The limitations or exclusions of warranties, remedies or liability contained in this EULA shall apply to you only to the extent such limitations or exclusions are permitted under the laws of the jurisdiction where you are located.
10. Third Party Software
The Software may contain third party software which requires notices and/or additional terms and conditions. Such required third party software notices and/or additional terms and conditions are located at: www.highend.com/third-party and are made a part of and incorporated by reference into this EULA. By accepting this EULA, you are also accepting the additional terms and conditions, if any, set forth therein.
MPEG. To the extent that the Software contains MPEG, the following applies: Any use of the software other than personal use in any manner that complies with the MPEG standard for encoding video information for packaged media is expressly prohibited with out a license under applicable patents in the MPEG Patent Portfolio, which License is available form MPEG LA, LLC 250 Steele Street, Suite 300 Denver Colorado 80206.
11. Termination
This EULA is effective until terminated. Your rights under this License will terminate automatically without notice from HES if you fail to comply with any term(s) of the EULA. Upon termination of this EULA, you shall cease use of the Software and destroy all copies, full or partial, of the Software.
12. General
This EULA shall be governed by the internal laws of the State of Texas and of the Federal Laws of the United States of America, without giving effect to principles of conflict of laws. You hereby consent to the exclusive jurisdiction and venue of the state and federal courts sitting in Travis County, Texas to resolve any disputes arising under this EULA. In each case this EULA shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods.
This EULA contains the complete agreement between the parties 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 notification or document issued by you in relation to the Software licensed hereunder shall be of no effect. The failure or delay of HES to exercise any of its rights under this EULA or upon any breach of this EULA shall not be deemed a waiver of those rights or of the breach.
No HES dealer, agent or employee is authorized to make any amendment to this EULA.
If any provision of this EULA 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 EULA will remain in full force and effect.
All questions concerning this EULA shall be directed to: High End Systems, Inc., Attention: General Counsel, 2105 Gracy Farms Lane, Austin, Texas 78758 USA.
HES and other trademarks contained in the Software are trademarks or registered trademarks of, Inc. in the United States and/or other countries. Third party trademarks, trade names, product names and logos may be the trademarks or registered trademarks of their respective owners. You may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Software. This EULA does not authorize you to use 's or its licensors' names or any of their respective trademarks.
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