Master End User License Agreement
NOTICE: BY DOWNLOADING AND INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MAY NOT DOWNLOAD, INSTALL, COPY OR USE THE SOFTWARE, AND YOU MAY RETURN THE UNUSED SOFTWARE TO THE VENDOR FROM WHICH YOU ACQUIRED IT WITHIN THIRTY (30) DAYS AND REQUEST A REFUND OF THE LICENSE FEE, IF ANY, ALREADY PAID UPON SHOWING PROOF OF PAYMENT. “YOU” MEANS THE NATURAL PERSON OR THE ENTITY THAT IS AGREEING TO BE BOUND BY THIS EULA, THEIR EMPLOYEES AND THIRD PARTY CONTRACTORS THAT PROVIDE SERVICES TO YOU. YOU SHALL BE LIABLE FOR ANY FAILURE BY SUCH EMPLOYEES AND THIRD PARTY CONTRACTORS TO COMPLY WITH THE TERMS OF THIS AGREEMENT.
1.1 “GPL Software” means GPL software licensed to you under the GNU General Public License as published by the Free Software Foundation (GPL). A copy of the GPL is included on the media on which you received the Software or included in the files you downloaded, if you acquired the Software by electronic download.
1.2 “Licensed Additional Module” means additional
modules that may be provided with and/or used in conjunction with the
Software for which you have paid the applicable license fee and
accepted any applicable additional license terms.
1.3 “Open Source Software” means various open source software components licensed under the terms of applicable open source license agreements included in the materials relating to such software. Open Source Software is composed of individual software components, each of which has its own copyright and its own applicable license conditions. The Open Source Software licenses can be found in the open_source_licenses.txt file, other materials accompanying the software package, the documentation or corresponding source files available at http://www.myBiQ.com/public_files.
1.4 “Processor” means a single, physical chip that houses no more than four (4) processor cores.
1.5 “Sample Data and Programs” means sample financial data embedded within our demo environment and wizards for management of settings and configurations like Consolidation Wizard or scripts that may be distributed with the Software.
1.6 “Software” means software products that are licensed to you under this EULA, including, but not limited to, any related components purchased or provided with the Software, application programming interfaces, associated media, printed materials, online or electronic documentation, and any updates and maintenance releases thereto.
1.7 “Software License Key” means, if applicable, a
serial number issued to you by myBiQ to activate and use the
Software. A separate, additional Software License Key may be required
to activate and use each Licensed Additional Module.
2.1 General. If available, the Software and each Licensed Additional Module may be activated with no-cost evaluation Software License Key(s). Evaluation Software License Keys have an expiration date (“Expiration Date”).
2.2 Evaluation License. If you activate the Software or any Licensed Additional Module with an evaluation Software License Key (“Evaluation Product”) you may use the Evaluation Product until the Expiration Date only to evaluate the suitability of the Evaluation Product for licensing on a for-fee basis. You may acquire evaluation Software License Key(s) for Licensed Additional Modules. In such case, the Licensed Additional Modules are licensed to you subject to the terms of this “EVALUATION LICENSES” section.
2.3 Evaluation Product Warranty Disclaimer. During the use of the Evaluation Product, the limited 90-day warranty referenced in Section 7.1 below is not applicable to you. THE EVALUATION PRODUCT IS PROVIDED TO YOU “AS IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. myBiQ AND ITS LICENSORS BEAR NO LIABILITY FOR ANY DAMAGES RESULTING FROM USE (OR ATTEMPTED USE) OF THE EVALUATION PRODUCT THROUGH AND AFTER THE EXPIRATION DATE.
2.4 No Support. myBiQ has no duty to provide support to you during your use of the Evaluation Product.
3.GRANT AND USE RIGHTS FOR SOFTWARE.
3.1 License. The Software is licensed, not sold. Subject to the terms of this EULA, myBiQ hereby grants you a non-exclusive, non-transferable license, without rights to sublicense, to use the object code of the Software for the purpose as set forth in the applicable documentation for the Software and to the extent permitted by your payment of applicable license fees under a myBiQ approved licensing model and/or your Software License Key subject to the software product specific terms specified in this EULA. Depending upon the model utilized to compute the applicable license fees paid by you to use the Software (whether per Processor, per Virtual Machine, per user, or any other myBiQ approved licensing model), an applicable Software License Key may limit your usage of the Software accordingly. You may use the documentation accompanying the Software in connection with permitted uses of the Software. Notwithstanding anything to the contrary herein, in the event that you have licensed myBiQ Infrastructure – Starter Edition, your license to use such Software is restricted to a Server that has no more than eight gigabytes (8 GB) of physical memory.
3.2 License Limitations. You may not copy the Software except for a reasonable number of machine-readable copies of the Software for backup or archival purposes and except as expressly permitted in this EULA. You may not remove any titles, trademarks or trade names, copyright notices, legends, or other propri¬etary markings on the Software. You are not granted any rights to any trademarks or service marks of myBiQ. myBiQ retains all rights not expressly granted to you.
3.3 Restrictions. You may not (i) sell, lease, license, sublicense, distribute or otherwise transfer in whole or in part the Software or the Software License Key to another party; (ii) provide, disclose, divulge or make available to, or permit use of the Software in whole or in part by, any third party (except Designated Administrative Access) without myBiQ’s prior written consent; or (iii) modify or create derivative works based upon the Software. Except to the extent expressly permitted by applicable law, and to the extent that myBiQ is not permitted by that applicable law to exclude or limit the following rights, you may not decompile, disassemble, reverse engineer, or otherwise attempt to derive source code from the Software, in whole or in part. You may use the Software to conduct internal performance testing and benchmarking studies, the results of which you (and not unauthorized third parties) may publish or publicly disseminate; provided that myBiQ has reviewed and approved of the methodology, assumptions and other parameters of the study. Please contact myBiQ at info@myBiQ.com to request such review.
3.4 GPL Software. You can redistribute and/or modify the GPL Software under the terms of the GPL. You may obtain a copy of the source code corresponding to the binaries for the GPL Software (the “GPL Source Files”) by downloading the GPL Source Files from myBiQ’s Web site or from sourceforge.net or by sending a request, with your name and address, to myBiQ at the address specified under the heading “Contact Information” below, in which case myBiQ will mail a copy of the GPL Source Files to you on a CD or equivalent physical medium. This offer to obtain a copy of the GPL Source Files is valid for three years from the date you acquired this Software product.
3.5 Sample Programs. The Software may include Sample Programs. You may use and distribute Sample Programs under the terms set forth in the applicable Sample Programs files. myBiQ does not provide support services for Sample Programs.
3.6 myBiQ License Programs. myBiQ makes available myBiQ License programs (for e.g., myBiQ Academic License, MYAL). If you have received the Software pursuant to these myBiQ License programs, the then-current terms and conditions posted on http://www.myBiQ.com/about/MYAL for that program shall apply for use of the products under such myBiQ License programs.
3.7 Audit Rights.You will maintain accurate records as to your use of the Software as authorized by this Agreement, for at least two (2) years from the last day on which support and subscription services (“Services”) expired for the applicable Software. myBiQ, or persons designated by myBiQ, will, at any time during the period when you are obliged to maintain such records, be entitled to inspect such records and your computing devices, in order to verify that the Software is used by you in accordance with the terms of this Agreement and that you have paid the applicable license fees and Services fees for the Software; provided that myBiQ may conduct no more than one (1) audit in any twelve (12) month period. You shall promptly pay to myBiQ any underpayments revealed by any such audit. Any such audit will be performed at myBiQ’s expense during normal business hours, provided that you shall promptly reimburse myBiQ for the cost of such audit and any applicable fees if such audit reveals an underpayment by you of more than five percent (5%) of the amounts payable by you to myBiQ for the period audited.
4.TITLE. myBiQ retains all right, title, and interest in and to the Software and the Software License Key and in all related copyrights, trade secrets, patents, trademarks, and any other intellectual and industrial property and proprietary rights, including registrations, applications, renewals, and extensions of such rights.
5.SUPPORT AND SUBSCRIPTION SERVICES NOT INCLUDED
myBiQ will not provide any support services under this EULA. This EULA does not give you any rights to any updates or upgrades to the Software or to any extensions or enhancements to the Software developed by myBiQ at any time in the future. myBiQ may offer support and subscription services separately. If you have purchased myBiQ support and subscription services with the Software, these services are provided to you under the Support Contract Terms and Conditions posted on myBiQ’s Web site at http://www.myBiQ.com/services and by accepting the terms of this EULA you are accepting these Support Contract Terms and Conditions. Any supplemental software code or related materials that myBiQ provides to you as part of any support and subscription services are to be considered part of the Software and are subject to the terms and conditions of this EULA. myBiQ may use any technical information you provide to myBiQ for any myBiQ business purposes without restriction, including for product support and development. myBiQ will not use information in a form that personally identifies you.
6.1 Termination. myBiQ may terminate this EULA immediately
and without notice if you fail to comply with any term of this EULA.
6.2 Effect of Termination. In the event of termination, you must destroy all copies of the Software and Software License Key. In addition you must remove all copies of the Software, including all backup copies, from the Server and all computers and terminals on which it is installed. From time to time, myBiQ may change the terms of this EULA. myBiQ will notify you of such change. Your continued use of the Software will indicate your agreement to the change.
7.LIMITED WARRANTY AND LIMITATION OF LIABILITY
7.1 Limited Warranty. myBiQ warrants that the media, if any, on which the Software is delivered will be free of defects and that the Software will substantially conform to the description contained in the applicable end user documentation in each case for a period of 90 days after the date of shipment of the Software License Key. EXCEPT FOR THE PRECEDING EXPRESS LIMITED WARRANTY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, myBiQ AND ITS LICENSORS PROVIDE THE SOFTWARE WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS EULA OR COMMUNICATION WITH YOU, AND myBiQ AND ITS LICENSORS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
7.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL myBiQ AND ITS LICENSORS BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, OR CONSE¬QUEN¬TIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE PRECEDING LIMITATION MAY NOT APPLY TO YOU. myBiQ AND ITS LICENSORS’ LIABILITY UNDER THIS EULA WILL NOT, IN ANY EVENT, EXCEED THE LICENSE FEES, IF ANY, PAID BY YOU FOR THE SOFTWARE LICENSED TO YOU UNDER THIS EULA. THE FOREGOING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF WHETHER myBiQ OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
8.1 Entire Agreement. This Agreement sets forth myBiQ’s entire liability and your exclusive remedy with respect to the Software and supersedes the terms of any purchase orders and any other communications or advertising with respect to the Software. You acknowledge that this Agreement is a complete statement of the agreement between you and myBiQ with respect to the Software, and that there are no other prior or contemporaneous understandings, promises, representations, or descriptions with respect to the Software.
8.2 Headings. Headings under this EULA are intended only for convenience and shall not affect the interpretation of this EULA.
8.3 Waiver and Modification. No failure of either party to exercise or enforce any of its rights under this EULA will act as a waiver of those rights. This EULA may only be modified, or any rights under it waived, by a written document executed by the party against which it is asserted.
8.4 Severability. If any provision of this EULA is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this EULA will not be affected.
8.5 Governing Law. This EULA will be governed by New Jersey law and the United States of America, without regard to its choice of law principles. The United Nations Convention for the International Sale of Goods shall not apply.
8.6 Government Restrictions. You may not export or re-export the Soft¬ware except in compliance with the United States Export Administration Act and the related rules and regulations and similar non-U.S. government restrictions, if applicable. The Software and accompanying documentation are deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying, or disclosing of the Software by the U.S. Government shall be governed solely by the terms of this EULA.
8.7 Contact Information. If you have any questions about this EULA, or if you want to contact myBiQ for any reason, please direct all correspondence to: myBiQ, LLC, 12 Lozier Road, Mount Olive, Budd Lake, NJ 07828-1108, United States of America or email info@myBiQ.com.
8.8 Other. myBiQ and MYAL are trademarks and/or registered trademarks of myBiQ, LLC in the United States and/or various jurisdictions.
9.SOFTWARE PRODUCT SPECIFIC TERMS AND CONDITIONS
In addition to the above, the following Software products shall also be subject to the following terms and conditions set forth below. In the event of any conflict between the following product-specific terms and conditions and the preceding sections, the product-specific terms and conditions shall control.
(a) Additional License Terms:
myBiQ grants you a nonexclusive, nontransferable license, without rights to sublicense, to (i) use the Software solely for your own internal information processing services and computing needs in connection with permitted uses of the Software on a single computer; (ii) use the documentation accompanying the Software. Subject to the above, each copy of the Software may not be used by any other person, whether or not such person is employed by or otherwise associated with your entity. You may not share or use concurrently the Software.
myBiQ OSBIF is intended for your own personal non-commercial use only. OSBIF is only distributable with written agreement from myBiQ. If you are interested in distributing the Software for internal or external use, promotion, review or as part of a solution - please apply now.
Redistribution includes posting, packaging, bundling, or otherwise making available for use either within your organization or externally to 3rd party users.