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Productive Solutions Inc. End User License Agreement

Copyright (c) 2008-Present Productive Solutions Inc. All rights reserved.

The Software Product is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Software Product is licensed, not sold.

End User License Agreement (EULA)

IMPORTANT: PLEASE READ THIS END USER LICENSE AGREEMENT CAREFULLY. DOWNLOADING, INSTALLING OR USING PRODUCTIVE SOLUTIONS INC OR PRODUCTIVE SOLUTIONS INC-SUPPLIED SOFTWARE CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.

By using the software, you accept these terms.  If you do not accept them, do not use the software.

PRODUCTIVE SOLUTIONS INC IS WILLING TO LICENSE THE SOFTWARE TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS LICENSE AGREEMENT.  BY DOWNLOADING OR INSTALLING THE SOFTWARE, OR USING THE EQUIPMENT THAT CONTAINS THIS SOFTWARE, YOU ARE BINDING YOURSELF AND THE BUSINESS ENTITY THAT YOU REPRESENT (COLLECTIVELY, "CUSTOMER") TO THIS AGREEMENT.  IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN PRODUCTIVE SOLUTIONS INC IS UNWILLING TO LICENSE THE SOFTWARE TO YOU AND (A) DO NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE, AND (B) YOU MAY RETURN THE SOFTWARE FOR A FULL REFUND, OR, IF THE SOFTWARE IS SUPPLIED AS PART OF ANOTHER PRODUCT, YOU MAY RETURN THE ENTIRE PRODUCT FOR A FULL REFUND.  YOUR RIGHT TO RETURN AND REFUND EXPIRES 30 DAYS AFTER PURCHASE FROM PRODUCTIVE SOLUTIONS INC OR AN AUTHORIZED PRODUCTIVE SOLUTIONS INC RESELLER, AND APPLIES ONLY IF YOU ARE THE ORIGINAL END USER PURCHASER.

The following terms of this End User License Agreement ("Agreement") govern Customer’s access and use of the Software, except to the extent (a) there is a separate signed agreement between Customer and Productive Solutions Inc.  governing Customer’s use of the Software or (b) the Software includes a separate "click-accept" license agreement as part of the installation and/or download process. To the extent of a conflict between the provisions of the foregoing documents, the order of precedence shall be (1) the signed agreement, (2) the click-accept agreement, and (3) this End User License Agreement.

License.  Conditioned upon compliance with the terms and conditions of this Agreement, Productive Solutions Inc. or its subsidiary licensing the Software instead of Productive Solutions Inc. ("Productive Solutions"), grants to Customer a nonexclusive and nontransferable license to use for Customer’s internal business purposes the Software and the Documentation for which Customer has paid the required license fees. "Documentation" means written information (whether contained in user or technical manuals, training materials, specifications or otherwise) specifically pertaining to the Software and made available by Productive Solutions with the Software in any manner (including on CD-Rom, or on-line).

Customer’s license to use the Software shall be limited to, and Customer shall not use the Software in excess of, a single hardware chassis or card or such number and types of agent(s), concurrent users, sessions, IP addresses, port(s), seat(s), server(s), site(s), features and feature sets as are set forth in the applicable Purchase Order which has been accepted by Productive Solutions and for which Customer has paid to Productive Solutions the required license fee.

General Limitations.  This is a license, not a transfer of title, to the Software and Documentation, and Productive Solutions retains ownership of all copies of the Software and Documentation.  Customer acknowledges that the Software and Documentation contain trade secrets of Productive Solutions, its suppliers or licensors, including but not limited to the specific internal design and structure of individual programs and associated interface information.  Accordingly, except as otherwise expressly provided under this Agreement, Customer shall have no right, and Customer specifically agrees not to:

(i)   transfer, assign or sublicense its license rights to any other person or entity, or use the Software on unauthorized equipment, and Customer acknowledges that any attempted transfer, assignment, sublicense or use shall be void;

(ii)  make error corrections to or otherwise modify or adapt the Software or create derivative works based upon the Software, or  permit third parties to do the same;

(iii) reverse engineer or decompile, decrypt, disassemble or otherwise reduce the Software to human-readable form, except to the extent otherwise expressly permitted under applicable law notwithstanding this restriction;

(iv)  use or permit the Software to be used to perform services for third parties, whether on a service bureau or time sharing basis or otherwise, without the express written authorization of Productive Solutions; or

(v)   disclose, provide, or otherwise make available trade secrets contained within the Software and Documentation in any form to any third party without the prior written consent of Productive Solutions. Customer shall implement reasonable security measures to protect such trade secrets.

(vi)  icons and other visual assets.  Subject to these license terms, you may not copy or modify the images and other visual assets in the software for any purpose.

To the extent required by law, and at Customer's written request, Productive Solutions shall provide Customer with the interface information needed to achieve interoperability between the Software and another independently created program, on payment of Productive Solutions’ applicable fee, if any.  Customer shall observe strict obligations of confidentiality with respect to such information and shall use such information in compliance with any applicable terms and conditions upon which Productive Solutions makes such information available.

Software, Upgrades and Additional Copies.  For purposes of this Agreement, "Software" shall include (and the terms and conditions of this Agreement shall apply to) computer programs, including firmware, as provided to Customer by Productive Solutions or an authorized Productive Solutions reseller, and any upgrades, updates, bug fixes or modified versions thereto (collectively, "Upgrades") or backup copies of the Software licensed or provided to Customer by Productive Solutions or an authorized Productive Solutions reseller.  NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT:  (1) CUSTOMER HAS NO LICENSE OR RIGHT TO USE ANY ADDITIONAL COPIES OR UPGRADES UNLESS CUSTOMER, AT THE TIME OF ACQUIRING SUCH COPY OR UPGRADE, ALREADY HOLDS A VALID LICENSE TO THE ORIGINAL SOFTWARE AND HAS PAID THE APPLICABLE FEE FOR THE UPGRADE OR ADDITIONAL COPIES; AND (2) THE MAKING AND USE OF ADDITIONAL COPIES IS LIMITED TO NECESSARY BACKUP PURPOSES ONLY.

Proprietary Notices.  Customer agrees to maintain and reproduce all copyright and other proprietary notices on all copies, in any form, of the Software in the same form and manner that such copyright and other proprietary notices are included on the Software.  Except as expressly authorized in this Agreement, Customer shall not make any copies or duplicates of any Software without the prior written permission of Productive Solutions. 

Support.  Customer agrees that Productive Solutions is not obligated to but may at its own option provide support for the Software via email, web or any other plausible method.

Updates. If this copy of the Software is an upgrade from an earlier version of the Software Product, it is provided to you on a license exchange basis. You agree by your installation and use of such copy of the Software Product to voluntarily terminate your earlier EULA and that you will not continue to use the earlier version of the Software Product or transfer it to another person or entity unless such transfer is otherwise valid according to the terms of this EULA.

Term and Termination.  This Agreement and the license granted herein shall remain effective until terminated. Customer may terminate this Agreement and the license at any time by destroying all copies of Software and any Documentation.  Customer’s rights under this Agreement will terminate immediately without notice from Productive Solutions if Customer fails to comply with any provision of this Agreement.  Upon termination, Customer shall destroy all copies of Software and Documentation in its possession or control.  All confidentiality obligations of Customer and all limitations of liability and disclaimers and restrictions of warranty shall survive termination of this Agreement.  In addition, the provisions of the sections titled "U.S. Government End User Purchasers" and "General Terms Applicable to the Limited Warranty Statement and End User License" shall survive termination of this Agreement.

Customer Records.  Customer grants to Productive Solutions and its independent accountants the right to examine Customer’s books, records and accounts during Customer’s normal business hours to verify compliance with this Agreement.  In the event such audit discloses non-compliance with this Agreement, Customer shall promptly pay to Productive Solutions the appropriate license fees, plus the reasonable cost of conducting the audit.  

Export.  Software and Documentation, including technical data, may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer agrees to comply strictly with all such regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export, or import Software and Documentation. You may not use the Software or Service if you are a citizen, national, or resident of, or are under control of, the government of Cuba, Iran, Sudan, Libya, North Korea, Syria, or any other country to which the United States has prohibited export. Each time you use the Software or Service you represent, warrant, and covenant that:  (i) you are not a citizen, national, or resident of, nor under the control of, any such country to which the United States has prohibited export; (ii) you will not download or otherwise export or re-export the Software, directly or indirectly, to the above mentioned countries nor to citizens, nationals or residents of those countries; (iii) you are not listed on the U.S. Department of Treasury's Lists of Specially Designated Nationals, Specially Designated Terrorists, and Specially Designated Narcotic Traffickers, the U.S. Department of State's List of Statutorily Debarred Parties, or the U.S. Department of Commerce's Denied Persons List, Entity List, or Unverified List Table of Denial Orders; (iv) you will not download or otherwise export or re-export the Software, directly or indirectly, to persons on the above mentioned lists; (v) you will neither use nor allow the Software to be used for, any purposes prohibited by United States federal or state law, including, without limitation, for the development, design, manufacture or production of nuclear, chemical, or biological weapons of mass destruction; (vi) the Software will not be exported, directly, or indirectly, in violation of these laws, nor will the Software or Services be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation; and (vii) you are not using or permitting others to use the Software or Service to create, store, backup, distribute, or provide access to child pornography.

U.S. Government End User Purchasers.  The Software and Documentation qualify as "commercial items," as that term is defined at Federal Acquisition Regulation ("FAR") (48 C.F.R.) 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in FAR 12.212.  Consistent with FAR 12.212 and DoD FAR Supp. 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which this End User License Agreement may be incorporated, Customer may provide to Government end user or, if this Agreement is direct, Government end user will acquire, the Software and Documentation with only those rights set forth in this End User License Agreement. Use of either the Software or Documentation or both constitutes agreement by the Government that the Software and Documentation are "commercial computer software" and "commercial computer software documentation," and constitutes acceptance of the rights and restrictions herein.

Limited Warranty

Subject to the limitations and conditions set forth herein, Productive Solutions warrants that commencing from the date of shipment to Customer (but in case of resale by an authorized Productive Solutions reseller, commencing not more than ninety (90) days after original shipment by Productive Solutions), and continuing for a period of the longer of (a) ninety (90) days or (b) the warranty period (if any) expressly set forth as applicable specifically to software in the warranty card accompanying the product of which the Software is a part (the "Product") (if any): (a) the media on which the Software is furnished will be free of defects in materials and workmanship under normal use; and (b) the Software substantially conforms to the Documentation.   The date of shipment of a Product by Productive Solutions is set forth on the packaging material in which the Product is shipped.   Except for the foregoing, the Software is provided AS IS. This limited warranty extends only to the Customer who is the original licensee. Customer's sole and exclusive remedy and the entire liability of Productive Solutions and its suppliers and licensors under this limited warranty will be (i) replacement of defective media and/or (ii) at Productive Solutions option, repair, replacement, or refund of the purchase price of the Software, in both cases subject to the condition that any error or defect constituting a breach of this limited warranty is reported to Productive Solutions or the party supplying the Software to Customer, if different than Productive Solutions, within the warranty period. Productive Solutions or the party supplying the Software to Customer may, at its option, require return of the Software as a condition to the remedy.  In no event does Productive Solutions warrant that the Software is error free or that Customer will be able to operate the Software without problems or interruptions.   In addition, due to the continual development of new techniques for the operation of computer networks, Productive Solutions does not warrant that the Software or any equipment, system or network on which the Software is used will be free of vulnerability to error or omission.

Restrictions. This warranty does not apply if the Software, Product or any other equipment upon which the Software is authorized to be used (a) has been altered, except by Productive Solutions or its authorized representative, (b) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by Productive Solutions, (c) has been subjected to abnormal physical or electrical stress, misuse, negligence, or accident; or (d) is licensed, for beta, evaluation, testing or demonstration purposes for which Productive Solutions does not charge a purchase price or license fee.

DISCLAIMER OF WARRANTY.  THIS SOFTWARE IS PROVIDED "AS IS."  EXCEPT AS SPECIFIED IN THIS WARRANTY, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY, NON-INTERFERENCE, ACCURACY OF INFORMATIONAL CONTENT, OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW AND ARE EXPRESSLY DISCLAIMED BY PRODUCTIVE SOLUTIONS, ITS SUPPLIERS AND LICENSORS.  TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD.  BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, THE ABOVE LIMITATION MAY NOT APPLY. THIS WARRANTY GIVES CUSTOMER SPECIFIC LEGAL RIGHTS, AND CUSTOMER MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.  This disclaimer and exclusion shall apply even if the express warranty set forth above fails of its essential purpose. 

Disclaimer of Liabilities. REGARDLESS WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL PRODUCTIVE SOLUTIONS OR ITS SUPPLIERS BE LIABLE FOR ANY LOST REVENUE, PROFIT, OR LOST OR DAMAGED DATA, BUSINESS INTERRUPTION, LOSS OF CAPITAL, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY OR WHETHER ARISING OUT OF THE USE OF OR INABILITY TO USE SOFTWARE OR OTHERWISE AND EVEN IF PRODUCTIVE SOLUTIONS OR ITS SUPPLIERS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  In no event shall Productive Solutions’ or its suppliers' or licensors’ liability to Customer, whether in contract, tort (including negligence), breach of warranty, or otherwise, exceed the price paid by Customer for the Software that gave rise to the claim or if the Software is part of another Product, the price paid for such other Product.  BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. 

Customer agrees that the limitations of liability and disclaimers set forth herein will apply regardless of whether Customer has accepted the Software or any other product or service delivered by Productive Solutions.  Customer acknowledges and agrees that Productive Solutions has set its prices and entered into this Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties.

The validity, interpretation, and performance of this Warranty and End User License shall be controlled by and construed under the laws of the State of Florida, United States of America, as if performed wholly within the state and without giving effect to the principles of conflict of laws, and the State and federal courts of Florida shall have jurisdiction over any claim arising under this Agreement. The parties specifically disclaim the UN Convention on Contracts for the International Sale of Goods.  Notwithstanding the foregoing, either party may seek interim injunctive relief in any court of appropriate jurisdiction with respect to any alleged breach of such party's intellectual property or proprietary rights.  If any portion hereof is found to be void or unenforceable, the remaining provisions of the Agreement shall remain in full force and effect. Except as expressly provided herein, this Agreement constitutes the entire agreement between the parties with respect to the license of the Software and Documentation and supersedes any conflicting or additional terms contained in any purchase order or elsewhere, all of which terms are excluded.  This Agreement has been written in the English language, and the parties agree that the English version will govern.   

Productive Solutions and its affiliates may collect and use technical and related information in relation to your use of the Software, computer system and other applications or products. Productive Solutions will use this information to improve the Software and other products and services and will not use this information in a form that personally identifies you.